scholarly journals Recepcija rimskog prava na glagoljici

2020 ◽  
Vol 41 (2) ◽  
pp. 469-482
Author(s):  
Ivan Milotić
Keyword(s):  
Dispute Resolution ◽  
Canon Law ◽  
The Other ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Principles ◽  
Ius Commune ◽  
Roman Model ◽  
Substantive Law ◽  
Made In

The protocol of Petar Lazarić, who was simultaneously a domestic priest, prebendary and a notary of Mošćenice, dates back to 1621. It originated in Mošćenice and records in glagolithic script a resolution of a private dispute concerning the property division which was achieved in arbitration. Although the wording of the documents reveals the glagolithic script and is fully made in the Croatian language, if we go beyond that and explore the origins of the essential terms and expressions, we may reach a conclusion that the document substantially records Latin (or Italian) legal technical language which was slightly Croatised in the process of its adoption into the legal system of the commune of Mošćenice. Moreover, the content of the document puts forth legal principles, concepts and institutes of the extrajudicial dispute resolution which were consistently applied in Mošćenice following the model of arbitration in Roman law. All the essentials of the document at hand reflect the strong influences of the Roman legal tradition and the ius commune. The author provides an analysis in this paper which addresses all the relevant institutes that were applied in the arbitration dispute at hand referring to the procedural and substantive law at the same time. The author searches for the Roman model of these institutes, evaluates them from perspective of Roman and canon law of the Middle and New Ages and, finally, he brings this particular legal source in relation to the other two which originated in Mošćenice in the first half of the 17th century that both record significant influences of the Roman legal tradition of the time: The Statute of Mošćenice of 1637 and the boundary dispute between Lovran and Mošćenice of 1646.

scholarly journals Recepcija rimskog prava na glagoljici

2021 ◽  
Vol 41 (3) ◽  
pp. 679-689
Author(s):  
Ivan Milotić
Keyword(s):  
Dispute Resolution ◽  
Canon Law ◽  
The Other ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Principles ◽  
Ius Commune ◽  
Roman Model ◽  
Substantive Law ◽  
Made In

The protocol of Petar Lazarić, who was simultaneously a domestic priest, prebendary and a notary of Mošćenice, dates back to 1621. It originated in Mošćenice and records in glagolithic script a resolution of a private dispute concerning the property division which was achieved in arbitration. Although the wording of the documents reveals the glagolithic script and is fully made in the Croatian language, if we go beyond that and explore the origins of the essential terms and expressions, we may reach a conclusion that the document substantially records Latin (or Italian) legal technical language which was slightly Croatised in the process of its adoption into the legal system of the commune of Mošćenice. Moreover, the content of the document puts forth legal principles, concepts and institutes of the extrajudicial dispute resolution which were consistently applied in Mošćenice following the model of arbitration in Roman law. All the essentials of the document at hand reflect the strong influences of the Roman legal tradition and the ius commune. The author provides an analysis in this paper which addresses all the relevant institutes that were applied in the arbitration dispute at hand referring to the procedural and substantive law at the same time. The author searches for the Roman model of these institutes, evaluates them from perspective of Roman and canon law of the Middle and New Ages and, finally, he brings this particular legal source in relation to the other two which originated in Mošćenice in the first half of the 17th century that both record significant influences of the Roman legal tradition of the time: The Statute of Mošćenice of 1637 and the boundary dispute between Lovran and Mošćenice of 1646.

11. Roman Law and the European Ius Commune

2020 ◽  
pp. 359-394
Author(s):  
Paul J. du Plessis
Keyword(s):  
Roman Empire ◽  
Western Europe ◽  
Roman Law ◽  
Modern World ◽  
Conceptual Basis ◽  
Legal Tradition ◽  
Ius Commune ◽  
The World ◽  
Common Framework ◽  
Formed Part

The term European ius commune (in its historical sense) signifies that, from the fourteenth to the start of the sixteenth centuries, most of Europe shared a common legal tradition. Many local and regional variations on the law existed, but the terminology, concepts, and structure provided by elements of Roman law provided a common framework. This chapter traces how Justinian’s codification came to influence the modern world. The influence of Roman law in the modern world is immense: it constitutes the historical and conceptual basis of many legal systems throughout the world. Its impact has not been confined to those countries in Western Europe that historically formed part of the Roman Empire. Wherever Europeans went, they normally took their law (usually based to some extent on the principles of Roman law) with them.

scholarly journals Arbitraža po uzoru na rimsko pravo u graničnom sporu između Lovrana i Mošćenica (1646.)

2020 ◽  
Vol 40 (3) ◽  
pp. 987-1006
Author(s):  
Ivan Milotić
Keyword(s):  
Point Of View ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Documents ◽  
Legal Traditions ◽  
Canonical Process ◽  
Ius Commune ◽  
Latin Language ◽  
Legal Concepts ◽  
Key Terms

The boundary dispute between Lovran and Mošćenice of 1646 quite recently received some attention in the literature and was simultaneously adequately elaborated form palaeographic and philological point of view. Despite the fact that it is substantially a legal act, its legal content did not receive adequate attention of the scholars, which may primarily be said with reference to its institutes, terms and expressions whose precision, accuracy and legal technical at first sight most evidently depart from the local feudal legal customs and legal traditions. Moreover, nevertheless that these terms and expressions were written down in Italian language of the time, they evidently represent Italianized version of terms, expression and legal concepts that originally belong to Latin language. Additionally, their mentions in the document at hand have no resemblance to the usual medieval descriptions of the legal phenomena which have a little in common with normative language or to administrativefunctional style of that time which distinctively shaped the legal documents. Because all these indications suggest that the key terms, expressions and institutes pertinent to the boundary dispute between Lovran and Mošćenice (and its resolution) might be borrowed from the Roman legal tradition (which outreached this territory by means of ius commune) and the Romano-canonical process, this paper examines origin, roles and functions which were achieved in practice by their use in this particular legal matter. The paper will specifically explore the procedural mechanism which was employed to reach settlement of the boundary dispute between Lovran and Mošćenice and will additionally provide a deeper insight into the possibility that in this particular case arbitration conceptually based on the Roman law was employed as the means of dispute resolution.

Later Medieval Law in Community Context

2013 ◽  
Author(s):  
Marie Kelleher
Keyword(s):  
Middle Ages ◽  
Canon Law ◽  
Legal Status ◽  
Community Context ◽  
Medieval Women ◽  
Legal Principles ◽  
Legal Proceedings ◽  
Late Middle Ages ◽  
Major Shift ◽  
Substantive Law

During the central and late Middle Ages, European lawmakers and jurists began to make intensive use of the principles of both Roman and canon law in their legislation and court decisions. Embedded in these legal principles were ideas about gender that would have a profound effect on litigation involving women. The substantive law that emerged during this legal renaissance helped to define women's place in medieval society, but equally important were the new law's procedural rules, which allowed reputation to be taken into account in legal proceedings, thereby rendering women's self-representation critical in determining the outcomes of their court cases. An examination the interaction of learned law and community knowledge encourages us to see medieval women as active participants in their own fates, as well as in a major shift in legal culture that would shape European women's legal status more generally.

scholarly journals PRAWO RZYMSKIE JAKO ŹRÓDŁO PRAWA W AFRYCE POŁUDNIOWEJ

2017 ◽  
Vol 3 (1) ◽  
pp. 139
Author(s):  
Rafał Mańko
Keyword(s):  
South African ◽  
Legal System ◽  
Case Law ◽  
The Other ◽  
Customary Law ◽  
Roman Law ◽  
The South ◽  
Cape Of Good Hope ◽  
Ius Commune ◽  
The Republic

ROMAN LAW AS A SOURCE OF LAW IN SOUTHERN AFRICASummary Roman law is usually regarded as an object o f historic study and not as a practical discipline of the legal science. However, the situation is different in six South African states - the Republic of South Africa, Zimbabwe, Lesotho, Swaziland, Botswana and Namibia - which have preserved the uncodified ius commune europaeum brought by the Dutch to the Cape of Good Hope in the 17th century.The hierarchy of the fontes iuris oriundi in the South African legal system seems to be the following: the Constitution, statutes, customary law, case-law, Roman-Dutch law and Roman law. The position occupied by Roman law is in fact only subsidiary, however it is a source of law and is referred to from time to time in the case-law. On the other hand it permeates the whole legal system which is based on fundamental notions derived from Roman law, which have been preserved and developed in the treatises of the Roman-Dutch jurists and the case-law of the courts.The frequency o f citations of Roman law in the South African case-law has been an object of two major studies. One, conducted by Van Der Merve concerned the period 1970-1979, the other, by Du Plessis - took into account the cases of 1990-1991. The studies revealed that Roman sources are cited in 4,7-4,8% of the case-law. According to another study by Zimmermann, only in half o f those cases the Roman sources were relevant for deciding the case.Nevertheless, it is submitted that these figures should be treated as significant, especially when compared with the position occupied by Roman sources in the modern case law in other civilian jurisdictions. 

Mandatory Family Protection in the Civilian Tradition

2020 ◽  
pp. 648-706
Author(s):  
Reinhard Zimmermann
Keyword(s):  
Eighteenth Century ◽  
Eastern Europe ◽  
Central And Eastern Europe ◽  
The Other ◽  
Comparative Perspective ◽  
Roman Law ◽  
Legal Systems ◽  
Modern Times ◽  
Ius Commune ◽  
Code Civil

The chapter traces the development of mandatory family protection from Roman law through the ius commune to the modern civilian codifications. The Justinianic reform of 542 AD having failed to streamline and simplify the rules of classical Roman law, it was left to the draftsmen of the codifications from the end of the eighteenth century onwards to tackle that task. Particularly influential were the French Code civil of 1804 and the Austrian Civil Code of 1811. Germany adopted the Austrian model of a ‘compulsory portion’ (ie a personal claim for the value of a part of the estate). Elsewhere the French model of ‘forced heirship’ (part of the testator’s property is reserved to his closest relatives) was extremely influential, although in modern times some of the Romanistic countries have changed from forced heirship to compulsory portion. The chapter also considers the post-socialist countries of Central and Eastern Europe, the Nordic countries, and the codifications in the Americas. A number of lines of development can be traced in comparative perspective, among them a tendency to weaken the position of the deceased’s closest family members (by granting them merely a personal claim in money rather than the position of co-heirs, by reducing the quotas to which they are entitled, and by drawing the range of the deceased’s relatives entitled to mandatory protection more narrowly). The surviving spouse’s position, on the other hand, has been strengthened. Characteristic for a number of civilian legal systems is the endeavour in various ways to render to law of mandatory family protection more flexible. The implementation of the concept of a needs-based claim for maintenance is one of the devices attesting to the quest for increased flexibility.

The Moroccan Constitutional Transition: The Method of Contextualization and Mutual Interaction

2015 ◽  
Vol 10 (1) ◽  
pp. 63-88
Author(s):  
Francesco Alicino
Keyword(s):  
Arab Spring ◽  
Constitutional Reform ◽  
The Other ◽  
Mutual Interaction ◽  
Legal Tradition ◽  
Legal Principles ◽  
Other Hand ◽  
Political Perspective ◽  
The One ◽  
The Arab Spring

In this article the author analyses the influence of Islamic references in the 2011 Moroccan constitutional reform that, far from taking place in a vacuum, was informed both by an internal political perspective and by the broader context of what has come to be called the “Arab Spring”. It will be outlined that, on the one hand, Islamic legal tradition interacts with Western legal principles; while on the other hand the exceptionalism of the “Moroccan Spring” reveals that those very principles are contextualized and adapted within this executive Islamic monarchy.

scholarly journals The influence of canon law on ius commune in its formative period

SEEU Review ◽  
2015 ◽  
Vol 11 (2) ◽  
pp. 153-164
Author(s):  
Sami Mehmeti
Keyword(s):  
Canon Law ◽  
Civil Law ◽  
Formative Period ◽  
Roman Law ◽  
European Law ◽  
Medieval Period ◽  
Ancient Greek ◽  
Ius Commune ◽  
The Common ◽  
The Difference

AbstractIn the Medieval period, Roman law and canon law formedius communeor the common European law. The similarity between Roman and canon law was that they used the same methods and the difference was that they relied on different authoritative texts. In their works canonists and civilists combined the ancient Greek achievements in philosophy with the Roman achievements in the field of law. Canonists were the first who carried out research on the distinctions between various legal sources and systematized them according to a hierarchical order. The Medieval civilists sought solutions in canon law for a large number of problems that Justinian’s Codification did not hinge on or did it only superficially. Solutions offered by canon law were accepted not only in the civil law of Continental Europe, but also in the English law.

Bona fides presumitur in classical Canon Law

2016 ◽  
Vol 102 (1) ◽  
Author(s):  
Harry Dondorp
Keyword(s):  
Canon Law ◽  
Good Faith ◽  
The Other ◽  
Moral Duty ◽  
Roman Law ◽  
Legal Practice ◽  
Fourth Lateran Council

AbstractIn 1215, the Fourth Lateran Council settled a controversy between theologians and jurists with regard to the duty to make restitution. This moral duty was not always recognized at law because of the limitation of claims, which the jurists derived from Roman Law (C. 7.39.3) and which they termed as longissimi temporis praescriptio. Hence, correcting a statute that cannot be observed without peril to one’ soul, the council required that the person who prescribes, must not know at any time that the object belongs to someone else. The effect in legal practice may have been minor, for the canonists presumed the possessor’s ignorance after thirty years of uncontested possession. It was to the other party, the claimant, to disprove this presumption. Even if, by exception, there was a presumption to the contrary, the defendant invoking prescription could avoid proving his good faith by oath, for the presumtion then derived from the combination of the lapse of time and a proper cause (titulus) of his possession

scholarly journals Medieval Canon Lawyers and European Legal Tradition. A Brief Overview

2021 ◽  
Vol 47 (4) ◽  
pp. 157-187
Author(s):  
Tomasz Giaro
Keyword(s):  
Roman Empire ◽  
Middle Ages ◽  
Canon Law ◽  
Structural Features ◽  
Public Institution ◽  
Roman Law ◽  
Spiritual Power ◽  
Legal Tradition ◽  
Marriage And Family ◽  
Medieval Universities

The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and finally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was effective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codification.

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