Legal History and Method(s), 2010 Fundamina [FS Philip Thomas]

1. Antoni Dębiński: Introduction to the subject of the conference: the role and significance of Roman law in the legal history of Europe 2. Tomasz Giaro: Roman Law always dies with a codification 3: Mychajło Bajmuratow From Roman municypia to modern local government 4: Paul du Plessis The development of legal doctrine in the ius commune: a case study 5: Wołodymyr Kossak The reception of Roman law regulations on mortgage in the legislation of Ukraine 6: Michal Skreipek Roman roots of contract of bailment in Czech law 7: Jewhen Charytonow Roman law reception in contemporary Ukrainian civil law 8: Wojciech Dajczak The civilian tradition and the modern debate on the rules of private law. Remarks against the factors of unjustified enrichment 9: Marek Kurylowicz Roman law as a universal ethical metaphor (on the example of Louis Aragon and Mieczyslaw Jastrun)

Journal of Security and Sustainability Issues , 2023

This study shall present the consequences of the paradigm shift in thinking about law that took place in Ancient Rome (primarily, but not exclusively, in the early republic). It will present what distinguished the Roman concept of law from the concept of law present in other ancient laws, and what is still a living heritage of Roman thought, even if we do not realize it on a daily basis. Roman law will be compared with other laws of the European cultural circle, and therefore, apart from ancient Greece, the so-called Eastern despotias and the state (states) of the Jews. However, it is more about ideas than specific solutions. Therefore, in the comparative material will be also included the Muslim law, although it was created after the promulgation of the Justinian Code, considered the final stage in the formation of ancient Roman law. The Muslim law is however-in a sense-an heir of Middle Eastern legislation and expresses an alternative to Roman way of thinking about law. The aim is to show not only what distinguishes Roman law from the laws that precede it or its contemporaries, but what distinguishes Roman law from other possible ways of looking at laws in general. As a research hypothesis is presented the statement that the fundamental for the development of European legal culture were not so much specific Roman normative solutions, but a change in the paradigm of thinking about law: its secularization, understood as a break with divine origin or the sanctioning of law, and its professionalization, understood as the development of a specific category professional people dealing with the analysis and interpretation of law. At the end it is presented an open question why the secularization of the law happened only in Rome and why it ever happened there although in all other analyzed legal systems the connection between law and religion was never surpassed which this did not prevent the formation of a precise and sublime law, as was the case of the Islamic world.

„Messages from Antiquity“, 2019

This book is a compilation of papers presented at the conference held in February 2016 at Kyushu University (Fukuoka, Japan) under the title "Messages from the Antiquity: How can Roman law contribute to current debates in law?" For the occasion, Prof. Mariko Igimi invited Roman law researchers from around the world to discuss the importance of Roman law with the students of the LL.M. in International Economic and Business Law. Tue aim was to identify and build links between Roman and modern law through such interaction. We came to understand that Roman law is significant on the one hand because it provides the historical basis of civil law in continental Europe and other civil law jurisdictions, induding Japan. On the other hand, the texts of Roman law also provide us with a space to reflect on "new" issues of legal politics. Therefore, they help to analyse legal problems and might provide support for the development of solutions. Tue unique experience of having such a diverse group of students from all over the world, induding common law jurisdictions such as UK and New Zealand participating in the discussion, served as the main inspiration to open a gateway for a larger group of readers to different ideas and questions on the persisting relevance of Roman law, in the hope that they will discover "new" elements in "ancient" law. Hence, this book is for students, legal practitioners and academics who wish to widen their horizons with a different perspective on Roman law. To the European reader, it might be interesting to find the ongoing importance of the Roman legacy in Japanese law, whereas the almost unbroken continuity of the European legal tradition might be of special interest to Asian readers. By any account, the diversity and scope of the different artides in this book will show once again that the study of Roman law from very different perspectives can be rewarding, valuable and informative. Tue approach we have chosen (also to be seen in the introduction) was an "experiment" that required courage and openness on the part of all who were involved. We would, therefore, like to thank all of the contributors, who were ready to partake in this unusual dialogue between modern legal problems and legal culture from the antiquity. Special thanks are given to the students and the staff of the International Programs in Law at Kyushu University, 2015-2016, who made the conference a great success as well as to all those who were instrumental in the editorial work for the articles gathered here, namely the assistants of the chair of Roman law, private and comparative law at the University of Zurich: Franca Eckstein, Ulrike Babusiaux, Zurich Tue still predominant view characterises the Roman legal order as an uncoordinated mass of legal sources accumulated in the historical development but without clear hierarchy among them. 1 From this point of view, the Roman legal reasoning seems to differ profoundly from modern legal reasoning. Indeed, at least in the civil law countries since the age of codifications, private law has been organised in codes and statutes, whose application and interpretation are said to follow a strict methodological framework. However, the emergence of an autonomous European legal order that influences and competes with the national private law of the Member States has brought a change to this overly idyllic picture of legal positivism. Tue old question in Roman law of how to coordinate different legal sources without abstract hierarchy has, therefore, become an important topic in modern legal methodology as well. With this in mind, it is interesting to reconsider the question of coordination of legal sources in the Roman Empire and in contemporary private law influenced by the European Union. Tue first part will try to explain the Roman legal order and the techniques known to the Roman jurists as to coordinate different legal sources (II), whereas the second part will give abrief introduction into the methodological implications of the European efforts oflegal harmonisation for the application of private law in its Member States (III), before it turns to a comparison of the problems that have occurred in both historical examples, which will serve to verbalise a "message from antiquity" (IV).

Emory Legal Studies Research Paper, 2018

From the eleventh century onward, Justinian’s Roman law permeated all European legal systems to different degrees and at different times. The development of Roman law in Europe was not uniform. It followed different courses, had different emphases, and took on different details in each of the major European countries. The fusion of Roman law, canon law, and feudal law produced the ius commune, a common legal system in Europe in force until the era of national codifications. At the end of the sixteenth century, almost all of continental Europe was ruled by ius commune, with significant local variants (ius proprium), and a body of common legal literature. Roman law infused both Catholic Europe and the Protestant culture of Northern Europe. Around 1700, Roman law was used to identify the basic moral principles of natural law and the law of nations. Around 1800, Roman law influenced the French Civil Code and many others in the so-called age of codification. With the German Civil Code (BGB) coming into force in 1900, Roman law lost its direct applicability in European legal practice. Yet the Roman law tradition itself has survived: civil law systems have been so influenced by Roman law that legal interpretation remains incomplete if it does not take into consideration Roman legal sources. In our own day, the study of Roman law has educational purposes and may prove instrumental in the development of a new global law.

Erasmus Law Review, 2011

This paper traces the common history of European legal scholarship from its beginning in the late 12 th century to the development of national codifications which started some six centuries later. During this period, Roman law was of great importance in the universities, and Justinian's Corpus Iuris Civilis was the central text for legal studies. We will look at the different approaches to this body of text that legal scholarship has taken over the years. Still, Roman law did not have a complete monopoly: we will have a look as well at Canon law and Moral Theology, which also developed a system of legal norms, but on an entirely different basis. They paved the way for Natural law, which-in a critical dialogue with Roman law-paved the way for modern codifications.

The paper examines legal historians’ discourses concerning the interpretation of Roman legal sources. It does so by analysing two examples of scholarly debates: one on the use of Roman law as an atemporal legal doctrine, and one in which Roman law appears as a historical manifestation of natural law. The focus is on the different uses of the concept of ‘ideology’ and the possible roles of Roman law in legal education. It is argued that the concept of identity can meaningfully contribute to our understanding of these debates as well as to the study of Roman law in general.

Roman Law and Legal Knowledge. Studies in Memory of H. Kupiszewski, ed. T. Giaro, Warszawa 2011, pp. 13-19, 2011

Having a law faculty, as opposed to just a professional law school, means, above all, that Roman law has to be included as a mandatory subject in the academic curriculum. We certainly need allies in the continual battle over the need to train legal artists and not craftsmen. Legal historians have traditionally been considered our allies when it comes to the study of Roman law. Subjects that deal with legal history should inspire a student to think independently, explaining to him how and why what exists today “has happened” rather than overwhelming him with detailed information. Sometimes, however, Roman law is presented as being simply history. Roman law was not only more influential, but still plays an important role as a fundamental part of our legal tradition. Our civilisation identity is based on this tradition. The new proposal, i.e. an approach based on the use of Roman law for comparative law purposes has proven fruitful. But closer cooperation with specialists in contemporary civil law might be another promising way forward. Although certainly not with those that have a purely positivistic approach to the subject. It is possible to engage in dialogue with people who respect the experience of Roman law and who allow their study to include a historic and comparative perspective. Almost every specialist in contemporary civil law could easily be convinced of the need to cooperate with Roman law scholars if their research is orientated towards the significant and actual problems of the discourse within the European legal tradition. Such orientation is not difficult, because even in a globalized world Roman law, still remains inspiring for today’s lawyers.

Rome, just like other states of the ancient world, has stated its supremacy by warlike conquests, but also by perfecting its institutions and even by the use of diplomacy. Of all legal systems of the ancient worlds, that of Rome seems by far the most interesting and influential for the latter development of law. This character is due, primarily, to the practical spirit of the Romans and their tremendous capacity to assimilate and adapt cultural elements and institutions from other legal systems. We should also consider the giant leap that the Roman civilization has made, from the farthest antiquity, to the creation of institutions and concepts, principles that would survive the Roman Empire and decisively contribute to the construction of modern law. There are two characteristics that can best describe the specificity of the legal Roman culture: constructivism and conservatism. Keywords: legal history, Roman legal culture, characteristics

"Acta Universitatis Lodziensis. Folia Iuridica", 2022

The aim of this piece is to present an overview of certain recent trends which have emerged in the study and teaching of Roman law. These trends are identified and placed within the larger context of the role and function of the teaching of Roman law in Law Schools during the twentieth century. In addition, it is argued in this piece that trends regarding the study of Roman legal sources which have emerged in the context of U.S. Law Schools have the potential to enrich the discipline and to permit new questions to be asked about Roman law.

The paper moves from a single but very significant case study, presented by the Roman jurist Ulpian (75 ad ed., D. 44.2.11 pr.). The text offers a good historical example of axiological approach to law as an instrument, even towards itself: face to one of the strongest procedural principle of law (res judicata) and to a circumstance in which the rigorous application of it would produce an unjust result, the jurist points out the necessity to use law as an instrument in order to constantly improve the law itself and realise substantial justice. The case is exemplary from a very wide methodological point of view, in showing the Roman jurisprudence’s approach to the occurrence of reality’s requests and connected legal problems. The jurist goes here through the case, getting to the core and foundation of law and justice: humanity. In so doing, the text also offers, showing the potential of comparative historical approach, a very interesting chance of entering, from a new (although very old) point of view, the contemporary debates between the scholars of general theory of law, matching with the dualism between legal formalism and instrumentalism. The case study shows, in fact, a bright example of a possible way to go through and even supersede this ideological rift, putting together formal respect of fundamental legal principles and opportunity to take into account the real situation’s circumstances. In this way, formal law evolves into real, human law, following the fundamental definition of law as ‘art of the just and equitable’ (D.1.1 pr.). The case study finds its main core issues in pointing out: 1. the difference, in law, between rules (which ‘rule’) and principles (which ‘guide’); 2. the relationship between ‘formal justice’ and ‘substantial justice’; 3. the necessity of putting humanity at the centre of the legal discourse; 4. the possibility (and duty) to transform reality through law, creating opportunities of protection for weacker and forgotten people (in this specific case women). Nowadays, the national law systems face great theoretical challenges in order to provide instruments for a sustainable development of humankind (e.g about environment safeguard, right to food, human rights beyond the national boundaries, commons’ protection, the ideas of ownership): Roman jurisprudence can, as this text shows in an exemplary way, offer an interesting lesson of positive deconstruction of law, through the use of law itself as an instrument, contributing to the growth of a reflective society.