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Il postliminio di Ostilio Mancino

Author(s): Stefano Barbati / Language(s): Italian Issue: 2/2023

The purpose of the article is to inquire thoroughly into the sources about Mancinus’ postliminium. The most relevant sources for the juridical issues related to the topic are Cicero, Pomponius and Modestinus. Common source of those authors are the 18th libri iuris civilis of Quintus Mucius, published around 90 b. C., in which the matter was discussed in the heading related to postliminium, according to its explanation in the dialogues on the ius civile, published by the jurist Brutus between 135 and 133 b. C., and to what Quintus Mucius’ father, Publius Mucius, has told his son during his education. The essay shows at first how all the relevant issues took place during 136 b. C.: the surrendering (deditio) of the past (137 b. C.) consul Mancinus to the enemies (the Numantini), their refusal to accept him, his return to Rome, his entrance to the Senate, his expulsion decreed by a tribune and the immediately following discussion on Mancinus’ status in the Senate between the senator Brutus, preeminent jurist, and the pretor Publius Mucius, as well preeminent jurist. To solve the groovy state of our sources, the essay distinguishes among 6 relevant topics: Publius Mucius’ thought; Brutus’ thought; content of the law enacted as to regard Mancinus’ case; Quintus Mucius’ interpretation of it (90 b. C.); Cicero’s interpretation of it (between 70 and 44 b. C.); Modestinus’ interpretation of it (around 240 a. C.). On each of those topics, the article enlightens at first the state of the art and then proposes the author’s view. The author thinks that Publius Mucius adhered to the traditional nullity of the deditus’ postliminium, no matter if he was accepted or not by the enemies; that Brutus thought the a deditus rejected by the enemies was not a deditus, since deditio had to be conceived as a bilateral instead of unilateral act; that the law enacted on the case adhered to Brutus’ view because of its approval by the senator and preeminent jurist Manilius, counselor of the consul Furius Philus who proposed to law to the people’s assembly: the statute law confirmed Mancinus’s citizenship instead of reinstalling him into Roman citizenship; that also Quintus Mucius adhered to Brutus’ new conception, followed, with some misunderstanding, by Cicero; that Modestinus, living far away from the later Republic, fell into deep misunderstanding of Mancinus’ case, which he read about in commentaries on the work of Quintus Mucius and Sabinus.

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XVII. Jahrestreffen der Jungen Romanisten - Radek Černoch: Introductory Remarks on the Essays of the Speakers of the XVIIth Young Scientists Meeting on Roman Law

Author(s): Radek Černoch / Language(s): English Issue: 2/2023

On April 13th and 14th 2023 Masaryk University in Brno (Czech Republic) hosted the XVIIth Young Scientists Meeting on Roman Law. The following introduction sums up topics and presentations of the Meeting. After the introductory remarks four speakers present their essays, based on their presentations at the Meeting.

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The Capability to sue or be a Defendant in the Context of Matrimony with filii familias: An Analysis of D. 15.1.38.1 and D. 24.3.22.3

Author(s): Michael Binder / Language(s): English Issue: 2/2023

In Roman law, it was not uncommon for a filius or a filia familias to get married. The capability of a filius or a filia familias to sue or be a defendant was restricted. During an intact marriage, such a restriction was often insignificant. However, in the case of a divorce, the recipient of the dowry (dos) was sometimes questionable. To settle conflict about the dos, it was important to know who could claim part or all of the dos and who was obligated to return part or all of it. Such a question was raised in D. 15.1.38.1 and in D. 24.3.22.3 where a filius/filia familias first married and later divorced. In this article, D. 15.1.38.1 and D. 24.3.22.3 are exegetically analysed.

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A QUESTION OF INTERPOLATION IN D.9.2.27.17 AND CO.2.4

Author(s): Samir Aličić / Language(s): English Issue: 9/2023

Comparing the texts D.9.2.27.17 and CO.2.4 with other sources, we can conclude that it is not possible to give a definite answer to the question – which of these two texts is altered or interpolated? Still, the solution from the Digest is more in line with other classical sources. The most credible theory seems to be that both texts were subject to revision. In the original text, Ulpian probably would not allow a direct Aquilian lawsuit when a slave is injured so that his value is not permanently diminished, but for the expenses of medical care, he would allow a praetorian remedy based on the actio legis Aquiliae. In CO.2.4, the text is abbreviated so that the part in which Ulpian writes about the praetorian lawsuit is canceled, and only the part of the answer with the statement that an Aquilian lawsuit is not allowed remains. In this way, an impression is created that Ulpian did not allow any lawsuit. The text in the Digest, on the other hand, is simplified and summarized rather than abbreviated. It is retained only in the statement that an Aquilian lawsuit is allowed in this case, without making a difference between actio directa and utilis causa. Still, an assumption remains and a definite interpretation cannot be made.

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Rola dyscypliny prawa kanonicznego w liturgicznej formacji wiernych Kościoła katolickiego

Author(s): Viktoriya Semenova / Language(s): Polish Issue: 3/2023

In order to show the role of canon law in the liturgical formation of the faithful, the author undertakes an interdisciplinary reflection (philosophy, theology, legal scienc- es) on the understanding of law. Analysing the existing definitions of canon and li- turgical law, she notes the positivist approach in this field. Then, on the basis of metaphysics and Thomism, she proposes a different view of law, canon law and liturgical law. She also notices the presence of Roman law in the church’s legal culture. The legal formation of the faithful, based on such foundations, will allow for a deeper under- standing and a better experience of the liturgy.

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Il DIVIETO DEL ‘PATTO DI QUOTA LITE’ TRA IURISPRUDENZA SVIZZERA E TRADIZIONE ROMANISTICA

Author(s): Linda De Maddalena / Language(s): Italian Issue: 3 (3)/2023

Il cosiddetto ‘patto di quota lite’, termine che deriva direttamente dal latino medievale che conosce l’espressione quota litis, è nella prassi giuridica l’accordo raggiunto fra avvocato e cliente con cui si conviene che il primo riceva una quota dell’oggetto della lite quale compenso per la sua attività professionale. Mentre nei sistemi anglosassoni una simile forma di remunerazione ‘condizionata’ all’esito della causa è sostanzialmente ammessa,2 essa ha trovato e trova tutt’ora nei sistemi di civil law una maggior resistenza, che in molti casi ha condotto a sancirne il divieto.3 Nel presente contributo ci si propone di prendere in esame, sotto questo profilo, l’esperienza giuridica svizzera che, pur essendo di civil law, prevede gli ‘onorari di successo’ per poi indagare le radici di tale istituto nelle fonti giuridiche romane al fine di guardarlo in una prospettiva storica e capire meglio quale possa essere stato il percorso che ha portato ad ammetterlo seppur parzialmente.

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SHIP (NAVIS) AS LOCUS PRAEPOSITIONIS

Author(s): Mirjana Miškić / Language(s): English Issue: 3 (3)/2023

Roman maritime navigation and the consequent application of actio exercitoria is conditioned by the ship as the object of the aforementioned relations. Namely, in contrast to other actions adiecticiae qualitatis that form the legal framework of land trade, the actio exercitoria is the only one related to overseas trade that is carried out on a ship or in the immediate vicinity of a ship. Taking into account this specificity, a number of questions inevitably arise: whether the ownership of the ship is important for the enforcement of the actio exercitoria, whether the ship is considered the place of conclusion of the contract, and the question of the jurisdiction of the court for possible disputes, as well as who is responsible for the damage that was caused on board. The author will try to answer a series of questions by elaborating on the importance of the ship as a locus praepositionis for the application of actio exercitoria. In this effort, the author will refer to the consideration of the concepts of ship and sea that prof. Ante Romac wrote in the paper „The Concept of Sea and Ship in the Sources of Roman Law”, published in the Proceedings of the Faculty of Law in Zagreb in 1976.

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PROFESOR АNТЕ ROMAC, ROMANISTA I PEDAGOG

Author(s): Nikola Mojović / Language(s): Serbian Issue: 3 (3)/2023

This year marks the hundredth anniversary of the birth of Professor Ante Romac, a great scholar of Roman Law, legal historian and educator. Professor Romac enriched Romanistics with major works which stand to this day as indispensable literature in the study and teaching of law. He was esteemed as a many-sided intellectual educated in the humanities, manifested through his academic and creative work: a versatile knowledge of legal history, and also that of almost all current legal systems; an excellent authority on the sources of Roman law, with a striking aptitude for translating ancient legal sources; a writer on various select topics of Roman law and legal history; a broad knowledge of non-legal classical and also of mediaeval literature and an outstanding Latinist. In some of his works, he had no predecessor. Professor Romac was a well-known enthusiast in his pursuit of science, and had been a relentless collector of Latin legal phrases – for decades before he selected and published them in some of his books. As an educator, professor Romac sought to reconcile the gap between secondary education, which was providing only a modest proficiency in Latin, and the requirements imposed by the subject content of Roman law in graduate legal education. Students, his collaborators and colleagues remember professor Romac for his composure, systematic nature, a high degree of sophistication, without flashy gimmicks, and, as an examiner, they remember him for maintaining objective criteria and a level-headed approach.

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ROMAN LAW LESSONS IN CONTEMPORARY LEGAL CONTEXTS: THE CREATION OF THE BASIC CHARACTERISTICS OF CONTEMPORARY CORPORATIONS IN MARKET

Author(s): Timčo Mucunski,Aleksandar Klimovski / Language(s): English Issue: 3 (3)/2023

In the scientific research of status law and the influence of law on socio-economic relations, the development of contemporary corporations stands out as an important issue. First, we must put into context the use of specific terms, i.e. whether to use “capital structures” or “corporations”. The reason being the fact that the Roman legal environment, as the key foundation for contemporary capital structures, did not recognise corporate entities the way they are received in today’s contemporary legal development. Henceforth, the authors will more often refer to contemporary terminology when explaining the developmental tendencies of contemporary corporate entities, with special attention on the analysis of the roadmap which lead from Roman law capital structures to contemporary, market-based, corporations.

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DOSJELOST U SREDNJOVJEKOVNIM STATUTIMA SJEVERNOG JADRANA

Author(s): Željko Bartulović / Language(s): Serbian Issue: 3 (3)/2023

In the paper, the author deals with the institute of adverse possession as a specific way of acquiring ownership based on possession of things. In contrast to the classical Roman and modern understanding, which require good faith (bona fides) and title (titulus) of the owner, medieval solutions do not set these conditions and require only the non-recognition of someone else’s right over real estate, similar to post-classical law, but only the passage of time, which approaches the limitation of ownership rights or loss of prescription (praescriptio), and not acquisition of ownership by adverse possession. The regulations on this include the Statute of Senj (1388), the Statute of Rab, the Statute of Cres-Osor (1440) and the Statute of Mošćenice (1637), on the territory of Istria the Statute of Trieste (1305), the Statute of Milja (1333), the Statute of Poreč (1363) and in Dalmatia, for example, the Statute of Brač (1305). Regulations are changed by the penetration of post-glossary ideas, for example in the Statute of Trieste (1350), the Statute of Dvigrad (XIV century), the Statute of Pula (1431) and the Statute of Krk (in Latin, XVI century).

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ВЕРИДБА У РИМСКОМ ПРАВУ – КОРАК КА БРАЧНОСТИ ИЛИ БРАК?

Author(s): Vukašin Stanojlović / Language(s): Serbian Issue: 3 (3)/2023

Roman marriage is most often defined as a heterosexual, monogamous union of a man and a woman based on the will of both spouses (affectio maritalis). Depending on the historical moment, the social status and the customs, it was often preceded by a betrothal, as a mutual promise that in the future there will be a marriage. Consequently, Roman legislators, jurists and emperors attributed various properties and implications to the life of future newlyweds. Following the idea of the approximation of the legal status of the betrothal and the marriage from the 3rd century BC, through the normative activity of Octavian Augustus, until 380 AD, the author tries to sublimate the concepts of Roman legislators and jurisprudents, and to answer the question of whether in any era of pagan Rome, betrothal and marriage have been equated, as well as what were the necessary conditions for a betrothal to produce a legal effect. The paper uses the linguistic, systemic and historical interpretation of the texts: D.22.5.5, D.23.1.7.1, D.23.1.11, D.23.1.16, D.23.2.14.4, D.23.2.45. pr. and 4, D.38.10.6. and 8, D.45.1.134. pr, D.47.10.1.9, D.48.9.1. and 3, C.5.4.1, Fr. Vat. 298. and 302. and historical method.

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ПРАВНА ПРАВИЛА РИМСКОГ ПРАВА

Author(s): Marija Ignjatović / Language(s): Serbian Issue: 3 (3)/2023

Systematizing the legal rules of Roman law, the author emphasizes that the study and research of the rules of Roman law is not only a starting point for the further development of private law, but also an opportunity to talk about Roman law and to determine its role and place in that process, as well as to answers are given to many questions, starting with the meaning of Roman law in modern legal terminology and ending with the applicability of the institutes of Roman law in the conditions of the modern market economy (the role of Roman institutes of real law, as well as the influence of Roman law of obligations and especially Roman contracts on contracts of modern law). The author emphasizes that only in this way, through the research of the legal rules of Roman law, can one arrive at numerous answers to questions such as those related to the initial foundations in the process of codification of modern law, that is, on whose legal foundations the codifications were made. In this way, in the author’s opinion, we arrive at the essential answer of how much and what is the contribution of Roman law in the creation of modern, first of all, private law, and then we reach an agreement on the question of the justification of Roman law in further legal education at universities.

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ЛИК РИМСКОГ ПРАВНИКА ГАЈА КАСИЈА ЛОНГИНА

Author(s): Milena Polojac / Language(s): Serbian Issue: 3 (3)/2023

The paper is a tribute to Professor Romac and the title refers to his article „Characters of Roman Lawyers in Tacitus’s Works” published in 1977 in the “Yearbook” of the Faculty of Law in Banja Luka. It is one of a series of articles in which Professor Romac uses primarily non-legal sources, especially the works of famous Roman writers, satirists and historiographers (Juvenal, Ovid, Tacitus and others), in order to show us in a vivid and layered way the Roman society in the period of the Principate, with all its turbulent political, social and other problems. Roman jurists found their place in that broad picture of personalities and events. Among them, Atheus Capito, Antistius Labeo, Nerva Pater, Pegasus, but also Gaius Cassius Longinus received a particularly true psychological portrait. Professor Romac uses data from the work of Tacitus, combining it with other sources. In the case of the lawyer Gaius Cassius Longinus, Tacitus provided, “not only a subtle psychological characterization, but also left so much information, that they could serve well as material for a romantic biography or even for a tense action or psychological film” says professor Romac. The last part of the article is about the so-called societas leonina, and its connection with Gaius Cassius Longinus.

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АНТЕ РОМАЦ- ЕНЦИКЛОПЕДИСТА РИМСКОГ ПРАВА

Author(s): Sara Mitic / Language(s): Serbian Issue: 3 (3)/2023

The work entitled “Ante Romac - encyclopedist of Roman law” should once again point out and remind of the great Professor Ante Romac. His huge scientific work seems to have found its best expression precisely in Dicta et regulae iuris, which was created in collaboration with prof. Dragomir Stojčević, and the Dictionary of Roman Law. Both works are characterized by excellent systematicity. Also, these works are characterized by a lexicographic and encyclopedic approach. Dicta et reguale iuris is a collection of legal rules, sayings and definitions formulated in the Latin language starting from Roman, through the medieval and, so to speak, modern lawyers. The dictionary of Roman law should provide readers with basic explanations of the most important institutes of Roman law, the historical events associated with them, and the economic, social and cultural institutions of ancient Rome. Both works seem to round off the entire work of Professor Romac and will be indispensable literature for experts and lawyers for a long time to come.

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ИНСТИТУТИ РИМСКОГ ПРАВА У СРЕДЊОВЕКОВНОЈ СРБИЈИ

Author(s): Srđan Šarkić / Language(s): Serbian Issue: 3 (3)/2023

The Roman law was adopted in Mediaeval Serbia in an indirect way, i. e. Through translation of Byzantine laws and legal miscellanies. Original Latin texts of Roman iurisconsults are not used in the process of reception but instead only the Greek translations served the purpose. Therefore Serbian translations include certain departures from the original which sometimes even change the meaning of the original Roman text. That phenomenon was a result of particularities of Greek and Roman legal terminology as well as of specific elements of Greek and Latin languages. Serbian translators have used and followed the Greek translations and not the Latin originals. Consequently, according to the author of the present contribution, the best method for studying the reception of Roman law in Mediaeval Serbia is to consider specific legal institutes and their transformation, beginning with Roman and continuing, through Byzantin (Graeco-Roman) to Serbian Mediaeval Law. The author gave three examples: 1) Ulpian’s thought that law (ius) was derived from justice (iustitia) since law is the art of good and equality (D. I, 1, 1); 2) Gaius’ distinction in the law of persons that all men are either free of slaves (Gaius, Inst. I, 9; Iust. Inst. I, 3; D. I, 5, 3); 3) Lex Falcidia, promulgated in 40 BC, providing for a maximum of three quarters of a person’s estate to be bestowed as a legacy, entitling an heir to a least a quarter of the inheritance (Gaius, Inst. II, 227).

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Reflections on the Successional Representation of the Unworthy Renunciant

Author(s): Natalia Veronica Stoica,Liviu Alexandru Narla / Language(s): English Issue: 3/2023

The efforts to adopt a new Civil Code, initiated in the period 1999-2004 and finalized in 2011, aimed to expand the scope of representation in succession cases, including cases involving unworthy heirs and renunciants. However, legislative stagnation partially prevailed, as the Law no. 287 of 2009 on the Civil Code, with amendments introduced by Law no. 71/2011 for its implementation, only regulated the possibility of representation for unworthy heirs and not for renunciants. The partial modernization of the rules on representation in succession raises new questions and the need for answers. In the current context of the regulation of representation in succession, we aim to address the legitimate question of whether an unworthy heir can renounce inheritance and, if so, whether a renunciant unworthy heir can be represented by their descendants. We note that in the legal doctrine associated with the Civil Code of 1864, no speculation was made regarding this legal situation, as an unworthy heir could not be represented in succession, and such a discussion would have been pointless. Therefore, we will present the historical and evolutionary journey of the institution of representation in succession, from Roman law to modern times, as well as the winding path of adopting a new Civil Code in this area. By doing so, we can reach a valid conclusion regarding the issues addressed in this material.

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Correlation between classical Roman law and English common law: comparative historical analysis

Author(s): Irina N. Sharkova,Volodymyr A. Mandragelia,Oleksandr O. Gaydulin / Language(s): English Issue: 4/2023

The term ‘correlation’ can be interpretated in a wider meaning than the presence of a frequency of connection between two collignial indicators. This semantic content as "a relation existing between phenomena" is present in the discourse of liberal arts, in contrast to parametric statistics. The purpose of the study is to verify the existence of a correlation between basic conceptual ideas in Ancient Roman law and English common law and to evaluate the scope and manifestations of this issue. The research problem is complicated by the fact that the overwhelming majority of modern historians traditionally contrast the legal systems of continental European countries with Anglo-American law. And there very few famous scientists who consistently reaffirm the opposite position and consider that the common legal tradition in Europe exists. The article shows three groups of key evidence of Ancient Roman Law influences on the English Common Law. The historical arguments explain the fantastic ability of English law to export to other countries. In world history, this property was only one legal culture, namely Old Roman. These abilities to transfer and reception are defined as the most significant parallels between the legal traditions that are investigated.

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LEGAL POSITION OF WOMEN IN A MILITARY SOCIETY– SPARTA AS A MODEL DETERMINED BY SIMILAR FACTORS AS ROMAN STATE

Author(s): Zrinka Erent-Sunko,Miran Marelja / Language(s): English Issue: 2/2023

Women's rights and equality as an instrument for determining the position of women in society are mostly associated with the concept of democracy and the trend of democratic development of society, but the issues that have arisen in recent times regarding this position (violence against women, femicide, the "glass ceiling") encourage the question about the nature of that relationship. If the legal position of women in democratic societies is questioned in the context of so many negative phenomena, what is the position of women in authoritarian regimes, and what is the legal determination of that position? To answer this question, the ancient model of Sparta and Athens, in the context of comparison with the Roman state, could be considered. Although in Sparta women did not participate in political decision-making, they had greater rights and a better position in society than women in the Athenian polis, which remained a model for modern democracy. Placing the rights and position of Spartan women in the context of social relations and legal-customary frameworks, it could be said that the rights of women in Sparta, to a certain extent, corresponded to contemporary aspirations, although the society was defined as an oligarchy that had military power in its hands. The question is whether we can draw such a conclusion for the later Roman state, which from the 2nd century BC included the Greek world.

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SOCIAL MORALITY AND LAW IN DEMANDING FEMININE BEHAVIOURS

Author(s): Alicia Valmaña Ochaita / Language(s): English Issue: 2/2023

Women in the Roman world have usually been portrayed from a flat, uncontoured perspective. The generalisation of women in classical literary sources is observed when these, in general, only deal with a certain type of woman, the matrons, and, moreover, present a homogeneous form of behaviour. This paper analyses the perception of the behaviour of matrons in a specific historical moment, the Second Punic War, both from the perspective of social morality and from the perspective of law.

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IL RUOLO DELLA DONNA NEL MATRIMONIUM IUSTUM ROMANO

Author(s): Esin Kranli Bajram / Language(s): Italian Issue: 2/2023

Marriage was undoubtedly one of the most important institutions in Roman society. Following the origins of the Roman matrimonum iustum we can say that it originated in its initial form even before the legendary "abduction" of the Sabine women, starting with the legendary marriage between Aeneas of Troy and Lavinia, who are credited with the founding of the Roman race, as well as the relationship between Rhea Silvia and the god Mars whose descendants Romulus and Remus, will be the founders of the city of Rome. The “marriage relationship” constructed according to the rules of Roman law is an inexhaustible source of information about the position and role of feminae in the family relations. Even the expression matrimonium derives from the term mater, because of the fact that the ancient Romans had understood the marriage primarily as an instrument through which unmarried women would become mothers. Although socially marginalized, it seems that in the marriage, starting from the preparations and the way of establishing it, the focus is still on the woman. For those reasons, this paper, analyzing all significant aspects of the position of women in the marriage union, will be a mirror of the true place of feminae in Roman society.

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