Without the Power to Drink or Contract

2020 ◽  
Vol 24 (1) ◽  
pp. 26-48
Author(s):  
Warren Swain
Keyword(s):  
Alcohol Consumption ◽  
Social Activity ◽  
Individual Responsibility ◽  
Roman Law ◽  
Current Position ◽  
Modern Times ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Over Time

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

scholarly journals FORMALISM IN ROMAN CONTRACT LAW

2019 ◽  
Vol 34 (5) ◽  
pp. 1457-1463
Author(s):  
Shpresa Alimi-Memedi
Keyword(s):  
Developmental Stages ◽  
Essential Element ◽  
Contract Law ◽  
Roman Law ◽  
Legal Principles ◽  
Stage Of Development ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Accepted Form

The certain mode of production conditions certain legal expressions, determines the character and the forms of expression of the law, and depending on this, certain legal institutes and legal principles arise and change. The principle of formalism in a certain period of development of contractual relations is nothing but an expression of certain socioeconomic and other conditions present in that period. The subject of this paper is the principle of formalism as a feature of Roman contract law, the emergent forms of formalism in Roman law, the causes and functions of formalism in certain stage of development of Roman law. The influence of religion on the law and the low level of development of socioeconomic relations were the main reasons for the recognition of formalism in the first legal systems.The principle of formalism implies that the form of the contract as a means of expressing the consent of the will of the parties is a legally established imperative. The specific way of expressing the will to conclude a contract is an essential element of the contract. Infringement of the form is sanctioned by the nullity of the agreement.Formalism in Roman contract law is present and dominant in the period of the early Roman state and law, the late Roman Republic and pre-classical Roman law. The principle of formalism in these developmental stages of the Roman state and law does not mean that it excludes completely the opposite principle of consensualism which implies that contracts are created by a mere consent of the will of the contracting parties, which can be expressed in words or in writing, or with other behavior from which its existence can certainly be concluded. In Roman law, the consensual form has never succeeded in becoming a generally accepted form and Roman law has never formulated the general principle of consensuality.

The Laws of Hammurabi

2020 ◽  
Author(s):  
Pamela Barmash
Keyword(s):  
Eighteenth Century ◽  
Roman Law ◽  
Intellectual Culture ◽  
Biblical Law ◽  
Intellectual Tradition ◽  
Legal Principles ◽  
Copernican Revolution ◽  
The Subject ◽  
The Law

The Laws of Hammurabi is one of the earliest law codes, dating from the eighteenth century BCE Mesopotamia (ancient Iraq). It is the culmination of a tradition in which scribes would demonstrate their legal flair by composing statutes on a repertoire of traditional cases, articulating what they deemed just and fair. The book describes how the scribe of the Laws of Hammurabi advanced beyond earlier scribes in composing statutes that manifest systematization and implicit legal principles. The scribe inserted the statutes into the structure of a royal inscription, skillfully reshaping the genre. This approach allowed the king to use the law code to demonstrate that Hammurabi had fulfilled the mandate to guarantee justice enjoined upon him by the gods, affirming his authority as king. This tradition of scribal improvisation on a set of traditional cases continued outside of Mesopotamia, influencing biblical law and the law of the Hittite Empire and perhaps shaping Greek and Roman law. The Laws of Hammurabi is also a witness to the start of another stream of intellectual tradition. It became a classic text and the subject of formal commentaries, marking a Copernican revolution in intellectual culture.

scholarly journals Variety of theoretical approaches to legal interpretation

2021 ◽  
pp. 109-114
Author(s):  
A. Yе. Shevchenko ◽  
S. V. Kudin
Keyword(s):  
Social Relations ◽  
Theoretical Approach ◽  
Special Kind ◽  
Integrative Approach ◽  
Legal Interpretation ◽  
True Nature ◽  
Theoretical Approaches ◽  
The Will ◽  
The Subject ◽  
The Law

The article explores the variety of theoretical approaches to legal interpretation. It has been determined that the variety of approaches to legal interpretation is due to the complexity of the nature of the origin of this phenomenon, the conditions for the development of post-non-classical science, and the recent influence of the paradigm of comparism, which assumes pluralism of opinions and ideas in legal research. It was found that in modern science there are four traditional theoretical approaches to the essence of legal interpretation. It has been determined that the content of the first approach is revealed within the framework of legal hermeneutics through a number of categories. The essence of the second approach (formal dogmatic or static) is expressed in the fact that the subject of interpretation must strictly and rigorously follow the letter of the law, establish only the meaning of the normative legal act, which the lawmaking body enshrined in it at the time of the publication of the act. That is why normative legal acts cannot, through interpretation, adapt to the changing economic, social, political, cultural internal and external conditions of public life. It is proved that the essence of the dynamic theoretical approach lies in the fact that the subject of legal interpretation adapts the normative legal act to the changes that occur in various social relations. It was found that there is a contradiction between the dynamic and static approaches in legal interpretation, which is reflected in the traditionally called objective and subjective theories of interpretation. According to the subjective theory, the purpose of legal interpretation is to establish the «will of the legislator», and according to the objective theory – to establish the «will of the law». It has been substantiated that the essence of the activity approach is that interpretation is considered as a special kind of legal activity aimed at understanding and clarifying the content of legal texts. The authors of this article point out that in order to establish the true nature of legal interpretation, the methodological foundations of the study should be presented much broader and more diverse, and not be limited only to traditional approaches. When studying it, a comprehensive, integrative approach is needed, which, based on the relevance of interdisciplinary relationships, would include logical, language (linguistic), philosophical, sociological, psychological, axiological (value), ethical, legal, historical, economic, political, mathematical and other substantiation of legal interpretation. Keywords: diversity, theoretical approach, legal interpretation, interpretive practice, integrative approach

The Nature of Ususfructus

1946 ◽  
Vol 9 (2) ◽  
pp. 159-170
Author(s):  
Kopel Kagan
Keyword(s):  
Great Difficulty ◽  
Roman Law ◽  
Present Position ◽  
Modern Times ◽  
The Subject ◽  
The One ◽  
Definition Of ◽  
The Right ◽  
Opening Statements ◽  
In Virtue Of

No satisfactory definition of Dominium in Roman Law has yet been achieved. Amongst English writers Austin many years ago found great difficulty in this question while in modern times Professor Buckland has written ‘it is thus difficult to define Dominium precisely.’ Again, Poste, dealing with Gaius' discussion of dominium, says that his opening statements are ‘deplorably confused.’ These examples are enough to indicate the condition, of uncertainty which prevails. In my submission this uncertainty exists mainly because the conception of ususfructus has never yet been explained adequately. Of Possessio it has been said ‘the definition of Possessio to give the results outlined is a matter of great difficulty. No perfectly correct solution may be possible,’ and this statement is generally accepted as a correct assessment of the present position in juristic literature. But here, too, in my opinion, the reason is again connected with usufruct, for the possessio of the usufructuary has not yet been adequately determined. Gaius (2.93) tells us ‘usufructuarius vero usucapere non potest; primuum quod non possidet, sed habet ius utendi et fruendi.’ Ulpian holds that he had possessio in fact (‘Naturaliter videtur possidere is qui usum fructum habet’ D.41.2.12). On this subject Roby says ‘the fructuary was not strictly a possessor and therefore if he was deprived from enjoying he had not a claim to the original interdict de vi but in virtue of his quasi-possessio a special interdict was granted him.’ Austin saw difficulty in the whole problem of possessio. He wrote ‘by Savigny in his treatise on possessio it is remarked that the possessio of a right of usufruct … resembles the possessio of a thing, by the proprietor, or by an adverse possessor exercising rights of property over the thing. And that a disturbance of the one possession resembles the disturbance of the other. Now this must happen for the reason I have already stated:—namely, that the right of usufruct or user, like that of property, is indefinite in point of user. For what is possession (meaning legal possession not mere physical handling of the subject) but the exercise of a right ?’

scholarly journals PERSONHOOD, ANIMALS, AND THE LAW

Think ◽  
2013 ◽  
Vol 12 (34) ◽  
pp. 25-32 ◽  
Author(s):  
Christine M. Korsgaard
Keyword(s):  
Roman Law ◽  
Ethical Problems ◽  
The World ◽  
The Subject ◽  
Human Animal ◽  
The Law

The idea that all the entities in the world may be, for legal and moral purposes, divided into the two categories of ‘persons’ and ‘things’ comes down to us from the tradition of Roman law. In the law, a ‘person’ is essentially the subject of rights and obligations, while a thing may be owned as property. In ethics, a person is an object of respect, to be valued for her own sake, and never to be used as a mere means to an end, while a thing has only a derivative value, and may be used as a means to some person's ends. This bifurcation is unfortunate because it seems to leave us with no alternative but to categorize everything as either a person or a thing. Yet some of the entities that give rise to the most vexing ethical problems are exactly the ones that do not seem to fit comfortably into either category. For various, different, kinds of reasons, it seems inappropriate to categorize a fetus, a non-human animal, the environment, or an object of great beauty, as a person, but neither does it seem right to say of such things that they are to be valued only as means.

scholarly journals Civilians and insurance: approximations of reality to the law

2015 ◽  
Vol 83 (3-4) ◽  
pp. 323-364
Author(s):  
Guido Rossi
Keyword(s):  
Early Modern ◽  
Roman Law ◽  
History Of ◽  
The Subject ◽  
The Law ◽  
Do So

In the study of the history of insurance, much attention has been paid to early modern jurists. Their importance as a source for the study of the subject is, however, debatable. Early modern jurists were more interested in systematising insurance than in describing it for what it was. Their main effort lay in explaining this non-Roman contract in Roman law terms. To do so, something had to be sacrificed - reality.


Compelling Defendant's Appearance at Court in Islamic Law

1996 ◽  
Vol 3 (3) ◽  
pp. 305-315 ◽  
Author(s):  
Farhat Ziadeh
Keyword(s):  
Islamic Law ◽  
Roman Law ◽  
Legal Representative ◽  
Legal Systems ◽  
The West ◽  
Modern Times ◽  
Muslim Countries ◽  
Primary Function ◽  
Long Time ◽  
The Law

AbstractDifferent legal systems have employed a variety of measures to insure the appearance of the defendant in court. The earliest conception of an action in Rome and in pre-Islamic Arabia was the voluntary appearance of both parties before a recognized or prestigious authority. Thus, early Roman law could not pass judgment against a defendant who failed to appear, either voluntarily or involuntarily. The idea that the court could give a judgment in the plaintiff's absence—the so-called judgment by default—took a long time to materialize in the West. Classical Islamic law requires that the defendant or his legal representative (wakīl) be present for a judgment to be given. This requirement is predicated on the assumption that the primary function of the judge is conciliation of the parties and not necessarily the vindication of rights. The law describes various measures that may be employed to force the defendant to appear in court. Failing that, it provides for the appointment of a legal representative for the defendant. Judgment by default was introduced into Muslim countries only in modern times under the influence of Western codes of procedure.

The Great Berlin Beer Boycott of 1894

1982 ◽  
Vol 15 (4) ◽  
pp. 377-397 ◽  
Author(s):  
Eleanor L. Turk
Keyword(s):  
Social Activity ◽  
Northern Europe ◽  
Commercial Activity ◽  
Human Diet ◽  
Modern Times ◽  
The Subject ◽  
Great City

Consider the subject of beer. For millennia this homely brew has been a staple of the human diet and a central ingredient of our social activity. Records dating as far back as 2800 B.c. show that there were four types of beer brewed in the Babylonian culture, and that the ancient Egyptians were often sealed into their tombs with a ceremonial supply of the frothy beverage. But of all the cultures producing beer, the Germans are the most closely associated with it in modern times. It was the Germans who perfected the practice of adding wild hops to the brew to give it its characteristic tang, and also to help preserve it. Whereas elsewhere in northern Europe brewing was usually a cottage activity, the Germans began very early to treat brewing as an important commercial activity. In 1146, even before the founding of the great city of Munich, the abbey in Weihenstephan in Bavaria received a patent from the local duke to brew beer. In 1516 the Bavarian dukes instituted the brewing code which stipulated that thereafter beer must be brewed naturally with grain, hops, water, and yeast. This has since been the standard for purity in brewing throughout Germany.

scholarly journals BETWEEN THEORY AND PRACTICE: NEW PERSPECTIVES ON THE ROMAN LAW OF LETTING AND HIRING

2006 ◽  
Vol 65 (2) ◽  
pp. 423-437 ◽  
Author(s):  
Paul Du Plessis
Keyword(s):  
Theory And Practice ◽  
Complete Picture ◽  
Roman Law ◽  
Specific Focus ◽  
Compilation Process ◽  
The Subject ◽  
The Law ◽  
Different Parts

JURISTIC writing and Imperial Constitutions on the subject of locatio conductio, collected by the compilers to produce D.19.2 and C.4.65, do not present a complete picture of the Roman law of lease. Not only were most of these texts severed from their original context, but the statements in the Introductory Constitutions to different parts of the Corpus Iuris Civilis also indicate that a large number were eliminated in the compilation process. Although it can hardly be disputed that what the compilers chose to include in these two titles was an accurate account of the law of letting and hiring in force during the time of Justinian, it has been credibly suggested that these titles were given a specific focus in order to project a particular image of the Roman rental economy.

scholarly journals Teoria da legislação e argumentação legislativa: a contribuição de Manuel Atienza à racionalidade legislativa

2019 ◽  
Vol 3 (2) ◽  
pp. 157-193
Author(s):  
Roberta Simões Nascimento
Keyword(s):  
Standard Theory ◽  
Legal Argumentation ◽  
Communicative Rationality ◽  
Analysis And Evaluation ◽  
Legislative Power ◽  
The Subject ◽  
The Law ◽  
Law Making ◽  
Over Time ◽  
Theoretical Developments

RESUMO:Uma das principais críticas que a teoria standard da argumentação jurídica recebe é falta de atenção dada às práticas legislativas. O momento da produção do direito é relevante? Como seria possível analisar uma argumentação legislativa? Como avaliá-la? Qual é o peso dos argumentos para o produto final, a lei? Na Espanha, Manuel Atienza, um dos primeiros autores a dar atenção ao tema, desenvolveu uma teoria da legislação que, com o passar o tempo, recebeu os elementos tendentes à formação do que se pode considerar a primeira teoria da argumentação legislativa. Para isso, o autor formulou cinco níveis ideais de racionalidade a serem alcançados pelas leis: (R1) racionalidade linguística ou comunicativa; (R2) racionalidade jurídico-formal ou sistemática, (R3) racionalidade pragmática, (R4) racionalidade teleológica, e (R5) racionalidade ética. Depois, acrescentou um nível transversal de meta-racionalidade: a razoabilidade. Em seguida, cruzou com as concepções formal, material e pragmática que marcam a sua teoria da argumentação jurídica. O objetivo do artigo é o de apresentar os desenvolvimentos teóricos de Manuel Atienza quanto à temática aos longo dos quase trinta anos em que vem estudando o tema, explicando os pontos fortes e as deficiências de sua teoria. Ao final, o presente trabalho propõe o aprofundamento de uma agenda de estudos mais ampla – a partir das ideias de Manuel Atienza e em resposta às críticas frequentemente lançadas à temática –, voltada para a promoção do giro argumentativo dentro do Poder Legislativo, fomentando a cultura de legisladores argumentadores, bem como apontando outros elementos na análise e avaliação das decisões legislativas e das argumentações respectivas, o que poderá resultar na construção de leis mais racionais. ABSTRACT:One of the main criticisms that the standard theory of legal argumentation receives is the lack of attention given to legislative practices. Is the law-making moment relevant? How can a legislative reasoning be analysed? How to evaluate it? What is the weight of the arguments for the final product, the parliamentary laws? In Spain, Manuel Atienza, one of the first authors to give attention to the subject, developed a theory of legislation that, over time, received elements tending to build what can be considered the first theory of legislative reasoning. For that purpose, the author formulated five ideal levels of rationality to be achieved by the laws: (1) linguistic or communicative rationality, (R2) legal-formal or systematic rationality, (R3) pragmatic rationality, (R4) teleological rationality, and (R5) ethical rationality. Then he added a transversal level of meta-rationality: the reasonableness. After that, he crossed with the formal, material and pragmatic conceptions that mark his theory of legal argumentation. The purpose of this article is to present the theoretical developments made by Manuel Atienza on this subject during the almost thirty years he has been studying it, explaining the strengths and weaknesses of his theory. In the end, this paper proposes to deepen a broader study agenda – based on Manuel Atienza’s ideas and in response to the criticisms frequently made on the subject – aimed at promoting the argumentative turn in the Legislative Power, fomenting culture of argumentative legislators, as well as pointing out other elements in the analysis and evaluation of legislative decisions and their respective arguments, which may result in the construction of more rational parliamentary laws.

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