Europäische rechtsgeschichte, immer noch ein projekt

The article describes the state of European Legal History as a discipline such as it has developed since the end of the Second World War. Major determinants were the Europe – euphoria of the Fiftieth, subsequently the gradual coalescence of the European Union, and eventually the return of the East – and South-East-European Nations to the free world. Yet”European Legal History“ as a well-defined discipline still is but a project. Perspectives of the future could be the following : To overcome nationalistic views when investigating pre-nationalistic periods of time, furthermore to join together sub-disciplines that define themselves by their respective sources (Roman Law, Canon Law, ius patrium), finally to extend the traditional legal history beyond civil law to the entire territory of law including non-state systems of norms. The aim should be twofold : To work out the particularities as well as the divergences of individual legal cultures in Europe, and to attempt at relating European and non-European legal cultures by means of historical comparison.

Legal Roots of Christian Anthropology

Purpose of the article is to reconstruct the legal sources of Christian anthropology. Theoretical basis. The methodological basis of the article is the understanding of the fundamental foundations of Christian anthropology in the context of Roman legal understanding. Originality. From the point of view of the Christian religion, man is a dual being: his body is part of the material world, but his soul is not from this world, he is born directly from God. The transcendent origin of the soul gives it the right to communicate with God, but this right can be realized only with the help of the Church, which is seen as the "bride of the Lamb" and the mystical "body of Christ". Interpretations of the essence of church organization correlate with the principles of organization of the Roman community. The principle of universal priesthood correlates with the idea of "post-Tarquinian democracy", recognizing the people of Rome as the supreme bearer of the empire of Jupiter; catholicity – with the idea of the senate as a meeting of the most deserving leaders of the community; apostolic succession – with the institution of republican magistrates, who even though received their power from the community, but through "consultations with the gods" (auspices). In essence, Christian dogmatism is Roman law applied to the Middle Eastern religion; the Bible was interpreted as a legal document, and theologians acted as lawyers. Conclusions. In the ancient Churches (Catholic, Orthodox, Armenian, Coptic, etc.) the ideal of Roman law was realized as the right of impersonal law, standing outside and above the individual. The latter has no ontological value, it is a "servant of God", but the union of men into the mystical "body of Christ" makes the latter empowered to represent God on earth and to act on his behalf. The Renaissance paved the way for the Reformation, in which a powerful "Greek" ("philosophical") lobby declared itself. Despite the fact that many leaders of the Reformation had a personal dislike for philosophy, they were spontaneous philosophers, believing themselves entitled to interpret the will of God independently, regardless of the authority of the councils. They were strict rationalists who only changed the object of their reason: if the ancient Greeks tried to comprehend the world rationally, the Protestants set themselves the goal of rationally comprehending the Book. Ultimately, the main question of Christian theology is the question of man’s attitude to God, and the differences between the anthropological systems within Christianity are the options for answering this question.

‘PERICULUM VERBUM GENERALE EST’: RISK ALLOCATION IN THE COMMENTARIES OF JACQUES CUJAS

Jacques Cujas was a French humanist and one of the most distinguished 16th-century legal experts. This paper analyses the rules governing liability and the meaning of periculum (risk) in his commentaries to Roman law. My study is focused on two examples which offer surprising interpretations of risk. The first case concerns a person who lost an object given for valuation. Here Cujas uses the term periculum in two different meanings. The first is general and covers all types of irresistible events. The second is limited to only one type of event – theft. This distinction is fundamental for the evaluation of the legal consequences arising from the loss of the object. Te inspector would have had to bear the risk of theft (periculum furti), but not other risks, especially not those related to force majeure. The second case I discuss deals with the complexities of risk allocation in the contract of sale. In one of his earlier commentaries, Cujas accepted the Roman legal principle of periculum emptoris – that the risk of the loss of the object sold should be on the buyer. At the same time, in his discussion of particular cases Cujas was flexible in allocating various risks to either of the parties, thus paving the way for his future change of mind on periculum venditoris.

Legal procedure in roman law and its reflection in modern civil procedure

Tremendous efforts of legislators are directed towards the development of an ideal judicial system and procedure of administering justice. However, current trends of judiciary reformation are easier to comprehend and accept if we turn to the origins of legal protection of human rights which, undoubtedly, go back to the Roman law. Methodology: From this point we use comparing methods for analizing the legislative provisions; the structural method and historical method was used for the background of Legal procedure in roman law. Results and conclusions: In this article we will outline the main stages of formation of legal protection of human rights in Roman law and characterize types of these processes – namely legis actiones, formulary procedure and cognitio. By analyzing the original sources that have survived to our times, namely the Law of Twelve Tables, Gaius`s Institutions and Justinian`s Digestes, we will examine what peculiarities of consideration and resolution of cases each of these stages demonstrated; how the traditional views on the behavior of the parties and the court in the process were established; which main requirements were applied to justice in civil matters in Roman law. The course of the work the following methods were used: essential, comparative, general historical.

Formation of the Idea of Natural Law in Ancient Greece and Ancient Rome

The article analyzes the formation of the idea of natural law, which has an important theoretical and applied significance, as it makes it possible to better understand the essence of law, its connection with egalitarian and humanistic teachings. The research is based on modern philosophical worldview approaches, such general scientific research methods as axiological, anthropological, phenomenological, comparative-historical, comparative-legal, system-structural, hermeneutical, functional, institutional, as well as formal-legal method are used. The article examines the works of representatives of the Milesian school founded by Thales in the first half of the 6th century BC, whose analysis of human consciousness, human ability to create, transform the world, formulate ideas and implement them led to the idea of a universal Logos, a universal divine Mind, and the Law of Nature. The article reveals the contribution of sophists to the development of the idea of the natural law who justified the differences between natural and human law, defended the idea of equality of all people, called for not discriminating against citizens, depending on their origin, and denied slavery. The role of representatives of the stoicism school in substantiating the idea of natural law based on awareness of the fundamental difference between human nature and nature, justifying the existence of the unchangeable law of nature (lex naturale) in the form of common sense, equality of all people, recognition of slavery contrary to human nature, the need for recognition of human rights by law to preserve human dignity is highlighted. The article examines the influence of the ideas of the philosophers of Ancient Greece on the development of Roman law, the role of the Scipio group in this influence, and the essence of the then rational understanding of natural law as a true law, namely, common sense, which, in accordance with nature, concerns all people, is unchangeable and eternal

Wishful Thinking; the Role and Development of Good Faith in the Roman Law of Contracts

The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and the legal historian and romanist Hoetink, which have become common wisdom in time. However, application of new insights into historical narratives has often been hesitant because of the “anything goes” mentality. This paper approaches one of Roman law’s holy cows, namely the role and development of good faith in the Roman law of contracts and questions whether a move from historical interpretation to legal history may provide another narrative.

Římskoprávní kořeny zákonodárství krále Kentu Æthelberhta

The article focuses on the Æthelberht’s Law Code from the beginning of the seventh century as it aims to analyse Roman law roots of Æthelberht’s legislation. A wide range of primary and secondary sources (both domestic and foreign) is used for the analysis. The introductory part of the paper provides broader historical context with an emphasis on king Æthelberht himself as well as on a description of his law code. Furthermore, the work analyses the Roman law roots of the Code by not only using The Digest of Justinian, The Institutes of Justinian but also the first known written source of Roman law – Lex Duodecim Tabularum. Additionally, a comparison of Frankish Lex Salica and Æthelberht’s Code is presented. The author aims to prove that the Anglo-Saxon law codes were, in fact, influenced by the Roman law.

The Formation of the Legal Facts Theory in the Context of the Development of Legal Science

This article reveals misconceptions in the study of the theory of legal facts in Roman law studies . The use of an institutional approach in Roman law studies led to the conclusion that there are no elements of the legal facts theory in Roman jurisprudence. Using a historical and theoretical approach, the author concluded that there was a developed system of legal facts in Ancient Rome and a system of logical and stable concepts of the legal facts theory formed at the level of the concept, which was accepted and developed by the subsequent legal science.