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- Volume 2014, Issue si-1, 2014
Fundamina : A Journal of Legal History - Special issue 1, January 2014
Volumes & issues
Special issue 1, January 2014
Author Pascal PichonnazSource: Fundamina : A Journal of Legal History 2014, pp xii –xv (2014)More Less
I first crossed paths with Laurens Winkel during the summer term of 1988 in Fribourg, where I was in my first year of law studies. Our Roman law professor, Felix B.J. Wubbe, was on sabbatical in Cape Town, standing in for Professor Reinhard Zimmermann, who was himself on sabbatical. I was not then aware that these three people would influence my career so much. I well remember the lectures Laurens Winkel gave at that time; lively, and passionate about his subject, he would attract the attention of all the students by constantly moving across Auditorium A. Among other subjects, he taught the law of persons and marriage. I enjoyed the lectures immensely, not only because of the thought that went into them but also because of the manner in which Laurens Winkel lectured, waving his arms around to emphasise what he was discussing.
Source: Fundamina : A Journal of Legal History 2014, pp vii –viii (2014)More Less
It is with great pleasure that we present this Festschrift to Laurens Winkel, our friend and colleague who will be retiring in 2014. Since he is an honoured friend of South Africa, the Southern African Society of Legal Historians has dedicated a special edition of Fundamina. A Journal of Legal History to him.
Problems concerning laudatio auctoris and denuntiatio litis made by the buyer in classical Roman lawAuthor Hans AnkumSource: Fundamina : A Journal of Legal History 2014, pp 1 –14 (2014)More Less
As will be shown in this article, in classical Roman law the buyer of a thing, against whom the rei vindicatio or a comparable real action had been instituted, had the duty to notify the seller. This holds true in the cases where a res mancipi had been transferred to the buyer by mancipatio, where the seller had made a stipulatio (e.g. a stipulatio duplae) against eviction and where the parties had concluded a consensual emptio venditio. The buyer who had not informed the seller of the real lawsuit initiated against him, could for different reasons institute neither the actio de auctoritate, nor the actio ex stipulatu, nor the actio empti against the seller.
Source: Fundamina : A Journal of Legal History 2014, pp 15 –26 (2014)More Less
This article traces the classical roots of natural law and human rights. Although in antiquity there was no concept of human rights, among poets, philosophers and jurists there was an idea of justice that no government could overrule. Although the idea of rights was absent from these constructs, they form the basis of modern legal ideas. We find the first exposition of basic rights in the work of Hesiod, which, after the fifth-century crisis in the Greek concept of the world, led to a new idea of natural justice that was developed by Aristotle.
Author Matthias ArmgardtSource: Fundamina : A Journal of Legal History 2014, pp 27 –38 (2014)More Less
Gottfried Wilhelm Leibniz (1646-1716) studied Roman law and philosophy in Leipzig from 1661, and became a doctor iuris in Altdorf in 1666. Between 1665 and 1672, as a very young man, he wrote juridical texts of the highest quality. These texts comprise a unique combination of highly technical Roman law, formal logic and moral philosophy. His logical theory of legal conditions has been the focus of major research by both legal historians and philosophers during the last decade. In the second part of this paper, the different logical approaches to his theory of conditions will be discussed.
Author Ulrike BabusiauxSource: Fundamina : A Journal of Legal History 2014, pp 39 –60 (2014)More Less
Etymologies tended to be neglected by Romanists. In recent philological research they have been proven to be a characteristic of scientific works (,,Fachtexte"). In order to clarify their significance it is important not only to analyse their structure, but also the context in which the etymology serves as an argument. In doing this research, one may distinguish etymologies as historical arguments (in Gaius' commentary on the Twelve Tables and Pomponius' enchiridion), etymologies as a didactical means (in Institutiones and introductions to monographs) and finally as a means of presentation (in edictal commentaries). The aetiological aspects of etymologies make them comprehend both - the teleological and the historical argument - depending on the author's intentions. This is why we need to take them, for what they are, namely neither proof of historical development, nor a weakness of juristic thought, but an argument.
Author Christian BaldusSource: Fundamina : A Journal of Legal History 2014, pp 61 –69 (2014)More Less
The expression ius hostium is quite uncommon in Roman legal language. It appears in Tryphoninus D. 22.214.171.124: the jurist deals with the legal status of a slave freed in enemy territory but then returned to territory controlled by the Romans. In a conflict between two Romans claiming the slave's property or between one of them and the slave, the rules on postliminium are applied regardless of what happened iure hostium. A complete exegesis of the difficult and somewhat sinuous text cannot be given here. However, Tryphoninus at least implicitly recognises the validity of the ,,enemies' law" for their own sphere. Furthermore, it cannot be excluded that his solution links one party of the case to its former conduct under foreign law. This is in line with the basic idea of reciprocity underlying Roman public international law as well as with the supposed universality of slavery as a legal institution. The enemy as defined by public international law is regarded as a subject of law and even as a possible creator of law, not as an entity outside the legal sphere.
Author Mircea Dan BobSource: Fundamina : A Journal of Legal History 2014, pp 70 –80 (2014)More Less
The research we conducted on Romanian jurisprudence on wills led us to a very interesting decision of the Chişinău (presently, Republic of Moldavia) Court of Appeal delivered in 1925. The region called Bessarabia reunited with Romania in 1918, but the Romanian Civil Code was extended to that territory only in 1928. Therefore, the judges in this case had to identify the laws in force at that time through an historical analysis of the consequences of the first Russian occupation of the province in 1812 on the administration of justice. Then, in terms of Bessarabian law they made an in-depth analysis of Roman law in order to solve the problem. My main purpose is to analyse the conclusions drawn by the judges in 1925. Did the Russian occupation really allow the Hexabiblon of Harmenopoulos (1345) and the Manual of Andronache Donici (1814) as sources of Bessarabian law after 1812? Is the Roman-law analysis conducted by the Court an appropriate one?
However, beyond the several questions that this study raises, its main interest lies in the fact that twentieth century judges still found it useful and necessary to go back to Roman law sources to clarify and interpret the legal texts of Harmenopoulos and Donici on which they based their decision.
Author Pierangelo BuongiornoSource: Fundamina : A Journal of Legal History 2014, pp 81 –89 (2014)More Less
The purpose of this paper is to analyse the powers conferred on Flavius Maternianus in 217 AD during Caracalla's Parthian campaign. The paper starts with an examination of Herodian's (4.12.4) and Xiphylin's (337, 19 ff. R.St. = Dio 78.4.2 Boissevain) accounts. Then a survey is presented of the main extant manuscript and epigraphic sources describing the granting of imperia to members of the senatorial order in the absence of the princeps. The paper concludes by suggesting that Maternianus's powers were granted to him in the form of an imperium in order to enable him to manage (as long as Caracalla was absent) both the current political affairs and the troops near Rome who were not involved in the Parthian campaign.
Author John W. CairnsSource: Fundamina : A Journal of Legal History 2014, pp 90 –99 (2014)More Less
Many Scots students studied law in the United Provinces of the Netherlands in the late seventeenth and early eighteenth centuries. There they were often taught in private classes or collegia using compendia. These practices in teaching were adopted in Scotland when the Scottish law schools were created in the early eighteenth century. This paper examines the impact of these practices o n the teaching of criminal law in Scotland in this era.
Author L. Capogrossi ColognesiSource: Fundamina : A Journal of Legal History 2014, pp 100 –109 (2014)More Less
A century ago, in Roman law studies, it was a rather common idea that, in ancient cities, legal protection was not immediately extended to the legal relationships between citizens and foreigners. This protection was possible only as a consequence of a special position, granted to foreigners, through the hospitium - private or publicum - or an international obligation assumed by the city as a consequence of a treatise between two sovereign cities. This was the case of the relationship between Romans and Carthaginians established by the first treatise between Rome and Carthage in 509 BC. A different position was that of the Latini in Rome (and of the Romans in the Latin cities): to which the same Roman law as for Roman citizens applied. This kind of assimilation was known as ius commercii and conubii. Following an idea of Dieter Nörr, the author suggests that a more general legal protection should have been granted by Romans to all foreign tradesmen. For that reason there were, in the XII Tables, general provisions concerning the position of foreign citizens in process, as well in private agreements. It is also possible that the typical forms of ius civile, such as mancipatio, should have been employed in these transactions, although they could not have the same consequences for what concerns the Roman ius civile.
Author Riccardo CardilliSource: Fundamina : A Journal of Legal History 2014, pp 110 –124 (2014)More Less
Over the last decades, scholars analysed the matters concerning the direct effect with manus iniectio of the "damnas esto" of the lex Aquilia only from a substantive law perspective. The author here emphasises the relevance of Studemund's apographum of Gai. IV, 21 and tests the weakness of Goeschen's hypothesis compared to Studemund's interpretation of the Codex Veronensis.
Author Patricio-Ignacio CarvajalSource: Fundamina : A Journal of Legal History 2014, pp 125 –133 (2014)More Less
In article 1.698, the Chilean (Bello's) Civil Code provides that: "The existence of the obligations, and their extinction, shall be proved by (the person) who alleges each one of them". This is a reception of the ius commune through both French and Spanish traditions. Although this provision is substantially related to Paul's fragment (D. 22.3.2) about the burden of proof, the main source of its precise wording may be found in C. 19.4.1 about mutuum, which deals with the specific field of contract that is regulated by article 1.698 and its later sources, article 1.315 of the Code Napoléon and article 1.196 of the "Concordances" project of Garcia Goyena. Mutuum, as the foundation of article 1.698, is indeed indispensable to fix the boundaries of this provision and its proper interpretation. It has to be borne in mind that historical research is essential for a proper understanding of the proof of obligations and in terms of the final article of the Civil Code of Bello is compulsory when interpreting Chilean legislation. In this article, all the historical sources on the burden of proof of obligations are reviewed.
Author Cosimo CascioneSource: Fundamina : A Journal of Legal History 2014, pp 134 –138 (2014)More Less
The article offers an exegesis of a short text from Gaius' edictal commentary, now included in the Digest title de rerum amotarum actione (D. 25.2.2, originally dealing with the consequences of the actio iudicati). The aim of this paper is to reject the position saying that matres familiarum could not be suited by way of infamous actions. For D. 25.2.2 bans a turpis actio no more than adversus uxorem (i.e. a "shameful trial" against the spouse), it concerns only the inner familiar relationship between husband and wife. So the fragment cannot be used as a general statement, valid for all women. Therefore it was normal to summon a woman with an actio furti (and also with an actio iudicati). On the basis of the Gaian fragment, the extent of use of the word addicta remains uncertain, but there is no reason to argue that women could not be subjected to addictio.
Author Emmanuelle ChevreauSource: Fundamina : A Journal of Legal History 2014, pp 139 –149 (2014)More Less
This article deals with the evolution of Roman guardianship through the mechanism of excusatio tutelae. Considered as closely related to patria potestas, guardianship was formally understood as a form of potestas and a right exercised in the interest of the protected person until she or he reached puberty. The initial concept of guardianship and the role of the guardian started to change during the Principate. Guardianship as potestas (power) developed into guardianship as munus (office). Imperial policy made an effort to harmonise the three types of guardianship according to the model of guardianship by magisterial appointment, forcing the guardian, in particular the testamentary guardian, to accept the office, to manage it efficiently and not to withdraw lightly. The aim of this paper is not to analyse Marcus Aurelius' generalisation (followed through by successive emperors) of the system of excuses, extending it to all types of guardianship, and forcing guardians to accept the office. This contribution rather focuses on the search for the correct balance between the ward's interests and the guardian's capacity to carry out his mandate effectively and efficiently. This may be deduced from a study of the rich casuistic sources dealing with the grounds for excuse and the evolution of guardianship towards a civilian charge.
Author Tiziana J. ChiusiSource: Fundamina : A Journal of Legal History 2014, pp 150 –162 (2014)More Less
The historical roots of the concept of protection of trust are found in the ius gentium which was primarily developed to govern the relations between Romans and foreigners or amongst foreigners themselves. The foundation of the ius gentium lies in fides, namely that fiduciary duty which was characterised as fundamentum iustitiae by Cicero and which was commented upon by Ulpian with the words "grave est fidem fallere". In fact, if no inherent legal structures exist, one may only find common ground by referring to mutual trust, as it is on this basis that judicial relations can be established. Furthermore, fides has become the benchmark for contractual obligations in the form of bona fides, which has been given content through a discourse between jurists for centuries. Hence, bona fides constitutes the protection of trust. Entering into a contract based on bona fides determines accountability. This study examines the development of the concept of protection of trust through the contributions of the Roman jurists.
Unmöglichkeit der auflösend befristeten traditio? Fragmenta Vaticana 283 und Scholion 1 ad Basilica 16.1.4 revisitedAuthor Jeroen M.J. ChorusSource: Fundamina : A Journal of Legal History 2014, pp 163 –174 (2014)More Less
Until recently it was generally taught that in classical Roman law ownership could not be transferred only for a definite time or under a resolutive condition, though exceptions were allowed. That a dogma (1) of the impossibility of transfer of ownership only for a given time, and (2) of the impossibility of temporary ownership formed part of Roman law, was thought to be evidenced by two texts: Fragmenta Vaticana 283, an imperial rescript dating from 286 AD, and a Scholion to Basilica 16.1.4, taken from the commentary on the Digest by the Antecessor Stephanos (536-542 AD). As a third source one could add the interpolated version of that rescript, Codex 8.54.2. The interpretation of Fragment 283 has been the topic of considerable controversy. Recently a new explanation was proposed, which, however, is shown to have no sound foundation. The argument occasions revisiting the two texts. It is submitted that dogma 1 cannot be deduced from either of them, but that dogma 2 was known by Stephanos.
Riflessioni sul problema della continuità del pensiero giuridico romano, tra risalenza di discipline e modernità della loro configurazione teorica. Il caso del processo arcaico per legis actionesAuthor Alessandro CorbinoSource: Fundamina : A Journal of Legal History 2014, pp 175 –185 (2014)More Less
This piece of writing intends to show - moving from a specific observation point - how juridical Roman thinking has been characterised by a high continuity of vision and by a great capacity to rationally rule over the complexity of situations that had to be regulated.
Author Maria Floriana CursiSource: Fundamina : A Journal of Legal History 2014, pp 186 –195 (2014)More Less
As long as the Romans had contact with the people of Italy only, their treaties embodied the concept of societas. The new formula "amicitia and societas" and the expression amicitia seem to have arisen only when Rome came into contact with other peoples in the Mediterranean area. The article aims to demonstrate that the roots of these new relationships are in international relations in the ancient Near East, and that the Romans adopted them from the Greeks. Later, they adapted the formula to their policy of expansion by using it to impose the maiestas populi Romani.