Receptum nautarum and «Custodiam praestare» revisited

2013

A Roman pater familias was entitled to the following positive rights: ius vitae ac necis, ius exponendi, ius vendendi and ius noxae dedendi. What follows is an in-depth analysis of the changes in ius vitae ac necis and ius exponendi. Ius vitae ac necis denotes right of disposal over the life and death of a filius/filia familias, while ius exponendi the right to expose newborn infants. Exposing a child often contained its death or wilful murder; e.g., in case of a deformed child when the aim was to get the family or the community rid of prodigium representing ill luck. Therefore, it seems to be more proper to discuss the rights a father had against newborn infants—no matter if they applied to killing or only exposing the child—as part of ius exponendi since killing or exposing children was several times limited and sanctioned in a single imperial decree. Originally, ius vitae ac necis was sacral and punitive law power. Its sacral character came to the front when killing a deformed ch...

Principios generales del derecho. Antecedentes históricos y horizontes actual, Madrid 2014, p. 707-715

El propósito de la obra es generalista y pretende abarcar un campo amplio de conocimientos y puntos de vista sobre los principios generales del derecho. Por eso, junto a una mayoría de romanistas, intervienen también catedráticos de filosofía del derecho, de derecho tributario, de derecho comparado, de derecho civil, de derecho internacional y ex magistrados del Tribunal General de la Unión Europea. Esta multitud de autorías polícromas, unida a la extensión casi inagotable de la propia problemática de los principios generales del derecho, ha exigido una distribución de materias provista de la tensión estructural presente en obras de esta naturaleza. Así, un buen número de los artículos aquí recogidos tratan de forma monográfica sobre principios jurídicos concretos -reunidos por orden alfabético en la parte tercera del libro-, pero incluso en ese grupo aparentemente más compacto se abordan las investigaciones con criterios y perspectivas tan diversas y distantes entre sí como lo pueden ser, por un lado, el método historiográfico del «higher criticism» sobre las fuentes primarias del derecho romano o, por otro, el examen epistémico -a forma de escalpelo-de la jurisprudencia actual. Con todo, el coordinador ha estado atento a la pretensión de componer un discurso general no tanto sistemático como lógico en la presentación de los asuntos tratados por los autores.

2014

II. The in rem actiones are called vindicationes by Gaius, 3 which harmonizes with the terminology of legis actio sacramento in rem, and in iure cessio, as well as adoptio, vindicare in libertatem and vindicare hereditatem. 4 From the etymological attempts at defining the origin of the expressions "vindex", "vindicatio", "vindicta" the one proposed by Varro, 5 emphasizing the characteristic of force, "vim dicere" and relating the verb "dicere" to the core *deik (see also deiknyō, deiknymi) seems the most plausible, even if this cannot be undoubtedly demonstrated with modern linguistic evidence. 6 The word dikē is traditionally derived from the root *deik of the verb deiknymi (to show, to point at, to explain, to testify); its basic meaning of direction, way, custom is supplemented with the meanings customary procedure, decision, resolution, trial, and law. 7 (These two meanings, traditionally derived from each other are approached from a new aspect by Palmer who asserts that the meaning of signalling, custom, characteristic, particularity and the meaning decision, resolution, of the word dikē, originally the borderline drawn between two litigant parties derived from the root *deik, developed in parallel, independently from each other, and so neither of them can be considered secondary, derived from the other. 8) When trying to understand the structure of vindicatio, Varro's traditionally Roman etymology is of utmost importance, because it demonstrates the most clearly how the Romans themselves experienced and how they subsequently interpreted the most basic one of all the procedures termed as vindicatio, i.e., legis sacramento in rem. 9 It can be rightly assumed that in the beginning-and probably later on as well-the spear as weapon was nothing else than a long, sharp rod made of hard wood, and hardened in fire. 10 If the hasta was the weapon with which in the course of the fights they could win loot,

Acta Juridica Hungarica, 2008

Beginning with the well-known fact that one lost a lawsuit if he made even a single verbal mistake in his speech during the process of the legis actio (Gai. inst. 4, 11. 30), we have to examine through some examples the power of verbality in ius sacrum. (I.) We study the development of the concept of fatum (II.), a narration of Plinius maior concerning the dedicatio of the templum of Ops Opifera (III.), another narration based on a source of Plinius related to a special interpretation of prodigium (IV.), as well as parallels that can be discovered between "fruges excantare" and the ceremony of the evocatio (V.). From these one could gain a picture of connection between Roman religion and jurisprudence of the Archaic Age and the spoken word.

„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).