The second International Balkan Conference for Roman Law and Roman Legal tradition
"The Universality of Roman Law"
13 October, 2017
Prof. dr. Malina Novkirishka- Stoyanova, Dr. Scient.
Full Professor, Faculty of Law, Sofia University " St. Kliment Ohridski", Sofia (Bulgaria)
"Nasciturus pro iam nato habetur quotiens of commodis eius agitur".
The Roman rule and its contemporary application
Abstract: The report presents the rule "Nasciturus pro iam nato habetur quotiens of commodis eius agitur" as it exists in Roman legal texts in relation to the ancient Greco-Roman concept of personae, different from that which we conceive today. In this context, the capacity of human embryo to be subject of right comes from social, religious, medical, moral and especially legal recognition. We discuss some of the heritage aspects of this rule, as well as the issues of early human life, abortion, infanticide and murder of pregnant women, recognition of the newborn by the father, State, etc. Some decisions of the Roman jurisprudence are surprisingly topical and are part of many discussions on its bioethical and legal aspects.
Key words: Nasciturus, human embryo, person, curator ventris, successio, pater familias.
dr. Davide Scalmani, Director of Italian Cultural Institute in Belgrade (Serbia)
PROMOTING CULTURAL RELATIONS IN SERBIA:
From Roman Archeological Heritage to Present Day European Process and Globalized Exchanges
Abstract: The Italian Cultural Institute in Belgrade is an official institution of the Foreign Affairs Ministry of Italy. Its mission is to promote cultural relations between Italy and Serbia through a wide range of activities. The activities within the bilateral cultural cooperation include the organization of events fostering the development of joined research and cultural initiatives. Human and social sciences are an important part of the cooperation area. Due to many different factors, Italian culture has been referential for Serbian scholars and intellectuals for a long time. One of the strongest points of reference, perceived as an element of affinity, is the ancient Roman civilization. The common past gives us the opportunity to reflect on the long term influence of Roman institutions. Such long common roots can still be considered today as important elements underlying the process of construction and transformation of identities. Fostered by cultural exchanges, the historical dimension stemming from a dynamic analysis could help the development of a more inclusive debate about common legacies, distinctive social and institutional elements, and specific characteristics that define who we are.
Key words: ancient Roman civilization, the Italian Cultural Institute, Roman Archeological Heritage, European Process.
Prof. dr Giorgio Barone Adesi, Full Professor, Faculty of Law, University ,,Magna Graecia", Catanzaro (Italy)
THE UNIVERSALITY OF THE ETHNARCHIC AND PATRIARCHAL AUCTORITAS:
ROMAN LAW AND ORTHODOX CHURCH TODAY
In the past years, upon observing the Assemblies of Heads of Autocephalous Churches, an argument has been raised that the patriarchal office is only a honorary title, given that the patriarchs and the highest church dignitaries have the same prerogatives. In this regard, the forthcoming remarks point to Roman legal sources concerning the Christian Patriarchal Institute, which was elaborated by the legislator after the extinction of the Jewish patriarchal dynasty.
From the Theodosian Code it is possible to deduce the references to the patriarch-ethnarchical jurisdiction (potestas) in Palestinian Jewish communities, as well as the factual universal ("ecumenical") extension of authorities (auctoritas) acquired by the patriarch, even beyond the Roman borders.
In the midst of the 5th century, Theodosius II nominates Saint Leo the Great as "ecumenical patriarch." The imperor thus intends to emphasize the auctoritas of the bishops of Rome, already recognized by Theodosius I, the religious ethnarch of the Roman people, as the guardians of incorruptible faith secundum apostolicam disciplinam evangelicamque doctrinam, transmitted to the Romans by Apostle Peter (CTh.XVI.1.2.pr). Consequently, imperial chancellery attributes the title of "ecumenical patriarch" to the bishops of Constantinople; even in the ecclesiastical field, the new capital enjoys Roman prerogatives (Can. 28 of Chalcedon). After establishing the "ecumenical" diarchy, including the bishops of both imperial capitals (reaffirmed by the laws of the 5th century: CTh.XVI.2.45), in the VI century, Justinian's Nov. IX includes a reference to the pentarchy, constituted by the bishops appointed to the five principal Churches of the Roman oikouumene.
The unity of the Catholic Church is enshrined in the empire by the ecclesiastical communion with the five patriarchs, awarded "ecumenical" auctoritas in dogmatic and disciplinary matters. Thus, without the approval by the five ecumenical patriarchs, no episcopal assembly can be canonically considered as a General Council. The above mentioned remarks induce some possible implications in the current ecclesiastical situation of the Orthodox Church.
Today, as it is well known, seven of the nine patriarchs exercise "ethnarchic-ecumenical" prerogatives through erections of parishes and eparchies, outside of their canonical territories. Therefore, the ecclesiastical institutions are motivated by the ethnarchical functions of the patriarchal auctoritas, aimed at providing the adequate pastoral service to the faithful who emigrated outside of their respective traditional territories.
Founded on the ethnarchical role of the patriarchs, the widespread "ecumenical" extension of patriarchal auctoritas highlights today the fundamental difference between the patriarchs and other highest dignitaries of the Autocephalous Churches. Moreover, the observation poses the following question: does the current patriarchal ennearchy enjoy, in the dogmatic and disciplinary field, the same "ecumenical prerogatives" exerted by the pentarchy in the Roman empire?
Plausibly affirmative, the answer raises the question: is it correct to refuse or recognize the Synod of Crete as "General Council", without the approval of the patriarchal ennearchy? This institution is canonically legitimized to ratify its ecclesiastical acceptance, with the consequent insertion of the "Great and Holy Council of Crete" among the "General Councils", despite the absence of bishops from four patriarchates.
As an institution of undoubted importance in the long and tiring awakening route of synodality in the pan-Orthodox field, the Council of Crete has been appropriately qualified as "the Council of Primates", the only bishops legitimated by the regulation to vote and approve the deliberations. So, beyond the unquestionable epochal significance, the Cretan Conciliar Assembly does not seem to be legally considered as a local Synod, for the absence of convocation and, consequently, participation of the majority of Crete bishops in its activities. Nor does it seem to have legitimacy among the General Councils, for failure to invite individual bishops of local Churches, traditionally legitimized to take part in general synods (whereby, in case they are not able to participate, the bischops could be represented by the clerics of their respective churches).
Concerning the composition of the Cretan Assembly, it does not seem to be negligible to note the inclusion in the delegations of bishops without eparchy. Their presence is likely to alter the synodal identity. The innovative introduction changes the traditional assemblies of ecclesiae to the assembly of prelates, perhaps notable in doctrine or in other ecclesiastical disciplines (appropriately categorized among the experts but not among the fathers of the council). In the synodal institution, the patres bring in Council the fides et tradition of their ecclesiae rather than their personal positions, even academic ones.
Prof. dr Valerius M. Ciuca, Full Professor, Faculty of Law, University Alexandru Ioan Cuza, Lași (Romania)
«L'universalisme juridique et l'aequitas,
quasi sigillum anti-tribaliste du droit romain classique»
In an endevour to research and identify the most important qualities of the protean system of Roman Law during its progressive development related to the history of Roman State and society, but, also, beyond their formal chronology, probably, starting with William Burdick's conceptions (expressed in his major work, The Principles of Roman Law and Their Relation to Modern Law, elaborated at the University of Kansas, USA, 1938), the most important idea is that the Roman law, grosso modo, is characterized by its unique universalism and profound spirit of equity. It is a non-tribalistic system, an organic and praetorian class of rights, jurisprudentially dedicated to find the equitable way in order to reach the best legal solutions in the private law litigations. Mutatis mutandis, this system tries to respond, avant la lettre, to the Vincent de Lérins three criteria separating truth and untruth (veritas & error): Quod ubique, quod semper, quod ab omnibus creditum est.
Prof. dr Giovanni Lobrano, Full Professor, Faculty of Law, University of Sassari (Italy)
CITY ASSEMBLIES IN THE PROVINCES OF THE ROMAN IMPIRE
In dealing with this topic, the author divides the paper into three parts. In the first part of the article, the author deals with issues from the emergence of cities (ad urbe condita) to the emergence of the empire. In this part, the author explores the following topics: a) From the expulsion of kings and Justinian's era, the Romans think and act democratically; b) Democracy is only possible in a small society/city; c) The problem caused by "growth" and Roman solution; d) A voluntary system (a technique of "democratic" participation) as a solution; e) Solution: Empire as "Confederation" of cities.
In the second part of the paper, the author draws attention to the development of local self-government units and the state's relations with these units. In this context, the author addresses the following questions: a) The nature of "government" and the great "force" of the imperial power; b) Two dimensions of the ("sovereign") power of citizens, inside and outside cities; c) Necessary reciprocity of these dimensions; d) Imperial growth of cities/municipalities.
In the third part of the paper, the author elaborates on the central topic of this paper dealing with the organization of city assemblies in the provinces of the Roman Empire.
Prof. dr Žika Bujuklić, Full Professor, Faculty of Law, University of Belgrade (Serbia)
Legal achievements of famous Serbian poet Laza Kostic
Laza Kostic is not only a great Serbian poet, drama writer, translator, literary and theater critic, journalist, national tribune, politician, diplomat, philosopher and aesthete, but, as the most educated and dullest Serbian head of his time, he made a significant contribution to the legal field. Unfortunately, scientific community has not yet illuminated this specific area of his work, and with this paper author wants to point out the most important achievements of Laza Kostic in the field of legal science. When he was only 25 he obtained degree of doctor of law, after writing and successfully defending his thesis in Latin at the Royal University of Pest in 1866. In his late years, he began translating one of the most important textbooks of Roman Law, written by famous German Romanist Heinrich Dernburg (1829-1907). This masterpiece in three volumes (Pandekten, 1884-87) represented the fundamental work of the modern European legal culture. Laza Kostic received the order for this venture from the local Croatian-Slavonian-Dalmatian government in Zagreb (Zemaljska vlada). The first volume of his translation was published in Zagreb in 1900, the second remained as the manuscript, and it is not known whether Kostic finally ended this job. The text available to us shows how inventively Kostić was trying to create a new legal terminology, grounded on the vernacular language, taking dominant ideas of the historical law school and the subsequent learning of the famous jurist Valtazar Bogišić.
Work on sessions
Prof. dr Paolo Pietro Onida, Prof. dr Maria Casola,
Prof. dr Vanessa Ponte
Prof. dr Sebastiano Taffaro, Full Professor, Faculty of Law, University of Bari Aldo Moro (Italy)
Roman Tradition and the New Model of Democracy:
Abstract: In this paper, the author discusses the issue of democracy in the Roman tradition and all developmental phases it has gone through until the present day. In that context, the author elaborates on the basic principles of democracy established in the period of military democracy in the first period of Roman legal history. For the purpose of identifying the common features of democracy at that period and today, the author discusses the following issues: power control, historical excursus, inadequate separation of powers, the concept of 'good governance', crisis in the judicature, and democracy crisis.
Prof. dr Michele Indellicato, Full Professor, Faculty of Law, University of Bari Aldo Moro (Italy)
THE ETHICAL RIGHTS OF ROMAN LAW
Today, we believe more than ever, that we must acknowledge in the Quiriti's thinking the existence of an ethical wisdom that comes intensively forward in the organisation of civitas and its set of rules. Against meaningless prejudices and in our time of legislative and regulatory disorientation, it seems appropriate to reintroduce the maximum politics and rules created by Roman jurists, as testimony of permanent values that arise from a righteous spirit and strong reasoning skills.
On the basis of these established foundations, for centuries magistrates and jurists have built the life of society with wisdom that belongs to the order of reality and expresses itself in the art of living.
Politics and law, although characterized by different areas and ends, are rooted in the human being and constitute, according to the tradition of greek-roman classical thinking, two activity spheres related to moral science and philosophy.
Ethics, law and politics derive from a single principle and follow a precise order for an intrinsic necessity , in the sense that legal rules imply ethical rules and in turn are the condition for political order.
Key words: Person, Ethics and Roman Law.
Prof. dr Maria Casola, Full Professor, Faculty of Law, University of Bari Aldo Moro (Italy)
THE SEA AS A COMMON GOOD:
UNIVERSALITY OF ITS USE
The Romans were convinced that the sea, just like the water they drank and the air they inhaled, belonged to the category of "res communes omnium", common property of the whole mankind. Thus, there was no order and no norm that could deny these common goods because they are based on ius naturale (intrinsic to the entire cosmos) and have autonomous legal significance (because they pertain to all human beings and their organizations); by their very nature, they are intended for everyone (citizens or non-citizens alike) and they do not exlusively belong to any single individual. On these grounds, principles and rules were developed to ensure the common access and use of the sea and coastline. Starting from these principles and rules, the paper aims to outline some issues pertaining to this problem, which further points to the need to ensure the protection of the Mediterranean Sea through institutions ensuring an easy and fast access of every person to this common natural asset, even beyond the framework of the national or European law.
Prof. dr Paolo Pietro Onida, Full Professor, Faculty of Law, University of Sassari (Italy)
Dictatorships and the Role of National Assemblies
in the Roman Constitutional System
Abstract: The doctrine did not consider in depth the issue concerning the relationship between the people and the dictator. This is however a fundamental point in order to understand the difference between the activity of the iussum, on the one hand, and subordinate position of administratio, on the other hand. This distinction unknown to Greek culture determines a great difference in the Roman juridical science with particular reference to the debate concerning the "deliberative democracy" and the popular participation.
Prof. dr Antonio Saccoccio, Full Professor, Faculty of Law, University of Bresica (Italy)
ROMAN LAW AS COMMON HERITAGE OF THE HUMANITY
Roman law, beginning from the time of the foundation of the Romanistic juridical system and up to this day, has a clear universal propensity. In the introductory constitutions of the Digest, Emperor Justinian emphasizes that the whole Corpus Juris Civilis represents a true temple of justice, and serves to build almost a city of law, which must be valid forever (in omne aevum). For Justinian it is indispensable to recognize the existence of a common law (ius commune) among all peoples, known or unknown, living in the ecumenical world, in a universalistic perspective, that the modern comparison between the States and the Legal Orders (that from the States derive) make laborious, if not nearly impossible, to grasp.
The recognition of the ius gentium from the III century B.C., thanks to the praetor peregrinus, moves exactly in this direction: he creates a sort of ‘supranational consuetudinary right' (Cardilli), with a clear internationalist propensity, which finds its foundation in the naturalis ratio, that roman jurists (see eg Gai. 1.1; or D.41,1,1,1) recognize at its basis. This foundation does not seem to be frustrated by the recognition, some decades later, of the ius naturaleas a self-contained category.
But this is a universality that does not have to be understood in a giusnaturalistic sense, but only in the sense of appreciating certain values, that Roman jurists recognize as eternal foundation of good relationships among people: the centrality of the human person; humanitas, fides bona, aequitas, voluntas, libertas, substantial equality; causality in contracts; favor debitoris; the fight against usury, etc.
From the combination of all the elements described above, it is already recognized in Rome that there is a common law (ius commune), which is as old as man, precisely because it is based on that naturalis ratio, that jurists recognize as its basis. The ‘iura populi Romani' should therefore be understood as ‘complexes' of juridical norms of the Roman people, but elaborated and re-elaborated in a coherent system, in a ‘ius commune romanum', in which the various contributions fit into ‘harmony', upon the basis of the principles that guide them.
Undoubtedly, many events have contributed to obscuring the correct view of this event. On the one hand, the closure on itself of the Romanistic thought from the end of the 19th century led to a ‘crisis' of the study of Roman law. On the other hand, the events of the last two centuries, which have led to the conquest of the monopoly of the production of law by the State, have generated a split between the internal order (founded on State's sovereignty) and an international order that (failing to be efficient) dilutes itself in the cross-game of good or bad relationships between absolutely sovereign states.
In my opinion, however, it is impossible to cut the umbilical cord that still links modern law to the teaching of Roman jurists. Civil codes do not arise from the mind of the modern legislator, nor from the deference to a hypostatized ‘Grundnorm', abstractly placed. They are, on the contrary, embedded in the system in which they float, as floating islands in the sea: at the basis of them, as well as at the basis of any modern juridical Legal Order, it is easy to recognize the System of Roman law which, despite an inevitable need for a continuous revision, has clearly been the source of many principles of modern, national and international law.
This ‘natural Roman law' must be understood as a dynamic and non-static phenomenon: it is a law (ius) that, as jurist Pomponius (D.1,2,2,13) already taught, cannot exist (constare = exist) alone but needs a filter, consisting in daily critical re-processing of what is best for man, which only the jurists can do.
In other words, the system based on Roman law (precisely because it is a system that places man and what is best for him constantly in the center, and because it is based on a universally recognized system of values) is an ‘open System', which is not intended to be overcome, but which is constantly renewed and adapted to the multiform and changing reality to which it contingently applies.
It can be said that «the universality of Roman law, transmitted to us by the Codification of the VI A.D. by Justinian, ... is to be regarded as a genuine product of Rome and of the Roman people» (S. Riccobono), and must be safeguarded above all by jurists of our as well as of future generations, as a common heritage of humanity.
The Romanistic legal system is not imposed, but sought, transposed, and open to dialogue with other legal experiences, to which it offers its own principles. Its recovery, its valorisation as a true communicating vessel of values, institutes, principles and norms, is fundamental in order to «uncover any order, any law that does not place man at the center of his scale of values. To retrieve aequitas and humanitas against any barbarity; to build a law that is ever fairer and more humane, so that it can serve man in the depths of our high common legal tradition that shows us how the law can and should be placed at the service of humanity and humanism» (Labruna). These are the challenges the modern jurists must be able to pick up.
Prof. dr Vanessa Ponte, Full Professor, Faculty of Law, University of Cordoba (Spain)
THE ROMAN ARMY AND SOME LEGAL PROVISIONS REGULATING ITS STATUS
Abstract: When the Roman army was purely national, there was no need for a special law on the military, which still did not have the professional character. Thus, after the reign of Augustus, the citizens could participate in the military campaings when needed, in times of difficulty or danger, by relying on the use of some institutions such as the testament in procinctu, for example. After creating permanent armies, which moved long distances and included foreigners, Rome had to regulate their legal status with rules that responded to the demands of the place and people in the militia. Thus, military law arose during the Empire, and was further developed and amended in the Post-classic period, and especially in Justinian's reign, in the Corpus Iuris Civilis, notwithstanding the extraordinary dispersion of its precepts and the casuistic approach in this collection. The abudant regulations governing the status of the military in Rome, includes questions such as the status of the legionnaires, granting citizens' rights and immunities, peculiarities in the law applicable to the military (ignorance and error of law, domicile, absence, representation), ius vitae necisque, and so on.
KEYWORDS: Roman army, regulation of the legion, law.
Prof. dr Salvatore Puliatti, Full Professor, Faculty of Law, University of Parma (Italy)
The Roman model and its spread in Justinian's Age
La voce della Compilazione
It is well known that the Compilation conceived by Justinian from 528 was designed to have a universal value. On the political level, the aim of the Illyrian emperor was to restore the Empire to the dimension of its greatest splendor. On the ideological level, the imperial power, endowed with divine foundation, was conceived to assume an ecumenical value, extending to all peoples. Coherently, the Compilations had to have an equally general scope, unifying all peoples under the values and concepts of ius romanum. This paper aims to find the traces of these beliefs within Justinian's legislation, highlighting the most significant expressions of an all-embracing conception of the values and law of Romanity that pervaded the imperial ideology.
Key words: Roman law, Justinian, Late Roman Empire
Prof. dr Andrea Trisciuoglio, Full Professor, Faculty of Law, University of Torino (Italy)
Lights and shadows, steps and leaps: Moving up in Roman public careers in Late Antiquity
(Criminal law aspects)
Abstract. In the period from 4th to 6th century AD, imperial constitutiones provided detailed description of steps in the development of civil and military career. In the period of the Republic, Romans seemed to be persuaded that, for the best management of the res publica, the magistrates should run for each of his offices in the order prescribed by the cursus honorum, and that one's powers and responsibilities would increase by reason of his administrative experiences and his personal qualities; thus, the principle of meritocracy was evidently built up. This idea came back under the deeply different bureaucracy of the Late Roman Empire. The metaphors that can be found in the juridical and literary sources of this period refer to the violation of the rules on the cursus honorum as belonging to the Dark World, comparing it to the "bright" careers, or showing such violation as a ‘leap' that is opposite to a correctly and properly timed order. This paper considers specifically how the Roman criminal law of Late Antiquity combated irregular career promotions, while examining attentively the crimen ambitus and the crimen sacrilegii.
Work on sessions
(Continuation of work)
Prof. dr Milena Polojac, Prof. dr Nebojša Ranđelović,
Ass. prof. dr Samir Aličić
Prof. dr Milena Polojac, Full Professor, Faculty of Law, University of Belgrade (Serbia)
Violation of tombs: Roman-Byzantine law in the Zakonopravilo of Saint Sava
Zakonopravilo (Nomocanon) of Saint Sava, the Serbian medieval legal text of a great importance (1219), is the compilation of mainly Byzantine texts of dogmatic, canonical, legal, moral and liturgical content. It is composed of altogether 64 chapters. The chapter 47 contains the provisions of Justinianic law, mainly from the Novels and the Codex. The provisons concerning violation of tombs have its source in the Justinian's Digest, book 47. title 12 (De sepulchro violato). The reception was not direct but through the so called Collectio tripartita, an anonimous collection og Greek summaries of fragments from the Corpus iuris civilis. The aim of the paper is to draw attention to ways of reception and its implications.
Key words: Zakonopravilo of Saint Sava.- Roman-Byzantine law.- Collectio tripartita.- Violation of tombs.- Justininan's Digest.
Prof. dr Nebojša Ranđelović, Full Professor, Faculty of Law, University of Niš (Serbia)
Ass. prof. dr Aleksandar Đorđević, Assistant Professor, Faculty of Law, University of Niš (Serbia)
ROMAN LAW AND MEDIEVAL SERBIA'S LAW ACCORDING TO STOJAN NOVAKOVIĆ
About the fact that the entirety of the historic life of both the medieval and modern Serbia has passed in the classic home of Roman law, according to Stojan Novaković, not much care was taken in our literature of the time. The Roman law itself was being taught according to foreign authors' bibliography (for example, the textbook on the Digest by L. Aris Riter of Arnesberg and his organizers L. Pfaf and F. Hofman translated by Dragiša Mijušković, then a professor at the Belgrade Higher School). At that time, Stojan Jovanović brings attention to the direct influence of the Roman law on the law of medieval Serbia and its incorporation into Serbian sources of law. By giving a look at the influence of Justinian's Code on Serbian law and its modifications, accepted through Byzantine law, Novaković gives a short, but comprehensive image of the roots of the medieval Serbian state's law.
Ass. prof. dr Samir Aličić, Assistant Professor, Faculty of Law, University of East Sarajevo (Bosnia and Herzegovina)
Ulpian, Celsus and Weed Pollution of Soil (D.18.104.22.168)
The subject of this paper is the analysis of meaning of Digest text D.22.214.171.124. An overview of different theories devoted to this text has been presented here with a critical review of their argumentation, and another possible way of interpretation has been proposed.
Keywords: Digest, different theories, Ulpian, Celsus
Prof. dr Amra Mahmutagić, Full Professor, Faculty of Law, University „Džemal Bijedić" Mostar (Bosnia and Herzegovina)
Ass. prof. dr Šejla Maslo-Čerkić, Assistant Professor, Faculty of Law, University „Džemal Bijedić" Mostar (Bosnia and Herzegovina)
Reception, Modification and Evolution: the Application of Principles and Institutions of Roman Law in Modern Law
As a result of thework of glossators and postglossators, Justinian's law – in its new forms and aspects - gradually became the iuspositivum in many countries of Central and Western Europe during the 15th and 16th centuries. Two parallel historical processes in legal development had taken place before this time – formulation of canonical law and revitalisation of Roman law – which in combination helped create the foundation of ius commune, as well as become the main source of modern legal codifications of the 19th century. The authors emphasise that the application of Roman legal institutionsin modern age would not be possible without their modification and adjustment to socio-political circumstances of a certain historical setting. Examples of thesetransformations are numerous: under the canonistic influence, a position was gradually adopted that informal contracts are enforceable if there is a reason (causa). Furthermore, a sale, which largely remained ground for tradition or delivery of thing, i.e. having effect under the law of obligations, was, on the other hand, transformed in, for example, modern French law, where ownership of the thing is conveyed to the buyer an the moment of contract formation, under the law of property rules. The modified institutions of Roman law which are examined, have enabled its application and diversity of legal systems, legal cultures and traditions of European nations.
Key words: Roman law, reception, modifications of Roman law principles and institutions, informal contracts, evolution
Associate Prof. dr Dejan Vučetić, Associate Professor, Faculty of Law, University of Niš (Serbia)
ORGANIZATION OF THE ROMAN EMPIRE's GOVERNMENT IN THE CONTEXT OF CONTEMPORARY PRINCIPLES FOR ESTABLISHMENT OF PUBLIC ADMINISTRATION
According to the modern theory and practice of the government, there are three basic principles for its constitution. The first one is the real principle - with two primary subtypes - the departmental principle and functional principle. The other two principles are the territorial principle and the personal one. Each of these principles has its advantages and disadvantages, which is why it is in certain situations needed to combine them with other principles. In this paper, the author analyses the organization of the Roman Empire's public administration (especially in the age of Dominate), during the period of its greatest complexity, by applying the principles mentioned above for organization of the contemporary states' government. The particular attention is given to the analysis of the compatibility degree of Roman Empire's territorial organization system with the general principles of modern states' territorial organization. The primary finding of this paper is that, despite its impressive size and achievements in other areas, the Roman Empire's administrative organization wasn't differentiated, and as expected not fully compliant with modern organizational principles.
Keywords: principles for the establishment of the public administration, Roman Empire, territorial organization.
Ass. prof. dr Marko Dimitrijević, Assistant Professor, Faculty of Law, University of Niš (Serbia)
Prof. dr Srđan Golubović, Full Professor, Faculty of Law, University of Niš (Serbia)
MONETARY SYSTEM OF THE ANCIENT ROME: IMPLICATIONS ON
CONTEMPORARY MONETARY LAW
Abstract: The subject of analysis in this paper is to review the concept of the monetary system in ancient Rome in order to recognize its implications to the modern monetary law. In that context, in the first part of the paper it points to the characteristics of the original monetary system, the most significant rulers who were determining it by the strict laws which protect their monetary prerogatives (as a precursor of monetary sovereignty) and the first serious reform that took place during the economic crisis during the Second Punic War (218-201 AD). In the second part, it will point out to the emergence of the new economic trends, notably the impact of the law of value as the important determinants postulates of contemporary monetary law, the new macroeconomic trends, the impact of inflation on the disavowal of the monetary system and the new directions of economic reforms. The subject of particular analysis is the role of accounting in monetary policy and public expenditures because the financial control essentially determined the direction of monetary policy in a period of Roman Empire. By reviewing the causes of currency crises in the ancient Rome, the authors try to point out the similarity with some important factors of global economic and financial crisis, regarding the weaknesses of monetary legal rules in conflict with the economic reality, which confirms the importance of monetary stability as essential pure public good for the functioning of the state and the role of the legislator in establishing an optimal monetary regime.
Keywords: ancient Rome, the monetary system, the monetary law, the law of value, economic crisis.
dr Marko Novaković, Research Fellow, Institute of International Politics and Economics
Ius Gentium and International Law
Although not identical, international law and the Roman notion of iusgentium are clearly connected.Of course, those notions are far from being identical, because the international law does not function in the same circumstances asiusgentium used to. The lawyers, especially the ones dealing with international law often take connection between iusgentium and international law for granted, without deeper understanding of its aspects.It is important to understand that the notion of iusgentium evolved since theRoman times and through Middle Ages and renaissance and the way it changed. In this paper, author will analyze the evolution of the notion of iusgentium and the influences of the lawyers to those changes.
Ass. prof. dr Sanja Gligić, Assistant Professor, Faculty of Law, University of Belgrade (Serbia)
TORTURE ON SLAVES AS A UNIVERSAL TRAJECTORY OF ROMAN AND GREEK LAW
In addition to the many positive achievements of Roman law, there are some who are negative. They must not be forgotten precisely because they testify to the universality of Roman law. One of them is torture on slaves. Slavery officially became illegal at the beginning of the 21st century, but trafficking in human beings is still used today for forced labor. The aim of this paper is to demonstrate, through the similarities of Roman and Greek Law facts of slavery, how much the same elements can be seen in the modern-day understanding of slavery. This will be done on the basis of classic sources: "The Digest" and the speeches of famous Athenian logographers Demosthenes, Lysias and Antiphon.
Key words: -Slavery. -Torture– Basanos. -Trafficking.
Ass. prof. dr Maja Nastić, Assistant Professor, Faculty of Law, University of Niš (Serbia)
ELECTIONS IN ANCEINT ROME
The elections were the essential element of political life in Rome in the Republican period. There were voting assemblies of the people (the comitia). These assemlies passed the laws, elected the annual magistrates and even had heard major trials and made policy decisions about Rome' s relations with foreign powers in earlier part of period. In the first century BC, the people exercised their right to vote mainly in two assemblies: the comitia centuirata and the comitia tributa. The right to vote was not universal, neither equal. The rigt to vote had all grown up men, except women, slaves and foreigners. But, there were a number of obstacles that hampered the exercise of the citizens' right to vote. Voting took place per centuriae; first, the more propertied vote, than poorer. The voting places were on the open air and natural phenomena had a lot of influence on the election process. Rome had no government, no political parties, no system allowing mass voting, but Rome had a very live election campaign and electoral fraud, which have survived til the modern times.
Key words: elections, anceint Rome, the right to vote, election campaign,
Ass. prof. Ivan Ilić, Teaching Assistant, Faculty of Law, University of Niš (Serbia)
Ass. prof. dr Darko Dimovski, Assistant Professor, Faculty of Law, University of Niš (Serbia)
RIGHT TO APPEAL - FROM ANCIENT ROME TO THE PRESENT
When deciding on the rights and interests of the individual, irregularities and irregularities are possible. Therefore, it is necessary to enable review of the decisions of state bodies with the aim of making correct and lawful decisions. The instrument for initiation of a review and amendment of the decision, which is unfavorable to the addressee, is a legal remedy. The right of effective remedy was established as a guarantee of the protection of basic human rights. This right today is universal, captured by the most important international legal documents, and at the national level, it is most often a matter of the law, which is contained in the constitutions of modern states. The authors deal with the institutes of Roman law, provocatio and appellatio, which constitute the appearance of the right to appeal, as one of the basic rights of the parties, without which today's criminal proceedings could not be imagined. The authors also point to the appearance of the principle of deciding in two instance, which is also one of the features of Roman public law. Through the development of a appeal in the Roman criminal proceedings, the authors present repercussions on the further right to appeal and on the impact of the Roman law to the right to appeal, in a contemporary sense.
Key words: Roman Law, appeal, criminal proceedings
dr Filip Mirić, Associate for Post Graduate Studies, Faculty of Law, University of Niš (Serbia)
SYSTEM OF PENALTIES IN ROMAN LAW
The heritage of Roman law is most evident in the field of civil law. However, the legacy of Roman law also constitutes Roman criminal substantive and criminal procedural law. It seems that this segment of Roman law is unjustly ignored in scientific research. The subject of this paper is a system of penalties in Roman law, as part of Roman criminal law. Author emphasized that the system of penalties was changed in different epochs of the Roman state. Also, there is a noticeable slightly presence of corporal punishment, which corresponded perfectly to the pragmatic spirit of the Romans. The paper aims to point out the significance of the penalty system in Roman law for the functioning of the Roman state, as well as the necessity of its further study.
Key words: Roman law, Criminal law, penal system.
Ass. prof. Stoyan Ivanov, Teaching Assistant, Faculty of Law, Sofia University " St. Kliment Ohridski", Sofia (Bulgaria)
Ultrotributelocare- The censors` contracts with societates publicanorum
during the Roman Republic
During the Roman Republic, Roman magistrates acted as censors, who entered into contractual activity with private entities of the societates publicanorum, which ultimately produced credits for the civitas Romana. The consequence was that the payments which supplied the cash flows of the government were determined through the activity of the censors as Roman magistrates. The strategy of the Roman fiscal policy may be synthesized by the fragment of Liv.39.44.7: "… et vectigaliasummispretiis, ultrotributainfimislocaverunt". Based on this fact, we may conclude that these ultro tributa were the subject matter of a contract, where the locator was the Roman State through its censors and the conductor were the societates publicanorum, which exercised their duties towards the SPQR. The aim of this article is to outline the significance of the societates publicanorum in the period of the Roman Republic as a remedy for the decentralization of public finances. Also, the Roman Republic practices of public building and services accomplished on contractual basis by private subjects with the money of the State are widely accepted nowadays within the modern institute of public-private partnership.
Work on sessions
Prof. dr Malina Novkirishka, Prof. dr Emilija Stanković,
Prof. dr Dragan Bolanča
Prof. dr Dragan Bolanča, Full Professor, Faculty of Law, University of Split (Croatia)
Associate Prof. dr Vilma Pezelj, Associate Professor, Faculty of Law, University of Split (Croatia)
Associate Prof. dr Petra Amižić, Associate Professor, Faculty of Law, University of Split (Croatia)
GENERAL AVERAGE – AN ANCIENT INSTITUTION OF MARITIME LAW
It is through general average that maritime law has adopted the classical legal postulate that nobody should make a profit from damage to the property of another without compensating for it. The legal institution of general average is as old as the skills of navigation or only a little younger. This maritime custom developed spontaneously and independently in different parts oft he world at a time when distance forbade any contact between them or reciprocal influence. It derives from ancient Greek law and afterwards is developed in Roman, Bizant and Venetian law. It could be found in statutes of some littoral town on the Atlantic, Baltic and Mediterranean coasts and un the first collections of recognised maritime customs. In the period oft he 17th to the 19th century, national legislation int he field of maritime law varied significantly in larger European states (France, Germany, Holland, England) and the need for unification became urgent. The first attempt of unification was made by British Social Sciences Association at a conference of shippers in Glasgow in 1860. This was followed by discussions in York 1864 and in Antwerp in 1877, and eventually, with support of underwriters, the so-called York – Antwerp Rules were born. Since 1879 they have been applied on the basis of agreement between shipper and charterer. By occasional amendments mentioned Rules have already lasted 130 years.
Key words: general average, Roman law, maritime law
Prof. dr Nevenka Bogojević-Gluščević, Full Professor, Faculty of Law, University of Podgorica (Montenegro)
The women's property regime IN THE MEDIEVAL TOWNS ON THE ZETA COAST
The married women's property regime in the medieval towns of Kotor, Budva and Skadar, reconstructed on the basis of the statute and everyday notarial practice, shows that this regulation was based on the principle of full separate property of spouses during marriage and without hereditary rights of the surviving spouse on the legacy of the deceased spouse. A wife's property consisted of dowry and other goods which were usually acquired on the basis of inheritance and gifts. Assets other than dowry were her property and she could dispose of them completely independently and freely. She could dispose of her dowry only with significant restrictions prescribed by statute in relation to donatio mortis causa and inter vivos. For the duration of marriage, a husband was considered usufructuary of her dowry and managed it.. Upon dissolution of marriage a husband was obliged to return the dowry to his wife. In order to secure payment of the dowry, a wife had a priority mortgage claim on her husband's assets. Despite the precise statutory rules, our analysis of the notarial documents from the archives of Kotor has shown that there were deviations from the prescribed regime in practice. As numerous documents show, various litigations were conducted as regards husbands' abuses in the disposal of their wives' dowry.
A comparative analysis of the legal regime of the assets of urban women on the Zeta coast and in other medieval towns on the east Adriatic coast has shown that, apart from minor differences, that regime was basically the same with the regime that was in force in medieval Dubrovnik. Both regimes belonged to a special group of the oldest legal regimes in the medieval coastal towns based on separation of property assets of spouses modelled strongly after the pattern of Justinian Code and Byzantine law. The oldest rules were different from statutory solutions in the towns of the Istria and Kvarner regions where there was a universal community of goods between husband and wife in marriage. The difference also existed in relation to the statutory solutions of the central towns of the Dalmatian region in which legal regime was a combination – a full community property of spouses and, to a certain extent, a shared property regime on the wife's goods.
Some not insignificant deviations from a set of almost identical rules of Dubrovnik law resulted from local specifities of the socio-economic and political life of the Zeta coastal towns. Due to these specifities other significant influences were present in the final formulation of statutory rules concerning a wife's property in these statutes. Either directly or indirectly, in various and multiple cultural layers, these influences were continually coming to the coastal towns from the interior of the Balkans or from overseas. The direct influences of the Slav law came from the very hinterland of the above-mentioned towns, from Serbia, to whose supreme patronage they belonged. This is also how these statutes were indirectly influenced by complex Byzantine codifications, which found their adequate legal expression in some individual solutions as regards the women's property rights in Kotor and Skadar. The similarities in some of the provisions of the women's property regime in the statutes of Budva, Kotor and Skadar with the rules in this area in the towns along the Adriatic coast are influenced by the identical influences brought to these centers by notaries from Italian universities. Roman law modified by glossators found a fertile ground for application in more and more developed and trade-oriented towns, thus forming their statutory law in the same conditions and in the same way.
Keywords: the legal regime of the assets of women, the statute of Kotor, Skadar statute, the statute of Budva, XIV century, a married woman, statutory law in the eastern adriatic cities
Prof. dr Mirjana Polenak-Akimovska, Full Professor, Faculty of Law "Iustinianus Primus", University "Sts. Cyril and Methodius", Skopje (Macedonia)
Prof. dr Vlado Bučkovski, Full Professor, Faculty of Law "Iustinianus Primus", University "Sts. Cyril and Methodius", Skopje (Macedonia)
Prof. dr Goce Naumovski, Full Professor, Faculty of Law "Iustinianus Primus", University "Sts. Cyril and Methodius", Skopje (Macedonia)
Ass. prof. dr Esin Kranli, Assistant Professor, Faculty of Law "Iustinianus Primus", University "Sts. Cyril and Methodius", Skopje (Macedonia)
Roman divortium and its influence on the development of marriage in Macedonia
The Roman divortium is just one of the legal concepts that exhibited strong influence upon the divorce of marriage in historical context to this day (an exception being the Catholic Church's view at the Council of Trent that advocates the unresolvedness of marriage as a "sacred secret").
The monogamous marriage and the divorce of marriage that were standardized in Roman law are a legal inheritance that is also implemented in the Family law of Macedonia.
The sources of the law in the Roman law and in the contemporary Macedonian law will be compared to establish similarities and differences.
Key words: divortium, patria potestas, manus, divorce, mono-parent family, binuclear family.
Ass. prof. dr Davorin Pichler, Assistant Professor, Faculty of Law, University of Osijek (Croatia)
IMPLEMENTATION OF FIDUCIA IN CONTEMPORARY CROATIAN LAW
The need to secure the claim also existed in the oldest roman law. This role had a institute of fiducia. In the late phase of the development of legal orders of the Continental - European legal circle, fiducia is largely abandoned. It was considered too hard for someone who would transfer his property to the creditor for insurance, and the same effect could be achieved by pledge.However, after the Second world war, in continental Europe, there is an increased demands for new loans. As a consequence, the institute of fiducia of roman law returns to the legal orders that left it long ago. In the croatian legal order, the institute of fiduciary insurance of claims was introduced for the first time by the Enforcement Act in 1996. and then by the Act of Ownership and other real rights and the Bankruptcy Act. The paper will attempt to present a picture of integrating fiducia into the croatian civil law and identify common points withthe fiducia of roman law. Some outstanding issues will also be emphasized; the problem of fiduciary insurance as for the debtor the most difficult form of real estate insurance, the issue ofenrollmentof fiduciary ownership in land books for real estates that are still unlisted, the problem of omitting the fiduciary's ability to afford full ownership of property in case of non-fulfillment of the claim.
Key words: fiducia, roman law, pledge, insurance, real estate
Prof. dr Dževad Drino, Full Professor, Faculty of Law, University of Zenica (Bosnia and Herzegovina)
Ass. prof. Benjamina Londrc, Teaching Assistant, Faculty of Law, University of Travnik (Bosnia and Herzegovina)
LAESIO ENORMIS IN ISLAMIC LAW
Comparisons between the institutes of the post-classical Roman law of obligations and some religious legal systems paint an interesting picture: The Islamic law, like many other laws, allows contracting parties to come to their own terms when it comes to determining the price; there are no rules which would impose a fair, but adequate price. Therefore, there are no legal remedies for a settlement; they only exist on the basis that the other side is at a disadvantage due to lack of proportion between one's own prestations and the prestations of the other side. Nevertheless, the inadequacy of price has not been neglected in the laws on purchase and sale and lease, especially in cases where minors, Waqfs and State Treasuries (Bait al-Mal) needed to be protected from unprofitable transactions. According to the Islamic law, if a settlement has been reached on behalf of these persons or institutions, and the price was estimated as inadequate, there were grounds for offering assistance. In Arabic language this inadequacy is called ghabnfahish, a term corresponding in its meaning to laesioenormis. Although it has been translated differently, it suggests some form of action on the part of one party that causes damage to the other party. In other words, ghabnfahish represents an objective state of loss, a fact that one party has been undoubtedly damaged. The purpose of the paper is to make comparisons between the institute of ghabnfahish in the Islamic law and laesioenormis in the Roman law; a comparison that refers to determining the value of objects, in the sense of finding signs of excess, since both concepts have similarities as well as differences.
Keywords: Islamic law, Roman law, price, laesioenormis, ghabnfahish.
Work on sessions
(Continuation of work)
Dr Željko Bartulović, Prof. dr Marija Ignjatović,
Ass. prof.dr Novak Krstić
Associate prof. dr Maša Kulauzov, Associate Professor, Faculty of Law, University of Novi Sad (Serbia)
DIRECT RECEPTION OF ROMAN LAW IN SERBIAN CIVIL
CODE – CONSORTIUM ERCTO NON CITO AND ZADRUGA
Abstract: Although it is indisputable that Austrian Civil Code served to a great extent as a model for Serbian Civil Code (SCC), a deeper analysis of SCC shows, however, that Hadžić directly applied certain Roman legal concepts. Therefore, modern Roman jurists emphasize direct reception of Roman law. The author discusses similarities between consortium ercto non cito and zadruga, and possible influences of Roman legal tradition regarding consortium on formulating provisions on zadruga, as both were types of patriarchal joint families which can be found in many other societies on the certain level of development. Namely, consortium ercto non cito as well as zadruga was large community of property, work and living where family members lived and worked together in joint family household and held property in common. As in paragraphs 508 and 510 of SCC collective character of zadruga′s property is accentuated, the analogy between two archaic institutes is very suitable. Both members of consortium and zadruga, according to aforementioned provisions, were entitled to shares of undivided property, whereby their shares were not determined, but were determinable. Beside resemblant legal nature, the author also asserts likeness of social and economic circumstances under which consortium and zadruga prevailed. They existed in times of poor economic production, house economy, weak communications, lack of state′s authority. With development of private property, individual freedom and money-and-goods based economy these types of families started to disintegrate, in Rome as well as in 19th century Serbia.
Keywords: Serbian Civil Code, Austrian Civil Code, Jovan Hadžić, zadruga, consortium ercto non cito, family property, actio familiae erciscundae, Law of the Twelve Tables.
Ass. prof. dr Ognjen Vujović, Assistant Professor, Faculty of Law, University of Priština (Head Office in Kosovska Mitrovica)
FURTUM THEN AND NOW
It is often said that it is necessary to determine distinguish between furtum and what is now called theft. The authors are based on the Paulus famous and very broad definition of furtum in D. 47. 2. 1. 3. It is said that today the criminal act of theft is narrower and more precisely defined. If we leave these precise definitions aside, it seems that the basic conceptions which are in the Roman understanding of furtum (which are expressed in the aforementioned Paul`s definition) live today in theory and norms. It was a delict against property whose definition also possesses an objective (unauthorized contact with someone else's res) and a subjective element (calculated fraudulent behavior for the gaining of some profit). In order to complete the view of the Roman furtum it is necessary to see how the Romans solved the problem of accomplices in theft, and how it is today.
Key words: furtum, theft, ope consilio, contrectatio, lucri faciendi gratia.
Ass. prof. dr Aleksandar Mojašević, Assistant Professor, Faculty of Law, University of Niš (Serbia)
LEGAL AND ECONOMIC CONCEPT OF PROPERTY:
THEORETICAL AND PRACTICAL ASPECT
Abstract: In this paper, the author brings into connection the traditional legal concept of property, which has its roots in Roman law, and the other, to the domestic public a less familiar, economic concept of property, originally developed in the Anglo-Saxon legal system. Historically, the legal concept of property was influenced by the value of various philosophical traditions, starting from Aristotle's concept of distributive justice, through Bentham's utilitarianism and Hegel's philosophy, to Hajek's conservatism and others, which is why it is necessary to thoroughly explain the strength and significance of that influence. On the other hand, the modern economic theory has developed its instruments, such as the bargaining theory and the Coase Theorem, the public goods theory and the theory of externalities, which tend to predict the effects of alternative forms of ownership, especially the effects on efficiency and distribution. In this regard, the key issue is the importance of the economic approach to studying the concept of property. What insights does it bring and whether it is complementary to the traditional legal approach? The answers to these questions are of substantive significance for the greater appreciation and consequential reception of the economic concept of property by the traditional legal science, especially that one which belongs to the continental legal tradition. The author's thesis is that the practical importance of the economic concept of property will increasingly affect on the stance of legal theorists and practitioners in the direction of its greater appreciation and acceptance.
Key words: legal concept of property, philosophical concept of property, economic concept of property, bargaining theory, Coase Theorem, theory of externalities.
Ass. prof. dr Novak Krstić, Assistant Professor, Faculty of Law, University of Niš (Serbia)
THE INSTITUTE OF COMPULSORY PORTION
AS THE LIMITATION OF TESTAMENTARY FREEDOM
IN ROMAN AND CONTEMPORARY LAW
Compulsory portion (forced share), in the countries of the European-continental legal system, is the most effective and direct limitation of the testator's freedom of testamentary disposition. The imperative nature of legal rules regulating the area of compulsory succession ensures the protection of property rights and interests of the decedent's close family members from excessive gratuitous dispositions mortis causa and/or inter vivos, by which they have been unjustly evaded from succession. Compulsory heirs are guaranteed the right to request their compulsory portion of the succession estate, irrespective of the decedent's will.
Roman law in the Republican era is the cradle of the compulsory succession. The institute of compulsory portion had passed a centuries-long path of its development to the Justinian law, when effective system of its legal protection was established. In this paper, the stages of development of this institute in Roman law will be analyzed, as weel as the role and importance of Roman law for the development of the institute of compulsory portion in the contemporary law. Moreover, the author will analyze current trends of regulation of forced heirship in the Continental European Law (Civil Law), and reforms that have been made by European legislators in recent decades.
Keywords: compulsory portion, compulsory heirs, testamentary freedom, Roman law, contemporary law.
Ass. prof. dr Timčo Mucunski, Assistant Professor, Faculty of Law "Iustinianus Primus", University "Sts. Cyril and Methodius", Skopje (Macedonia)
Ass. prof. dr Dimitri Čapkanov, Assistant Professor, Faculty of Musical arts, University "Sts. Cyril and Methodius", Skopje (Macedonia)
Prof. dr Aleksandar Klimovski, Full professor, Faculty of Musical arts, University "Sts. Cyril and Methodius", Skopje (Macedonia)
Relations Between the Institutes of Roman Law and Contemporary Business Law With Reference to Macedonian Legislation
The issue of how capital-intensive activity was financed in Rome has been studied and debated by a vast number of scholars of law, economy, history and even sociology. What can be ascertained is that the institutes of Roman law provide a firm basis for the development of contemporary business law. Institutes such as Societas (Publicanorum, Aregntarii), Consortium, Collegia, and even Peculium were just some of the examples of how business activity was essential to the Roman legal and societal system. The aim of this paper will be to analyze such institutes, and put them in context with contemporary business legislation, with a specific focus on the legislation in this field in the Republic of Macedonia. Looking through the examples of Roman law, the authors will provide guidelines for future trends in Macedonian business law legislation.
Key terms: Legal Institutes, Business Law, Societas, Consortium, Collegia
Ass. prof. Mirjana Miškić, Teaching Assistant, Faculty of Law, University of Banja Luka (Bosnia and Herzegovina)
ACTIONES ADIECTICIAE QUALITATIS: MASTER'S LIABILITY BASED ON PRAEPOSITIO AND IUSSUM
Master is liablefor obligations arising from legal affairs concluded by slaves,personsalieniiuris and even free persons. Master's liability depends on the legal and family status of master and entrepreneur of legal affairs. Is entrepreneur personally liable to the third party and if he is,how and to what extent? What is the extent of master's liability?The main objective of this paper is to determine the extent of master's liability among three actions, actioexercitoria, actioinstitoria, actio quod iussuand possible effects of direct agency against the third party.The author will examine the existence of elements of direct agency based on relationship between parties (for example exercitor and magister navis, exercitor and the third party and magister navis and the third party.
Key words: Master. Actioexercitoria.Actioinstitoria.Iussum.Praepositio.
Ass. prof. Tihomir Rachev, Teaching Assistant, Faculty of Law, Sofia University " St. Kliment Ohridski", Sofia (Bulgaria)
ARBITRATION AND FORMULARY PROCEDURE:
THE ORIGINS OF ROMAN CIVIL PROCEDURE
Abstract: Understanding Roman law is of great importance for every contemporary lawyer dealing with private law. Many of the modern private law institutes have their roots in Roman law. This is the reason why learning Roman law and Roman legal tradition is necessary. The substance and the true meaning of Roman law institutes could be understood only through examination of the different Roman civil procedures. This article focuses on the origins of Roman civil procedure and especially the relation of ancient arbitration and formulary procedure. The article also aims to present the Roman concept of legal protection and the Roman law tradition in the field of arbitration.
Key words: Roman civil procedure, arbitration, formulary procedure, Roman legal tradition.
Ass. prof. Milica Vučković, Teaching Assistant, Faculty of Law, University of Niš (Serbia)
FORMALISM IN LEGAL TRANSACTIONS IN ROMAN AND IN MODERN LAW – EXAMPLE OF REAL PROPERTY
Subject of this paper are formal requirements for transfer of real rights, specially over immovables, through historical-copmarative legal analysis of rules of ancient Roman Law and modern legal rules. Author develops a thesis that social and economic reasons for formalisation of that type of legal transactions were much alike, if not the same, in the old Rome as are nowdays. Research is dealing with types of things for which a transfer of rights had been and is formalised, with emphasis on immovables, and also with concrete formal requirements and procedures for transfer of rihgts.
Keywords: transfer of real rights, immovables, formal requirements.
Ass. prof. Methody Todorov, Teaching Assistant, Faculty of Law, Sofia University " St. Kliment Ohridski", Sofia (Bulgaria)
PETITIO HEREDITATIS BETWEEN THЕ HEIRS OF THE SENATOR EUPHASIUS: A case of appellatio in Rome in the 4th century, according to Relatio XVI by Quintus Aurelius Symmachus
Abstract: Relationes by Quintus Aurelius Symmachus are an important source for law enforcement in the 4th century Roman law. Although they are preserved without the imperial decision, these reports provide information on the practical application of the law during the Late Antiquity, when the main sources of law (the imperial constitutiones) were included in the Theodosius and Justinian codes, without specific details of the cases in question. In the Relatio ХVІ Quintus Aurelius Symmachus, a Rome city prefect, describes the undertaken procedural actions, decisions and suggestions to the emperor on appeal against the judicial decision on inheritance dispute between two groups of heirs of the Roman senator Euphasius.