Fundamental principles of Roman law and their relation to legal argumentation

Abstract

Modern philosophy of law defines the principles (foundations) of law as the initial conditions of law, the determinants of its content, on which law relies and which constitute its foundation. At the same time, most European countries use ancient Roman legal formulas in their modern legal systems, which evolved into maxims and became the basis of modern positive law in the form of principles. The establishment of general legal principles, concepts/ constructions is reflected in the legislation, doctrines and case law of most countries. In this article, we focused on the values and concepts formulated in the 1930s by the novelist and legal historian F. Schultz, including the principle of isolation/abstraction, the principle of simplicity and tradition, the principles of freedom and authority, the principle of humanity, the principle of loyalty/ good faith, the principle of security, and some others. These principles continue to be researched by Ukrainian and foreign scholars who supplement this list and study their impact on the legal systems of Ukraine and other countries.
 We emphasize that the principles were not formulated by Roman lawyers, for example, in the preamble to their own works or in a separate law or legal document. Roman law was casuistic, it mainly consisted of decisions made in individual cases. This is related to the peculiarities of legal argumentation in ancient Rome, which had a dual nature. On the one hand, they were determined by the rules of law, and on the other hand, they reflected a system of filling gaps in legal relations by applying the principles of law and the oratory techniques of lawyers of that time.
 Modern legal scholarship has tried to find and argue for the existence of general principles of Roman law development as a basis for making specific decisions, or because Roman lawyers sometimes used certain terms and concepts on which their decisions were based.