Zlarinske glagoljske oporuke iz 17. st. u kontekstu rimske pravne tradicije

This paper describes and explains the central role of the principle of contractual liberty with the Jesuits of the early modern period. Designed as a diptych, it intends to clarify how the legal and the moral philosophical tradition mutually enriched each other at the threshold of modernity. The 'ius commune' helped the Jesuits in formulating the idea of negative freedom, only for that 'ius commune' to undergo a transformation itself under the influence of the scientific account of contract law that the Jesuits were to develop on its basis. First it will be shown how the Jesuits arrived at a moral problem-solving method capable of freeing man from unduely burdensome obligations before the court of conscience through the application of the law of property and procedure. Secondly, this paper will highlight the turn towards positive freedom through the Jesuits' elaboration of a general doctrine of contract as a mutually accepted promise centered around the notions of liberty, consensualism, and the image of the will as a private legislator.

The aim of the chapter is to analyze the significance and role of Roman law as ius commune in East Central Europe (Ostmitteleuropa) from the Middle Ages up until today. The notion of East Central Europe will be pragmatically exemplified for the purposes of this contribution within the context of the Lands of the Crown of Saint Stephen. This territory was and is ‘the very heart’ of East Central Europe, as it comprises, in their entirety or partly, the following present-day states: Hungary, Croatia, Slovakia, Austria, Poland, Romania, Serbia, Slovenia, and Ukraine. The centrality and importance of the Lands of the Crown of Saint Stephen within East Central Europe also guarantee that the experience of Roman law as ius commune in these territories is not unimportant and has a certain level of paradigmaticity. The most important source of traditional pre-1848 law in the Lands of the Crown of Saint Stephen was undoubtedly the Tripartitum (1514), which represents one of the milestones of East Central Europe’s legal tradition and culture. Despite the explicit declaration that Roman law and canon law are the very basis of the law of Archiregnum Hungaricum (omnia fere iura regni huius originaliter ex pontificiis caesareique iuris fontibus progressum habeant), this legal collection was, in reality, a compilation of customary law and a powerful legal practice forming work that hindered any major legal transfer. Regardless of the fact that European ius commune was not a direct source of law in the pre-1848 period, there were definitely some ‘channels’ through which Roman legal tradition exerted a considerable influence and impact in the Lands of the Crown of Saint Stephen (e.g., procedural law manuals like Kitonich’s Directio Methodica and the inclusion of Digesta 50, 17 in Corpus Iuris Hungarici), creating the phenomenon called tacita receptio. Only since the second half of the 19 th century onward has Hungarian judicial practice and doctrine – due to the withering away of feudal relations and consecutive failed attempts to pass a modern national civil code – gradually elevated Roman private law in the form of ius commune to the level of a subsidiary source of law. The last part of the contribution deals with the role and significance of Roman law as ius commune in the former Lands of the Crown of Saint Stephen in the last hundred years, emphasizing that a possible wider scope of the application of the ius commune rules in the national judicial practice, especially in the form of regulae iuris, would not just represent a nostalgic quest for the hidden treasure of the European legal tradition but rather a part of a long-term creative effort toward the non-legislative Europeanization of the contemporary legal orders on the firm foundations of the common legal culture.

The historical approach enables us to perceive the specific legal phenomenon as continuous and to study the antecedents of current (or even future) legal challenges. This article discusses the possibilities of invoking the historical notion of ius commune (and various new concepts based on it) in a contemporary legal discourse on the future of the European Union (EU) law. Since issues of integrity and homogeneity remain central to the consideration of further legal developments of the EU legal framework it is especially relevant to look back at one of the most prominent phenomena in the Western legal tradition – ius commune, which to some extent united legal thought throughout pre-modern Europe. By analysing inherent characteristics related to its sources, methods and interaction with other (local) legal systems, we attempt to define the limits of such historical analogy. This may allow answering the questions as to whether and to what extent the model of medieval-originated ius commune could inspire further development of the EU legal framework (as a new ius commune).

1. Prolegomena to the Method and Culture of Comparative Law Maurice Adams and Dirk Heirbaut 2. What is Legal Epistemology? Geoffrey Samuel 3. Comparative Law as Method and the Method of Comparative Law Jaap Hage 4. Research Designs of Comparative Law-Methodology or Heuristics? Jaakko Husa 5. Law as Translation Francois Ost 6. Controlled Comparison and Language of Description Maurice Adams 7. Three Functions of Function in Comparative Legal Studies Catherine Valcke and Mathew Grellette 8. Comparative Law and Legal History: A Few Words about Comparative Legal History Martin Lohnig 9. Comparative Contexts in Legal History: Are We All Comparatists Now? Heikki Pihlajamaki 10. The Curious Case of Overfi tting Legal Transplants Mathias M Siems 11. 'Ius commune', Comparative Law and Public Governance Alain Wijffels viii 12. Things Being Various: Normativity, Legality, State Legality Sean Patrick Donlan 13. Against Method? H Patrick Glenn 14. Comparatively Speaking: 'Law in its Regulatory Environment' Roger Brownsword 15. The Importance of Institutions John Bell 16. Live and Let Die: An Essay Concerning Legal-Cultural Understanding Jorn Oyrehagen Sunde 17. Policy and Politics in Contract Law Reform in Japan Souichirou Kozuka and Luke Nottage 18. The Eurocrises and What Socio-legal Studies Could Do about Them, or: Comparing European Pluralisms from Legal Cultural Approaches Joxerramon Bengoetxea 19. Comparing the Legitimacy of Constitutional Court Decision- Making: Deliberation as Method Toon Moonen 20. Making the Case for European Comparative Legal Studies in Public Law Susan Millns 21. Comparative Law and EU Legislation: Inspiration, Evaluation or Justifi cation? Rob van Gestel and Hans-W Micklitz

Testamentary Freedom, 'ius commune' and Particular Law (c. 1400-1620)

The aim of the chapter is to analyze the significance and role of Roman law as ius commune in East Central Europe (Ostmitteleuropa) from the Middle Ages up until today. The notion of East Central Europe will be pragmatically exemplified for the purposes of this contribution within the context of the Lands of the Crown of Saint Stephen. This territory was and is ‘the very heart’ of East Central Europe, as it comprises, in their entirety or partly, the following present-day states: Hungary, Croatia, Slovakia, Austria, Poland, Romania, Serbia, Slovenia, and Ukraine. The centrality and importance of the Lands of the Crown of Saint Stephen within East Central Europe also guarantee that the experience of Roman law as ius commune in these territories is not unimportant and has a certain level of paradigmaticity. The most important source of traditional pre-1848 law in the Lands of the Crown of Saint Stephen was undoubtedly the Tripartitum (1514), which represents one of the milestones of East Central Europe’s legal tradition and culture. Despite the explicit declaration that Roman law and canon law are the very basis of the law of Archiregnum Hungaricum (omnia fere iura regni huius originaliter ex pontificiis caesareique iuris fontibus progressum habeant), this legal collection was, in reality, a compilation of customary law and a powerful legal practice forming work that hindered any major legal transfer. Regardless of the fact that European ius commune was not a direct source of law in the pre-1848 period, there were definitely some ‘channels’ through which Roman legal tradition exerted a considerable influence and impact in the Lands of the Crown of Saint Stephen (e.g., procedural law manuals like Kitonich’s Directio Methodica and the inclusion of Digesta 50,17 in Corpus Iuris Hungarici), creating the phenomenon called tacita receptio. Only since the second half of the 19th century onward has Hungarian judicial practice and doctrine – due to the withering away of feudal relations and consecutive failed attempts to pass a modern national civil code – gradually elevated Roman private law in the form of ius commune to the level of a subsidiary source of law. The last part of the contribution deals with the role and significance of Roman law as ius commune in the former Lands of the Crown of Saint Stephen in the last hundred years, emphasizing that a possible wider scope of the application of the ius commune rules in the national judicial practice, especially in the form of regulae iuris, would not just represent a nostalgic quest for the hidden treasure of the European legal tradition but rather a part of a long-term creative effort toward the non-legislative Europeanization of the contemporary legal orders on the firm foundations of the common legal culture.

A liferenter has the right to use the fiar's property. Furthermore, he has the right to possession. Only after the termination of the liferent, the fiar can take up the possession and the use of the property himself. In the meantime, the fiar will want the liferenter to maintain the property, e.g., to carry out repairs. In Roman law, the liferenter was first only under an enforceable obligation to repair if he had rendered the cautio usufructuaria. However, in the further development of Roman law an actio in factum emerged in order to enforce the liferenter's duty to repair even if no cautio usufructuaria had been given. The exact point of time when this actio was developed is unclear. It is suggested that it emerged towards the end of the era of classical Roman law. During the time of the ius commune it was uncontested that the liferenter's duty to repair was enforceable even if no cautio usufructuaria had been given. As a consequence the liferenter did not have to nd caution in every case but only if the liferenter's conduct gave rise to fear a material infringement of the fiar's rights. The cause to revisit the question of the enforceability of the liferenter's duty to repair in its historical development is a decision of the Scottish Court of Session in 2002.

1 . Introduction-A Matter for Two Courts: The Fundamental Rights Question for the EU Sonia Morano-Foadi and Lucy Vickers PART I 2. The Place of the EU Charter within the Tradition of Fundamental and Human Rights Dr Niilo Jaaskinen 3. Closing the Gaps in the Protection of Fundamental Rights in Europe: Accession of the EU to the ECHR Kristi Raba 4. Problems and Challenges of the EU's Accession to the ECHR: Empirical Findings with a View to the Future Stelios Andreadakis 5. The EU Human Rights Regime Post Lisbon: Turning the CJEU into a Human Rights Court? Wolfgang Weiss PART II 6. European Judicial Dialogue and the Protection of Fundamental Rights in the New Digital Environment: An Attempt at Emancipation and Reconciliation: The Case of Freedom of Speech Oreste Pollicino 7. Migration and Human Rights: The European Approach Sonia Morano-Foadi 8. Who has the Right to have rights? The Judgments of the CJEU and the ECtHR as Building Blocks for a European 'ius commune' in Asylum Law Samantha Velluti 9. More is Less? Multiple Protection of Human Rights in Europe and the Risks of Erosion of Human Rights Standards Titia Loenen and Lucy Vickers 10. In Extending Human Rights, which European Court is Substantively 'Braver' and Procedurally 'Fitter'? The Example of Sexual Orientation and Gender Identity Discrimination Robert Wintemute 11. Access to Justice in the Recent Grand Chamber Judgments of the European Court of Human Rights Dragoljub Popovic' 12. Fundamental Rights and Judicial Cooperation in the Decisions of the Court of Justice on the Brussels I Regulation 2009-2014: The Story So Far Lorna Gillies 13. Concluding Remarks Sonia Morano-Foadi and Lucy Vickers

Reform in 1215: Magna Carta and the Fourth Lateran Council Ken Pennington 800 years ago, in June and November of 1215, two great events took place that have shaped our imaginations about law, reform, and constitutional and individual rights to the present day: The meeting of King John of England with the magnates of his realm on the fields of Runnymede and the great church council in which the prelates of the Church gathered around Pope Innocent III in the papal basilica San Giovanni in Laterano were focused on the the great issues of the time. Both meeting produced documents that have been interpreted by scholars, read by students, and debated by everyone. By 1215 King John had lost almost all of his northern continental possessions. The core of the Angevin empire, Normandy, was lost. Anglo-French barons who still held lands in Normandy owed their primary allegiance to King Phillip Augustus, not to King John. The barons and churchmen who remained under his sovereignty chaffed under his rule. It is clear from the document that the barons forced John to sign when they met with John on Runnymede in 15 July 2015, they intended to impose reform on the king. We might sum up their objectives as being the administration of justice and defending their customary rights in what remained of the John’s kingdom. Magna Carta was a major event in King John’s reign. Because the archbishop of Canterbury, Stephen Langton, played such a significant role in the affair that took place on Runnymede, scholars have wondered about the connections canon law and its jurisprudence embedded in the Ius commune might have had in the minds of those who drafted the document.1 [End Page 97] A larger question is the relationship of the Ius commune to English common law in the early stages of its development. Charles Donahue wanted to have a word to illustrate the relationship. He chose ‘influence’. Twenty-five years ago he wrote:2 We need a word to tie the ius commune to the common law of England. The standard word is ‘influence’, and the standard meaning of the word is direct borrowing of rules and sometimes broader principles. That may seem as if it would be a statement that would evoke little controversy in the world of legal history. Nevertheless, it has. Scholarly attempts to explore the ‘influences’ that the jurisprudence of the Ius commune might have had on English common law and Magna Carta have been met with criticism, some of it rather pointed.3 In this essay I will examine possible ‘influences’ that the Ius commune may have had on Magna Carta and the relationship and possible connections between the two most significant reform assemblies in the early thirteenth century: the king, prelates, and barons who gathered at Runnymede and the pope, cardinals, bishops, abbots, and clergy who congregated in San Giovanni in Laterano. I begin at a strange place, neither in England nor in Rome, but in Rouen, France. A manuscript resides there that dates to the early thirteenth century and belonged to the lepers’ hospital of Saint Gilles in the Norman city of Pont-Audemer. It contains documents related to the hospital and its founding but also contains the canons of the Fourth Lateran Council and cheek by jowl a French translation of Magna Carta.4 James Clarke [End Page 98] Holt had examined the cartulary and published an edition of the French text in 1974.5 Holt tried to explain why Magna Carta was translated into French and why a copy of it found its way into a cartulary of a small foundation in Normandy. He noted that the manuscript copy of Magna Carta had the text of a writ addressed to the sheriff of Hampshire appended to it.6 The writ instructed the sheriff to compel people to obey the twenty five barons who had been designated by the charter to enforce its provisions.7 Bishop of Winchester, Peter des Roches was appointed the sheriff of Hamsphire in 1216.8 Bishop Peter had an unusually interesting career. Born in Touraine he rose from being the archdeacon in the diocese of Poitiers to become Lord Chamberlain...

The early modern differentiae iuris civilis et canonici constituted part of a genre that was emblematic of the “new ius commune”, the early modern learned law which discussed the scope and relevance of late medieval ius commune for the then-current legal system. The authors of differentiae have not articulated a coherent meaning of the term “ius commune”, and have only occasionally applied it with a slightly novel approach in their reasoning aimed at reconciling the discrepancies between the two bodies of law. Nevertheless, the early modern differentiae may be perceived as a legal genre that had the internal coherence of ius commune as one of its objectives.

'A Patchwork of Accommodations': Reflections on European Legal Hybridity and Jurisdictional Complexity

Ius Constitutionale Commune en America Latina (ICCAL or Ius Constitutional Commune), came up after a period of authoritarianism in Latin America. ICCAL charts an original path for Latin American transformative constitutionalism. The Commune is a product of academic exchange; though mainly legal in nature, it is also a cultural and a political project, aimed at the structural transformation of society through law. The book: ‘Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune’ links the Ius Constitutional Commune to various legal phenomena, experiences and theories, and views it from a comparative lens. The article explores the concept of ICCAL and transformative constitutionalism in Latin America, focusing and critically analysing this contribution.

Abstract: Once Europe knew of a “European common law”, the so-called Ius Commune. This old Ius Commune is nowadays considered to be a possible source of inspiration for a future common European Law. But apart from the Law of Obligations, there are few examples of such a new legal order. This is only logical, since the Law of Property of old used to be local and regional, that is, outside the Ius Commune. However, the feudal system of land tenure existed everywhere in Europe, and thus, became part of the Ius Commune. The basic idea of this feudal system was that of divided property. Both the feudal lord and the feudatory were owners of the tenure, both with different rights, though. This theory was quite flexible, and was thus applied to any kind of property. Alas, this idea of divided property disappeared with the demise of the feudal system at around 1800. However, the author is of the opinion that a revival of this idea could prove beneficial for the law. The possibility to combine several variants of property within Europe into a common concept would, beyond doubt, amount to a great improvement in the law of an ever-tighter Europe.

Abstract: Harmonization blends the laws of various countries, enabling better trade and commercial practices; it occurs in a number of manners: through supranational agencies, conventions and treaties, soft law, and researchers. Comparative law is crucial to harmonization; it is not only a theoretical academic fi eld, but rather a basis for creating world–wide legal solutions emphasizing collaboration and cooperation between the different legal systems. This article will focus on the process of ‘academic harmonization’, which has materialized via the enactment of common principles. The idea behind common principles is that harmonization can be achieved through formulating rules aimed as “common law” on an international or regional level. The fact that these common principles can be understood as comparative works should be examined. This article discusses the points of contact between the drafting of common principles and comparative law (i.e., language or methodological questions). While there is a different approach between comparative law and harmonization vis–à–vis common principles, there is a strong relationship between the two, and it is this relationship that allows the development of ‘the new ius commune’. Résumé: L’harmonisation mélange les droits de différents pays, permettant un commerce et des pratiques commerciales meilleurs. Elle procède de différentes façons : au moyen d’agences supranationales, de conventions, de traités, de droit mou, et par la recherche. Le droit comparé est crucial pour l’harmonisation ; il ne s’agit pas seulement d’un champ académique théorique mais plutôt d’une base pour créer des solutions mondiales qui mettent en valeur collaboration et coopération entre les différents systèmes légaux. Cet article se concentrera sur le procédé d’harmonisation académique créé par l’énonciation de principes communs, qui sont obtenus par la formulation de règles qui visent à être utilisées comme doit commun au niveau international ou régional. Cet article présente, en les expliquant, les points de contact entre la rédaction de principes communs et le droit comparé (comme les questions de langage et de méthodologie). Alors qu’il existe une différence d’approches entre le droit comparé et l’harmonisation par des principes communs, il y a une relation forte entre les deux et c’est cette relation qui permet le développement d’un nouvel «ius commune». Zusammenfassung: Rechtsharmonisierung beeinfl usst stets mehr die nationalen Gesetzer verschiedener Staaten, um eine Verbesserung des Handels sowie anderer gewerblicher Aktivitäten zu ermöglichen. Sie erfolgt auf verschiedenen Wegen: mittels supranationaler Organisationen, Übereinkommen und Staatsverträgen, soft law sowie auch der Rechtswissenschaft. Die Rechtsvergleichung ist entscheidend für die Rechtsharmonisierung. Es ist nicht nur eine theoretische rechtswissenschaftliche Disziplin, sondern vielmehr handelt es sich bei ihr um eine Grundlage für die Schaffung weltweiter rechtlicher Lösungen, wobei hier Zusammenarbeit und Kooperation zwischen den verschiedenen Rechtssystemen im Mittelpunkt steht. In diesem Beitrag soll der Prozess der” rechtswissenschaftlichen Rechtsharmonisierung“ im Mittelpunkt, die durch die Aufstellung von sog. gemeinsamen Grundsä

This article grew from a desire to look deeper into the relationship between legal history and comparative public law and, also, from a will to deploy legal history while trying to conceive contemporary European constitutional culture. The ideas and approach entertained in this article are somewhat dissident in their relation with the mainstream debates regarding this subject. Yet, the purpose of this article is not to criticise the novum ius commune Europaeum movement as such. Nor is it to defend or attack the idea of a Common European Civil Code. Rather, the point is to try to inquire if there is something in today's European public law sphere that could be conceived somewhat equivalent to the past ius commune. The quintessential methodological idea here is to use historical legal material as a conceptual tool for modern day discussion. Instead of trying to embark deeper into a private law oriented debate the focus here is shifted towards constitutional law i.e. an area of law that originally was not connected with the ius commune tradition. By means of a close-reading-approach this article tries to conceive if there really is something of ius commune in Europe. Further, could there be, perhaps, a kind of transnational epistemic judicial grammar, taking shape in dialogue between judges, to be found? And, if there is such a thing how it should be regarded: positively as healthy form of non-national constitutionalism or negatively as a popular sovereignty hostile form of international judicial elitism?