Roman Lawyers Research Articles

Fundamental principles of Roman law and their relation to legal argumentation

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.

‘Windscheid steht Paulus in nichts nach, und ist dabei für uns viel mehr wert als jener’

Summary ‘Windscheid is in no way inferior to Paul, and in this he is worth much more to us than Paul’ – on Stanisław Wróblewski’s treatment of Pandectistics. – In his home country Poland Stanisław Wróblewski (1868–1938) is unanimously numbered among the jurists of the first rank in the extant literature on legal historiography. He is considered to be ‘the Polish Roman lawyer about whom the most has been written’. The admiration for Wróblewski’s scholarly oeuvre among Polish authors even goes as far as that he is often referred to as the ‘Polish Papinian’ in local literature. He is appreciated on the one hand for his expertise as a jurist and, on the other hand, for his mastery of the art of legal thought and argumentation, and finally for the depth of his legal analysis. In the context of this contribution, however, only the question of his relationship to the pandectism, including in particular his relationship to the university teaching of modern Roman law (pandect law), will be examined in more detail. Wróblewski is repeatedly associated with pandectism in legal historical literature. After all, he argued in favour of the continuation of Pandect lectures (pandect law), after the year 1900, i.e. even as the great epoch of pandectism was already drawing to a close. For this purpose, four texts from the years 1894 to 1916, in which Wróblewski explicitly addressed the problem of the relationship to pandectism or to modern Roman law (pandect law), will be analyzed in more detail.

De pollicitationibus. On the nature of unilateral public promises in Roman law

ObjectivesThe subject of the study is the Roman institution of pollicitatio, which is currently unknown. At most, it can be compared to a modern public promise. The institution of pollicitatio appeared in the municipal law and it was a public promise to build a public facility or organize a public event. Such a promise was most often made in connection with running for public office in order to gain the favor of voters. Roman lawyers were already wondering about the nature of this institution and the legal consequences it gave rise to. The institution of pollicitatio was a great support for city budgets, which at that time had full independence from central finance.Material and methodsThe work collects and thoroughly analyzes the most important sources concerning the institution of pollicitatio. The aim of the conducted research is to analyze the political and economic context of the functioning of this sui generi public law institution.ResultsAs a research hypothesis, a thesis was put forward, according to which the municipalities of ancient Rome found a way to implement a solution in order to find finances for the implementation of public utility goals.ConclusionsThe final conclusions stated that the nature of this institution should be clarified by referring it to institutions similar at that time, namely to promissio, donatio, votum or legatum. From the analysis of the sources of Roman law and the comparison of pollicitatio to other similar institutions existing at that time, it can be concluded that it was a unilateral promise to build a public facility or organize a public event by a private person, most often in connection with running for public office.

Formation of principles of justice and good faith in Roman private law

In addition to the traditional methods of analogy of law and analogy of lex, the application of the recommended clarifications of higher specialized courts, the role of the principles of justice, good faith and reasonableness, which by their properties can serve as a fundamental, universal and optimal basis for modeling a decision based on specific civil case.
 Roman law is the formation source of the Romano-Germanic type`s legal system, including the basis for the creation of tort liability. Tort obligations to compensate victims of property losses caused by a committed offense (delict), the very first type of obligations since their origin, were introduced by Roman lawyers.
 The purpose of the study was to carry out a retrospective analysis of the genesis and development of the principles of justice and good faith in Roman private law.
 The article provides a retrospective analysis of the essence of tort liability in Roman law, taking into account the periodization of its development: the archaic period, the republican period, the imperial period. It was established that the formation and application of evaluative principles: justice and good faith in law enforcement activities, — have firstly appeared in Roman law. It was noted that the principle of justice (aequitas) was most often applied when it was necessary to resolve the contradiction between the established application of the law and a specific non-standard case, through a reasonable reconciliation of justified opposing interests in the spirit of this legal institution and an innate sense of justice (aequitas naturalis).
 There is no integral consolidation of the concept of good faith in sources of Roman law. The existence of such an evaluation principle is confirmed only in law enforcement practice, most often when solving casual cases. It was established that the principle of reasonableness in the meaningful manifestation in which it exists today was not finally formed in Roman law. This principle was formed in the subsequent reception of Roman private law.

Mistake in the contract law of Ukraine and some foreign countries

The article analyzes mistake in the contract law of Ukraine, England and France. The author shows that the modern doctrines of contractual mistake were formed by Roman lawyers who provided that when entering into a contract, the parties may be mistaken about the subject matter of the contract, the price, the nature of the contract, or about the party to the contract, etc. It is substantiated that a mistake is a false assumption that led the mistaken party to enter into a contract. As a general rule, like all defects of consent, it must be made at the time of the contract. The complaining party must prove that if it had known about its mistake at the time of entering into the contract, it would not have entered into the contract or would have entered into it on completely different terms. Otherwise, such a party cannot claim that there was a defect in its consent. It is established that the current legislation of Ukraine prioritizes the doctrine of freedom of contract over all other doctrines, which in turn provides for the establishment of a legal relationship between the parties on the basis of a contract only if they subjectively and actually have such intentions. Ukraine adheres to the subjective theory, known to continental law countries, which provides that in case of defects of will, any transaction should be recognized as void. The author substantiates the signs of a transaction made under the influence of a mistake under Ukrainian law: 1) the internal will of such transactions is not sufficiently formed; 2) there is no influence on the person by other persons; 3) the mistake is material; 4) the mistake exists at the time of the transaction. The author explains that mistake in English law is characterized by a narrower scope of application compared to mistake in Ukrainian civil law, and therefore the circumstances under which a contract is void due to mistake under English common law are quite limited. In English law, a contract made in mistake can be enforced except for ambiguity based on the reasonable person standard, which must be rejected. This reflects the English law's perception of the objective theory, where the validity of the contract is always upheld, as the parties are obliged to comply with their expressed intentions. The author has shown that French private law adheres to the principle "ignorance of the law is no excuse", as evidenced by the fact that a mistake of law and fact cannot be forgiven. A mistake is grounds for void regardless of whether it relates to the performance of the contract by one party or the other. The party that made the mistake has effectively assumed the risk from the moment the contract is entered into, so it cannot claim damages. It is clarified that in almost all legal systems, a party cannot refuse to perform a contract if the mistake is the result of its own fault or negligence.

Вірменія та Месопотамія в римській східній політиці та ідеології доби Антонінів: проблеми термінології латиномовної традиції

The article is devoted to the analysis of the terminology used by the Latin Roman tradition of the 2nd century CE. The texts associated with coin legends represented the policy of the Roman Empire in the East, in particular in the context of the eastern campaign of Marcus Ulpius Trajan, which ended with the short-term transformation of the territory of Armenia and Northern Mesopotamia into Roman provinces. Not only large texts by Roman authors such as Tacitus, but also small inscriptions on coins were used to characterize the transformation of the territories of Armenia and Northern Mesopotamia into Roman territories. The author offers an original approach to the interpretation of some of the legends found on the issues of Roman coins of the Trajan era and which were associated with attempts to incorporate Armenia and Northern Mesopotamia into the Roman Empire. The formula “IN POTESTATEM P R REDACTAE” finds certain analogies in the texts of the Late Roman Republican era and the time of the Early Empire, which were connected, in particular, with the transformation of Ptolemaic Egypt into a Roman province. In the 2nd century CE the formula was already used to represent the accession of Armenia and Mesopotamia to Rome.The author, unlike A. Kefelian, who proposed to connect the relevant terminology with legal analogies and property rights in the texts of Roman lawyers, offers his own interpretation. The used terms, in his opinion, were connected with the concept of “deditio in potestatem”, which had close ties with the foreign policy aspect of Roman activity, in particular in the East. Coin legends and inscriptions combine two main trends – we can see an appeal both to the victories of the Romans in the East and to the creation of new provinces in the context of the activity of the ruler, in particular through the category of delegated “power of the Roman people” along with “surrender” and “transfer” of certain territories and states under the “power of the people”, the symbolic and actual expression of which in the 1st–2nd centuries CE was connected with the Emperor. The corresponding study of terminological problems is one of the components of the study of the East image in the Western tradition, in particular in the Classical period.

Roman Law on legal personality: pro et contra

The article is devoted to the study and comparison of the teachings of Roman lawyers regarding the emergence and understanding of the essence of a legal entity as a certain organization of people, as well as providing arguments “for” and “against” its existence as an independent participant in private relations. Attention is drawn to the fact that the current state of the development of civilist thought regarding the development of the category “legal entity” by Roman lawyers indicates the existence of three approaches: 1) Roman lawyers developed and used a legal structure that was different from the citizens of Rome and could participate in the civil turnover of that time; 2) the category of legal entity was not known to Roman lawyers, but the main features characterised to its modern understanding (legal capacity, property separation, the possibility to participate in legal proceedings, etc.) were developed precisely in Ancient Rome; 3) for the jurisprudence of the Roman period, the category “legal entity” or its individual characteristics were not known in the sense that are now attached to the content of the relevant characteristics, but the use of individual constructions, such as “universitas”, “corpus”, “collegia”, “sodalitia”, etc., was intended to show that in private relations, property can exist without being tied to a Roman citizen as a subject of rights.
 The analysis of the civil law doctrine of Roman law regarding the doctrine of a legal entity in the context of comparison with the modern understanding of the essence of such a participant in civil relations led to the conclusion that although Roman lawyers did not develop the concept of a legal entity, they proposed its main practical manifestation: the concept of legal capacity, which does not depend on an individual, the concept of legal capacity and the main types of legal entities that were further developed in European jurisprudence (corporations and institutions). The merit of Roman law is the substantiation of the legal way by which a variety of social entities could be introduced into civil turnover.
 It is emphasized that although the concept of “legal entity” was not defined by the Roman ancient lawyers, and its essence was not directly studied by them, the idea of expanding the circle of subjects of private law at the expense of special organizations, unions of citizens belongs to the Roman private law. It can be assumed that the very concept of “legal entity” at this stage of historical development was not formed from the point of view of substantive law, but was formed only as a social category, but not as a legal one.

Chosen Roman and Canon law institutes in Recent Positive Law of the Slovak Republic

The essence of Senatus Consultum Vellaeanum (hereinafter referred to as the “SCV”) was to forbid intercession of women in case of debt of another person. The art of Roman lawyers to deal with different circumstances of a case can be observed and situations in which protection of a woman is required can be discovered in the individual fragments of the SCV. Canonical equity (aequitas) is a relative idea that calculates with a higher principle of justice or the moderation of law in its application. After analysis of the individual cases, it can be stated that the aim of the SCV was to protect women, who in these cases acted as the weaker party, based on the general experience that in the majority of cases women are emotionally more inclined to help, and act with undue confidence in the ability of the other person to honour his promise; they are unable, especially, to withstand the importunacy of their husbands or friends, and they are generally prone to be influenced by unscrupulous or wellmeant, but unsound advice. Under the influence of emotions and strong life situations, women tend to be naive, very optimistic, and negligent about their own interests. The common purpose of protection – a person emotionally distressed, trustful, negligent about his/her own interests, who has become an entity of a contractual relationship, in which the said person’s rights are grossly disproportionate to the rights arising from the contractual relationship – can be identified even in civil usury, which is part of Slovak positive law. Legal protection against usury is, likewise, an expression of the requirement of justice and good morals in legal relations. Based on the given conclusions, it can be stated that the essence and aim of the SCV and canonical equity has found its representation also in the legal order of the Slovak Republic.

Problemas probatorios de la exceptio doli

Summary The objective of this paper are the proof issues of the exceptio doli in the formular process. The author examines different texts from Roman lawyers regarding not only the proof of the exceptiones, but of the dolus as well, turning back to the problem of onus probandi in the classical process. One of the premises of this work is that the Exceptio doli has a bigger complexity than other exceptiones. These issues found a safer treatment when created the exceptio non numeratae pecuniae. The hypothesis is that this Exceptio should be seen as an alternative to the Exceptio doli every time the defendant has no chance to prove the facts that constitute the plaintiff’s Dolus (a positive fact). And this situation would be related to the fact that the reversal of burden of proof in case of negative facts was sufficiently known in the classic process and therefore the rescript of C. 4,30,3 was unnecessary for that goal.

Causa Curiana as an example of the influence of rhetoric on the interpretation of wills in Roman law

The article aims to analyze a hereditary dispute happened in the late Roman Republic and known as causa Curiana. The argumentation of parties ranked for a long time as starting point of the discussion about rhetorical influence on interpretation of Roman lawyers. The author pursues to estimate an influence degree of ancient rhetoric on interpretation in Roman jurisprudence. For that purpose the reconstruction of trial position of both parties is undertaken and compared with rhetorical treatises. Then the main features of interpretation of agreements and testaments are shaped. After that the difference between revealed features and rhetorical approaches of interpretation is underlined. Finally, the appearing of those features in causa Curiana is explained and its significance for Roman jurisprudence is illustrated. The analyze of approaches to Roman law interpretation has shown that legal interpretation of Roman jurists was relied on the same instruments applied by ancient rhetor. Meanwhile Roman lawyers treated such instruments as normative element divided from rhetors who were apt to use them more deliberately according to their tasks. The manner of speech of the parties’ representaties was based on rhetorical terminology in the legal trial. At the same moment the perceiving of testament sense was realized through legal argumentation. This fact does not allow to argue for bride rhetorical influence on Roman law.

Roman Iustitia Naturalis and Modern Positivist Justice

Introduction. The modern definition of the concept of “justice” is too narrow when we compare it to the famous Roman classical definition of the concept of iustitia as a synonym for justness. Justness is expressed by the constant will to “grant everyone their right”. Ancient thinkers associated the concept of justice with natural law, which unfortunately, is almost lost in modern legal theory. Theoretical Basis. Methods. The article was prepared using general scientific methods (systemic, logical) and special legal methods (comparative legal, formal legal). Results. The concept of “justice” arguably first appeared in Ancient Greece during the 6th to 2nd centuries BC in the philosophy of Pythagoras, Plato, Aristotle and the Stoics. Plato contrasted this understanding of justice with the right of the strong. In the first century BC, Cicero developed this concept further, stating that justice proceeds from natural law, based on the principles of love, friendship, trust and consent. As these principles do not apply equally at different levels (that is, in the family, between friends, between trade partners, between fellow citizens, between foreigners, etc.), the main task of justice is to make an honest allocation of justness to everyone. The Roman lawyer and philosopher would argue that human laws that reject iustitia naturalis lead to lawlessness and the collapse of society. In discussion with Carneades, (who argued that natural justice is folly, and that real civil justice is based on the protection of the benefit or utilitas of the strongest), Cicero argued that without mutual love, trust and friendship, the common benefit of society as a whole, based on the fundamental concept of honesty (honestum), suffers. These principles were adopted by the Roman classical jurists and Justinian compilers in the famous definition of iustitia. Discussion and Сonclusion. Unfortunately, modern positivism in its most extreme manifestation of “pure law” has abandoned the ideas of “natural justice”. This is evidenced by the separation of the principles of morality based on nature, that is, customary law, as a centuries-old practice of regulating relations in society. The result is a significant weakening of the principles of natural unity of people in societies of all levels, including the international human community.

EXCEPTIO DOLI Y DELEGACIÓN. UNA APROXIMACIÓN A SUS PROBLEMAS

The objective of this article is to review the arguments of the Roman lawyers of the 3rd century on the problems of delegatio and exceptio doli. The methodology is based on the analisis of fragments, excluding a textual-based critic. The results of the research show that the Roman lawyers of the last period of the classical jurisprudence preferred to strenghthen the position of the creditor, by limiting the extent of the exceptio doli when used by the debtor.

Legal Relations: Оccurrence and Regulation

Introduction. This article continues the discussion regarding “actual” legal relations and the regulators of “actual” legal relations. Theoretical Basis. Methods. Scientific knowledge for this article has been established using wellknown researches of the subject made by Russian and foreign authors, and criticisms of outdated provisions based on positivism. The author’s argument is supported by references to the works of not only legal scholars, but also representatives of other sciences (N. Wiener, N. I. Zhukov, L. A. Petrushenko, etc.) The study was conducted from the perspective of an integrative legal understanding. The methodology of general scientific character (formal logic, theory of systems, philosophy) was used, which allowed strengthened conclusions about the nature of “actual” legal relations, both their origin and their development. The use of private scientific methods (formal legal, comparative legal, analysis of national legal acts) allowed determination of the essence of “actual” legal relations, to differentiate legal relations and social. social relations, etc. Results. Two conclusions were reached. Firstly: “actual” legal relations are the objective legal reality, namely existing legal relations, settled first of all by the principles and norms of law contained in a single, developing and multilevel system of forms of national and (or) international law, realised in the state. Secondly: “actual” legal relations – namely the essence of objective legal reality; The regulators of “actual” legal relations are the forms of their expression. Discussion and Conclusion. The regulators of “actual legal relations” are developed as a result of the development of “actual” legal relations, called by Roman lawyers juris vinculum (legal relations related to objective law).

Поликультурность как основа формирования правосознания античности

The relevance of the study of the formation of legal consciousness in the ancient period lies in the lack of study of this phenomenon from the point of view of multiculturalism in the process of the formation of ancient legal consciousness. The ancient world of antiquity developed in conditions of multiculturalism, yet researchers hardly pay any attention to this side of the development of society. Ancient legal consciousness had a difficult and long process of development, and the problem of its formation is still debatable. The subject of the study is the process of influence of multiculturalism on the formation of legal consciousness in the ancient period, which had passed a long and difficult period of formation, development and design. The article uses the category ‘social representation’, which is used in the analysis of social legal preferences from the point of view of moral values. Law, as a specific social and legal phenomenon closely connected with other forms of regulatory and cultural social systems of various ancient states, was a leading factor in the process of the formation of legal consciousness in the Ancient World. The peoples of the ancient world actively interacted with each other and replenished their legal culture by borrowing the best legal patterns in the process of mutual cultural exchange. Roman lawyers assimilated the best achievements of the law of other peoples, and they were among the first to actively apply the multicultural legal models of other peoples in their legal practice. The ideas of ancient society concerning law differed from our modern understanding. They were based on cosmic harmony, justice, duty and morality. These ancient legal patterns are entrenched in stereotypes of the mentality of society, cultural patterns of antiquity, and with their help the process of forming a legal consciousness through the acculturation of legal consciousness takes place. Philosophical ideas about the law of Ancient Greece go back to mythology, however, it was these mythological ideas about divine justice, duty, morality in the process of cultural exchange, multiculturalism that became the basis for Western legal consciousness, the origins of which lie in Ancient Greece and Rome. The study was carried out using the culturological method in the analysis of the concept of multiculturalism of the formation of ancient legal consciousness. The historical method, analysis and synthesis, abstraction, concretization and generalization were also used.

Nephews as Subjects of Inheritance: Theoretical and Practical Aspects

The article is focused on the problems of legal succession by a special category of lawful heirs – nephews. The analysis of scientific works, the authors of which studied specific features of legal succession, has been carried out. All stages of legal succession in accordance with the Civil Code of Ukraine have been listed. The current legislation, court decisions, legal doctrine have been analyzed; and it has been established that inheritance by nephews has problems in practical application.
 The procedure of inheritance by nephews according to the right of representation has been studied taking into account that it currently remains one of the problematic issues in practical application. It has been established that it is the way how the legislator protects the property rights and interests of the latter. The authors have determined that if there are several lawful heirs (nephew, niece), the share of the deceased testator is divided equally between lawful heirs.
 It has been noted that inheritance law as an institution of civil law occupies a leading place in the system of protecting human rights and interests. It is due to the fact that hereditary relations began to be formed and protected by Roman lawyers. Both our state and many foreign states still pay much attention to improving the legislation in the field of inheritance law.
 The authors have noted that the relevance of the above institution is the fact that the subject matter of these legal relations are always property rights and responsibilities, and their protection depends on the proper implementation of the law enforcement function of state authorities. Given that the legal consequences for lawful heirs occur after the death of the testator, the main task of state authorities is to ensure the proper transfer of inheritance to lawful heirs.
 The authors of the paper have focused on the way how to prove the family and other relations of lawful heirs with the testator, because it is an important aspect of inheritance relations, since the correct establishment of family relationship influences the legal transfer of inheritance. It has been established that there are practical and theoretical problems in these legal relations, which are related to the procedure of inheritance transfer to the above-mentioned subjects.

Genesis of the concept of correctional punishment: From antiquity to modern times

The article examines the genesis of the idea of correctional punishment. The authors analyse the concepts and views on the purpose of punishing Plato, Roman lawyers, European humanists, as well as English prison reformers of the XVIII century. The relevance of this topic for domestic legal science is due to the ongoing transformation of approaches to determining the purpose of punishment, the revision of strategies in the field of punishments in foreign penology and the development of correctional policy, taking into account new goals. The era of correctional punishment, admittedly, was the XIX century. The basis of penitentiary discourse during this period was the belief that with the help of a proper prison regime, segregation, humane treatment and spiritual care, it would certainly be possible to correct convicts. Although the ideas of correctional punishment appear in ancient times and acquire their practical implementation in the medieval Christian tradition of European states, the idea of the primacy of English and American prison reformers in the establishment of penitentiary systems prevails in historiography. An unbiased analysis of knowledge systems and the rejection of the methodology of ideological bias allowed proving that the penitentiary systems of the XIX century only developed the models of prison discipline that began in previous periods. In fact, there was a revival of the ancient paternalistic concept of correctional punishment, supplemented by a religious doctrine that provided for the influence not on the body, but on the soul of the offender to repent, correct and, as a result, return to society. At the end of the XVIII century, the secular authorities adopted these disciplinary models. They will be most widely implemented in correctional and penitentiary houses in England during the prison reform of the 70s and 90s and will later become the basis for the formation of penitentiary systems that will be implemented in practice in most countries of the world during the XIX-early XX centuries

I. Neue Überlegungen zu Rechtsquellender Provinz Noricum:Eine rechtshistorische Perspektive auf die Gesetzesfragmente aus Lauriacum

Abstract A legal historian’s perspective on fragmentary inscriptions from Lauriacum. The fragments 4 and 18 from the small corpus of Roman legal inscriptions found at Lauriacum (Lorch/Upper Austria) contain a fragmentary text of eight lines. The terminology used in the inscription is that of a municipal law, and so the first commentators tried to identify the whole inscription as an extract from the Lex Flavia municipalis, although both fragments do not show a literal accordance to a rubric of this lex. As it will be seen, the fragments on the one hand concern the iurisdictio of municipal magistrates. On the other hand, the words usus captio, which can be read in line 7 of the tablet, have provoked a broad discussion among legal historians, who tried to explain, why the usucapio, an institution of the ius civile, could have been mentioned in this provincial context. In the last 40 years the Lex Lauriacensis has not been in the focus of Roman lawyers, and it has never been subject of a detailed commentary. Because of that, the text of the inscription and its possible additions shall be reconsidered and commentated in the following interdisciplinary study.

ROMAN IUSTITIA NATURALIS AND MODERN POSITIVIST JUSTICE

The modern definition of “justice” is too narrow compared with the famous Roman classical notion of iustitia (synonym for justness), presented as the constant will “granting everyone his”. Ancient thinkers coupled the concept of justice with natural law, which, unfortunately, modern legal theory has almost lost. The study notes that the “justice” concept appeared in Ancient Greece during the VI – II centuries BC in the philosophy of Pythagoras, Plato, Aristotle, and the Stoics. Plato already contrasted such an understanding of justice as the will to “give each his own” with the will based on the power of the strong. In the first century BC, Cicero stated that justice is emerging from natural law, based not on fear and strength but on the natural principles of love, friend-ship, trust and consent that unite people. Since these principles do not apply equally at diverse levels (in the family, between friends, between trade partners, between fellow citizens, between foreigners, etc.), these principles do not operate in the same way, then the main task of justice is honestly (honeste) allocate to each his own. The Roman lawyer and philosopher argues that human laws that reject iustitia naturalis lead to lawlessness and the collapse of society. Object-ing to Carneades, who argued that natural justice is stupidity, and real civil justice is based on protecting the benefit, utility (utilitas) of the strongest, Cicero argues that without mutual love, trust and friendship, the general benefit of society as a whole, based on the fundamental concept of honesty (honestum), suffers. The Roman classical jurists and Justinian compilers adopt-ed these principles in the famous definition of iustitia. Unfortunately, modern positivism, in its extreme manifestation of “pure law”, has abandoned the ideas of “natural justice”, separating the principles of morality based on nature, that is, customary law, as a centuries-old practice of regulating relations in society, has significantly weakened the principles of natural unity of people in societies of all levels, including the international human community.

Breaking News from Nazi Times: Some Roman Lawyers Whitewashed!

Breaking News from Nazi Times: Some Roman Lawyers Whitewashed!

Retrospective approach to the recovery of pure economic loss

Roman lawyers did not develop general principles of compensation for harm but rather solved practical problems drawing on specifi c cases. Nevertheless, already in Roman law, there were examples of compensation of damages of this kind. In the Middle Ages, glossators and postglossators, commenting on Roman texts, also paid attention to the analysis of similar cases. Pure economic loss became a scientifi c discussion subject as an independent category at the end of the 19th century. Based on the study, the author gathers the historical inclination of two concepts of compensation: liberal and pragmatic. Following the approach developed in France under the principle of general tort liability (responsabilité civile délictuelle), there are no restrictions on the range of damages to be compensated. The German approach is rather conservative.