Search

Copyright of Religion & Tolerance / Religija & Tolerancija is the property of Center for the Empirical Researches of Religion and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Nasleđe is the property of University of Kragujevac, Faculty of Philology & Arts and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Srpska Pravna Misao is the property of University Banja Luka, Faculty of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

One of the most intriguing challenges for Roman jurisprudence was to delineate the boundaries of liability for the risk of damage connected to a lease contract. Three Roman jurists of different periods, in classical law, conflictingly opined on possible solutions related to the allocation of the risk of damage occurring on an agricultural property due to a vis maior event. While Servius advocated for the risk to be borne by the owner i.e. lessor, Ulpianus and Gaius argued that the risk should be divided between the parties to a contract, whilst the division of the risk was to be calculated in accordance with a certain prescribed criterion. Nonetheless, it appears that an agreement as to the principle of the division to be applied differed. On one hand, Gaius claimed that the lessee should bear the damages in so far as it is of "tolerable" scope, while on the other, Ulpianus perceived that only damages arising out of the leased property should fall on the tenant, regardless of its scope. This paper - through linguistic, historical and systematic interpretation of fragments D.19.2.9.2, D.19.2.15.2, D.19.2.15.5, D.19.2.25.6 and D.19.2.49.pr - attempts to explain the reasons behind this controversy, as well as possible reasons which motivated jurists to offer such diverging solutions. [ABSTRACT FROM AUTHOR]

In Rome, legal status of woman and her factual possibilities of impact on public life were in serious discrepancy. General attitude of the legal status of woman in time of Romans is best shown by Papinian, „In many provisions of our law, the position of woman is worse than of man (D.9.1.5.)“. Every free Roman woman was considered a subject of law, according to classical Roman law. Nevertheless, there were extensive legislations that limited her legal and business capacity. Naturally, woman did not have legal personality in all periods of Roman state and her legal status was adjusted to the factual changes that had occurred in Roman society. What makes her position specific in Rome is progressive social role that did not exist in Greek-Asian world. From these previously mentioned views, which were confronting, it is possible to draw some doubts. Was woman really on the margins of political happenings, or was she an actual actor, even initiator, of some political events? [ABSTRACT FROM AUTHOR]

Julian ,,the Apostate" was Roman Emperor from 361 to 363 and a noted philosopher and Greek writer. A member of the Constantinian dynasty (his father Julius Constantius, was Constantine's brother), Julian was a man of unusually complex character: he was the military commander, the theosophist, the social reformer and the man of letter. He was the last non-Christian ruler of the Roman Empire and it was his desire to bring the Empire back to its ancient Roman values in order to save it from dissolution. He purged the top-heavy state bureaucracy and attempted to revive traditional Roman religious practices at the cost of Christianity. His rejection of Christianity in favour of Neoplatonic paganism caused him to be called Julian the Apostate (Greek Άποστάτηϛ or Παρααβάτηϛ = ,,Transgressor") by the Church. He was the last Emperor of the Constantinian dynasty, the Empire's first Christian dynasty. The substitution of the Roman Republic by Hellenistic oriental monarchy, the process extending through three centuries, found its legal-theoretical justification in the Hellenistic theory of a monarch as a live or spiritualized law (νόμο ϛ εμψυχο ϛ, lex animata). This theory is in contrary to the Roman republican concept of Emperor (princeps, dominus) as a mandatary of Roman people, especially expressed by Emperor Julian in his orations. [ABSTRACT FROM AUTHOR]

In the process of creating the Roman Empire as well as thereafter during the struggle for its existence, the following question emerges: to which extent should be the acceding nations allowed to practice their deeply embedded customary rules? This question is important also nowadays in times of creation of the European Union and its unified legal system. In terms of the use of customs Rome has been changing its attitude depending on important changes in the society. In times of a rise, during the period of Republic, Rome was deciding on whether it will allow or forbid the acceding nations to continue living by their own customs and religious rules. Later, when the roman citizenship has been given to all inhabitants of the Empire by Caracalla's Edict (in the 212. year), a liberal approach has been taken. In the constitution of Alexander Sever, as well as in the fragments of the classical lawyers one can read about the obligation of the judge to take into account the customs. However, when the Empire got into a serious crisis and barbarian people came onto the roman land, a general boundary has been set towards the use of long-lasting customs: these customs could be used, and potentially even have the force of a law, as long as they did not jeopardize the interests of the Empire (utilitas publica). The analyzed rules on the question can the potential future heirs dispose with the future heritage (the goods of a living person -- bonis viventis) in the classical, post-classical and Justinian's law, points onto the fact that the postclassical cutomary rules, that were not in conflict with the interests of the Empire, contributed even to the changes of the rules of the classical roman law. In the taken example, the classical rule according to which the disposal with future heritage is null and void, is modified under the influence of a german custom in a way that, property division and disposal with the divided property by future heirs was allowed, provided the future de cuius gave his consent. However, when adopting this rule the law maker took into account the selfish interests of the Empire as well: the conversion of "dead capital" into a "live capital, from which the heirs could fulfill their fiscal duties. Hence, this custom was accepted not only because it was not not in conflict with the public interests, but because it served its purpose. [ABSTRACT FROM AUTHOR]

The public obligations of the population towards the Roman community were dictated by fides, by honesty based on religious belief common to all nations, that the obligations must be fulfilled. From the ancient times there was also a rule that the public rights and duties of a Roman citizen are dependant on his economic power. This rule was later introduced in provinces, along with a demand that the peregrin who intended to be a member of the city council must have a building in the city and he needed also the persons who would guarantee for the fulfillment of his obligations towards the Empire. The peregrins already heavily burdened by taxation during the period of the Republic and Principate, were obliged to confess under the oath the property and the members of their families. As a guarantee for the payment of public debts the whole present and future property of the tax-payer was charged by pledge, with the priority right in favour of the Roman treasury. In the Late Roman Empire, after when the Roman citizenship was given to the whole population of the Empire (212 AD) and after the introduction of uniform taxation, this practice was applied to its entire territory. From the beginning of the 3rd century because of economic crises, wars, and devastations of barbarian nations, however, the demands of the citizens for exemptions of public charges became a frequent problem. Having in mind that these demands were often unfounded, sometimes even extorted, the emperors have regulated the benefice of remission of fiscal debts by particular laws. Fighting against unjust claims for privileges of landowners (potentiores), corruption and various other frauds concerning fiscal interests of the Empire, on the other hand, the emperors gave remission of delinquent taxes to the population, if the reason for it they find justified. Their decisions relied on the ancient rule, that the public charges depend on the economic power of the citizen, with the argumentation: `In whatever degree any person is of more honored rank or richer, so much the more does he owe a more eager spirit toward his compulsory public services whose performance he knows will be the more profitable to him.` (Nov. Val. 10, 3) [ABSTRACT FROM AUTHOR]

The question of insufficient number of the newly born children is for each population the fundamental and the most important question. Mankind has always been searching for the answer of the problem of insufficient number of the newly born children, because it leads to the reduction of the number of population, as well as the getting older of the population. Bearing the children is a positive component of each society and it leads to the question of marriage and family survival, as well as of the whole society. For the Romans, bearing the children was not a hard decision as it is today, which is avoided because of the many "modern" reasons which were strange to the Romans (unemployment, housing problem, absence of the wish to live with someone, etc.). In the Roman society it was not allowed someone for a long time to deny the duty to get married and to have children (born or adopted). It was explained as the lack of patriotism and godlessness. The Romans saw in descendants the foundation of material and moral lasting of the state. In the period of demographic crisis of the Roman society (because of the constant wars, the rise of colonization, reduction of marriages and other factors), the Roman state didn't allow individuals to decide by themselves if they were going to have children or not, but by legal forms imposed the obligation of legally contracted marriages and bearing legitimate descendants. The personal rights of the individuals were restricted by the law because of the higher goal -- demographic reform. Apart, it wasn't forgotten one right known as „ius liberorum " -- „the right on the basis of children" that allowed persons who had children (born or adopted) to get some rights. That right that appeared in the beginning of Roman history was kept by the emperor August and found it place in his well-known "caducarn laws". Those laws gave some privileges to married women who had children, and to the old bachelors and old maids restricted rights on inheritance according to the will. The emperor August was criticized for his demographic measures because he didn't keep in mind middle class, but only the members of the higher classes. With his measures he wanted to strengthen the aristocracy and the poor citizens couldn't pay the punishment of a million sestercias. While the Romans insisted on bearing children who would be future warriors and the actors of the greater work productivity, in the modern system of the value the essence of the parents has been changed: a child is born in order to fulfill psychological and emotional needs of the parents that can be realized with one or two children. These facts cause that the level of birth of a child doesn't fulfill needs of a simple regeneration of the population and in that way demographic crisis is actual nowadays, as well. [ABSTRACT FROM AUTHOR]

The classification of the form of guilt set forth in Article 30 of the Rome Statute into certain concepts of the criminal law is not easy, as it seems to be at the first glance. The task is even more difficult due to the limited scope of the provision, vague and incomplete provision of Article 30 and position of the interpreter of the Law. The Statute did not finally define the form of the guilt in Article 30 although it should be a general provision, common for the entire Statute. The provision of Article 30 relates only to this Article and the form of guilt may be prescribed in other articles of the Statute as well. There is no obstacle to define the forms of guilt in other articles of the Statute and this has been done in several instances. By doing this, the meaning of different forms of guilt, which have the same or similar title, is being mixed. It should be noted that the only forms of guilt that have content are those stated in Article 30. The content of all the others can only be speculated. Insufficiently regulated and unclearly set legal provision is clearly a product of the common law legal drafting. The comparison with some classical texts of common law criminal code, like the Model Penal Code, unambiguously leads to this conclusion. One of the most significant characteristics of the Model Penal Code that was transmitted to the Statute was a different regulation of the contents of the guilt bearing in mind different elements of the criminal act. If, during the interpreting, the provision is approached from a various angles, different conclusions will be reached. If the provision is approached from a common law angle, one conclusion would be reached; if the provision is approached from a continental law angle, a different conclusion would be reached. This is how it happened that the basic assumption of the work stating that one form of the guilt recognized by Article 30 was a direct intent and the other was indirect intent was denied. It relied on a targeted interpretation of the Statute which stated that after direct intent the next level of the guilt, from the perspective of the gravity, is indirect intent. The first form of the guilt stated in Article 30 is certainly direct intent, but the other one cannot, beyond any doubts, be considered as indirect intent. The opinions that are classifying the later in one or another form of the guilt are not correct. The solution that seems the most valid is the one that takes into consideration the fact that the Statute recognizes criminal acts related to conduct and criminal acts related to a consequence. A various content of the other form of the guilt in Article 30 related to different elements of the criminal acts leaves an open space for different conclusions. In relation to the criminal acts related to the consequence, it is beyond any doubt that the form of the guilt of Article 30 is direct intent. As far as the criminal acts related to conduct are concerned, Article 30 does not contain a clear definition, so both direct and indirect intent are possible. Although Article 30 does not state anything about negligence as a form of guilt necessary for commitment of criminal acts prescribed by the Statute, negligence is present through several doctrines, whereby the command responsibility is the most important among them all. Through the command responsibility negligence can have the same significance in the Rome Statute as intent. Therefore it seems that the creator of the Statute made a mistake by not giving a definition of the negligence in Article 30. [ABSTRACT FROM AUTHOR]

The author analyses Roman legal texts in the Digesta, Gaius' and Justinian's Institutes in order to determine whether Roman legal science was familiar with the terms causa negotii, causa obligationis and causa of performance in contracts, so as to check is it well-founded the opinion of our legal science that Romans did not systematically and theoretically elaborate on the term "causa". The author demonstrated on text examples that Roman jurisprudence of the classical period did have the notions causa negotii, causa obligationis and causa of performance in contracts. With its elaborations jurisprudence determined relations among them that satisfied legal logic. The way in which it understood them did not create any problems in everyday application of law. From that point of view, that was a well-considered approach to the matter of the causa. If we bear in mind that classical jurisprudence analyzed thoroughly the notion causa adquirendi, within which the best quality discussion developed on the terms of iusta causa traditionis and iusta causa usucapionis (the author did not get into the issue of that), then one could say that Roman jurisprudence elaborated on the issue of the causa in a systematic and integrated ways, according its casuistic approach to the law. The matter of the causa was elaborated on in the way that was demanded by the circumstances in which jurisprudence functioned, appropriate to its doctrine that law was just a skill to find a good and just solution in cases that appeared in practice. [ABSTRACT FROM AUTHOR]

The substitution of the Roman republic by Hellenistic oriental monarchy, the process extending through three centuries, found its legal-theorethical justification in the Hellenistic theory of a monarch as a live or spritualized law (νόμον ε<ψυχοϕ, lex animata). This theory is in contrary to the Roman republican concept of emperor (princeps, dominus) as a mandatary of Roman people. This idea was especially expressed by Themistios, great pagan orator and philosopher from IV century, in his several orations. [ABSTRACT FROM AUTHOR]