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Uwagi o metodzie badań historycznoprawnych. W związku z rozprawą Jerzego Kolarzowskiego, Idea praw jednostki w pismach Braci Polskich. U narodzin nowożytnej koncepcji praw człowieka, 2009, ss. 241

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Święcicka P.

Czasopismo Prawno-Historyczne

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2012

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vol. 64

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issue 1

223-240

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Prawo rzymskie w okresie Renesansu i Baroku. Humanistyczny wymiar europejskiej kultury prawnej

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Święcicka P.

Czasopismo Prawno-Historyczne

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2012

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vol. 64

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issue 1

9-37

EN

The history and formation of the European legal culture that had been developing and taking shape since the Middle Ages when universalism manifested itself as ius commune and seemed to be a satisfactory solution, has been marked with the appearance of a trend called ‘legal humanism’ which developed in response to the humanistic Renaissance postulates. While humanism itself pertained to arts and science of the Renaissance period, legal humanism that emerged centuries later, challenged the medieval interpretation of Justinian texts and postulated the rejection of the mos italicus methods described as praemitto, scindo, summo casumque figuro – praelego, casus, commodo, obiicio (Math. Grib. De meth, 3.94-98). The supporters of the new humanistic jurisprudence advocated recognition of Roman law as an element of the research into the Antiquity. As a result, ancient texts underwent a certain ‘purification’ and were subsequently used for the teaching of Roman law based on subsequent „Glosses and Commentaries”. Critical reviews of the fundamental sources of law as well as the first translations of till then unknown Greek texts were also attempted. That all was possible because the jurists of that new era had a much more comprehensible education and linguistic skills and were able to read texts in Greek and finally break away with the medieval impasse Graeca sunt, non leguntur, going beyond the „judicial Bible” of the compilation of Justinian texts only, searching for new and often multi-aspect meanings and a true understanding of the Ancient World. This new approach to Roman law had also changed the attitude to legal studies which ceased to be seen as merely updating the existing laws i.e. serving the practice. Roman law was finally recognised as a historic phenomenon, a product of its times that evolved together with the changing world, and the study of Roman law became an aim and objective of its own. Such an approach quickly found followers in all Western Europe and replaced the exegetic commentaries with a new form – a treaty that compared the theory of law with the existing laws on the basis of its historic context. An author of a legal academic paper was no longer a mere executor and commentator of ius scriptum, but, being a jurist of humanistic views, transformed into a searcher of pure law, an expert of both the Antiquity and the contemporary World. As François Baudouin put it: sine historia caeca est iurisprudentia (De Institutione historiae universae, I, 609).

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Communis Opinio Doctorum comme ius commune universale? Réflections autour de l’idée de la culture juridique commune dans l’Europe médiévale et moderne

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Święcicka P.

Krakowskie Studia z Historii Państwa i Prawa

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2010

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vol. 3

PL

The aim of the study is to present and revise critically one of the well known concepts used to explain the march of Roman law through the history, starting from the Justinian’s Compilation, i.e. the idea of common legal culture as an outcome of the Reception, named by some as “the second life of Roman Law” (P. Vinogradoff), and by some as “the resurrection of Roman Law” (J.A.C. Thomas). It must be emphasize that these attitude does not necessarily mean the negation of the concept of continuity of human history as a whole, emphasized, inter alia, by Franz Wieacker, and in particular – a continuity in legal development. It is only an attempt to show some aspects of the history of Europe as a space and a community, shaped by many traditions including the legal one. This legal tradition is “traditionally” bound up with successive interpretation and reinterpretation of one of the most important legal monuments, Corpus Iuris Civilis, the interpretation done in order to adopt this “source‐book” to the new circumstances, to match local needs, to form new blend of law. There is no denying the fact that this tradition exists, although one should understand it properly, what can be achieved only on the way of critical revision of some old schemas, patterns of thought, even clichés. It is than perfectly well known that one can speak about a renaissance of Roman law after 12th century, when in Bologna a period of so‐called “ﬁrst reception of Roman law” had begun. A direct cause of this process and also its major force was a famous rediscovery of Justinian’s Digest and its scientiﬁc transformation and actualization made by Italian and French jurists during the next centu‐ ries. Elaborated in such way, the so‐called “learned law” became a second ius commune of late‐medi‐ eval Europe. Nevertheless, all this does not mean that the whole Western Europe adopted a particular homogenous body of law, as far as many local and regional variations of customary law existed and were continuously applied and evoked in the courts, as well as used in daily practice. What is more, very soon, by way of humanistic and naturalistic negative attitude and criticism, a weakness of the communis opinio doctorum, understood after all as a legal system (sic!), and supposed to grant a cer‐ tainty of law, was exposed and questioned as being unsuitable for the demands of national countries and societies. As it was proved by Douglas J. Osler, one can observe such particular disintegration also in the, so‐called, “common world of teaching,” regarded as universal and homogeneous, which started with the coming of new religious and national trends, as well as with the beginning of the particular history of each country. So than, it seems that a broad examination from different perspective, not only legal, but also political or social one, that is a research taking into account different aspects of human culture, can show a partial inadequacy of the paraphrase of well known dictum: Europa Medioevalis et Moderna vivit lege Romana, because this Europe saw meetings, adoption but also rejection of particular elements fashioned by different social groups.

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Libertas Scribendi – Libertas Philosophandi. Some Remarks On The Method Of Research In The Field Of Legal History In Relation To A Book By Jerzy Kolarzowski "Idea praw jednostki w pismach Braci Polskich. U narodzin nowożytnej noncepcji praw człowieka

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Święcicka P.

Krakowskie Studia z Historii Państwa i Prawa

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2012

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vol. 5

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issue 1

PL

Libertas Scribendi – Libertas Philosophandi. Some Remarks On The Method Of Research In The Field Of Legal History In Relation To A Book By Jerzy Kolarzowski "Idea praw jednostki w pismach Braci Polskich. U narodzin nowożytnej noncepcji praw człowieka" ["The Idea of Individual Rights in the Writings of the Polish Brethren. Birth of the Concept of Human Rights"]Warsaw University Press, Warsaw 2009, pp. 241In discussion in which there participate almost all intellectuals (including the lawyers) who deal with broadly understood social sciences, the sintagma of human rights has been detectable for centuries. Its understanding however has been and still is ideologically conditioned. The present paper was inspired by Jerzy Kolarzewski’s monograph on Idea praw jednostki w pismach Braci Polskich. U narodzin nowożytniej koncepcji praw człowieka (The idea of rights of an individual as depicted in the papers of Polish Brethren. The genesis of modern concept of human rights) Warszawa 2009. The present contribution, apart from presenting the aforementioned study, tries to make a general reflection on the method of conducting legal history research by those who are engaged in seeking the links of “genetic” characters between the legal history phenomena and the phenomena of contemporary law. In other words the researchers that come into play are those who try to arrive at the moments of “concepts” of contemporary legal concepts, as set in history. These researchers try to juxtapose them upon the “genetic principle”.

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„Lex Aquilia de damno” – problemy z datacją ustawy

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Święcicka P.

Krakowskie Studia z Historii Państwa i Prawa

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2008

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vol. 2

PL

The lex Aquilia de damno was undoubtedly one of the most important statutory enactments on private law in Roman Antiquity. Nevertheless, there is a lot of controversy connected with this lex, starting with the circumstances of its passing and its dating. Scholars in Roman law are quite sure that this law was undoubtedly subsequent to the lex duodecim tabularum, and it was passed by an assembly of the plebs after it had been proposed by tribune Aquilius [Ulp. D.9.2.1.pr.–1]. But the fragments of sources we possess, such as Gai 3.214, 3.218, 4.37; Ulp. D.9.2.27.22, Pomp. D.9.2.39; I.4.3.14–15, lead us inevitably into the field of speculation.The aim of this study is to discuss and revise the propositions of dating the lex Aquilia which have appeared in the doctrine of Roman law since 19th century, such as the year 286 B.C., based mainly on a passage in Theophilus’ paraphrase of Justinian’s Institutiones [the Byzantine sources, Par.4.3.15’ also scholia anon. ad Bas. 60.3.1] and which is accepted by a fairly strong body of opinion. Also the propositions of dating made in accordance to the social, political and economic situation are critically considered; as well as some important findings which were made on the base of stylistic and linguistic arguments. The whole analysis made the author propose a dating of the second rather than the first half of the 3rd century B.C. as the most probable.

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Iurisconsultus et Auditores. Dialektyczna formuła poznania i rozwoju prawa w Rzymie republikańskim

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Święcicka P.

Krakowskie Studia z Historii Państwa i Prawa

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2013

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vol. 6

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issue 3

PL

Iurisconsultus et Auditores. A dialectic formula of knowing and developing law in republican RomeThe aim of the study is to present the origins of law and the way of teaching of law in Republican Rome, which – as a mode of teaching – started with the moment of laicization of law and jurisprudence itself, and which survived in an almost unchanged form until the end of the Principate era. Therefore, one can speak of a tradition, lasting over several centuries, of direct and oral teaching of law, that resembles a paradigm of teaching in Hellenic and Hellenistic philosophical schools, formed the circles of members faithful to a teaching formula consisting in the primacy of dialectical methods, introduced and elaborated by their founders, such as Parmenides, the sophists, Isocrates, Plato, Aristotle, or Zeno of Elea. This paradigm of teaching in the form of the dialogue – a discussion of the teacher with the student, along with the Greek educational paradigm of paide…a, became a model for organizing the lower and higher education in the entire ancient world. In accordance with the mentioned paradigm of the “knowledge transfer,” in Republican Rome the oral model of transfer of legal knowledge, based on the direct contact of the master and the disciple, was adopted, according to which the master – a legal practitioner, in the form of oral communication (docere), and with the help of precise examples of specific decisions concerning legal problems, taught his disciples, called auditores (hearers), who, afterwards, followed, as qualifying jurists, their master’s paths, taking over and expanding the concepts provided by him, or repeatedly rejecting them and formulating their own ones. Such verbal style of “making science,” such a specific dialectics of a master and a disciple, taking the form of telling legal stories and resolving legal cases, listening and questioning, and operated in the formula of a dialogue or discussion, where the word was the axis of the bearing capacity of legal knowledge and legal culture, transformed in subsequent periods into scientific discussion, extremely important for the development of any science. In this way, one can speak of the continuity of certain scientific concepts and methodological relationships between successive representatives of Roman jurisprudence. These representatives began even to form specific law “schools” (scholae/sectae), consisting of, just as Hellenistic philosophical schools did, the master and auditores, which during the late Republic was reflected by the scientific discussion between two greatest jurists of the epoch, Quintus Mucius Scaevola pontifex and Servius Sulpicius Rufus, and then between their students – scholars called auditores Mucii and auditores Servii, and which had its final in the next epoch, in the formation of two scholae – Sabinians and Proculians.

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Suum cuique is our Roman justice (Shakesp. Tit. Andr. 1,1,284) – William Shakespeare, Heiner Müller and Roman fundamenta

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Święcicka P.

Krakowskie Studia z Historii Państwa i Prawa

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2014

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vol. 7

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issue 1

PL

The phrase suum cuique as an incarnation of “justice,” like many other Latin dicta, is deeply enrooted in the mental consciousness of mankind, and it lives its own life as a part of the so-called universal culture. Generally speaking, reference to Roman justice served and still serves as a justification of one’s own actions when such actions cannot defend themselves by their own formal correctness. It is, therefore, recourse to the eternal values, the understanding of which, however, is determined by one’s own experience or by experience of a particular epoch. This is proved by words of the authors mentioned in the title of the study, though separated from each other by several centuries and having different visions of the world, they considered the embodiment of this phenomenon in the phrase suum cuique as the most appropriate for their own narrative and judgmental description of the reality. Shakespeare, although he undoubtedly saw in Roman justice a guarantee of justification of certain actions, referred to this idea without a deeper analysis. Müller, one of the most important German dramatists of the second half of the 20th century, screaming through the voice of Tamora, who demands “Roman justice,” showed that a call for Roman fundamenta as well as for Roman iura et mores almost for the last time stands in the unsolved conflict with one’s own inhumane actions and inflation of all values that mankind has persistently considered as permanent. The article aims to analyse a cultural commentary on the use of the phrase suum cuique – a commentary understood as a way of bringing something that is analysed into the reality current for a commentator. In one dimension, this can be a dramatic comment rather than a simple description of a certain reality. Therefore, such a commentary should not be assigned only to a single commentator-narrator but to many who represent different eras.

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Uwagi o metodzie badań historycznoprawnych. W związku z rozprawą Jerzego Kolarzowskiego, Idea praw jednostki w pismach Braci Polskich. U narodzin nowożytnej koncepcji praw człowieka, 2009, ss. 241

Prawo rzymskie w okresie Renesansu i Baroku. Humanistyczny wymiar europejskiej kultury prawnej

Communis Opinio Doctorum comme ius commune universale? Réflections autour de l’idée de la culture juridique commune dans l’Europe médiévale et moderne

Libertas Scribendi – Libertas Philosophandi. Some Remarks On The Method Of Research In The Field Of Legal History In Relation To A Book By Jerzy Kolarzowski "Idea praw jednostki w pismach Braci Polskich. U narodzin nowożytnej noncepcji praw człowieka

„Lex Aquilia de damno” – problemy z datacją ustawy

Iurisconsultus et Auditores. Dialektyczna formuła poznania i rozwoju prawa w Rzymie republikańskim

Suum cuique is our Roman justice (Shakesp. Tit. Andr. 1,1,284) – William Shakespeare, Heiner Müller and Roman fundamenta