Paulina Święcicka

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.

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. 241

In 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”.

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.