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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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tom 64

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nr 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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tom 64

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

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Święcicka P.

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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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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.

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tom 5

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nr 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.

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tom 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.