The core values of an industrial society are: Origins and values of industrial civilization
The system of Roman law, not being developed and established at one time, but formed in the course of a long tradition of legal practice and developments of jurisprudence, differs from the branch (or other) division of legal systems of our time. The main qualifying feature of the classification of institutions and the system of Roman law as a whole was the division into public law and private law ( jus publicum - jus privateum ). According to the fundamental definition, “public law is that which considers the state of the Roman state, private law is that which is devoted to the interests of individuals.”
A detailed and complete differentiation of these two areas of law did not develop in Roman legal culture, and the division was conditionally categorical in nature. Thus, the Roman classic lawyer Ulpian, as an explanatory example, noted that “public law is that which is addressed to the position of Rome, to shrines, priests, magistrates... private law relates to the benefit of individuals.” The specification was formed only in the field of human rights protection and sources of law recognized as acceptable for this field. Public law, reflecting the interests of the Roman people, was subject to legal protection on behalf of the Roman people and exclusively with their sanction. Traditionally, therefore, this area included principles and institutions that modern legal culture relates to state, administrative, criminal, financial law, regulation of sacred and cult issues, general principles judicial process (with significant exceptions), and finally, international law. To the area of the Roman private law included such institutions and principles that later began to relate to civil substantive and procedural law, partly to the sphere of criminal law and procedure (since it dealt with the protection of the citizen’s personality from personal attacks). Private law was understood to reflect the interests of the individual and could not be protected apart from the wishes and interests of the individual. Law drew its sources not only from national institutions, but also from the will of private individuals; In the tradition of Roman law, therefore, private agreements in this area were recognized as having the force of general legal provisions.
The relationship between the requirements of public and private law was also conditionally regulated. It was categorically recognized that “public law cannot be changed by private agreements,” but in a strict sense this only meant that issues recognized as subjects of regulation by public law cannot be regulated by agreements of private individuals, and did not at all require that private transactions follow the provisions of the state ( for example, an agreement between two persons on the procedure for the functioning of the judiciary or the form of collecting taxes in the city initially could not have any legal consequences, including for these two persons themselves, being a primitive waste of time and legal skills). At the same time, it was understood that the requirements of public law do not interfere with regulations traditionally considered the sphere of private law, and that public law only creates legal conditions and proper guarantees for the implementation of individually free behavior. The basic tenets of all private law requirements were that “no one is forced to act against his own wishes” and that “whoever exercises his right harms no one.” Accordingly, individual autonomy constituted a recognized limit to the intervention of public law in this area.
The second most important feature of Roman law, especially of the classical period, is the absence of a clear distinction between substantive and procedural law, so familiar to modern legal culture. Moreover: Roman law, mainly private, is immanent claim right; recognition of the actual authority of the subject in relation to a thing, in relation to the commission of some significant legal action in Roman law meant that there were precisely defined and established forms of legal requirements - and that there could be no rights that were not protected and guaranteed. The inseparability of the material content of law and its judicial procedural support was not only the result of a purely historical features the formation and development of Roman law, starting with the order of fixing legal actions in custom or law. This continuity underlay the entire Roman legal culture (perhaps it was another expression of its predominant individualism), in turn leaving an imprint on the content of the institutions and principles of substantive law itself, not allowing them to gain complete independence.
ROMAN PUBLIC AND PRIVATE LAW. CONCEPT AND CHARACTERISTICS
Roman law– the law of ancient Rome, the Roman state of the slaveholding formation.
Law in an objective sense– a set of legal norms, in subjective sense– a right belonging to the subject of law. Roman jurists made no such distinction. They divided the law into 2 parts, the distinction of which was made by contrasting the interests of the state and society with the interests of individuals.
1. Public law(jus publicum) - a set of rules governing issues of a religious nature and governance issues. This is a right that is “ad statum rei Romanae spectat” (relating to the provisions of the Roman state). Public law included shrines, the ministry of priests, the position of magistrates (Ulpian). It included norms defining the legal status of the state and its bodies and regulating their relations with private individuals. Roman public law contained rules about legal proceedings: forms of judicial process, summons to court, proof and evidence, procedural representation; criminal law: about crimes and punishments, about responsibility for crimes; about laws, senatus consultations and long-term custom; about the order of funerals and ceremonies; on the legal capacity and capacity of persons, on the structure of power, on the occupation of public positions. Rules of public law wore commanding character(imperative) and could not be changed. Methods of power and subordination were used. Public law is inextricably linked with responsibilities.
2. Private right(jus privatum) - a set of rules governing issues of property and family relations in Roman society. This is a right that is “ad singulorum utilitatem” (concerns the benefit, the interests of individuals). Private law regulated the relations of individuals among themselves and in institutions related to the production and exchange of things and services. Private law was divided into a complex of property (regarding things) and personal rights (absolute, inalienable).
Roman private law regulated: property and some non-property relations; family relations: the procedure for concluding a marriage, the position of the head of the family, personal non-property and property relations in the family; property relations, rights to other people's things (easements, liens, emphyteusis and super-ficies); obligatory legal relations, i.e. the procedure for concluding and executing contracts, liability for non-fulfillment; inheritance, i.e. the transfer of property to other persons after the death of the testator. For Roman society, the concept of private law did not coincide with the concept of civil law (ius civile), since not all residents of Rome were citizens. The state interfered minimally with private law. The main place was occupied conditionally mandatory, enabling, permissive norms, i.e., dispositive (complementary) norms. Private law could be changed and either applied or not, and was deeply individualistic, leading Heinrich Heine to call it the “bible of egoism.” Private law, as opposed to public law,- really right, with rare exceptions (for example, the obligation to accept an inheritance in the presence of a refusal). Private law is the most formalized and complete part of Roman law.
CONCEPT AND TYPES OF SOURCES OF ROMAN LAW
Sources of Roman law– forms of consolidation and expression of legal norms that have universally binding significance and include methods, forms of formation of legal norms and living conditions of society.
Types of sources of Roman law:
– common law;
- laws;
– plebiscites – acts of a meeting of plebeians without senators. The difference between plebiscites and ordinary laws is that plebiscites were adopted by the people's assembly without prior discussion in the Senate on the initiative of the plebeian tribunes. Law of Hortensius 287 BC e. gave plebiscites the force of laws;
- Senate consultants;
- constitutions of emperors;
– edicts of magistrates;
- lawyers' answers.
The following are the sources of Roman law.
1. Inscriptions on wood, stone, bronze(For example, "Heraclean Table" a bronze plaque on which the law on the municipal structure was stated), on the walls of buildings (for example, inscriptions found during excavations of the city of Pompeii, covered with lava during the eruption of Vesuvius in 79 AD), etc. In modern times (starting from the second half of the 19th century) the inscriptions were published in a special publication Corpus inscriptionum latinarum (Corpus of Latin inscriptions); Historians worked on this publication Mommsen, Dessau, Gübner, Hirschfeld etc. The most important legal inscriptions are given in the 7th edition. (1909) Bruns's book “Sources of Roman Law” (Bruns. Fontes iuris romani).
2. Laws of the XII Tables- a code of laws recognized as the source of all public and private law, captured in the form of multifaceted copper columns exhibited in the Roman Forum. The laws of the XII Tables consisted of sections: on summons to court (Table I), on the execution of claims (Table II), on debt slavery (Table III), on the procedure for mancipation in transactions (Table IV), on wills and family matters (Table V ), on the use of land (Table VI), on theft (Table VII), on personal insult - offense (Table VIII), on criminal penalties (Table IX), on the order of funerals and ceremonies (Table X), on public affairs in city (table XI),
0 failure to request privileges (Table XII). The original and complete text of the Laws of the XII Tables is unknown, but attempts to reconstruct and systematize them are known based on quotations from other Roman legal sources of the classical era.
3. Corpus juris oivilis- codification of Emperor Justinian.
4. Works of Roman jurists especially works of Roman historians: Tita Livia(end of the 1st century BC – beginning of the 1st century AD), Tacita centuries n. e.), Ammianus Marcellina(IV century AD); Roman antiquarians (“grammarians”): Varro(II-
1st century BC e.), Festa(1st century AD); Roman orators(especially Cicero, I century BC e.); Roman writers: Plautai Terence, in the comedies of which there are many indications of the state of law; lyricists and satirists (Catullus, Horace, Juvenal and etc.); philosopher Seneca and etc.
5. Papyri, the study of which is dedicated to a special branch historical science– papyrology. The papyri contain rich material for understanding local peculiarities in the law of individual provinces of the Roman state. There are papyri containing documents of general imperial significance, for example, the papyrus preserved edict of Antoninus Caracalla – Constitutio Antonina 212 AD. e. on the granting of Roman citizenship rights
to provincials.
CODIFICATION OF ROMAN LAW
Reason for the codification of Roman law– to the 3rd century. n. e. a large volume of unsystematized Roman laws, contradictory to each other, accumulated.
The first attempts to codify Roman law were made by private individuals. After the death of Marcus Aurelius Papirius Iustus collected his constitution. In 295 appeared in Berit (Beirut) Gregorian code (Codex Gregorianus), which contained the constitutions of emperors from Adriana(117 AD) to Diocletian(295 AD) in 14 books. It was complemented by Codex Hermogenianus, compiled between 314 and 324 AD e. in 1 book, containing constitutions before Constantine.
At the beginning of the 4th century. Based on the works of Ulpian, a textbook was developed - revised works of Paul “Sentences” in the Digests.
The official codification of Roman law began in the first half of the 5th century. n. e., the result of which was Codex Theodosianus 437, containing in 16 books the constitutions of emperors starting from Constantine. The Code of Theodosius contained property and obligations law (two parts of property law).
IN 527 came to power in Byzantium Justinian. In an effort to create a disciplined bureaucracy, restore order in the courts and give his empire a coherent, unified legal basis, Justinian summoned outstanding jurists to help. As a result, a comprehensive codification of law was implemented on new principles that reflected high level jurisprudence and legal science of Byzantium within the framework of Roman legal culture.
At the beginning of 528, a state commission of 10 specialists was established under the leadership of the famous lawyer Tribonian. In April 529, the commission published a code of imperial constitutions in 12 books, with the publication of which all previous collections and individual acts began to be considered as having no legal force. In 530, a new commission of 16 people (practitioners and people of science) was appointed under the leadership of the same Tribonian.
The commission produced an enormous compilation of excerpts from the works of Roman jurists of about five previous centuries, published in December 533, entitled "Digest"(from Lat. digesta - “collected”), or "Pandect"(from the Greek pandectac - “everything containing”). At the same time, Justinian set the commission the task of highlighting the general principles of Roman law - for both educational and ideological-political purposes, which resulted in "Institutions". In 534 it was redesigned and updated Code of Imperial Constitutions, in which this time the law of the Christian era was mainly generalized.
After the publication of the code, Justinian’s legislative activity continued - all the major acts he issued later amounted to "Short stories" systematized after the death of Justinian.
Justinian's Code of 529 was a textbook consisting of 4 parts: Institutes, Digests, Code, Novellas.
With the beginning of the revival of Roman law during the era of its reception, all four elements of the Justinian Code received a general name Corpus iuris civilis; under the same designation they were first published in unity by D. Gotofred and included in historical tradition. All parts of the vault were not preserved in the original, but came to us in later copies of the littera Florentina - in the 6th-7th centuries, the rest - in the 8th-11th centuries.
LEGAL CAPACITY OF INDIVIDUALS. CONCEPT AND CONTENT OF LEGAL CAPACITY
Legal capacity(caput) - the ability to have rights, to be a subject of law, and therefore to receive legal protection from all institutions of the Roman state.
Legal subject – persona
Elements of legal capacity:
– freedom status(status libertatis) - the entire population was divided into free and slaves;
– citizenship status(status civitatis) - the population was divided into Roman citizens and non-citizens;
– status of head of family, surname(status familiae) - were divided into those not subject to anyone (“fathers of the family”) and those subject to control. Legal capacity arose:
– naturally– birth – it is necessary that the child emerges from the mother’s womb; so that the baby comes out alive (regardless of his condition, life expectancy and how he manifests himself - by movement, cry); so that the baby is born to term; the presence of a “human image”;
– artificially, for example, when a slave was freed by a Roman citizen, he became a freedman and acquired legal capacity.
Liberty status and head of household status could be established through private claims litigation; were developed special claims– means of defending or challenging status. Only the status of citizenship could not be established by the court - belonging to Roman citizenship was determined by public legal means and guaranteed by public legal order. The volume was not subject to dispute civil rights faces depending on the age, gender and class characteristics of the subject.
Did not have full legal capacity:
– women (including Roman citizens), regardless of their position in the family, could never claim such status;
– minors in the civil law sense (even if in relation to public law they were full citizens). Degrees of loss of legal capacity:
– capitis deminutio maxima– complete loss of legal capacity associated with loss of citizenship status;
– capitis deminutio media– intermediate restriction of legal capacity (if a citizen left Rome and moved to the province);
– capitis deminutio minima– change in family status (not only a decrease, but also an expansion of legal capacity).
Restriction of legal capacity - derogation of civil honor:
– intestabilitas– applied to a person who was a witness or weigher during a civil transaction, and then refused to confirm the fact of such a transaction or its content. Later she struck down those guilty of writing or distributing libels. It consisted of deprivation of the right to be a witness and to resort to the assistance of witnesses when making civil transactions. With the disappearance of formal transactions, it lost its significance;
– information(dishonor) – entailed deprivation of the right to be a representative in court, a guardian, or elected to public office. Magistrates did not allow persons of dubious reputation to exercise public functions. The censor could remove such a person from the list of senators or from the equestrian centuries. The consul could not allow him to participate in the elections to the magistrate, and the praetor could not allow him to speak in the Senate;
– turpitudo(shame) – entailed a restriction of legal capacity in connection with the occupation of certain professions, for example, the profession of an actor.
GUARDIANESS AND CUSTODY
Guardianship(tutela) - the establishment of legal protection of one person in relation to others who, due to tradition or direct requirements of the law, were recognized as in need of guardianship, or “protective management”.
Forms of guardianship:
– mandatory guardianship householders in relation to all members of their family and all subordinates;
– testamentary guardianship, which was established by the will of the landlord in relation to the heir, if he did not possess the necessary qualities that would make him a person of “his right”;
– instructed guardianship, when a guardian was appointed by decision of an authorized magistrate in relation to persons recognized as needing it due to their legal or social qualities.
Guardianship is a public duty that can be waived only if there are good reasons (for example, performance of public duties, illiteracy, illness, age over 70 years, academic studies, frequent absences on public or government affairs). It was impossible to take on more than three guardianships.
Guardianship was established in relation to:
– minors– until the ward reaches a certain age. Minors: children (infantes) – persons under the age of 7 years; teenagers (infantes raaj ores) – persons aged 7 to 12 years, boys – up to 14 years; boys - up to 25 years old;
– women– constantly and did not depend on reaching any age. At the same time, guardianship was established in relation to both married and unmarried women, but its appointment was carried out in the second case at the personal request of the woman. The guardian had no rights over the woman’s person or over her property, but participated only in the commission of those legal actions that required guarantees and his approval by law. Guardianship(cura) – special kind legal guardianship, established only by decision of the authorities in relation to the insane and insane, as well as wasteful people.
Guardianship was established by decision of a magistrate who examined the mental state and social behavior of the person of interest. In relation to the insane, a decision could be made on their complete incapacity, then the trustee would fully take over the management of affairs and possible lawsuits of the ward, but the presence of “light intervals” could be recognized, then the actions of the ward committed during these intervals had full legal force . In relation to spendthrifts, a decision was made on their limited legal capacity: they could not enter into alienation transactions, enter into personal obligations, and so on, but they retained all rights to acquire property, were responsible for the harm caused by their actions, and others.
The following could not be guardians and trustees: minors, non-citizens, spendthrifts, insane, deaf, dumb, seriously ill, slaves, women, soldiers, clergy, husband against wife, creditors, debtors, etc.
Guardianship or guardianship(excluding guardianship of women) stopped:
– with the disappearance of the conditions for the appointment of guardianship (if the insane person has recovered, if the spendthrift has reformed, if the minor has reached the required age);
– death of a guardian or trustee or reduction of his legal capacity by a court decision.
PERSONAL RELATIONS OF SPOUSES
A valid marriage union presupposed mutual rights and obligations of the spouses. Inside the Roman marriage there was inequality of spouses, which was expressed in the fact that the wife had predominantly mandatory requirements, and the husband was given significant rights in relation to his wife.
Personal relations of spouses according to Roman family law differed depending on the form of marriage:- married cum manu the wife followed the class and civil status of her husband. Her status within the family was subordinate: she was equated, as it were, with a daughter, and her husband acquired the power of a householder over her. The legal personality of the wife was completely absorbed by the legal personality of the husband. The very fate of his wife depended on the husband, in relation to whom he had jus vitae ac necis. The husband could sell her into bondage, slavery, and had the right to impose any punishment on her, including taking her life. Customs obliged the husband not to impose punishment on his wife without listening to the advice of relatives on this issue. The wife could not live alone; she was obliged to follow her husband's place of residence. The husband had the right to force his wife to live in his house, resorting to either violent actions or the help of the authorities. The husband could claim the wife who left the house with the help of the same claim as ensuring the return of property that was in someone else's illegal possession. The demand for the return of the wife could be made even to her parents, since getting married was accompanied by a severance of the woman’s agnatic ties with her blood relatives and the emergence of an agnatic relationship between her and her husband’s family;
- marriage sine manu did not change the legal status of his wife. She remains under her father's authority if she was subject to her father's authority before marriage. If she was a persona sui iuris before marriage, then after marriage she remains a person of her right. Blood ties with her former family were not severed, just as agnatic kinship did not arise between the wife and her husband’s family. The husband did not have any power over his wife: in personal terms, spouses were considered legally equal objects. The husband did not have the right to oblige his wife, who left his home, to return against her will. However, the husband finally resolved a number of issues family life.
Regardless of the form of marriage the wife was obliged to do household work and to maintain the house in a condition consistent with the class status of the family (i.e., failure to comply with these requirements made the reason for divorce valid and entailed punitive consequences for her).
Spouses (including the husband) were obliged to maintain normal relationships in the family, both personal and sexual. The presence of sexual intercourse between partners in marriage was mandatory. Refusal to fulfill marital duties, adultery of a wife (the infidelity of a husband was interpreted restrictively by Roman law - on a par with bigamy) were also considered grounds for demanding the termination of a marriage. The adultery of a wife could be punishable by domestic violence, to which the husband and father of the wife had the right (but only the second had the right to kill the violator of marital principles with complete impunity).
The ideal of a Roman wife: pia – pious and faithful, pudica – bashful, modest, lanifica – wool spinner and domiseda – homebody.
LEGISACTION PROCESS
Legislation process(legis actio) - the first and oldest form of process, which is a claim from the law as opposed to arbitrariness.
Legislation process stages:
– in jure- the sphere of activity of the judicial magistrate (rex, consul, and later praetor). A person who considered his right to be violated, in order to initiate a case in court, had to make a statement about this before the magistrate, who established the permissibility of the claim made by the plaintiff, the content of this claim and the existence of conditions for its validity. The purpose of this stage is whether the claim can be the subject of litigation. The magistrate provided the opportunity to defend a violated subjective right in court (i.e., a claim) not in any case, but only when the claim was consistent with the law and its wording. No claim - no right to judicial protection;
– in judicio. The dispute was resolved by the judge on its merits. Could have started no earlier than 30 days later. This period was established to provide the parties with an opportunity to collect evidence. The parties appeared in court at the appointed time. The trial began with the parties stating the essence of the dispute. They then detailed the basis for their claims. The judge assessed the evidence at his own discretion and announced an oral decision that was not subject to appeal. As a result of proceedings in iure, litis contestatio (termination of the dispute) and bis de eadem re ne sit actio (twice in the same case is inadmissible).
Forms of the legation process:
– legis actio sacramento(the most common) - betting process with collateral in claims for freedom. The verbal duel between the parties took place before the magistrate. The disputed item or some part of it had to be present at the trial. The plaintiff demanded from the defendant a justification for his actions, which the defendant could refuse. After this, the plaintiff offered the defendant to pay bail or paid it himself. If the value of the disputed item exceeded 1000 asses, the amount of the deposit was equal to 500 asses and 50 asses in other cases. The pledge of the losing side went first to the priests, and later to the treasury;
– legis actio per sponsionem praeiudicialem. It was a later change to the legis actio sacramento.
The losing side lost a third of the disputed amount to the winning side. Consisted of an invitation to appear in 30 days to receive notice of the appointment of a judge;
– legis actio per manus iniectionem– an action in rem by laying on of hands. Applied in the presence of a court decision or non-payment of an acknowledged debt. The defendant was brought before the magistrate, and if he did not pay the debt or the vindex (defender) did not intervene, the plaintiff took the defendant away, imposing on him bonds of at least 15 pounds and giving him at least 1 pound of flour per day. Within 60 days, the defendant was taken to the square three times on market days, after which he could be sold or killed;
– legis actio per pignoris capionem– action in rem through seizure of collateral. It was used in transactions related to sacrifice, as well as by soldiers and tax farmers without a magistrate;
– legis actio per judicis postulationem- an action in rem, consisting of a request to the magistrate to appoint
judge. Used when dividing common property.
FORMULAR PROCESS
The formal process replaced the legislation process.
Central location in the formulary process was occupied by writing formula, which the praetor gave to the judge in the form of a directive. On its basis, it was necessary to make a decision in the case. Law-making was carried out by praetors through formulas; recognition of the right to sue meant recognition of the existence of a substantive right.
Main parts of the formula:
– intention (intentio – accusation), where the name of the judge was indicated; the claims were stated; the law on which the plaintiff based his claims was indicated. It began with the words “if it turns out”;
– demonstration (demonstratio), which outlined the composition of the case and its plot. She listed the legal facts that created the plaintiff's right and the defendant's obligation. It began with the word “since”;
– condemnation (condemnatio), in which the judge was given the right to convict or acquit the defendant. When dividing common property, adiudicatio was used - the authority of the judge to replace one state of property rights with another. What was indicated in the condensation was of decisive importance, even if it contradicted the intention. Sometimes a clause was inserted before the condemnation: “if the thing is not restituted by your order.” Failure to comply with this arbitration order entailed unfavorable consequences (determination of the value of the thing by the plaintiff under oath, sometimes quadrupling the amount of condemnation).
Additional parts of the formula:
– prescription (praescriptio)– precedes the main text of the formula (immediately after the name of the judge). It made it possible to start the process depending on the identification of certain circumstances. It was drawn up in the interests of the plaintiff if the contract did not have a name in civil law or the plaintiff wanted to recover part of what the defendant owed and avoid consumption. In the interests of the defendant - if he argued that a more important matter should be considered before this case (for example, if the plaintiff, without proving his rights to the inheritance, vindicated an item from the inheritance mass). It began with the words “let the process count”;
– exception– the defendant’s objection to the claim. It followed the intention if the defendant denied the claim, if he did not object to the claim, but denied his obligation to fulfill the requirements, or if he objected to the claims specified in the intention.
Stages of the formulary process:
– in jure– the plaintiff presented his claims in any form. The praetor, having heard the plaintiff’s statement and the defendant’s objections and recognizing the admissibility of the claim, drew up a written formula, which was legal expression the claim stated by the plaintiff and the defendant’s objections, and sent it to court;
– in judicio- began with the parties presenting the evidence, since the issue posed to the court could now be learned from the formula. The process took place orally with a free assessment of evidence. The sources of evidence were the testimony of witnesses and only controversial facts were subject to proof. The burden of proof of claims was distributed in accordance with the formula: the plaintiff proved the facts with which he substantiated the claim, the defendant - the facts with which he substantiated the objections. The decision was always made in monetary terms. The outcome of the case began to depend entirely on the content of the formula.
EXTRAORDINARY PROCESS
Extraordinary(extra ordinem), or cognitive process(cognitio extra ordinem) - an emergency procedure for considering a legal dispute that arose from direct activities praetor for the implementation of legal protection. Was installed Constitution of 294 as the only form of the process.
The extraordinary process adopted the principles of previous forms of civil procedure: dispositivity And competitiveness.
In the extraordinary process, judicial functions were exercised administrative bodies: in Rome and Constantinople (in connection with the division of the empire into Western and Eastern) - praefectus urbi (chief of the city police), in the provinces - the governor of the province, and in less important matters - municipal magistrates. However, emperors often accepted court cases for their own personal consideration.
The case was considered by these persons outside the formal process. They accepted the statement of claim and, having set a court date, summoned the defendant on their behalf.
Concentrated in the hands of administrative bodies, the extraordinary process was not divided into stages (in jure and in judicio).
The consideration of cases lost its public character and took place in the presence only of the parties and especially honorable persons who had the right to be present. If the plaintiff did not appear for the hearing, the case was terminated; if the defendant failed to appear, the case was considered in absentia.
The extraordinary process took place in writing.
Documents carried greater weight compared to witness statements.
Lawyers participated in the extraordinary trial.
The extraordinary production involved mandatory court fees– to cover office expenses, for pre-trial preparation of the case, etc.
The official made a decision on the case in writing. It immediately entered into legal force and was recognized as truth (in relation to the parties to this process).
In contrast to the process classical period in an extraordinary trial it was admitted for the first time appeal the decision made to the next higher authority. Complaints could be made against the decision of the praefectus urbi to the emperor, against the decision of the provincial ruler - to the praefectus praetorio (chief of the imperial guard), and against his decisions - to the emperor. Refusal to appeal (from Justinian no more than two) entailed doubling the amount awarded.
The court decision in an extraordinary process was carried out by the authorities state power at the request of the plaintiff. If the defendant was sentenced to hand over a certain thing, it was taken away by the specified authorities forcibly (manu militari), if within two months the defendant did not hand it over voluntarily.
If a sum of money was awarded, bailiffs took from the defendant the corresponding amount or some thing that was sold to satisfy the plaintiff’s claim. Foreclosure of all the debtor's property took place only if claims were made by several creditors of the insolvent debtor, and he did not voluntarily transfer the property to satisfy them.
The rule of the republican process on the final repayment of a claim once brought (even if there was no decision on it) was not applied in the extraordinary process.
CONCEPT AND CONTENT OF PROPERTY RIGHT. TYPES OF PROPERTY
Own in Roman law - the legal dominance of a person over a thing. Elements of ownership:
– dominium– the right to the lawful rightful dominion of a person over a bodily object;
– proprietas- a right belonging to the owner, the right to belong to a given person and not to another person.
Contents of ownership:
– ownership(ius possidendi) – conditional or material possession of a thing by a person, starting from the ability to hold in one’s hands to the right to declare that the thing belongs to you in front of other persons, at any time to demand the guarantee of this material possession;
– right of use(ius utendi) - the use of a thing for one’s own material or spiritual needs, the use of both the thing itself and the fruits it brings, income, use - both directly personal and through other persons;
– right of disposal(ius abutendi) - the ability to dispose of a thing at one’s discretion, up to its complete destruction in physical sense or legal (by transferring the thing to a third party).
Types of ownership: 1) from the subject of law:
– individual– the owner was an individual with the appropriate legal status;
– public- was the owner entity– public law corporation or state treasury (which was in a special position);
– general(condominium) - one and the same thing was the subject of domination by several equal persons;
2) from the object of right:
– public (collective)– extended to things that could not, by their nature and social purpose, be objects of individual possession;
– private, when things by their nature were recognized as possible for individual possession;
3) from origin and degree of possession:
– Quiritian- the oldest type of property. The subject could only be a Roman citizen. Could have been acquired through mancipation or an imaginary legal dispute. The object could only be things capable of participating in circulation;
– praetorian (bonitary). It arose when manipulated things were alienated without mancipation obligatory in this case. According to the law, it turned out that, despite the transfer of the thing and the payment by the acquirer of its price, the thing remained the property of the alienator. In some cases, the alienator, despite the fact that he sold the thing to the acquirer, filed a vindication claim for the return of the thing, citing that the transfer of the thing was made illegally. In these cases, the praetor included in the claim formula an exception that the thing should be awarded to the plaintiff only on the condition that he did not sell it to the defendant. The acquirer became the owner of the thing, the thing was firmly attached to his property (in bonus);
– provincial- extended to provincial lands that belonged to the Roman people by right of common ownership by right of conquest. One part of the provincial lands was state property, the other was provided to the previous owners. Payments were collected from this property in favor of the state; their circulation was regulated not by civil law, but by the law of peoples;
– Peregrinskaya- property belonging to the Peregrines. She received protection in the edicts of the Peregrine praetors.
PROTECTION OF PROPERTY RIGHTS
Let's consider subject of Roman law, and also identify the features of public and private Roman law.
The rules of Roman private law regulated extensive system of social relations between individuals. These include:
Complex of personal rights;
Legal status of subjects in property relations;
Marriage and family relations;
Relations, the subject of which is related to property and other rights to things;
List of issues that arise in connection with the inheritance of property of deceased and other persons;
Obligations of subjects, which are formed from various grounds (contracts, offenses, similarity of contracts and offenses);
Issues of protection of private rights.
Roman law includes public law and private law. Subject of public law regulates the state of the Roman state, and subject of private law is the regulation of the property benefits of individual citizens.
Public law(ius pudlicum) reflects and protects the interests of the state, regulates relations between the state and private individuals. The rules and regulations of public law are binding and cannot be changed by individuals.
Private right(ius privatum) reflects and protects the interests of individual private individuals. The rules and regulations of private law may change as a result of agreements between individuals.
Private law included rules that regulated relations between both individuals and legal entities.
Private law consisted of authorizing And dispositive norms, as it was an area in which government intervention was limited. It allowed individuals to act independently.
Enabling norms allowed individuals to refuse the behavior specified in the law and independently decide how to act in specific circumstances. For example, the subject was given the opportunity to decide whether to defend his violated property right or refuse it; to sue or not to sue.
Dispositive (conditionally mandatory) norms worked in situations where a person did not take advantage of the right granted to him. For example, if the deceased did not draw up a will, then the state eliminated this gap. With the help of a dispositive norm, it established to whom and how the property of the deceased is transferred (inheritance by law).
IN modern conditions term "private law" used in some states, especially where there is a distinction between the subjects of regulation of civil and commercial law. In these countries (for example, France, Germany), private law consists of civil law and commercial law.
Civil law includes rules that regulate property legal relations of autonomous subjects of turnover that are not related to trade, as well as family legal relations and some personal rights.
Commercial law includes rules that regulate special relationships between merchants and trade transactions. In states that did not have trade law, relations in this area were regulated by civil law.
Roman law did not include the term " civil law" ("ius civile") in the above sense.
This term had several meanings, in particular it meant:
Ancient law of Roman citizens ( civil law), and in this sense “civil law” was opposed to praetor law;
The entire set of legal norms in force in a certain state (civitas) and reflected in the laws of that state. In this sense civil law was opposed to " law of peoples"(ius gentium) and natural law(ius naturale).
The concept of Roman law. The relationship between private and public law.
Roman rights o is a system of law that has developed in Ancient Rome and became the basis for the legal systems of most modern European states. It became most widespread during the era of the Principate (the first 3 centuries AD). There were 2 branches of law: Public and private law.
1.Public law– the law regulating power relations, relations between the state and private individuals. Rules that directly protect the interests of the state and determine the legal status of the state and its bodies. They were binding in all cases and could not be changed by agreement of the parties to the obligation (private individuals).
2.Private law– these are rules of law that protect the interests of an individual and his relationships with other persons.
Those. Compared to public law, private law is more developed and adapted to the finest detail to regulate relations arising from the forms of lawmaking and trade turnover.
The state of emergency was more developed and had a powerful influence on all further development of legislation and legal doctrines of a society based on private property.
The distinction between public and private law is the main division of national legal systems of our time.
The subject of regulation of private law is the following relations:
1. Family relationships;
2. Property relations;
3. Obligatory relations;
4. Relations by inheritance.
The peculiarity of RChP is that it provided a certain scope for the autonomy of individuals, i.e. a person is free to defend or not to defend his property, is free to sue or not to sue, the content of the contract is determined by agreement of the parties, and the contract will be defended by state authorities only if a claim is filed by a person who has suffered from non-fulfillment of this contract.
The meaning of Roman law. Reception of Roman law.
For modern legal education is enormous, it is also studied in countries whose legislation does not contain the basic principles of Roman law, an excellent school of legal thinking. This is a school in which the accuracy of legal formulations, the elasticity of concepts and principles, the ability of these principles to meet the needs of life, a flexible system of norms, and the basic provisions of Roman legal institutions are not of a narrowly national character. These are provisions that are supranational in nature, international significance, all modern literature is based on Roman law.
Reception of the RP since the 12th century there has been a reception of the RP in most countries of Western Europe. A developing economy required a developed legal superstructure, but one that stimulated the progress of production forces and industrial relations. In terms of its content, the RChP met the needs. A significant role in this was played by the abstractness of the RP and its adaptability to regulating the economic turnover of various peoples. Reception is the perception of its provisions by the legal systems of other states of a later period. Reception expresses continuity in law. It was in Rome that the concepts and provisions of law were first formed.
RFI systems.
Roman legal system- This is a certain order of grouping legal norms of private Roman law.
In theory, there are two systems for grouping legal norms:
1)Pandectnaya the system includes one general and four special sections: property law; law of obligations; family law; inheritance law.
This system was typical for German private law.
The Roman emergency was built according to 2) institutional system. The institutional system does not have a general part, and special sections are divided into the following groups: subjects of law; property right; law of obligations; inheritance law.
The institutional system is inferior to the pandect system both in terms of legal technique (perfection) and in essence. The Roman private law system has constantly developed and improved and, as such, remains a valuable source for study and use.
Means of praetor's protection.
Factual situations not provided for by law and, therefore, having no remedy, were resolved by the administrative power of the praetor at the request of one of the parties. This method of protection was an order from a holder of supreme power relating to a specific person, either in the form of behavior or in the form of a prohibition.
Through interdicts various actual relationships were resolved: neighborly, tenant and landlord, loss or violation of possession, etc. The person in respect of whom the interdict was issued was obliged to immediately obey it. This is the effect of the interdict. In case of non-compliance with the interdict, the praetor applied sanctions, such as a fine.
The interdict, issued without preliminary investigation, became a conditional order, which, if challenged or not executed, led to the emergence of special administrative proceedings. When challenging an interdict, the praetor appointed an arbitrator who either confirmed the interdict (then it acquired the force of an unconditional order) or did not confirm it (thereby the defendant was released from its execution). If the latter did not ask the praetor to appoint an arbitrator, but also did not execute the interdict, then the dispute about the factual relationship was considered in a different manner. Both parties, if they were wrong, were obliged to pay a fine to the praetor, and the person against whom the interdict was issued was also obliged to compensate for damages.
The next method of protecting the right used by the praetor was: restoration to the previous position (restitution) . Thus, a party that did not agree with a court decision could ask the praetor for restitution, i.e. on the restoration of legal relations that existed before the court decision.
Restitution is possible under the following conditions:
Presence of damage;
Availability of grounds for restitution;
Such grounds were recognized: minority, deception in a transaction, significant mistake, loss of legal capacity, etc.), timely request.
The period for applying for restitution is 1 year. For minors, the period began from the moment they came of age. In other cases, from the moment the damage was caused.
Since restitution returns to the previous position, the party who received the benefit is obliged to return it, for example, the buyer receives back the price paid, the seller receives the goods.
The praetors, in addition to granting claims, protected rights by virtue of their power through direct orders. These included interdicts, restitution, stipulation and transfer of possession.
1) Interdicts are orders from the praetor to perform any actions or refrain from performing them.
2) Restitution - restoration to its original position.
3) Stipulation is a verbal agreement that was concluded between the parties under the compulsion of the praetor.
4) Transfer of possession - an order from the praetor to take possession of any property belonging to another, obligated person.
CONCEPT AND TYPES OF OWNERSHIP
Possession was the actual possession of a thing, provided with legal protection. For the existence of possession two elements were required:
1) actual possession of a thing; 2) the will to possess the thing independently, without recognizing the power of another person over it, or the will to treat the thing as one’s own.
Holding is the actual possession of a thing without the intention of treating it as one’s own.
Practical difference between possession and holding was that the owners protected themselves from illegal encroachment, and the holders through the owner.
Types of ownership.
In Roman law there was legal, illegal and derivative possession.
A. The owner was considered the legal owner.
B. An illegal owner was a person who actually possesses a thing with the intention of treating it as his own, but does not have the right to own the thing. Illegal possession could be of two types: conscientious and dishonest. Bona fide possession was one in which the person (owner) did not know and should not have known that he did not have the right to own the thing. Conscientious the owner could purchase right of ownership of a thing by prescription of its possession. In cases where the owner brought claims against the owner, the scope of claims against the bona fide owner was smaller, than to the unscrupulous.
B. A derivative owner was one who, for special reasons, could not be called an owner in the Roman sense of the word (for example, a derivative owner was considered the person whose property was pledged).
Roman jurists did not give a precise definition of property rights, but developed main powers of the owner:
1) right of ownership; 2) right of use; 3) right of disposal: 4) right to extract fruits, income; 5) right to reclaim a thing from the hands of its owner
All things were divided into two groups: 1) things seized from turnover, and 2) things not withdrawn from circulation.
To the first group included objects of public use (air, water), objects of state property (public land, roads, etc.), objects of religious content (city walls, temples, religious paraphernalia, etc.).
Items not withdrawn from circulation were divided into corporeal and incorporeal, manipulable and non-manipulable.
A. K manipulative things included lands around Rome, buildings, rural easements, slaves, livestock.
B. All other things belonged to the category unmanipulative. Difference between two categories of things was in the method of alienation. Unmancipated things were alienated by simple transfer, while for the alienation of manipulated things required execution special formalities(act of mancipation).
B. In addition to the indicated two groups of things, there were “nobody’s things of human right” - things that at a given time did not belong to anyone, but could be the subject of private property. This property abandoned by the owner, as well as wild animals and birds at large. The one who captured these things became their owner.
Common property.
Common property. The exclusive nature of the law prompted the legal profession to consider it impossible for several persons to have ownership rights to the same thing. However, the contractual practice of partnerships and events that did not depend on the will of future participants, for example, in joint inheritance, created provisions when it was necessary to determine the relationship of persons, each of whom claimed ownership of the thing along with other persons. Mucius Scaevola put forward the idea of ownership of many persons over the same thing in ideal shares(part of the entire indivisible whole). Celsus emphasized that ideal parts are comprehended more by consciousness than physically, and therefore put forward the idea of simultaneous existence of both ownership of the whole thing in indivisibility, and ownership of a certain share of it, belonging to each of the common owners. Common owners had the right to jointly own and use a thing. They also purchased the fruits in perfect parts. If the use of a thing went beyond the usual order, then the consent of everyone was required. To take the necessary measures to preserve the thing, each participant could require the consent of the remaining participants. Each participant could alienate and encumber his share of private property. In the same share he could defend his right against third parties. Relationships between common owners are sourced as relationships between persons who are, as it were, mutually bound by an agreement. Lawyers proclaimed two powers of common owners: the right to prohibit any of the participants from disposing of others and the right of each participant to demand the division of common property. When dividing, the judge was guided by his own discretion, but the thing being divided had to be valued at a fair price. (claim for division of inheritance; claim for drawing boundaries.)
46. Easements: concept, characteristics, types, protection.
Easements are the right to other people's things, which were a form of embodiment of the economic utility of a land plot. Ex: the territory was divided between several heirs, one of them received a plot that did not have direct access to the road. To make up for the missing qualities of the site, there was a need to use the neighboring site in an appropriate manner.
Initially, the right to use someone else's land arose through the conclusion of transactions (eg, lease agreements). This method was not stable; when the owner (landlord or lessor) changed, the contract became invalid, and predial (land) easements appeared, the right to use the neighboring (employee, subordinate) plot, regardless of the change of its owner. The subject of easement law was the land plot itself.
Historically, the first were three road easements. They were formed in such a way that each subsequent easement included the previous one:
The right of passage through someone else's land; - right of passage and passage of livestock; - right of passage, passage and passage.
Among the first was water easement– the right to conduct water from someone else’s land. Over time, other easements arise: later, urban easements. The development of urban construction gives rise to a variety of urban easements: the right to support a building on a neighbor’s wall; drain rainwater into a neighbor's yard; demand that the neighbor does not block the view or light.
Easements had general legal rights. signs, in particular perpetuity And indivisibility- when dividing the servient plot, it did not lose the encumbrance, continuing to serve the owner of the dominant plot as a single whole. arise personal easements. the basis for their occurrence was testamentary refusals. Leaving, for example, a house to the legal heirs, the testator granted the right of lifelong residence in it to his nurse. There are 4 known personal easements:- usufruct– the right to use someone else’s non-consumable thing with the appropriation of its fruits, but with the preservation of the substance of the thing, i.e. its economic purpose. The usufructuary can rent it out and sell the fruits. Consequently, of the 3 possibilities that make up the content of property rights - use, collection of fruits, disposal - the usufructary does not have the opportunity to dispose;
The right to personal use of someone else’s thing, but not fruits (the latter within the limits of one’s own needs); to live in someone else’s house; personal use of another's slave or animal. With the termination of the easement, the encumbrance was removed and ownership was restored in full. The easement was terminated: - if the servitude renounced the corresponding right; upon expiration of the expiration period; when combining the ownership rights to the dominant and servient plots (in personal easements - when combining the ownership rights and lifelong use); a significant change in the substance of the thing that was the object of the personal easement; death of the authorized person or impairment of his legal capacity.
47. Emphyteusis and superficies - the right to use someone else's thing.
The state and urban communities rented out land that was not subject to sale for the construction of houses, as well as for cultivation, for a rent paid annually. The corresponding relations arising between the state and tenants were regulated by public law. Under the influence of praetor's law, the obligatory nature of superficies acquired the meaning of property rights. Superficies was considered as a thing legally separated from the surface and having a separate legal regime, the superficiary could protect his right from third parties and from the owner of the land himself. A similar evolution, also under the influence of praetor’s law, occurred with the lease of land for cultivation: it acquired the nature of a special property right to someone else’s thing, protected both against third parties and against the owner. The right to use land for its cultivation has become long-term (indefinite), rent is stable. hereditary land lease is called emphyteusis. Disputes among Roman lawyers regarding its legal essence (purchase or lease of land) were resolved by Emperor Zeno, who believed that this was a special transaction regulating relations of hereditary lease.
Superficies represents a real, hereditary and alienable right to erect a structure on someone else’s city site and the right to use this site; emphyteusis – real, hereditary and alienable right to use land and fruits, with the right to change the character of the site, but without deterioration.
The content of the rights of both the superficiary and the ephitheuta is much broader than that of the servitude, but still not as complete as that of the owner. The superficiary paid the owner ground rent; in case of non-payment, he could initiate a claim for property; encumbering the site with survivability. When selling a plot, Emphytheus was obliged to notify the owner of the land, the cat could exercise the right of first refusal within 2 months; upon alienation of emphyteusis, the owner had the right to receive two percent of the purchase price; the emphyteutus was obliged to pay rent to the owner, as well as pay state land tax; The eiphytausis terminated if the rent was not paid for 3 years.
Pledge: concept, character, form.
Pledge- this is the right of use and certain conditions disposal of someone else's property.
The purpose of a pledge is to secure the fulfillment of an obligation.
The essence is that the creditor, who pledged the thing, has the right, in the event of failure of the debtor to fulfill his obligation, to dispose of this thing.
Types of pledge in Roman law: fiducia (in ancient times); pignus; mortgage.
Fiducia was that, through mancipation, the debtor alienated the thing into the ownership of the creditor, but with the condition that in the event of fulfillment of the obligation, the creditor would be obliged to return the thing to the ownership of the debtor.
This form of collateral was disadvantageous for the debtor, since the creditor became the owner of the thing, the cat was given to him as collateral, and therefore could dispose of it without the consent of the debtor.
At pignus the thing was not transferred into ownership, but only into the possession of the creditor, therefore, if the debtor fulfilled his obligation, the pledged thing was subject to return.
Mortgage - the most developed and progressive form of pledge in Ancient Rome. With a mortgage, the collateral was not transferred to the creditor either into ownership or possession, and therefore the debtor could freely use the pledged property (eg, land), which allowed the debtor to quickly fulfill his obligation to the creditor.
If the debtor fails to fulfill his obligation, the subject of the mortgage does not become the property of the creditor, but is subject to mandatory sale at auction. If the proceeds were not enough to satisfy the claim of the pledge holder, the creditor could file a liability claim against the debtor for the missing amount.
To establish a pledge, no formalities were required, which did not contribute to the stability of such relations, since, in particular, the new pledgee did not have the opportunity to check the presence or absence of previous pledges for a given item.
Securing obligations.
Securing obligations - actions of the debtor aimed at ensuring the fulfillment of the obligation and establishing guarantees for satisfying the creditor's claims.
Ways to secure obligations:
1) deposit- a sum of money or other value transferred by one party to the other at the time of conclusion of the contract and ensuring the proper fulfillment of the obligation. In the classical era, a deposit was used as confirmation of the conclusion of a contract. The deposit could also have a punitive nature.
2) penalty- the obligation of the debtor to pay a certain amount of money or other value in the event of non-fulfillment or improper fulfillment of the obligation. The penalty was additional and attached to the main obligation. If a penalty was imposed for failure to fulfill the main obligation, the creditor was given the right to demand either fulfillment of the obligation or a penalty.
3) surety- securing an obligation, when a third party stood surety for the debtor and guaranteed the proper fulfillment of the obligation, accepting its responsibility. The guarantee was carried out in the form of a stipulation. Personal guarantees of obligation were established in the form of adpromissio, i.e. additional stipulation of a third party, concluded simultaneously with the establishment of the main obligation.
4) pledge- proprietary security for the creditor's claims, which related to the rights to other people's things. Pledge was made by agreement, when someone agreed that his thing would be bound by a pledge to secure some obligation.
Concept and types of contract.
Agreement-an agreement between two or more persons to establish an obligation.
The contract was originally called contract . The contract was concluded in a strictly established form and only if this was observed was it recognized and protected by Quirite law.
Over time, informal agreements between individuals also began to be considered contracts. Such agreements were called pacts and, unlike contracts, initially did not enjoy legal protection, since they were concluded without following the established procedure. Only at a later time did a number of pacts receive protection.
Any contract expresses the will of two parties, therefore a contract is a bilateral transaction. At the same time, depending on whether the obligation was established on only one side or on both, contracts were divided into unilateral and bilateral.
Example unilateral agreement- This is a loan agreement. The obligations in this agreement lie only with the borrower, since he is obliged to repay the loan amount on time. The lender does not bear any obligations, but only has the right: to receive the amount of the loan issued on time.
The RP distinguished four types (groups) of contracts: verbal contracts; letter contracts; real contracts; consensual contracts .
In addition to the above agreements, over time, new types of agreements began to appear that did not fall under this classification. In this regard, the Romans called these agreements nameless . At the same time, some of the nameless contracts still received a name (for example, an exchange agreement).
“In ancient republican law, formalism manifested itself not only when concluding an agreement, but also when interpreting its provisions in court. According to interpretation, they distinguished between contracts of strict law and contracts based on good conscience. Treaties that allowed only literal interpretation were called strict law contracts. For example, a loan agreement. In this regard, such agreements were called contracts based on good conscience. Gradually, the court began to primarily take into account not the letter of the contract, but its meaning and content.
All later types of contracts - real and consensual- were agreements of good conscience.
1. The content of the obligation is determined by three terms: dare, facere, praestare. Dare means to give, in the sense of transferring ownership, facere-to do, meaning by this both a positive action and abstention from action, non-performing an action; praestare - to provide, the meaning of this term is not understood by everyone in the same way; it is conveyed in the words: to provide personal services, to accept responsibility for another.
2. Conditions and terms. In the content of the contract, it is possible to distinguish individual elements that have different meanings for each given contract. There are clauses and parts in an agreement without which the agreement cannot exist; For example. exist: significant(necessary) parts of the contract, as well as less necessary clauses, and there may also be parts of the contract that are neither necessary nor usual for this contract, and random, included in the contract only if the parties so desire.
Examples of such random elements are conditions and terms.
3. Condition is a clause in a contract by which the legal consequences of the contract are made dependent on the occurrence or non-occurrence in future the event regarding which unknown whether it will come or not.
By introducing a condition into a contract, the parties can make it dependent on the occurrence of the condition emergence legal consequences of this agreement; the parties thus postpone the occurrence of these consequences, and therefore the condition in this case is called suspensive, or suspended.
4. Term similar to conditions in that the inclusion of a term in a contract also makes the legal consequences of the contract dependent on a known event; the difference between a term and a condition is that with a term, the event on which legal consequences are dependent must certainly occur, although it may not be known when it will occur (for example, the death of a person). In general, they distinguished: a) the period at which it is known that it will occur and when exactly (for example, a contract was concluded for a period of two months); b) a period during which it is known that the event will occur, but it is not known when (for example, an agreement on lifelong use).
Purpose and meaning
1.Causa means the immediate purpose for which the contract is made; at the same time, causa is the material basis that led to the conclusion of the contract. When entering into an agreement, a person may have not one goal, but several, for example, when buying a thing, the person intends to use it for a certain period, while he needs the thing for professional needs, and then sell it, etc. But what is important for law is the immediate immediate purpose for which a person enters into an agreement; Thus, when the buyer undertakes to pay the purchase price, his immediate goal is to receive the thing itself. This immediate purpose of the contract is called causa.
2. There are contracts from which it is not clear what reason lies at their basis, and the failure to implement the reason (which in fact is always meant, because no one enters into an obligation without any purpose) does not prevent the onset of the legal consequences of such an agreement. This kind of contracts are, as it were, abstracted from their cause, from their basis, abstracted from it, and therefore in modern theory they are called abstract. An example of an abstract contract is a cession (assignment of a claim).
Contracts related to a specific economic purpose (for example, purchase and sale, rental of property) are called (as opposed to abstract contracts) causal. Failure to achieve causation in a causal contract leads to its invalidity.
The purpose of the agreement is establishing an obligation.
60.Conclusion of an agreement. Representation.
1. The process of concluding a treaty in Rome was different depending on what kind of treaty was being discussed. Thus, the most important verbal contract (stipulation) assumed, as a necessary condition for the validity of the contract, that the initiative should come from the creditor in the form of a question to the debtor:
“Will you promise to pay me so much?”; after the corresponding response from the debtor, the contract was considered concluded. In other contracts, the process of conclusion can begin on the part of the debtor, for example, knowing that Titius needs to place some of his things somewhere for a month, Lucius himself volunteers to take them for storage. One way or another, one of the parties made an offer to conclude an agreement , and the other accepted the offer made to her . If the contract is not consensual, then in addition to the agreement reached by the parties in this way, it was necessary either to fulfill the required form (written contract), or (in the case of real contracts) to transfer the thing constituting the subject of the contract.
2. The agreement is concluded personally by the parties; who did not participate in the establishment of an obligatory connection, the obligation does not apply to him.
As the Roman state expanded and became a Mediterranean trading power, the need for the institution of representation (in the strict sense) in concluding treaties became more pronounced. However, even then, representation with direct effect (i.e. with the emergence of rights and obligations under the representative agreement immediately in the person of the represented one) was not allowed as a general rule, but only as an exception (for example, it was allowed to conclude a loan agreement through a representative)
61. Conditions for the validity of the contract.
1. Like any transaction, a contract presupposes the expression of the will of the persons making it. In this case, the will of both sides must correspond to one another; both wills must agree with each other. The consent of the parties is a necessary condition for the validity of the contract.
The second necessary condition for the validity of the contract is legality contents of the agreement; The contract must not have as its subject an action that violates the rules of law.
3.An agreement that suffers from complete uncertainty of content cannot be valid.
The obligation must have certain content. With all this, obligations are divided, however, into certain And undefined. This difference boils down to the fact that in some cases the content of the obligation is defined with complete clarity and precision in the contract itself). In other cases, the contract provides only a criterion by which the content of the obligation can be established (eg, the thing is sold for the amount at which Titius will value it).
4. The action constituting the subject of the obligation must be possible(no obligation if its subject is impossible). The impossibility of action can be physical (obligation to scoop up water from the sea), legal (sale of a thing withdrawn from circulation), moral (obligation to play the role of a pimp). An obligation with an impossible-to-fulfill object is not valid.
5. It is a different matter if an obligation established with full legal force later became impossible to fulfill. His fate in this case depended on whether the debtor was responsible for the occurrence of a circumstance that led to the impossibility of fulfillment (destruction of the thing, loss, etc.).
If the debtor was responsible for this circumstance, the obligation did not terminate, but was only modified: it turned into an obligation to compensate for losses from non-fulfillment; if the debtor was not responsible for the circumstance that made performance impossible, he was released from the obligation.
6. In the RP, the action constituting the subject of the contract must represent interest for the lender.“Everyone should buy something that interests him.”
Verbal contracts.
Their most important type was spitulation, which acquired reality with the utterance of certain phrases by counterparties. Since the advent of written acts, spipulation has practically begun to be allowed between absentees.
At the same time, the inviolability of the rule about the presence of the parties when making a stipulation was preserved, but if the document contained a corresponding indication, it served as evidence of their presence at the place where the stipulation was drawn up.
Being a unilateral contract, spipulation provides a right only to the creditor and an obligation only to the debtor.
Stipulation – an abstract contract in which the basis is not clearly expressed. The validity of a spipulation does not depend on the basis, but on compliance with the established form.
However, the effect of the stipulation by the parties could be in connection with the achievement of a particular economic goal by including an appropriate condition in it.
Stipulation was the predecessor of the modern bill, so its long-term significance went beyond the historical framework of the Roman state, in which it served various purposes.
The simplicity and abstract nature of stipulation were very convenient for putting into its form a wide variety of obligatory relations, as well as terminating the latter by recognizing a new obligation through stipulation.
The ability to put any content into a stipulation made it the main form of circulation in the classical era.
It was also used to attract third parties to the side of the creditor (adstipulation) and to attach an additional debtor (adpromission), the purpose of which was to establish liability for the debt, along with the debtor, of a third party-guarantor.
In addition to stipulation, certain forms of verbal contract were: a promise to provide a dowry to a man intending to marry, which could come from the bride, her ascendant relatives or debtors, as well as an oath of a freedman to his patron about the fulfillment of the moral duty of devotion and provision arising from it. possible services.
64. Literal contracts.
According to a custom adopted from Greece, Roman families kept business books in which all costs and receipts, income and expenses were recorded. The counterparties' records, of course, had to match, i.e. the arrival of another. Such records did not give rise to obligations, but only evidenced the movement of goods or money in pursuance of concluded contracts. Upon completion of a certain transaction with goods or a certain stage of it, the counterparties summed up the results, and these final records constituted literal contracts that gave rise to corresponding obligations. Literary contracts belonged to civil law and could only be concluded by the Romans. These contracts are abstract, i.e. they are not connected to any basis.
In relations between peregrines, promissory notes were used. They were of 2 types: syngraphs signed by the debtor and creditor, and chirographs signed by one debtor. Both those and other debt documents were the prototype of modern two- and one-sided certified contracts. Over time, chirographs displace the books of expenses and receipts and obtain the value of the sources of the obligation, i.e. the person who signed the receipt was obligated to pay. Chirograph differed from loan, stipulation and loan, because. as a result, his obligation arises without the loan of money: the receipt was given before the loan was received. At the same time, it was possible to challenge the validity of the receipt within a 2-year period, after the expiration of which the debtor was forced to pay by virtue of the document itself. The dispute about the dubiousness of the receipt was considered in connection with the basis of the contract, therefore, during the specified 2-year period, the letter contract seemed to lose its abstract character.
65.Loan agreement and its types.
Loan- one of the oldest. forms of contract law, is preserved as one of the most important. institutes of all households. turnover and subsequently credit. Lending involves transferring things, cat. can be weighed, counted, measured. The meaning of dog. loan - one party transfers the right of ownership to things to the other, and it is necessary. real transfer of things into direct possession and special. agreement on loan terms. First, this agreement is expressed in specific terms. form of stipulation (mutual exchange of celebrations, promises), later in letters. form. The subject of the dog. Not any thing was recognized as a loan, but only a physical thing, in circulation, marked only by generic characteristics.
The loan was considered one
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Part II. FUNDAMENTALS OF ROMAN PUBLIC LAW
Topic 4. Public law in Ancient Rome
The emergence of the state in Ancient Rome. The concept of public law in the Roman state and its main elements. State-legal relations in Ancient Rome.
In the process of considering the topic, systematized knowledge is given about the features of state law in Ancient Rome at various stages of its history, the main state legal institutions are revealed, and its relationship with Roman private law is shown.
The emergence of the state in Ancient Rome.According to the famous Roman legend, Rome was founded Romulus , who built the city, divided the land among its first citizens, provided them with the opportunity for family life, and in a word, gave the newly emerging state the necessary political and social structure. The next king Numa created a religious device.
However, all this is only folk legend, overgrown with various myths.
Modern science(mainly comparative linguistics) has discovered an undeniable kinship between the main peoples of Europe and some of Asia - the peoples that make up the so-called Aryan group 1.
In the total mass of Aryans who poured into Europe, five main groups are distinguished:Greeks, Italics, Celts, Germans, Slavs.
At dawn historical era The Italians settled on the Apennine Peninsula, but are by no means the only inhabitants of the peninsula. On the contrary, they were surrounded by numerous and heterogeneous neighbors. The most important of them are: Ligures in the north-east, Iapyges in the south and Etruscans in North-west. All these tribes penetrated Italy, apparently, before the Italics.
Of the indicated neighbors in the ancient history of Rome highest value had Etruscans . In the most distant era, this people was distinguished by its high culture and developed, unique civil way of life.
Already in ancient times, the Etruscans were organized into a tightly knit " union of 12 nations "(duodecim populi) under the rule of one common king.
Some of the modern novelists suggest a whole period when Rome was under Etruscan domination; There are even those who consider ancient Rome to be one of the Etruscan villages.
Be that as it may, it cannot be denied that the ancient history of the Italics after their settlement on the peninsula was strongly dependent on these neighbors.
The Italians themselves did not represent a single, cohesive mass. They split into many small tribes, of which they form two groups: Latins and Umbro-Sabellas (Umbrians, Sabines, Volscians, etc.). The Latins occupied a more comfortable part of central Italy plain of Latium.
Here, on this plain, they lived in small communities (civitates). Each community had a fortified point arx (arix) , where the population takes refuge in case of an enemy raid and where it is locatedcommunity shrine. Gradually, permanent dwellings are also beginning to be built here; this is how a city arises ( urbs ), which becomes the focus of the entire life of the community (“city-state”).
Each of the Latin communities was completely independent (autonomous) both in its internal and external relations; nevertheless, the commonality of national origin, language and religious beliefs bound them into some unity under a common name nomen Latinum (Latium).
In addition to the pan-Latin religious festivals, the outward expression of this unity wasreciprocity of legal protection("Rechtsgemeinschaft") 2 .
The pan-Latin celebrations that took place on religious occasions also played a significant role.public meetings at whichquestions common to all Latin civitates were discussed, such as protection from common enemies, the founding of pan-Latin colonies, etc.
The decisions made at these meetings, although not legally binding for each individual community, nevertheless had great factual significance and, for the most part, were then put into the form of a resolution.
One of these Latin communities was Rome .k The details of its ancient history cannot now be compiled, because... Roman tradition lacks historical authenticity.
But there is one element in this legend that has some historical basis. According to legend, Romulus divided the original population of Rome into 3 tribes , each of which had a special name - Ramnes, Tities and Luceres.
The first two tribes Ramnes and Tities have an undoubted national imprint: Ramnes are Latins, and Tities Sabines. The Latins and Sabines were originally two completely independent communities that lived on two neighboring hills; they were at enmity with each other for a long time (legend also tells about this enmity with the Sabines), but ended up merging into one single community.
Somewhat later, the third Luceres , the national character of which is unclear (some even think that they were immigrants from Etruria).
In the Latin Union in an earlier era, Rome occupied the position of one of the ordinary communities. Gradually the importance of Rome begins to increase. This was facilitated both by the geographical location of Rome (on the border of Latium with Etruria, in the lower reaches of the Tiber, close to the sea), and by the above-mentioned merger of three neighboring communities into one.
Competition arises between Rome and the dominant community of Alba Longa for hegemony in the union, and the struggle on this basis, according to various legends, ends in the complete victory of Rome.
The oldest historically known social system among all Aryans rests ongeneric principle.
The generic principle is that a clan, that is, a naturally expanded union of families that originated in a more or less distant past from one common ancestor, is independent of any authority, self-sufficient and self-governing (sovereign) whole.
In the process of historical evolution, clans find themselves included in some larger union that stands above them. This is how the primitive arises state , at first still very fragile and weak, but then more and more strengthened and intensified.
As the state organization strengthens and expands, the importance of clans and clan connections gradually weakens and becomes barely noticeable.
Roman tradition tells that the entire Roman society of that time was divided into 3 tribes, 30 curiae and 300 genera (gentes). The number of senators was also 300. Senate was a council of clan elders, its members included representatives of all the indigenous clans of Rome.
The clan retains all its significance as a religious union: the members of the clan gentiles are bound by the unity of the religious cult (sacra gentilicia). In connection with the family carried out moral control of the clan over its members, can issue decisions related to this (decreta gentilicia), impose certain punishments on offending members, up to complete excommunication, etc.
The emerging state, having embraced individual, previously independent clans of its highest organization, weakens the significance of clan ties and decomposes clans into their constituent elements. Such elements are families familiae.
The Roman family of this era is a closed, closely knit circle of persons and property, something almost impenetrable to the state.
The state does not interfere in the internal relations of the family. It deals only with the head of the family, paterfamilias , which represents the entire family to the outside civil world. He is responsible for her, but he enjoys all the rights within her; de jure he is the unlimited ruler here.
Only in political terms are adult family members capable of bearing arms independent: they participate in the national assembly on an equal basis with their householders and, therefore, have all the then known rights of a citizen.
In addition to the considered tribes and clans, in the ancient organization of Roman society a certain role was played by curia (curiae). According to legend, they are some kind of intermediate link between tribes and clans: in each tribe there are 10 curiae (thus 30 in total), in each curia there are 10 clans.
But what is curia and what is its origin is also an open question. Some see in curiae religious unions (prima facie) something like parishes; others alliances of families for better protection, like the Greek phratries, etc.
But the curia was the only division that had political meaning: the most ancient national assemblies were organized and voted (vote oval) by curiae.
Family, clan and curia were thus the main, cornerstones of the Roman social system of the most ancient period. The entire civil and political mechanism is designed only for citizens who are part of one or another of the clans and are enrolled in one or another curia.
Without belonging to one of the clans it was impossible to be a full citizen. Full citizens were called patricians , that is, those, qui patrem ciere possunt, who can indicate their father, their family.
Consequently, the patricians, according to their original idea, are by no means a class of rich people or aristocrats. This name designated only the indigenous and therefore full-fledged inhabitants of Rome.
Next to these full-fledged citizens there were also people with less than full rights. These are clients and plebeians , whose legal status is different.
Client is in personal dependence on some patrician patron. He is part of the latter’s family, is obliged to follow him to war, provide him with material support and respect.
On the other hand, the patron was obliged to protect the client before third parties, because the clientdid not have civil legal capacity. He received legal protection only through his patron.
Plebeians did not belong to any of the patrician families. They werelegally independent, although incomplete.
Plebeians were recognized as independent members of civil society. In the field of civil rights (in property) he was equal to the patrician (has the so-called jus commercia).
Being legally capable in the field of private civil relations, the plebeians had nopolitical rights. Being outside the patrician clan organization, they did not participate in public meetings and therefore remained alien to the political life of the community.
As for the origin of clients and plebeians, the following explanation should be considered the most correct, which in general terms can be called the dominant one 3 . It was basically already given Niebuhr and is shared by such scientists as Becker, Schwegler, Lynch, Madvig, Herzog and others.
Clientele Institute is found among many peoples, and everywhere it owes its origin to that general ancient view, by virtue of which the court and law of each people exist only for the protection of the members of a given society; a foreigner is fundamentally considered an enemy, and therefore a being without rights.
In ancient Rome: every foreigner is also considered an enemy. If one of them finds it necessary to arrive in Rome, much less settle there for a long period of time (for example, fugitives), then he has no choice but to resort to the hospitality and patronage of one of the native and full-fledged Romans (hospitium privatum ).
This explains the indicated personal dependence of the client on the patron, and his belonging to the latter’s family, and the special nature of the relationship between them.
Origin of the Plebeians can also be most accurately guessed based on their legal status. These were also immigrants to Rome, but, obviously, from communities and tribes that enjoyed civil law reciprocity. And such, as we know, were the communities of the Latin Union. The Latins were not considered enemies; Even in Rome, they could acquire property, enter into transactions with citizens and speak on their own behalf in court, and had full jus commercii.
Therefore, the Latin, moving to Rome, had no need for patronage, but, of course, not belonging to any of the clans included in the curiae and tribes, he did not have any political rights. With the growth of Rome, the number of such migrants (sometimes involuntary) increased; they remained to live in Rome from generation to generation, and thus, next to the layer of indigenous Romans and the relatively small class of clients, a layer of new population gradually grew, which came to be called plebs.
As the state became established, legal basis its functioning.
The concept of public law in the Roman state and its main elements.Since ancient times, Rome has distinguished two branches of law: public and private law (jus publicum and jus privatum).
TO public law, according to Ulpian's definition,belong to all those norms that “relate to the position of the Roman state as a whole; on the contrary, private law deals with what concerns "the benefit of individuals"(D. 1.1.2).
Thus, underpublic law are understood norms that directly protect the interests of the state and determine the legal status of the state and its bodies.
Ulpian pointed out that this list is not exhaustive. In a number of cases, “public law” was understood by Roman jurists in the sense. In modern law, such norms are called imperative.
They had binding force and could not be changed at the will of the persons using them (for example, the norms defining the military service of Roman citizens could not be challenged).
At the same time, the majorityprivate law relations regulated authorizing And dispositive norms.
But in in some cases The state also used imperative (compulsory) norms. They obliged private individuals to perform strictly defined actions and did not provide them with any scope for other actions.
An example of such a rule is an order for a guardian to obtain permission from the authorities when alienating the property of a ward.
Finally, public law differed from privateways to protect violated rights.
Public interests in case of their violationprotected by government agencieswithin the framework of administrative or criminal proceedings.
Protection of private interests was carried outat the request of a person whose rights have been violated. The defense itself procedurally took the form of a civil claim and took place within the framework of civil proceedings.
In public law, relationships are built vertically and have a one-choice, non-alternative nature of behavior - to do something or not to do something as prescribed by the authorities.
Private law is characterized by relations horizontally : equality of subjects and whether they have the will to enter into private legal relations or not. The norms here, as a rule, imply a variety of behavior depending on the will of the parties.
The evolution of the political system in Ancient Rome.Main elementsThe most ancient government system of Rome are: king, senate and national assembly.
The king (rex) is supreme ruler of the state.All functions of state power are concentrated in his hands. He is both the supreme commander of the people, and the guardian of internal order, and the representative for the people before the gods.
IN as a commanderhe disposes of the military forces of the people, appoints commanders, etc.
IN as a guardian of internal orderhe has the right of trial and punishment over all citizens (jus coercitionis) up to the right of life and death.
IN as high priest(Pontiff) he was in charge of performing public sacrifices, etc.
Rome is not a monarchy dynastic . Most likely the royal power was elective
After the death of the king, at the time of the interregnum ( interregnum ) supreme power in the state passes to the Senate.
The Senate selects 10 people from among itself ( interreges ), who take turns (5 days each) govern the state until a candidate for king is nominated.
The next interrex proposes the intended candidate to the people's assembly, which invests him with power ( lex curiata de imperio).
To acquire the right to communicate with the gods, the newly elected king also needs special dedication inauguratio (inaguration).
When exercising his power, the king could appoint assistants to himself. There were commanders of individual military units (tribuni militum, tribunus celerum). It is possible that during his absence the king left someone in the city as his deputy (praefectus urbi).
Stands next to the king senate (senatus), which in ancient times consisted of all clan elders, who were thus, as representatives of clans, ex officio members of the Senate.
The role of the Senate in relation to the king is purely deliberative : the Senate discusses, at the proposal of the king, certain issues and its conclusions ( senatusconsulta ) have the fundamental significance of advice, which is not legally binding for the tsar, but which, of course, has enormous actual power.
In relation to the people, the Senate plays the role of guardian. Every new law adopted in the people's assembly also requires the approval of the Senate (the so-called auctoritas patrum , which Mommsen rightly compares with auctoritas tutoris).
The third element of government isnational assembly, that is, a meeting of all adult (capable of bearing arms) full citizens (that is, patricians).
The organization of these popular assemblies is based on the division into curiae, which is why the assembly itself is called comitia curiata , or (by the method of its calling, through heralds) comitia calata.
The People's Assembly was convened on the initiative of the king, who submitted his proposals there.
These proposals were not discussed in the meeting, but were simply accepted or rejected by open oral voting (a simple “yes” or “no”). The majority of votes in a given curia gave the vote of the curia, and the majority of the votes of these latter gave the decision of the popular assembly.
The subjects of public assemblies can hardly be defined with sufficient clarity. A priori, it can be assumed that all new laws that more or less significantly affected the legal system of society needed the sanction of popular assemblies.
In the national assembly, someone is accepted into the patrician membership ( cooptatio in patriciis ), as well as some of the most important acts of private legal life adoption ( arrogatio) and will (testamentum).
Probably, the most important issues of current domestic and foreign policy were also decided at the meetings, for example, the question of declaring war, concluding peace, etc.
But, in general, whether or not to transfer this or that issue to the decision of the national assembly depended entirely on the will of the tsar, for the meeting itself could not take place without his will.
The patriarchal nature of the ancient Roman state system eliminates the idea of any legal (constitutional) rights of popular assemblies in relation to the king.
In fact, of course, the tsar in all the most important cases had to seek support from the people, but legally his personal will, his supreme power ( imperium ) was not connected by anything.
Instead of making his proposals to the comitia, the king could independently command (imperare) what he found necessary, and such a commanding order was as obligatory for citizens as a law, with the only difference being that the law adopted in the people's assembly ( lex ), there is jussus populi, binding forever (until repealed in the same order).
But the personal order of the king is valid only as long as this king is in power, and, therefore, with his death eo ipso ceases to be binding.
Due to the presence of all three described elements, general character The Roman polity of this period seems controversial.
Due to the fact that the Senate and the People's Assembly stand next to the king, the state structure may seem like a constitutional monarchy.
On the other hand, due to the absence of any legal restrictions on royal power, it can be understood as an absolute monarchy.
Finally, taking into account the elective nature of royal power and the comparative fullness of the powers of later republican magistrates, especially dictators and consuls, one can consider ancient Rome to be a republic, only with a dictator for life.
Equally, the internal nature of this structure is controversial: some highlight the military element in royal power (for example, G. de Sanctis), others the religious, theocratic element (for example, Fustel de Coulanges), etc.
All these disputes find an explanation in the fact that the state structure of this period still contains all these elements together and that our current theoretical categories cannot be applied to a system that has not yet emerged.
And if it is desirable to give this system any general definition, then the most correct would be"patriarchal".
The king is the patriarchal ruler of his people and stands to the latter in the same relation as the paterfamilias to his family. Just as all the functions of family power were concentrated in the hands of the paterfamilias, so the authority over the people in all aspects of their existence was concentrated in the hands of the king; as the paterfamilias is not limited by anything except religion and public opinion, so the king is not limited in his governance of the people.
IN republic period(509-27 BC) the central bodies of the state were: People's Assemblies (centuriate and tribute comitia); Senate; Master's degree.
People's Assemblieshad legislative functions and elected senior officials.
The center of all political life in Rome was Senate . It is no coincidence that in official documents the formula was used for the name of the Roman state: “Senate and Roman people”, clearly indicating who holds political power in Rome.
The Senate was permanentauthority in charge treasury, military affairs, external relations etc., controlling activities of People's Assemblies.
Senators were appointed censors from among the richest and most influential persons.
Master's degree was presentedofficialswho performed various management functions.
The most important principles were: election, collegiality, urgency (elected, as a rule, for one year), responsibility to the people, free service.
Higher magistrates there were consuls , who carried out day-to-day management and senior military command.
In the competence of praetors , who were initially assistant consuls, began to enteradministration of justice.
Censors distributed citizens into centuries, compiled lists of senators.
Lower in terms of powers were quaestors, aediles. A special place was occupiedplebeian tribunes, who had the right to impose a ban (“veto”) on the decisions of the magistrates and the Senate.
The exceptional, extraordinary magistracy was the position dictator . He was appointed consuls on behalf of the Senate in cases such as war, uprising, etc.
The dictator had unlimited power, but could not hold this position for more six months.
Gathering of official trade (customs) duties were handled by the publicans (portoriorum condutores) 4. These were private individuals who took property from the state, as well as state revenues, incl. And duties (portona ). They formed a special class within the equestrian class. To accept farm-outs, rich townspeople united in corporations (societies publicanorum) conducted business under the direction manceps a leader who changed annually. In the provinces these functions were performed promasters.
As assistants to the duty (customs) tax collectors, there was a large staff of minor officials made up of unfreeborns.
Farming out took place at the forum under contracts for a certain period. The corporation that received the payoff had to pay the treasury the amount established in the contract, and then collect duties at its own peril and risk.
On the territory of the Roman state in the city of Palmyra (modern Syria), on April 18, 138, the “Law on duties collected on the market of Hadrian-Palmyra at the sources of the waters of Aelius Caesar” was adopted - the Palmyra duty tariff, which contained a detailed list of goods and the amounts of their taxation during import and export, the order of relationships between publicans and payers. It is carved on a large stone. Currently in storage in the Hermitage.
The taxation system prevailed in the provinces, where the publicans received the support of governors.
With this approach, the state saved management costs and avoided complex procedures for collecting revenue.
The crisis of slavery, the conflict between the center and the provinces, the grandiose uprisings of slaves (in Sicily and under the leadership of Spartacus) led to the 1st century. BC. to the fall of the republic in Rome.
Transition from republic to empires took some time. The first person to use the position of dictator to achieve his political goals was the commander Sulla . Appointed in 82 BC dictator, he did not resign after six months.
Becoming a permanent dictator Sulla , relying on the army, for several years had unlimited power, independently resolved all issues of domestic and foreign policy, and mercilessly dealt with the dissatisfied.
In 79 BC. he himself refused the post of dictator. But the republic did not last long. In 59 BC. three generals Caesar, Crassus and Pompey formed a "triumvirate" "and seized power in Rome.
Crassus died in the war against Parthia, rivalry Pompey and Caesar ended in favor last . Caesar and became the sole ruler of Rome, securing positions for himselfpermanent dictator, tribune for life, consul, censor , also awarded the highest priestly position pontiff.
In 44 BC. Caesar was killed. The republic is being restored again. But in 43 BC. a second triumvirate is formed: Octavian, Antony and Lepidus . They take power in Rome for five years for "streamlining the state».
The struggle between the triumvirs ends in favor of Octavian . In 27 BC. The Empire is finally established in Rome.
In the I–III centuries. AD The Roman Empire appears in uniform Principate (from the word “princeps” “first on the list of senators”).
This was the time when the established imperial power was forcedhide behind the screen of republican institutions.
At the same time they acttwo control systems. On the one hand, the Senate met, magistrates were elected consuls, praetors, etc., and parallel power functioned princeps and thenew state apparatus.
Princeps this is a permanent position, actually inherited within the imperial family.
According to his powers, he is: Supreme Commander, Tribune, Consul, Great Pontiff.
He is given the title " August "("exalted by the deity").
The components of the princeps control system are: “ council of friends, consultation which was a permanent body, a special treasury fisk, several offices numerous appointed by the princeps officials.
A number of provinces are transferred to the control of the princeps.
The basis of his power becomesstanding army, and, above all,Praetorian Guard, guarding the princeps. Head of the PraetoriansPrefect of Praetoriumbecame the princeps' confidant.
While the republican government declines, the apparatus of the princeps continually grows and strengthens, and the republican cover soon becomes unnecessary.
In the II-V centuries. AD a new form of government is approved dominant (from the new name of the emperor “dominus” “lord”).
The old republican institutions lose their strength, disappear, the screen is completely discarded. All management is concentrated in the hands of the emperor, whose power is now considered as a divine institution.
To exalt it, it is introducedeastern court etiquette. Among the leading institutions of the dominance period are: State Council Consistory , financial department, military department.
Created extensive bureaucracywith a lot of officials. A strict hierarchy is established among them.
The highest dignitaries include: the quaestor of the sacred palace (head of the Consistory), the master of offices, the head of the sacred bedchamber, etc.
Senate remained, but its role became insignificant. Magistrates turn into honorary titles.
In 395, the Empire splits into two parts: Western (with its capital in Rome) and Eastern (with its capital in Constantinople).
Each of them is headed by an emperor and in the thick of it who appoints an assistant Caesar
Major changes are taking place inlocal government. Introduced unified system of administrative division: prefecture, diocese, province.
The police are being reorganized. Army finally turns into a permanent, professional army with the strictest discipline and special privileges.
But these measures did not save the Empire. In 476, under the continuous onslaught of barbarians, the Western Roman Empire fell.
Thus, public law in Ancient Rome contained norms that directly protected the interests of the state and determined the legal status of the state and its bodies.
These include: the system of government bodies; competence of institutions and officials; state regulations.
In a number of cases, “public law” was understood by Roman jurists in the senserules that are unconditionally binding and cannot be changed by private agreement.
In general, it can be noted that in Ancient Rome a fairly developed state legal system was created, reflecting the specific historical forms of the state.
Literature
