Studia Prawnicze KUL, 2019, nr 4

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https://hdl.handle.net/20.500.12153/2263

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    Age of a Victim as Crime’s Feature in Roman Law
    (Wydawnictwo KUL, 2019) Kosior, Wojciech
    The conducted research revealed that the matter of age in the sources of Roman law appeared several times in a combination with the victim and was the feature of some delicts and crimes. The article demonstrates that in Roman law, in cases of unlawful acts, not only was the perpetrator’s age important, but also sometimes the age of the victim depended on the perpetrator’s liability. In modern law, we can also find the provisions in which the perpetrator’s liability depends on the age of the victim. For example, Article 200 § 1 of the Polish Penal Code can be listed here. The aim of the presented article is to describe unlawful acts (mostly crimes) occurring in Roman law, in which the perpetrator’s liability depended on the age of the victim. So far, the above-mentioned thematic hasn’t been described in the literature of the subject, because when the matter of age in this context was analyzed, the most attention was focused on the age of the perpetrator and his ability to bear liability. The result of the research was to discover and elaborate Roman law sources where in fact the perpetrator’s liability depended on the age of the victim. Selected examples are presented in the text.
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    Christian Influence on the Roman Calendar. Comments in the Margins of C. Th. 9.35.4 = C. 3.12.5 (a. 380)
    (Wydawnictwo KUL, 2019) Wiewiorowski, Jacek
    The text analyses Christianisation of the Roman calendar in the light on the Roman imperial constitutions in the 4th century. The author first of all underlines that only humans recognise religious feasts despite that human perception of time is not that remote from the apperception of time in the case of other animals and that the belief in the supernatural/religion and rituals belong to human universals, the roots of which, together with the judiciary, are to be sought in the evolutionary past of the genus Homo. Furthermore, the author deduces that the first direct Christian influence on the Roman official calendar was probably C. Th. 9,35,4 = C. 3,12,5 (a. 380), prohibiting all investigation of criminal cases by means of torture during the forty days which anticipate the Paschal season, contesting the opinion that dies solis were regarded as dies dominicus (Christian Sunday) already in C. Th. 2,8,1 and C. 3,12,2 (a. 321). Finally, on the margin of the Polish debate concerning the limitation of legal trade during Sundays, when Constantinian roots of dies dominicus were quoted frequently and with great conviction, the limitations of politics of memory are underlined.
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    Clericus quidam crimine carnis. Legal and Iconographic Intricacies in Causa 15 of Gratian's Decretum
    (Wydawnictwo KUL, 2019) Adamczuk, Arkadiusz
    The article analyses a problem of the iconography in Causa XV in the Gratian’s Decretum. The problem posed by the Bolognese Camaldolese monk firstly concerns the accusation by the woman with whom the priest sinned and secondly the use of torture in the canonical process. In both cases, the author of the Decretum resolves the problem also citing Roman law, among others, by citing the Digest or the Diocletian’s Code. Miniatures illustrating this Causa, and thus the same text, are different in their iconography depending on the time and place where the specific copy of the manuscript was made. This is mainly due to different, local traditions (e.g. in the medieval Italian countries).
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    Grzegorz Nancka. Prawo rzymskie w pracach Marcelego Chlamtacza, Wydawnictwo Uniwersytetu Śląskiego, Katowice 2019, ss. 278
    (Wydawnictwo KUL, 2019) Kosior, Wojciech
    Book Review: Grzegorz Nancka. Roman Law in the Scholarly Output of the Marceli Chlamtacz. Wydawnictwo Uniwersytetu Śląskiego, Katowice 2019, ss. 278
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    Humanitas and Severitas On Possible Impact of Christianity on Roman Criminal Law in Fourth Century
    (Wydawnictwo KUL, 2019) Zalewski, Bartosz
    The article synthetically presents the main directions of the possible influence of Christianity on the Roman criminal law, which are characterised by two mutually opposing tendencies: intensification and alleviation of penal repression. However, one cannot overestimate the influence of Christianity on the Roman criminal law of the period in question, covering the years 313–380. Christianity did not have a fundamental impact on the imperial legislation during that period and did not contribute to the discontinuation of the trends already occurring in the period of the late Principate.
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    The Last Judgement as Ordalium. Hans Memling’s Vision
    (Wydawnictwo KUL, 2019) Jońca, Maciej
    Hans Memling’s Last Judgement was created at the moment when the dominant form of legal proceedings over the whole European continent was that of ordo iudiciarius. This procedure was based on the principles drawn as far back as Roman law, that is why at present it is described as the Roman-Canonical procedure. It is surprising that the composition of the Last Judgement does not in any way refer to the said procedure, since the imagery of the Last Judgement over the centuries had been shaped on the basis of the solutions practiced in the earthly courts. However, ordo iudiciarius was too rigid and predictable. Its rules did not fit the idea of God’s immeasurable mercy. That is why the artist presented the Last Judgement as ordalium. In this procedure, in turn, God, in accordance with his nature, is not bound by anything, so he can bestow his grace in a sovereign way even upon those who do not deserve it.
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    Non enim crimen dicitur, quod mortis adegit impulsus – notes on the CTh. 15.14.14.
    (Wydawnictwo KUL, 2019) Leraczyk, Izabela
    The article analyses the constitution issued by Emperor Honorius in the year 416, concerning the perpetrators of offences qualified as crimen as the exemption from criminal liability, in a situation when such actions were undertaken during the barbaric invasions, escape from such invasions or the rule of the usurpers. The act governs that an action perpetrated for fear of one’s life cannot be seen as crime. The article analyses specific terms used in the above-mentioned legal act, especially in the context of the contemporary legal terminology of the epoch. Moreover, it presents the historical backdrop behind the issuing of the constitution, together with other regulations regarding collaboration with the enemy, both volitional and under coercion.
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    Pontius Pilate as a Late Antiquity and Early Medieval Judge – Iconographic Representations
    (Wydawnictwo KUL, 2019) Rupiewicz, Romana
    The image of a judge in Late Antiquity is shrouded in mystery, as visual artefacts depicting court proceedings are scarce. Early Christian sarcophagi and miniatures adorning early manuscripts help in researching this topic. Illustrations of the trial of Jesus found there fully represent jurisprudence of the 4th and 5th century. Western artists had no knowledge of the hearing held at the beginning of the first century in Jerusalem, in a Roman province, hence they recreated what they knew from experience. The pictures presenting the trial of Jesus are probably the most important iconographic evidence of court proceedings, in which a judge and an accused stand facing each other. Based on the iconography analysed, we can see that certain elements are recurrent. They include a curule seat, crossed legs of the judge, a laurel wreath, a table, the presence of other persons wearing soldiers’ uniforms and clerks, whose role was probably that of a record taker. The image of Pilate in Late Antiquity is, in fact, a representation of early court scenes.
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    Purposes and Functions of Public Punishment in Roman Law in the Perspective of Justinian's Codification
    (Wydawnictwo KUL, 2019) Amielańczyk, Krzysztof
    The objectives and functions of the punishment for a public offence (crimen) had already been discussed by M. Tullius Cicero, Seneca the Younger, or Aulus Gellius many centuries before Emperor Justinian. According to their statements, the Romans distinguished in principle all the types of punitive functions known today: deterrence (special and general prevention), reprisal (retaliation) elimination (protection of society against the perpetrator), and even the rehabilitation (educative) function. The emergence of the imperial judiciary extra ordinem in criminal matters could have been conducive to performance of various functions assigned to various penalties, along with the possibilities offered by the discretionary power of judicial decisions. However, when reading Emperor Justinian’s Constitutio Tanta and the numerous accounts from the Roman jurists included in his codification, contained in Book 48 of the Digest, one may be convinced that the function of paramount importance for the emperor was to deter potential perpetrators by means of severe penalties, including notably the death penalty. The educational function was rather marginal. The primary objective of the imperial criminal policy was the ruthlessly severe punishing for criminal offences (severitas, atrocitas) and the implementation of the postulate of inevitability of criminal responsibility
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    Research on the Impact of Christianity on Roman Law in the Interwar Poland: Franciszek Bossowski’s Views
    (Wydawnictwo KUL, 2019) Nancka, Grzegorz
    The article is intended to present the views of Franciszek Bossowski on the impact of Christianity on Roman law, and thus draws attention to the existing output of the Polish science of Roman law in this area. This Vilnius-based Roman law scholar was one of the few researchers in Poland who studied this issue in the interwar Poland. For this reason, the article encompasses an analysis of those of his works in which he touches upon the issue of the impact of Christianity on Roman law. Attention is drawn to the key theses formulated therein, as well as his polemics with other scholars. Last but not least, the research postulates formulated by Bossowski are discussed.
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    Self-defence in Legislation of Christian Emperors
    (Wydawnictwo KUL, 2019) Loska, Elżbieta
    The notion of self-defence was visible in Roman law even in the archaic period. The first mention that can be recognised as such was the right to kill a thief, referred to in the Law of Twelve Tables. The institution gradually developed, encompassing a growing range of cases. However, regulations were still mostly casuistic. That also applies to the legislation of Christian emperors.
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    Subjective and Territorial Scope of confugium ad ecclesias, and Christian Ideas
    (Wydawnictwo KUL, 2019) Świrgoń-Skok, Renata
    Beginnings of asylum (asylum, ius asyli, confugium) in ancient Rome dates back to Romulus times. In subsequent periods of the development of the Roman state, the right of asylum was further developed and included in the norms of material and legal nature. In the Republic Period there were no comprehensive legal regulations regarding ius asyli, although temple asylum was known. It was only during the empire that legal regulation of asylum was in place and two of its forms were developed, confugium ad statuum (asylum, escape to the monument to the emperor) and confugium ad ecclesias (church asylum). That study focuses on answering the question of whether Christian ideas had an impact on the subjective and territorial scope confugium ad ecclesias. After the Edict of Milan in the year 313, Christianity, being able to worship publicly, began to influence the consciousness of the inhabitants of the empire. The Church was conceived as an institution protecting the weak, persecuted and those in need. The right of asylum was also enriched with some Christian elements, especially mercy (misericordia), in relation to individuals entitled to benefit from asylum protection. The territorial extent is also expanded to include places belonging to temples, such as the bishop’s house, cemetery and monasteries. An important novelty was the validity of confugium ad ecclesias in every Christian temple because it was not the emperor’s decision that was in force of ius asylum and the sanctity of the place. However, imperial constitutions played a more important role in shaping the right of asylum in the 4th and 5th centuries than the synodal legislation.
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    Summum supplicium in the Legislation of Christian Roman Emperors
    (Wydawnictwo KUL, 2019) Chmiel, Andrzej
    This publication is an attempt to answer the question: what was the role of the criminal penalty, especially in its strictest form (summum supplicium) in the Roman legislation of Christian emperors? Finally, whether is it noticeable, based on the example of summum supplicium, that Christianity influenced the Roman criminal law in any way? As it has been demonstrated, the new state religion did not radically change the Roman criminal legislation. The legislation of the Christian emperors confirmed both, the division of society into servi and liberii that had existed for centuries in the Roman state and the diversity of the legal situation of individual social groups. Punishment in the legislation of Christian emperors continued to fulfil the role it had played in the previous centuries and became, even more than ever before, an essential tool for the political struggle of the present state authority. The finest example of this was the legislation of Constantine the Great, followed by all the severity of criminal repression which resulted in the issuing of this legal act. A great desire to bring about a new order, maintain power and even the fear of losing it can be detected in the strictness of the Constantine’s legislation. Finally, the once persecuted Christians began to behave like their previous persecutors.
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    Testis unus testis nullus – the Testimony of Saint Ambrose
    (Wydawnictwo KUL, 2019) Adamczewski, Karol
    Saint Ambrose, the Bishop of Milan, played a key role in the adoption of the Roman legal culture into ecclesiastical legislation, particularly in the West in the second half of the 4th century. In this context, his letters reporting some lawsuit appear to be of special value. The case involved Indicia, a virgin consecrated to God. Ambrose pointed out the mistakes committed in the investigation, and he questioned the lawfulness of the proceedings. While reviewing the case, he showed to his subordinate what appropriate conduct was to have been undertaken in this kind of case. He especially emphasized the necessity to maintain the procedural requirement of consistent testimony of at least two witnesses. Significantly, the legal rule cited by the Bishop of Milan principle testis unus testis nullus, before it was announced by Constantine the Great in 334, had already existed in the Judeo-Christian legal tradition.
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    Thomas Bever o prawie w dawnej Polsce
    (Wydawnictwo KUL, 2019) Korporowicz, Łukasz
    Thomas Bever był angielskim prawnikiem-cywilistą, który nauczał prawa rzymskiego w osiemnastowiecznym Oxfordzie. Końcowa część jego wykładów stanowiła rodzaj porównawczego opisu różnych europejskich porządków prawnych. Wśród nich, Th. Bever przedstawił również historię dawnego prawa polskiego. Był to rodzaj krótkiego opisu najważniejszych wydarzeń w dziejach historii prawa w Polsce, począwszy od czasów legendarnej Sarmacji, aż po współczesne wydarzenia związane z rządami Stanisława Augusta Poniatowskiego oraz rozbiorami Polski. Powyższa praca zawiera oryginalny tekst wykładu Th. Bevera (który stanowi fragment jego notatek wykładowych znajdujących się obecnie w archiwum Uniwersytetu w Edynburgu), polskojęzyczne tłumaczenie wykładu oraz komentarz.
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    Utilitas rei publicae contra misericordiam. Justinian’s Criminal Legislation in Borys Łapicki’s View
    (Wydawnictwo KUL, 2019) Czech-Jezierska, Bożena Anna
    Borys Łapicki (1889–1974) was a Roman law scholar whose works contained many references to the correlations between Roman law and ethics. The article provides an overview of B. Łapicki’s writings and discusses his views on the concept of misericordia and on the influence of that concept on Emperor Justinian’s criminal legislation. A definite and clear-cut thesis emerges from this analysis. Borys Łapicki declares that although Justinian was an emperor who considered himself and was considered to be the great defender of the Christian faith, his legislation was influenced by the principle of utilitas rei publicae, rather than by Christian misericordia and by the humanitarian principles of the New Testament ethics. This is particularly evident in his criminal legislation. This leads B. Łapicki to conclude that it was “not Christianity that influenced Justinian, but on the contrary, he exercised his influence on Christianity so that it could serve his political purposes.”