Roman law for him is important for two reasons. First, as an example that proves the traditional naturalist claim, according to which human beings are capable of realising the existence of natural law without divine revelation or even belief in God the Creator see e.
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Waldstein, 46; see also Waldstein, These two arguments shall be addressed, each in turn. In an earlier passage quoted from Gaius 1. The same disagreement can be observed in the interpretation of ius naturale in a passage from Paulus D. Here, Urbanik emphasises that it is not natural law but modesty that forbids marriage between a woman and her father even in cases where there is no presumption of fatherhood, i.
A final passage is one from Modestinus D. He points out that it is sometimes the social exclusiveness of Roman marriage that has been emphasised by Romanists who tried to establish a link between the Romans and their own age, 18 while others highlighted its dissolubility.
The first one comes from Tomasz Giaro, who summarises the lessons Romanists can learn from previous scholarship on Roman marriage as follows:. One should not confuse the problems of the Romans with those of Romanists, of historiography and legal policy. Giaro, , apud Urbanik, The first one is developing legal skills, and further conveying the insight that law needs to be flexible if it is to serve society.
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That latter is linked to the second field, where Roman law provides a historical example, that of the ius honorarium. The decisions of Roman praetores have, in many respect, adapted civil law to changing social situations, and can be therefore regarded as the predecessors of modern judicial activism, a way of developing law ahead of legislation Urbanik, It is, therefore, not their falsehood but their justificatory function that makes them ideologies. Moreover, these ideologies are independent of historical research also in the sense that they come first: Roman law is used only as an example that supports a view grounded in insights not or at least not necessarily related to it.
Both Waldstein and Urbanik could make their argument in favour of the existence and validity of natural law and judicial activism, respectively, without any reference to Roman law. Yet it seems that, in both cases, something more would be needed for a complete explanation. Pines, 68 approach to the concept of ideology does not require any link between a specific ideology and Roman law.
Moreover, his main claim is not about ideologies, as he only writes that the study of Roman law should not be made to serve any ideology. One is nevertheless left wondering how Roman law could fulfil such a role. For even if one accepts that studying Roman law makes one a better lawyer, that does not in itself grant Roman law a place in the legal curriculum. In the following paragraphs, a possible answer will be outlined with the help of the concept of identity. In many countries, even the emergence of national legal systems took place with constant reference to Roman law cf.
Thus, in many countries, Roman law can be regarded as a symbol of both national and European identity. But does that make it relevant for legal education? It may have been the case in certain periods and in certain countries, yet even if such is true, it may still be more reasonable to dedicate just one chapter in the Legal History syllabus to it, as it happens in several countries today.
Such an identity would explain why some Romanists interpreted the sources as they did, and it could also be used to argue for maintaining Roman law as part of the curriculum.
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For if we regard our own legal system as continuous with that of the Romans, then it makes sense, on the one hand, to assume that they, too, needed legal specialists, and to have, on the other hand, a subject in the curriculum devoted entirely to the study of their legal system.
Here then, the concept of cultural or national identities may help to show, this time from a normative perspective, why Roman law is more suitable to do the job than other possible candidates. While there are several ways in which legal skills can be taught, and many others that can be used to develop professional identity see, e. European identity. Objections maybe raised, of course, that using Roman law to instil any specific identity can be a dangerous enterprise. Given that we look at it from a distance, as something that is both ours and not, we are more likely to think critically about it than about our current legal systems, even from the perspective of natural law, if only we can resist the temptation to idealise the object of our study cf.
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Watson, What made these debates interesting was the references to the concept of ideology. In the first case, ideology understood as false or forged consciousness was the charge made against German Romanists, who allegedly tried to re-establish their own position within academia by arguing for the existence of a specialised legal profession in Republican Rome. In the second case, a naturalist approach to Roman law, and the institution of marriage in particular, was criticised as an ideology i.
In the first example, the Tellegens wanted to refute the claim they attributed to the German Romanists, that the study of Roman law was important for lawyers, since their profession originated in Rome. Their insight, i. In the second debate, Urbanik explicitly confronted the issue, trying to offer a different justification for teaching Roman law instead of the natural-law one.
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He pointed to the adaptiveness of Roman law, in contrast to the immutability of its values as advocated by Waldstein and others. In each account, professional as well as cultural and national identities played a role. When considering a justification for the teaching of Roman law, however, neither seems to yield a convincing argument on its own. Instead, it may be the very ambiguity of our relationship to Roman law, and its presence together with its remoteness, that can afford it a place in the legal curriculum.
Alexander, Charlotte S. Budapest: Medium Pro Educatione. Milano: Bompiani. Berlin: Duncker und Humblot. Frier, Bruce W. Warsaw: Fundacja im. Pro Caecina. Pro Cluentio. Pro Rabirio Perduellionis Reo. Geburtstages von Franz Wieacker. Ebelsbach am Main: Rolf Gremer, Maras, Daniele F. Accessed on Berlin: Weidmann [14 th ed. Pamplona: Universidad de Navarra [9 th ed. Pines, Christopher L. Eine civilistische Abhandlung.
Giessen: Heyer. Cambridge: Cambridge University Press, Torino: Giulio Einaudi. Schulz, Fritz , Principles of Roman Law. Oxford: Clarendon. Translated by Marguerite Wolff [orig. You are using an outdated browser. Please upgrade your browser to improve your experience and security. Holy Roman Empire. Article Media. Info Print Print. Table Of Contents. Submit Feedback. Thank you for your feedback.
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