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This is a study of a Roman legal document of unknown date and debated origin conventionally known as the Edictum Theoderici (ET). Comprised of 154 edicta, or provisions, in addition to a prologue and epilogue, the ET is a significant but largely overlooked document for understanding the institutions of Roman law, legal administration and society in the West from the fourth to early sixth century. The purpose is to situate the text within its proper historical and legal context, to understand better the processes involved in the creation of new law in the post-Roman world, as well as to appreciate how the various social, political and cultural changes associated with the end of the classical world and the beginning of the Middle Ages manifested themselves in the domain of Roman law. It is argued here that the ET was produced by a group of unknown Roman jurisprudents working under the instructions of the Ostrogothic king Theoderic the Great (493-526), and was intended as a guide for settling disputes between the Roman and Ostrogothic inhabitants of Italy. A study of its contents in relation to earlier Roman law and legal custom preserved in imperial decrees and juristic commentaries offers a revealing glimpse into how, and to what extent, Roman law survived and evolved in Italy following the decline and eventual collapse of imperial authority in the region. Such an examination also challenges long-held assumptions as to just how peaceful, prosperous and Roman-like Theoderic’s Italy really was.

South African common law represents a European ius commune based upon Roman law and Roman-Dutch law of the seventeenth century. Included within South African common law is a large volume of medieval commentaries on Roman law, rarely touched upon by legal historians. The number of South African legal practitioners with a working knowledge of Latin has rapidly declined since the abolition of Latin as a compulsory subject for the LL.B degree in 1996. This state of affairs has led to the marginalisation of untranslated common law sources, as fewer legal practitioners are able to read and understand Latin. Although many Roman legal sources have already been translated into modem Romance languages, medieval commentaries on Roman law are still largely untranslated and therefore of little value to most legal practitioners. The idiosyncrasies and peculiar language of medieval legal Latin has further contributed to the untranslatability thereof, and even jurists with a working knowledge of classical Latin find it difficult to translate. This study aims to provide access through translation and historical annotation to an important untranslated medieval legal text, the Tractatus de jluminibus seu Tyberiadis by the medieval Italian jurist, Bartolus of Saxoferrato (1313 - 1357). The text is concerned with alluvion, an original mode of acquisition of ownership, which is still relevant in contemporary South African law and has recently been perpetuated in section 33 of the Land Survey Act 8 of 1997. / Thesis (M.A.)--Potchefstroom University for Christian Higher Education, 2000

This essay presents evidence that the institution of the corporation has its origins and its main developmental 'epochs' in Judaeo-Christian theology. The notion of the nahala as the institutional symbol of the Covenant between YHWH and Israel is a primal example of the corporate relationship in its creation of an identity independent of its members, its demand for radical accountability on the part of its members, and in its provision of immunity for those who act in its name. On the basis of the same Covenant, St. Paul transforms an ancillary aspect of Roman Law, the peculium, into the central relationship of the Christian world through its implicit use as the institutional background to the concept of the Body of Christ. The exceptional nature of this relationship allows the medieval Franciscans and the papal curia to create what had been lacking in Roman Law, an institution which can own property but which cannot be owned. This relationship is subsequently theorized as the Eternal Covenant by Reformed theologians and successfully tested in one of the greatest theological/social experiments ever recorded, the 17^th century settlement of North America. The alternative 'secular' explanation of the corporation provided by 19^th century legal philosophy relies implicitly on the theological foundations of the corporation and remains incoherent without these foundations. The theological history of the corporation was recovered in the findings of 20^th century social scientists, who also identified corporate finance as the central corporate activity in line with its Levitical origins. Although the law of the corporation is secular, the way in which this law was made a central component of modern life is theological. Without a recovery of this theological context, the corporation is likely to continue as a serious social problem in need of severe constraint.

As a pre-requisite for the Roman law to come into existence, a community of people had first to emerge; a community identifying itself vis-à-vis its surroundings. Legal norms that came into being in such community, rather simple legal norms at the time of their hypothetical origin, were gradually developed in line with the development of such community throughout the times. The outcome is an elaborated system of Roman law that communicates with us even today. The presented paper endeavours to shed some light at some profound aspects of the formation of the Roman nation on its road to the definition of the Roman citizenship. In the case of the Romans we cannot use simple definition features, such as the language (as the Latin language was shared by other peoples of the ancient Italy) or the religion (as the ancient polytheism intertwined various cultures of the given times) or a territory. The paper offers views into the combinations of the Roman culture with those other ancient cultures that shared numerous aspects with it and that had a formatting effect on it. It also addresses the role of the religion in the formatting process of the original Roman society. The result is an attempt for a definition of the Roman nation, i.e. the personal area serving the creation and development of the Roman law...

This thesis offers an investigation into the roles of slaves and freedmen and the extent of their involvement in the Romans’ legal and literary discourse on adultery and the legislation introduced to address it – the lex Iulia de adulteriis coercendis. It also seeks to assert their place more firmly within the context of the Roman familia and explore what this means in the context of the adultery statute. This thesis reasserts the position of slaves and freedmen within the Roman familia as a whole and, more specifically, as individuals deserving and requiring of consideration within the context of the analysis of the adultery statute and other social legislation. A multi-disciplinary approach has been adopted in this thesis to address the multiple avenues apparent in the investigation. A detailed analysis of the primary extant source of the statute, found in Justinian’s Digest, was carried out to determine the extent of the inclusion of the servile and freed in adulterous relationships and how much consideration was shown to them by the legal writers, or jurists. As a corollary to this analysis, a range of literary works, from Ovid, the Elder Seneca, Quintilian, Tacitus and Suetonius, was examined to provide a counterpoint to the legal perspective on the inclusion of slaves and freedmen within adulterous relationships, and, subsequently, the familia. Re-assessing the roles of slaves and freedmen within adulterous relationships and the legislation aimed at controlling this crime also necessitates another reassessment – namely, that of the motivations behind the introduction of the statute itself. Notoriously difficult to determine, this thesis posits, in conclusion, that, rather than being an instrument of the moral indignation of the contemporary Roman population, the adultery legislation was instituted as an instrument of economic control to counter the potential dilution of the wealth of the elite of Rome by illegitimate children. Slaves and freedmen were, then, a crucial element of a deceptively complex piece of legislation typically assumed to affect and address members of the Roman elite only.

A chamada regra do usus auctoritas, presente na Lei das XII tábuas, é apontada, desde Cujácio (séc. XVI), e daí em diante por muitos juristas, como sendo uma antiga norma sobre a garantia do vendedor por meio de negócio formal, mancipatio em caso de evicção; o próprio sentido do vocábulo auctoritas seria «garantia», ou mesmo «dever de prestar garantia», neste caso particular inseparável da mancipatio. Mas o fragmento que traz essa regra USUS AUCTORITAS FUNDI BIENNIUM EST[O] nos foi transmitido por Cícero e (embora de forma já interpretada) Gaio; e estes a consideram uma espécie de antiga norma a respeito do usucapião (inicialmente apenas de imóveis). Outros juristas antigos e contemporâneos seguiram, em parte, essa interpretação original. O trabalho pretende trazer novos argumentos em favor dessa exegese natural de Cícero e Gaio no sentido de que a dita regra versa sobre usucapião, mais especificamente sobre uma sua forma arcaica e bastante peculiar. Investiga-se o surgimento da propriedade imobiliária em Roma e suas peculiaridades: o sistema augural, quase religioso, de limitação do solo destinado, no início, a todo cidadão romano, conferido por meio de atos de adsignatio (concessão) pelo «estado» em formação, que detinha a auctoritas ou poder; a passagem da soberania das gentes pré-romanas aos Quirites; a gradual privatização a atribuição dessa auctoritas coletiva e diretamente quiritária ao proprietário dessas parcelas de terra e a fragmentação do solo pelo direito privado regulado pela Lei das XII tábuas, que confere autonomia (a auctoritas ou título) aos indíviduos e suas famílias. Acrescenta-se uma breve análise lógica da regra e uma tentativa de a inserir no esquema geral do usucapião moderno. / The usus auctoritas rule from the Twelve Tables was conceived by Jacques Cujas (16th century AD), and many authors thereafter, as an ancient norm that established a warranty against eviction granted by the seller when transferring the ownership of the thing to the buyer through the performance of mancipatio. According to this view, the very word auctoritas is taken to mean warranty, or else to imply an obligation to give warranty, and is intrinsically associated with mancipatio. But the fragment of the sources that state this rule USUS AUCTORITAS FUNDI BIENNIUM EST[O] were brough to us by Cicero and Gaius (the latter in the form of an interpretation of the norm), and both consider it to be an ancient Roman disposition that originally dealt with usucaption of immovable property only. To a certain extent, various ancient and modern jurists accept the latter interpretation. The object of this thesis is to provide new arguments to support the more natural interpretation adopted by Cicero and Gaius, i.e., that the rule in question deals specifically with an archaic and peculiar form of usucapio. The present work analyzes the emergence of private ownership of immovable property in Rome and its peculiarities: the quasi-religious augural system of land apportionment adopted by the fledging Roman state to assign a lot of land to every Roman citizen through the performance of acts of adsignatio (allotment); the sovereignty transferred by the pre-Roman gentes to the Quirites; the process by which land plots were gradually privatized and landowners acquired this once collective and quiritarian auctoritas, and the resulting land apportionment caused by the application of rules of private law based on the Twelve Tables conferring autonomy (auctoritas or title) to individuals and their families. In the final lines, an attempt is made to provide a logical analysis of the rule and to place it within the general conceptual framework of modern usucaption.

The topic of this thesis is legal transplants in China since 1978. The first part is devoted to a presentation of contextual elements of Chinese Law, with a critical discussion of various theories of legal transplants, including the most recent Chinese scholarship on this topic. The second part contrasts the influence, on the Chinese legal reforms, of the continental (or civilian) legal tradition with that of the common law. To this end, the author uses a study of the reception of the bona fide principle and of the fairness principle in The Contract Law of the People's Republic of China, with a discussion of the future Chinese Civil Code. The common law's influence, in the same law, is then presented with a focus on the doctrines of anticipatory breach and indirect agency. In the end, the author explains why the civilian legal tradition will remain the dominant, but not exclusive, model on Chinese legal reforms.

<p>Among the numerous commitments late ancient Christians throughout the Roman Empire shared with their non-Christian neighbors was a preoccupation with justice. Not only was the latter one of the celebrated characteristics of God, the New Testament had charged Christians, particularly those who served as bishops or elders, with ensuring and maintaining justice in their communities from the tradition's very origins. In the early fourth century, this aspect of episcopal responsibilities had received an unexpected boost when the Emperor Constantine not only recognized bishops' role in intra-Christian conflict resolution, but expanded their judicial capacity to include even outsiders in the so-called audientia episcopalis, the bishop's court. </p><p>Christians had, of course, never resolved the question of what constituted justice in a vacuum. Yet bishops' increasing integration into the sprawling and frequently amorphous apparatus of the Roman legal system introduced new pressures as well as new opportunities into Christian judicial discourse. Roman law could become an ally in a minister's exegetical or homiletical efforts. Yet it also came to intrude into spheres that had previously regarded themselves as set apart from Roman society, including especially monastic and clerical communities. The latter proved to be particularly permeable to different shades of legal discourse, inasmuch as they served as privileged feeders for episcopal sees. Their members were part of the Christian elites, whose judicial formation promised to bear disproportionate fruit among the laity under their actual or eventual care. This dissertation's task is the examination of the ways in which Christians in these environments throughout the Latin West at the turn of the fifth century thought and wrote about justice. I contend that no single influence proved dominant, but that three strands of judicial discourse emerge as significant throughout these sources: that of popular philosophical thought; that of biblical exegesis; and that of reasoning from Roman legal precept and practice. Late ancient Christian rhetoric consciously and selectively deployed these threads to craft visions of justice, both divine and human, that could be treated as distinctively Christian while remaining intelligible in the broader context of the Roman Empire.</p> / Dissertation

South African common law represents a European ius commune based upon Roman law and Roman-Dutch law of the seventeenth century. Included within South African common law is a large volume of medieval commentaries on Roman law, rarely touched upon by legal historians. The number of South African legal practitioners with a working knowledge of Latin has rapidly declined since the abolition of Latin as a compulsory subject for the LL.B degree in 1996. This state of affairs has led to the marginalisation of untranslated common law sources, as fewer legal practitioners are able to read and understand Latin. Although many Roman legal sources have already been translated into modem Romance languages, medieval commentaries on Roman law are still largely untranslated and therefore of little value to most legal practitioners. The idiosyncrasies and peculiar language of medieval legal Latin has further contributed to the untranslatability thereof, and even jurists with a working knowledge of classical Latin find it difficult to translate. This study aims to provide access through translation and historical annotation to an important untranslated medieval legal text, the Tractatus de jluminibus seu Tyberiadis by the medieval Italian jurist, Bartolus of Saxoferrato (1313 - 1357). The text is concerned with alluvion, an original mode of acquisition of ownership, which is still relevant in contemporary South African law and has recently been perpetuated in section 33 of the Land Survey Act 8 of 1997. / Thesis (M.A.)--Potchefstroom University for Christian Higher Education, 2000