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1.2. The civil approach to studying of the Roman private law.

The istoriko-legal method of research is not unique way of studying of problems of the Roman Law and its reception. Other approach is "civil" way conditionally defined by the author. He allows to consider the Roman Law as the basis of the modern legal theory.

Thus, owing to historical tradition, the accent becomes on the private law theory. The direction is based on a dogmatic direction of studying of the Byzantian legislation of emperor Justiniana. The given method was applied by jurists at studying Digest JUstiniana. Distinction between istoriko-legal and dogmatic in the ways of studying of the Roman Law was accordingly spent. It consists that at historical studying consecutive change of legal institutions in time depending on changing conditions of a life of the given public environment is investigated, and at legal - the same legal institutions in that kind in what they are represented under the given conditions of a place and time [96] are analyzed.

Traditionally founder of a science of dogma of the Roman Law which is a basis of the theory of private law, Italian scientific - philologist Irnery who in the end of XI century began to teach publicly the Roman Law [97] admits. The dogmatic method has been adhered"by it to the Byzantian legislation of an epoch of emperor Justiniana - Corpus iuris civilis. This source consists of four parts: Institutions (Institutiones), Digest (Pandectae or Digesta), the Code (Сodex), Short stories (Novellae).

Special value for the private law theory possess Digesty. They represent a number of the legal extraction made of compositions of 39 Roman lawyers, living in the classical period. In particular, there are whole fragments from works Papiniana, Martsiana, Modestina and others. Digesty are subdivided into 7 parts and 50 books. Each book shares on titles under the certain name. The exception is constituted by 30, 31 and 32 books which have been not classified on titles. Each title consists of legal fragments corresponding to the name and statements of lawyers, total 9123. Digesty are promulgated on December, 16th 533г.

Researchers mark, what exactly in Digestah more than in what or other monument of an antiquity true character of the Roman jurisprudence [98] was expressed. As the commission at emperor Justiniane at all had not for an object to constitute directly history of the Roman civil law. On the contrary, according to P.E.Sokolovsky, it was repeatedly found out to remove aspiration of the legislator from sources all rests of the classical right which not so not having practical value and have lost the vitality in «circulation of long historical process» [99].

Known Russian researcher XIXв adhered to the same opinion also. D.Azarevich, obosnovanno considering, that by this legislative monument had been brought in the Roman Law so much historical concepts alien to it, that it is necessary for considering already as the phenomenon of the Greek-Roman world [100].

Value Digest, according to Soviet scientist Z.V.Udaltsovoj, it is necessary to consider in three aspects. First of all their historical value consists that they have reflected not only Roman Law evolution to VIв. And at JUstiniane, but also some aspects of evolution of public relations in empire during this period have given the chance to reveal a condition of the Byzantian jurisprudence.

Scientific value Digest consists that they have destroyed not so much, but have kept for the subsequent generations the classical Roman Law and up to now is the basic treasury, whence scientists-historians of the Roman Law get the data on the Roman jurisprudence. Practical value Digest was showed that they were the main source of the Roman Law which was effective as law in some countries of Western Europe during the feudal and capitalist period of their development. [101] Recognizing justice of the aforesaid, it is necessary to add, that Digesty is that basic source which has laid down in a basis of the private law used by the present.

Kompiljativnyj character Digest JUstiniana quite often leads to conclusions, «that it is a unique monument of the legal literature not so much VIв.н.э., how many an epoch of classical right I-IiIv. AD, when such unique area of the Roman Law, as jurisprudence» [102] has received special development. V.S.Nersesjants expressed, that in respect of history of jurisprudence of special attention that circumstance what exactly the meeting of texts of the Roman lawyers has provided codifications JUstiniana that outstanding place with which she occupies in development of the right and legal thought [103] deserves.

Other researchers kompiljativnost consider this negatively. So, the French historian of the right L.F.indorsement approved, that compilers Justiniana have ruined the ancient right of Romans «finding establishments and right treatises, like any clothes sewed from rags; that Tribonian has mutilated, has spoilt, has cut to pieces the best creation of Rome - its civil law, having imposed the barbarous hand on the surprising rests of the Roman jurisprudence, that it has destroyed products Ulpiana, Paul, Papiniana, Afrikana and Guy only to adapt these fragments for needs of the Greek empire and to construct of them a building consisting from lohmotev». [104]

According to the author of dissertation, the inaccuracy of similar sights follows from this, that the scientific world idealises a classical stage of development of the Roman Law owing to what does not wish to accept objective causes of an eminence of the Byzantian right.

However in the literature there is also a requirement to distinguish the Roman Law from the Byzantian right. Thereupon I.P.Medvedev notices, that especially paradoxical the identification extended in the scientific environment with the Roman Law Byzantian and inclusion on this basis in the Roman Law of the christian law of Christian church is represented. [105]

The Russian researchers, apparently, pursuing the aim to find a scientific substantiation of "legal backwardness of Russian people», try to belittle in every possible way the valid value of "the Greek-Roman right». In the tideway of the revealed tendency, V.G.Grafsky expresses, that Byzantium has inherited the Roman Law, and also many ideas and establishments of antique Roman empire during this period when there the operating it was right which in modern Romance philology is defined as "postclassical" and which developed then a little differently, than the Roman Law in countries of Western Europe. [106], that Ancient Russia retsipirovala other, than in the West a legal material differently turns out, that negatively affects in the present.

Certainly, to idealise legislation JUstiniana also it is impossible. In comparison with modern legal science, it «though constituted difficult system of norms, however they existed not as intellectual formations, and is faster as a colourful mosaic of practical decisions of concrete legal issues» [107].

At theoretical use of legislation JUstiniana by a scientific world in the Middle Ages, there was a constant modernisation of its maintenance to conditions and spirit of the Middle Ages. This fact is fixed and documentary. So, in one historical document mister Irnery, at the desire of countess Matildy is noticed, that «, has restored books of laws which long time were in full neglect and were not studied. According to that manner in which they have been constituted divine memory by emperor Justinianom, it has put them in order and has divided into parts, even having inserted here and there few own words» [108].

The known scientist of Middle Ages Irnery has headed school of glossators which have continued the tendency of modernisation of the maintenance of the Roman Law. Character of initial development and processing by glossators of the Roman texts was to such degree «dependent and mechanical», that is capable to knock more likely with a work abundance, than quality of results: «It was actually devout learning of texts of parts JUstinianova of the right opened in that time, their reduction in such order which most answered this purpose, an explanation of dark places comparison of parallel texts, reconciliation of contradictions. All scientific device has been calculated mainly on simplification and storing of citations» [109].

It was expressed in a special way of studying of the Roman legal sources – glossirovanii on which the school actively applying it has received the name. Glossirovanie represents a method which is based on a summer residence of explanations on fields and between lines Digest, containing in notes (glosses) to the text. Some of glosses (notabilia) gave the summary glossiruemyh fragments. Others (brïcardica) - were a statement of wide rules of law (maksim), based on glossiruemoj text parts. The described method in a medieval society possessed huge legal effect. It proves to be true an existing and widely applied rule: cannot have a binding force for court those Roman sources which are not supplied by glosses - quidquid non agnoscit glossa, non agnoscit curia.

Merits of glossators it is possible to put into words German professor XIXв. Puhty, considering, that «development with disseminated on all Corpus juris a material and the explanation of its reason from its internal maintenance – is the pivotal theoretical merit of school of glossators, these fathers of new jurisprudence, a merit, rendered to the subsequent time and given the chance to continue this business on the strong basis» [110]. A.Stoyanov considering what exactly glossators have attacked those live parties which should be in a jurisprudence method as sciences in true sense of this word continues this thought. Positive law studying cannot do without ekzegezy, without dogmatic and regular processing. Here the basic, invariable receptions of human mind which name the analysis and synthesis [111] are expressed.

In the activity glossators learnt at all to norms of the Roman Law and operating then legal system, and, first of all, to analysis and generalisation methods. Glossatorsky school, training in which 7 years lasted, gave basically philological formation which should bring up in the высокообразованных circle of lawyers-scientists. [112]

Modernisation of the Roman Law by glossators to Middle Ages conditions was expressed in replacement of the historical maintenance of various legal institutions, norms to that has already developed in the Middle Ages. It was successful preparation of a material for the subsequent reception, using authority of the antique right of Ancient Rome.

Especially brightly such modernisation it was showed in definition of a legal status of various persons. In the literature the fact is noticed, that glossators considered Roman pretora (praetor) as the judge of time, under the horseman (eques) - modern it the knight. On knights positions about milites extended also; positions of servants equated to position libertinov etc. [113]

Medieval lawyers considered the Byzantian legislation as the general property of all mankind in which universal laws of all times and the people are collected. They argued as if emperor Justinian and in the Middle Ages owned Italy and litigations understood its vessels. Work on glossirovaniju lasts continuously since classical times through all Middle Ages: glosses replaced to a medieval epoch transfers and comments [114].

Merit of glossators that they have inhaled a life in these isolated, confused, confused explanatories of antique lawyers. And anything, except noted before the tendency to Roman Law idealisation, it is impossible to explain the statement of known Russian jurists concerning the Byzantian compilation of emperor Justiniana: «What fine example for the modern domestic legislator,« created »chaotic, unsystematic« a set »abounding with internal and external contradictions of laws with which help he in many cases sincerely hopes and tries to solve the most serious economic and social problems!» [115]

The problem situation connected with impossibility of definition of suddenly arisen interest of glossators to the Roman Law leads to the sample explanation, the antique right directed on abstract eulogy. Researchers the judgement expresses, that created by efforts of the Roman lawyers the jurisprudence became the base of all subsequent development of jurisprudence. It is caused both high legal culture of the Roman jurisprudence, and historical destinies of the Roman Law on which basis the Roman jurisprudence [116] was generated.

But why the Roman Law popularised by medieval glossators has got such authority? It is a lot of reasons for this phenomenon, but one of the main things is its use in political ends of medieval figures. It is known, that political hopes of various social classes were rested upon such updated Roman Law. So, in 1158г. Emperor Fridrih I Barbarossa who has proclaimed the Roman Law «the world right», has invited the most outstanding scientists in the field of the Roman Law from Bolonsky university for working out of the legislation in details defining powers of the emperor concerning cities of northern Italy. The law constituted by them was not Roman Law JUstiniana, he entirely leant against legal principles and doctrines of novelists which were stated by them in comments to Digestam and in their university courses [117] but which covered own workings out by authority of the Roman Law.

Besides, with IXв. In church, and then and in public circles the view erected in an official doctrine, on medieval German empire as on continuation Roman [118] has extended, that has created an ideological basis for the Roman Law reception.

At use of the Byzantian compilation of emperor Justiniana in political ends there was a Roman Law popularisation in a medieval society at its various levels. Authority of the Roman Law and its developers - Irnerija, Odofredusa, Bassianusa, Atso and others involved in Bolonsky university huge set of students (up to 10000 persons [119]). Subsequently, the Bolonsky university began to have such influence, that daddy Grigory IX has sent to it which had a monopoly of propagation of the christian law, collected dekretalii, and emperor Fridrih II - the laws with a view of «the world distribution and giving of scientific authority by it» [120].

By the way, during the medieval period of opposition of the ecclesiastical authority state, the church also required authority of the Roman Law. The fragment testifies to rigid character of opposition from the message of daddy Gelasija to I emperor Anastas written about 500 years: «There are mainly two forces, about August the Emperor with which this world copes: the sacred power of daddies and imperial power. From them the priesthood means more for it urged to give the report to the Lord even for tsars on the divine court. To you should bow submissively to attendants divine … From them only you receive means for own rescue». [121] This rigid character of opposition, among other significant factors, has led to that ecclesiastical authorities began to develop hastily the own right - initial, based on principles of the theory of the Roman Law, and giving the huge power to papacy, up to an excommunication of kings from church.

Glossators in their activity on adaptation of the Roman Law to a medieval way of life were replaced by postglossators. This stage is characterised by studying of not so directly Roman sources, and compilation of works of all known glossators and, on the basis of it, comment drawing up to Digestam from end XIIIв. In the literature it is noticed, that, using reasonable efforts to transform the Roman Law into the law having full and exclusive action, postglossators not only transformed its norms with reference to conditions of time, but also co-ordinated the last to norms initial and a common law, and also with norms of the local legislation [122]. The school of postglossators has undergone to criticism because there was a separation from direct studying of sources as she was engaged exclusively in interpretation of glosses – «glossant glossas». The science allocates also such stages, as elegant (XV - XVIв.) Was based on historical both philological studying and an explanation of maintenance Digest; pandektnyj. It is characterised by introduction of the modernised Roman Law in operating legal system in territory of Germany in XVIIв. Subsequently there was also the "naturalistic" stage characterised by creation of the doctrine about a legal order which is based on principles of human reason. Subsequently it was replaced by "the updated historical school». This stage was characterised by judgement, that the legal order is not reflexion of an abstract human nature, but result from the national nature and national qualities of each people.

It is necessary to note and a positive role of the Catholic church in every possible way developing the doctrine of the Roman Law, filling with its unusual medieval legal philosophy.

Now the Roman Law created Irneriem, has grown for a long time from representation about studying of the legal antiquities applied by the Roman people during the slaveholding period of development. This "updated" right dropped through a prism of subjective perception of various epoch, legal schools and directions. It, leaning against dogmatic studying of the legislation of emperor Justiniana, on it does not stop, and is free or is involuntarily modified under modern conditions, being enriched by modern legal philosophy.

The civil approach to Roman Law studying considers the Roman Law as the universal theory of private law, making a start from the legislation of emperor Justiniana (565 AD), constantly developing and supplemented now. It is that ideal of jurisprudence to which the mankind but which was never applied in the pure state by any known legal system always aspired.

For a modern condition of jurisprudence it is not represented especially important, whether glossators were based at creation of the science directly on the historical Roman Law, or only on Byzantian, or on such which operated exclusively during its time. But that is based by them under the name the "Roman Law" which has included all known legal values, characteristic to mankind at all stages of its existence, have made the Roman Law huge intellectual property of mankind, theoretical basis of private law. Herein it is absolutely incorrect to speak about the Roman Law so as if it represents the unique legal system existing during certain time in certain territory.

The basic merit of a civil way is the concrete designation of contours of the right which remain invariable and till the present day. All other world, it is free or involuntarily develops Roman Law positions, filling its maintenance certain philosophy, characteristic for a condition of the given society, thereby, adapting legal institutions to new changing conditions.

Despite evidence and necessity of existence of a civil direction of studying of the maintenance of the Roman Law, it is criticised in the modern literature. The most outstanding Russian representative of a historical direction of studying of the Roman Law, D.V.Dozhdev considers, that at big "historicity" and "juridichnosti" similar studying of the Roman Law takes into consideration from all "sokrovishchnosti" the Roman legal experience only that has been apprehended and has received development during New time. However at all refusal of perception of the Roman legal heritage as a whole, not so much expressed utility, how many narrowness of the theoretical bases raises the doubts in fruitfulness of this direction [123].

However the same criticism is fairly applicable and concerning the istoriko-legal approach to Roman Law studying. As by me earlier it has been shown, in it exists the tendencies leading to maintenance of a myth about the Roman Law, the general not having anything with the validity. The civil approach in comparison with it is even in more advantage-ground. He really allows to estimate the contribution of the Roman lawyers to development of a modern civilisation, to isolate late stratifications, to refuse Roman Law idealisation, to reveal its value for the present and practical application. Except all aforesaid, the civil approach carries out also such important problem of theory of law as revealing of laws of development of rules of law, institutes, ideas.

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A source: Tkachenko Sergey Vitalevich. the ROMAN LAW RECEPTION: THEORY And HISTORY QUESTIONS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2006 . 2006

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