In dissertational research two approaches to Roman Law studying are formulated: istoriko-legal and civil. The Istoriko-legal approach initially is based on a science of history of law and depends on it.

The purpose of the istoriko-legal approach to Roman Law studying - revealing of the general laws of development of the right within the limits of Ancient Rome.

But the present demands change of approaches to studying of the maintenance of the Roman Law within the limits of the istoriko-legal approach. So, new aspects which are necessary for considering in researches (e.g. mentality, refusal of subjectivity, ideologichnosti) come to light. In the majority of researches adherence to such aspects of research is not demanded ideal. Till now separate positions of the antique right continue to be derided instead of attempt of their impartial studying.

Ignoring of the various parties of a socially-legal life is characteristic for present jurisprudence. Legal customs of prison subculture, game customs of children, customs of a city public life etc. are not investigated

The istoriko-legal approach to the Roman Law maintenance defines it doubly: as slaveholding and as the right of Ancient Rome.

The first definition puts accent on institute studying rabovladenija. The second definition limits the Roman Law to frameworks of the ancient Roman state though its valid value consists in the Byzantian right of epoch JUstiniana and in its world reception.

In the researches devoted to the Roman Law, the tendency to idealisation of its maintenance is traced. It is caused by ignoring of istoriko-legal ways of research and characterised by "attributing" to the Roman Law of all merits medieval and the subsequent stages of development of civil thought.

In the researches devoted to studying of the maintenance of the Roman Law, ignoring of set of the various factors influencing development of the Roman Law is revealed. The main objective of the istoriko-legal approach - revealing of laws of development of the right is not revealed also. Accordingly, revealing of laws is caused by the philosophical concept of the researcher. The Soviet period of studying of the maintenance of the Roman Law was characterised by domination of Marxist-Leninist philosophy. Thus, the laws adjusted to this philosophical system, have in most cases lost the value for a modern Russian society. However this fact at all is not object of studying. In the educational literature it is established, that the Roman Law in historical conditions of the past fixed, consecrated operation of slaves and the free poor, justified an arbitrariness and despotism of the imperial power and long time muffled independent development of legal systems of the people of the Mediterranean violently included in structure of Roman empire.

Other approach offered by the author to studying of the maintenance of the Roman Law, is the civil approach. It is outlined by frameworks of private law of the legislation of emperor Justiniana and development of its ideas in modern legal systems by means of the reception.

The given direction is based on the scientific base «Dogma of the Roman Law», existing in Russia to 1917г. However the purpose of this direction is not only dogmatic studying of the legislation of emperor Justiniana, but also its influence on formation of modern legal philosophy, on formation of a modern science of the private law which is property of a modern civilisation.

The given direction leans on Digesty JUstiniana. Researchers ambiguously concern the given Byzantian source from eulogy, artificial vozvelichivanija before its negation. But the basic error of researchers is idealisation of a classical stage of development of the Roman Law which legal heritage has laid down in Digesty. Thus, as a rule, it is not considered, that the basic value for a civilisation is a source has received in the Middle Ages thanks to glossators. The given school has begun the civil approach to Roman Law studying thanks to extended and presently to an error: they considered the antique right eyes of medieval lawyers, idealising it, perceiving this and a source as «pure reason», filling with its maintenance unusual for it, frequently correcting its text, I adapt for the present not clear or obviously out-of-date places.

The arisen interest in the Middle Ages to the Roman Law is defined, first of all, by cultural development of a society, namely immemorial aspiration to find continuity between civilisations. Subsequently politicians and church figures have become interested in the Roman Law. Thanking their diligence, the Roman Law civil theory has received the modern ground outlines which coincide with the antique a little. The increased interest to the Roman Law, its authority on a medieval society has resulted and in such phenomenon as the Roman Law reception.

The civil direction of studying of the Roman Law has led to that are interested in reception problems, first of all, jurists. However, in connection with narrowness of problems of a science of civil law and its limited toolkit, it appears, that is a problem of theory of state and law.

Definitions of the reception existing in the Russian legal science are reduced either to loan, or to loan and development of foreign legal institutions. However thus far influence of public and state ideology is not always considered. This factor is the core at decision-making on the reception and defines success of its introduction in another's "soil". Thus, it is obviously possible to draw a conclusion: the reception represents loan by legal system-recipient from legal system-donor of legal institutions, norms owing to an ideological orientation of the recipient with a view of improvement of action of legal system. Taking into account the given definition it is possible to investigate a phenomenon of the reception of the Roman Law. The ideological factor of the reception of the Roman Law in the Middle Ages consists in attempt of formation of the German medieval empire just like the Roman; in necessity of Catholic church to possess the developed system of private law; To propagation of the Roman legal values at medieval universities.

Discrepancy of ideological installations of a society with installations of the legislator results or in time success, either to utter defeat, or to full processing of foreign legal orders.

The ideological factor also is involved at an estimation of success of the reception in the past. A typical example in Russia - existence «normanskoj theories», discussions about which proceed and to this day. «The Norman theory» visually shows a condition of the historical science subject to ideology. So, already knowing about unscientific character of discussion in the educational literature on history of law, on former, the problem exposure of falsifiers of history of law is put, namely: «exposure of the Norman false theory of an origin of the Old Russian state and the right».

Now in the scientific literature there is a tendency to vozvelichivaniju the Roman Law and belittling of the valid value of the legal system and culture. Thereby the next attempt of preparation of "soil" to retsipirovaniju models of the Roman Law and to its active use is undertaken.

The western and domestic researchers traditionally extremely low estimate the Russian legal system, considering, that Russia retsipirovala the Byzantian model of the Roman Law, therefore she repeats the basic characteristics of the Byzantian state in the main lines. The given estimations are connected with ideological installations of the authors corresponding to standard ideological installations of the western authors, and have no anything the general with jurisprudence.

"Soil" to which foreign legal institutions "change", should be considered at reception research. Its ignoring leads to discrepancy of ideas of the legislator with ideas of a society that leads to "decorative effect" of the reception.

Special interest is represented by the reception of the Soviet model of private law in the countries of Eastern Europe released from fascist occupation. It is possible to establish the fact of the partial reception of private law as the basic "bourgeois" institutes have been kept: a private property on the earth, servitutnoe the right, the usufruct etc.

In a classical kind researchers consider the reception concerning the Roman Law to Medieval Europe. But, as a rule, all is reduced exclusively to the German empire, whose political ambitions and legal system crisis have led to an ideological substantiation of expediency of the reception of the Roman private law. At widely advertised action, were retsipirovany only glossirovanye (i.e. processed by glossators) parts. As a result of proof resistance of a society to foreign legal orders, the Roman private law has taken subsequently a place of the subsidiary right. Subsequently, this processed Roman Law (pandektnoe) has entered in German Ulozhenie 1900г.

Other form of the reception of the Roman Law has occurred in France XVIIIв. The French society supported completely the Roman legal values which in the processed kind were included into Napoleon's Code. Napoleon's code as a result of occupation of the countries of Europe by the French armies has been successfully introduced in the occupied countries and has made the strongest impact on development of civil thought all over the world.

At studying of a phenomenon of the Roman Law in Medieval Europe it is necessary to consider and influence of Church on formation of the theory of private law. The church not only directly sated the theory of private law with philosophy unusual for it (for example, limited usury, established "fair prices" etc.), but also is mediated developed it within the limits of the christian law. Christian law merits was creation of the modern contractual theory, the doctrine about the legal body, doctrine development about guardianship, attempts of philosophical restriction of the property right and a principle of completeness of the power.

Influence of the Roman Law on the Old Russian right was carried out directly through Byzantium. The author assumes, that originally acquaintance of Slavs to the Roman Law depended on three major factors: 1) military campaigns to Byzantium 2) international trade 3) Christianity acceptance. Besides, it also became possible in connection with acquaintance of the slavic public to the Roman Law concept. Researchers mark the powerful translational centre existing in Russia since Yaroslav Mudrogo's times which translated the literature not only with Greek, but also from Latin and from the Hebrew.

As the major factor of the direct reception of the Roman Law acceptance of Christianity by Ancient Russia has served. As a result the private law theory was enriched with the legal values containing in the Bible and legislation JUstiniana, the whole legal branch - the family law has been entered even.

The Helmsmen existing up to XIXв have widely extended. Inclusive. They contained the legislation of emperor Justiniana, pozdnevizantijskoe the legislation etc. the Maintenance of Helmsmen retsipirovalos in the Russian legislation (the Code of laws 1497г.) also influenced public consciousness.

The Roman Law was used as the base theory of private law by the legislator at all stages of development of a positive law. Since the Russian Truth and finishing the Code of laws of Russian empire.

Acquaintance of the Russian public to the Roman Law theory has occurred at Peter I. However the education system entered by it differed from the European practicality. Since this moment the authority of the Roman Law has increased so, that already in 1885г. The ministry of National education has expressed the position in the following: «the Roman Law operating as the world law, remains as general theory of law and serves as school of higher education for devoting not only to a judicial field, but also in general service to the state in the governmental business».

The Roman Law reception in the USSR has been connected with disclaimer failure in 1917г. And transition to New Economic policy. However thus all right, both private and public began to be considered in the light of Marxist ideology as slaveholding, feudal, bourgeois and socialist. The purpose of the Soviet right - struggle against the class enemy for what principles of a revolutionary legality were used, has been expressed revolutionary expediency, class the approach.

To requirement of social development of the Soviet state lead to crisis in state-legal sphere. The thesis «dying off was right» its supporters will reject also were considered as enemies of the people. As a result, the Soviet state began to create the private "proletarian" right on the basis of the reception of pre-revolutionary Russian and foreign legal values. For a Civil code basis 1922г. Was the Civil code 1900г is taken. Thus, there was a full-scale secondary reception of the Roman Law in the Russian state.

However to the Roman Law the relation in an istoriko-legal science was not unequivocal because it was klassovo the alien, slaveholding right.

It is approximately possible to isolate some stages of development of the relation of the state to the Roman Law:

The first stage - 1917-1922гг. It is characterised by negative consideration of the maintenance of the Roman Law as slaveholding, class.

The second stage - 1922-1937г.г. It is defined by position softening in relation to the "slaveholding" right in connection with the reception of its positions (pandektnoe the right) in the Civil code.

The third stage-1937-1961gg. It was characterised by the unstable relation to the Roman Law maintenance. The stage beginning has put A.Vyshinskogo's performance which has acted with the report on position on legal front. There was a declarative refusal from afishirovanija continuity. Decision VKP () from November, 14th 1938г. Has softened a position, having fixed the fact «backlogs of jurisprudence» and has given possibility to use the Roman Law theory. However already in 1939г. There was a tendency to consider the researchers offering retsipirovat to value of the Roman Law, as "wreckers".

Despite such unstable position of politicians directly reflected in jurisprudence, in their performances throughout all stages principles and Roman Law rules were quoted.

The fourth stage - 1961-1990гг. Was marked by continuation of development "truncated" pandektnogo the rights and distribution of this model on other union republics. In the legal environment there is a growth authority of the Roman Law. In the educational literature it is noticed, that it though is not applicable in Russian conditions of the "socialist" right, but for the lawyer who is engaged in foreign trade activities, its studying is necessary.

The fifth stage - 1990 on the present moment. It was characterised retsipirovaniem substantive provisions of the theory of the Roman Law and vozvelichivanie its authority on the ideological purposes.

The modern reception of the Roman Law in Russia is caused by the ideological factor «return to a bosom of western civilisations», attempt of an establishment of continuity: «the Russian right is whole with the past and world process of progress of the right» [417].

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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

More on topic THE CONCLUSION.:

  1. the Conclusion
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  5. the Conclusion
  7. the Pathomorphologic conclusion
  13. the Conclusion
  15. the Conclusion