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§ 1.2. The objective basis of extraordinary jurisdiction of the Roman city councils

Extraordinary intervention of the Roman city councils through direct administrative settlement of disputes or realisation of supervising functions within the limits of proceeding allows to differentiate two forms of extraordinary jurisdiction in historical frameworks of our research.

Judicial and administrative forms of extraordinary jurisdiction should comprise the subjective and objective basis of activity of city council in a corresponding direction. As the subjective basis we consider personal belief of city council in necessity to follow [40 [41] [42] defined by for settlement of the arisen disagreement. The objective basis is actual possibility of realisation of the imperious powers from a legality position (conformity to the law) and to legitimacy (public support).

Obviously, extraordinary intervention of city council finds out indissoluble interrelation between both elements. Realising the powers, the official connected internal motive with its consequences obektivizatsii and the decision counting on a positive outcome of the actions, that is their support by the law and (or) public opinion made. Thus crucial importance has the objective basis of extraordinary jurisdiction as it is mediated by external factors while the subjective basis is independent.

Dispute on in what force of the right the judicial city council dared to reform and develop has long-term history

Operating in PnMejus civile. Empires, interpretation or public approval underlay transformation of the civil right bjus honorarium, processed in interests of vital application with certain adaptations, replenishments and corrections (juris civiIis adjuvandi, supplendi et corrigendi gratia (Pap. D I. 7. I). '

Resulting the theses specified above, V.M.Nechaev refers to I.A.Pokrovsk as in activity Roman претора.2 I.A.Pokrovsk in this occasion in the opening statement on thesis for a doctor's degree protection said on October, 20th, 1902 the supporter of a base position of public approval, that pretorskoe creativity has reached the apogee during a republic epoch when it occurred on eyes at the people under the constant control of live public opinion. The similar situation excluded 1 possibility произвола.1 Imperativeness of last thesis it is quite possible to confute historic facts. For example, public opinion has not prevented pretoru Berresu during a republic epoch to crucify the Roman

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Citizen Gavija, exclaiming thus: “Look at laws and freedom!”.

But the given ascertaining of the facts at all does not mean, that Pokrovsk put legitimacy of activity pretora in the head of a corner in a question on the objective basis of activity of city council. Though it is possible to recognise, that certain influence on jurisdiction was rendered by its publicity.

Earlier in the speech, underlining feature pretorskoj the authorities, the mentioned competitor of doctor's degree explained the vision of a situation by that on pretore the duty lays to protect the public world. For achievement of this purpose it is supplied by completeness empire. Not having possibility to cancel norm of the law, the city council quite could ignore it. It also ennobled it over the law. [43 [44] [45]

Such position imperatively closes a circle of reasonings on legality of activity of judicial city council on its warrants of law.

And logically conferred powers were legal, even if they have not been limited, as they were not limited by national will, that is will of the legislator.

Hence, the basic question of formation of forms of extraordinary jurisdiction is, whether the judicial city council operated, being a priori is assured of indisputable legality of the actions, or doubting legality of the actions, counted on their legitimacy?

What structure of these powers at various stages of the considered period and how much they are formally defined?

Studying of history of development of the Roman magistracies during the republican period T.Mommzena has led to opinion on fundamental nature of this institute for the Roman republican device within several centuries. In its opinion, without dependence from expansion or narrowing of the competence of a magistracy remained a fundamental principle Roman государственности.1 the Originality of position of city councils in Rome consisted that they have inherited from tsars the huge power - empires in which basis representation about its unity and indivisibility laid. [46 [47]

In a certain measure separating administrative activity of city councils from pravoprimenitelnoj, T.Mommzen connected the beginning of the republican period with a distinct establishment of distinction between the law and the order. The German historian has noticed, that any order of the official not based on the law had a binding force, at least, during term of its stay in a post. Successor possibility to review issue of a suit was a certain guarantee of legality. [48]

We are inclined to agree, that revision before the accepted decisions and was more widespread practice of maintenance of prestige of a judicial magistracy. The most important thing, that the resulted way of updating has really been directed on protection of the laws of persons participating in civil procedure. Simultaneously it is most comprehensible if to admit absence of accurate criterion otgranichenija lawful behaviour of city council at the permission of civil disputes from the illegal.

The designated uncertainty quite can be considered as one of the reasons of absence of working out in a domestic historiography of a question on legal responsibility kurulnyh магистратов.1

Besides, the binding force of orders of officials can be co-ordinated to impossibility of their attraction to court during service life in force maiestas (greatness) of their magistracy. As is known, in a life of the Roman Republic greatness was a significant political phenomenon. Possessing greatness, sacred and inviolable there were the persons executing the state functions. [49 [50]

In connection with formation of a new state system (after exile Tarkvinija Proud) gradual redistribution of the communal power was carried out. At preservation of volume of the rights of a community as a whole, Romans tried to mete optimum them within the limits of various forms of communal representation. [51]

C the beginning of republic and till times Grakhov (II century BC) the Roman society propagandised restriction of the power of officials, simultaneously agreeing, that the people should be operated. This civil question was accompanied by two more contradictions: aspiration of citizens (plebeians and libertinov) and aliens (latinov and italikov) to political equality with patricians; struggle between poor and rich for economic resources. [52]

In more details approaching to evolution of the objective basis of activity of judicial city councils and allocation possibility in it of judicial and administrative forms of extraordinary jurisdiction, we will take advantage of a chronology method in a combination to a historical method.

Last interreks on the basis of the senatorial decision has proclaimed the first republican year the first praetor maximus. This higher ordinary magistracy becomes двухместной.1

Practically at once under Valery's law of 509 BC the higher city councils have lost judicial powers in the field of the most important state and criminal cases. But they directly could take out decisions under private claims (judicia privata). Patricians have tried to return to consuls the higher judicial authority. For this purpose the senate has entered a post of the dictator. However attempts of capture of the judicial authority in 496-494 of BC have led still bolshemu to consolidation of system of division into the public assembly Supreme Court (judicia publica) and the bottom degree of jurisdiction of consuls. As under the authority of consuls, and then - pretorov, there were only private claims initially sphere of their competence was constituted by private law (jus privatum). The important remark at the given stage of formation of the judicial form of protection of the rights is ascertaining of division of all Roman Law already under Valery's law of 509 BC on public and private. The first has appeared in conducting court of public assembly, and the second - in the competence of the Roman judicial city councils. [53 [54]

C the account told, we will address to the further events. As informs Libya III. 9. 1-5), national tribunes of 461 BC Guy Terentily Garsa "has taken up arms" against the consular power, considering it as boundless and immense. Inspiring to plebeians fear before the law, consuls operated wilfully. Thereupon Garsa also has offered the law accurate enough regulation of activity of consuls was which purpose.

The certain counterbalance of the consular power for that moment existed, but power character was its feature not legal, but. So, when after mentioned rogatsii Garsy, consuls have put at a forum of an armchair and began to declare names of recruits, there there have arrived tribunes. According to Libya III. 11. 2) when consular liktor the recruit sufficed, tribunes ruled to release it. According to V.N.Tokmakova, the confidence a tribune was given by a dagger on its belt and public slaves which executed its orders. As a legal basis of activity of defenders of plebeians it is possible to result their sacral inviolability, allowing to limit absolute power of consuls. But the accurate legal order of these restrictions was absent, as generated application power методов.1

During the designated opposition more than in ten years preparation of laws of XII tables which were the first record of a common law of Rome [55 [56] has come to the end, and admit Romance philology a regulator of the power of the higher city councils, including in the field of justice. In it specify messages Libya and Dionisija Galikarnassky about events of first half V century BC in which course these officials were often convicted of abusing the powers. Therefore in the remained fragments of the code frequently there are instructions 10 times activity of the specified persons which are designated in the text by the term "praetor" (Lex XII tab I. la III. 2b III. 5 VI. 6 7 VIII. 9 VIII. 14; XII.). [57]

Obviously, the object in view has not been reached, as already in 443 BC the senate accepts the decision about censorship establishment to narrow powers of consuls as set of these powers caused fear of the Sanhedrim. [58] possible conclusion: in second half V century BC not only plebeians, but also patricians with watchfulness concerned the higher is administrative-judicial city councils, though all for some

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Years purposeful attempt to designate a framework of their competence before has been undertaken.

However at data senatuskonsulta could be and other motive. According to I.L.beacon, from the middle V till first third IV century of century the third period plebejsko-patrician противостояния.1 After the edition of laws of XII tables plebeians BC is observed began to apply for election of consuls from the environment (Pomp. D. I. And. 2. 25). C the purpose of preservation of the civil world and calmness patricians quite could make the decision on withdrawal of a part of powers at consuls in favour of censors that these powers have not got to representatives of plebeians. Simultaneously the aim of derivation of plebeians from the consular post which powers have been cut essentially down could be pursued. [59 [60] [61] anyway, when under pressing plebsa the decision to replace consuls military tribunes with the consular power was accepted, which there were also plebeians (Pomp. D II. 2. 25), patricians in 443 g have allocated BC qualification manufacture from their powers.

About that the second point of view is more true, speaks the status of censors and their political influence. Censors were selected not for a year, and for five years. They have not been subject intertsessii the higher city councils. On their decisions the appeal was not supposed. Except qualification manufacture these persons carried out a finance administration and supervision of customs (Plut, M Cato. 1б). [62]

The specified reflexions bring us to events of 367 BC the New stage of class struggle connected with acceptance of laws Litsinija and sekstija, forces patricians to take advantage of practice of decrease in the political importance konsulata this time at the expense of judicial functions. [63] delivering justice on private disputes was very important sphere

Lives of the Roman society of the republican period. That fact testifies to it, that in 367 BC patricians have preferred to allocate judicial powers from the competence of consuls and to allocate with them patrician pretora in exchange for possibility of plebeians to take one consular place (Liv VI. 42. 11 VII. 1.1).

Other [64] basis of creation extended enough in a science pretury results pompony in Digestah II. 2. 27), referring to frequent departures of consuls from Rome on military affairs and necessity of suitable replacement.

C the account of both points of view, in our opinion, not idle is the question on a choice of a designation for the given magistracy. At the description of events of 368-367 of, Libya unequivocally characterises preturu as the judicial office:

Liv VI. 42.11:

... At last it was possible to appease thanks to the dictator disagreements on such conditions: the nobility has conceded to the simple people, having agreed on election of the plebeian consul, and the simple people - the nobility, having agreed on election of one patrician pretora that that managed court in a city (Per N.I.Kazan)

Liv VII. 1:

... In exchange for one plebeian consul the nobility has received on official places of three patricians sitting in pretekstah on kurulnyh armchairs as if consuls, and praetor also administers justice... (Lane I.V.Braginsky)

The designation of the Roman city councils the term "praetor" (“praetor”) meets already at the very beginning of the republican period. Such designation shaded their military function as it is traditional as concept components are resulted composed "rgae" (in value "ahead", "before") and "eo" or “ire” (in value to "go", "is").1

If in the middle of IV century BC military function was carried out actively by consuls as about it spoke pompony (D. I. And. 2. 27) for what Romans created terminological mess, attributing a designation of the military leader to judicial city council?

Scientific attempts to eliminate the revealed disagreement were reduced to participation ascertaining pretorov in military actions where they should fulfil duties of military leaders. [65 [66]

In such foreshortening not absolutely logical creation of a judicial magistracy with obviously military name seems. The constant excommunication pretorov from a city would entail behind itself negative consequences in the field of regulation of the civil world and an order in the Rome.

In too time the prefix "rgae-" could matter "preliminary", and the word “ire” - “to address to”. [67] Dominating for that moment legisaktsionnyj litigation, as is known, assumed two stages of legal proceedings - before city council and before the judge. Having compared the specified values, it is possible to assume, that in this case the magistracy name specified in its paramount value and the first priority of participation in litigation. In the name it was supposed not rannerespublikanskoe value. Military functions pretorov, selected from 367 BC were not regular and only have sometimes been caused by the arisen necessity.

Though it is indisputable, that potentially pretory military powers possessed, as were carriers empire, formally differing from consuls only impossibility intertsessii in relation to them and twice smaller quantity ликторов.1

In it pretury the remained problem of uncertainty of powers consists in judicial sphere. Creation of the given magistracy though had a special purpose, but was historically accompanied by its investment imperiem which volume was object of discussion C of the beginning of the republican period.

The given uncertainty, apparently, for that moment was a trump of patricians in relations with plebeians. Formally declared judicial powers pretora have really been essentially expanded with the help empire. Having understood it, plebeians within thirty years aspired to get access to the newly founded post and for the first time have occupied it in 337 BC [68 [69]

Further did not promote definiteness in sudebnoadministrativnoj to sphere and the active foreign policy of Rome accompanied by joining to the state of numerous provinces. In II-I century of century BC any special decisions on an order of management by provinces it was not undertaken. The deputy of a province mainly had a rank pretora. Possessing thereupon the judicial authority, the deputy solved difficult legal incidents with application of norms of the Roman Law. [70]

A little pretorov, convicted by provincials in avidity, have been condemned in the mid-fifties II century BC But further created in 149 BC the senate commission for quarter of the century of the existence, obviously, for similar crimes so anybody and not осудила.1

The inefficiency of the mechanism of restriction of imperious powers of the deputy can be tracked on an example pretorskogo edikta Guy Berresa. Last carried out imperious powers in a province Sicily in 73-70 of BC its Formulations edikta were superficial and formal not to limit itself at actual absence of external restrictions. [71 [72] but even such approach to a writing edikta, obviously, did not stop Berresa before direct infringement even its most unequivocal formulations for “he sold all - both justice, and posts, showed full neglect to laws, to own ediktam...” [73]

As is known, convicted under indications sitsilijtsev, Berres has gone to exile. It became possible because of numerous episodes of extortion from the deputy which it was possible to prove TSitseronu, were an accuser, [74]

This rare case of attraction of city council to responsibility is connected with definiteness of criminality of extortion. In due time the bribery was forbidden JUlievym by the law. [75] for exposure of the corrupted city council even the Roman citizenship [76] that testifies to gratitude of the Roman community for the help in struggle against similar socially dangerous actions of officials was given.

Additional criterion of activity of the city council, having republican roots and crucial importance for occurrence and principate functioning, the historiography names auctoritas. According to K.V.Verzhbitsky, TSitseron results the given term in value of special position in the state which occupies the official owing to the personal qualities and merits before fatherland. Therefore the political status of August assumed concentration in his hands of the legal power potestas and imperium, and in the cases which are beyond its lawful competence, August operated on the basis of personal авторитета.1

Capacity of personal authority used directly and judicial city councils. For example, Guy (Inst III. 224) informs, that during its epoch (II century AD) the judge in most cases did not dare to reduce the sum of the tort liability because of authority defined it pretora,

D.V.Dozhdev has come to conclusion, that all extraordinary protection as a whole was based on the administrative power (auctoritas) judicial city council. [77 [78] C the account of the previous paragraph, auctoritas it is possible to consider as subsidiary in relation to imperium the basis of activity of city council in judicial-administrative sphere.

It is possible to notice, that formation of forms of extraordinary protection of the rights occurred in the conditions of the political strike expressed in manipulation by official powers of city councils. But it is real owners of judicial and administrative functions in private law sphere always remained quite self-sufficient. As the objective basis of extraordinary activity which theoretically could carry both positive, and negative character, it is necessary to consider politically steady status of representatives sudebnoadministrativnoj the authorities, leaning not only on the of empires, but also on

The greatness, and on the authority. In a combination to estimated character of activity of city council on consideration of private-law disputes the designated triad promoted extraordinary jurisdiction, both in judicial, and in the administrative form. Negative consequences of this activity were levelled by possibility of revision of the decision

The successor on a post. Only distinctly expressed and proved criminal illegality of the official could entail its condemnation.

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A source: Tumov Victor Viktorovich . The extraordinary jurisdiction in ancient Rome was the epoch of the republic and the period of principle. Thesis for a candidate of law degree. Samara 2005. 2005

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