{"title":"L'emploi des standards en droit romain","authors":"Elena Giannozzi","doi":"10.17159/2411-7870/2016/V22N2A2","DOIUrl":"https://doi.org/10.17159/2411-7870/2016/V22N2A2","url":null,"abstract":"Definir en quoi consiste un standard en droit est une question delicate qui releve plus de l'epistemologie que de la science juridique. En depit de la difficulte a definir le standard, le droit positif francais emploie a plusieurs reprises cette technique, bien que l'apparition du mot \"standard\" en droit francais soit tres recente. Ce terme, qui derive du vocabulaire anglais, apparait en France au cours de la decennie 1920 dans un mouvement de reaction contre la methode de l'ecole de l'Exegese.\u0000Le renvoi au bon pere de famille fut sans doute l'une des utilisations les plus celebres de la technique du standard. La reforme du 4 aout 2014 l'a efface au profit des expressions \"raisonnable\" ou \"raisonnablement\". Le legislateur a maintenu la technique du standard en changeant simplement la reference: la raison se substitue alors au modele du bon pere de famille qui est considere comme incompatible avec la parite entre hommes et femmes.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128928382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Of naval courts martial and prize claims: Some legal consequences of Commodore Johnstone's secret mission to the Cape of Good Hope and the \"battle\" of Saldanha Bay, 1781 (Part 2)","authors":"J. V. Niekerk","doi":"10.17159/2411-7870/2015/V21N2A11","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N2A11","url":null,"abstract":"Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126953286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Cum dignitate otium. Remarks on Cicero's speech in defence of Sestius","authors":"T. Nótári","doi":"10.17159/2411-7870/2016/V22N2A5","DOIUrl":"https://doi.org/10.17159/2411-7870/2016/V22N2A5","url":null,"abstract":"Cicero delivered his speech in March 56 BC in defence of Publius Sestius, who was charged on the grounds of the lex Plautia de vi with acts of violence offending public order/public tranquillity. He convincingly proved that they were measures required by the situation of lawful defence. We need to make it clear: the speech can be considered primarily a brilliantly executed statement of one of the important fundamental postulates of Cicero's philosophy of the state rather than a lawyer's or orator's achievement. Pro Sestio is the first occasion on which Cicero, having returned from exile, was able to formulate his program of rethinking the idea of a res publica harrowed by civil strife and the preserving-renewing reorganisation of the state. In this speech Cicero clearly takes a stand for Sulla's \"constitution\", that is, for what he interpreted as Sulla's constitution: An argument for strengthening the position of the senate meant to govern the state. His defendant was acquitted, owing not only to the brilliant handling of the facts of the case, but most probably also to the political program presented in the speech with such exhaustive details: A captivating pathos that won his audience's approval.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"84 3-4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120918525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"When the Exception is the Rule: Rationalising the Medical Exception in Scots Law","authors":"Jonathan Brown","doi":"10.47348/fund/v26/i1a1","DOIUrl":"https://doi.org/10.47348/fund/v26/i1a1","url":null,"abstract":"No physician who performs a legitimate medical operation on a patient commits a criminal offence or a delict. This is so in spite of the fact that to infringe the bodily integrity of another person is plainly both a crime and a civil wrong. Notwithstanding the fact that the patient may desire the operation, the 'defence' of consent cannot possibly justify the serious injuries intentionally inflicted in the course of, (say) an amputation, since this procedure is highly invasive and effects irreversible changes to the patient's physicality. The 'medical exception' is consequently invoked to preclude prosecution of medical practitioners who carry out procedures which involve serious wounding. Quite where the justification for the medical exception lies remains controversial. The exception has long been justified axiomatically, by reference to the existence of surgery as a profession, or has otherwise been held to be of sui generis character. Herein, however, it is submitted that its basis in Scots jurisprudence, can be found in the etymology of the term 'injury'. At its core, the crime/delict of injury served to preserve and uphold boni mores – good morals. Conduct which contumeliously affronted the dignity of a person could clearly be classified contra bonos mores, but it is apparent that iniuria may be effected even in instances in which there could be no subjective affront to the individual person. This provides a rationalisation for the medical exception: 'Proper medical treatment' is not contra bonos mores and so cannot be said to amount to injury or assault.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123758415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A historical review of the development of the post-apartheid South African LLB degree - with particular reference to legal ethics","authors":"N. Whitear-Nel, W. Freedman","doi":"10.17159/2411-7870/2015/V21N2A2","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N2A2","url":null,"abstract":"This article considers the historical, political and social context of the LLB degree - especially insofar as it pertains to teaching legal ethics. It reviews the role of the law, the legal profession and the system higher education not only during the apartheid era, but also during the transition to democracy and in contemporary South Africa. In addition, this article also provides a detailed explication of the efforts to transform legal education since 1994. Aspects which are especially relevant to the question of legal ethics in the LLB degree are highlighted. Finally, the current state of legal education in South Africa is discussed.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122907754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tamás Nótári Law and Society in Lex Baiuvariorum : book review","authors":"Magdolna Sič","doi":"10.17159/2411-7870/2015/V21N1A10","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N1A10","url":null,"abstract":"In this monograph, Tamas Notari investigates certain legal and socio-historical aspects of the lex Baiuvariorum, but also gives ample space to a philological analysis of its Medieval Latin. The first chapter (Historical and social background - Bavaria in the eighth century), examines Bavaria's history and society during the first half of the eighthcentury. Specifically, it deals with Bavaria's home and foreign affairs and church organisation, and certain issues pertaining to the structure of society, namely,the evolution of the Bavarian nobility and the status of freemen and slaves. It furthermore analyses the end of the independent Bavarian Dukedom, focusing on the dethronement of Tasilo III, the last duke of the Agilolfing dynasty, and the legal background of the dethronement.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127289528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"In memoriam János Zlinszky (1928-2015) : orbituary","authors":"T. Nótári","doi":"10.17159/2411-7870/2015/v21n2a15","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/v21n2a15","url":null,"abstract":"Am 18 Juni 2015 ist der Doyen der ungarischen Romanistik, Janos Zlinszky, emeritierter Professor und Grundungsdekan der Staats- und Rechtswissenschaftlichen Fakultat der Pazmany Peter Katholischen Universitat, ehemaliger Verfassungsrichter der Republik Ungarn, korrespondierendes Mitglied der Osterreichischen Akademieder Wissenschaften in seinem 88. Lebensjahr verstorben.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126614368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Le Gout des jeunes pousses: Atticus, Brutus, Octave","authors":"Yasmina Benferhat","doi":"10.17159/2411-7870/2016/V22N1A2","DOIUrl":"https://doi.org/10.17159/2411-7870/2016/V22N1A2","url":null,"abstract":"Youth in politics might be a default - a lack of experience justifying waiting for your turn - or an advantage, as a promise of renewal and energy. In ancient Rome youth was something more positive than one could expect: the Roman people, if not the Senate, was fond of young leaders like Scipio Nero, whilst Galba was despised for being too old. This paper aims at studying the case of two young men in the Late Republic - Brutus and Octavian - through their relationship with a much older man, Atticus. The first part focuses on Brutus, born approximately 85 BC and belonging to the ancient elite like Atticus, who was considered a promising young leader of the Optimates since his beginnings in 58 BC until his misfortune in 44-43 when he could not manage to apply the murder of Caesar to his own advantage. The second part concerns Octavius, the real young man, born in 63. He was nineteen years old when he became Caesar's heir, while Brutus was already forty. The vocabulary is revealing: Octavius is called puer by his opponents, but he is an adulescens for the Caesarians, and Brutus is described as an adulescens though already a iuvenis. Atticus, who always helped Brutus, had to change his way: a wedding between Attica and Agrippa, planned by Antony, resulted in him finally belonged to Octavian's party. Octavian, the new man who had won the war, needed a symbol of the old elite and of Republican Rome. Atticus had to save what could be saved.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124437452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Basil Edwards : 1930-2014 : obituary","authors":"Joan Church","doi":"10.17159/2411-7870/2015/V21N1A13","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N1A13","url":null,"abstract":"The passing of Professor AB Edwards in January 2014 was a sad moment - not only for his family, but also for his friends and former colleagues, and particularly those formerly and presently at the University of South Africa. As one of the latter I am honoured to write a tribute in memory of him and the thoughts of him that I share are written in that vein.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134095543","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Bemerkungen zur Beweisführung in Ciceros Cluentiana","authors":"Tamás Nótári","doi":"10.17159/2411-7870/2015/v21n1a5","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/v21n1a5","url":null,"abstract":"The speech for the defence in the criminal action (causa publica) of Aulus Cluentius Habitus, Cicero's longest surviving speech, dates back to the year 66 when Cicero was praetor. In certain respects, it is the jewel in Cicero's ars oratoria, since its narrative is vivid and full of twists and turns like a crime story. Events, scenes and time sequences follow one another in a dramatic, sometimes seemingly illogical fashion, but in view of the effect the orator seeks to attain, in an exactly premeditated sequence. One charge against Cluentius was that he had poisoned his stepfather, Statius Albius Oppianicus. Another charge was based on the criminal proceedings that had been instituted eight years previously, when Cluentius had charged Oppianicus with attempting to poison him, which resulted in Oppianicus being forced into exile. In the current lawsuit, however, the prosecution alleged that the court in the previous case had declared Oppianicus guilty purely because Cluentius had bribed the judges. The lex Cornelia de sicariis et veneficiis of 81 was applicable with regard to charges of poisoning. However, that law prohibited bribing only those judges who belonged to the order of senators, and Cluentius belonged to the order of knights. First, I outline the historical background of the oration, that is to say, the facts of the case; then, I turn my attention to the possibility of applying the lex Cornelia de sicariis et veneficiis to the case. Finally, I examine Cicero's oratorical strategy of addressing, modifying or distorting the charges and their chronology in order to back up his argument, which lawyers, too, will regard as brilliant.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132071800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}