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Methodological problems of the study of roman law [Extrait] : individual and civil community / [Dozhdev, D. V.]

Publication : 2003 In : Vestnik Drevnej Istorii, 245 fasc. 2, ISSN 0321-0391Description : p. 91-111Langue : Russe. Auteur principal: Dozhdev, D. V Résumé : To use the material of Roman law in historical science, one must have an adequate method of studying it in accordance with the nature of law. Formal nature of law implies a formal approach to legal norms and institutions. Interpreting an abstract legal form from the point of view of its contents results in distortion of historical reality. An example of such distortion is the well-known concept of the renowned Soviet classical scholar E.M. Shtaerman, who calls in question the existence of private property and the state in Republican Rome and under the Principate. According to her doctrine, all the land in Rome belonged first to terrirorial communities ("pagi") and later to the whole of the civil community ("civitas"). Elaborate law of estate ("iura in re") appears to be a system of surrogate forms ensuring private individuals' (Roman citizens') access to the means of production ; these forms were developped in order to make up for the deficiency of private property where public property was prevailing. Possession ("possessio"), usufruct ("ususfructus") and vectigal law ("ius vectigale") seem to be (in the light of this concept) forms of ownership similar to property and capable of substituting the construction of property. E.M. Shtaerman was wrong in ascribing excessive restrictions to the right of private property in Rome and in describing some institutions in the terms of "split property". A critical analysis of her concept reveals, together with misinterpretation of facts, two methodological defects. Firstly, formal reality is interpreted as substantial reality : forms of legal mediation between individuals and the means of production are seen as if they were real economic objects or acts. Secondly, the social nature of the law and social meaning of private legal forms are understood by the scholar as limitation of an individual freedom, i.e. as a historically attested submission of individual to the society. Consequently, legal unity of the society is regarded as public property and state forms appear to be communal ones....Sujets:droit -- loi -- pagus -- possession -- usufruit -- individu -- communauté -- société -- historiographie soviétique Chrono: Antiquité romaine Mots libres: civitas -- droit romain .
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résumé anglais

To use the material of Roman law in historical science, one must have an adequate method of studying it in accordance with the nature of law. Formal nature of law implies a formal approach to legal norms and institutions. Interpreting an abstract legal form from the point of view of its contents results in distortion of historical reality. An example of such distortion is the well-known concept of the renowned Soviet classical scholar E.M. Shtaerman, who calls in question the existence of private property and the state in Republican Rome and under the Principate. According to her doctrine, all the land in Rome belonged first to terrirorial communities ("pagi") and later to the whole of the civil community ("civitas"). Elaborate law of estate ("iura in re") appears to be a system of surrogate forms ensuring private individuals' (Roman citizens') access to the means of production ; these forms were developped in order to make up for the deficiency of private property where public property was prevailing. Possession ("possessio"), usufruct ("ususfructus") and vectigal law ("ius vectigale") seem to be (in the light of this concept) forms of ownership similar to property and capable of substituting the construction of property. E.M. Shtaerman was wrong in ascribing excessive restrictions to the right of private property in Rome and in describing some institutions in the terms of "split property". A critical analysis of her concept reveals, together with misinterpretation of facts, two methodological defects. Firstly, formal reality is interpreted as substantial reality : forms of legal mediation between individuals and the means of production are seen as if they were real economic objects or acts. Secondly, the social nature of the law and social meaning of private legal forms are understood by the scholar as limitation of an individual freedom, i.e. as a historically attested submission of individual to the society. Consequently, legal unity of the society is regarded as public property and state forms appear to be communal ones...

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