Professor Gábor Hamza’s inaugural lecture
On October 6, 2004 October 6,
was opened by Ádám Török,
Chairman of the Section of Economics and Legal Science of the
Professor Hamza started his inaugural
lecture by emphasizing the contemporary significance of Roman law traditions.
He pointed out that the idea of classification (divisio) of the Roman legal system originated in ancient Greek
philosophical thinking. He also emphasized that the classification or partition
(divisio) of ius civile is in no way related to the present-day classification
of the legal order (system) into various “branches” of law, particularly in
civil law jurisdictions. The notion of the ius
civile, comprising originally the entire legal order of the
Professor Hamza also referred to Cicero, who considered the ius civile and the ius praetorium to be of equal rank. In the classical period of Roman law the ius civile merged with the ius praetorium. This merger, i.e. the gradual fading away of any distinction between the two, was due in particular to the fact that the ius praetorium lost its role as a vehicle for renewal of the legal order. Since then, ius civile has become synonymous with ius privatum including the law of persons, family law, real rights, the law of obligations and the law of successions, as opposed to the ius publicum relating to the res sacrae, sacerdotes and magisratus according to the jurisconsult Ulpianus [«in sacris, in sacerdotibus, in magistratibus»] (D. 1, 1, 1, 2). On the basis of this distinction (divisio) between ius publicum and ius privatum, it is obvious that this divisio has significance exclusively from the point of view of the iurisprudentia. This is due to the fact that this divisio is more a classification than a definitio.
Professor Hamza further pointed out that
the notion of the Roman ius privatum was
not identical with the notion of the private law (droit privé, diritto privato, derecho civil, Privatrecht, etc.)
known in contemporary legal orders. The same holds true for the notion of the
Roman ius publicum in relation to the
modern comprehension of public law (droit
public, diritto pubblico, derecho publico, öffentliches Recht, etc.) in
contemporary legal orders. This
difference is due to the fact that the Roman notions of the ius privatum and the ius publicum originated in totally
different social and economic circumstances. Gábor Hamza drew attention to the
fact that this divisio was not merely
a theoretical one but instead adequately reflected Roman reality. Supporting
this conclusion, Professor Hamza offered the acquisition of property as an
example. When the
Gábor Hamza mentioned that for the Roman jurisconsulti the divisio of the legal system into “branches” was merely a form of scientific classification without any practical significance. The distinction made by Ulpianus is by no means one of a theoretical nature. Professor Hamza emphasized again that this divisio is rather a form of general classification rooted in Greek philosophical thinking. He placed particular emphasis on analyzing the famous late 12th century dispute between the two outstanding Glossators, Placentinus and Azo Portius. Placentinus († 1192) first clearly separated the legal system into ius privatum and ius publicum, considering these two “branches” of law as duae res or real existing things. Azo heavily opposed this idea, insisting on the necessity of keeping the unity (unitas iuris) of the legal order. Since Azo was convinced of the necessity of the unity of the legal order, he rejected the diversitas rerum vel personarum, pointing out that the separation of the ius publicum from the ius privatum could exclusively assume the function of orienting lawyers.
In the next part of his presentation,
Professor Hamza drew attention to the structure of the Codex Iustinianus, emphasizing that the last three books (Tres libri) of this Code contained
exclusively public law related edicta
(constitutiones) of the Roman
emperors. Of particular significance from the viewpoint of the development of
public law is the subsequent interest towards the Tres libri expressed both by the Glossators and Commentators.
Andrea Bonello da Barletta (c 1190—1273), the highly-reputed follower of the
Gábor Hamza remarked that Bartolus de Saxoferrato (1313/14-1357) also commented in a number of his tractatus (for instance in the Tractatus repraesaliarum, Tractatus de tyrannia, Tractatus de regimine civitatis, Tractatus de statutis) on public law related matters. Bartolus commented on all parts of the Corpus Iuris Civilis including a number of questions relating to public law. In those treatises (tractatus), this outstanding Commentator dealt with such extremely important matters as the relation between State (imperium) and ecclesiastical power (sacerdotium).
Gábor Hamza next emphasized in his
presentation that the non-existent divisio
into “branches” of the legal order in ancient
Most representatives of the public law
Next turning to English jurisprudence,
Gábor Hamza noted that Sir Thomas Erskine Holland considered private law as
«the only typically perfect law» in his work Elements of Jurisprudence which was published in 1880. Referring to
Frederic William Maitland, Professor Hamza cited the following passage of the
English author: «Our whole constitutional law seems at times to be but an
appendix to the law of real property», taken from Maitland’s Constitutional History of England,
published posthumously in 1908. This phrase is characteristic of what outstanding
significance English authors attributed to real property, refusing the idea of
the divisio of the legal order into
“branches”. It is worthy to mention the ideas of Sir John Salmond, the
In the French legal doctrine, Léon Duguit, followed Ulpianus’ concept, underlining in his work Traité de droit constitutionnel, the relative nature of the divisio of the legal system into public law (droit public) and private law (droit privé) and emphasizing that the idea lying behind this divisio served exclusively the purpose of classification.
Referring to a number of examples, Professor Hamza proved that Roman law did not recognize a separation between public and private law as it is recognized today. He pointed out, in compliance with the thoughts of Azo, the danger of this separation. The division is hardly able to provide any contribution to an adequate interpretation and development of law, since it represents the danger of disintegration of the legal system.
Considering the effect of the modern
division between public and private law on legal education, Gábor Hamza Hamza
emphasized that legal education both in the Middle Ages and modern times was
based on the sources (fontes) of law
rather than on the “branches” of the legal system. Professor Hamza mentioned in
this regard the Faculty of Law of the
Professor Hamza’s outstanding lecture on the vexata questio of divisio of the legal system into “branches” reflected the depths of his knowledge in the areas of Roman law, legal history and comparative law, and was generally viewed by the audience as a valuable contribution to solving this centuries old dispute having considerable significance even today.
At the end of the session, Ádám Török solemnly presented the
diploma of corresponding membership in the
Károli Gáspár Reformed University,
Faculty of Law and Political Science
Department of Roman Law