sitek-piccolaBRONISŁAW SITEK

University of Social Sciences and Humanities



The perspective of scientific research on the Roman public law[1]

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Contents: 1. The study of private Roman law only? – 2. The imperium romanum idea in the Middle Ages. – 3. The imperium romanum idea after the fall of the Byzantine Empire. – 4. The imperium romanum idea in modern times. – 5. Return to the idea of Roman Empire imperium romanum in the twentieth century. – 6. The contemporary reference to the imperium romanum idea. – 7. The imperium romanum idea and the Catholic Church. – 8. The history of the research on the Roman public law. – 9. The contemporary research on Roman public law. – 10. The research on Roman public law in Polish Romance studies. – 11. The future of the Roman public law.12. The methodological epistemology. 13. The conclusions. – Abstract.



1. – The study of private Roman law only?


The modern research and teaching of Roman law is generally associated with the private law or in the currently used terminology, with the civil law. The interest in Roman private law was initiated by two practical events. The first of these was the discovery of the Digest manuscript in monastic library in Pisa in the middle of the eleventh century. The manuscript has been stored in Florence (Littera Florentina) since 1406. The Digests became the basis for study and teaching of law, first at the University of Bologna (glossator’s school), and then at the other European universities. The second event was the need for legal regulation for nascent trade and commerce in the Middle Ages[2]. Both branches of the Middle Ages economy required the certain law regulation – it means written law. In the early Middle Ages, the orally passed customary law was mainly used. As a result of both above mentioned events, the implementation of the Roman law and creation of the roman-canonical legal system (ius commune romano-canonico) took place. This system was in use in the most countries of medieval Europe[3].

Further development of the Roman private law was linked to its reception to the needs of the practice of the merchant and the courts. The Imperial Chamber Court (Reichskammergericht) played the crucial role in the application of Roman law in practice. This court, since 1495, was consisted of 16 judges and half of them had to be proficient in the knowledge of Roman law. The Roman private law was applied until the great codification was created, i.e. the Napoleonic Codex of 1804 (Code Civile) and the German Civil Code of 1896 (BGB).

The current studies of the Roman private law, which are reflected in the academic textbooks, are different form the primary division of law generated by the Roman lawyers.


Ulp. 1 inst. (D. Huius studii duae sunt positiones, publicum et privatum. Publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem: sunt enim quaedam publice utilia, quaedam privatim. Publicum ius in sacris, in sacerdotibus, in magistratibus constitit.


According to lawyer Ulpian (c. 170-223), learning and teaching of law should include both private (civil), as well as public law. The basic criterion is to separate the benefits (utilitas) of individual from the state interest. This elaboration concerns the normative regulations relating to the public interest.

Omitting, since the Middle Ages, the Roman public law in the study program was justified by the lack of associations of Roman public law, its rules and institutions with the contemporary organization of the state. Undoubtedly, this is legitimate observation. However, the indication of the similarities or perhaps differences in the organization of society and the dogmatic structure of particular legal institutions can pave the way for the new research on the functions of the institutions of the Roman state in relation to public institutions existing contemporary. In Poland, the new subject - the Roman public law was introduced in many universities on the administration course.



2. – The imperium romanum idea in the Middle Ages


Siber[4] noticed that the institutions and the solutions of the Roman public law, as opposed to the institutions and rules of the Roman private law[5], after the fall of the Western Roman Empire, only marginally have been assimilated into the political and legal systems. To some extent, the terminology or symbolism preserved, for example: successive rulers reigning on the former Roman grounds claimed to be the successors of the Roman emperors. In 476, King Odoacer considered himself a vassal of the Eastern Roman Emperor - Zeno, and thus as a continuator of the Western Roman Empire.

In the Middle Ages, the references were made to the ideology of the Roman Empire through a system of terminology used to describe the rulers. The authority of the emperor was described as imperium, and himself as an emperor. The states were called empires. Charlemagne (Charles the Great) adopted the dignity of the Roman Emperor in 800. The similar situation was with the German ruler – Otto I in 962. However, it was a continuation of the Roman Empire on more ideological and formal than legal level. The concept of the Holy Roman Empire was permanently hooked up with the German throne since the time of reign of Otto I. However, such name of the country has never existed in the German official documents. It needs to be said that also other, less important an rulers, alluded to this idea, for example: in 1077, king Alfonso VI the Valiant proclaimed himself as an emperor of Spain and it was in reference to the idea of the Roman emperors.



3. – The imperium romanum idea after the fall of the Byzantine Empire


After the fall of the Eastern Empire, also called the Byzantine Empire (1453), as Ostrogorsky[6] wrote, its spiritual and political tradition has survived. The religion, culture and the concept of the Byzantine state significantly contributed to the political and cultural life of the European nations, living on the former grounds belonging to Byzantium or bordering with this Empire. The Byzantine version of the Christian religion[7] was the instrument of the identity and cultural autonomy for many of the Slavic peoples and for the Greeks for centuries of Turkish occupation. The marriage of Ivan III with Zoa, daughter of the last Byzantine emperor Thomas Palaeologus was a symbol of the adoption of the Byzantine values by the Slavic nations. In this way, Moscow became the Third Rome, after proper Rome and Constantinople. Later, the Byzantine culture was evident in the architecture of the Orthodox Church, especially in the icons, but also in the despotic way of governance by the Tsars, the first secretaries of the Communist Party and finally by the presidents of Russia.



4. – The imperium romanum idea in modern times


The term Sacrum Romanum Imperium Nationis Germanicæ has been legally sanctioned in 1512, and referred to the union of the Christian territories in Central Europe, existing until 1806. Part of the union was the Austrian State. In 1804, as a response to the announcement of the French Empire by Napoleon, the Austria also became the empire, and this legal status lasted even after the collapse of the union in 1806. However, the Austrian Empire did not refer to the idea of the continuity of the Roman Empire, precisely because of their actual dependence from the German Empire.

Napoleon Bonaparte, who in 1804 proclaimed himself as a emperor, rejected the legitimacy of referring to Roman law and the symbolism of imperium. Although, he was not consistent in this. He created his own system of law (the Napoleon’s Code), but similar to Roman emperors proclaimed constitutions. Despite the apparent unwillingness to Roman matters, Napoleon willingly referred to the symbolism of Rome, which is reflected in the numerous paintings and sculptures dedicated to him during his lifetime. Also, Bonaparte III, who in the years 1853-1870 created the Second French Empire, referred to the idea of empire.



5. – Return to the idea of Roman Empire imperium romanum in the twentieth century


Return to the symbolism of the Roman Empire came with the twentieth-century totalitarian systems. Both fascism and communism referred to the figure of the dictator. The name of fascism comes from the Latin word fasces – it means a bound bundle of wooden rods combined with an ax, carried in front of the highest priests and other Roman magistratus by the lictors. The number of lictors corresponded to the rank of official. The bound bundle of wooden rods was a symbol of authority and the ax symbolized the power over citizens’ life and death. The Nazis used a traditional Roman salute, which involves pulling out the left hand and lifting it up. The words ave Caesar were replaced by the phrase heil Hitler. Another symbol coming back from ancient Rome, and used in later cultures, including the Nazis, was the swastika – a broken cross.



6. – The contemporary reference to the imperium romanum idea


Nowadays, many countries describes themselves as a republic - res publica, it means that they refer to the republican ideology. At the same time, these nations appeal to democratic values, which cause blurring of clear boundaries between the two forms of political system. The mixing of elements of the ideology of the Roman republic of Athenian democracy took place in the European political doctrine. According to the Republican, nation is made of full citizens and they are the subject of authority. The most important issues of the state are decided by these citizens. However, on their behalf, decisions are taken by the elected authorities who have a very strong position in the political system, for example: the president of the United States. In the typical democratic systems, the power is dispersed and decision-making system is not entirely clear. Thus, in democratic countries, the system of controlling and responsibility of government is functioning poorly.

Some similarities can be searched in modern institutions functioning as Roman popular gatherings during which people expressed their will. Currently, the will of the people is expressed through elections and referendum institution unknown to the Romans. The remains of direct democracy can be found even in article 36, paragraph. 1 of the Act of 8th September 1990 on the Local Government (Dz.U. 1990 Nr 16, poz. 95), where the legislature has decided that the legislative body of the rural administrative unit is the meeting of all people living in the village. All the inhabitants of villages are entitled to adopt resolutions on matters relating to their community. Meeting of citizens (Landsgemeinde) are also held in some of the Swiss cantons, especially in small towns. Many elements of Roman electoral system can be found in the contemporary organization of elections. Other more specific issues will be indicated in the text.



7. – The imperium romanum idea and the Catholic Church


The most institutions of the Roman system are preserved in the Catholic Church. In canon 218, § 1 of the 1917 CIC, the Pope was determined, as pontifex maximus[8], which is a clear reference to the titulary of Roman emperors. Papal power was defined as potestas in universam Ecclesiam per totum orbem (canon 218, § 1 of the 1917 CIC). In canon 230 of the 1917 CIC, the cardinals were named as the highest officials, forming Pope’s senate (Cardinales Senatum Romani Pontificis constituunt …). The cardinals make Consistory (consistorium), which is a clear reference to the bodyguard council of Emperor (canon 231 § 1 of the 1917 CIC). The legal acts issued by the popes were determined as constitutiones (for example: canon 1125 of the 1917 CIC). It was a reference to the terminology and ideology of the principate, especially the dominate period and it was the period of absolute power. In the Code of Canon Law of Pope John Paul II of 1983, the earlier terminology was essentially abandoned, although in canon 353, § 1 of the JPII CIC, the congregation of cardinals is defined as consistorium. The papal authority is still termed as potestas (canon 333, § 1 of the JPII CIC), and its range covers the entire humanity (canon 332, § 1 of the JPII CIC)[9]-




8. – The history of the research on the Roman public law


The contemporary lack of greater interest in the Roman public law by Roman experts is mainly due to the direction of research imposed by Mommsen, which Roman political institutions pushed into the realm of distant history, with no contemporary references[10]. He focused on the study of Roman private law. Now, it is the mainstream of Roman law research and all studies of Roman public law have secondary character. The result of which was the fact that the Roman public law generally became a subject of study of historians of antiquity, not the law historians.

Among the studies on the Roman public law, there are the works on the history of Rome[11], the Roman political system[12], the authorities[13], the emperors[14], the municipium[15] and the social problems[16]. The textbooks on the Roman public law[17] or elaborations involving primarily issues of public Roman law combined with elements of the Roman law system, including the private law[18] are a separate group.

In the interwar period of XX century, the crisis of studies of Roman law was emphasized by Koschaker[19] in his written address to the German Law Academy in Berlin. On the one hand, this German scholar noticed the crisis of Roman law science in Germany caused by German nationalism and on the other hand, he urged to seek the possibility of its solution. Koschaker appealed to the concept of europäische Kulturgefühl. The Roman law is, in fact, the part of European legal culture. In this way, there was further tendency to see the research on the Roman law only from the historical prospective. The next necessary condition to seek a solution of the existing crisis was the assumption that nationalism and Roman law are part of European culture. This very risky and controversial thesis was concluded in the introduction to Koschaker’s elaboration.

Koschaker, at particular points of his elaboration, presented the importance of Roman law in European culture, starting with the glossators, through the reception of Roman law in Germany and ending with the release of the BGB. He also showed the influence of Roman law on European lawyers and legal thought, especially in the German pandectists and the interpolation trend. Koschaker’s deliberations concerned mainly on the relationship of history and present times with the Roman private law. Only the first part refers to the European reception of certain institutions of public law during the Middle Ages in the Catholic Church. Therefore, we can talk about the cultural and political Romidee. The term Romidee means primarily the concept of the Roman Empire reign over the world. This concept functioned in the Middle Ages and it meant to seek the Roman ideas in the concept of the city, the state or the church[20].

Koschaker continued his thoughts in the post-war work entitled Europa und das Römische Recht, published in Munich and Berlin in 1958. Europa according to this Author is primarily a cultural phenomenon - a combination of Germanic and classical schools of thought, where classical means the Roman culture and Christianity. Europe received its contemporary political shape from Charlemagne (Charles the Great). He, referring directly to the Roman tradition, became the political representative of Western Europe. He created imperium christianum, which has been shattered by the Reformation. The unity of European culture was continued for centuries in the Latin liturgy of the Catholic Church. Thus, the clergy and popes have become the representatives of Europe.

The studies on Roman public law can be found in other parts of the world, including Turkey, Kazakhstan and Georgia. This phenomenon can be explained by the fact that Europe cannot be seen as a geographical land only. According to the ancient Greeks, there were three continents, Asia, Europe and Libya, or North Africa. Greece was located in Europe, and according to their point of view, it also included Thrace, the Bosphorus and Pontia in Asia Minor. Herodotos in his work called the Histories 1.4 wrote that Asia and Persia is inhabited by barbaric peoples, while Europe and everything what is under the influence of Hellenic culture is separated from them just because of the developed culture, including political culture.

The cultural boundary of Europe has always been a problematic matter. In the Middle Ages, there was a clear division of Europe into East and West. Only the last part (West) was classified as proper Europe. While the first one (East) was only a frontier, for example: the Balkans entered to the political culture of Europe in the nineteenth century. It should not be also forgotten that European culture was distributed in Asia and Africa through a system of English or French colonies and in South America by Spain and Portugal settlements. Also today, many elements of Roman culture, in the field of both private and public law, could be found. Thus many Italian and Spanish Roman researchers lecture on Roman law at the universities of Brazil, Venezuela, Peru and Mexico.



9. – The contemporary research on Roman public law


The analysis of scholarly works on the Roman state shows that the studies have had essentially historical character. The Burdese’s textbook[21] is an expression of historicism in the study of Roman public law in which there are no references to contemporary solutions. The scheme of this work is typical for the development of particular types of political structure of Rome. Similarly, Tondo’s textbook[22] should be evaluated and understood. It refers to the Roman constitution only from the historical perspective with no contemporary references.

A lot of research on Roman public law was devoted by Torrent[23]. According to him, with the implementation of the BGB, the civil law was separated into historical and dogmatic. The first one was led by Roman law researchers, and the second became a subject of interest of civil law scholars. Torrent believes that many researchers support the thesis of the continuation of the Roman system solutions in the Middle Ages. Already in the twelfth century, along with the glossator’s school, there was a clear emphasis of research on private Roman law. The public law only marginally continues to be employed. According to the Spanish Roman scholar, the attention should be paid to the fact that at that time, there was a break of Europe into small kingdoms and feudal principalities which did not want to be associated with the Roman Empire. The studies on political institutions were carried out only to the extent that was necessary to explain the development of institutions of civil or process law, for example: the institution of Praetor was extremely important for understanding of the development of Roman process itself and the system of complaints.

Torrent, similarly to Koschaker, argues that the crisis of the education of Roman public law is linked to the rise of totalitarian regimes in the twentieth century. Fascism alluded to the symbols and gestures of Rome, which raised aversion to the study of Roman law. The communist ideology, on the other hand, fought against Roman law as a manifestation of bourgeois society.



10. – The research on Roman public law in Polish Romance studies


In the Polish Romance studies, Kunderewicz[24] was one of the first Roman scholars dealing with the Roman public law. Currently, it is an area of interest of several Polish Roman researchers concentrated in academic centres of Warsaw, Olsztyn and Lublin[25]. The most dynamic is the Lublin centre, organised around Kuryłowicz, who is an author of numerous publications on the aediles curules, and publications relating to the Roman criminal law. Currently, this trend of research was undertaken by Dębińskiego from KUL (the Catholic University of Lublin), who along with his colleagues published a textbook on the Roman public law[26]. In Warsaw, Zabłocki and his co-workers from UKSW (the Cardinal Stefan Wyszyński University in Warsaw) deal with the Roman public law. They are the authors of the textbook on the Roman public law[27].

Incidentally, Longchamps de Bérier[28] deals with the Roman public law. In the Olsztyn centre organised around the author of this introduction, in 2005, one of the two first scripts in Poland on the Roman public law was published[29]. Exclusively, the Roman public law is a field of research of Świętoń[30]. Currently, thanks to a grant from the Ministry of Science and Higher Education, the textbook thoroughly worked and adapted to the requirements of students majoring in administration was published. In Olsztyn, for the first time in Poland, the academic subject of Roman public law was introduced to the students of administration course.



11. – The future of the Roman public law


Writing textbook on the Roman public law must raise the question of its practical usefulness, and consequently about the sense of further research and conducting classes with the same name on several public and private universities in Poland[31]. The answer to this question is not simple, and depends primarily from the model of education. It is assumed that for the academic field of law the basic education model is aimed to acquaint the student with the system of law in the area of civil, criminal, administrative and constitutional law. The legal-historical and theoretical subjects are increasingly constrained in order to give more place for positivist subjects. This trend raises the question about the shape of the lawyer formation. During the European meeting of deans of law faculties in Lublijana in February 2010, it was clearly stated that the academic field of law should not only educate technicians and engineers of the law. The lawyers have always been people of culture, hence Ulpian[32] said that Iuris prudentia divinarum est rerum atque humanarum notitia, iusti iniusti scientia atque (the proficiency in law is the knowledge about divine and human things and the knowledge of what is right and wrong). Almost all deans postulated to retain in the curricula, the private Roman law along the history of law and legal theory. This claim seems to be very reasonable because of the orientation law students to practice as advocates or judges, where private or civil law is mainly useful.

I the education system in Poland, similar to the French model, law faculties are also teaching in the field of administration. In the standards of training for administration, it is decided that the graduate has the ability to use knowledge in their work with the principles of ethics. The graduate is prepare to work as a functionary in different types of the public administration - both, in central and local governments - and to apply the law in non-public institutions. The graduates are prepared for self-improvement and to complement their knowledge and skills in terms of progress of integration processes in Europe[33]. This means that the model of courses in administration includes not only the professional knowledge necessary to practice as a public official, but also the ability to understand the mechanisms of administration during the past times. The subject called the history of administration covers only the period of the nineteenth and twentieth centuries. The development of the administration in the Middle Ages and in the ancient times is completely ignores. This education gap could be very well fill with the academic course of the Roman public law, which allows us to understand the development of the Roman state institutions and bureaucratic apparatus, the state which had the longest and uninterrupted existence in the history of humankind.

The appropriateness and rationality of Roman law study is expressed by Giaro in one of his publications. According to this Author, the micro-models of public law should be examined. The central concepts such as state sovereignty, constitution, legality or legitimacy are still valid for contemporary states. The Giaro’s sentence is worth to be quoted here: « Non rimane quindi che la pura soddisfazione cattedratica di poter istruire i cultori del diritto vigente sul fatto che anche molta sapienza pubblicistica è antica»[34]. In this way, the new textbooks are created not only in the area the latest developments of the study of Roman private law[35], but also there will be a new textbook, containing the latest research and methods, in publicistic area.



12. – The methodological epistemology


One cannot speak about the continuity of contemporary public institutions with those that have been developed within the state of Rome. However, there are similarities and differences or similarities in the differences due to the variety of solutions and institutions dealing with similar problems. The similarities of problems stems from the repeatability of many elements of the society organizations, according to the order, which is suggests by a practical reason. Baroni[36] notes that the contemporary publicism, and even research in the era of globalization, accidentally chooses a reference to the elements of the political order of the Roman Empire. He uses even the concept of uncontrolled referring to the experience of ancient Rome (uso incontrollato). Therefore, incidental method, based on similarities (per somiglianza) or existing differences (per differentiam), matching institutions and concepts is used. Baroni suggests that contemporary experience, especially democracy, may be helpful to look again at the ancient institutions of the Roman Republic.

It is reasonable to continue research on the political system of the state of Rome, the mechanisms of its functioning as well as on its individual elements and institutions associated with them. This new look on Roman public law, however, must be made using the modern terminology and the understanding of political institutions. It is also appropriate to demonstrate to students these similarities and differences, based not only on Aristotle's philosophical message about the essence of being and its purpose, but also in conjunction with the functionality of the individual solutions to specific problems.

The current discourse suggests that the studies of Roman public law are mainly conducted from the historical perspective, without reference to contemporary political issues. As an example of this is the elaboration of De Martino, dedicated to the history of the Roman constitution[37], or the work written by Rainer[38]. Naturally, one cannot talk about a simple translation or influence of the Roman public law institutions on today's political structure problems and their solutions.

Lobrano[39] noted that many European constitutions refer to democracy, as to one of the core values. However, in some of them, the freedom which lies at the root of liberalism is mentioned in the first place. According to this Author, liberalism is not a government of the people, but a set of rights and interests of individuals. Therefore, the issue of relationships between individuals and individual to collective become very important. The interest of group and consequently universalistic thinking is disappearing from the scholars’ scope of interest. A system of universal, or in other words, global values, such as self-esteem and respect for others in the same time, social responsibility and the need of belonging, are seen only in the optics of individual interests or interest of social minorities.

How should the research in the study of Roman public law be conducted? The answer to this question not only provides the justification to go beyond the sphere of research on Roman private law, but also may indicate the usefulness of some Roman solutions to seek better answer to the contemporary problems of structure of state.

The research on Roman public law should be carried out with variety of methods. The most important seems to be the functional method or whether it should be said in the plural, functional methods, developed in the end of nineteenth century in the area of social sciences, especially sociology. Without too much going into in the details of methodological epistemology, it must be assumed that the study of ancient times, especially on the state institutions, should not lead to build a new and better political system. It would be enough sufficient to capture the similar and different problems and the ways of solving those issues[40]. The choice of problems and, consequently, the choice of institution are not accidental. The authors were guided by the criterion of validity and utility of ancient problems in relation to contemporary society organisations.

In the view of these methodological assumptions the question is raised of whether the Roman Constitution is a part of European culture of constitutional or systemic law? The question is difficult and there is not one and clear answer to this question. It certainly cannot be proved that there are direct links of the contemporary political solutions with Roman, considering the fact that in ancient Rome, there were as many as four different political systems.



13. – The conclusions


The Roman law is currently associated with the legal studies. In Poland, Italy, Spain, first-year students learn the history and institutions of Roman law. During the lectures, the regulations of privet law are presented, and the rules and institutions of the Roman public law are almost completely ignored.

Désintéressant for the Roman public law was largely due to a medieval need for legally-privet regulations for the purposes of developing the commerce and the trade. The development of research in this area was stimulated by the fact of finding the Digest manuscript in Pisa. The University of Bologna with Accursius was a leading centre in this area. The abandonment of research on Roman public law, however, does not mean a break with the symbolism and terminology of Rome. In particular, the German emperors willing alluded to the idea of the Sacrum Romanum Imperium. Also in the Catholic Church, many references to the institutions and symbols of ancient Rome may be found.

The research on the Roman public law has been completely abandoned in the modern era. Siber strongly rejected the relationship between the contemporary and he Roman political institutions. While, the Roman research done by Mommsen was conducted from the historical perspective. As a consequence of this, the Constitution of the Roman Empire has become the area of interest of the ancient times historians. In practice, however, in the nineteenth and twentieth centuries, the system of absolute power and fascism willingly referred to the terminology, gestures, or symbols of Rome.

The beginning of slow revival of the research on Roman public law In Poland can be noticed in Spain and Italy. The reflections made in this paper are selected by the Romidee line; it means that this is a search of contemporary political, cultural and religious roots in the Roman culture. One can talk about far-reaching similarities of some modern solutions and political institutions with those that have been known and used in ancient Rome. These similarities must be sought primarily in the nature of human being to the organization of social life by similar mechanisms, regardless of prior awareness of their existence. However, the existing differences cannot be forgotten.





Contemporary, the Roman law is associated with the law studies. In Poland, Italy, Spain, the first-year students learn about the history and the institutions of the Roman public law. The current désintéressant for the Roman public law was largely caused by a medieval demand for privet law regulations for the purposes of developing commerce and trade. The development of research in this area was stimulated by finding the Digest manuscript in Pisa. The leading centre for the development of Roman law was the University of Bologna, with Accursius at the forefront. The abandonment of research on Roman public law, however, does not mean resignation from the Roman symbolism and terminology. In particular, the German emperors willing alluded to the idea of the Sacrum Romanum Imperium. Many references to the institutions and symbols of ancient Rome can be found in the Catholic Church. In the modern era, the studies on the Roman public law have been completely abandoned. Siber definitely rejected the relationship between contemporary and Roman political institutions. In addition, Mommsen’s research was conducted from a strong historical prospective. As a consequence, the Constitution of the Roman Empire became mainly the subject of research done by historians of antiquity. In practice, however, in the nineteenth and twentieth centuries, the system of absolute authority and the fascism willingly referred to the terminology, gestures, or symbols of Rome. In Poland, Spain and Italy began a slow revival of the study of Roman public law. The considerations made in this study are selected according to Romidee line. It means that this paper is a search for contemporary political, cultural and religious roots in the Roman culture. One can talk about far-reaching similarity of some modern solutions and political institutions with those that have been known and used in ancient Rome. These similarities should be primarily sought in the nature of human being to the organization of social life according to the similar mechanisms, regardless of prior awareness of their existence. We cannot forget about the existing differences.


Key words: Roman law, constitutional law, electoral law, culture, education, law study.




[Per la pubblicazione degli articoli della sezione “Tradizione Romana” si è applicato, in maniera rigorosa, il procedimento di peer review. Ogni articolo è stato valutato positivamente da due referees, che hanno operato con il sistema del double-blind]


[1] The text of the publication is based on my introduction to A. JUREWICZ and others (joint publication), Rzymskie prawo publiczne. Wybrane zagadnienia, Olsztyn 2011, 13-25.


[2] There is commonly known story about St. Francis. Its main theme is the conflict between son and father. In the St. Francis’ person, typical for the Middle Ages values, such as piety, meditation, poverty and the devotion to the heavenly matters was victorious. While, the St. Francis’ father represented the upcoming era of trade and commerce.


[3] See: W. WOŁODKIEWICZ, Europa i prawo rzymskie. Szkice z historii europejskiej kultury prawnej, Warszawa 2009, 57 ff.; M. CARAVALE, Alle origini del diritto europeo. Ius commune, droit commun, common law nella dottrina giuridica della prima età moderna, Bologna 2005, 254 ff.


[4] H. SIBER, Römisches Verfassungsrecht in geschichtlicher Entwicklung, Leipzig 1952, 1 ff.


[5] The basic division of Roman law is at Ulpian 1 inst. (D. Huius studii duae sunt positiones, publicum et privatum. Publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem (…).


[6] G. Ostrogorsky, Storia dell’impero bizantino, Torino 1993, 509 ff.


[7] It means the Ortodax Church (from Greek: orthos + doxa, meaning correct opinion).


[8] This titulary in relation to the popes was used in numerous documents of the early Middle Ages, the pope thought was recognized as successor of the Roman Empire rulers. On this canvas, the theory of two swords was established. List of documents defining the popes as Pontifex Maximus see: Codex Iuris Canonici, a critical edition of P. GASPARRI, Vaticanus 1918, 64, note no. 1.


[9] However, there is a fundamental difference between the secular understanding of papal authority in the 1917 CIC and the authority of the pope understood as a pastoral dimension only, as it is in the JPII CIC.


[10] The two basic works in this are need to be mentioned: T. MOMMSEN, Römische Geschichte, v. 1, Berlin 1888; v. 2, 3 and 5, Berlin 1889; IDEM, Römisches Staatsrecht, v. 1-3, Leipzig 1887.


[11] B.G. NIEBUHR, Römische Geschichte, v. 1-3, Berlin 1828-1832; T. MOMMSEN, Römische Geschichte…; G. GIANNELLI, S. MAZZARINO, Trattato di storia romana, Roma 1962; A. HEUSS, Römische Geschichte, Braunschweig 1964; A.H.M. JONES, The Later Roman Empire 284-602, v. 2, Oxford 1964; M. CARY, H.H. SCULLARD, Dzieje Rzymu. v. 2, Polish translation J. Schwakopf, Warszawa 1992.


[12] J. MARQUARDT, Römische Staatsverwaltung, v. 1, Leipzig 1881, v. 2, Leipzig 1884; v. 3, Leipzig 1885; T. MOMMSEN, Römisches Staatsrecht...; W. LIEBENAM, Zur Geschichte und Organisation des römischen Vereinswesens, Leipzig 1890; R. ANDREOTTI, L’impero Romano, Milano 1959; J. BLEICKEN, Die Verfassung der römischen Republik, Paderborn 1995; W. KUNKEL, R. WITTMANN, Staatsordnung und Staatspraxis der römischen Republik, II: Die Magistratur, München 1995.


[13] W. LIEBENAM, Forschungen zur Verwaltungsgeschichte des römischen Kaiserreichs, Leipzig 1888; F.M. AUSBÜTTEL, Die Verwaltung des Römischen Kaiserreiches. Von der Herrschaft des Augustus bis zum Niedergang des Weströmischen Reiches, Darmstadt 1988; J. BLEICKEN, Verfassungs- und Sozialgeschichte des Römischen Kaiserreichs, Paderborn 1995.


[14] M. GELZER, Cäsar, der politiker und Statsmann, Wiesbaden 1940; G. BASSANELLI SOMMARIVA, L’imperatore unico creatore ed interprete delle leggi e l’autonomia del giudice nel diritto giustinianeo, Milano 1983.


[15] F.F. ABBOTT, A.Ch. JOHNSON, Municipal Administration in the Roman Empire, Princeton 1926; J.S. REID, The Municipalities of the Roman Empire, Cambridge 1913; W. LIEBENAM, Städteverwaltung im römischen Kaiserreich, Leipzig 1900; R. GANGHOFFER, L’Évolution des institutions municipales en occident et en orient au Bas-Empire, Paris 1963; E. FORBIS, Municipial virtutes in the Roman Empire, Stuttgart 1996.


[16] V. ARANGIO-RUIZ, La società in diritto romano, Napoli 1950; U. von LÜBTOW, Das römische Volk. Sein Staat und sein Recht, Frankfurt am Main 1955; G. ALFÖLDY, Storia sociale dell’antica Roma, Italian translation A. Zambrini, Bologna 1987; P. GARNSEY, R. SALLER, Storia sociale dell’Impero Romano, Italian translation M. Caracciolo, Roma 1989; M. KURYŁOWICZ, Prawo i obyczaje w Starożytnym Rzymie, Lublin 1994; M. BIERNACKA-LUBAŃSKA, Zaopatrzenie w Rzymie w wodę, [in:] Rzym na przełomie republiki i cesarstwa, ed. W. Wrzesiński, Wrocław 1988, 16-25.


[17] E. COSTA, Storia del diritto romano pubblico, Firenze 1920; A. BURDESE, Manuale di diritto pubblico romano, Torino 1987.


[18] M. BRETONE, Storia di diritto romano, Bari 1987; A. GUARINO, Storia del diritto romano, Napoli 1996;


[19] P. KOSCHAKER, Die Krise des römischen Rechts und die romanistische Rechtswissenschaft, München-Berlin 1938.


[20] See. M. SEIDLMAYER, Rom und Romgedanke im Mittelalter, Saeculum 7 (1956), 395-412; M. FUHRMANN, Die Romidee der Spätantike, Historische Zeitschrift 207 (1968), 529–561.


[21] A. BURDESE, Manuale diritto publico romano, Torino 1987.


[22] S. TONDO, Profilo di storia costituzionale romana, Parte prima, Milano 1981.


[23] A. TORRENT, Derecho publico Romano y sistema de fuentes, v. 1, Oviedo 1979, 11-32.


[24] C. KUNDEREWICZ, Studia z rzymskiego prawa administracyjnego, Łódź 1991.


[25] The detailed list of Polish literature on Romance studies in the field of Roman public law is in the elaboration done by M. ZABŁOCKA, Romanistyka polska po II wojnie światowej, Warszawa 2002.


[26] A. DĘBIŃSKI, J. MISZTAL-KONECKA, M. WÓJCICK, Prawo rzymskie publiczne, Warszawa 2010.


[27] J. ZABŁOCKI, A. TARWACKA, Publiczne prawo rzymskie, Warszawa 2011 and earlier edition from 2005.


[28] F. LONGCHAMPS DE BÉRIER, Instytucje rzymskiego prawa administracyjnego?, [in:] Nowe problem badawcze w teorii prawa administracyjnego, ed. J. Boć, A. Chajbowicz, Wrocław 2009, 103-111.


[29] B. SITEK, Tabula Heracleensis (lex Iulia municipalis). Text. Translation. Commentary. Olsztyn 2006; other works of this author: Lex Coloniae Genetivae Iuliae seu Ursonensis i lex Irnitana. Ustawy municypalne antycznego Rzymu. Text, translation and commentary, Poznań 2008 and numerous articles, see the list of B. Sitek’s publication on < http://www.uwm.edu.pl/wpia/v2/index.php?option=com_content&view=article &id=128&lang=pl#mid >. The publication from the Roman public law are also done by A.R. JUREWICZ, La lex Coloniae Genetivae Iuliae seu Ursonensis - rassegna della materia. Gli organi della colonia, RIDA 54 (2007), 215-247 and A. Świętoń in the field of military law.


[30] A. ŚWIĘTOŃ, Organizacja armii rzymskiej, [in]: Rzymskie prawo publiczne, 139-161, Olsztyn 2004; IDEM, Jurysdykcja wojskowa w IV wieku w świetle konstytucji cesarskich. Zarys problemu, [in]: Współczesna romanistyka prawnicza w Polsce, ed. A. Debiński, M. Wójcik, Lublin 2004, 281-288; IDEM, Defensor civitatis. Obrońca praw plebejuszy w późnym cesarstwie Rzymskim, [in:] Człowiek a tożsamość w procesie integracji Europy, 517-521, Olsztynie 2004; IDEM, Przymusowy kwaterunek wojskowy w IV i V w. n. e i związane z nim nadużycia, [in:] Contra leges et bonos mores. Przestępstwa obyczajowe w starożytnej Grecji i Rzymie, Lublin 2005, 343-350; IDEM, Nabycie obywatelstwa w drodze służby wojskowej w starożytnym Rzymie. Rozważania na tle podobnych współczesnych rozwiązań, [in:] Swobodny przepływ osób w perspektywie europejskiego procesu integracji. Atti della IV Conferenza Internazionale dei Diritti dell’Uomo, 464-470, Cacucci Editore, Bari-Olsztyn 2006; IDEM, Przymus służby wojskowej w późnym cesarstwie rzymskim, [in:] Materiały z Ogólnopolskiego Zjazdu Romanistów w Ostródzie 16-18 czerwca 2006, Studia Prawnoustrojowe WPiA UWM Olsztyn 7, Olsztyn 2007, 115-134; IDEM, Desertores et latrones. Problem żołnierzy -rozbójników w świetle konstytucji cesarskich zachowanych w Kodeksie Teodozjańskim, Studia Prawnicze KUL 2-3 (30-31)/2007, Lublin 2007, 85-96; IDEM, De his qui militare non possunt. O zakazie pełnienia służby wojskowej w późnym Cesarstwie Rzymskim (IV i V w. n.e.) w świetle źródeł prawnych, [in:] Studia z dziejów starożytnego Rzymu, ed. R. Sajkowski, Olsztyn 2007, 79-107; IDEM, Some Elements of Centrally Planned Economy in the Late Antiquity? Searching for parallels in the Theodosian Code, RIDA (Revue Internationale des Droits l’Antiquité) 3e série Tome LIV (2007), 501-517; IDEM, Humanitaryzm w rzymskim późnoantycznym ustawodawstwie cesarskim na przykładzie konstytucji zamieszczonych w CTh 9.3, Studia Prawnoustrojowe 9 (2009), Olsztyn 2009, 43-54; IDEM, Dowódcy wojskowi jako patroni humiliores w późnym cesarstwie rzymskim (na przykładzie mowy 47 Libaniusza i listów Abinneusza), [in:] Z antycznego świata. v. 1, Grecja Kartagina Rzym, ed. R Sajkowski, M. Wolny, Olsztyn 2009, 172-195; IDEM, Quod armorum usus interdictus est. Zakaz używania broni w Cesarstwie Rzymskim w IV i V w. n.e. Kilka uwag na marginesie CTh. 15.15.1, [in:] Idea wolności w ujęciu historycznym i prawnym, Toruń 2010, 29-41; IDEM, Rola agentes in rebus w wykrywaniu i zwalczaniu spisków przeciwko władzy cesarskiej w okresie rządów Konstancjusza II (337-361 n.e.), [in:] Ochrona bezpieczeństwa i porządku publicznego w prawie rzymskim, ed. K. Amielańczyk, D. Słapek, A. Dębiński, Lublin 2010, 263-273.


[31] Similar questions is raised by the Roman researchers dealing with the Roman private law or the Roman law theory. Among them is Polish Roman scholar - T. GIARO, who in his publication undertook several times the topic of topicality of the research, for example: IDEM, Dogmatyka a historia prawa w polskiej tradycji romanistycznej, Prawo kanoniczne 37 (1994), no. 3-4, 85-99; IDEM, Aktualisierung Europas: Gespräche mit Paul Koschaker, Genova 2000.


[32] Ulp. l. 2 regul. (D.


[33] The regulation of the Minister of Science and Higher Education of 12th July 2007 on the education standards for particular fields and levels of education, and mode of creation and the conditions to be met by the university to conduct interdisciplinary studies and macro-faculties (Dz.U. 2007, Nr 164, poz. 1166).


[34] P.G. MONATERI, T. GIARO, A. SOMMA, Le Radici comuni del diritto europeo. Un cambiamento di prospettiva, Roma 2005, 146-147, see also: T. GAIRO, Römisches Rechtswahrheiten. Eine Gedankenexperiment, Frankfurt am Main 2007, 419.


[35] The example of such textbook is a work of: W. DAJCZAK, T. GIARO, F. LONGCHAMPS DE BÉRIER, Prawo rzymskie. U podstaw prawa prywatnego, Warszawa 2009.


[36] A. BARONI, Amministrare un impero Roma e le sue provincie, Trento 2007, 11 ff. It is a collective work, in which many Roman scholars presented their point of view on various issues about the organization of the Roman state.


[37] F. DE MARTINO, Storia della Costituzione Romana, v. 1-6, Napoli 1972-1990.


[38] J.M. RAINER, Einführung in das Römische Staatsrecht. Die Anfänge und die Republik, Darmstadt 1997.


[39] G. LOBRANO, Diritto pubblico romano e costituzionalismi moderni, Sassari 1994, 5-115.


[40] About the functional method see: R.M. DURHAM, The Functional Method of Comparative Law, www.law.kuleuven.be/ccle.pdf/  [2 I 2011].