This paper argues that an exchange between Paolo Prodi and Giorgio Agamben on the role of the sacred in European constitutional history can inform the study of early modern history of political thought. Prodi, in his history of the sworn oath (sacramentum), and Agamben, in his history of the curse (sacer esto) and the accursed, or outlaw (homo sacer), explored how these sacred threats and promises, though not purely legal expressions themselves, underpinned the legal order. Through a study of three (...) sixteenth-century legal humanists’ views of the Roman laws concerning these sacred oaths and curses (the sacratae leges), this paper describes a similar interest in exploring the connection between the sacred and the legal order. It concludes that the idea of the commonwealth in the sixteenth century was a complex of legal and para-legal techniques, symbols, and structures in addition to the more frequently studied restoration of classical virtue theory. This paper also provides an edition and translation of Guillaume Budé's discussion of the Roman law of banishment [D. 48.19.2], which was the first legal commentary to assemble the materials relating to the homo sacer. (shrink)

This paper offers a challenge to the conventional view of the lex sacrata which the Romans believed to have accompanied the establishment of the plebeian tribunate. According to most scholars, the lex sacrata was not technically a lex (law), but was rather an oath sworn by the plebs, enjoining them to protect the persons of the tribunes and to punish with death anyone who should harm the holders of this office. Originally it was only this oath that gave the tribunes (...) their power, which developed into a true office of the Roman state only gradually. This interpretation serves as one of the major props in the widely-held interpretation of the early Roman Republic as being characterized by a “struggle of the orders” in which the plebeians formed a revolutionary “state within the state,” separate and distinct from the legitimate state, which was controlled by the patricians. By reexamining the sources for the traditional interpretation of the lex sacrata, this paper shows that all of the evidence suggests that the lex sacrata which guaranteed the inviolability of the plebeian tribunes was, in fact, a law of the Roman community, and that there is little if any support for the “oath” interpretation. With this understanding, a major prop in the communis opinio about the early Republic is undermined. Finally, the paper offers an alternative hypothesis for the role of leges sacratae in the development of the Republic. (shrink)

Les rares réflexions de Karl Marx sur la société socialiste sont imprégnées de la volonté de se prémunir contre l’idéalisme du socialisme utopique. Marx pense l’émancipation à partir de la critique de la théorie économique classique et de celle des limites du libéralisme politique. Mill ne s’inscrit pas dans cette double critique marxiste. S’il radicalise certaines conclusions de l’économie ricardienne et affirme le caractère provisoire des rapports de production de son époque, il demeure prudent : il vise un dépassement du (...) salariat par le développement graduel de coopératives de production et se tient à grande distance du socialisme révolutionnaire considéré comme « davantage un produit du continent que de la Grande-Bretagne ». (shrink)

The old controversy between Legal Positivism and Natural Justice turns out to be fruitless, if we comprehend law as a phenomenon of culture. Then, law is neither mere will nor mere reason. Law, as it is understood in the Western tradition, is rather a contingent system of rules which guides decisions (politics, on the other hand, are guided by aims). Culture, as it is conceived since the age of Enlightenment, can be described as “what results from autonomy”. Law being a (...) valuable phenomenon of culture (Kulturgut), two questions arise. (1) Is there any need for law? It depends on society’s demand for liberty. (2) What does the law need? Law requires autonomy, i.e., the right to enjoy its own culture.Resumen:La antigua controversia entre el positivismo jurídico y la justicia natural resulta estéril si comprendemos al derecho como un fenómeno de la cultura. Consecuentemente, el derecho no es mera voluntad, ni tampoco razón pura. El derecho, como se entiende en la tradición occidental, es más bien un sistema contingente de reglas para la decisión (la política, en cambio, se guía por objetivos). La cultura, tal como es concebida des- de la época de la Ilustración, puede describirse como “aquello que es resultado de la autonomía”. Como el derecho es un fenómeno valioso de la cultura (Kulturgut), entonces se plantean dos cuestiones: (1) ¿Hay necesidad del derecho? Ello depende de la demanda de libertad que tenga la sociedad. (2) ¿Qué necesita el derecho? El derecho requiere autonomía, es decir, el derecho a disfrutar de su propia cultura. (shrink)

The old controversy between Legal Positivism and Natural Justice turns out to be fruitless, if we comprehend law as a phenomenon of culture. Then, law is neither mere will nor mere reason. Law, as we understand it in the occidental tradition, is rather a contingent system of rules which guides decisions (politics, on the other hand, are guided by aims). Culture, as it is conceived since the age of Enlightenment, can be described as „what results from autonomy“. Law being a (...) valuable phenomenon of culture (Kulturgut), two questions arise. (1) Is there any need for law? It depends on the society’s demand for liberty. (2) What does the law need? Law requires autonomy, i. e. the right to enjoy its own culture. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Tolle, LegeCommencement Address at the Dominican House of Studies, May 13, 2022Michael RootTolle, lege. Tolle, lege. "Take up, read." Few such simple words have had such a crucial impact on the history of Christian theology. In the summer of 386, Augustine of Hippo was a torn man. He had come to believe the Gospel, but he could not bring himself to break with sinful habits, habits so ingrained he (...) called them "necessities." His soul was torn between two wills within him, he said, each pointing in a different direction. Nothing seemed able to be able to break the interior logjam. He says that he willed that he would will the good, but not with a complete will, and so he remained paralyzed. After hearing a friend and mentor describe the conversion of Victorinus, a famous Roman teacher of rhetoric, and another friend speak of the monastic retreat of St. Anthony, the spiritual conflict within Augustine reached a fever pitch and he retreated to a corner of the garden in the house he was staying at. Suddenly, from over the wall, he heard a child chanting the words tolle, lege: "take up, read." He could not think of any childhood rhyme or chant that involved those words—they must be a sign from God. So, he rushed over to where a copy of St. Paul's letters was lying, opened it, and read at random. His eye fell on Romans 13:13: "Let us conduct ourselves becomingly as in the day, not in reveling and drunkenness, not in debauchery and licentiousness, not in quarreling and jealousy." As he himself puts in his Confessions: "No further wished I to read, nor was there need to do so. Instantly, in truth, at the end of this sentence, as if before a peaceful light streaming into my heart, all the dark shadows of doubt fled away" (8.12.29). [End Page 9]You who are graduating are now coming to the end of a process that has involved a great deal of taking up and reading. I trust that the taking up and reading has not been to cure you of reveling and drunkenness, not to mention the rest of St. Paul's list, but rather to form you, most immediately within the discipline of theology and for many of you, within the vocation of the priesthood and the Dominican Order. Some of what you have taken up and read has, I hope, been inspiring. I hope that at least on occasion you felt as if a peaceful light was streaming into your hearts. Some of what you read, I would guess, you found mind-numbingly boring. But it is all part of the process.Of course you did more than just take up and read. You thought about what you were reading. You compared it with other things you had read. You related it to your own experience. You discussed it with other students. You wrote about it in papers and on exams. The medieval university master had three tasks: legere, disputare, praedicare—read, dispute, and (in this context) present. You have done much the same thing—reading, arguing, presenting.Reading with this kind of attention does not leave us unaffected. We do not just learn new information; we come to inhabit a different world, with a different landscape and a different population. It makes a difference whether one's effective world includes only places like Washington, New York, and Elizabeth, New Jersey, or also Jerusalem, the old Jerusalem and the new Jerusalem, the North Africa of Augustine, and the Paris of Thomas Aquinas. The person whose imaginative world is mostly populated by characters from Friends and Game of Thrones will be a different sort of person from the one whose imaginative world includes Abraham, David, St. Paul, Dominic, and Alyosha Karamazov. It is as much an exaggeration to say you are what you read as to say you are what you eat. But at least for some of us (and if you are graduating from Pontifical Faculty of the Immaculate Conception, you are probably in this group), at least some of what we read changes not only what we... (shrink)

One of four laws passed by Clodius early in 58 b.c. in some way modified the regulations governing obnuntiatio, the right possessed by magistrates and augurs to obstruct proceedings of the popular assemblies through announcement of unfavourable omens. The precise nature of the change is obscured by the fact that our main source, Cicero, describes it, as he does all of Clodius' legislation, in hyperbolic and polemical terms, alleging that it wholly abolished the right of obnuntiatio, a claim contradicted by (...) other evidence in his writings, which provide many examples of its continuing use. The later ancient sources repeat the substance of Cicero's main allegations and, accordingly, do little to help disentangle the facts from the hyperbole. Inadequate information about the earlier regulations relating to obnuntiatio, which were contained in two laws of the mid-second century, the Leges Aelia et Fufia, further hampers the search for the precise terms of Clodius' amendment. None of this, however, has discouraged speculation. The problem has exerted a peculiar fascination and has generated a succession of careful studies. Five main hypotheses have emerged: that the right of obnuntiatio was taken from curule magistrates; that it was taken from curule magistrates, but only in relation to legislative comitia; that it was taken from both curule magistrates and tribunes, but only in relation to legislative comitia; that it was abolished entirely, but soon restored by senatorial annulment of the reform; that it was left intact, but the assemblies were empowered to disallow it on any given occasion. (shrink)

La historia que Agustín de Hipona nos cuenta de sí mismo en sus Confesiones nos confronta con la esencial ambivalencia del lenguaje y la textualidad. Por un lado, los textos son ocasión para que los hombres se pierdan en cuestiones vanas y para que alimenten su soberbia. Por otro lado, es a través de los textos que Agustín encuentra el camino hacia Dios y la Verdad: la lectura de Cicerón, de Plotino y, ante todo, de las Sagradas Escrituras, lo llevan (...) a la conversión. Sin embargo, la ambivalencia de las letras muestra su mayor tensión en que es el mismo texto de la Biblia el que, al mismo tiempo, lo aleja y lo acerca a Agustín a Dios. En última instancia, la ambivalencia de las letras se resuelve en el modo en que el lector hace uso de ellas, en el modo en que las toma y se las apropia al modo de ser apropiadas por ellas. Las Confesiones son la historia de un letrado, el drama de una lectura que puede condenarnos tanto como salvarnos. (shrink)

Mommsen invented the notion that the ancient sources provide clear evidence for placing the pre-Sullan laws affecting the iudicia publica in two distinct categories, i.e. laws affecting courts in general and laws affecting one court. Fraccaro demolished it, arguing that the term lex iudiciaria had no such precise meaning in the ancient authors and that all the laws to which it was applied, before the Lex Aurelia of 70, were, in fact, leges repetundarum.

Multiple viewpoints have been expressed regarding the principle nulla poena sine lege. Some scholars advocate the inviolability of this maxim because it safeguards personal freedom—an opportunity to do everything not prohibited by law. However, its critics assert that rigid adherence to the principle nulla poena sine lege may do more harm than good. They argue that the maxim, while prohibiting judges from punishing non-criminal acts, makes it impossible for courts to deter them in a timely manner, which, in certain cases, (...) may have a detrimental effect on society. To determine the correct approach to nulla poena sine lege, the paper considers its history in continental criminal law and then analyses the principle theoretically. The examination reveals that two contradictory interests—the need to safeguard personal freedom and the need to combat lawful, yet socially harmful, acts through judicial punishment—cannot be completely ignored in practice. Therefore, the findings suggest a balancing between these interests and propose a way to achieve this compromise. (shrink)

In this article the influence of scientific attitudes of Prof. Mykolas Romeris upon modern administrative justice of Lithuania is investigated by historic and comparative aspects. In the first part of article the Professor’s ideas, stated in the fundamental monograph “Administrative Court”, published in Kaunas, in 1928, about the foundation of the Administrative court are reviewed. Here are also pointed out Prof. M. Romeris’ principal,alternative and critical notes concerning the draft of the Law of Administrative Court, made by the Seimas (Parliament) (...) Committee on April 1940. As due to historical circumstances of that time the Law was not passed, in the second part of this article the author proposes the analysis of which ideas of Prof. M. Romeris and to what ambit they were reflected in the Republic of Lithuania Law on the Proceedings of Administrative Cases enacted in 1999, and improved in 2000. The conclusion is made that in this case almost all principle attitudes of Prof. M. Romeris on the organizing the Administrative court and its competence were realized in this Law. It is also stated that the Law mentioned also embedded some other norms, e.g. the possibility to settle a dispute in a pretrial way in Administrative Disputes Commissions. (shrink)

Does language make moral cognition possible? Some authors like Andy Clark have argued for a positive answer whereby language and the ways people use it mark a fundamental divide between humans and all other animals with respect to moral thinking (Clark, Mind and morals: essays on cognitive science and ethics. MIT Press, Cambridge, MA, 1996; Moral Epistemol Nat Can J Philos Suppl XXVI, 2000a; Moral Epistemol Nat Can J Philos Suppl XXVI, 2000b; Philosophy of mental representation. Oxford University Press, Oxford, (...) pp 37–43 and discussion, 44–61, 2002). I take issue with Clark’s view and argue that language is probably unnecessary for the emergence of moral cognition. I acknowledge, however, that humans unlike other animals seem to posses what Haugeland in Philosophy of mental representation. Oxford University Press, Oxford (2002) terms ‘norm-hungriness’: an idiosyncratic need or desire to create and abide by a multitude of norms. Our peculiar norm-hungriness, I suggest, depends on what can be called florid control rather than on language. (shrink)

The way of laws is as much a defining feature of the modern period as the way of ideas; but the way of laws is hardly without its forks. Both before and after Descartes, there are philosophers using the concept to carve out a very different position from his, one that is entirely disconnected from God or God’s will. I argue that Francis Bacon and Baruch Spinoza treat laws as dispositions that derive from a thing’s nature. This reading upends the (...) currently orthodox treatment of Spinoza’s laws as infinite modes, and calls for a re-conception of his metaphysics of causation. (shrink)

With his clear and accessible prose, impeccable scholarship, and balanced Judgment, Roland Teske, SJ, has been an influential and important voice in Medieval philosophy for more than thirty years. This volume, in his honour, brings together more than a dozen essays on central metaphysical and theological themes in Augustine and other medieval thinkers. The authors, listed below, are noted scholars who draw upon Teskes work, reflect on it, go beyond it, and at times even disagree with it, but always in (...) a spirit of respectful co-operation, and always with the aim of getting at the truth. Essays on Augustine contributed by Gerald Bonner, Charles Brittain, Joseph Koterski, SJ, Joseph T. Lienhard, SJ, David Vincent Meconi, SJ, Ann A. Pang-White, Frederick Van Fleteren, Dorothea Weber, and James Wetzel. Essays on Bernard of Clairvaux, William of Auvergne, and other medieval themes contributed by John P. Doyle, William Harmless, SJ, John A. Laumakis, Edward P. Mahoney, and Philipp W. Rosemann. (shrink)

With his clear and accessible prose, impeccable scholarship, and balanced Judgment, Roland Teske, SJ, has been an influential and important voice in Medieval philosophy for more than thirty years. This volume, in his honour, brings together more than a dozen essays on central metaphysical and theological themes in Augustine and other medieval thinkers. The authors, listed below, are noted scholars who draw upon Teskes work, reflect on it, go beyond it, and at times even disagree with it, but always in (...) a spirit of respectful co-operation, and always with the aim of getting at the truth. Essays on Augustine contributed by Gerald Bonner, Charles Brittain, Joseph Koterski, SJ, Joseph T. Lienhard, SJ, David Vincent Meconi, SJ, Ann A. Pang-White, Frederick Van Fleteren, Dorothea Weber, and James Wetzel. Essays on Bernard of Clairvaux, William of Auvergne, and other medieval themes contributed by John P. Doyle, William Harmless, SJ, John A. Laumakis, Edward P. Mahoney, and Philipp W. Rosemann. (shrink)

At the conclusion of his De lege naturae apodictica methodus, a treatise on the law of nature, how it is grasped by the human mind, and how it coheres with the Decalogue, Niels Hemmingsen claims to have eschewed the use of theological sources in his argument, claiming instead to have demonstrated ‘how far reason is able to progress without the prophetic and apostolic word’. Yet the reader of the treatise will notice several citations of theologians alongside those of pagan poets (...) and philosophers. This essay demonstrates that there is less here than meets the eye, that is, that Hemmingsen quotes theologians only to buttress what one can know from natural reason or the classical tradition, even when he is discussing God, and thus he does not violate his own stated principle. (shrink)

définitions de lege ferenda des décisions de défaut-congé et de radiation grâce à l'analyse des concepts et expressions biffure, défaut-congé et radiation. Illustrations en matières de procédure civile et sociale congolaises Lukusa Nsambayi.

Name der Zeitschrift: Klio Jahrgang: 99 Heft: 2 Seiten: 742-747.

According to John Cassian, God bestows his supernatural grace only upon men who transcend Christian legalism and take up Christ’s consilium perfectionis. God’s grace is merited by men who strive to perfection. In so doing, they place themselves sub gratia Christi. For Cassian, the true Christian community is composed solely of ascetics who have set themselves apart from ordinary Christians in order to attain the highest good to which human nature must aspire – theperennial contemplation of God. As Cassian has (...) it, it is the main concern of the ascetic bishop to convey to ordinary Christians the call to perfection. (shrink)

In two recent studies we have examined the prose rhythms in the clausulae of late imperial Latin authors. We found two clausular systems to be prevalent, the cursus and the cursus mixtus. The cursus involves the use of accentual rhythms and consists of three basic cadences: planus, tardus, and velox. The cursus mixtus has been defined by modern scholars as a type of prose rhythm in which the clausula is structured along both accentual and metrical lines, that is by the (...) combination of one of the three forms of the cursus with one of the standard metrical forms derived from Cicero's system — cretic-spondee, dicretic, cretic-tribrach, or ditrochee. (shrink)

The present article discusses the broadening of the concept of genocide in Lithuanian national criminal law with regard to the principle of nullum crimen sine lege. The broadened definition, which includes two groups, social and political raises serious problems when the national provisions on genocide are applied retroactively. However, in the case of Lithuania, such a broadening of the definition may be interpreted not as an introduction of distinct independent groups, but of groups that closely overlap with the groups defined (...) by the UN Genocide convention of 1948. The article suggests that potential problems with the principle of nullum crimen sine lege may be avoided by qualifying crimes against the Soviet regime as crimes against humanity. (shrink)

Cicero’s first speeches as consul, de lege agraria I and II, delivered to the senate and the people respectively, are virtually identical in outline and broad argument. That allows the rhetorical technique of individual sections to be compared closely. This article uses such comparisons to probe the tactics and ideology of the speeches. In both Cicero’s choice of word and phrase might suggest that he is simply addressing his audiences as suits their stations. But a consideration of the circumstances of (...) the speeches reveals instead that Cicero is directing his audiences to alternate ways of imagining their social and political positions; in effect, Cicero propounds distinct, principled, and communalist definitions of dignitas and libertas, core values of each audience – though sometimes at the price of distorting the intent of the bill. (shrink)