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Retroactivity in Preclassical Roman Law (CROSBI ID 40527)

Prilog u knjizi | izvorni znanstveni rad

Karlović, Tomislav Retroactivity in Preclassical Roman Law // Turning Points and Breaklines / Hornyák, Szabolcs ; Juhász, Botond ; Korsósné Delacasse, Krisztina et al. (ur.). München: Martin Meidenbauer Verlagsbuchhandlung, 2009. str. 256-269

Podaci o odgovornosti

Karlović, Tomislav

engleski

Retroactivity in Preclassical Roman Law

It is generally accepted that most of the modern legal principles derive from the sources of Roman law. With regard to this, some of the principles have received more attention and their historical backgrounds have been more thoroughly researched, but for some, the tracing did not go far enough, and their ancient sources have not been properly recognized. One such rule that falls in the latter class is the prohibition against retroactivity. It is also referred to as the prohibition of ex post facto laws, and is most notably expounded in the criminal law under the sentence “Nullum crimen, nulla poena sine lege.” In this form, it is also a part of the common European law as expressed in the article 7(1) of the European Convention on Human Rights. Nonetheless, as it is one of the cornerstones of criminal law, it also occupies an important place in the private law, principle by itself and the safeguard of vested rights. In this virtue, we shall point to the age of preclassical Roman law as formative breaking point for the development of the rule. Its emergence in this era, indicative even through very scarce legal sources of the time, reflects the beginnings of the legal science faced with the multileveled legal production and the need for the resolution, in our case, the conflict of laws in time. The hints of the temporal aspect of the early Roman legislation can be traced to certain expressions in the texts of republican laws, as “post hanc legem”, and non-legal texts, but the key source in which interpretation lie the arguments for the establishment of the principle on prohibition of retroactive laws is Cicero’s speech, In Verrem, 2, 1. Here, in one specific part of the case, he argued against the retroactive application of praetor’s edict against the rules laid down by Lex Voconia. He presented the case against Verres with terseness and as concisely as possible, mentioning only the most significant offenses, but he stopped and put on the praetor’s sheet of crimes specifically, showing its importance, the obstruction of the rule against retroactivity. In explaining it, he vividly and very clearly set forth the principle and reasoning behind it. The problem was approached from different angles, showing that Verres’s edict was at variance with laws, the usage and the equity. Furthermore, not only standing in the defence of vested rights in the sphere of private law, he expressed the relevance of the principle to the criminal law specifying its exceptions, familiar even today (e.g. Art. 7(2) European Convention on Human Rights). Taken all that in the consideration, the analysis of the Cicero’s text, supplemented and compared with the other republican sources, offers enough evidence for the conclusion that the retroactivity was already seen in the preclassical Roman law as a violation against the vested rights in private law and also against the legal order and legal certainty. As such, its prohibition formed the principle of law, underlying Roman as well as modern lawmaking process.

Roman Law, Retroactivity, Cicero

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Podaci o prilogu

256-269.

objavljeno

Podaci o knjizi

Turning Points and Breaklines

Hornyák, Szabolcs ; Juhász, Botond ; Korsósné Delacasse, Krisztina ; Peres, Zsuzsanna

München: Martin Meidenbauer Verlagsbuchhandlung

2009.

978-3-89975-159-8

Povezanost rada

Pravo