Giudicare una decisione del pretore : la relazione tra diritto e fatto nel passo di Paolo (D. 1,1,11) e nel caso di Barbarius Philippus (D. 1,14,3)
alternative title:
To judge a ruling of the praetor : the relationship between law and fact in the passage of Paul (D 1,1,11) and in the case of Barbarius Philippus (D. 1,14,3)
author:
Blicharz Grzegorz
journal title:
Seminarios Complutenses de Derecho Romano
issue:
29
date of publication
:
2016
pages:
335-352
ISSN:
1135-7673
notes:
Bibliogr. w przypisach.
language:
Italian
journal language:
Spanish
abstract in English:
The experience of Roman law makes it possible for us to understand
better that the positivistic separation between «is» and
«ought» is not the only proper model of law. Indeed, that model
does not offer the flexibility that is desired in private law. It is interesting
to use Roman law as a comparative perspective, not only in
the case of the typical institutions of modern private law, but also
in the case of the theory of law, and especially for legal science. In
particular, for centuries Roman law served as the basis for jurisprudence
and the philosophy of law. Now it can enrich the analysis of
the distinction between «ought» and «is». This distinction does not
involve a separation, but a division; it seems to highlight a different
kind of problem —the problem of the criteria of law, and not
the problem of the nature of normativity—. The legal perspective
might be extended by focusing on the analysis of two passages from
the first book of Justinian’s Digest, the passage of Paulus and the
passage of Ulpianus that contains the case of Barbarius Philippus. In the first of these passages Paulus wrote about the four senses of
ius (D. 1,1,11). In today’s literature this passage is considered in the
context of the Kantian notions of Sein and Sollen. The only place
in the Digest where these two concepts, ius and factum, are found
connected is in the formulation ignorantia iuris et factis. This expression,
however, does not suggest the idea that stands behind the
modern separation between «ought»” and «is». Paulus’s distinction
seems to be more useful: fecit and facere convenit. It can be analyzed
in the context of the case in which a judge is responsible for the
abuse of power or has admitted incorrectly actioni, interdicto, etc.
In this light it is interesting to consider the famous case of Barbarius
Philippus (D. 1,14,3) about whether decisions made by someone
lacking the capacity to be a praetor —acting as a false official—
could be effective law: what and which values might allow one to
reach this conclusion.
When Paulus wrote ius pluribus modis dicitur he did not invoke
the sources of positive law. He was interested in determining where
ius comes from: when can a legal decision, a statute, or anything that
is considereded to be a law truly be called ius?
keywords in English:
«is-ought problem», falsus procurator, Roman law, philosophy of law
number of pulisher's sheets:
1,09
departmental parameterization:
4
affiliation:
Wydział Prawa i Administracji : Katedra Prawa Rzymskiego