Importance of the Roman law for formation of the civil law of Ukraine
Modern jurisprudence has its lineage back to ancient Rome, since the Roman law was formed and became an important factor for development of ancient culture, while being its essential part. Although legal norms governing civil relationships existed in more ancient civilizations and development of the Roman law was influenced by ancient Greek, ancient Egyptian, Jewish law, from which significant number of ideas, principles, specific legal rules were taken, but only in Rome ancient civilization, law became a relatively independent phenomenon, gained importance as a subject, that can be studied now, abstracting from concrete historical conditions, culture, state in which it was formed.
Roman lawyers were first to create a special clear terminology, the same that is used almost by the entire world now, developed legal categories and notions, founded and developed a methodology of legal thinking, led to thinness of expression of these concepts. Finally, Roman lawyers were inspired in their search for those ancient ideals of justice, which are the same, as they meet eternal expectations of the human spirit and are now coming back into legal circulation as determinative frameworks of the modern legal system of Ukraine.
Touching on the importance of the Roman private law for modern civil law of Ukraine, we should emphasize civilization, historical and legal importance of Roman law.
Civilization importance of Roman law is that being an important part of European civilization, it became in fact, as vividly described by some culture experts (V. Skurativsky), one of cornerstones of the so-called “European house”.
With time, many maxims of Roman lawyers not only did not lose their legal meaning, but also became “winged expressions”, transformed into legal (and not just legal) presumptions (provisions that do not require proof). For example, pater est quem nuptiae demonstrànt - the one who is married to the child’s mother is considered to be the child’s father. The following aphorisms gained the same value: dominus sentii periculum - the risk of accidental death (things) is always born by the owner; prior tempore - potior jure - first in time - stronger by right; est in mora - delay (performance) entails the risk of accidental death (things); nemo debet bis puniri prò uno delicto - nobody can be punished twice for the same offense. These and many other famous aphorisms of the Roman lawyers entered the treasury of the world legal culture and became an acquisition of modern jurisprudence.
The historical value of Roman law for Europe, including Ukraine, is caused by the fact that over time it influenced formation and development of all European law systems in classical and Greek and Roman (Byzantine) variants.
After fall of the Roman Empire in 476, the Roman law continued to exist and even develop in the eastern part - Eastern Roman Empire (Byzantine Empire). With its fall, the era of oblivion started for Roman law. It seemed to have disappeared for a long time. It was not studied, a few records were lost. It seemed that the final death and loss were inevitable. However, the Roman law continued to live in the minds of the Romans conquered by barbarians and their descendants. Its rules are gradually applied to regulate relations between the Roman population, and then studied.
The phenomenon of reception of Roman law, which can be defined as its revival, perception of the spirit, core principles, and separate regulations on the new stage of development of civilizations, began this way.
Since reception of the Roman private law is the notion which cannot be measured at once, it can occur in various forms and types.
In particular, reception is available in the following forms:
1) study of Roman law at educational institutions as a juridical comprehensive discipline to form world outlook of future lawyers;
2) study of Roman law as a heritage of culture;
3) research, analysis and comment on the Roman law sources;
4) direct application of rules and provisions of Roman law;
5) use of norms of Roman law as models for development of normative acts (especially in codifications);
6) use of Roman private law methods of developing of normative acts or practices in their implementation (application);
7) perception and use of the principles, ideas and categories of Roman law.
Reception varies not only by form, but it may be of different types: direct and indirect (derived).
Cases of direct reception take place when a new civilization is mature enough to understand achievements of past culture, since extinction of which not too much time have passed for ideas, legal monuments, etc. to be lost. Reception of Roman law in Byzantium can be an example.
Often ideas of Roman law, its certain provisions and legal decisions are received indirectly, for example, by borrowing ideas from the legal system of any country, which have already received Roman law (proxy, derivative reception). As an example may serve borrowing by many countries of the Code of Napoleon or the German Civil Code, which in their turn may be seen as indirect results of derived reception – reception of Roman law in Byzantium in the VI-X cent. was an indirect chain.
Reception can be not only obvious but latent (hidden). This occurs, of course, in cases where borrowing of certain ideas or key decisions of Roman law takes place in the process of lawmaking, but a fundamentally different deviation, rejection of “old” law, is declared here. We meet with this kind of reception, for example, while codifying civil law in the Soviet state, other countries, where socialist legal system existed or exists.
Roman private law was received most widely. Such legal categories as “agreement”, “commitment”, “delict”, “contract”, “mortgage” and others are initiated by the Roman private law and treated (with relatively minor modifications) in almost all countries unambiguously. It should be mentioned that their essence (as of many other traditional institutions of modern law) can be easier considered and understood, when we trace development of these concepts from their origins.
In particular, it also influenced development of Ukrainian law and continues to influence the concept of law in Ukraine today.
Legal significance of Roman law is that the conceptual and categorical apparatus, terminology of modern law are based on the ideas, principles and definitions developed by classical Roman jurisprudence.