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Roman Law in the Practice of EU Courts: A “Transmodern” Survival?

József Benke ; Pravni fakultet Sveučilišta u Pečuhu, Pečuh, Mađarska


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str. 469-496

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Sažetak

The question of Roman law’s survival in contemporary Europe has demanded a deeper exami-nation of the literature of Roman law as well as of that of the EU law. The use of the notion of ‘Transmodernity’, which has already become well known in many fields of scholarship, scienc-es and arts, offers a true desideratum for the jurist in the area of jurisprudence. The analyzed issues brought up many preliminary questions such as: Does this continuity of Roman law form a substantial reception and a genuine survival? Does Roman law behave this time as a true source of law, and is it an element of the acquis? How can subsidiarity be interpreted here? How can contemporary survival of Roman law in the EU be construed: as a postmodern or as a transmodern phenomenon? After a brief investigation of the preliminaries, the analysis of the core issue regarding the essence of postmodernity, postmodernism and transmodernity sug-gested that this is a matter of transmodern survival. The transmodernity of the examined issue concentrates on a few nuclei: all rules, adages, maxims, institutions, and sources of Roman law, which appear in the jurisdiction of the European Court of Justice (ECJ) merely sporadi-cally, as the well of a legal rule qualified by the ECJ as a general principle with respect to that very rule’s antique Roman origin, are veritable elements of the acquis. As a result of the Klomp Case, the parties and their representatives are urged to revivify their Roman law and ‘Pan-dektenrecht’ knowledge, because, in these very circumstances, they are able to calculate the benefits of a certain rule of Roman origin for winning the case. As a result of this research the preliminary assumption, according to which an advocate general was the only factor of EU law jurisdiction which could voluntarily and freely make use of the special legal knowledge of Roman and Canon law, the Middle Ages’ laws, and the Latin language, was confirmed. It is a fact that opinions of advocates general do not belong to the acquis, therefore the applied ele-ments of the Roman legal antiquity can have an indirect and implicit effect on the jurisdiction as a true item of the acquis. In this paper the authors examine in detail some thirteen examples of the ‘acquis du droit romain’, which occurred in the opinions, and analyse about the same amount of Roman and Latin legal maxims, rules, sources etc. simply tangentially.

Ključne riječi

Roman law, European Union law, European Court of Justice, opinion of advocate general, survival of roman law in the EU

Hrčak ID:

164768

URI

https://hrcak.srce.hr/164768

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