Izvorni znanstveni članak
https://doi.org/10.3935/zpfz.70.23.03
Canon Law and the Croatian Legal System (I). Legal Sources and Legal Principles
Marko Petrak
orcid.org/0000-0003-0920-8361
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The intention of the article is to analyze the issue of canon law of the Catholic Church as a source of law in the Croatian legal system. After a brief analysis of the most important sources of canon law, further analysis focuses on the meaning and function of the principles of canon law in regards to the Croatian legal system. In the analysis, the author concentrates in particular on legal maxims (regulae iuris) as an undoubtedly extremely important traditional form of legal rules, which in many cases embody basic legal principles.
In the central part of the paper, the applicability of regulae iuris canonici as a direct source of contemporary Croatian law, especially in the sense of legal principles, is analysed. The author concludes that their application is possible under the conditions provided by the Act on the Application of Legal Rules Enacted Before 6 April 1941, primarily due to the fact that traditional regulae iuris canonici, i.e. 99 canon law maximes contained in the Decretales of Pope Gregory IX (1234) and Liber Sextus of Pope Bonifacius VIII (1298), were law in force on the said date in the Croatian territories belonging to the ex-Hungarian legal area.
Taking this into account, the concluding part of the paper examines the application of concrete regulae iuris canonici as legal principles in the Croatian judicial practice (nulla poena sine culpa; ignorantia iuris non excusat; accessorium sequitur principale; qui tacet, consentire videtur; prior tempore, potior iure). Although regulae iuris canonici have, in the formal sense, merely the status of a subsidiary source of law, in terms of their content, they can be of fundamental importance for the contemporary Croatian legal system, considering that a series of these rules contain the basic legal principles on which a range of the most important institutes of Croatian law are founded. Therefore, the appendix to this article includes the first complete Croatian translation of these canon law maxims, so that legal doctrine and especially judicial practice can be better acquainted with these timeless legal principles.
Proceeding from the fact that the aforementioned canon law principles formulated as Latin legal maxims represent an important traditional and concise expression of the very essence of the European legal tradition and culture, the author concludes that a possible wider scope of application of the regulae iuris canonici in Croatian judicial practice would not represent merely a nostalgic quest for the hidden treasure of the European legal tradition, but a part of a long-term creative effort at the Europeanization of contemporary national legal systems on the firm foundations of the common legal culture.
Ključne riječi
canon law; Croatian law; legal sources; legal principles; regulae iuris
Hrčak ID:
244575
URI
Datum izdavanja:
28.9.2020.
Posjeta: 2.623 *