Díké - A Márkus Dezső Összehasonlító Jogtörténeti Kutatócsoport folyóirata

Párhuzamok jogi kultúránk zsidó-keresztény és római jogi gyökerei között II.

Cs. Eszter Herger — Tue, 28 May 2024 00:00:00 +0200

Tartalom

Eszter Cs. Herger — Tue, 28 May 2024 00:00:00 +0200

„Pártoljátok az árvák és özvegyek ügyét”

Napsugár Mondovics — Tue, 28 May 2024 00:00:00 +0200

The prophetic exhortation quoted in the title calls for the learning of correct moral values, the conscious choice and pursuit of values that determine almost all manifestations of the individual and the community. The values set as a model and passed on to the younger generations have a normative impact on the inner life of the community, on the coexistence of rich and poor, donors and recipients, citizens and recipients. In my study I seek for an answer to the question of how the idea of social care is expressed in principles, customs and legal institutions throughout the legal order of the Old and New Testament. My aim is to collect the universal values that can form the basis of the social safety net adapted to the times.

Organized Institutions of Medieval Hungarian Healthcare: the Crusader Knights’ Orders

Orsolya Falus — Tue, 28 May 2024 00:00:00 +0200

In the Middle Ages, the hospitaller Crusader knight orders were church communities established on the basis of a rule, similar to the monastic orders, whose members, in addition to the triple oath of poverty, chastity and obedience, also undertook to nurse the sick and needy. These confraternities were special “non-profit organizations” created within the Jewish-Christian cultural circle, which, among their various “public benefit” activities, primarily aimed to care for the sick and ensure the peace of God (Treuga Dei). The paper presents the rules of St. Benedict and St. Augustine as the bases of the “memorandums of association” of these organizations, as well as medieval Hungarian medicine and their place and role in it.

Magister Gratianus tanítása a házassági akadályokról

Cs. Eszter Herger — Tue, 28 May 2024 00:00:00 +0200

Many legal scholars have examined the question of how to reconcile Gratian’s willingness to use both the Justinianic and the pre-Justinianic Roman law that he found in his sources with his apparent unwillingness or inability to use Justinian’s Roman law books at first hand. This paper focuses on another root of European legal culture, the Judaeo-Christian legal heritage. It addresses the question to what extent Gratian’s concept of marriage, based on a contemporary interpretation of the marriage of Mary and Joseph based on the decision of the Council of Ephesus (431), contributed to the clarification of the system of marriage impediments in 12^th century canon law, and to what extent the magister used arguments based on biblical passages to do so. The canon law from the early Middle Ages allowed a husband to divorce his unfaithful wife, while the Western Church of Gratian’s age opposed the dissolution of the marriage bond and only recognised the possibility of separating the spouses from bed and table. Therefore, the significance of the subject lies primarily in the fact that in the case of some impediments to marriage the magister saw the possibility of dissolution of the unconsummated union (a so-called initiated marriage) and, in a few, not common cases of the consummated marriage too. The principle of indissolubility, although annulment and dissolution of marriage are different legal instruments, was not necessarily applied in this period either. However, Gratian’s particular concept of marriage and his legal explanations of the impediments to marriage contributed significantly to the fact that the only ground for divorce mentioned in the Gospels, adultery, could not lead to the dissolution of the bond. In the 16^th century, Protestant divorce law was primarily a reaction to this understanding, and also the Catholic teaching on the impediments to marriage continued to evolve, formally still adhering to the principle of indissolubility.

Sir Henry Sumner Maine et les systemes juridiques traditionnels

Gábor Hamza — Tue, 28 May 2024 00:00:00 +0200

The birth of comparative law in England is strongly linked with the Ancient Law, its Connection with the Early History of Society and its Relation to Modern Ideas, of Sir Henry Sumner Maine published in 1861. Maine is the first in England to be endowed ‘ad personam’ with the Chair of Comparative Law in Oxford in order to teach legal history and comparative (foreign) law. It is undoubtedly the Roman law that stood in the focus of interest of Sir Henry Sumner Maine serving as basis to carry out comparative legal studies. That approach is in particular manifested in Ancient Law as Maine attributes significance to the various institutions of Roman law. The author draws in particular a comparison between Maine and Bachofen as far as their approach relating to the basis of foreign law related research is concerned. The role that Roman law (ius Romanum), i.e. Civil law (ius civile), played in the development of English law during the centuries is also underlined in this paper, and in its last part, the author emphasizes the contemporary significance of Ancient Law and traditional legal systems for the foreign law related research on the basis of the works of Maine.

The Beginnings of the Secularisation of Marriage in Poland

Piotr Michalik — Tue, 28 May 2024 00:00:00 +0200

The incorporation, under the Treaty of Tilsit of 1807, of part of the Polish lands of the Prussian partition into the Grand Empire of Napoleon as the Duchy of Warsaw, opened the way to the implementation of the post-revolutionary provisions of marriage law of the Napoleonic Code in Poland. In 1810, this code was introduced in the lands of the Austrian partition annexed to the Duchy of Warsaw, with its centre in Cracow. The French secular model of marriage, although contradictory to the centuries-old Polish legal culture and the Catholic religion professed by the vast majority of the city’s inhabitants, was nevertheless accepted by the political and legal elites of the time. Not only did it survive the fall of Napoleon, but under the autonomy of the Free City of Cracow it was maintained in 1818 and functioned until 1852, i.e. until the Austrians restored their mixed marriage model regulated by the Abgb.

A kötelékvédő szerepének változásai az egyházjogban, kitekintéssel a magyar világi perjogra

Anna Éva Tamási — Tue, 28 May 2024 00:00:00 +0200

The defender of the bond is one of the most important officials at the ecclesiastical courts. In this paper I examine the changes of this office both in canonical legislation and in jurisdictional practise (and in Hungarian private law). I present the practise of the holy see of Veszprém and Székesfehérvár in matrimonial cases in the 19^th and 20^thcentury.

Az igazságosság mint indok a Kúria 21. századi magánjogi gyakorlatában

József Benke — Tue, 28 May 2024 00:00:00 +0200

After a brief overview of the ancient and medieval history of the notion of justice in philosophy, and some anthropological remarks, the paper examines the precedent decisions of the supreme judicial forum of Hungary (Kúria) delivered over the past 10 years in the field of private law with respect to whether the legal reasoning of the judgments contain a manifest reference to the notions of “just” or “justice”. As a result of this research, we find that the judgments, without any further reference, and apart from the modern notions of substantive and procedural justice, are based mainly on the concepts of corrective (rectificatory) justice and on that of distributive justice as well, as if by instinct following the teachings of Aristotle and Thomas Aquinas.

Az ellenállási jog értelmezése és gyakorlata a Vetus Testamentumban és a Novum Testamentumban

István László Mészáros — Tue, 28 May 2024 00:00:00 +0200

This study shows that the right to resist tyranny has deep biblical roots. It derives directly from the biblical principle of the primacy and supremacy of divine and natural law, reflecting universal divine eternal order and justice. From the fact that even public authority is subject to these laws and that, in the event of a conflict with such laws, man-made laws and authority cannot claim obedience. In this case, resistance to them is not only a right but also a conscientious duty. This paper provides a broad outline of the biblical principles that underpin resistance to tyranny. It then describes some of the cases of resistance in the books of the Old and New Testaments which, among many others, have been recurring in the works of the leading authors on the right of resistance throughout European history.

Az alexandriai zsidóság hatalomhoz való viszonya a Példabeszédek könyve Septuaginta-fordításának tükrében

Eszter Csalog — Tue, 28 May 2024 00:00:00 +0200

It is not typical to draw conclusions from a translation regarding an ancient social and political issue. However, I will attempt to do it in this paper: on the basis of one of the most freely translated book of the Septuagint, the Paroimiai (Greek version of the Proverbs), I will try to get an answer to the question of how certain Jewish intellectuals saw the problem of proper relationship to pagan rulers in Alexandria in the second century Bc. As an introduction, I will outline the main events of the Jews’ stay in Egypt from the sixth century Bc to the Ptolemaic Age. Subsequently I will illustrate through some characteristic examples how far the translators went within the Torah if they wanted to update the text. Turning to the Paroimiai, I will show the most important features of the Greek text through some typical examples. Finally, I will present the passages where the attitude towards the king as well as the right behavior in civil life is concerned. One can clearly recognize the tendency that loyal relationship as well as the avoidance of riots or conflicts are even more emphasised in the Greek version. From this point of view, the text of the Paroimiai is unique; no similar tendency can be noticed in any of the Septuagint books, and this is only partly due to content reasons.

„Civilis, non tyrannica dominatio” (Tert. Apol. 2.14.)

Tibor Grüll — Tue, 28 May 2024 00:00:00 +0200

In the first three centuries of the existence of Christianity, it was exposed to sporadic and then increasingly organized persecution by the authorities of the Roman Empire. All of the Christian apologists emphasized the illegality of these persecutions. Tertullian, the jurist, who worked under Septimius Severus, emphasized that the Roman Empire is a state of law, not a tyrannical rule, and this law did not allow the execution of innocents. Although the number of Christians continued to grow despite the persecutions – in Carthage, for example, at the end of the 3rd century, one in ten inhabitants of the city declared themselves to be Christians – it seems that they resigned themselves to the constant oppression. In the Apologeticum, Tertullian lists three possible forms of resistance: internal disruption, open armed rebellion, or mass emigration, but he considers them both unjust and impracticable. According to him, the persecutions were approved by God in order to purify his Church. At the same time, there is also an eschatological reason why they did not stand against the tyrannical oppression: some Christian theologians interpreted the statement in 2 Thessalonians 2:7 about the “one who now holds it back” (niv) or “he who now restrains it” (esv), viz. who prevents the appearance of the Antichrist as being the Roman Empire or the emperor itself. If the current emperor falls, the Empire itself will collapse, and the “ten kings” will come, who will be the direct forerunners of the Antichrist. This is why Christians honour the emperors and they do not oppose them by force even if they are sent to death by the imperial authorities.

Aquinói Szent Tamás a helyes államról és kormányzásról

János Frivaldszky — Tue, 28 May 2024 00:00:00 +0200

In this paper we discuss St. Thomas Aquinas’ theory of the state and political government. We seek to answer why he believed that the best form of government is kingship. We will look at how to avoid the danger of the best form of government being distorted into its opposite, the worst form of government, tyranny. The criteria for this will be examined, and then we will analyse the second best form of government that can be implemented, a mixed government of limited monarchy. St. Thomas, although he lived in the age of constitutional charters and was familiar with them, chose the government of virtuous persons for the common good, rather than the constitutional system of charters based on ’institutionalised distrust’.

Comments on Dante’s Conception of Value

Tamás Barcsi — Tue, 28 May 2024 00:00:00 +0200

Dante Alighieri (1265–1321) is arguably one of the greatest figures in Western culture. A separate discipline, Dantist Studies, is concerned with exploring the different layers of his art. Without wishing to place myself among the scholars of this discipline, I would like to offer a few thoughts, mainly of an ethical nature, on the relationship of Dante’s works to the Renaissance.

Az apaszerep funkciói és az engedelmesség foka a kora újkori államelméletekben

Balázs Rigó — Tue, 28 May 2024 00:00:00 +0200

In the early modern theories of the state, thinking about governance started from the idea of body politic, through the introduction of passions and the family, to the patriarchal theory of the state, in which the monarch governs the people as a family as head of the family. To the head of the family, like to the monarch, the members of the family, like the people, owe obedience according to the laws of nature. The family has become the interpretative framework for the description of society, in which the monarch, by right of his supremacy, has been transformed into the head of the family. At the same time, the concept of the head of the family has undergone a significant change. The change in the role of the father has been accompanied by a change in the content of obedience as well.

A jog és az állam a válsághelyzetekben

J. Zoltán Tóth — Tue, 28 May 2024 00:00:00 +0200

One of the eternal “core issues” of legal philosophy is the contemplation on when we can and cannot speak of law in the case of a social control mechanism, i.e. what social and political conditions must exist for the subsistence of positive law to be called into question. Related to this is the necessary examination of the conditions under which the state – which also constitutes law – ceases to exist, when it is clearly no longer able to perform its social regulatory function and to enforce the obedience of its subjects or citizens. The assessment of these borderline situations has always been controversial. However, there is still no exact method for determining when a state ends, when a legal system ceases to exist, nor what a state can do to protect itself in the event of situations threatening to disappear, what moral philosophical principles justify it in operating certain mechanisms of self-defence, or what kind of extra ordinem regulation can be prescribed in such occurrences. The present study, through the examination of the most important paradigms in the history of ideas, attempts to review the historically significant answers to this question.

A rágalmazás „tényállása” az Ószövetségben és a rabbinikus jogtudományban

Tibor Ruff — Tue, 28 May 2024 00:00:00 +0200

The Law of Moses, the Torah, does not explicitly divide the crimes that can be committed in the field of communication into criminal and civil categories, contrary to the legal system of modern and postmodern European states. In the theocratic legal system of the ancient state of Israel, where all sins against human beings were first and foremost offences against God (i.e., being a holy nation, they were also a matter of holiness), this distinction was at most separable in the way in which cases were dealt with, and in the fact that prosecution of certain crimes was mandatory, while prosecution of others was, in modern terms, on the basis of private accusation. The Ten Commandments forbid two acts of communication: the vain (empty, meaningless, false, blasphemous, etc.) use of the name of God (Yhwh), and, in human relations, bearing false witness against someone. In my study, I intend to give an overview of the latter element of the Ten Commandments as a general clause, using the Torah and the sources of rabbinic jurisprudence and relevant literature in a historical context.

Adóreform és központi árszabályozás a 3. század gazdasági krízisében

János Jusztinger — Tue, 28 May 2024 00:00:00 +0200

The absolute monarchy established by Emperor Diocletian (284–305) naturally meant centralization in financial administration as well. Diocletian's fiscal reforms – which fit into these reorganizations – primarily served to consolidate the empire's economic power in a period of extreme crisis. Among the monarch’s several financial measures – in addition to the creation of a state monopoly on coinage – the tax reform of 301 can be considered the most determinative. In the same year, the emperor's provisions were supplemented by a special institution which clearly has a ‘crisis law character’ within the framework of free-market economy. The price maximization decree of Diocletian (Edictum de pretiis rerum venalium) was created specifically to solve or at least mitigate the economic crisis of the third century. While in previous centuries the value of Roman money was relatively constant, the main sign of the financial crisis of the time was precisely inflation. The aim of the study is to present the two most important elements of this comprehensive reform concept.

Bűn és büntetés a középkori egyházban

Elemér Balogh — Tue, 28 May 2024 00:00:00 +0200

The medieval Latin Church had a very clear and elaborate theory of human sin and the punishment that was necessarily associated with it. This complex thought can be summarised in two main theories: theological theory and canon law, which can be particularly well illustrated by means of case law, i.e. the activity of the ecclesiastical courts. In the following overview, I will present the legal basis and purpose of punishment, as well as the types of punishment, based on the theological views of Thomas Aquinas on the one hand, and on the sources of medieval canon law on the other, illustrated with examples from canonical jurisdiction.

Das sakrale Bild von Schuld, Unschuld und Sühne

Gernot Kocher — Tue, 28 May 2024 00:00:00 +0200

Guilt and innocence can be viewed from both the secular and the sacred side. Modern law is no longer aware of this double-sidedness, but until the legal world of the 18^th century, which was determined by natural law, this two-sidedness was represented in many legal sources in the form of a combination of image and text as an opening for the sacred side, so to speak, followed by the legal text for the secular dimension. In my overview, I will present seven examples of this rich source material of European legal culture, which I will interpret according to the scientific method of legal iconography.