Roman Law and the Process
of Decodification
The phenomenon that is known as decodification, and the related Europeanization
of particular national legal systems, has triggered mechanisms for discussing the
process of creating the law which resemble the way in which Roman jurisprudence
and ius commune lawyers functioned. Framing the legal order within a deductive
system has not been entirely successful. Roman law is the legacy of legal thought,
and it allows us to illustrate how law reflects values and what those values
might be. Looking at the history of law from this perspective seems important in
the context of the decodification process, and we can prove this by using of two
examples. One of these is the principle of family solidarity which restrains the
freedom of testation. The second is the rationale for distinguishing incorporeal
from corporeal things, when deciding on the possible objects of property rights.
The article takes into consideration the fact that including the Roman and civil
law tradition in the discussion about new order of private law in Europe provides
more flexibility for legal regulations. The authors still believe that private law is
a system of norms with its own internal logic and is based on fairness and justice.
Legal practice proves that this way of thinking is not an anachronism. References
to the tradition of Roman law clearly show that the controversy concerning the
new order revolves around the sense and the extent to which private law can be
treated instrumentally.
 10-2012 Dajczak_FLB.pdf | 551 kB |
