engleski

Presumptions Between Civil and Canon Law

Rules of procedure and the regulations concerning forms of proof are often indicative of the place of law in a certain society. In this paper, it is elaborated on the development of the theory of presumptions during the 12th and 13th Century in the interaction between the jurists of civil and canon law. On the basis of Roman legal texts, presumptions were very early recognized as shifting the burden of proof, however, in the preserved sources the early authors of 12th Century could not find a coherent set of general rules on the matter. Only during the second half of the 12th Century intensified the efforts of jurists to classify and define different types of presumptions. In this process, the glossators stressed the division into praesumptiones legis and iudicis, while the decretists put the emphasis on distinction between praesumptiones temerariae, probabiles et violentae. The aim of this paper is to examine the convergence of two systems in the literature of Romano-canonical procedure, and especially the roles of Pillius Medicinensis and later Azo in establishing the categories of presumptions as they are used today.

presumptions ; Roman law ; canon law ; Romano-canonical procedure ; ordines iudiciarii

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