hrvatski

Bogišićeva razmatranja o "pravdi i pravici" u kontekstu SGZ-a

Despite his general criticism of the SGZ as a "foreign model", Bogišić profoundly appreciated its two major segments: the provision on "natural equity" as subsidiary law (§ 8 of the SGZ) and the group of introductory norms that contain "basic elements of justice and equity in civil laws" (§ 15-35 of the SGZ) as general legal rules. Bogišić undoubtedly used these provisions of the SGZ as one of his sources of inspiration while formulating the corresponding provisions of his own codification. On the one hand, § 8 of the SGZ became one of the direct precursors of art. 3 of the Montenegrin General Property Code (OIZ), which sets "general foundations of justice and equity" as ius in subsidio in situations that cannot be resolved through the application of positive law, customary law or analogy. On the other hand, provisions of §§ 15-35 of the SGZ that contain "the basic elements of justice and equity in civil laws" were explicitly singled out by Bogišić as a praiseworthy and original deflection from the Austrian Civil Code (ABGB), and particularly taken into consideration during the formulation of his renowned legal maxims, "expressions of Roman wisdom clothed in popular proverbs" (Konstantin Vojnovic), as the final segment of the OIZ (Art. 987-1031). Moreover, it is from the said segment of the SGZ that Bogisic took the expression "justice and equity", which had an extremely important role in his theoretical and legislative efforts. Finally, it should also be pointed out that, according to Bogisic's understanding, there is a deep inner connection between the two mentioned types of provisions: nature (natura) is "the one and only source of law", while rules of "justice and equity", in the form of regulae iuris or legal maxims, are its privileged normative expressions. All these facts, connected to a certain extent with the context of the SGZ, reveal quite an unknown and interesting aspect of Bogisic: that of an adherent of the historical school of law firmly anchored in the realm of natural law.

Bogišić, pravda, pravica, SGZ, OGZ

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