engleski

Functions of the legis actio per condictionem and the Prerequisites for the Just War in Roman Law

In the older studies of Roman law, as well as in certain recent elaborations of the subject, certain types of the legis actio procedure have been brought in connection with the procedure for the initiation of the just war or bellum iustum. In continuation of those researches, the aim of this paper is to specifically expound on the functions of one of the legis actiones, namely legis actio per condictionem, as they are traditionally understood and analyse whether they might be associated with the original substantive prerequisites for the initiation of just war. Legis actio per condictionem is usually denoted as pertaining to claims arising from mutuum, stipulatio, expensilatio, indebiti solutio and furtum (cf. Kaser, M., Hackl, K., Das römische Zivilprozessrecht, München 1996., p. 112). On the other hand, a crucial prerequisite for the initiation of just war in its original application was the existence of a pecuniary wrong done by a contesting tribe, more precisely its defaulting on an obligation of dare, solvere, facere towards Romans (Livius, Ab urbe condita I, 32, 11). Explication of the possible connections on a functional level may shed some light on the origins of the legis actio per condictionem procedure and the level of its immersion in the religious setting of the early Roman legal order. Recognizing the general theme of this year’s SIHDA conference and the motto of the Jagiellonian University in Kraków where it takes place, Plus ratio quam vis, it might be fitting to deal with the concept of bellum iustum, a very important Roman contribution for the development of the law of war, and a famous example of the attempt to include rational and moral factors in the procedure for the initation of war activities, as well as its possible relevance in the private legal context.

legis actio, just war, bellum iustum, mutuum, Roman law

nije evidentirano