ABSTRACT: Comentario a un libro de Gábor Hamza, catedratico de Derecho romano y de Derecho constitucional en Budapest, dentro de la línea general de investigación de este autor, políglota donde los hubiera, de tratar de presentar unos orígenes comunes romanísticos en la tradición del Derecho privado y del Derecho público europeo.
PALABRAS CLAVE: Derecho europeo, Hungría, Derecho romano, Libros de Derecho, Fritz Pringsheim, Max Kaser, Gábor Hamza, András Földi, Reinhard Zimmermann, Lajos Vékás, Pierre Legrand.
Gábor Hamza’s recently published book is an imposing crowning of several ten years’ standing research work which was done in the field uncovering Roman law foundations and introducing the developments of modern private law systems by the Author. The results could be already seen in the adequate chapters of the handbook of Roman law – written together with András Földi and used also as textbook which has republished in 15 editions since 1996 – and even more expressly in Hungarian and German language published monographs written in the topic of the present work.
The present monograph fascinates the Reader in measures. The Author’s attention covers all states of Europe, the Caucasian countries, the states of Latin America, the Republic of South Africa, Japan, China and a few eastern Asian countries too.
The book is structurally divided into four parts. The first part deals with beginning of the development of the European private law, namely the events after the breakup i.e. demise of the Western Roman Empire and the Justinian’s compilation (codification). The second and third part summarize the medieval and modern conformation of the European private law and the fourth part introduces the influence of European private law traditions on the development of private law of the states outside Europe.
The Author leans on out-sized legal literature material. Albeit his resources provide an opportunity to introduce the ‘law in books’ and the displaying of the ‘law in action’ is inevitably overshadowed, the book sums up a uniquely enriched, encyclopaedic material in clear structure and pleasurable style; a not evading starting handbook for the researchers and inquirers of the private law’s historical development. The Author’s admitted goal is to give historical mainstay to comparing and approaching of private law of different legal systems and especially: in relation to the unification of private law (both civil and commercial) in Europe. This literary goal is formulated unequivocally in that introductory chapter which surveys the harmonisation-process of private law in Europe – in conjunction with several other scientist of distinction – on Roman law traditions squarely.
Every chapter is prefaced with a detailed and particular list of references so, the inquire gets the handholds of legal literature for thinking onward. At the end of the work the Author summarizes the comparative and historical legal literature in 40 pages.
During the reading of the data-enriched book the unique building of the Roman private law, the cathedral of the private law takes hold of the Reader over again: with its dogmatic refinement, logical elaboration and long centuries preceding amazing development. Researches of ancient private law history have already attempted for a while to reveal the premises of the Roman private law at other ancient laws. These searching have had the results that neither the Mesopotamian or the Egyptian Empires nor the ancient Jewish states and the Greek city-states constituted such a private law which measureable the same as to the Romans’ in its development.
The ancient Rome thus means a unique summit in the development of private law. Adapting the composition of the great German writer we can say that on the road to the private law’s region of sources the Roman private law is not a «Scheinhalte ... lehmigen Dünenkulisse, die er erstrebte, neue Weiten zu neuen Vorgebirgen vorwärtslocken» but the hitherto enlighten initial station of the two and half thousand year story .
The question arises in the Reader once again studying Gábor Hamza’s encyclopaedic book why did the common law’s connection with Roman law shape so peculiar, why did common law resist the temptation of Roman law twice and – opposite to the legal systems of the European continent and created their pattern – why did not receive it.
The fact is beyond question that the common law has not received Roman law yet in that measure as those continental legal systems (e.g. Hungarian private law) which one’s case we could not speak about reception. This resistance against Roman law more conspicuous inasmuch as Roman law was considered as a compass, a pattern to the systematization of common law at universities in the 12th-13th centuries. This was proved unambiguously by the works of Glanvill (12th century) and Bracton (13th century). The mentioned statesmen and at the same time legal professors (as in the 11th century Lanfrancus and Vacarius) raised on Roman law and their activity/work based on Roman law. By the help of this they wanted to constitute a system from the incoherent legal thesis/doctrine of the ancient Anglo-Saxon law . (This fact especially notable as Roman law itself is not famous for its system either.) Moreover Glanvill and Bracton took a lot from the conceptual system of Roman law. Glanvill used at contractual law the notions e.g.: mutuum, depositum, commodatum, emptio venditio, locatio conductio but the doctrine attached to them did not stem from Roman law but from the ancient Anglo-Saxon law. We can take similar establishment (perhaps in even more increased measures) in connect with Bracton.
The reception of Roman law to him did not mean the borrowing of the rules but the expressions. In the aforementioned ‘assault’ of Roman law the British economy and society were not suited for deeper adaptation of Roman law. Contrary to the city-states of North-Italic in Britain then was not considerable (industry and) commerce which demanded developed legal instruments. For the English conditions of the 12th-13th centuries the ancient primitive law, which rooted in personal actions, was suited perfectly and at the most some systems could be borrowed from Roman law which served didactical purposes. As Holdsworth writes: «In England Roman theories of contract never took root. Bracton’s book shows us that they did not fit English facts» . At the end of the 13th century the influence of Roman law was ended practically; Roman law – even more than the two previous centuries – was forced back exclusively within the confines of university education.
In the 16th century in the reign of Henry the VIII common law got in touch with Roman law secondly when professors , appointed by the king (regius professor), worked at universities of Oxford and Cambridge, beside teaching Roman law at the same time they flourished/were up and doing as personage state clerks or judges at High Court of Justice. This temptation was much the most forcible than the first, 300 years earlier: «If ever common law was in serious danger» . According to new researches, however, the danger of the reception of Roman law was not threatened. Herein the British order of law had an important role which elemental interests attached that the self-constituted and developed ‘own law’ did not fall under foreign influence. The conspicuously influential, privileges heeded British lawyers described by Chaucer in the 14th century as follows: Justice he was full often in assize; By patent and by plain commissïon; For his science and for his high renown; Of fees and robes had he many a one .
Additionally the 14th-16th centuries meant the most flourishing period of the development of common law. In this time the British contractual law strengthened and was able to be in accordance with the requirements of the inchoate capitalist economy. The common law became a peculiar, autonomous system – due to the legal development of the order of law. At the turn of the 16th-17th century England did not need Roman law; its extended economic demands were satisfied by the common law established in the meantime . One of the striking examples for this developing advantage is that common law adopted the doctrine of consideration. This meant that irrespective of formal requirements and contractual type every contract – precisely: every breach of contract – was provided with judicial sanction long before continental private legal systems adopted this . Roman law – due to the strengthening of common law – definitively remained outside the walls of private law of England.
It is beyond doubt that this isolation of common law means one of the hardest difficulties to get over. Legal unification of private law both within the European Union and European countries (still) outside the European Union has to overcome this still existing obstacle.
A brief review is not able to evaluate properly Gabor Hamza’s remarkable handbook’s values. The present review tried to underscore the utmost importance of the work which serves undoubtedly as an inspiration for further research in comparing the private law of countries in Europe and outside Europe. [Recibido el 24 de octubre de 2010].
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