N. 4 – 2005 – Cronache

Professor Gábor Hamza’s inaugural lecture

at the Hungarian Academy of Sciences

On October 6, 2004 October 6, 2004 in the main lecture hall of the Hungarian Academy of Sciences, Chair Professor Gábor Hamza delivered his inaugural lecture on “The Classification (divisio) into ‘Branches’ of Modern Legal Systems (Orders) and Roman Law Traditions”. Dr. Hamza is Head of the Department of Roman Law at the Eötvös Loránd University in Budapest and corresponding member of the Hungarian Academy of Sciences.

The session was opened by Ádám Török, Chairman of the Section of Economics and Legal Science of the Hungarian Academy of Sciences. The Chairman presented the professional career of Professor Hamza. He drew the attention of the distinguished audience to Professor Hamza’s achievements in the domain of Roman law, history of law, and comparative law. Professor Török also pointed out Gábor Hamza’s exceptional contribution to the legal science both as an author and as an editor, acknowledging also his achievements in fostering international relations in his capacity as a member of several international scholarly societies.

Professor Hamza started his inaugural lecture by emphasizing the contemporary significance of Roman law traditions. He pointed out that the idea of classification (divisio) of the Roman legal system originated in ancient Greek philosophical thinking. He also emphasized that the classification or partition (divisio) of ius civile is in no way related to the present-day classification of the legal order (system) into various “branches” of law, particularly in civil law jurisdictions. The notion of the ius civile, comprising originally the entire legal order of the Roman State, had multiple meanings since the ius civile regulated all areas of the legal order of the Roman State and all legal relations arising between its citizens (cives Romani). In the later period of the Roman res publica, the ius praetorium (ius honorarium) appeared as a counterpart of the ius civile.

Professor Hamza also referred to Cicero, who considered the ius civile and the ius praetorium to be of equal rank. In the classical period of Roman law the ius civile merged with the ius praetorium. This merger, i.e. the gradual fading away of any distinction between the two, was due in particular to the fact that the ius praetorium lost its role as a vehicle for renewal of the legal order. Since then, ius civile has become synonymous with ius privatum including the law of persons, family law, real rights, the law of obligations and the law of successions, as opposed to the ius publicum relating to the res sacrae, sacerdotes and magisratus according to the jurisconsult Ulpianus [«in sacris, in sacerdotibus, in magistratibus»] (D. 1, 1, 1, 2). On the basis of this distinction (divisio) between ius publicum and ius privatum, it is obvious that this divisio has significance exclusively from the point of view of the iurisprudentia. This is due to the fact that this divisio is more a classification than a definitio.

Professor Hamza further pointed out that the notion of the Roman ius privatum was not identical with the notion of the private law (droit privé, diritto privato, derecho civil, Privatrecht, etc.) known in contemporary legal orders. The same holds true for the notion of the Roman ius publicum in relation to the modern comprehension of public law (droit public, diritto pubblico, derecho publico, öffentliches Recht, etc.) in contemporary legal orders. This difference is due to the fact that the Roman notions of the ius privatum and the ius publicum originated in totally different social and economic circumstances. Gábor Hamza drew attention to the fact that this divisio was not merely a theoretical one but instead adequately reflected Roman reality. Supporting this conclusion, Professor Hamza offered the acquisition of property as an example. When the Roman State acquired property, the method of acquiring ownership differed from the methods of acquiring property utilized in transfers between citizens (cives Romani). The Roman State did not need to use either the mancipatio or traditio to acquire property. In contradiction to the Roman legal order (ius civium Romanorum or ius Romanum), in contemporary legal orders the State can be the subject to private law relations. Professor Hamza emphasized that in ancient Rome the ius privatum did not regulate the relations involving also the State. He pointed out that only certain delicta were part of the Roman criminal law as an autonomous branch of law, since the delicta privata (for instance theft [furtum]) constituted part of private law. The crimina (delicta publica, for instance parricidium and perduellio) belonged to the ius publicum. This contradicts the modern prevailing view, according to which modern criminal law is part of public law. This view, however, can not be regarded as a universally held one, because in the French doctrine, criminal law (droit criminel) belongs to the sphere of private law (droit privé).

Gábor Hamza mentioned that for the Roman jurisconsulti the divisio of the legal system into “branches” was merely a form of scientific classification without any practical significance. The distinction made by Ulpianus is by no means one of a theoretical nature. Professor Hamza emphasized again that this divisio is rather a form of general classification rooted in Greek philosophical thinking. He placed particular emphasis on analyzing the famous late 12^th century dispute between the two outstanding Glossators, Placentinus and Azo Portius. Placentinus († 1192) first clearly separated the legal system into ius privatum and ius publicum, considering these two “branches” of law as duae res or real existing things. Azo heavily opposed this idea, insisting on the necessity of keeping the unity (unitas iuris) of the legal order. Since Azo was convinced of the necessity of the unity of the legal order, he rejected the diversitas rerum vel personarum, pointing out that the separation of the ius publicum from the ius privatum could exclusively assume the function of orienting lawyers.

In the next part of his presentation, Professor Hamza drew attention to the structure of the Codex Iustinianus, emphasizing that the last three books (Tres libri) of this Code contained exclusively public law related edicta (constitutiones) of the Roman emperors. Of particular significance from the viewpoint of the development of public law is the subsequent interest towards the Tres libri expressed both by the Glossators and Commentators. Andrea Bonello da Barletta (c 1190—1273), the highly-reputed follower of the Bologna School, Professor of the University of Naples (the first State university), founded by Emperor Frederic II in 1224, first commented on the Tres libri. His comments regarding their nature fluctuated between glossa and summa. Professor Hamza also mentioned the Glossa of Marino da Caramanico, written between 1270 and 1278 and patterned after the Glossa ordinaria of Accursius, in which Marino da Caramanico addressed the Tres libri.

Gábor Hamza remarked that Bartolus de Saxoferrato (1313/14-1357) also commented in a number of his tractatus (for instance in the Tractatus repraesaliarum, Tractatus de tyrannia, Tractatus de regimine civitatis, Tractatus de statutis) on public law related matters. Bartolus commented on all parts of the Corpus Iuris Civilis including a number of questions relating to public law. In those treatises (tractatus), this outstanding Commentator dealt with such extremely important matters as the relation between State (imperium) and ecclesiastical power (sacerdotium).

Gábor Hamza next emphasized in his presentation that the non-existent divisio into “branches” of the legal order in ancient Rome did not hinder the development of the ius publicum. He also emphasized that, particularly in Germany, the representatives of the public law (öffentliches Recht) availed themselves of the concepts and terminology of the ius privatum (Privatrecht). Indeed, the outstanding specialists of the öffentliches Recht, pertaining to the Pandectist legal science during the 19th century, also availed themselves of this terminology. It deserves mentioning that Paul Laband and Georg Jellinek were equally well-versed in both private and public law.

Most representatives of the public law science in Germany in the 19th century, for example Georg Jellinek, were familiar also with the private law. This explains why they so often approached the institutions of public law from the viewpoint of private law, using private law concepts and terminology.

Next turning to English jurisprudence, Gábor Hamza noted that Sir Thomas Erskine Holland considered private law as «the only typically perfect law» in his work Elements of Jurisprudence which was published in 1880. Referring to Frederic William Maitland, Professor Hamza cited the following passage of the English author: «Our whole constitutional law seems at times to be but an appendix to the law of real property», taken from Maitland’s Constitutional History of England, published posthumously in 1908. This phrase is characteristic of what outstanding significance English authors attributed to real property, refusing the idea of the divisio of the legal order into “branches”. It is worthy to mention the ideas of Sir John Salmond, the highly-reputed New Zealand lawyer. His view relating to the divisio of the legal order was similar to that of Ulpianus, since he also regarded public law (ius publicum) relating to the res sacrae, sacerdotes and magistratus. Salmond, furthermore, like Ulpianus, did not attribute any practical importance to the divisio into “branches” of the legal order.

In the French legal doctrine, Léon Duguit, followed Ulpianus’ concept, underlining in his work Traité de droit constitutionnel, the relative nature of the divisio of the legal system into public law (droit public) and private law (droit privé) and emphasizing that the idea lying behind this divisio served exclusively the purpose of classification.

Referring to a number of examples, Professor Hamza proved that Roman law did not recognize a separation between public and private law as it is recognized today. He pointed out, in compliance with the thoughts of Azo, the danger of this separation. The division is hardly able to provide any contribution to an adequate interpretation and development of law, since it represents the danger of disintegration of the legal system.

Considering the effect of the modern division between public and private law on legal education, Gábor Hamza Hamza emphasized that legal education both in the Middle Ages and modern times was based on the sources (fontes) of law rather than on the “branches” of the legal system. Professor Hamza mentioned in this regard the Faculty of Law of the University of Halle, founded by the Prussian State as a Reformuniversität in 1694. In Halle, the four Chairs (professorships) were based on the fontes iuris (Decretalis, Codex, Pandectae, Iustitutiones).

Professor Hamza’s outstanding lecture on the vexata questio of divisio of the legal system into “branches” reflected the depths of his knowledge in the areas of Roman law, legal history and comparative law, and was generally viewed by the audience as a valuable contribution to solving this centuries old dispute having considerable significance even today.

At the end of the session, Ádám Török solemnly presented the diploma of corresponding membership in the Hungarian Academy of Sciences to Professor Gábor Hamza.

Tamás Nótári

Károli Gáspár Reformed University,

Faculty of Law and Political Science

Department of Roman Law