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Instrumentum

(362 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The term instrumentum (an object that has been ‘erected’ or ‘set up’) has widely differing meanings in Roman legal terminology: 1. in the Imperial period, especially in late antiquity, instrumentum was the document recorded by a document writer (  Tabellio ) concerning a civil legal transaction or (as instrumentum publicum) by an authority regarding a private or public matter. The instrumentum publicum and the instrumentum of the document writer, which was attested as authentic by three witnesses and also by the tabellio in writing, had full status as proof in…

Lex, leges

(2,519 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Concept Lex (‘law’, pl. leges) in Roman law denotes stipulation by a private individual, an office-bearer or a legislative body. The etymology is obscure. A derivation from legere (‘to read out’), referring to the method of stipulation by way of a ceremonial formula (cf. B. below on nuncupatio) remains speculative. Crucial to the lex is its mandatory character. On the other hand, in the original use of the term it lacks the ‘abstract’ (claiming general validity) and ‘general’ (directed at a large number of people) character of mod…

Delatio nominis

(412 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ‘To indicate the name (of a suspect)’ is originally only the very first step in initiating a public prosecution in Rome. Plaut. Aul. 416 uses the expression in this way regarding the campaign conducted by the   tresviri capitales against underclass criminality. In proceedings before these magistrates, a kind of police-court justice, the meaning of delatio nominis ─ entirely in the sense of a modern complaint to the police ─ is evidently confined to the sole process of reporting a criminal act [1. 60, 78]. In the 3rd and above all the 2nd cents. BC, alongside the …

Furor

(203 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The expression for  mental illness in Roman law. The person affected by this, the furiosus, according to the Twelve Tables ( c. 450 BC), found himself in a special relationship of authority and dependence (foster-care, cura furiosi). The agnate (  agnatio ) and, when needed, in early times the gentile (  gens ) were entitled to the office of the curator (Cic. Inv. 2,148; Rhet. Her. 1,23). The position of the curator, similar to that of a trustee, corresponded to a great extent to that of a guardian (  tutela ) and was valid not only for the person but also for the property of the furi…

Coemptio

(159 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Probably the usual type of arrangement for setting up a marriage in which the   manus power relationship applied to the woman. Coemptio cannot simply be interpreted as the purchase of a bride (even as a practice in a very early phase of development) because it is connected to the formal transaction of the   mancipatio , which, at a very early stage separated the actual procedure from that of the conceptual image the term evokes. One can assume that originally, the bride's father ‘transferred’ the power over his daugh…

Aequitas

(674 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The word aequitas has several meanings. There is a particularly fluid transition to iustum. The latter usually tends to refer to fidelity to positive law, aequitas to justice characterizing and penetrating the whole of law. Linguistic kinship to the horizontal points to equality in the sense of the corollary of performance and counter-performance, misconduct and sanction. Additionally aequitas includes the meaning of proper appropriation of facts as equal or unequal to the cases already decided in positive law. Going still further at th…

Manumissio

(17 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The Latin term for Manumission (C.), the freeing of slaves. Schiemann, Gottfried (Tübingen)

Tutelage

(67 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Tutelage played an important part in both Athenian (cf. epitropos [2]) and Roman law (cf. tutela [1]). It applied not only in respect of infants and impubes ('those under the age of discretion') not under the patria postestas ('paternal power'), but also in a wider context as a gender-based tutelage in respect of women ( Kyrios [II], Tutela, [1 III]). Schiemann, Gottfried (Tübingen)

Manus

(730 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Manus is used in Roman law in the sense of the ‘controlling and protecting hand’, expressing the family law concept of a relationship based on domination. Originally, manus may have described the hegemony of the head of the family ( pater familias ) not merely over his children ( patria potestas ) but also over his wife. Already in the Law of the Twelve Tables (5th cent. BC), however, paternal power is treated separately. The meaning of manus is accordingly restricted to the husband's relationship of power over his wife. Our best source for manus are the ‘Institutions’ of …

Carcer

(329 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] According to Varro, Ling. 5,151, the term carcer, i.e. a place for individual detention, is derived from coercere; it is thus linked to the magistracy's powers of   coercitio for the direct enforcement of its authority, and not the punishment of criminal misconduct. ‘The carcer has to be maintained for the detention, not the punishment of people’: carcer enim ad continendos homines, non ad puniendos haberi debet (Ulp. Dig. 48,19,8,7). Civil law offences and other obligations, for which the obligator was liable in person, were regulated by the XI…

Adulterium

(329 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version]  Adultery ( a.) in Roman law according to the l. Iulia de adulteriis coercendis was a matter for public criminal proceedings ( iudicium publicum). The factual proximity of this ruling to Augustus' other marriage legislation suggests that the law on adultery originates from the same year as the l. de maritandis ordinibus (18 BC). According to a report by Paulus (Coll. 4,2,2), from the late classical period, several earlier laws were rescinded by the l. Iulia. So adulterium must already have been prosecuted at the time of the Republic, probably by the holder of authority ( pat…

Plebiscitum

(593 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (pl. plebiscita). The resolutions of the assembly of the Roman plebs ( concilium ; plebs ). From the lex Hortensia (287 BC) onwards, these resolutions were equated with leges (laws, lex ) ( legibus exaequata sunt, Gai. Inst. 1,3) and were also so called. It can now be regarded as disproved that there existed any earlier general binding character to the plebiscitum (summary in [1. 61f.]). Over the following three cents., the plebiscitum formed the core of the entire Roman legislative process. This may partly have been because the convocation of a concilium plebis by the pe…

Taxatio

(163 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (the 'appraisal') in the Roman formula process was the upper limit to which the iudex ('judge') could set the sentence sum on conviction ( condemnatio ), by instruction of the praetor. The taxatio typically occurred in cases of (1) liability of the master for the property ( peculium ) of the slave or filiusfamilias from the actio de peculio or the actio de in rem verso, in respect of asset gains made by the action of such individuals under his power ( patria potestas ), (2) an exception sought by the debtor because of distress ( beneficium competentiae) and (3) an appeal for iniur…

N. N.

(28 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Abbreviation of the all-inclusive designation N(umerius) N(egidius), which in Roman jurisprudence is used to describe the defendant; analogous to A.A. Schiemann, Gottfried (Tübingen)

Sectio bonorum

(91 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ('liquidation of assets') is the model for the Roman collection of debts ( missio in possessionem ) executed against debtors in Roman law. If someone, esp. a tax collector ( publicani ), owed money to the state, all his assets were liquidated. The buyer had to assume the debt. The purchase price went to the treasury ( aerarium ). Guarantors ( praedes) whom the state debtor often had to procure were subject to SB as well. Debt Schiemann, Gottfried (Tübingen) Bibliography M. Kaser, K. Hackl, Das römische Zivilprozeßrecht 21996, 389 f.

Banishment

(57 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Graeco-Roman Antiquity banishment largely replaced the death penalty for members of the upper class, but also existed as an independent  punishment, as in the Attic ostrakismós . For details for Greece, particularly Athens, see phygḗ , aeiphygía , apeniautismós , for Rome see exilium , deportatio , relegatio . Schiemann, Gottfried (Tübingen)

Emancipatio

(577 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Under Roman law the   pater familias generally held paternal authority over his children for as long as he lived. Releasing sons from the control of the pater was possible only by means of a formal and complicated legal process: the emancipatio. It was linked to formal alienation by   mancipatio , by which not only a dominus could sell his slaves but also a father his sons. By means of this ‘sale’ a father gave his sons into servitude with another pater. Even in the period of the Twelve Tablets (5th cent. BC) no suitable business practice other than the ‘sale’ …

Accusatio

(201 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] according to the Digest title 48,2 is the charge in Roman criminal proceedings. The bearer of the accusatio is in that case a private person. This person first laid a charge (  delatio nominis ). In the later imperial period in an extra ordinem judicial criminal prosecution it was often the case that this was the sum total of the private share in the course of procedure. In the republican procedure (  quaestio ), on the other hand, the delator was always and, even later still regularly, a party after admission of the accusatio by the court magistrate ( receptio nominis) -- simil…

Latini Iuniani

(411 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Roman freedmen, whose manumission ( Manumissio ) was deficient. For this reason the freedman did not receive citizenship and in general had an inferior legal status compared to other freedmen. The term Latin…

Sponsalia

(85 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A couple's engagement in Roman law. The term appears to have derived from the fact that marriage in earlier times had been promised mutually through an official stipulatio (or through sponsio ) of the couple's fathers. In the late Republic and in the Principate, the sponsalia could be revoked freely and it was no longer possible to file a suit for marriage. Indirect commitments (e.g. contract penalties, Dig. 45,1,134 pr.) were abolished as well. Schiema…
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