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Privilegium

(234 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A technical term in Roman law, and as such not to be understood in the broad sense of 'privilege' in the medieval and early modern periods, still less to be equated with the same word in modern colloquial usage, Roman privilegium was a 'law for an individual', and according to the Twelve Tables (tab. 9,1) impermissible as a law of proscription at the expense of an individual: it was forbidden to propose it in the popular assembly ( ne inroganto, Cic. Leg. 3,4,11). During the Principate, prerogatives of certain institutions and groups of people were denoted by means of privilegi…

Homicide

(422 words)

Author(s): Neumann, Hans (Berlin) | Thür, Gerhard (Graz) | Schiemann, Gottfried (Tübingen)
[German version] I. General In antiquity homicide is often not yet differentiated from other crimes of killing ( Killing, crimes of). In many ancient laws the special reprehensibility or danger of a behaviour that resulted in the death of another human being was not yet considered a reason for a respective sanction. Thus, in the case of ancient Oriental laws, it would be inappropriate both with regard to the term and the matter to speak of particular offences amounting to homicide within the framework of crimes of killing. Neumann, Hans (Berlin) [German version] II. Greece In archaic Gre…

Wills and testaments

(3,807 words)

Author(s): Hengstl, Joachim (Marburg/Lahn) | Schiemann, Gottfried (Tübingen) | Manthe, Ulrich (Passau)
[German version] [1] (Religion) see Bible; Christianity; New Testament Apocrypha; Septuagint; Testamentary literature; Vulgate (Religion) see Bible; Christianity; New Testament Apocrypha; Septuagint; Testamentary literature; Vulgate Hengstl, Joachim (Marburg/Lahn) [German version] [2] History of law (History of law) Hengstl, Joachim (Marburg/Lahn) [German version] I. General Testament (from the Latin testamentum in the sense of the final will made before witnesses; see below IV.) denotes a unilateral 'last will and testament' (or, in common E…

Divinatio

(235 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Roman term for the procedure of allowing one of several litigants in a private case (  delatio nominis ) to appear before a public criminal court ( iudicium publicum); the origin of this term is unknown. What Gellius NA 2,4 has to say about the word expresses no confidence; it would therefore seem that its history was no longer known to Romans of the 2nd cent. AD. The employment of a religious term would indicate a very early origin. There is however no basis for a reconstruction. In [1] it is convincingly s…

Vindicius

(185 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (also Vindex: Pompon. Dig. 1,2,2,24). A mythical figure in Roman historiography, e.g. Liv. 2,4,5-10. As a slave, V. is supposed to have discovered a plot by the Tarquinii (cf. Tarquinius [7; 12]) in 509 BC to restore rule by kings. As a reward he is supposed to have been freed and admitted to the status of Roman citizen. It is possible that these legends served as a 'historical' explanation for the fact that under Roman law manumission led to the acquisition of citizenship, and not…

Suppositio Partus

(20 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law the punishable act of substituting children, partus suppositus . Schiemann, Gottfried (Tübingen)

Criminal procedure

(366 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] From a historical perspective it is only possible to speak of a criminal procedure (CP) in the technical sense if we can distinguish a field of criminal prosecution in the public (state) interest ( Punishment; Criminal law) from legal prosecution in the civil interest (including any civil law penalties, Lat.   poena ). The fact, for example, that private  revenge is channelled via the obligation to conduct a judicial procedure still does not constitute a CP: to protect public peace and state authority, only the …

Spado

(156 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The Latin term for a eunuch, but also for someone who is sterile without having been castrated ( castratio ; Ulp. Dig. 50,16,128). In Roman law, special family and inheritance rights applied to a spado: whereas we have a regulation from the 2nd cent. AD that, in general, allowed a spado to adopt (Gai. Inst. 1,103), under Justinian (6th cent. AD), a distinction was made: the earlier rule applies only to a natural s pado, not to a castrated person (Inst. Iust. 1,11,9). This corresponds to a  general trend against castration in Late Antiquity: permission to marry for a s pado, but …

Notary

(88 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ( notarius). In legal cultures favouring the written record of acts of law, a notary is needed as an officially appointed scribe. This function was held, in Ptolemaic and Roman Egypt for example, by the agoranómoi , and in the Roman Imperial period and especially in Late Antiquity, the tabellio (documentary scribe). The Latin technical term notarius designates in Late Antiquity a senior official or officer with a special imperial mission, and also the secretary of the consistorium (as tribunus et notarius). Schiemann, Gottfried (Tübingen)

Law [2]

(4,230 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] I. General The most important foundations of later European conceptions of law were laid in OT Judaic law, in Greek law as practical counterpart to the beginnings of philosophical reflection on justice ( Pre-Socratics; Justice), and above all in Roman law as the defining authority for the development of secular European jurisprudence since the late Middle Ages ( Reception). Law always comprises regulation on the part of a sizeable community for the settlement of conflicts between…

Crematio

(340 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (Burning at the stake) was a form of Roman capital punishment. The execution may originally have been left to the injured party and his agnates (  agnatio ) in a kind of ‘channelled’ private revenge. In that case, the criminal proceedings served only to establish the prosecutor's right to carry out the private punishment. This is probably how we should understand Gaius' report in his comm. on the Twelve Tables (Dig. 47,9,9), which states that this law (pl. 8,10) ordered execution by fire for premeditated arsons: igni necari iubetur (interpretation according to [1], b…

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’ …

Novellae

(881 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Overview Novellae is the abbreviation for the Latin novellae leges (‘new laws’, also Greek nearaí diatáxeis). In general, it refers to the legislation of the emperors in Late Antiquity, enacted chronologically after the official collections of the Codices Theodosianus and Iustinianus ( codex II.C.). In a narrower sense, it refers to the novellae of Iustinianus [1], which in modern editions of the Corpus iuris constitute the fourth and last part of this 6th-cent. collection. In contrast to the other parts ( Institutiones Iustiniani, Digesta, Codex Iustinianus), h…

Mores

(457 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The plural of mos ( mos maiorum , ‘custom of the ancestors’) describes an entire complex of normative requirements in Roman society. While the ideological value of tradition and conservatism stands in the foreground with the word mos, until the early Imperial period mores invoked in the first place a concrete system of norms and sanctions that is most clearly recognizable in the ‘moral jurisdiction’ ( regimen morum) of the censors ( censores ). The censor's reprimand ( nota censoria ) and the censor's harsh sanction of down-grading politica…

Suicide

(502 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Suicide, from neo-Latin suicidium ('self-killing'), a parallel formation on homicidium , was a subject of lively intellectual debate in Greek and Roman Antiquity: in schematic comparison it can be said that the followers of and successors to Plato, as well as Aristotle [6] and Neo-Platonism, condemned suicide, whereas some Sophists, and the Cynics (Cynicism) even more, acknowledged suicide as an expression of individual freedom, even expressly endorsing it. This point of …

Ignorantia

(193 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] An old Roman legal rule deals with ignorantia, also ignoratio (ignorance). According to Paulus (3rd cent. AD, Dig. 22,6,9 pr.) it reads: iuris ignorantia nocet, facti vero ignorantia non nocet (‘ignorance of the law is harmful, but not ignorance of the facts’). The preferred term since the Middle Ages is error. For the Romans error and ignorantia were probably synonymous. Error in law neither prevents responsibility for individual behaviour (under criminal and civil law), nor the effectiveness of the   consensus in legal transactions inter vivos or in declarations…

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.

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. Schiemann, Gottfried (Tübingen) Bibliography Honsell/Mayer-Maly/Selb, 392 f.  Treggiari, 145-160.

Falsum

(195 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law the crime of forgery. Gell. NA 20,1,53 calls the false bearing of a witness, which according to the XII Tables was punishable with death, testimonium falsum. However this probably had nothing to do with the criminal acts for which Sulla (probably in 81 BC) introduced a public suit ( quaestio de falso) in the lex Cornelia testamentaria nummaria (Dig. 48,10). The jurisprudence of the Imperial period dealt not just with the forging of wills and the counterfeiting of coins as Sulla's law but also for example with the bribing of wi…

Death penalty

(661 words)

Author(s): Neumann, Hans (Berlin) | Schiemann, Gottfried (Tübingen)
[German version] I. Ancient Orient The death penalty as a sanction for capital offences is attested in the ancient Near East from the latter part of the 3rd millennium BC as a penalty in varying frequency in the respective statute books and (less often) as a sentence in  documents of  procedural law. Capital offences were, in particular, homicide/killing ( Killing, crimes involving),  robbery, abduction, adultery, various cases of sodomy and incest and other statutory definitions of offences, princip…
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