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Schadensersatz

(752 words)

Author(s): Schiemann, Gottfried
Sch. zum Ausgleich von Verlusten oder zur Wiedergutmachung von Beeinträchtigungen unterlag in der Frühen Nz. folgenden Entwicklungen: der klaren Trennung zwischen Sch. und staatlicher Strafe, verbunden mit einem Perspektivenwechsel von der »Rache« gegenüber dem »Täter« zum Ersatzbedürfnis des Opfers; der Entdeckung und Entwicklung einer Entschädigung für persönliche Beeinträchtigungen jenseits von Vermögensverlusten; auch sonst einer stärkeren Hinwendung zum Personenschaden (Tod, Körper- und Gesundheitsverletzung); schließlich der Zusamme…
Date: 2019-11-19

Damages

(858 words)

Author(s): Schiemann, Gottfried
Damages to compensate losses or to make good other adverse effects underwent the following developments in the early modern period: the clear distinction between damages and public penalties, associated with a shift of perspective from “revenge” on the “offender” to the need to compensate the victim; the discovery and elaboration of compensation for personal suffering other than pecuniary loss; and in general a greater attention to personal injury (death, injury to one's body and health); and la…
Date: 2019-10-14

International Law

(3,761 words)

Author(s): Hillgruber, Christian | Reuter, Hans-Richard | Schiemann, Gottfried | Otto, Eckart | Krawietz, Birgit
[German Version] I. Conception – II. Greco-Roman Antiquity – III. Ancient Near East and Israel – IV. Church History – V. Fundamental Theology – VI. Ethics – VII. Church in International Law – VIII. Islam I. Conception 1. Legal conception International law is the quintessence of the legal norms that regulate sovereign relations between the international legal subjects. International legal subjects are primarily states, traditionally also the Apostolic See, the international organizations created by the states on a contractual b…

Law and Jurisprudence

(7,535 words)

Author(s): Loos, Fritz | Antes, Peter | Otto, Eckart | Schiemann, Gottfried | Lindemann, Andreas | Et al.
[German Version] I. Concept and Legal Definition – II. History of Religion – III. Ancient Near East and Old Testament – IV. Greco-Roman Antiquity – V. New Testament – VI. Dogmatics – VII. Ethics of Law – VIII. Sociology of Law I. Concept and Legal Definition There is no generally accepted definition of law. At most, there is a consensus that law is basically to be understood as the politically institutionalized order of human relations. The observance of the (general) rules (i.e. compliance or sanctioning of transgressions) emanatin…

Surety

(967 words)

Author(s): Neumann, Hans (Berlin) | Schiemann, Gottfried (Tübingen) | Meissel, Franz-Stefan (Vienna)
[German version] A. Ancient Near East There is evidence of personal (corporal) liability through surety (especially standing surety for another, rarely for oneself) as a means of guaranteeing a contract in Mesopotamian cuneiform texts from the mid-3rd millennium BC [2. 253] into the Hellenistic period [3. 64-69], using different terminologies and in different forms. The Gestellungsbürgschaft ('surety of appearance') was common (promise of the guarantor to deliver the debtor to the creditor for enforcement). In the late Babylonian (6th-4th cents. BC) Stillesitzbürgschaft ('s…

Paelex

(65 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] From a statement by the Roman jurist, Paul (Dig. 50,16,144) the meaning of paelex (also pelex, pellex, different in Greek pallakḗ ) is that of a female partner to whom one is not married (i.e not uxor, Marriage III.C.). The legal status of paelex was treated in Roman law mainly in the context of concubinage ( concubinatus ). Schiemann, Gottfried (Tübingen)

Scriptura

(124 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (literally 'that which is written down'), in the field of law, denoted all Roman documents, and (as literacy increased) from the Principate, but esp. in late antiquity, e.g. the testament, the note of hand ( cheirógraphon ), generally the contract, but also a legal opinion or a legal ruling, provided that these were given in writing. In a narrower sense, probably arising from the fact that the Roman tax farmers ( publicani ) 'marked down' transactions of relinquishment of public pasture to private (sub-)lessees, scriptura was the payment the lessee had to make for…

Diffarreatio

(51 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The actus contrarius of a   confarreatio , which dissolved a marriage joined in this form and followed the same ceremony. At the same time it effected the termination of the (former) husband's spousal powers (  manus ). Schiemann, Gottfried (Tübingen) Bibliography 1 W. Kunkel, s.v. matrimonium, RE 14, 2277 2 Treggiari, 24.

Auctoratus, Auctoramentum

(202 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] An auctoratus is, according to Gai. Inst. 3,199, a dependent person, who is named together with the minor children and wives as well as the indentured servants ( iudicati). The position of the auctoratus probably rested on a willing subjection by oath ( auctoramentum), perhaps also on a duty of service on behalf of the   pater familias of the auctoratus to the employer. Since the end of the Republic, a free man could commit himself as auctoratus as a  gladiator, which did not protect him from the   infamia which was otherwise associated with the pos…

Concubinatus

(520 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law a permanent union between man and woman without affectio maritalis, i.e. without the intention of both parties of permanently entering a legal bond for forming a household, procreating and raising children. Since the marital laws of Augustus, the concubinatus increasingly became a form of living together if marriage was prohibited. Thus, senators and their descendants were prohibited under the l. Iulia de maritandis ordinibus from marrying a freedwoman, actress or daughter of an actor. Freeborn Romans could not enter into a marriage…

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…

Patronus

(1,107 words)

Author(s): Lintott, A. W. (Oxford) | Schiemann, Gottfried (Tübingen)
[German version] A. Definition In Roman hierarchical relationships, the term patronus refers to the person of higher rank and correlates thus with the term cliens ; the patronus took the cliens into his fides. Lintott, A. W. (Oxford) [German version] B. Private law The patronus was the holder of a right to control, initially probably as a comprehensive authority over friends (guests) and freedmen, but from about the 2nd cent. BC only as a bundle of rights of the former slave owner in relation to the freedmen manumitted by him. In the 12 Tables (tab. 8,21; Tabulae duodecim), the term patronus

Decollatio

(197 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law the ‘simple’ death penalty by decapitation (whence also: capitis amputatio), as opposed to being burned alive (  crematio ) and crucifixion (  crux ). All three methods of execution appear in Paulus, Sent. 5,17,2 as summa supplicia (most severe punishments). Certainly from the time of Caligula capital punishment by damnatio ad bestias (animal combat in the arena) was also current practice. Decollatio was typically reserved for higher-status freemen (  honestiores ), while crematio and crux were carried out on ordinary freemen (  humiliores ) and slaves. D…

Revocatio

(161 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ('Revocation') occurs in two special senses in Roman law: (1) as revocatio in servitutem (' revocatio into slavery'), the revocation of manumission, probably only current in Late Antiquity (cf. Cod. Iust. 6,7,2 pr.); (2) in civil actions. There, the convicted party, having already paid, could demand retrial ( restitutio ) only with the risk of being compelled to pay the claimant for the litigation a second time by revocatio in duplum (' revocatio for double the value') if the restitution failed. This applied for the formula procedure ( formula ) and…

Tergiversatio

(193 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (literally 'to turn your back'). In Roman law, the term refers to the turning away of the private accuser in a criminal trial ( accusatio , delatio nominis ) from the case he had brought against the defendant. Beginning with the SC Turpillianum (AD 61), the tergiversatio led to a case against the accuser himself. When the withdrawal was unjustified, the tergiversatio was punished with a fine (Dig. 47,15,3,3). Beyond that, the private accuser lost his right to hold an office as well as his civic honour ( infamia , Dig. 48,16,2). The defendant who had…

Tutela

(1,627 words)

Author(s): Schiemann, Gottfried (Tübingen) | Sehlmeyer, Markus (Jena)
[German version] [1] Guardianship (Latin 'guardianship', from tueri, 'to protect'). Schiemann, Gottfried (Tübingen) [German version] I. Basis and typology of guardianship Tutela occurred in Roman law as tutela over those not yet of age ( impuberes) and women ( tutela mulierum), and concerned those who were not subject to the personal power of the 'father of the family' ( pater familias ) or the husband ( manus ), and were thus persons 'in their own right' ( sui iuris). The Twelve Tables ( tabulae duodecim ; tab. 5,6, c. 450 BC) prescribed the nearest mal…

Nervus

(63 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] An iron chain used to tether a debtor's feet  ( ferreum vinculum, quo pedes impediuntur, Fest. 162,1-2). According to the Twelve Tables (Lex XII tab. 3,3),  a creditor was apparently permitted to use the nervus to take the debtor into a kind of coercive detention, if the latter did not pay his debts despite having been sentenced.  Schiemann, Gottfried (Tübingen)

Indulgentia

(284 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The technical term from the beginning of the 3rd cent. AD for a criminal law pardon by the Roman emperor (e.g. Cod. Just. 9,23,5 of the year 225). However there had long been pardons in Rome. They could happen during criminal proceedings (e.g. Mod. Dig. 48,16,17) as well as after them in order to lift the sanction imposed, and even before the initiation of any prosecution. In this way, Julius Caesar ordered the people's tribune M. Antonius to arrange a plebiscite to pardon those condemned according to Pompey's law on electoral fraud (  ambitus ) (Caes. …

Synallagma

(288 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (συνάλλαγμα/ synállagma, literally: 'mutual exchange'). Greek expression for a (business) transaction, sometimes for any type of legal obligation regardless of its creation, be it an offence or a contract. It did not have a precise juridicial meaning. Nevertheless, the Roman jurists M. Antistius [II 3] Labeo (about the time of the birth of Christ) and Titius Aristo (late 1st cent. AD) adopted the Greek word synallagma in Latin to refer to agreements that resulted in obligations for both parties. These might be so-called innominate contracts th…

Citations, law governing

(318 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The law known in modern literature as the law governing citations is an order by the Roman emperor declaring which jurists from earlier centuries should be drawn on and cited in legal decisions. With the crisis of the Roman empire in the mid 3rd cent. AD even Roman jurisprudence (  iuris prudentia ) lost the political, social and economical conditions for productive continuation. Legal literature from the 1st cent. BC, the beginning of its ‘classical’ period, therefore changed from being a fund for a discourse o…
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