The essay starts with a methodological criticism to both the ‘neo-pandectistic’ approach and the ‘gernetian’ perspective in interpreting concepts and institutions of ancient legal systems; afterwards it focuses on the ‘otherness’ of Roman, Greek and Pharaonic Law, by comparing the pivotal concepts of ius, νomοs, and ma’at. The first one, at least as regards the discipline of private relations above all during the last four centuries of the Roman Republic, neither amounts to state provisions, nor is a judge made law: indeed, it is characterized by a scientific elaboration which finds its main creators in cives privati and its most expressive shape in the so called ius controversum. The second one, considering fifth and fourth century Athens, cannot be accurately qualified as a statutory law, given that its political nature, notwithstanding its material structure, derives from an immemorial tradition (already attested in the Homeric poems) that considers ‘positive rules’ an expression of a physical and theistic order existing in any case. The third one is a clear paradigm of the primitive indistinction between religious, legal and political spheres, and it is explained more as a particular ‘Reason of Cosmos’, than as the direct target or the basic source of pharaonic laws and administration of justice.
Ius, nomos, ma'at. Riflessioni su 'inattualità' e 'alterità' delle esperienze giuridiche antiche
PELLOSO, Carlo
2012-01-01
Abstract
The essay starts with a methodological criticism to both the ‘neo-pandectistic’ approach and the ‘gernetian’ perspective in interpreting concepts and institutions of ancient legal systems; afterwards it focuses on the ‘otherness’ of Roman, Greek and Pharaonic Law, by comparing the pivotal concepts of ius, νomοs, and ma’at. The first one, at least as regards the discipline of private relations above all during the last four centuries of the Roman Republic, neither amounts to state provisions, nor is a judge made law: indeed, it is characterized by a scientific elaboration which finds its main creators in cives privati and its most expressive shape in the so called ius controversum. The second one, considering fifth and fourth century Athens, cannot be accurately qualified as a statutory law, given that its political nature, notwithstanding its material structure, derives from an immemorial tradition (already attested in the Homeric poems) that considers ‘positive rules’ an expression of a physical and theistic order existing in any case. The third one is a clear paradigm of the primitive indistinction between religious, legal and political spheres, and it is explained more as a particular ‘Reason of Cosmos’, than as the direct target or the basic source of pharaonic laws and administration of justice.
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