Through the Roman Law
above the Comparative Law
The title of the paper is a paraphrase of Jhering’s sentence “Through the Roman
law but above the Roman law”. Putting this statement into the context of Savigny’s
and Windscheid’s opinions on the future role of the Roman law the author has
explained the Jhering’s dictum as an expression of the realistic approach to the
workability of the Roman law for the jurisprudence. Essential for bringing about
the aforementioned workability is – according to the author – the link between
Roman law and legal methods. In this perspective the author discussed waning authority
of Roman law at the faculties of law and little success of recent proposals
to bring Roman law and comparative law closer. The main message of the paper is
that Roman law can be useful for modern jurisprudence if we revive the tie between
Roman law and legal methods, a connection which, as it is submitted it may be
reasonably argued, may be revived due to significant potential of comparative reasoning
for judicial practice in the time of globalization. The crux of any formative
steps to that end shall be forging changes in legal education, which predominant
focus should be rested upon legal problems. Inasmuch as systematic digitalization
of these problems, subject to initial detection and centuries-long discussion
within the civil law tradition, and assimilation of modern judgments from different
jurisdictions can be put together in a uniform database, these developments are
capable of bringing this legal experience closer to the practical legal debates.
 Dajczak-3.pdf | 228 kB |
