| Popis: |
The research focuses on the analysis of the second part of the procedure per formulas of the classical era. It intends to investigate the relationship between the jurists and the judge during this second segment of the proceedings. The first chapter investigates certain sources that define the boundary of the relationship between the judge and the jurist. Gaius and Pomponius are both very explicit in indicating the existence of a close link between legal science and judges. This relationship appears to be confirmed by the literary testimonies of the last century of the Republic, which show the assiduous presence of jurists alongside judges in the resolution of famous cases. The following chapters deal with showing some concrete examples of legal science’s thinking addressed to the judge of the per formulas trial. The second chapter, in particular, concerns two very important topics that directly involved the work of the private judge. On the one hand, the arbitratus de restituendo is analysed, showing how the determination of its concrete content was specifically left to legal science. The latter, in fact, was engaged in defining the perimeter of the arbitratus present in the formulae which the judge had to apply in the performance of his duties. On the other, it addresses the issue of cautiones iudiciales which were stipulationes that the judge could impose on the parties and that derived from a careful analysis of the officium iudicis in relation to the specific content of the formula. In the third chapter, the issue of the officium iudicis within the context of the iudicia bonae fidei is examined in a rapid and necessarily limited manner. The analysis is limited to the study of some texts of Cicero in which clues can be found concerning the peculiarities of the role of the judge in these iudicia. Recalling the thesis according to which the interpretatio of the oportere ex fide bona was entrusted to jurisprudence, which also determined the powers of the judge, deducing them from the formula, the theory according to which the bona fides is a technical and specialist concept appears to be confirmed. Attention is then focused on the compensatio and on the usurae, as examples arising within the context of the iudicia bonae fidei thanks to the work of the scientia iuris. Finally, the last chapter focuses on the study of the scientific elaboration of legal science concerning the onus probandi. In particular, the problem concerning the existence of a reflection of the prudentes in a field which is traditionally excluded from the scope of activity of legal science of the classical period is analysed. The investigation is carried out based on an analysis of literary and technical texts which demonstrate the procedures followed by jurists. Finally, the presence of a scientific thought in this regard is confirmed by reading a very famous chapter of Aulus Gellius’s Noctes Atticae. |
