The high regard that European Romanistics, until at least the mid-20th century, had of the eurematic or cautionary genre (the in iure cavēre in the Ciceronian sense) as a general category qualifying Roman interpretatio iuris throughout its experience (such as Brenkman and Eineccius), or only until the last century of the republic (such as Pernice, Ferrini, and Glück), offer the cue to investigate the best perspective for the historical framing of this experience. It finds confirmation in the ten fragments of the Digesta taken from the liber sing. de heurematicis by Modestinus and in evidence of eurematic activity by other jurists where the use of colores, fictiones, formulae, consilia and cautiones, as rhetorical tools to further the application of the law, appear to be widely used also for the safeguarding and affirmation of bonum et aequum even beyond the limits of the law itself. After an historically framing of the work of Modestino, the first part of this research is dedicated to the concept of heurematic jurisprudence and to the figures of color and fictio. The second part will be sharpened the figures of the consilia, cautiones and the fragments of Modestinus’ de heurematicis, also with some mention of the “eurematic” activity of other jurists.
Il liber singularis de heurematicis di Modestino e la giurisprudenza ‘eurematica’: una rilettura retrospettiva dell’interpretatio iuris tra storia e ideologie (antiche e moderne) (prima parte)
O. Sacchi
2024
Abstract
The high regard that European Romanistics, until at least the mid-20th century, had of the eurematic or cautionary genre (the in iure cavēre in the Ciceronian sense) as a general category qualifying Roman interpretatio iuris throughout its experience (such as Brenkman and Eineccius), or only until the last century of the republic (such as Pernice, Ferrini, and Glück), offer the cue to investigate the best perspective for the historical framing of this experience. It finds confirmation in the ten fragments of the Digesta taken from the liber sing. de heurematicis by Modestinus and in evidence of eurematic activity by other jurists where the use of colores, fictiones, formulae, consilia and cautiones, as rhetorical tools to further the application of the law, appear to be widely used also for the safeguarding and affirmation of bonum et aequum even beyond the limits of the law itself. After an historically framing of the work of Modestino, the first part of this research is dedicated to the concept of heurematic jurisprudence and to the figures of color and fictio. The second part will be sharpened the figures of the consilia, cautiones and the fragments of Modestinus’ de heurematicis, also with some mention of the “eurematic” activity of other jurists.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.