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Abstract - The paper deals with aequitas and its relationship to ius from the perspective of the declaimers of Seneca the father’s anthology of controversiae, a scholastic practice in many ways connected to the world of jurists, which also teaches to apply rhetorical status theory, in turn of great importance for the development of jurisprudence. In them, aequitas, which appears in the divisio between quaestiones iuris and quaestiones aequitatis or tractationes, adapts the ius, general and abstract, produced by the lex to the individual concrete case without opposing it.

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La iustitia ha constituido desde tiempos inmemoriales un extenso campo de estudio, especialmente para los juristas de tradición romanística como Ulpiano o Cicerón, los cuales ya entendían que este concepto giraba en torno a dos ideas centrales: la justicia podía entenderse dentro de la esfera de la voluntad o bien dentro de la esfera de la moral del ser humano. La búsqueda de la justicia no es algo que deba entenderse como arcaico y obsoleto, sino que es algo que nutre la misma esencia de la ciencia del derecho.

Estudiamos un aequipondium o contrapeso de balanza realizado en bronce con representación figurada de una divinidad femenina. Apareció en la fachada portuaria de Tarragona y está conservado en la colección del Museu Nacional Arqueològic de Tarragona (MNAT). Destacamos su peso excepcional de 38 kg, el mayor, con diferencia, de todos los aequipondia hasta ahora conocidos en el mundo romano. Pertenecería a una gigantesca statera o balanza de brazo, que hoy denominamos romana. Esta balanza estaría necesariamente montada en un gran bastidor o machina, capaz de pesar cargas enormes de hasta 1500 kg o más. Por el lugar de hallazgo y sus altas cualidades artísticas y técnicas proponemos relacionarlo con la balanza pública (ponderarium o sacomarium) del puerto de Tarraco. La divinidad femenina representada debe ser una imagen de Aequitas, la Equidad, numen protector de las justas transacciones en las pesas y medidas de los mercados.

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The principle of aequitas allows to take into account circumstances of a particular case, going beyond the strict meaning of the applicable legal norm. Moreover, if these circumstances occur frequently, the principle opens the door for the modification of the norm in question. This paper follows the application of aequitas and its impact on the development of law during the Roman history. We can generally conclude that the application of aequitas in pre-classical Roman law led to breaking off with strict forms of the old ius civile harmonizing the law with the needs of the republican society. This can be attributed to the activities of praetor, pre-classical jurists and judges, and to the introduction of the iudicia bonae fidei. In the classical period, authorized jurisconsults interpreted the law in line with equity, through their responsa or as members of the consilium principis preparing rescripts of the princeps. Although this has been done under the emperor's control, interpreting small, private, everyday legal problems of citizens lead to the development of technical rules of private law. These rules are still valid today. In the post-classical period, given the general crisis of the Roman society, the preservation of the Empire was designated as the public interest (utilitas publica). Under these circumstances post-classical jurists had no longer the possibility to creatively interpret the law. Moreover, starting from Constantine, the issuance and control of equitable implementation of the rescripts was reserved for the emperor, these being referred to the privileges and exemptions from various burdens and obligations. Finally, Justinian proclaimed that the emperor is the only creator and interpreter of the law: 'conditor et interpres legum'. He determined what was equitable following Christian ideology and the interest of the Empire (utilitas publica).

Iudicia bonae fidei is a civil procedure in which the judge has an ex officio obligation to safeguard bona fides, that is, to take into account the parties' conduct demonstrated in their underlying relationship that lead to a dispute that was contrary to the principle of good faith. This duty of the judge is based on the praetors' formula: judge oblige the defendant to give or do whatever good faith requires ('quidquid dare facere oportet ex fide bona'). The paper analyzes the much disputed issues of the emergence, legal basis as well as the function of this kind of procedure in Roman law.

Equity's remedial intervention may be traced back to the pharmacological ambiguity of writing, as construed by Plato in the dialogue Phaedrus. It would be easy to read the Platonic recasting of the ambivalence of writing as a stark antagonism between remedies and poisons, which ultimately derives from the divide between Platonic models and copies. However, the construction of this dichotomy is part of a more general transformation, which predates Platonic narrations: during the process of elaboration of the Greek alphabetic written language, the relation of opposition emerges as the cornerstone of the new theoretical vocabulary of the philosophers. Before this process, in the Iliad pharmaka appear instead as almost always benign herbal preparations. In the later text of the Odyssey, the various pharmaka have different effects, which may even radically diverge from each other: Helen's pharmacy hosts a variety of pharmaka, both healing and poisonous. And yet, this contrast is only recast as mere opposition in Aristotle's systematization of the relation implied by Parmenides and revisited by Plato. The divergence between remedial and poisonous pharmaka in Helen's pharmacy is then recaptured within the Christian bipolar view, which legal equity inherits. It may be time to claim the differential rather than oppositional distribution of pharmaka, by ascribing the variety of juridical remedies to a multiplicity of equities. [ABSTRACT FROM AUTHOR]

La iustitia ha constituido desde tiempos inmemoriales un extenso campo de estudio, especialmente para los juristas de tradición romanística como Ulpiano o Cicerón, los cuales ya entendían que este concepto giraba en torno a dos ideas centrales: la justicia podía entenderse dentro de la esfera de la voluntad o bien dentro de la esfera de la moral del ser humano. La búsqueda de la justicia no es algo que deba entenderse como arcaico y obsoleto, sino que es algo que nutre la misma esencia de la ciencia del derecho. [ABSTRACT FROM AUTHOR]

Copyright of Studia Universitatis Babes-Bolyai, Iurisprudentia is the property of Babes-Bolyai University, Cluj-Napoca, Romania and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The principle of aequitas allows to take into account circumstances of a particular case, going beyond the strict meaning of the applicable legal norm. Moreover, if these circumstances occur frequently, the principle opens the door for the modification of the norm in question. This paper follows the application of aequitas and its impact on the development of law during the Roman history. We can generally conclude that the application of aequitas in pre-classical Roman law led to breaking off with strict forms of the old ius civile harmonizing the law with the needs of the republican society. This can be attributed to the activities of praetor, pre-classical jurists and judges, and to the introduction of the iudicia bonae fidei. In the classical period, authorized jurisconsults interpreted the law in line with equity, through their responsa or as members of the consilium principis preparing rescripts of the princeps. Although this has been done under the emperor's control, interpreting small, private, everyday legal problems of citizens lead to the development of technical rules of private law. These rules are still valid today. In the post-classical period, given the general crisis of the Roman society, the preservation of the Empire was designated as the public interest (utilitas publica). Under these circumstances post-classical jurists had no longer the possibility to creatively interpret the law. Moreover, starting from Constantine, the issuance and control of equitable implementation of the rescripts was reserved for the emperor, these being referred to the privileges and exemptions from various burdens and obligations. Finally, Justinian proclaimed that the emperor is the only creator and interpreter of the law: “conditor et interpres legum”. He determined what was equitable following Christian ideology and the interest of the Empire (utilitas publica). [ABSTRACT FROM AUTHOR]

In this paper I examine the application of the status-theory in some controversiae of Seneca the Elder's declamatory collection. The analysis of a number of significant examples shows that the declaimers not only perfectly mastered this complex rhetorical doctrine, but were also able to discuss some points of it and in case modify it, adapting the rules given by the rhetorical handbooks to the specific requirements of each single case. This leads us to the conclusion that the didactic value of the declamatory exercise never failed entirely, and in the rhetorical schools of the early imperial age it remained the fundamental instrument by which future orators learnt to put into practice the precepts transmitted in the rhetorical teaching, not only for the elocutio, but also and especially for the inventio. [ABSTRACT FROM AUTHOR]

The public obligations of the population towards the Roman community were dictated by fides, by honesty based on religious belief common to all nations, that the obligations must be fulfilled. From the ancient times there was also a rule that the public rights and duties of a Roman citizen are dependant on his economic power. This rule was later introduced in provinces, along with a demand that the peregrin who intended to be a member of the city council must have a building in the city and he needed also the persons who would guarantee for the fulfillment of his obligations towards the Empire. The peregrins already heavily burdened by taxation during the period of the Republic and Principate, were obliged to confess under the oath the property and the members of their families. As a guarantee for the payment of public debts the whole present and future property of the tax-payer was charged by pledge, with the priority right in favour of the Roman treasury. In the Late Roman Empire, after when the Roman citizenship was given to the whole population of the Empire (212 AD) and after the introduction of uniform taxation, this practice was applied to its entire territory. From the beginning of the 3rd century because of economic crises, wars, and devastations of barbarian nations, however, the demands of the citizens for exemptions of public charges became a frequent problem. Having in mind that these demands were often unfounded, sometimes even extorted, the emperors have regulated the benefice of remission of fiscal debts by particular laws. Fighting against unjust claims for privileges of landowners (potentiores), corruption and various other frauds concerning fiscal interests of the Empire, on the other hand, the emperors gave remission of delinquent taxes to the population, if the reason for it they find justified. Their decisions relied on the ancient rule, that the public charges depend on the economic power of the citizen, with the argumentation: `In whatever degree any person is of more honored rank or richer, so much the more does he owe a more eager spirit toward his compulsory public services whose performance he knows will be the more profitable to him.` (Nov. Val. 10, 3) [ABSTRACT FROM AUTHOR]