Lex privata and lex publica: Private autonomy and objective normativity

Abstract

The phenomenon of “private legislation” (lex privata) is usually discussed as a historically conditioned practice, presenting the emerging political unity of the Roman city (civitas, res publica) as the antithesis of private autonomy. This interpretation should be refuted, as the public recognition and confirmation of acts of private legislation in the laws of the Twelve Tables — “ita ius esto” (5, 3; 6, 1 and 8, 27) testify of an opposite. The private sphere turns out to be the content of the public sphere, finding in it not a limitation, but a source of recognition and normative definition, without which the private act does not receive the necessary moment of the general, of the universal, endowing it with a legal dimension. In the paper various manifestations of private lex in Roman law are discussed: leges mancipi, testamentum, legatum, lex contractus. The reservations to the act of mancipatio are recognized as enforced by the Law of the XII Tables 6, 1. Their in rem effect is traced, which is determined by usual consequences of mancipatio, as well as their subsequent replacement by reservations to the contract of purchase (leges ven  ditionis). The understanding of reservations to the mancipatio as means of creation of a legal regime for a thing (lex fundi, lex aedii, lex praedii) by the autonomous discretion of a private person is criticized, and their qualification as an act of establishing an easement or other property encumbrance is supported Roman lawyers obviously discussed the issue of competition between private discretion and public order, specific interest and general norm. The relationship between private will and public regulation in relation to the charter (lex) of the collegium is traced, and the norm of the XII Tables 8, 27 is reconstructed with the “ita ius esto” disposition. An appeal to testamentary dispositions shows that Roman law envisaged the basis for their legal force in public law. The article analyzes various contexts of the maxim “private agreements and acts of disposal cannot change the public order” and draws a conclusion about the semantics of ius publicum in the advanced opposition. It is noted that the Roman legal culture was aware of the importance of the normative context and the matrix of normative definitions for the validity and effectiveness of private expression of the individual will Ius cogens versus ius dispositivum arrangements are in the focus of a study. Agreements implementing dispositive regulation (pacta, leges, condiciones) are integrated into the normative definitions of the private sphere (forma iuris, natura contractus) and endow the idea of public law (ius publicum) with the meaning of a norm of general application. The analyzed materials do not confirm the dependence of private autonomy on a public source: there is no admission of private discretion from the part of public authority; on the contrary, private legal acts and transactions constitute the content of a known legal system. The establishment of a property encumbrance (servitus, ususfructus), a will (testamentum), a charter of a collegium and an obligation find their roots and recognition in public law — the legal order that unites a society (lex publica). 

Keywords:

private autonomy, public law, private law, convention, lex privata, lex mancipi, lex contractus, pactum, forma iuris, natura contractus