Marek Kuryłowicz

Originally, the legal grounds for Roman funeral rites were formulated
by religious provisions, royal laws (leges regiae) and the Twelve Tables. Another important set of practices were ancestral customs (mores
138 Marek Kuryłowicz [18]
maiorum), as well as the praetorian edicts and imperial constitutions
and laws which came in force later (D. 11,7; D. 11,8; D. 47,12; C. 3,44).
Tomb inscriptions were important as well, because they were regarded
as the legal acts creating the rights (leges datae) of the tomb’s founder
and the persons mentioned in the inscription. The Leges Libitinariae
hold a special position. The name is derived from Libitina, the Roman
goddess associated with funerals. Historically, the first of these laws on
record is lex Lucerina, dated to 314-250 BC, but the best known are lex
Puteolana Libitinaria and lex Cumana Libitinaria, which are dated to
the reign of Augustus. They contain local regulations on undertakers’
services and the execution of death sentences. They also contain orders
for the disposal of corpses abandoned in public places. Usually, the magistrates responsible for seeing to the observation of provisions relating
to burials were the aediles. This research shows that the legal regulations
governing funerals were well established in the city of Rome and the
municipalities already by the early Republic.

Adoptio was an institution of ancient Roman family and clan (gens), its main purpose was a maintenance of continuation of families in default of related heirs. The adoption in Roman law, both - adoptio of an adult male sui iuris (called adrogatio) and adoptio of a child alieni iuris (adoptio in the narrow sense) was much formalised and approvaled under the oversight of public authority. Adrogatio was effected by a decree of the comitia curiata (calata) and it was originally a genuine legislative act. In the post-classical periode and in legislation of Justinian established by a rescript of the emperor (rescriptum principis). In the Republic and in Principate  adoptio was effected under the authority of a magistrate (with formal assignment - addictio of the praetor at Rome or governor in the provinces). Later it was made before the competent magistrate or (from Justinian) in court.
Some parts in Roman procedure of adoptio and adrogatio at different stages of their development, mentioned by the author in the article, support the conclusion, that act of adoption in Roman state has never had stricly private nature but also included some public-law institutional components, which was constant and very important. This could be found as historical roots of contemporary regulations, entrusting the public administration and judicial bodies all adoption cases.

Marxist Romanistics meant a new trend in the study of Roman law, moving away
from the formalism and dogmatism of traditional bourgeois Romanistics and juxtaposing it creatively
with a new methodology of dialectic and historical materialism, with particular emphasis
on class struggle. The place of this ideological expansion was, fi rst and foremost, the countries
which came under the infl uence of the USSR. The leading role was played by Czechoslovakian
studies under the guidance of the Czech romanist, Professor Milan Bartošek, who was even considered
a „herald of Marxist Romanistics”. In other countries of the socialist bloc the romanists
gave in to new infl uences to a lesser and more varied extent. Poland and Hungary retained the
most independent position, the drastic exception being the German Democratic Republic, where
the whole science of law was reduced in general, and Roman law as an academic subject and
scientifi c discipline ceased to exist. History, however, has outmoded these theses and programs,
including Marxist Romanistics, although an interesting historical contribution to the history of
Roman law has remained.

In his discussion of the significance of Roman law Henryk Kupiszewski
referred to Gaius’ observation that the study of the law
could not be conducted “with unwashed hands” (illotis manibus), viz.
without a knowledge of the historical sources. In my opinion it is imperative
to remind ourselves of this today, when some Polish scholars
of Roman law are criticising source studies and historical research on Roman law, and opting instead for modernity and a future examined
primarily from the fuzzy perspective of decodification. In Prawo rzymskie
a współczesność, his book on Roman law and the present times,
Kupiszewski emphasised that the principal area of research on Roman
law could take was still the examination of the work and achievement
of the iurisprudentes, and that any other strategy would put it on the
path for self-destruction. Roman law studies are, of course facing new,
contemporary problems. For instance, it has been observed that effectively
the historical and legal awareness of today’s scholars of civil law
no longer encompasses Roman law. So we should be trying to preserve
the connection of Roman law with the disciplines of positive law, and
especially making a concerted effort to work on a synthesis of Roman
law as an introduction to contemporary private law. Furthermore, in
our research we should take into consideration the close connection
between Roman law and other disciplines relating to antiquity – another
point Kupiszewski made. We should also view the tradition of
Roman law as the common denominator in the European consensus on
the law. Hence the purposefulness of continuing the basic trend in the
study of Roman law, from the aspect both of its ancient history and of
its European tradition and present-day manifestations.