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Fundamina

On-line version ISSN 2411-7870

Abstract

DE BERIER, Franciszek Longchamps. The status of a bearer of rights within the European legal tradition: the tradition of Rome and Jerusalem - a case study. Fundamina (Pretoria) [online]. 2013, vol.19, n.2, pp. 352-366. ISSN 2411-7870.

The interaction of the heritage of the Greek and Roman empires and Judaeo-Christian tradition should be kept in mind when we discuss legal tradition. This article gives an example when discussing what Gottfried Wilhelm Leibniz called subiectum iuris (the subject of rights), namely the bearer of rights. The terms used to define a bearer of rights vary, sometimes descriptive or intuitive, at other times strictly technical. The experience of both Jerusalem and Rome leads to the question: "Who is my neighbour?" or "Who is my brother?" Although the phrasing of the fundamental and shared question proves that universalism may extend beyond one legal tradition, the answers to these questions are not unanimous. The basic yet difficult problem in any society is who may be considered a neighbour? The question of "brotherhood" boils down to "brotherhood" with whom? Who is one's neighbour? Every person? And who is a person: a slave, a foreigner, a pagan, a Samaritan, an immigrant, or an embryo? Whom do we consider to be persons in the pragmatism of social life? The answers to these questions determine both the respondent's and the legal order's level of humanity.

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