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Fundamina

On-line version ISSN 2411-7870
Print version ISSN 1021-545X

Abstract

BALDUS, Christian. Ius gentium und "feindesrecht": annäherungen an Tryphoninus D. 49.15.12.9 (4. Disp.). Fundamina (Pretoria) [online]. 2014, vol.20, n.1, pp.61-69. ISSN 2411-7870.

The expression ius hostium is quite uncommon in Roman legal language. It appears in Tryphoninus D. 49.15.12.9: the jurist deals with the legal status of a slave freed in enemy territory but then returned to territory controlled by the Romans. In a conflict between two Romans claiming the slave's property or between one of them and the slave, the rules on postliminium are applied regardless of what happened iure hostium. A complete exegesis of the difficult and somewhat sinuous text cannot be given here. However, Tryphoninus at least implicitly recognises the validity of the „enemies' law" for their own sphere. Furthermore, it cannot be excluded that his solution links one party of the case to its former conduct under foreign law. This is in line with the basic idea of reciprocity underlying Roman public international law as well as with the supposed universality of slavery as a legal institution. The enemy as defined by public international law is regarded as a subject of law and even as a possible creator of law, not as an entity outside the legal sphere.

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