EVOLUTION OF THE CONCEPT OF ABUSE OF LAW: FROM ANCIENT ROME TO THE NINETEENTH CENTURY

Abstract

The study notes that the problem of abuse of law is an urgent issue of both the present and the past. The first lawyers began to consider the issue of abuse of law. The emergence of the category of «abuse of law» arose at the doctrinal level and was not reflected at the regulatory level. Roman law did not yet know the very concept of abuse of power and did not formulate the prohibition of abuse of power as a general principle of law. Roman lawyers accepted the idea of irresponsibility in the use of law. It is established that over time, as early as the sixth century, the category of «abuse of law» begins to be traced in the sources of written Roman law. The development of the concepts of rights management in ancient Rome determined important principles which had an impact on the further development of legal traditions. The abuse of law was an important aspect that contributed to the formation of a balance between individual rights and the general interests of society. The author emphasizes that in the eighteenth and nineteenth centuries, virtually all legal systems within the Romano-Germanic legal family recognised the inadmissibility of abuse of law. Thus, the category of «abuse of law» is reflected in Articles 4 and 11 of the Declaration of the Rights of Man and of the Citizen (1789), the Prussian Zemstvo (1794), the Saxon Civil Code (1863), the Civil Code of the German Empire (1896), the Swiss Civil Code (1907), and civil legislation of other countries. The category of abuse of law has become known to both European legal doctrine and legislation. The author concludes that the establishment of the institution of abuse of law is an important aspect of the development of the legal system and society as a whole. Understanding its dynamics and features may contribute to the improvement of legal mechanisms.