Malyshev O. O.

Malyshev O. O. The Romance and Germanic archaeological law traditions: a generalization attempt

The article offers the author‘s view of the formation of the Romance and German legal traditions. Common ideas about such differentiation existed among archaeologists. This ideas correlate with typologies widely accepted in the comparative jurisprudence where the Romance and Germanic groups within the Continental legal family are distinguished by some authors. The article argues that some essential differences between Romance and Germanic models of property rights and deriving from this the specificity of the public law intervention to the private domain constitute the main reason for the comparison of the archaeological law in the States of both groups (both in the history and nowadays). The Romance concept of property, implemented later in the Napoleon Civil Code, is directly inherited from the Roman law, while the German concept is a result of reflection of the Roman law through the German local circumstances. Romance property concept is almost an absolute, while the general idea explaining the Germanic socialised property concept is the famous “Eigentum verpflichtet” (Property obliges) from the Weimar Constitution. The absoluteness of the Romance concept caused the development of the skilful Public law toolbox being indispensable for intervention in the Private property domain. Thereby the Public archaeological laws were primarily adopted in some Romance countries (Italian cities, France, Spain etc.). First Germanic archaeological public laws appeared in Sweden had the Italian laws as an example. In Germany there weren’t special heritage protection laws before the XX century and the Germanic legal institutions generally seem simpler.
Differences between the legislations and juridical style in the Romance and Germanic traditions give us the possibility of the dialectical interpretation of some international law instruments in the archaeological sphere. It particularly relates to the case of the revised European convention on protection of the archaeological heritage (1992). This important instrument was elaborated almost without the participation of the East European countries and it represents a result of the synthesis of both traditions which were in their rather puristic state at that time.

Key words: archaeology, continental law, legal tradition.


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