If, by using a certain amount of imagination, logic and common-sense, we reconstruct mentally what Romanians' life in the Carpathian or Balkan Mountains might have been, we easily reach an approximate idea about the Roman juridical remains and the Slav borrowings.A life of fugitives spread in the mountains, with the livestock and withdrawing in front of the invaders, could it have allowed the preservation of the estate and hence of the concept of strict, individual and exclusive property: jus utendi et abutendi? It would be ludicrous to imagine it. What dwellings could they have, these migrating, nomad Romanians who lived for five-six centuries, the wandering life, that some of them still live today in the Mountains of Pindus and the Carpathians? Estates? Houses? Their estates are the mountains, and the mountains, unreachable as they are, can't ever be shared and ruled individually. The houses are those shepherds' sheepfolds whose poetry and charm don't match jus utendi et abutendi. Consequently the way of life the Romanians were confined to makes impossible the concept of real estate property that they had known before. As their property was the great mountains, inaccessible to the individual rule, it was only natural for the notion of shared property between relatives, brothers, cousins, etc. to be born. Brought back by force to the shared property, and in touch with the Slavs, who had this juridical custom from the beginning, undoubtedly the Romanians lost the awareness of the concept of Roman property and borrowed that of the Slavs.Given these circumstances, what could have been the concept of property for the Romanians? The only property of the Romanians, in those times, was the real estate and the movable property: sheep, goats and the most primitive tools. The nature of the notion of real estate property and movable property is best shown in the act of selling and that of inheriting. Selling the houses, according to our traditional customs, couldn't have been concluded by the strict Roman regulations, and thus, the seller had first to have the consent of his sons, then of his blood relatives, brothers, and nephews. Hence, the right of protimis, that is the relatives' right to cancel the sale concluded without their consent or without the seller having asked them, a right that didn't exist with the Romans. Regarding the sale of movable property: sheep, goats, oxen, horses, the document being incredibly simple, the form is almost international, being impossible to draft it in several ways. However, there were certain detailed formalities that were met with the Romanians and that faithfully reproduce the detailed formalities that the ancient Romans mentioned in the sale document. These formalities are the handshake and aldamasul. It is known that with the Romans, any sale was accompanied by the ceremony of stabbing a pig. Even today, Romanians have the custom of highlighting the act of selling by a lunch at which they roast a bird and, especially, drink. The handshake once consummated, the sale is ended and concluded. These small juridical practices could indeed be preserved by the Romanians from the mountains, that is why we still find them today. More interesting, however, is the right of inheritance according to the local custom. It will betray more easily the origin of our juridical customs. If we consider the direct inheritance of real estate, the right to inheritance must have been the same with the notion of property itself. Since the property was common, it had to remain as such for the descendants. The fact that there was no will with the Romanians in ancient times is quite accountable, for they generally had nothing to hand down. Nevertheless, since we started developing a social life, wills started appearing. Regarding the ab intestat inheritance and especially the movable assets, the only one possible in earlier times, it is clear and certain that the inheritance according to the local custom was equal between brothers and sisters, naturally considering also what had been taken as dowry. As Mr. Nadejde judiciously notices, "the unjust treatment of girls in the inheritance issue is not taken from the Byzantine law or from the local custom, but it's an influence of European feudal law." The local custom, at least this is valid for the movable assets, consecrates the Roman principle of equality between brothers and sisters. Undoubtedly, the act of inheriting could be preserved as well in the nomad shepherd life of the Romanians that retreated into the mountains and it was natural and logical for this juridical act to have been preserved in its Roman juridical form. On the contrary, the inheritance by will being too complicated an act, with a lot of formalities, and focusing especially on the real estate, was impossible given the living conditions of Romanians.The idea of inheritors' equality, without sex discrimination, deeply rooted in Romanians' mind by the Romans, became generalized and established with the ab intestat or testamentary real estate inheritance as well, when the property, evolving together with our social life, became individualized and took the form of testamentary inheritance from the Byzantines. What other simpler social relations could the Romanians preserve in the mountains from the Roman or Romanized life they had known in the provinces of Moesia and Dacia? Obviously, marriage is another general juridical act that a society, no matter the circumstances it experiences, cannot lose. It is precisely the act of marriage that we find with the Romanians, in the local custom, almost identical with that of the Romans. Indeed, two of the most common forms of marriage with the Romans, by eloping and by breaking the cake on the head of the newly married couple, are still found today in our villages and these customs are very popular in the mountains. Especially the custom of eloping, symbolized by horsemen and wedding guests and expressed in the wedding orations (oration is an entirely Latin word), faithfully reproduces the wedding formalities of the Romans. Even the number of the horsemen, six, reproduces the number of the five guests plus a libri pende as it was customary in Rome. For the rest of juridical customs, extremely few, which are included in the local custom, most of them are undoubtedly taken from the Slavs. To list the most important ones, we remind that, for instance, paying a ransom as a compensation is of Slav-Germanic origin. The solidary liability for a crime committed on the territory of a village must also be of Slav origin. Still, the most numerous Slav borrowings seem to be in the procedure domain. Here, the institution of juries is doubtlessly taken from the Slavs, for it is found in all countries inhabited by Romanians, even when they didn't come in touch with the Germans, who were familiar with it just like the Slavs. The same can be said about the juridical duel, the so-called ordeals, which are often found in our nation's past and which were unknown to the Romans. As everywhere, with us as well, from the earliest days of our countries' existence and up to the Organic Regulation, the ruler was considered the master of the whole country, he had dominium eminens. "The proof, says Mr. I. Nadejde, is represented by all donation acts by which the voivodes declare that they give and offer estates possessed from old times." The age of French law imitation began in 1839. That year, the French trade code was translated and approved in our country; and the prince Stirbey had the Criminal Code from France translated and approved. Soon after, our history was to record Cuza's coup d'état, which overthrew the state's organization according to the Paris treaty. The 1864 rural law and the proclamation of the Civil Code, of the civil and criminal procedure, as well as the voting of the 1866 Constitution are transformations of institutions that succeed each other at the speed of light. Almost any connection with the political and social past is cut off. Our humble and poor unwritten law, the local custom, which withstood Mathew Basarab, Ipsilante, Caragea, finally fell under the frequent and repeated blows of the new codes: criminal, commercial, civil, civil procedure and so on. What psychological consequences were to bring these endless reforms of institutions, reforms achieved at an astounding speed? It is easy to infer the Romanians' psychological state of mind, bewildered by these changes, the confusing echo they had in the Romanian soul and character. Since Constantin Mavrocordat and up to the 1866 constitution, in a little more than a hundred years the following changes and political reforms accumulated: Mavrocordat's reforms, Ipsilante's book, the aspects mentioned in Al. Moruzi's document, the old manuscripts of Caragea and Callimachi, the Organic Regulation, Stirbey's administrative and economic reforms, the Paris treaty and the accomplishment of the union with everything it entailed in the structure of society, the coup d'état and the rural law, the endorsement of the various French codes, the voting of the constitution. For a time period of only 115 years, these changes are something unheard of in the life of any nation or society. They have the character and the importance of some repeated and prolonged convulsions, of some deep historical crises. The Romanian institutions were created and re-created, ten times in a century, almost once in every decade. This age can be described as an age of continuous and complete dissolution of the Romanian society. The simple and rudimentary structure of the village started to disintegrate, collapse and dismantle piece by piece, especially since 1830. As far as the religious and moral character is concerned, Gr. Paucescu wrote the following: "In the absence of strong ideas, honor and personal dignity, the previous generation had…the fear of God…They didn't steal, they didn't cheat, they didn't wrong anyone, for the eye of God was watching always and everywhere. They were merciful, suffering, for God gave all good and it was only fair for them to give as well…The peasants, poets by their nature, worshiped the social institutions. For instance, they paid the tithe, not to the owner but to God…all these beliefs are disappearing, have disappeared… And thus, the evil doings proliferate in society; the notion of right changes and we come to posses everything that we can lay our hands on without committing a crime proper; the notion of truth changes: we have come to believe that he who shouts louder speaks the truth; the notion of good changes, the young don't respect the old, on the contrary…" The incompatibility of these institutions, borrowed without selection, in a hurry, brought on the one hand a system of centralized authoritative institutions, and on the other hand, very liberal laws. This contradiction triggered several drawbacks. "The citizen, harmed in his interests by an arbitrary act, has no one to turn to." In the centralized authoritative system of administration, he finds no support and then, "to get what he needs, he gradually bends his head downward, under the almightiness of the government, he casts away the character independence which can only impoverish him." The parliamentary regime, as it works here, has become a school of corruption. The cause is the lack of harmony between our despotic organization and our liberal constitution. Mr. Paucescu saw an even bigger contradiction between legislation and society. On the one hand there is a society made up of common uneducated people; on the other hand, there are intricate laws, of an erudite complexity, given to the former to enforce. How many mayors know how to search for the mayoralty organic laws that they are entrusted with and, if they know to search, how many can read and, from them, how many understand them? Not knowing the laws and the penalties, the measures that the mayors apply to the guilty ones in the village are many times very bizarre. The fines that they give to the local suspects are, usually, to pay for the drink at the pub that, most of the times, is under the same roof with the mayoralty; "so that the function of mayor has become a drinking school. One has to be quite a man not to leave the mayoralty drunk. Most villagers that can write and read are drunkards and that is because they were mayors for a long time."
by Dumitru Drăghicescu (1875-1945)
