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Erdődy János: Utilitas as the Delineation of the Common Good in Roman Law. Nr. 2014/18.

In his 2010 monograph Tobias Kleiter examined the meaning of utilitas among many other notions. With respect to this latter notion, he asserts that in the scope of decision-making jurists referred only to utilitas, when considerations of expediency (Zweckmäßigkeitserwägungen) were also taken into account. The way he sees it, the notion of utilitas finds its meaning and importance separately, that is in each particular case, though in these separate cases this notion was paramount. Consequently, it is highly unlikely that an overall definition of value would be available. Another author of the secondary literature, Ankum explicitly points out that the expression of utilitas was used for the most part in such cases, when a logical and – considering our contemporary notions – dogmatically perfect decision would have been less practical, therefore these decisions would have likewise been less accepted by the public. Even such a consideration could be allowed that the reason for this narrower acceptance was that – despite being logically flawless – they were somewhat unjust. It is doubtlessly apparent from what just has been said that Roman law texts serve as the best examples of an “antidogmaticway of thinking, and this is best supported by the idea of utilitas – just to mention one from the many potentials. Yet, such an idea ought to be reconsidered according to which the quotidian use of utilitas is seen as a practical implication of the antithesis of Interessenjurisprudenz and Begriffsjurisprudenz. True as it may be that there are several strong hints to support this assertion, real life, however, could have been much more nuanced.

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