Continuity and Discontinuity in the Concept of Legal Responsibility Gergely Deli Faculty of Law, Széchenyi University Abstract The relatively new and ambiguous concept of legal responsibility in the private law is in a deep crisis. According to the vast majority of legal scientists, the concept is outdated and must be replaced by a new paradigm. The question is: what should this new paradigm look like? This essay tries to come up with a possible answer through analysing the similarities between the modern legal concept of responsibility and the antique censorial moral correction mechanisms. It concludes by stating that the different (i.e. moral and legal) tools regulating social behaviour could not be handled as separately as it is done nowadays. Key words Legal liability, responsibility, censor, morality, regimen morum, philosophy of science I. Continuity and discontinuity One might come to a rather interesting conclusion when taking a look at the current scholar literature on the concept of responsibility and apply the most modern scientific theories.[1] These theories were formed to describe how a scientific research should be effectively conducted. The surprise is that since the end of the 18^th century (when the modern concept of legal responsibility had emerged at all) the paradigmatic changes of the dominant theories about legal responsibility have been followed the schemata of a scientific research. It was naturally an unconscious process. However, it is surely worth to make it conscious now, when the vast majority of legal scholars are looking for a new model of legal responsibility. This thought of similarity is not to be simply depreciated for being absurd or unscientifically. According to Imre Lakatos, the well-know Hungarian philosopher, even the whole territory of science as such could be described as a huge research program.[2] By comparing the scientific method with the development of legal responsibility we can conduct a ‘hard core’, negative heuristic research programme on the protection of subjective liability. The legal literature was initially characterised by trying to incorporate a ‘hidden culpa’ into cases of responsibility that could not be explained on grounds of actual blame. By realising this effort, it wished to constitute subjective fault as the sole cause of responsibility. Throughout the nineteenth century, the relevancy of subjective liability was about to be preserved through the introduction of objectivised liability as a concept. This effort could not represent a progressive theoretical shift, mainly due to the ever growing technical challenges (for example railways, hazardous activities). Therefore the systemically external empirical context broke out of the frames of the initial model of culpability. That is why, according to the rationality of scientific methodology,[3] the positive heuristic approach was of help, especially in incorporating characteristics that could originally not be justified based on the former model, such as objective or strict liability. Recent confusion is mostly caused by the immense anomaly of the term ‘liability’, namely the subsuming of phenomena that differ from the initial culpability model under the concept of responsibility. The positive heuristics of the programme – the borderless extension of the concept of responsibility – does not result in a progressive shift of problems nowadays, thus it does not make sense to preserve it as a sole ‘hard core’ of research on responsibility.[4] Bearing the methodological consequentiality in mind, it would be rational to introduce a new starting paradigm. The exchange of the responsibility concept with another, more adequate concept that was already suggested by Eörsi[5] and Földi[6] would mean a breakthrough from the unproductive theoretical crisis, provided the new concept is not mere verbalism.[7] II. The similarity of the concepts The various elements of liability was characterised by Géza Marton, one of the most acknowledged Hungarian experts of responsibility in civil law.[8] Although the single elements alone do not really suggest much about the liability, they, as a whole, unmistakable define the term. The observations of Marton that are based on firm theoretical considerations are useful, with minor alterations, in drawing up the ‘phantom image’ of the responsibility concept to which the characteristics of regimen morum can be compared to. 1. The previous obligation The most important precondition for the liability is the previous obligation. It is debateable whether this obligation has to be external to the individual as suggested by Marton as well.[9] One part of legal experts evaluates responsibility as a social phenomenon and leaves the inner struggle of the individual evoked by bad conscience for psychology, ethic, theology and other similar sciences to tackle. The objective rules of law or morality can be controlled by the ‘inner forum of conscience’”[10], but it is almost impossible to be done so the opposite way, due to difficulties of proof. In the course of censorial moral judgement, numerous behaviours, which are nowadays classified as parts of the moral sphere, were taken into consideration, only considering the occurrence (not necessarily the result) of the act and without regard to its internal or external motivation.[11] The prevailing obligation as crucial component also prevailed in the course of regimen morum. The sources many times referred to the norms of mores maiorum as the base of impeachment.[12] These norms were objective, can be regarded as external and were probably not constituted by censorial activities.[13] Their social acknowledgement must have been rather wide, and they provided exact guidance even without codification.[14] 2. The breach of the previous obligation The blaming is mostly possible in case of the occurrence of an event that might harm the previous obligation. However, it is not excluded that by sanctioning a minor offence, the authorities try to avoid the offence of a more meaningful value that is worth protecting. From a higher political aspect, even a potential offence of a value might serve as a responsibility-grounding circumstance. An interesting aspect of the censor’s activity is that questioning, the first act in holding liable was present in almost all cases. This occurred during the so-called lustrum that usually took place every five years and could not be avoided by any Roman citizen. The fact that it was obligatory could suggest a considerable degree of deterrence and it raises the attention to its most remarkable effect, namely its preventive nature that was formerly ignored in the literature on the censorial regimen morum.[15] Moreover, censors considered the potential offence of the previous obligations sufficient for holding liable and its actual violation was not even needed. The sources of such thought can be discovered by looking at sanctions imposed at celibacy[16] or military horses incapable of battle.[17] In this case, the higher, hidden value was the health of the nation and its survival. The potential damages were here primarily the lack of the reproduction of Roman citizenry and the loss of battles due to underequipped military forces. It is clearly visible that the censor also took into consideration such causes that were not directly linked to the result. 3. Imputability By imputability we mean the objective concept formulated by Eörsi. In the course of censorial activity the presence of imputability played an important role. This is confirmed by the source on the dismissal of the wife.[18] According to communis opinion doctorum, the sanction was imposed on the husband due to the chasing away of the wife without any specific reason. The act itself that provoked the result was insufficient; it had to be imputable as well. It must be mentioned in connection with imputable acts that constructions of responsibility that were marked subjective and objective cannot be distinguished so clearly and the Schylock dilemma of responsibility seems to be unsolvable as well in this aspect.[19] The difference in appellation (‘sub’ and ‘ob’) is in most cases not more than a terminological difference.[20] 4. The schemata of every obligation: question-answer Marton defines every scheme of obligation as a question-answer.[21] Both elements of the dialogue are obviously not expressed in each case. The image used by the Hungarian Romanist suggests that authority reflects on the breach of the norm by mostly but not necessarily by questioning it. This was clearly demonstrated by the dialogue that was conducted between the censor and the citizen that appeared: „uxorem habes? – habeo”.[22] The censorial holding liable was conducted as a dialogue with contradictory characteristics.[23] 5. Different obligations emerging from one fact The process on the breach of the previous obligation can usually be initiated in front of various forums that can lead to different outcomes. Censorial moral judgement in this aspect is extremely interesting as legal, moral and religious aspects were all included in it and were not strictly distinguished as nowadays. This homogenous forum might have been more effective considering the complex network of individual and public interests. Moral rules are namely not only inner phenomena but are often manifested as objective social institutions and law can thus shape the moral conviction of a wide range of individuals. Besides the internal dual characteristics of moral judgement an external formal duality is also a relevant feature of the demonstrated time period. Iudicium was namely possible based on the state of affairs that provoked censorial sanctions. Regimen morum and praetorial iurisdictio were in a permissive and alternative relationship with each other.[24] 6. The affect of the responsibility is the sanction The censor was given a free hand in imposing different sanctions such as levying taxes[25] or confiscating military horses.[26] The magistrate, besides repression, applied various sanctions in the first place in order to confirm the respect of the prevailing norm so that its future breach could be most effectively prevented. This fact is underpinned in many respects by the sources as well. If the censor decided to disregard the holding liable, he was entitled to do so. Moreover, the censorial regimen morum was not only used to condemn the wrongdoer but also to stress the example-setting nature of remarkable citizens.[27] This effort furthermore strengthened the preventive aspects of the censorial activity. Amongst the modern researchers of legal responsibility it is Fauconnet that acknowledges the relevance of remunerating responsibility as well, Vigh on the other hand, relating to other authors makes a clear distinction between positive (norm-adaptive) and negative (norm-breaking) responsibility.[28] The antique prefiguration of norm-adaptive responsibility can also be found in the positive value statements related to regimen morum.[29] III. The unified system of liability in private law The functional operation of the unified system of private legal responsibility can be drawn up as follows. These explications are based on Marton’s theory[30] on modern responsibility on one hand and Sólyom’s essay[31] on the historical evolution of responsibility theories on the other. The leading principle of private legal responsibility is prevention.[32] The main essence of the system of tort liability is based on the effort that the repetition of harmful events is to be curbed. This basic idea is expressed in all elements and phases of the private responsibility system, ranging from the qualification of the facts of the case through the imposition of the sanction to the reimbursement of damages. The Ariadne string of prevention pursuit can only give us a mere guideline. Responsibility in the end will be determined by two distinctive aspects that might reaffirm or weaken each other, namely individual and public interest consideration. In fact, it is just the prevention and the individual interest deliberation that stricto sensu belongs to the concept of responsibility. However, it is crucial for the stability of the social system that the judges build in certain correction mechanisms that consider the circumstances of the case and the wrongdoing persons as well. By doing this, they actually strengthen social justice and the legitimacy of the prevailing order.[33] The judges can punish the stronger wrongdoer with graver sanctions, and with minor ones the socially weaker, depending on whether it is the individual or the public argument that seems more considerable in that specific case. The system of responsibility would remain one-dimensional and distorted if it would ignore other crucial circumstances that are dependent on legislative choices and which actually define the real character of liability. It does matter indeed on which base we judge the harmful act. The main bases, as subjective fault, unconscious negligence, strict liability or the damage-distributing insurance system would each lead to different conclusions. Eörsi demonstrated this really well as bases of responsibility constitute the junctions of a continuous scale.[34] They do not exclude each other, on the contrary, they contribute to the more effective manifestation of economic-based distribution of damages in civil law. At this point of historical development, the lawmakers’ choice between these grades is usually based on task division and the different models emerge in a parallel mode.[35] In the course of history, however, there have been examples of hegemony of the above models in the application of law, especially the one of subjective liability.[36] Theoretically, the sole or the parallel manifestation of any of these bases could be possible.[37] IV. The regimen morum placed into the system of responsibility In the sources concerning the censorial activity we can find all the above mentioned elements of the modern concept of liability. This material handed down to us is not sufficient for measuring how aware were the magistrates themselves of these aspects. The existence of a very sophisticated and complex concept is improbable. On the other hand, the objective social necessities (like the stability of the given social order, the self-preservation of the nation) dictated similar solutions in the past as today. In the following, we will discuss separately all the above defined elements of legal responsibility in the ancient sources on the regimen morum. These elements are again: the preventive function, the degree of imputability, the social stability (i. e. balance between individual and public interest), and the base of liability (ranging from the imputability system to the distribution of damages in the insurance policies). The key role of prevention can be seen from the temporality and removability of the censorial sanctions (for example in the case of infamia or ignominia), and from the publicity[38] of the censorial mark (nota censoria). Among the punishments inflicted by the censors we do not find the death sentence or the deportation.[39] Thus, the primary aim of the sanctions was not the elimination rather the general and specific prevention within the affected society. Cato, for example, usually enriched his censorial decisions with moral comments:[40] “Alius est, Philippe, amor, longe aliud est cupido, accessit ilico alter, ubi altere recessit; alter bonus, alter malus.”[41] The degree of imputability that is the mental attitude of the wrongdoer played an important role in the infliction of the sanctions. We can read it from the case of the joking equestrian: “[…] uti mos erat, censor dixisset »ut tu ex animi tui sententia uxorem habes?«, »habeo equidem» inquit »uxorem, sed non hercle ex animi mei sententia.«”[42] The equestrian permuted the censor’s question, answering that he had not married on his own. In another case, an equestrian was reprimanded because of the inattention to his duties concerning his publicly-funded horse. He answered, that he take care of himself, the horse, however, was kept by his slave, Stichus.[43] The harshness of the sanction, the ademptio equi (the taking away of the horse) was the direct consequence both of his carelessness and his light-minded behaviour in the front of the magistrate. We may think today, that the rent of a luxurious flat does not harm anybody. It does, however, if we take into account the effect of such a luxurious act on the sensitivity of the whole society. The Roman censor realised this danger, and punished the citizen, who had rented a flat for six thousands sesterces: “Prosequamur nota severitatem censorum Cassii Longini Caepionisque, qui abhinc annos centum quinquaginta tris Lepidum Aemilium augurem, quod sex milibus HS. aedes conduxisset, adesse iusserunt.” [44] This augur might have harmed the public moral with his extravagant expenditure of money, and must have been punished for the sake of social stability and justice. The imputability was also regarded in many cases. The words of the censor’s question reminded the citizen of his free will („ex animi tui sententia”).[45] The obligatory personal appearance affirms the probability of the acknowledgment of the subjective responsibility. It was confirmed by Cato that the taking away of the horse from the obese equestrian was accompanied by ignominia, the sanction was accordingly based on culpa: “id profecto existimandum est, non omnino inculpatum neque indesidem visum esse cuius corpus in tam inmodicum modum luxuriasset exuberassetque.”[46] However, as the preceding passages of this fragment show, the question was heavily debated. It might also be referred from our sources that in some cases the censor’s castigation took place when the higher public interest (for example the military efficiency) had been objectively weakened without fault.[47] The blameworthy act may lie very far from the caused damage in the chain of causation. As already mentioned, we can find the distribution of damages, as a kind of collective responsibility on the other end of the scale. Once, the censor degraded the whole Roman nation except of one tribe to the lowest class with a higher rate of taxation: „praeter Maeciam tribum, quae se neque condemnasset neque condemnatum aut consulem aut censorem fecisset, populum Romanum omnem, quattuor et triginta tribus, aerarios reliquit.”[48] V. Summary The following conclusions can be drawn from our explications. First, it became clear, that the censorial regimen morum make up an integrant part of the liability system in the republican period of Rome. Therefore, all attempts, trying to understand the social reality exclusively on the ground of legal institutions, such the Twelve Tables and the Lex Aquilia, are one-sided. The praetorian legal judicature and the censorial moral supervision shared the tasks of the regulation of the citizens’ private life. Following the idea of Zweigert and Kötz on relativities (zeitbezogene und materiebezogene Relativität)[49] we might call this interdepency of the different norms ‘system relativity’. Second, legal theories of responsibility are shifting from a subjective (culpability) towards an objective approach (insurance policies, transferring risks and spreading the liability among the members of an affected group). The most important aim of this kind of regulations is the prompt financial recuperation of the injured or otherwise materially affected person(s). However, as we may see from our historical experience the role of moral reasoning and that of personal shame should not be underestimated. The effective regulation of a society is always a fragile interaction of different order of norms. Nowadays we can experience a vacuum in the place of the disappearing religious and moral norms. These powerful public norms once balanced the individualistic character of the private law. For the sake of future generations, we should not be afraid of posing limits on our egoist attitude. Third, we should reconsider the limits of public control on individual behaviour. Each of us all-day experience, how harmful can be private negligence to public good. Exceptionally, even the potential damage or indirect, remote causes should be enough for being held liable. Substantially, it occurs today, when the insured people pay in advance for the recuperation of the only potentially but statistically surely emerging damages. Last but not least, we should not forget the lesson given to us by the new achievements of philosophy of science. If we know the mechanism of scientific research with all its possible byways and impasses we can neutralize or at least minimize the effects of our false presumptions and expectations. Literature [1] Astin, Alan, Cato the censor, Oxford: OUP, 1978, 344 pages, ISBN 019 8148 097. [2] El Beheiri, Nadja, A censor tevékenységének büntetőjogi jellege [The Penal Character of the Censorial Activity], in Tanulmányok dr. Molnár Imre egyetemi tanár 70. születésnapjára [Festschrift Molnár], Szeged: Szegedi Tudományegyetem Állam- és Jogtudományi Karának tud. biz., 2004, 39-43 pages, ISBN - [3] El Beheiri, Nadja, A római censorok szerepe a res publica államrendszerének kiépítésében [The Role of the Censors in the Development of the Res Publica], Jogtörténeti Szemle 1/ 2005, 1-7 pages, ISBN - [4] Eörsi, Gyula, A jogi felelősség alapproblémái. A polgári jogi felelősség [The Fundamental Problems of Legal Responsibility. The Responsibility in Private Law], Budapest: Akadémiai Kiadó, 1961, ISBN - [5] Eörsi, Gyula, Elmélkedések és álmélkodások a Jogtudományi Közlöny tulajdonjogi és felelősségi jogi száma kapcsán [Reflections on the Property Law and Responsibility Articles of the Jogtufományi Közlöny], JK 37/11 (1982), 833-842 pages, ISBN - [6] Eörsi, Gyula, Tézisek a polgári jogi felelősségről [Theses on Legal Responsibility], ÁJ, 1976/2, 185-207 pages, ISBN - [7] Földi, András, A másért való felelősség a római jogban, jogelméleti és összehasonlító polgári jogi kitekintéssel [The responsibility for Others in the Roman Law with an Theoretical and Comparative Outlook], Budapest: Rejtjel Kiadó, 2004, 436 pages, ISBN 963 9149 93 4. [8] Hegel, Georg Wilhelm Friedrich, Die Vernunft in der Geschichte. Einleitung in die Philosophie der Weltgeschichte, Leipzig: F. Meiner, 1930^3, 275 pages, ISBN - [9] Lakatos, Imre, A kritika és a tudományos kutatási programok metodológiája [The methodology of the critique and the scientific programmes], in Miklós Tamás (ed.): Lakatos Imre tudományfilozófiai írásai [Imre Lakatos’ writings in philosophy of science], Budapest: Atlantisz, 1997, 184 pages, ISBN 963 7978 92 5. [10] Malcovati, Henrica, Oratorum Romanorum Fragmenta Liberae Rei Publicae, Torino: Paravia 1976^4, XIX + 564 pages, ISBN 3-511-09086-5 176/91. [11] Marton, Géza, A polgári jogi felelősség [The Responsibility in Private Law], Budapest: Triorg 1992, 495 pages, ISBN 963 7763 27 9. [12] Peschka, Vilmos, A polgári jogi felelősség határai [The Limits of Responsibility in Private Law], JK 37/6 (1982), 425-433 pages, ISBN - [13] Peschka, Vilmos, Max Weber jogszociológiája [Max Weber’s Legal Sociology], Budapest: Akadémiai Kiadó, 1975, 134 pages, ISBN 963 05 0691 2. [14] Pólay, Elemér, A censori regimen morum és az ún. házi bíráskodás [The Censorial Regimen Morum and the Domestic Jurisdiction], Szeged: Acta Jur. Et. Pol. 1956, ISBN - [15] Siber, Heinrich, Römisches Verfassungsrecht in geschichtlicher Entwicklung, Lahr: Schauenburg, 1952, ISBN 3 487 10910 7. [16] Sólyom, László, A polgári jogi felelősség hanyatlása [The Decline of the Responsibility in Private Law], Budapest: Akadémiai Kiadó, 1977, 204 pages, ISBN 963 0511 185. [17] Vigh, József, Felelősség és társadalom [Responsibility and Society], in Vigh, József—Polt, Péter (ed.): Felelősség és társadalom [Responsibility and Society], Budapest: s. l., 1989 [18] Weber, Max, Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie, Tübingen: Mohr Siebeck, 1976^5, 892 pages, ISBN 3 16 147749 9. [19] Zimmermann, Reinhard, The Law of Obligations, Roman Foundations of the Civilian Tradition, Oxford: Oxford University Press, 1996^3, LXIV + 1241 pages, ISBN 0 7021 2347 1. [20] Zweigert, Konrad—Kötz, Hein, Einführung in die Rechtsvergleichung, Tübingen: Mohr Siebeck, 1996^3, XVII + 729 pages, ISBN 978 3 16 146548 2. Contact — email: delig@freemail.hu ________________________________ [1] On these theories see Imre Lakatos, A kritika és a tudományos kutatási programok metodológiája [The methodology of the critique and the scientific programmes]. In Tamás Miklós (ed.), Lakatos Imre tudományfilozófiai írásai [Imre Lakatos’ writings in philosophy of science], Budapest: Atlantisz, 1997, pp. 19 sqq. [2] Lakatos, A kritika, p. 43. [3] Lakatos, A kritika, p. 47. [4] Lakatos, A kritika, p. 57. [5] Gyula Eörsi, A jogi felelősség alapproblémái. A polgári jogi felelősség [The Fundamental Problems of Legal Responsibility. The Responsibility in Private Law], Budapest: Akadémiai Kiadó, 1961, 50. p. [6] András Földi, A másért való felelősség a római jogban, jogelméleti és összehasonlító polgári jogi kitekintéssel [The responsibility for Others in the Roman Law with an Theoretical and Comparative Outlook], Budapest: Rejtjel Kiadó, 2004, 90. p. [7] There is no significant difference between the prefixes ’sub’ and ’ob’ in the terms subjective and objective. Cf. Gyula Eörsi, Elmélkedések és álmélkodások a Jogtudományi Közlöny tulajdonjogi és felelősségi jogi száma kapcsán [Reflections on the Property Law and Responsibility Articles of the Jogtufományi Közlöny], JK 37/11 (1982), p. 839. [8] Géza Marton, A polgári jogi felelősség [The Responsibility in Private Law], Budapest: Triorg, 1992, 14. p. [9] Marton, A polgári jogi felelősség, p. 15. [10] Marton, A polgári jogi felelősség, p. 17. [11] Valerius Maximus, Factorum et dictorum memorabilium, 2, 9, 1; Plutarchos, Cato maior 17; Cicero, De re publica 4, 6. [12] Cicero, De legibus 3,3; Livius, Ab urbe condita 4,8; id. 24, 18; id. 40, 46; id. 41, 27; 42, 3; Suetonius, Augustus 27. [13] Nadja El Beheiri, A római censorok szerepe a res publica államrendszerének kiépítésében [The Role of the Censors in the Development of the Res Publica], Jogtörténeti Szemle 1/ 2005, p. 5. [14] Reinhard Zimmermann, The Law of Obligations, Roman Foundations of the Civilian Tradition, Oxford: Oxford University Press, 1996^3, p. 711, note 244. [15] Elemér Pólay, A censori regimen morum és az ún. házi bíráskodás [The Censorial Regimen Morum and the Domestic Jurisdiction], Szeged: Acta Jur. Et. Pol. 1956, p. 31, acknowledged the preventive function of the censorial nota. According to Weber the public shame was an effective deterrent tool. Cf. Weber: . Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie, Tübingen: Mohr Siebeck, 1976^5, 6.§. [16] Valerius Maximus, Factorum et dictorum memorabilium 2, 9, 1. [17] Livius, Ab urbe condita 24, 18 and 43; id. 27, 11; id. 29, 37; id. 43, 16. [18] Valerius Maximus, Factorum et dictorum memorabilium 2, 9, 2. [19] Eörsi, Elmélkedések és álmélkodások, p. 839. [20] Eörsi, op. cit. p. 839. [21] Marton, A polgári jogi felelősség, p. 16. [22] Gellius, Noctes Atticae 4, 20, 2. [23] Pólay, A censori regimen morum, p. 26.. [24] Pólay, op. cit. p. 37. [25] Livius, Ab urbe condita 4, 24 [26] Livius, Ab urbe condita 24, 18 and 43; id. 27, 11; id. 29, 37; 43, 16. [27] Nadja El Beheiri, A censor tevékenységének büntetőjogi jellege [The Penal Character of the Censorial Activity], in: Tanulmányok dr. Molnár Imre egyetemi tanár 70. születésnapjára [Festschrift Molnár], Szeged: Szegedi Tudományegyetem Állam- és Jogtudományi Karának tud. biz., 2004, p. 54. [28] József Vigh, Felelősség és társadalom [Responsibility and Society], in: Vigh József—Polt Péter (ed.): Felelősség és társadalom [Responsibility and Society], Budapest: s. l., 1989, p. 29. [29] Livius, Ab urbe condita 7, 1, 10; Cicero, De re publica, 1, 1. Cf. El Beheiri, A római censorok szerepe p. 3. [30] Marton, A polgári jogi felelősség, pp. 100 sqq. [31] László Sólyom, A polgári jogi felelősség hanyatlása [The Decline of the Responsibility in Private Law], Budapest: Akadémiai Kiadó, 1977, pp. 11 sqq. Marton, A polgári jogi felelősség, p. 102; Gyula Eörsi, Tézisek a polgári jogi felelősségről [Theses on Legal Responsibility], ÁJ, 1976/2, point 9. [33] Marton, A polgári jogi felelősség, p. 104. [34] Eörsi, Elmélkedések és álmélkodások, p. 840. [35] Sólyom, A polgári jogi felelősség hanyatlása , p. 17. [36] According to Peschka the objective responsibility does not belong to the terrain of private law. Cf. Vilmos Peschka, A polgári jogi felelősség határai [The Limits of Responsibility in Private Law], JK 37/6 (1982), p. 432. On the contrary, Eörsi did not claim ’recipe ferrum’ for the objective responsibility. Cf. Eörsi, Elmélkedések és álmélkodások, p. 838. [37] This theory was already present at the beginning of the 20^th century. See Marton, A polgári jogi felelősség, p. 376 n. 257. [38] On the publicity see Livius 39, 42; Cicero, Pro Cluentio Oratio 42-48; Gellius 4, 20. [39] Pólay, A censori regimen morum, p. 34. [40] Livius, Ab urbe condita 39, 42-44; Plutarchos, Cato maior 17-19; Cf. Alan Astin: Cato the censor, Oxford: OUP, 1978, p. 78. [41] Cf. Henrica Malcovati, Oratorum Romanorum Fragmenta Liberae Rei Publicae, Torino: Paravia 1976^4, p. 175. [42] Gellius, Noctes Atticae 4, 20, 4-5. [43] Gellius, Noctes Atticae 4, 20, 11. [44] Velleius, Historiae Romanae 2, 10, 1. [45] Gellius, Noctes Atticae 4, 20, 2 sqq; Cicero, De oratore 2, 260. [46] Gellius, Noctes Atticae 6, 22, 4. [47] Valerius Maximus, Factorum et dictorum memorabilium 2, 7, 6. [48] Livius, Ab urbe condita 29, 37, 1; Valerius Maximus, Factorum et dictorum memorabilium 2, 9, 6. According to Siber this text is not authentic. See Heinrich Sier, Zur Kollegialität der römischen Zensoren, in Festschrift Fritz Schulz, Weimar: Böhlau, 1951, pp. 473 sqq. [49] Konrad Zweigert—Hein Kötz, Einführung in die Rechtsvergleichung, Tübingen: Mohr Siebeck, 1996^3, pp. 62 sqq.