NOTICE: ESCLH Panel at ASLH Conference, Miami, 7-10 November 2013

What: ESCLH Panel at the ASLH Conference
Where: Miami
When: 7-10 November 2013

The ESCLH was present at the 2013 American Society for Legal History Annual Meeting. Here a description of the panel:

ENTANGLED LEGAL HISTORIES:

FOLLOWING THREADS BETWEEN EUROPE AND THE US

This panel explores some of the ways legal threads run back and forth across the Atlantic from four particular viewpoints: the earliest financial regulation, the limits of intellectual property, the role of economic circumstances in forcing legal convergence and how morality and law have been named, framed and shamed in Europe and the USA. The panel will address themes of how economic realities feedback on legal conceptions and vice versa, how the limits of law affect practice on a daily basis and how law has been a medium for the resolution of complex political, moral and even religious values. The panel addresses these questions particularly from a comparative viewpoint, not accepting the historiography of one national view alone, but seeking suitable complements and comparisons to help make sense of the entangled stories.

 

The European Society for Comparative Legal History is delighted to be able to offer a panel at the American Society for Legal History in Miami, to showcase the diversity of work we do.

Entangled origins of the 1933 Securities Act

 By Markus Kari

University of Helsinki, markus.kari@helsinki.fi.

 A frantic need to regulate financial markets has been a transatlantic tendency of the last decade. This paper examines beginnings of such phenomenon in 19^th century London and the New Deal era.

The 1933 Securities Act marks the beginning of the financial market regulation as we know it today. It was built on the American regulative tradition that began in the 1890’s ‘social contract’ to curb the dominance of big business. But the 1933 legislation included elements drawn from the English Companies Act. Thus, examining just the national origins of the act doesn’t provide us with a full picture of the process.

This study uses the research methods of entangled legal histories to analyze the relevant contexts leading to the primary market regulation. In addition to examining the steps taken to the 1933 act, an analysis of relevant political, ideological and economical processes is being made.

It took the New Deal and its unique political context to bring “English style” regulation to the federal law. Although similar legislation existed in continental Europe, the 1933 examples were taken from a familiar legal system. The common law background, demographics, advances of industrialization and modernization as well as partly shared financial markets and investment culture explain why the English law was a feasible example to the act’s drafters, who had personal connections to London.

The 1933 act was the first step in the entangled transatlantic process that led to the modern financial market regulation.

 

Copy or Copyright Fashion? A Comparative Legal Historical perspective on textile and fashion design protection

By Marianne Dahlén

University of Uppsala, marianne.dahlen@jur.uu.se.

This paper presents the historical development of design protection law and the textile- and fashion industry in Sweden during the 20^th century, compared to France and the U.S. The three countries have followed different paths in the adoption of – or lack of – design protection laws covering fashion. Traditionally, design protection has not covered fashion designs for clothing in national law. France is the exception, with a long history of legal protection of fashion, developed to meet the needs of French fashion industry. In the U.S. on the other hand, there is practically no protection at all for fashion design, a state of affairs that is presently much debated.

Sweden represents a middle way: a design protection law covering fashion design was introduced in 1970. In contrast, branding has a critical role in fashion. Trademark law, with historical roots in the Industrial Revolution, offers strong protection. The distinction between design and trademark is fruitful for understanding intellectual property and the conditions of the textile and fashion industry in the three countries, when linked to the theoretical distinction between ‘fashion’ and ‘clothing’(Kawamura). The legal discourses are linked to the different logics of the fashion business and the textile industry: ‘clothing’ is a material product, ‘fashion’ is a symbolic and immaterial product. A study of the Swedish legislative debates 1916-1970 shows that the law is clearly connected to the context of production.

A comparison with France and the U.S. points at a similar relation between the legal development and national industrial considerations.

 

‘It’s the economy, stupid’ – Is a converging European sales law preceded by converging economic circumstances?

By Janwillem Oosterhuis

Maastricht University, janwillem.oosterhuis@maastrichtuniversity.nl.

European countries have surprisingly similar legal remedies against sellers of products with a hidden defect. However, two hundred years ago continental European countries differently codified the seller’s liability for hidden defects, while an English buyer had to bear the risk for a hidden defect himself. How and why did these legal solutions converge?

The main hypothesis of this paper is that the convergence in the legal solutions to the problem of hidden defects is related to the convergence of economic circumstances during the last two centuries. Crucial in establishing such a correlation between changes to the liability for hidden defects and certain exogenous economic changes, is the analysis of economic characteristics of legal disputes concerning the liability for hidden defects.

The relevant economic characteristics of these legal disputes will be identified by using the concept of information asymmetry: the party who can acquire information about a product against least cost will typically be liable for any defects. Information asymmetry depends i.a. on the size, professionalism and knowledge of the parties and the complexity of the goods sold. When these economic conditions change, so will the economic characteristics underlying legal disputes. It is submitted that as the character of legal disputes changes, so will the subsequent legal solution.

This hypothesis will be tested by analysing whether certain economic changes, such as the increase in mass-produced consumer durables, subsequently taking place in different national legal systems, viz. France, the Netherlands, Germany and England, resulted in similar changes in the liability for hidden defects.

First, changes in the seller’s liability for hidden defects in English, French, German and Dutch law will be analysed using a functional or problem-based approach. The similar (but most likely not synchronic) changes in legal solutions within these jurisdictions will then be related to certain economic changes. These corresponding economic changes can subsequently be compared with each other. If the main hypothesis is correct, similar changes to legal solutions for the problem of hidden defects have underlying disputes with similar economic characteristics and can thus be related to similar economic changes.

With this paper I aim to establish whether converging economic circumstances preceded the convergence of legal solutions to the delivery of products with a hidden defect. This insight will be important to consider when harmonizing other private law remedies directly linked to economic circumstances: when legal changes appear to be largely dependent on economic changes, harmonization cannot be uncoupled from eventual economic convergence.

Taking Sex Less Seriously: A Comparative Approach to the Secularization of Criminal Law in the 18^th and 19^th Centuries

By Aniceto Masferrer

University of Valencia, aniceto.masferrer@uv.es.

The expressions ‘criminal sexualities’ and ‘sex crimes’ recur often in the historiography of criminal law. In my view, this views historical legal contexts through modern categories (the current ‘crimes against sexual liberty’ paradigm). Apart from being a pernicious outcome of the Dogmegeschichte, it also makes it harder to distinguish the notions of crime and sin in criminal legal science before the 19^th century codifications. If legal sources do not use these expressions (‘criminal sexualities’, ‘sex crimes’), would it not be better to start with the categories or concepts actually employed by them (for example ‘Crimes against morality’ or ‘crimes against good customs’, etc.)? The original terminology situates the discussion of the law better in its proper socio-political context. “Sex crimes” do not appear at all in the medieval sources, for instance.[1] Indeed, if we turn to the classifications of Montesquieu, for example, crimes concerning sexuality were not called or referred to as ‘criminal sexualities’, ‘sexual offences’ or ‘sex crimes’, but crimes against ‘morals’, ‘public tranquility, or ‘security of the subject’.

This paper will have two parts. Part I will contain a brief exploration of the relationship between crime and sin in the Early Modern Age, focusing on the ‘crimes against morality’. Particular attention will be paid to Grotius, Hobbes, Pufendorf, Thomasius and Wolff, showing their main purposes behind punishing some sexual behaviours. It will also be shown how selective their approaches were: not all sexual disorders were criminally prosecuted, but only those violations that might affect the foundation of human society (social peace, stability of family/marriage, etc., since matrimony was thought to be the basis for society’s existence). It will be stressed that Christian morality influenced the criminal law of both Middle Ages and Early Modern Age, but this does not mean that crimes were prosecuted and punished just because they constituted sins. Even medieval legal sources show that some behaviour like masturbation, fornication or sodomy, just to give three examples, were not always punished in many European cities: such conduct was a mortal sin but was not necessarily regarded as a violation of the ‘social peace’ and the ‘stability of family/marriage’. In essence, crimes against morals were prosecuted not because they were sins (although they were), but because of their consequences and impact to the social peace and stability (NICHOLAS, The Later Medieval City 1300-1500). The paper thus addresses the distinction between crime and sin, which reflects the separation of the church and state (a constitutive feature of the Western legal tradition compared to, for example, the Muslim one), was scientifically developed by the natural lawyers (Grotius, Thomasius, Wolff, Pufendorf, etc.), and this can be seen in looking at their way of reasoning when dealing with the ‘crimes against morals’.

Part II will examine the secularization of criminal law in Europe and in the US in the 18th century. In doing so, several authors will be explored (Bentham, Montesquieu, Voltaire, Rousseau, Beccaria, Lardizábal, Kant, etc.), looking at the development of the relationship between crime and sin both in Europe and in the US. In short, this part of the paper will analyze the compatibility of Friedman’s statement that, in the 18^th century, ‘the element of pure punishment for sin declined; the economic point increased’ (A History of American Law, 1973, p. 73) with that of Nelson, for whom, in the same period, ‘all crime was looked upon as synonymous with sin…The typical criminal was not…an outcast from society, but only an ordinary member who had sinned’ (Americanization of the Common Law, 1975, p. 39).

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[1]  See, for example, Rudolf His, Das Strafrecht des deutschen Mittelalters. 2 Teile, Weimar 1920/35, Neudruck Aalen 1964, p. 144; or Hagemann, Basler Rechtsleben im Mittelalter, p. 262: «Ein gemeinsame Bezeichnung für die geschlechtlichen Vergehen hat das deutsche Recht des Mittelalters nicht gekannt».