JOURNAL: Comparative Legal History VI (2018), No. 2

(image source: Routledge)

Contents:
Editorial (Heikki Pihlajamäki & Matthew Dyson)

Comparative cultures of accountability: the Scottish Exchequer and the Audit Chamber of Holland between 1477 and 1515 (Maurits den Hollander) (open access)
Abstract:

This comparative paper describes the spread of a new culture of probatory accountability in North-western Europe through the study of the Scottish Exchequer and the Audit Chamber of Holland between 1477 and 1515. It allows to re-evaluate persisting views of an inefficient and archaic Scottish Exchequer, as opposed to the ‘Weberian ideal’ of the Burgundian bureaucracy. Both institutions primarily had a fiscal goal, the auditing of accounts, while archival and judicial tasks supported this process. Through a study of the format of important series of these accounts as well as their marginalia, it has been revealed that by 1515 the daily practices surrounding the auditing process in Scotland and Holland showed important similarities. These cases serve to portray that through the auditors’ work, a new written culture of accountability spread among all governmental officials in either Scotland or Holland.

At the end, the creditors win: pre-insolvency proceedings in France, Belgium and the Netherlands (1807–c1910) (Dave De ruysscher) (open access)
Abstract:

In nineteenth-century France, Belgium and the Netherlands, laws imposing pre-insolvency proceedings had different goals. In a first stage, from around 1810 until about 1860, continuity of businesses in distress was not a policy consideration. Rather, legislators purported to give the creditors early control over the insolvent’s estate, which was most often liquidated. Debtor-in-possession features were mostly conceived of as a temporary reward for cooperation; lowered requirements for re-entry in the market after the winding-up of their business were another advantage for cooperating debtors. This was the same in the three aforementioned countries. In the 1870s and 1880s, the French and Belgian legislators created new pre-insolvency proceedings, which allowed debtors to keep their assets. In the Netherlands, fixed-term moratoriums prevented such an approach. Yet, also in Belgium and France, the exemption of secured creditors hampered the feasibility of compositions, and a goal of saving firms in financial peril.

The long reach of English law: a case of incidental transplantation of the English law concept of vicarious liability into Thailand’s Civil and Commercial Code (Adam Reekie & Srutchada Reekie)
Abstract:

Thailand’s Civil and Commercial Code, introduced in 1925, represents a voluntary major legal transplantation by which Thailand adopted a complete new code based on foreign models. This article traces the development of Section 425, which confers liability on employers vicariously for the wrongful acts of their employees, and reveals that the concepts present in the stated sources of the provision do not match those represented by the section in its final form. Rather, the concepts hint at another source, unstated and hitherto uncredited as a source of this part of the Code, the English law doctrine of vicarious liability. This conclusion sheds new light on the complex process of legal transplantation and legal reform in Thailand during the early twentieth century, challenging the orthodox view, and has wider implications for those considering the societal factors which guide and shape legal reform.

Techniques of empire by land law: the case of the Italian colonies (nineteenth and twentieth centuries) (Elisabetta Fiocchi Malaspina)
Abstract:

Land ownership and property registration played a special role in Italian colonialism, in which public and private interests mingled amidst the ambitions of colonising and economic exploitation. Through the legal system of land registration one can examine how European states, here in the context of Italy, used their colonies to adapt and experiment with the legal frameworks of land ownership. As will be shown in the article, what happened in the colonies might have been impossible to carry out in the European context. In the colonies the options varied between implementing a particular European land law used by a European state in its colonies, duly modified or updated, and a compromise between the already-existing land ownership structure and the European land law. The knowledge acquired by implementing different legal frameworks of landownership and land registration in the colonies conversely influenced the legal systems applied in continental Europe.

Book reviews:
System, order and international law: the early history of international legal thought from Macchiavelli to Hegel (Frederik Dhondt)

The causes of war, volume II: 1000 CE to 1400 CE (Jenny Benham)

Byzantine Legal Culture and the Roman Legal Tradition, 867-1056 (Barbara Biscotti)

Conceiving a nation, Scotland to AD 900 (Anthony Smart)