11 December 2018

OPEN ACCESS JOURNAL: C@hiers du CRHIDI 41 (2018) [Gens de robe, gens de guerre : ordre public et ordre social; Actes des Journées Internationales de Bruxelles, Société d'histoire du droit et des institutions des pays flamands, picards et wallons 2016]

(image source: ULiege)

En mémoire de Philippe Annaert (Éric Bousmar, Stanislas Horvat, Catherine Lecomte & Emese K. E. von Boné)

De quelques aspects juridiques et sociétaux des sépultures des soldats dans l’ancienne Rome (Arnaud Paturet)
Despite of their military condition and the relation to death resulting from their profession, the funeral rites of Roman soldiers were similar to those of civilians as part of a unified ideology regarding death that implied that the status of tombs was unique. Graves were all considered religious places or res religiosae because they contained dead bodies. Of course mass deaths caused difficulties due to the necessity to identify each individual. Indeed, the burial process implied ideally to identificate the dead to promote his memory. The graves were usually located not far from the cantonment sites, but some deceased planned to repatriate their bodies to their homeland to facilitate family worship. Finally, soldiers who died in combat could be honored with a cenotaphium or empty tomb whose legal status remains controversial.

Rétablir l’ordre au comté de Bourgogne. L’action des réformateurs d’Eudes IV en 1337 et 1343-1344 (Sylve Le Strat-Lelong)
Eudes IV, at the same time duke and count of Burgundy from 1330 to 1349, instituted twice “réformateurs” in the county, judges and investigators in charge of correcting the abuses of the officers in the domain. He introduced into the province a French royal practice, which he himself used in his duchy. The judicial power of these commissioners was mainly exercised over provosts, brought to all excesses and penalized by heavy fines. It also extended to ordinary litigants and could replace that of Parliament. The operation, not only financially very profitable for the prince, also had a great symbolic load, allowing this one to assert his power in Franche-Comté in a troubled context of noble opposition. Therefore, it amply participated in the construction of the State implemented by Eudes IV in the county of Burgundy during his reign.

Recherche sur le conseiller-commissaire au parlement de Flandre (Renaud Limelette)
Quand la robe se révolte : la désobéissance des magistrats du parlement de Flandre aux ordres de Louis XIV (Sébastien Dubois)
After he gained an important part of the Southern Netherlands in 1668, Louis XIV created a sovereign court in Tournai to administer justice in the newly conquered territories. The court obtained the title of parliament in 1686 and its jurisdiction evolved as a consequence of the numerous wars and treaties in the late 17th and early 18th centuries. Because of the War of Spanish Succession, the parliament moved to Cambrai in 1709 and in Douai in 1714. Although the monarch had solemnly promised to maintain the local particularities in the capitulation acts of the main cities, he insidiously attempted to introduce the French legal rules into the judicial practice of the northern territories of the kingdom. Justice is a fundamental institution allowing gradually the assimilation of conquered territories, just as army, administration or Church. Thus the criminal ordinance of 1670 was sent to the court in order to amend the rules of criminal procedure and other statutes came to impose the repressive policies to be followed. Historiography generally presents the parliament of Flanders’ magistrates as obedient to the royal power. However judicial archives revealed two examples of manifest disobedience to Louis XIV’s orders. Applying the ancient customs of the Netherlands is here a good way for the councillors to give priority to their financial interests.

Les différents types de fief dans la principauté de Liège suivant Charles de Méan (Benoît Lagasse)
This text speaks about the different kinds of feudal goods in the principalty of Liège. To achieve this goal, the two first observationes of Charles de Méan’s biggest book are analyzed. These observationes are then compared with other sources of the law of Liège. Finally, the law of Liège is compared with the law of other countries within the same geographic area in order to determine the specificity of the law of Liège.

Joseph-Marie Portalis (1778-1858) et la liberté de la presse vers 1820 (Raphael Cahen)
Joseph-Marie Portalis (1778-1858) had been a diplomat, a judge and a deputy. Since his emigration in the Holstein, he was enthusiast about German philosophy and Kantianism. As a moderate conservative he was in favour of reform respecting the spirit of the time and the French Charte of 1814. That can be well analysed regarding the law upon the freedom of the Press of 1828 which carry his name.

La neutralité permanente de la Belgique et l’histoire du droit international : quelques jalons pour la recherche (Frederik Dhondt)
The mandatory status of Belgium’s “permanent” neutrality (1830-1919) is an object of legal as well as historical research. Narratives in both disciplines often link an attitude of abstention in armed conflict and a certain impetus for the advancement of the cause of international law and institutions. However, any analysis should start from the conceptual pedigree of permanent neutrality. The instauration of a “permanent” neutrality cannot be seen but as a derogation, or at best a transformation of the concept of “voluntary” neutrality, established in early modern state practice. Neutrality cannot be conceived without an ongoing conflict between two third states. Rendering the restrictions of voluntary neutrality permanent, even when no conflict between third parties is around, equals restraining the sovereign freedom of an actor in the international system. Abstention, impartiality and military credibility were imposed on Belgium. As a counterparty, the Great Powers undertook a collective guarantee. In reality, only the United Kingdom displayed its determination to intervene in case of a violation of Belgium’s (European) territory. The vague and uncertain legal aspects (joint or individual guarantee, limited to civilised nations ?) and the movements of a political chessboard in constant flux fragilized what should have been a protection or a certainty, rather than a source of worries. Diplomatic practice should be reinterpreted using this legal, conceptual and historical explanatory grid, close to the actors’ preoccupations.

De la caserne aux maisons closes : la réglementation de la prostitution au profit de l’institution militaire (1900-1939) (Hélène Duffuler-Vialle)
From the Revolution to 1946, France was reglementarist, i.e. prostitution, thought of as a necessary evil, was regulated by local regulations, harmonized by ministerial injunctions. While prostitution clients are generally not subject to any specific treatment by the regulatory authority, military clients are an exception. Indeed, some regulatory provisions concern them. This clientele is considered particularly vulnerable in a context of Nation in Danger where syphilis represents a national risk. At the end of the 19th century and until 1916, a policy of preventive sex education was organized among soldiers, where chastity was presented as the best guarantee. Pragmatically, the brothel is considered the best way to control the sexuality of soldiers and prevent them from contracting venereal diseases. Thus, on one hand, the military institution fights against clandestine prostitution and, on the other hand, obstructs the establishment of an abolitionist or semi-abolitionist system in the few cities that try to install it. Regulation was adapted to military needs and from 1916 onwards, there was no longer any question of revising the system but of strengthening its prophylactic effectiveness. In this context, the military authority is occasionally called upon to deal with specific legal issues : is there a right of access to brothels for the military ? Do women in prostitution have the right to refuse clients ? What about racial discrimination ?
This issue contains the peer reviewed versions of the papers presented at the International Days 2016 of the Society for Legal and Institutional History of Flanders, Picardy and Wallonia, organised by the Committee for Legal History of the Royal Flemish Academy of Belgium for Sciences and the Arts, the Royal Military School, the Vrije Universiteit Brussel (CORE), the Université libre de Bruxelles (CHDAJ) and the Université Saint-Louis (Centre de Recherches en Histoire du Droit et des Institutions), see earlier on this blog.

The fulltext of all articles can be consulted here.

(source: Standen en Landen blog)

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