JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/The Legal History Review LXXVII (2019), Nr. 4

(image source: Brill)

The life and work Raoul Charles van Caenegem (1927-2018) (Dirk Heirbaut)
Abstract:

This article deals with the life and work of the Belgian legal historian R.C. van Caenegem. It shows how van Caenegem’s work was influenced by his teachers, first of all François-Louis Ganshof, but also many others like Theodore Plucknett. Van Caenegem’s research was very diverse and addressed different groups of readers, so that most of them only know a fragment of his work. Van Caenegem learned from Ganshof’s mistakes. Unlike his master, van Caenegem took an interest in sociology and he did not hesitate to publish the grand overviews of history which Ganshof had stopped writing in the second half of his career. Many of van Caenegem’s books on English, medieval and legal history were a product of his teaching. Whereas the books for the students in Ghent, where van Caenegem was burdened by a heavy teaching load, presented a complete survey, the books for select groups of foreign students cherry-picked from legal history and took part in discussions on larger debates. Van Caenegem’s many articles offer a better insight into his personal evolution from a scholar who started out as a jurist, but very soon lost interest in dogmatic legal history and preferred to investigate the lawmakers instead of the law itself. As a historian, van Caenegem put the middle ages first, because in his opinion the middle ages laid the foundations for the modern rule of law. However, these ‘modern’ middle ages only started in the twelfth century. Although he claimed that the future of legal historical research lays in teamwork, van Caenegem himself remained an indvidualistic scholar.

Das Legatum sub modo im klassischen Römischen Recht (Hans Ankum)
First paragraph:

Kees Cappon, der in Oktober 1992 an der Universität von Amsterdam eine Doktorarbeit über frühmittelalterliche Testamente in Utrecht1 verteidigte, trat in Juni 2019 als Professor für Allgemeine Rechtsgeschichte mit einer Abschiedsvorlesung von der Amsterdamer Universität zurück. Bei dieser Gelegenheit will ich gerne für meinen Schüler, Fakultätskollegen und Freund Kees Cappon einen Aufsatz schreiben. Es liegt auf der Hand, dass ich als Romanist bei einem Thema aus Cappons mit der iudicium ‚cum laude‘bekrönten Dissertation anknüpfe. Bei der Lektüre nach mehr als 35 Jahren des von Cappon geschriebenen Buches fiel mir seine ausführliche Behandlung des Legats unter einer Auflage2 auf. Ich habe vor, hier zu untersuchen, wie die römischen Juristen aus der klassischen Periode diese Rechtsinstitution entwickelt haben. Dabei werde ich (in Nr.2 und Nr.3) den Javolentext D. 35,1,40,5, in dem auch die Meinungen seiner Vorgänger Trebatius, Labeo und Proculus erwähnt werden, als Kerntext meines Aufsatzes ziemlich ausführlich behandeln. Die Weisen, in denen die die späteren Juristen sich bemüht haben, die Auflage zu realisieren, kommen danach (in der Nr.4) skizzenhaft zur Sprache. Am Ende (in der Nr.5) formuliere ich dann kurz einige Schlussfolgerungen.

 Antichresis: a comparative study of classical Roman law and the contractual praxis from Roman Egypt (R. Bobbink & Q. Mauer) OPEN ACCESS
Abstract:

The authors examine how papyrological sources from Roman Egypt written in Greek on antichresis relate to classical Roman law. Antichresis attested in papyrological antichretic contracts had a lot in common with antichresis emerging from Roman dispute resolutions. There was only one substantive difference: in classical Roman law, protection of the debtor was emphasized, whereas in the Greek papyrological antichretic contracts the position of the creditor was favoured. Given the similarities found, the authors conclude that antichretic loan both as an independent legal institution and as a pactum antichreticum was a pan-Mediterranean legal concept.

Moneta e cultura giuridica Un brocardo di Azzone nella costruzione del diritto pecuniario medievale (David De Concilio)
First paragraph:

Da tempo la storiografia ha riconosciuto come un fatto consolidato l’impor­tanza che il Medioevo – e in particolare le grandi trasformazioni del XII e XIII secolo – ebbe nello sviluppo del pensiero economico occidentale, sulla scia della cosiddetta rivoluzione commerciale. L’attenzione degli studiosi non poteva che cadere su uno degli aspetti fondamentali di questo fenomeno, ossia sulla dimensione centrale che il tema monetario assunse proprio in quei secoli, ­sulla sua teorizzazione e sulla sua sistemazione intellettuale. Gli studi in questo senso si collocano crocevia della multidisciplinarietà: dalla storia economica e monetaria stricto sensu 1, fino a quella del pensiero filosofico e teologico2. Anche la storiografia giuridica non è stata indifferente al tema economico e monetario, e in particolare ha indagato il concetto di moneta e i problemi giuridici da essa derivanti nell’elaborazione dottrinaria del diritto colto medievale, per quanto attiene sia all’età della Glossa che a quella del Commento3. Come infatti si vedrà in maggiore dettaglio più avanti, la cultura giuridica, fin dalla propria rinascita nella culla bolognese, fu sensibile ai problemi monetari del proprio tempo, e nello specifico alle esigenze di un mercato che proprio in quegli anni e in quella medesima area geografica vedeva una rapida ripresa ed espansione. Basti per ora accennare che i glossatori civilisti, secondo la metodologia che è loro propria, guardarono alla moneta come istituzione giuridica attraverso i testi del Corpus iuris: le prime testimonianze della loro elaborazione sul tema sono contenute nelle opere dei giuristi Bulgaro (XII sec)4 e Pillio da Medicina (m. dopo il 1207)5, per trovare infine una compiuta sistemazione nel testo che ci accingiamo a esaminare in questa sede: un passo di quella raccolta di Brocarda di Azzone che la storiografia ha ribattezzato ‘Salicta’ 6, il quale rappresenta un punto di svolta in questo percorso dottrinale.

The decline and displacement of custom in early modern Spain (Aniceto Masferrer Domingo)
Abstract:

 This article aims to describe the reasons for the decline of customary law in the early modern era. Confining the discussion to a limited geographical setting – the Iberian Peninsula – the arguments I used might be easily applied to other European jurisdictions. Part I presents an explanation of the predominance of custom in the medieval Spanish legal traditions. Part II describes the general features of the law in the early modern era, since they contributed – to a greater or lesser degree – to the demise of custom. Part III focuses more specifically on the theoretical and practical reasons for the decline and displacement of custom in early modern Spain. Part IV describes the consequences of the Decrees of Nueva Planta (1707-1718), approved by Felipe V in the context of the War of the Spanish Succession (1700-1714), regarding the development of the notion and role of custom in the eighteenth century. The article concludes with some reflections, emphasising that although customs do not easily co-exist with the state or a strong political power, neither do they entirely perish.

The long journey of ‘Privatautonomie’ The history of a concept coined and exported in times of persecution (Arndt Kiehnle)
Abstract:

Individual autonomy was rediscovered in modernity when it came to the persecution of dissenters in Germany after the Reformatio n. Since the 18th century the ‘Privatautonomie’ of the individual has been established in German private law. Later, in the 19th century, the term autonomy gained ground in the legal terminology of French private law, also thanks to the German emigrant Foelix. In the 20th century autonomy, not least thanks to German-speaking jurists who fled from the Nazis, became a legal term also used in the private law of the USA and Great Britain.

 The barratry of the shipmaster in early modern law: the approach of Italian and English law courts (Guido Rossi)
Abstract:

For a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think that the different legal framework of civil and common law courts progressively led to very different interpretations of the same thing. Thus, with the shift of insurance litigation from mercantile justice to law courts maritime barratry began to acquire increasingly different features in the two legal systems. Very often, the very same conduct of the shipmaster was considered as negligent by civil law courts and barratrous by common law courts. The difference was of great practical importance, for many policies excluded barratry from the risks insured against. So, depending on the kind of law court, an insurer could be charged with full liability for the mishap or walk away without paying anything. If the beginning of the story was the same, its end could not have been more different.

 Classical Roman Law, a product of interpretation from the Early Modern Times (Laurent Waelkens)
Abstract:

The study of the Roman law we know today, started in the twelfth century and was based on sources preserved from Roman Antiquity. The interpretation of these antique texts was, however, always contemporary and never reflected their original meaning. In this article we assess the importance of medieval and early modern interpretation and, by analyzing a series of thirteen classical notions of Roman law, illustrate how what we call “classical Roman law” nowadays found its origins especially in Early Modern Times. The article also brings an English summary of a series of articles we wrote in French and Dutch.

Banditisme in de Franse tijd in het Leiedepartement, 1796-1813 (Jos Monballyu)
Abstract:

Banditry and brigandage were notions defined neither in the ‘Code pénal’ of 1791 an nor in the Code Pénal of 1810. Therefore they were not used in criminal courts. Based on the stored judgments of these courts, it is not possible to calculate how many times these so-called crimes were committed in a certain period and how many people were involved. On the other hand, the ‘committing of a theft by two or more persons’, was a real criminal law concept in the ‘Code penal’ of 1791 and the ‘Code penal’ of 1810. The criminal courts took precisely account with this notion in their judgements. On the basis of the stored judgments of these criminal courts it is possible to calculate how many such gang thefts were penalized, how they were punished and how many persons were punished. In the Belgian department of the Lys (about 475.000 people), the criminal courts punished between 1796 and 1813 in total 284 gang thefts of which 222 without violence and 62 with violence. They punished by this way 387 persons, as perpetrator or accomplice, of which 261 persons for a theft without violence and 126 persons for a theft with violence. 80 persons were punished with death. For 12 of them, this was due to the fact that they had committed a murder, manslaughter or murderous assault at the same time as their gang theft. For 68 of them, this was due to the fact that their gang theft also constituted a violation of the law of 26 floral year V (May 15, 1797) or the law of 29 nivôse year VI (January 18, 1798). After the abolition of the law of 26 floréal year V in 1811, the Criminal Court of the department of the Lys no longer punished gang theft with the death.

The rise of the comparative approach in Russian legal scholarship as a factor in the modernisation of civil legislation, from the Svod Zakonov of 1833 to the Draft Civil Code of 1905 (Dmitry Poldnikov)
Abstract:

In the second half of the 19th century Russian positive law underwent a rapid and profound reform. It is best illustrated by the legislation in the domain of civil law, as one compares the pre-reformed casuistic and inconsistent Svod Zakonov (Digest of Laws) of 1833 and the ‘westernised’ Draft Civil Code of 1905. This transition was largely facilitated by the emergence of a fully-fledged comparative legislation in Russia. In this paper I investigate the decisive role of Russian legal scholarship in developing a comparative approach using an original synthesis of several streams of European legal thought, namely Savigny’s Historical School, German Pandectism, the French école de l’exégèse, and Jhering’s sociological doctrine. I argue that such legal scholars as Meyer, Pobedonostsev, Pakhman, Shershenevich, Annenkov succeeded in overcoming the ­limits of the pre-reformed, literal knowledge of the Svod Zakonov and began to study Russian civil law as part of the law of the ‘civilised nations’ through dogmatic comparison which resembled the comparative legislation in Western Europe. The evidence for this claim is taken from the main doctrinal works between 1840 and 1910 which represent both streams of comparison and it is analysed in the framework of comparative legal history. Special attention is paid to the contribution of dogmatic comparison in developing the general part of contract law as a recognisable hallmark of civil law in continental Europe which came to be adopted in the doctrinal writings and the draft legislation of the late Russian empire.

 The Dutch postwar restoration of rights regime regarding movable property (Lars Van Vliet)
Abstract:

During the Second World War Germany and German nationals looted the Netherlands and its nationals of many valuable assets, that were taken to Germany. Often the looting took the form of forced sales. In some cases, the sales price was too low, in other cases the German buyer paid market value or more, but often the buyer paid with guilders looted from the Dutch State. After the liberation of the Netherlands the ‘restoration of rights regime’ enabled victims of forced sales to seek annulment of the sales. This article concentrates on those movable goods that were sold to German buyers and that, after the war, returned from Germany to the Netherlands with the help of the Allied Forces, the so-called recuperation goods. If the seller did not seek annulment before the deadline of July 1951, for example because the price paid was considerable so that he preferred to keep the purchase price, or if his request was rejected, the Dutch State should not be forced to return these goods to their German buyer. Therefore, these goods were first subjected to Royal Decree E 133 which expropriated all German owned property in the Netherlands. Upon return to the Netherlands the recuperation goods became State property, but this measure could be undone by the seller successfully seeking annulment of the sales contract under Royal Decree E 100. However, if no annulment took place, the State remained owner of these goods.

Book reviews:

Die kaiserliche Notariatspraxis im frühneuzeitlichen Hamburg, geschreven door Sarah A. Bachmann, 2017 By: P.L. Nève
Alles is gedaan om het recht te vinden. Bijzondere rechtspleging in Leeuwarden, 1945-1949, geschreven door Michiel Severein, 2017 By: J. Monballyu

Chronique

Nécrologie: In memoriam Pieter Spierenburg 1948-2019 (Laurens Winkel)

Read all articles with Brill.