JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/The Legal History Review LXXXVIII (2020), no. 3-4 (Dec)

 

(image source: Brill)

Prijs Robert Feenstra/Prix Robert Feenstra/Robert Feenstra Prize  (De Dagelijkse Redactie/Le Comité de rédaction/The Editorial Committee)

In memoriam Laurent Waelkens (1953-2020) (Alain Wijffels)

Academic bibliography of Laurent Waelkens (Wouter Druwé)

Irnerius and the imperial legislator, between Justinian and Henry V (Luca Loschiavo)

Abstract:

Nowadays both the figure of Irnerius and his role in the revival of legal studies in the Middle Ages are being questioned under different profiles. Returning to examine the manuscript tradition, the author aims in this essay to show how fondamental was the Irnerius’ contribution in giving the subsequent school of Bologna a very specific direction. Philology was only a tool he used to demonstrate to his contemporaries the authority and ‘positive’ validity of the whole imperial legislation against the early medieval use of selecting only what was immediately useful for practice.

Des clercs qui se mesleront de faire lettres et obligations. Public notaries and comital vassals or ‘hommes de fief’ in the organisation of voluntary jurisdiction in late-medieval Hainaut (1345-1467) (Falco Van der Schueren)

Abstract:

During the late Middle Ages, the organisation of voluntary jurisdiction in the customary regions of the Southern Low Countries was strongly determined by local developments. While it thrived in the major bishoprics of Liège and Tournai as well as in the commercial centers of Flanders and Brabant, historiography long assumed that the notary public failed to integrate into society in the rural county of Hainaut. Competition with the more dominant aldermen and comital vassals or hommes de fief supposedly prevented notaries from institutionalising their role as private legal intermediaries. Yet, the long-held top-down perspective disregarded interactions between, and the mutual competition among these different ‘agents’, thus creating a unilateral view that emphasised the importance of existing or indigenous alternatives. This contribution aims to better comprehend the organisation of late-medieval voluntary jurisdiction in Hainaut, taking the co-existence of public notaries and hommes de fief into consideration. From a bottom-up approach, relying on contemporary documentary writing practices, it will demonstrate how they both employed pragmatic literacy to gain authority, claim fides publica, and consolidate their own institutional position as such. This paradigm shift offers a framework that nuances previous insights regarding the reception of and developments within the notarial office in late-medieval Hainaut.

Hugo Grotius’s De societate publica cum infidelibus, Justifying overseas expansionism or religious toleration? (Marc de Wilde) (open access)

Abstract:

This article provides an analysis of an unpublished manuscript of Hugo Grotius, entitled De societate publica cum infidelibus, ‘On public partnership with infidels’. In the text, Grotius examines the legal conditions under which Christians may enter into treaties and alliances with non-Christians. Grotius’s text has been interpreted by Peter Borschberg and Martine van Ittersum as a justification of the Dutch commercial and military policies in the East Indies. However, as this article shows, Grotius probably conceived of De societate as a more general treatise, which related not only to the East Indian context, but also to the domestic debate about the legal position of non-Christians in the Dutch Republic. The same arguments that served as a justification for overseas expansionism could thus serve as a justification for religious toleration in the domestic context.

Why  did Louis XIV establish High Courts of Justice in North America?The Sovereign Council of Québec (1663) and the Superior Council of Louisiana (1712) through the prism of legal transplant theories (Serge Dauchy)

Abstract:

Why did Louis XIV establish high courts in the distant and sparsely populated North-American colonies? The logic of the establishment of the Sovereign Council of Québec in 1663 and the Superior Council of Louisiana in 1712 is indeed in no way similar to the one which led to the creation of high courts in the metropolitan territories previously under foreign sovereignty. In the colonies, there was no need to safeguard the provincial privileges, in particular that to be judged in accordance with the local customs and procedural rules. Historians have emphasized the idea that justice foremost asserted the king’s authority on his overseas territories and France’s position on the international scene. Colonial institutions were thus merely considered as extensions of the metropolitan model. This paper proposes to study the high courts of New France through the prism of legal transplant theories, focusing on the objectives and expectations of the donor rather than on their objects or on the obstacles faced by the receiver. We assert that the overseas high courts were a means to define and orientate the French colonial policy rather than an end in themselves. Their judicial and, above all, regulatory competences made them indeed a particularly suitable instrument for the fulfillment of the monarchy’s political and economic expectations.

French Influences on Germany’s Commercial Courts in the Nineteenth Century (Thomas Vogl)

Abstract:

The present contribution explores the extent of influence which French law had on the development of Germany’s commercial courts in the nineteenth century. Modern literature describes this influence as marginal, yet without further proof. The author takes this state of research as a starting point to compare the Napoleonic legislation on commercial courts with the German commercial court systems of the nineteenth century. However, the present contribution will start with an overview of the German legal situation at the end of the eighteenth century. This is followed by an examination of whether French law was transferred to Germany during the French occupation of large parts of Germany at the beginning of the nineteenth century. Against this background it is possible to fully analyse the influence which French law had on the further development of German commercial courts.

‘The Nation will always prevail’, Representation, participation and contestation in the Belgian Constitution of 1831 (Christophe Maes and Brecht Deseure) (open access)

Abstract:

The exact nature of the concept of sovereignty enshrined by the Belgian Constitution of 1831 has recently become the object of academic debate. This article takes a stand in this debate by analyzing the representative system instated by the constituent National Congress. It is argued that the congressmen attributed primacy to the legislative Chamber because it concentrated in its midst all the individual wills of the people in order to express the general will or the wish of the Nation. Importantly, though, parliament was not the only representative of the national will, neither was it considered completely self-contained. Parliament’s expression of the national will was subject to constant evaluation by public opinion. When the assembly failed to respond to popular grievances, other representatives were qualified to address the issue: the king could disband the Chamber or pronounce his veto when the national interest required it. The jury, assessing press or political related crimes, could correct oppressive governmental action. And if all of this failed – and only then – the nation could ultimately resist and take directly matters in its own hands. Thus, it is argued that the character of sovereignty in the Belgian state system was ultimately popular.

Roman Law in the Curriculum of the First Chinese Students in England, France, and China (Li Chen)

Abstract:

This article retraces the beginnings of Roman law studies by Chinese students during the latter part of the 19th century. It relies on archival research in order to piece together the curricula and careers of three pioneering Chinese law students who first came to study law, including Roman law, in England, France, and China. Wu Tingfang’s legal training at an Inn of Court in London, Ma Kié-Tchong’s legal education at the University of Paris and Wang Chung Hui’s study at Peiyang University in Tianjin, all included a more or less in-depth exposure to Roman law. Ma Kié-Tchong’s wrote a thesis on Roman law in Latin. As the first surviving specimen of legal Latin written by a Chinese jurist, his work not only reflects Roman law studies in France in the 19th century, it also sheds light on the level of proficiency in legal Latin which a Chinese scholar could attain.

Les minorités dans la Déclaration Universelle des Droits de l’Homme, une absence délibérée (Fernando Arlettaz)

Abstract:

The League of Nations established, in the interwar period, a legal regime for the protection of minorities which considered them as intermeditate groups between the State and the individuals. On the contrary, the Universal Declaration on Human Rights, adopted in 1948 by the United Nations, assumed a radically individualistic point of view and did not include any mention to minority rights. The travaux préparatoires of the Universal Declaration suggest that the question of minorities caused strong tension among States and that, for this reason, they avoided its inclusion in the 1948 document.

The Navel, Reflections on the composition of the Quarta pars Digestorum (W.J. Zwalve and Th. de Vries)

Abstract:

In an earlier edition of Tijdschrift voor Rechtsgeschiedenis we have contended that Justinian’s Digest was composed on the basis of Ulpian’s Libri ad Edictum and the peculiarities and special exigencies of the legal curriculum. It was also contended that the distribution of the fifty books over the seven partes of the Digest was based on a mathematical formula, complicated by the fact that Justinian (Tribonian) had decided to assign four books to the first pars (Ta prota) and 36 to the first five partes together according to ‘the nature and science of numbers’ (natura et ars numerorum). This article offers some additional arguments supporting our thesis and concentrates on the composition of the quarta pars Digestorum, designated by Justinian himself as ‘The Navel’ (Umbilicus) of the entire composition. The hypothesis is that Tribonian composed the quarta pars Digestorum as a microcosm of the Digest as a whole and that he has been ‘juggling with numbers’ within the composition of ‘The Navel’ as he has ostensibly done in the composition of the Digest as a whole.

Lauro Chiazzese, lo studio delle interpolazioni e i confronti ‘ritrovati’ (Mario Varvaro)

Abstract:

A first draft of the Parte speciale of Chiazzese’s Confronti Testuali, projected as complement of the Parte generale published in 1933, was known for quite some time, but was only recently published by Falcone. Although this is an important transcription work of the manuscript, the reconstruction provided about the historical background – partially based on two different versions of an anecdote – should be read taking into account some clarifications.

 Book reviews:

• Die Akten des Kaiserlichen Reichshofrats, Serie II: Antiqua, Band 5: Karton 425-516, edited by W. Sellert, 2019 (P.L. Nève)
• Latent defect or excessive price? Exploring early modern legal approach to remedying defects in goods exchanged for money, written by C.J. de Bruijn, 2018 (Wim Decock)
• Ernst Kantorowicz, a Life. written by R.E. Lerner,  2017 (Alain Wijffels)
• Juristen die schreven en bleven, Nederlandstalige rechtsgeleerde klassiekers, edited by G. Martyn e.a., 2020 (Jan Hallebeek)
• The Oxford handbook of European legal history, edited by H. Pihlajamäkki, M.D. Dubber and M. Godfrey, 2018 (A.J.B. Sirks)
• Handwörterbuch zur deutschen Rechtsgeschichte HRG, 2., edited by A. Cordes, H. Lück, D. Werkmüller und C. Bertelsmeier-Kierst, 2016 (Alain Wijffels)

(source: Standen & Landen/Anciens Pays et Assemblées d'États)