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OK Computer? The digital turn in legal history: a methodological retrospective (Florenz Volkaert) (DOI 10.1163/15718190-12340011)
Abstract:
This article reviews some of the main debates on methodology in legal history since the Second World War, engages in a dialogue with the social sciences and finally discusses the digital turn in law and legal history, focusing on network analysis.
Note minime sul ius dotium in Marziano Capella (Francesco Bono) (DOI 10.1163/15718190-12340008)
Abstract:
Martianus Capella’s De nuptiis Philologiae et Mercurii, 9.898, echoes ancient jurisprudence, not only because the divinity Saturnus is depicted as a jurist, but because the passage also refers to a jurisprudential rule on dowries. The text suggests that dotem dicere is possible after a marriage has been celebrated. Legal authorities (both imperial constitutions and works by jurists) show that Saturnus’ words are consistent with principles of Roman law on dowries.
Did the published Theodosian Code include obsolete constitutions? (Boudewijn Sirks) (DOI 10.1163/15718190-12340003)
Abstract:
It is a point of contention whether the Theodosian Code contains also obsolete constitutions as foreseen for the projected interim code of CTh 1,1,5, or only valid constitutions (with the exception of Book 16). The text of CTh 1,1,6 is unclear in this point and seems to be a mere continuation of the plan of CTh 1,1,5. However, it appears that the first view does not take into account other statements of Theodosius, and that research into particular subjects shows the compilers have rendered a logically consistent review of the law, without superfluous texts. In view of this evidence it is better to assume that also elsewhere in the Books 1 to 15 as a rule only valid laws were included.
Forms of suretyship in the Peira in the light of the Basilica (Marios Tantalos) (DOI 10.1163/15718190-12340004)
Abstract:
This paper attempts to present, analyze and comment on the complex cases of suretyship described in the Peira, an anonymously-compiled casebook consisting of the judgments and verdicts of Eustathios Rhomaios, a judge whose activity spanned the last quarter of the tenth and the first decades of the eleventh century. We focus on legal matters that arise from the chapters in the Peira concerning suretyship with particular reference to their connection with the Basilica, the Greek collection of translations and summaries of Justinian’s codification, completed during the time of Leo the Wise around the year 900. An analysis of the cases discussed in this paper enables us to see and better understand how the Byzantines interpreted and applied law in the eleventh century.
Abstract:
The Historical Centre of Overijssel in Zwolle and the Royal Library of Belgium in Brussels each conserve a fifteenth-century manuscript collection of legal and moral theological sources, written for the general chapter of the Augustinian canons regular of Windesheim. Both collections contain many ‘consilia’ by learned lawyers, several of whom were active in the prince-bishopric of Liège, at the universities of Paris or Cologne, or – especially – as professors of civil or canon law at the young university of Leuven. These manuscripts have already been the subject of a prosopographical analysis, but so far their content has not been studied. This article provides a substantive analysis of both collections. Topics include many disputes concerning the law of religious communities or regarding the congregation of Windesheim’s relationship to the diocesan bishops, the secular clergy and secular authorities. The volumes also cover diverse fields of the law of succession, contracts or delict.
Arguments related to slavery in seventeenth century Dutch legal theory (Gustaaf van Nifterik) (DOI 10.1163/15718190-12340005)
Abstract:
The Dutch participated fully in the Transatlantic Slave Trade. The Dutch colonies, it was said, could not do without enslaved workers. But in the Dutch Provinces people were free; the Dutch were freedom loving Christian people. This articles sketches the legal arguments used by the seventeenth century Dutch jurists regarding slavery, and some slavery related topics as freedom and property. It appears that the pro-slavery arguments were so strong that a profound legal discussion among the jurists on the legitimacy of the institution was considered superfluous.
La faculté de tester dans le Dell’origine e dell’uffizio del notariato de Michele Cusa Une illustration de la culture juridique européenne d’un notaire piémontais au XIXe siècle (Anne Dobigny-Reverso) (DOI 10.1163/15718190-12340001)
Abstract:
In French law, the current reform plans affecting the reserved portion of inheritance that must devolve upon the heirs (‘legitim’) has revived the debate about the freedom of disposing of one’s estate by will. The debate echoes some of the considerations in Michele Cusa’s (1771-1855) work Dell’origine e dell’uffizio del notariato. The author, who was a notary, was a supporter of the testator’s freedom. His argument consists in a dialogue during which jurists, philosophers and politicians from all over Europe hold the stage. The dialogue reflects the broad culture of a Piemontese notary at the beginning of the nineteenth century. Cusa believed that the freedom to dispose of one’s estate by will was particularly important, because it was the only way to meet real-life social and economic demands, and the complex relationships formed within a family. The testator’s freedom should nonetheless be regulated by statute, so that its excessive use by a father or husband can be restricted.
Foreign law without borders in the early vast America Spanish legal literature in 18th century North America (Angela Ballone) (DOI 10.1163/15718190-12340007)
Abstract:
This work addresses the circulation of legal literature from the Hispanic world into the British Atlantic during the 18th century and within the broader context of the Americas. It wants to break free from the dichotomy between British and Hispanic Atlantic by looking at the early Americas as a space where legal literature moved across borders. The case study analyzed in this work is that of the 17th century Spanish jurist Juan de Solórzano Pereira and its circulation in the British Atlantic. By analyzing the writings of a number of legal practitioners from the British Atlantic (such as James Otis, James Abercromby, and Adam Smith), I discuss the extent to which their knowledge of Solórzano’s work showed a transnational approach when discussing the relationship between the thirteen American colonies and their British mother-country. This study calls scholars’ attention to a number of networks of circulation for legal literature that possibly had more influence than has usually been acknowledged on the legal history of the United States of America. Ultimately, the article shows that much is left to discover about the practical, generative, aspects of legal history in an early modern scenario where Europe and the Americas need to be seen in more nuanced and balanced ways.
Review essay: ‘Constitutional lawyers are Dutchmen’ (Alain Wijffels) (DOI 10.1163/15718190-12340006)
Abstract:
V. Bogdanor’s Beyond Brexit (2019) is a constitutional lawyer’s argument in favour of a codified constitution for the United Kingdom. During the UK’s temporary membership of the European Communities and European Union (1973-2020), main features of the constitution which still prevailed in the 1960s have changed. The author discusses parliamentary sovereignty, referendums, collective government responsibility, human rights, and devolution.
Book reviews:
- Ona’ah und laesio enormis, Preisgrenzen im talmudischen und römischen Kaufrecht, written by Doris Forster (Martin Schermaier)
- Le marché du mérite, Penser le droit et l’économie avec Léonard Lessius, written by W. Decock (Dirk Heirbaut)
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