Quod se emisse diceret: Überlegungen zu einer Urkunde aus dem antiken London (Eva Jakab)
DOI 10.1163/15718190-20241201
Abstract:
In 1996, Roger Tomlin published a document from ancient London (rib ii 2443.19), which contains a professional Latin legal text. It mentions a purchase transaction, but it is not a deed of sale. The expressions used (cum ventum esset, in rem praesentem, se emisse dicetur, testatus est se) rather indicate an extrajudicial, pre-trial context. The interpretation proposed here builds on the results of recent research in Roman law of procedure. Several indications suggest that the tabula records a preparatory act for future trial between the protagonists: Bellicus (the pursuer) bindingly declares that he is ready to take an extrajudicial oath concerning a contract of sale with his opponent, about this he can produce no other evidence.
‘Scriptura recepta et usitata’ The impact of the Lex citandi on Justinian’s Digest (Willem Zwalve) [OPEN ACCESS]
DOI 10.1163/15718190-20241213
Abstract:
It is generally taken for granted that the 426 Law of Citations (Lex citandi) of the emperor Valentinian III had no impact on the composition of Justinian’s Digest and that it had already been repealed on 15 December 530 with the promulgation of Const. Deo auctore, announcing the composition of the Digest. In this article it is contended that the Lex citandi was only repealed on 16 December 533, with the promulgation of the Digest on which it had a considerable impact since it was referred to in Const. Deo auctore and was the main inspiration of the Index florentinus, which is to be regarded as an expanded version of the Lex citandi.
Bonfante, Vacca, Ankum: acquisition of ownership of res mancipi abandoned by their owner, Pomp. D. 41,7,5pr. (Jeroen M.J. Chorus)
DOI 10.1163/15718190-20241212
Abstract:
Pomponius, Digest 41,7,5pr., presents many difficulties. It holds, inter alia, that if the possessor of a thing abandoned by its owner, did not have that thing in bonis, the person who bought it from him, knowing that it had been abandoned, will usucapt it. But this seems to conflict with § 1, asserting that the acquirer of an abandoned thing becomes its dominus at once, without usucapio. Bonfante saw that the principium concerns only res mancipi and § 1 only res nec mancipi. Vacca did not agree, but subscribed to part of Bonfante’s interpretation. Both Bonfante and Vacca, however, introduced an element not mentioned by Pomponius: that the selling possessor ignored that the thing had been abandoned by its owner and, instead, thought the thing was res aliena. Ankum rejected that introduction and gave an interpretation (and reconstruction) of the fragment without the contested element. It is argued that Ankum’s interpretation should prevail.
Donationem non facit? Donations to people in potestate of the donor in Roman law (Daniele Curir)
DOI 10.1163/15718190-20241202
Abstract:
The paper focuses on the phenomenon of donation to people in potestate of the donor. Even though this kind of donation was an old practice in Roman society, classical jurisprudence considered it void due to the lack of legal capacity of the people alieni iuris. However, we can see that beginning from the Severian age, the jurists and then the imperial chancery gradually stated the validity of these acts of liberality, contingent upon certain conditions primarily based on the donor’s voluntas. The analysis of responsa and rescripta related to this subject highlights how this concessio worked under a juridical point of view, along with its progression. Finally, it is highlighted how this interpretatio was part of a broader phenomenon occurring in the 3rd century a.d. and aimed to value the donor’s voluntas.
Private legal practice and public authority in early Venetian Ithaca: thirteen new notarial documents (1575–1599) (K. Nikias) [OPEN ACCESS]
DOI 10.1163/15718190-20241205
Abstract:
The Greek notarial documents produced in the centuries after the fall of Byzantine rule are important sources for retracing the development of private legal practices under the influence of the different administrative and legal orders which came to rule the Greek-speaking territories. In the vast areas which came under Venetian control, the system of private transactions was conditioned by a tension between the widespread practice of notaries operating as private professionals during the Byzantine period, and the intervention of Venetian administrators who sought to regulate notaries as public officers. This article considers this tension in an understudied peripheral context, the small island of Ithaca in the period of early Venetian rule, through an analysis of thirteen new Greek notarial sources from 1575–1599 which are presented here in a critical edition. Owing to the small size of the Ithacan economy and the informality of the island’s administration during the sixteenth century, private transactions were executed mainly by independent scribes, priests, and in some cases by public notaries from neighbouring Cephalonia. This was gradually changed by successive regulatory interventions by the Venetians which formalised administrative structures on Ithaca, traced here through several unpublished sources from the local archives, in addition to documents from Cephalonia and Venice. These reforms led to the establishment of a system of publicly appointed and supervised notaries on Ithaca in the early seventeenth century, putting the freer practice of the earlier period under the closer control of the public administration and bringing Ithaca into line with practices in the larger Venetian possessions.
Les projets constitutionnels du Congrès de Polleur (1789–1791): La Révolution dans les campagnes de la Principauté de Liège (Quentin Leboutte)
DOI 10.1163/15718190-20241203
Abstract:
Within the history of revolutionary upheavals, the role of the Polleur Congress remains unique and yet overlooked. Drawing inspiration from the French and American Revolutions, and rooted in Enlightenment ideas, the congress participants adapted their demands to the local reality of the Marquisate of Franchimont. In doing so, they were able to create a more radical yet also more democratic revolutionary movement. Whether in the implementation of the separation of powers principle, the proclamation of a Declaration of the Rights of Man and Citizen, or the establishment of a Franchimont Republic, all the proposed reforms demonstrate a genuine effort to reinterpret global revolutionary ideas and tailor them to the local situation. This contribution aims to rediscover the legal aspects of this Congress through the analysis of the demands for an institutional reform of the Principality of Liège, the various fundamental rights guaranteed to citizens, as well as the intentions for organizing the new state specific to the Franchimont region.
The issue of sexuality in Italian penitentiary law: a 1930s debate between international influences and fascist prison policies (Gianmarco Palmieri)
DOI 10.1163/15718190-20241211
Abstract:
This article delves into a crucial yet understudied aspect of Italian penitentiary history during the 1930s: the intricate interplay between international influences and the development of fascist prison policies with regard to issues of sexuality. Drawing from a rich archive of legislative documents, contemporary publications, and historical accounts, this study examines the emergence of a multifaceted discourse surrounding sexuality within the context of Italian prisons. Within this framework, the article illuminates the tensions between Mussolini’s authoritarian policies and the pioneering penitentiary practices that were undergoing experimentation in foreign legal systems.
Is legal history just writing a text? (Boudewijn Sirks) [OPEN ACCESS]
DOI 10.1163/15718190-20241204
Abstract:
The question, what constitutes the methodology of the legal history research, is answered in different ways. One is that it is the same as for general history: writing on history according to a set of rules which constitute its methodology, because in the end all research on history is just creating a text. It follows from this that legal history is a variation of history and belongs to history faculties, since there is no connection with legal methodology. It is maintained in this article that this view is based on too simple a view of history as science: there is not one methodology but various methodologies (‘discourses’, not only in history but in science in general), each with its own conditions and requirements. Legal history’s discourse has a particular distinguishing element, viz. legal analysis and methodology, which sets it apart from history in general. Its natural place is consequently in law faculties.
Book reviews
- S.F. Thönissen, Recht und Gerechtigkeit, Philosophisch-theologische Grundlagen der westlichen Rechtstradition. [Law and religion in the early modern period / Recht und Religion in der Frühen Neuzeit, 2]. Brill / Schöningh, [Paderborn 2022]. xx + 597 S. (N. Jansen)
- S. Soleil, Aux origines de l’opposition entre systèmes de common law et de droit codifié, Les controverses anglo-américaines des années 1820-1835. [Sensus iuris]. Société de législation comparée, [Paris 2021]. 371 p. (Caroline Laske)Delphine Sirks, Fire and life insurance in the Dutch Republic, Development and legal aspects. [Comparative studies in the history of insurance law / Studien zur vergleichenden Geschichte des Versicherungsrechts (hil), 18]. Duncker & Humblot, [Berlin 2022]. 233 p. (Guido Rossi)
- Th. Duve [und] J.L. Egío, Rechtsgeschichte des frühneuzeitlichen Hispanoamerika. [Methodica – Einführungen in die rechtshistorische Forschung, 6]. De Gruyter, Oldenbourg, [Berlin – Boston 2022]. viii + 231 S. (Jan Hallebeek)
- T. Beggio und A. Grebieniow (Hrgs.), Methodenfragen der Romanistik im Wandel, Paul Koschakers Vermächtnis 80 Jahre nach seiner Krisenschrift. [Ius Romanum, Beiträge zu Methode und Geschichte des römischen Rechts, 7]. Mohr Siebeck, [Tübingen 2020]. xiv + 236 S. (Boudewijn Sirks)
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