Artikelen / Articles / Articles
Consensus and contract: Land lease in Ptolemaic Egypt (Éva Jakab)
In the present paper the question is raised whether ancient Greek law did know the concept of a ‘consensual contract’. Indeed, it was controversial for a long time, and opinions remained divided on it. Actually, legal historians have to struggle with the problem of the sources: the legal institutions, as understood by the actors, have to be reconstructed upon documentary sources, mirroring everyday practice. For decades, the contract theory of H.J. Wolff, the ‘Zweckverfügung’, dominated legal historian papers. Wolff attempted to develop a new terminology and structure, independent of Roman law. However, in recent publications, ‘neo-Pandektistik’ ideas can be observed. My essay focuses on lease agreements because Wolff studied this type of contract to develop his new ideas. The question of whether Wolff’s thesis holds up in every respect is also being considered.
A discussion of the concept of lex from the Twelve Tables to the Regnum (Carlos Amunátegui Perelló)
The notion that public legislation existed during the obscure period preceding the Twelve Tables is a subject of intense debate in Roman legal and historical scholarship. This paper seeks to explore the existence of public statutes during the fifth and sixth centuries bce. It does not aim to examine the individual, often enigmatic, figures of Rome’s early kings or the specific laws attributed to them, but rather the general concept and plausibility of written legislation predating the Twelve Tables.
D. 9,2,51 and the role of dialectic in Julian’s interpretation of chapter one lex Aquilia (Peter Candy)
D. 9,2,51 Iul. 86 dig. is one of the best known texts in Justinian’s Digest, appearing near to the end of title 9,2 on the lex Aquilia concerning damage to property. In it, the jurist Julian poses a hypothetical case in which two assailants each mortally wound a slave in separate incidents, culminating in the slave’s death. The question arises concerning the attackers’ liability under chapter one of the lex Aquilia for wrongful killing (‘occidere’). Julian’s ruling is that both should be liable to the direct statutory action. At the end of the text, he goes on to state that many solutions have been accepted by the civil law, contrary to dialectical argumentation (‘contra rationem disputandi’) for the common good (‘pro utilitate communi’). This contribution situates Julian’s approach to this problem in the context of Hellenistic philosophy, especially the branch of philosophy called dialectic that covered the field of formal logic and contained within it specific problems concerning the truth value of statements. My general thesis is that the positions taken by Julian in D. 9,2,51 and related texts are internally consistent if understood through the lens of dialectic, particularly the ancient theories concerning the truth value of statements.
Superficies solo cedit in the Roman province of Egypt (João Costa-Neto, Henrique Porto de Castro, João G. Sarmento)
This research critically examines the assumed universality of the Roman legal rule superficies solo cedit by examining its application – or lack thereof – in Roman Egypt. Drawing on papyrological evidence, we argue that local traditions permitted the separate ownership of land and buildings, encompassing divided ownership within a single structure. These practices persisted after the Roman annexation and were recognised by Roman authorities. Thus, this study considers Egypt as a case of legal pluralism within the Empire, illustrating how Roman legal traditions coexisted with local norms rather than fully replacing them.
Did Arcadius legislate on episcopalis audientia? And was that legislation included in the Theodosian Code? (Gideon de Jong)
It is generally assumed the text of CJ 1,4,7, a law on episcopal adjudication, was issued by Arcadius as part of a larger legislative action on the 27th of July AD 398 at Mnizus. Paul Krüger’s critical edition of Justinian’s Code is primarily responsible for this assumption gaining traction. Through an exploration of the (lacking) manuscript evidence and earlier humanist editions of the Code, notably that of Gregorius Haloander, this article stresses both the place Mnizus and promulgation by Arcadius are in fact assumptions. Similarly, Krüger’s claim that CJ 1,4,7 was also part of the Theodosian Code lacks direct evidence. With an investigation of the sources the article seeks to highlight the as of yet unresolved textual problems and strengthen the basis for further legal analysis.
The fideicommissum ‘si sine liberis decesserit’: Interpretating childlessness in the learned legal practice of the early modern Southern Netherlands (1550–1650) (Vincent Van den Eynde)
This article examines the interpretation of the testamentary clause si sine liberis decesserit (‘if he dies without children’) within the learned legal practice of the Southern Netherlands. Frequently attached to fideicommissary substitutions, this clause aimed to preserve family property but generated complex disputes about the meaning of ‘childlessness’. Drawing on printed consilia and decisiones, the study explores how jurists addressed issues such as posthumous children, legitimation, adoption, and monastic entry, while navigating between the clause’s literal wording and the presumed will of the testator. Analysis shows that early modern jurists interpreted liberi in a strict, biological and legitimate sense: only children born within a lawful marriage were recognized for the purpose of the clause. Illegitimate, legitimized, adopted, or fictive ‘children’ such as monasteries typically did not qualify. Because such children fell outside the scope of the clause, jurists frequently concluded that no ‘true’ children existed, and the fideicommissary condition was therefore fulfilled. Thus, in these cases the expressly designated substitute often prevailed, not because substitutes were favored as such, but because a strict, text-bound reading of liberi was deemed the safer and more faithful way to honor the testator’s will, rather than speculating about broader notions of ‘children’. As a result, the findings highlight the interplay between ius commune doctrine, local practice, and socio-economic strategies, illustrating how jurists navigated tensions between testamentary autonomy, familial patrimonial continuity, and canonical values.
The mutual duties of parents and their children: Evidence from post-Tridentine Liège (Marie-Sophie Silan)
During the Early Modern period, the family was regarded as a ‘domestic economy’, with the husband and father at its head. Although familial relationships were primarily vertical – the family was a hierarchy – they were also governed by reciprocal obligations. This was notably the case in the relationship between parents and children. Drawing on the Fourth Commandment (Ex. 20:12), children were expected to show respect, love, obedience, and to assist their parents in times of need. In turn, parents were responsible for their children’s material support and, crucially, their spiritual education. In many respects, the mutual duties binding parents and children in this period prefigure modern legal notions of maintenance obligations, which today fall squarely within the domain of law. In the context of the Reformation and Counter-Reformation, increasing emphasis was placed on the parents’ duty to give their children a strictly Catholic upbringing, as children had to be protected from any ‘heretical’ influence from an early age. Consequently, a substantial body of prescriptive literature, including manuals for confessors and treatises on domestic economy aimed at an educated lay readership, emerged to give parents advice on how to best conform to Christian ideals. Focusing on post-Tridentine Liège (c. 1563–1700) as a case study, this paper examines how these biblically grounded, reciprocal duties were disseminated among the population and articulated in local legal literature. It then compares these normative sources with evidence drawn from wills and marriage contracts preserved in notarial records. These documents offer concrete insights into how parents sought to reinforce filial duties and moral expectations through private legal instruments, thereby shedding light on the interaction between law, religion and morality within the Early Modern family.
In the shadow of Paris: Origins and consequences of Belgian contrefaçon industry of French literary works (Katarzyna Latek)
In the shadow of Paris, Belgian publishers built a remarkable industry: the mass reprinting of French literary and legal works. This article examines the phenomenon of Belgian contrefaçon – the systematic reprinting of French works between 1815 and 1854. In the absence of international copyright conventions, Belgian publishers lawfully reproduced French texts, selling them at a fraction of Parisian prices across Europe and the Americas. The article distinguishes reprinting (réimpression) from counterfeiting in the criminal sense, demonstrating that Belgian practice operated within the legal framework of the era. Drawing on the works of Dopp, Hen, Hellemans, and Verbeke, the study analyses the industry’s institutional structure, its patronage by Belgium’s political and judicial elite, and its suppression through the bilateral convention of 22 August 1852. The article identifies a significant gap in existing scholarship: the extent to which Belgian editorial modifications to reprinted French legal treatises may have influenced the transnational reception of French legal thought.
From ‘form’ to ‘will’: The political origins of Jhering’s ‘Damaskuserlebnis’ (Wei Xiao)
Jhering’s intellectual transformation from formalism to realism – manifested as a methodological transition from his early adherence to ‘conceptual jurisprudence’ to his later advocacy of ‘teleological jurisprudence’ – constitutes a profound response to the political and social upheavals of nineteenth-century Germany. In his early thought, Jhering maintained that legal formalism could effectively resist political arbitrariness and safeguard individual liberty, thereby providing the foundation for a lawful liberal state. He sought to replace the absence of constitutional governance with a systematic and autonomous science of private law that would secure a ‘system of freedom’. However, amid the unification wars and Bismarck’s Realpolitik, Jhering came to recognize that rigid legal forms often proved inadequate to address the complexities of social and political reality. Consequently, he began to emphasize the role of ‘powerful personalities’ and political decision-making, contending that in states of emergency, necessary acts of will could compensate for the limitations of legal form. Nevertheless, Jhering did not abandon his earlier ideals; he remained acutely wary of unchecked political power and insisted that such decisions must be justified and strictly constrained. Throughout his oeuvre, Jhering sought to reconcile form and will by advocating the institutionalization of political decision-making within a normative legal order. He underscored that freedom must be realized through the law and called upon political actors to embody classical virtues to ensure the legitimacy and moral integrity of their decisions.
