04 August 2021
JOURNAL: Clio@Themis: Revue Électronique d'Histoire du Droit, nº 20, 2021, La nature comme norme. OPEN ACCESS
03 August 2021
JOURNAL: Signa Iuris: Beiträge zur Rechtsikonographie, Rechtsarchäologie und Rechtlichen Volkskunde, v. 18, 2021
Andreas Deutsch | Gernot Kocher | Heiner Lück | Clausdieter Schott
More information: https://www.rechtsikonographie.de/
02 August 2021
BOOK: Amanda L. TYLER, Habeas Corpus: A Very Short Introduction (Oxford: University Press). ISBN: 9780190918989, pp. 184, $11.95
ABOUT THE BOOK
The concept of habeas corpus--literally, to receive and hold the body--empowers courts to protect the right of prisoners to know the basis on which they are being held by the government and grant prisoners their freedom when they are held unlawfully. It is no wonder that habeas corpus has long been considered essential to freedom. For nearly eight hundred years, the writ of habeas corpus has limited the executive in the Anglo-American legal tradition from imprisoning citizens and subjects with impunity. Writing in the eighteenth century, the widely influential English jurist and commentator William Blackstone declared the writ a "bulwark" of personal liberty. Across the Atlantic, in the leadup to the American Revolution, the Continental Congress declared that the habeas privilege and the right to trial by jury were among the most important rights in a free society.
This Very Short Introduction chronicles the storied writ of habeas corpus and how its common law and statutory origins spread from England throughout the British Empire and beyond, witnessing its use today around the world in nations as varied as Canada, Israel, India, and South Korea. Beginning with the English origins of the writ, the book traces its historical development both as a part of the common law and as a parliamentary creation born out of the English Habeas Corpus Act of 1679, a statute that so dramatically limited the executive's power to detain that Blackstone called it no less than a "second Magna Carta." The book then takes the story forward to explore how the writ has functioned in the centuries since, including its controversial suspension by President Abraham Lincoln during the Civil War. It also analyzes the major role habeas corpus has played in such issues as the World War II incarceration of Japanese Americans and the US Supreme Court's recognition during the War on Terror of the concept of a "citizen enemy combatant." Looking ahead the story told in these pages reveals the immense challenges that the habeas privilege faces today and suggests that in confronting them, we would do well to remember how the habeas privilege brought even the king of England to his knees before the law.
ABOUT THE AUTHOR
Amanda L. Tyler is the Shannon Cecil Turner Professor of Law at the University of California, Berkeley School of Law, where she teaches and writes about the federal courts, the Supreme Court, constitutional law, legal history, and procedure. Tyler is the author of Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay. She is also a co-author, with Justice Ruth Bader Ginsburg, of Justice, Justice Thou Shalt Pursue: A Life's Work Fighting for a More Perfect Union. In addition, Tyler has served since 2016 as a co-editor of Hart and Wechsler's The Federal Courts and the Federal System, and she was a contributing author to Federal Court Stories and the Cambridge Companion to the United States Constitution. Tyler is a graduate of Stanford University and Harvard Law School and a former law clerk to the Honorable Guido Calabresi at the United States Court of Appeals for the Second Circuit and the Honorable Ruth Bader Ginsburg at the Supreme Court of the United States.
TABLE OF CONTENTS
Lists of Illustrations
1: The English origins
2: The limits and potential of habeas corpus
4: Habeas corpus comes to America
5: Habeas corpus in the early United States
6: Civil war and suspension
7: Reconstruction and expansion of the writ
8: World War II and the demise of the great writ
9: Habeas corpus today
More information with the publisher.
29 July 2021
BOOK: Brendan RÖDER. Der Körper des Priesters. Gebrechen im Katholizismus der Frühen Neuzeit. Campus: 2021. EUR 43.
Muss ein katholischer Priester einen unversehrten Körper haben? Darf ein Geistlicher einen physischen Makel verbergen? Was geschieht, wenn das weibliche Geschlecht einer Nonne bezweifelt wird? Wer entscheidet überhaupt, welcher Körper für Kleriker geeignet ist und welcher nicht? Brendan Röder zeigt anhand bisher unbekannter Quellen, auch aus dem Archiv der römischen Konzilskongregation, wie wichtig diese Fragen für individuelle Lebenswege und die Institution der katholischen Kirche in der Frühen Neuzeit waren. Das Buch analysiert den Körper als Gegenstand von Aushandlungsprozessen, an denen einfache Kleriker, Bischöfe und Päpste, aber auch Gläubige und medizinische Experten beteiligt waren. Dabei werden langandauernde Mechanismen der Exklusion sichtbar; deutlich wird aber auch, wie kreativ und flexibel man in der Praxis mit ungewöhnlicher Körperlichkeit umging.
Dr. Brendan Röder is a Wissenschaftlicher Mitarbeiter in SFB 1369 "Vigilanzkulturen"
More information: https://www.campus.de/buecher-campus-verlag/wissenschaft/geschichte/der_koerper_des_priesters-16535.html#
28 July 2021
We learned of a call for contributions to the 2022 issue of Rechtskultur.
Law and Reconstruction after crisis will be the theme for the 2022 volume of Rechtskultur. The editors want to focus on law as a tool for social engineering and how it has been applied to reconstruct society after very different crises like the 30-years war, the cholera pandemics or the fall of the Berlin Wall. The editors welcome contributions from all relevant fields of science with a maximum length of 100 000 characters. Contributions should be submitted by using email@example.com within 30. October 2022. All contributions will be peer reviewed, and admittance for publications rests on the merits of the contribution alone. For further information please visit our wegpage www.rechtskultur.org
SCHOLARSHIP: Academy Scholars Program (recent PhD Recipient/doctoral candidates,, DEADLINE 1 OCT 2021)
The Academy Scholars Program identifies and supports outstanding scholars at the start of their careers whose work combines disciplinary excellence in the social sciences or law with a command of the language and history or culture of countries or regions outside of the United States or Canada. Their scholarship may elucidate domestic, comparative, or transnational issues, past or present. The Academy Scholars are a select community of individuals with resourcefulness, initiative, curiosity, and originality, whose work in cultures or regions outside of the US or Canada shows promise as a foundation for exceptional careers in major universities or international institutions. Academy Scholars are appointed for a two-year, in-residence, postdoctoral fellowship at The Harvard Academy for International and Area Studies, Harvard University, Cambridge, MA. They receive substantial financial and research assistance to undertake sustained projects of research and/or acquire accessory training in their chosen fields and areas. The Senior Scholars, a distinguished group of senior Harvard University faculty members, act as mentors to the Academy Scholars to help them achieve their intellectual potential.
Read further here.
(source: ESILHIL Blog)
27 July 2021
On July 2, NYU Law announced the establishment of the NYU-Yale American Indian Sovereignty Project, whose goals include supporting the sovereignty of Native nations and addressing the impact of American colonialism on Native peoples. Professor of Law Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) and Ned Blackhawk (Te-Moak Tribe of Western Shoshone Indians of Nevada), professor of history and American Studies at Yale University, will jointly run the multi-year project.
Read more here.
(source: ESILHIL Blog)
26 July 2021
BOOK: Oliver Jens SCHMITT, I Balcani nel Novecento. Una storia postimperiale (1912-2000) ( Bologna: Il Mulino, 2021). ISBN: 9788815291271, pp. 408, € 30,00
ABOUT THE BOOK
Collana: Le vie della civiltà
Un secolo fa i grandi imperi nell'Europa orientale crollarono. Gli stati che ne hanno preso il posto hanno cercato di emanciparsi dal passato ma l'eredità asburgica e ottomana è ancora in molti modi presente. Adottando una prospettiva post-imperiale, il volume riesce ad abbracciare in un'unica visione i Balcani del Novecento, visti come una grande regione caratterizzata da linee di continuità che l'attraversano pur entro il succedersi dei regimi. Confrontando a livello transnazionale gli sviluppi fondamentali in politica, società, economia e cultura, il volume mette in luce le differenze e le somiglianze sia dei singoli paesi, sia dell'intera regione nel più largo contesto europeo.
ABOUT THE AUTHOR
Oliver Jens Schmitt is a professor of South-East European history at the University of Vienna since 2005. He is a member of the Austrian Academy of Sciences.
23 July 2021
BOOK: Brian Z. TAMANAHA, Legal Pluralism Explained. History, Theory, Consequences (Oxford: University Press, 2021). ISBN: 9780190861568, pp. 232, $29.95
22 July 2021
21 July 2021
PAPER: Santi ROMANO. O Estado moderno e a sua crise. Revista Brasileira de Estudos Políticos, 2021/1
The Brazilian Review of Political Studies has published a translation into Portuguese of the famous 1909 article of Italian scholar Santi Romano, Lo stato moderno e la sua crisi.
Santi Romano (1875-1947) was professor of administrative law at the University of Rome La Sapienza and president of the Italian Council of State.
More information: https://pos.direito.ufmg.br/rbep/index.php/rbep/article/view/886
20 July 2021
BOOK: Francesco MIGLIORINO. Letture corsarie di Tulio Ascarelli. Penalisti e criminologi da Weimar al Terzo Reich. (Milano: Giuffrè, 2021). ISBN 9788828831501. EUR 22.
19 July 2021
BOOK: Christel Annemieke ROMEIN, Protecting the Fatherland: Lawsuits and Political Debates in Jülich, Hesse-Cassel and Brittany (1642-1655) (Cham: Springer, 2021). ISBN 978-3-030-74240-9, OPEN ACCESS
Springer has published a new book, in open access, in its Studies in the History of Law and Justice series.
ABOUT THE BOOK
This open access book presents a comparative analysis of the use of fatherland terminology in a political and legal context in Jülich, Hesse-Cassel and Brittany from 1642 to 1655. Fatherland terminology includes words such as patria, patriot and nation. In historiography, the use of these words by the nobility is often interpreted as an early sign of nationalism that conflicted with the prince’s initiation of state-building. The book argues that neither ‘states’ nor ‘nationalism’ truly existed yet; rather, the political arena was dominated by dynasties. Further, it rejects the notion of deliberate state-building and demonstrates that the nobility used this terminology to object to princely politics as part of adopting a “presupposed office.” This status allowed the nobility to place itself outside the ruler-subject constellation and critique the situation. The Duchy of Jülich and the Landgraviate of Hesse-Cassel are used as examples of small economies of scale with homogenous nobilities, and ones where the Thirty Year’s War hit hard – which led to the illegal levying of taxes and the billeting of soldiers, and in turn to the nobility critiquing princely politics. In contrast, the Duchy of Brittany, with its large economy of scale and heterogeneous nobility, found an alternative way of pursuing its interests and keeping taxes as low as possible. The goal of this book is to discuss and present three representative cases that offer insights into how the nobility safeguarded the welfare and prosperity of the fatherland and its inhabitants.
ABOUT THE AUTHOR
Annemieke Romein obtained her PhD at Erasmus University in 2016 on a comparative study of the political terminology of the fatherland, patria and patriot in Hessen-Kassel, Gulik and Bretagne. In 2017 she received an NWO Rubicon grant with which she worked in Ghent from September 2017 to February 2020 on a project on political-institutional/legal history, a comparison between the regions of Flanders and Holland between 1576-1702. She was a Researcher-in-Residence/ project leader of the Digital Humanities “Entangled Histories” project at the KB National Library of the Netherlands. Since 2020 she is working at Huygens ING where she continues her research into early modern provincial regulations with her NWO Veni project ‘A Game of Thrones?’.
More info here
16 July 2021
Metropolitan Museum of Art/Wikimedia Commons)
We hope our readers can prudently enjoy the Summer for a 'Grand Tour' of open-air monuments and sparsely visited museums. The blogging team will be partly disconnected as well.
From tomorrow until Monday 16 August, there will only be light blogging. 'Light' does not equal a 'break'. This means that we will probably publish something every two to three days, instead of the usual rhythm. Messages sent to firstname.lastname@example.org will be consulted from 16 August on.
The daily mails sent out by google appear to continue (albeit at irregular and unpredictable hours), in spite of the previous notice we received of this service's termination.
BOOK: Margareth LANZINGER et al. (Eds.), Negotiations of Gender and Property through Legal Regimes (14th-19th Century) - Stipulating, Litigating, Mediating (Leiden/New York: Brill, 2021). ISBN 978-90-04-45418-7, 130.00 EUR
Brill has published “Negotiations of Gender and Property through Legal Regimes (14th-19th Century) - Stipulating, Litigating, Mediating”.
ABOUT THE BOOK
This volume explores familial wealth arrangements and gendered property from the fourteenth to the nineteenth centuries in Italian, German and Austrian territories (including Florence, Trento, Tyrol, and Vienna), Nordic countries, Western Pyrenees, and England. Family property as capital in the form of houses, land, movables, financial assets, and rights were of great importance in the past. Arrangements of such property were characterised by a high degree of negotiating competence but likewise they entailed competition between the parties involved and were highly conflict prone. Fifteen contributors from Austria, Finland, France, Germany, Italy, and the UK address different marital property regimes in relation to the practices and legal regulations of inheritance patterns with consideration to inter-familial negotiation, conflict, and resolution.
ABOUT THE EDITORS
Margareth Lanzinger, Ph.D.
(1999), is Professor of Economic and Social History at the University of
Vienna. She has published monographs, edited volumes, and many articles on
kinship and property, including The Routledge History of the Domestic
Sphere (16th to 19th Century) (2020), co-edited with Joachim
Janine Maegraith, Ph.D. (2005), is Research Associate at the University of Vienna. She has published widely on topics in social history of early modern central Europe, including “Landlessness”. Reviewing the Early Modern Property Structure in Southern Tyrol, in Zeitschrift für Agrargeschichte und Agrarsoziologie 68, 1 (2020).
Siglinde Clementi, Ph.D. (2016), is Vice Director of the Competence Centre for Regional History at the Free University of Bozen-Bolzano. She has published widely on early modern Tyrol, gender and women’s history. Körper, Selbst und Melancholie. Die Selbstzeugnisse des Landadeligen Osvaldo Ercole Trapp (1634–1710) (2017).
Ellinor Forster, Ph.D. (2008), is Assistant Professor at the Institute for History and European Ethnology at the University of Innsbruck. She has published widely on spatial concepts, political and symbolic communication, legal and gender history, including Demarkationslinie Eherecht. Geschlechtsspezifische Nachwirkungen der Rechtspluralität von Tiroler Landesordnung versus Trienter Statut und österreichischem versus französischem Recht (1815–1856), in Vormärz. Eine geteilte Geschichte Trentino-Tirols / Vormärz. Una Storia Condivisa Trento-Tirolese (2017).
Christian Hagen, Ph.D. (2013), is Research Associate at the University of Kiel. He published on Medieval economic, social, urban, regional, and cultural history, including Fürstliche Herrschaft und kommunale Teilhabe. Die Städte der Grafschaft Tirol im Spätmittelalter (2015).
More info here
Princeton University Press is having its second annual summer sale:
What is summer, really, if not the ideal time to grow your library? We are here to help make this possible. From July 14–July 21, nearly every PUP book purchased through our website will be discounted 50% when the code PUP21 is used at checkout. The offer is valid worldwide and there is no limit on the number of books that can be ordered, though some exclusions apply. Unsure where to get started? Looking for gift ideas? During the sale, we will make available several thematic “shopping guides” to aid in navigating some of our lists. Happy summer and happy summer reading!
More info via Princeton University Press
15 July 2021
In this contribution, the authors introduce a few key aspects of Paolo Grossi’s research path and link them to their work on the legal questions raised by landed-commons and local ecologies.
Une autre façon de posséder. Réflexions historico/juridiques sur les aménagements fonciers en Italie (Paolo Grossi) (DOI 10.3917/riej.086.0055)
In his contribution Paolo Grossi provides his viewpoint as a legal historian on collective land set-ups in Italy and shows how, through constitutional jurisprudence and the adoption of Law n° 168 of 20 November 2017, the Italian legal order not only recognizes their legal autonomy but also recovers its pluralism and complexity. Such recognition benefits to the protection of the environmentr.
Read these and other articles on Cairn.
14 July 2021
- Bram Van Hofstraeten & Paul Brood
- 'Het quaestieuze verdronkene goud'
- Door Hylkje de Jong
- Zacharias Huber (1669-1732) evaluated in the revised Heedensdaegse Rechtsgeleertheyt arguments, hitherto unknown, which were brought forward in a case, pursued before the Court of Friesland and decided on December 14th 1718. The case dealt with the ownership of a box with gold, found on the beach of Schiermonnikoog in 1710 and which came from the ship De Witte Haas, shipwrecked off the coast in 1674. Newly found civil records show that Maria Wilree (1667-1729) from Amsterdam started the procedure to recover the box with gold, because it purportedly belonged to her father Dirck Wilree (1636-1674), director-general for the West India Company in Guinea and who died in the shipwrecking. She took legal action against Henrica Helmhout, regent of Schiermonnikoog and receiver of wrecks, and Gillis Vermeersch, representative of the West India Company. Only Vermeersch was successful in his argument, which he based on the instructions of the Company: it was forbidden to transport unregistered private goods. Such goods forfeited immediately to the Company. Consequently, Wilree claimed for the Company ownership and possession of the box with gold. Helmhout claimed to be the owner by prescription. Their arguments appear not to have been convincing.
- Machtsmisbruik, collectieve actie en heerlijk gezag in het land van Westerlo: het politieke proces tegen Jean Philippe Eugène de Merode in 1724
- Door Klaas van Gelder
- In 1724, the prosecutor-general of the Grand Council of Malines, the supreme court of the Austrian Netherlands, opened a judicial investigation into the marquis of Westerlo, one of the highest aristocrats in the Low Countries. It was alleged that he had abused his power against a peasant from Herselt, one of the villages in the marquisate of Westerlo. The investigation ultimately led nowhere, but its records do reveal frequent and far-reaching abuses of power against the inhabitants of the marquisate. Moreover, they show that the villagers were not powerless but could organise themselves in various ways against their lord’s coercive actions. Additionally, the case illustrates the gradual and growing penetration of the state apparatus into the administration of local seigneuries. Finally, this essay demonstrates the need for more research on the relationships between lords and villagers. This is a neglected field of inquiry although the majority of the population in the Austrian Netherlands lived in the countryside, large parts of which consisted of seigneuries.
- Strafverzachting door Hof van Assisen van West-Vlaanderen in de Hollandse periode (1814-1830)
- Door Jos Monballyu
- This contribution deals with the softening of sentences by the Assize Court of West Flanders in the Dutch period (1814-1830). It is successively examined how the judges in this Court made use of a number of provisions in the Code pénal of 1810 to pursue their own sentencing policy, secondly, how the same judges, by re-qualifying the facts that the public prosecutor had brought to them defendant, succeeded in imposing a lesser sentence than that claimed by the prosecutor, third, how those same judges made use of the decisions of September 9, 1814 and January 20, 1815, invoking extenuating circumstances, to impose a lesser penalty than that determined in the Code pénal of 1810 and finally how King William I converted some death sentences into lesser punishments with his right of grace.
- Rogier versus Jottrand: dure beledigingen in de Belgische opiniepers (1861-1863)
- Door Frederik Dhondt
- The Belgian Constitution guaranteed political liberty, exemplified by the mandatory competence of the jury for judging political and press offences. However, the constitution did not literally mention quasi-delicts. In 1861, liberal statesman Charles Rogier was insulted by the ultramontanist Catholic newspaper Le Journal de Bruxelles. He sued the newspaper’s printer under tort law, and obtained a considerable amount of damages, bypassing the jury. Progressive radical lawyer Lucien Jottrand, former member of the Constituent Assembly, argued at length that the constitution exclusively reserved competence for both civil and criminal liability to the jury. The Brussels Court of Appeal and the Court of Cassation rejected this reasoning and insisted on the superior natural law-origins of tort law. Yet, this decision created a risk of private censorship, well documented in the press and in private archives on the legal battle around the Journal de Bruxelles.
- Boekbespreking "Géraldine Cazals, L’arrestographie flamande. Jurisprudence et littérature juridique à la fin de l’Ancien Régime (1668-1789) [Bibliothèque des Lumières XCIII], Librarie Droz S.A., Genève, 2018, 344 p., ISBN 9782600058230, € 42,00"
- Door C.H. van Rhee
- Boekbespreking "Peter van den Berg, Kolonialisme en codificatie. Hoofdstukken uit de Caribische en Amerikaanse rechtsgeschiedenis, Boom, Den Haag, 2020, 390 p., ISBN 9789462908239, € 59,00"
- Door Dirk Heirbaut
Read more here.
13 July 2021
CONFERENCE: Law(s) and International relations : actors, institutions and comparative legislations (Orléans, 15-17 SEP 2021)
In the last twenty years, the study of the history of international law and of international relations has witnessed something of a renaissance. The bicentenary of the Congress of Vienna (1814-1815) also led to several new publications on the Congress System and on the “security culture” that was established in the aftermath of Napoleon. Nevertheless, many lacunae remain, especially regarding the relationship between law(s) and international relations during the long nineteenth century and in the sociocultural history of international law as a discipline with its own actors, networks, venues, institutions and power circles. The aim of the present conference is to deepen our study of the interconnections between law(s) and international relations through the eyes of a plurality of actors (e.g., legal advisers, lawyers, judges, activists, publicists, journalists, editors), institutions (e.g., foreign offices, courts, universities, academies of science, associations, libraries) and works on comparative law. Three focuses will be especially addressed by this conference. The first is the plurality of actors. We welcome proposals on legal advisers within governments, foreign offices and national or colonial administrations; on civil and administrative judges, admiralty courts and prize laws; and on lawyers, academics, peace activists, international thinkers, journalists and editors, including women as well as men. A prosopography of a group of actors is invited as well as individual biographies. The theme of the birth and professionalization of “international lawyers” will be studied as well as the various editors and the book market for international law. Our second focus will be on institutions. We especially invite papers studying the treatment of law(s) in foreign offices in a comparative perspective. For example, in Great Britain, legal issues were dealt by the Queens Lawyers until 1872 and afterwards by the Legal Adviser of the Foreign Office. In France after 1835, it was the Comité consultatif du contentieux that dealt with legal issues. But what about the foreign offices of other countries? Other institutions (similar to the Conseil d’état in France) may have also had their own “Foreign Office Committee.” How were these organized? Did they cooperate with the foreign office? What role was played by scientific academies in the diffusion of international law? By the universities? By popular libraries? Our third and final focus is on the study of comparative law and its link to the development of international law. The Société de législation comparée, founded in 1869, was full of members of the first generation of the Institut de Droit International, while many comparativists were, vice versa, members of the Institut de Droit International. Scientific journals such as the Revue historique de droit français et étranger and the Revue de droit international et de législation comparée dealt with both comparative and international law. Papers on the progressive autonomy of the discipline and on the networks of the founding members are especially welcome.
Dr Raphaël Cahen, LE STUDIUM / Marie Skłodowska-Curie Research Fellow FROM: Vrije Universiteit Brussel/CORE (VUB) - BE IN RESIDENCE AT: POuvoirs, LEttres, Normes (POLEN) / CNRS, University of Orléans - FR, Prof. Pierre Allorant, POuvoirs, LEttres, Normes (POLEN) / CNRS, University of Orléans - FR, Prof. Walter Badier, POuvoirs, LEttres, Normes (POLEN) / CNRS, University of Orléans - FR
See full program here.
(see call earlier on this blog)
(source: ESILHIL Blog)
BOOK: Floriana COLAO. Un diritto per l'agricoltura. Itinerari giuridico-economici nella Toscana dell'Ottocento. ISBN 9788828832447. Milano: Giuffrè, 2021. EUR 16,15
Il volume ricostruisce il contributo offerto dai giuristi toscani – tra questi Lorenzo Collini, Giovanni Carmignani, Girolamo ed Enrico Poggi, Francesco Forti, Giuseppe Cosimo Vanni, Napoleone Pini, Vincenzo Salvagnoli, Celso Marzucchi, Ferdinando Andreucci, Giuseppe Panattoni – alla costruzione di un diritto per l’agricoltura nella Toscana dell’Ottocento, un’esperienza giuridica comprensibile nella ‘lunga durata’, percepita e sostenuta come «diversa» anche alle soglie dell’introduzione del codice civile italiano. Già nel 1808 l’Accademia dei Georgofili opponeva con successo la giurisprudenza patria e le liberalizzazioni dell’‘iconico’ Pietro Leopoldo al tentativo di Napoleone di introdurre un Project de code rural nella Toscana francese. Il codice rurale si sarebbe rivelato ‘impossibile’, con l’eccezione dei Principati di Lucca e Piombino,mai ricordati nel dibattito della Restaurazione; da allora l’Accademia dei Georgofili era un ponte tra la cultura giuridica ed istituzionale toscana, fino all’Unità terra di ius commune, e quella d’oltralpe. I ‘giuristi-economisti-politici’ credevano che la «potenza dello Stato» dipendesse dalla «cultura delle terre»; si impegnavano in Discorsi al pubblico – ai Georgofili, il Vieusseux, l’Accademia dei Nomofili – ed in ampie opere teorico-pratiche, coniugando diritto ed economia in vista di un «progresso per l’agricoltura» e dunque per la società, alla ricerca del legame «dati legali, dati sociali». Intendevano offrire un ‘sapere utile’ come contributo ‘civile’, tra proposte di «buone dottrine» e di un ‘pedagogico’ «codice rurale», per istruire i «campagnoli». Nell’ambito dei contratti agrari meritavano un’attenzione particolare i «livelli di Toscana», irriducibili alla dimensione contrattuale individuale, piuttosto «pubblica istituzione». Per questo profilo di identità di «toscana cittadinanza» si poneva il tema dell’aggiornare il celebrato sistema livellare leopoldino «al paragone dei tempi», verso un contrastato processo di affrancazione generale. Sul piano ‘costituzionale’ era chiara la percezione del legame tra proprietà fondiaria, «amministrazioni economiche», «poteri politici»; la «libertà della terra» era indicata come l’architrave del «diritto pubblico della nazione».
Floriana Colao: Dal 1999 è professore ordinario di Storia del diritto medievale e moderno, dal 2016-2017 anche di Storia delle codificazioni moderne nel Dipartimento di Giurisprudenza nell'Università degli Studi di Siena. È stata supplente di Storia del Diritto italiano presso la Facoltà di lettere e filosofia di Siena, con sede ad Arezzo, corso di laurea in Scienze dei beni archivistici e librari, e nel corso di laurea in Storia, sede in Siena.
12 July 2021
JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/The Legal History Review LXXXIX (2021), no. 1-2 (Jul)
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.
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)
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.
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.
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)
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)
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)
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)
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.
- 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)
09 July 2021
Cette rubrique thématique propose une sélection d'ouvrages disponibles dans Gallica sur la situation juridique des femmes dans différents domaines du droit. Elle sera progressivement enrichie. Les textes sélectionnés sont répartis en plusieurs catégories : ouvrages généraux sur la situation juridique des femmes, par branches du droit (droit romain, droit civil, droit commercial, droit du travail, protection sociale, droits politiques), sur des sujets plus précis (nationalité, droit à l'éducation, femmes avocates) ou plus spécifiques (droit et féminisme). Devant être libres de droits, les ouvrages sélectionnés ne peuvent pas rendre compte de l’avancée majeure des droits des femmes tout au long du XXe siècle, en particulier après la seconde guerre mondiale. Ils peuvent néanmoins témoigner de la situation juridique des femmes en France au cours du XIXe siècle et des débuts de son évolution.
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