03 January 2019

JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/Legal History Review LXXXVI (2018), Issue 3-4 (December)

(image source: Brill)

Mededeling van de Dagelijkse Redactie – Avis du Comité de Rédaction – Announcement of the Editorial Committee

Women in twelfth-century English lawsuits (Raoul C. van Caenegem)
Notwithstanding that the role of women in law courts could be expected to be modest for the Middle Ages, a perusal of lawsuits of the 12th century produced even a lesser proportion than expected.
Zum Anwendungsbereich des senatusconsultum Neronianum im Falle des Vindikationslegats fremder Sachen (Lisa Isola)
Das römische Vermächtnisrecht ist von zahlreichen Formalismen geprägt und öffnete sich erst nach und nach einer stärker materiellen Betrachtungsweise, die schließlich in der justinianischen Formfreiheit mündete. Das senatusconsultum Neronianum de legatis gilt dabei als erster Schritt einer Annäherung zwischen den einzelnen Legatstypen1, welche zunächst ganz unterschied­lichen Voraussetzungen unterlagen und damit in der Praxis offenbar erheb­liche Schwierigkeiten bereiteten. So war es nach ius civile insbesondere nicht ­möglich, Gegenstände mittels Vindikationslegat zu vermachen, die nicht im Eigentum des Erblassers standen; ein Beschaffungslegat in Form eines Damnationslegats hingegen war durchaus wirksam. Hier setzte die Bestimmung

Local traditions v. academic law: collateral rights on movables in Holland (c. 1300-c. 1700) (Dave De ruysscher & Ilya Kotlar)
In the County of Holland, in the sixteenth and seventeenth centuries the rules regarding security interests in movables changed fundamentally. Rules of doctrine came to be combined with rules found in local law, that is the bylaws of cities and regions. This went together with the re-interpreting of fragments of older bylaws. In 1631 Grotius’ Inleidinghe categorized the lien of the unpaid seller after delivery of the merchandise sold as entailing a reivindicatio. This new rule was adopted in cities in Holland, even though it ran counter the earlier approach that third-party effects of sales in this regard were very limited. Also, the new line of thought that holders with a legitimate title did not respond to pledgees pushed out older conceptions on tracing for some special pledges. In their legal writings Dutch authors after Grotius attempted to construe consistent solutions; in the legislative practice of cities, older rules could be preferred over new ones. Bylaws of cities, to which authors of Roman-Dutch doctrine referred as well, stipulated limits on tracing by unpaid sellers. All the mentioned developments were not determined by changes in the market, even though they could be incited by them. Legal change in Holland, even in the Golden Age of the seventeenth century, was due more to the embracing of academic ideas than to responsiveness to economic conditions.

Patent and innovation during the Industrial Revolution in England. Reflections on Josiah Wedgwood (1730-1795) (Deming Liu)
The article explores the role of patent or lack thereof in Josiah Wedgwood’s business. It first discusses the motive behind his opposition of extension of Richard Champion’s patent and then delves into his defence of his own patent in the dispute with the alleged infringer. It aims to show the incongruence of words and deeds of a tradesman with respect to patents; more importantly, it sets out to demonstrate that the claim of patent as an incentivising measure does not bear out as far as Wedgwood is concerned; rather, it is lack of patent protection that facilitates innovation in his pottery business.

Entrenchment Clauses in the History of Modern Constitutionalism (Michael Hein)
This article examines the origins, differentiation, and migration of constitutional entrenchment clauses from the beginning of modern constitutionalism until today. It is based on a broad understanding of ‘entrenchment clauses,’ covering all constitutional provisions that make amendments either to certain parts of a constitution or under certain circumstances more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. In particular, the article answers three questions: (1) When, and in which contexts, did the different types of constitutional entrenchment clauses emerge? (2) How have these types spread globally? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfill? The article is based on the new and unique Constitutional Entrenchment Clauses Dataset (CECD), which comprises 860 written national constitutions worldwide from 1776 until the end of 2015.

‘Strasbourg was something new, it was an adventure’. A history of the Belgian cases before the European Court of Human Rights in the 1960s, 1970s and 1980s (Laurens Lavrysen)
In recent years, a burgeoning literature has focused on the history of human rights in general and the history of the European Convention on Human Rights (ECHR) in particular. In order to understand how the ECHR gradually managed to gain authority in diverse national settings, it is necessary to complement transnational historical perspectives with studies of national reception histories. The present article approaches the history of the ECHR in Belgium by focusing on the history of the Belgian cases in Strasbourg, which have played an important role in contributing to the ‘discovery’ of the ECHR in the Belgian legal system. On the basis of interviews with actors involved in the early cases against Belgium, it was possible to determine their position in the Belgian legal landscape as well as their motivations and aspirations in going to Strasbourg. Moreover, these interviews allowed gaining insight into the circumstances out of which litigation against Belgium arose.

Book reviews:
  • Kille mist. Het Nederlandse notariaat en de erfenis van de oorlog, written by R. Schütz, 2016 (P.L. Nève)
Nécrologie In memoriam Johannes Antonius Eligius Kuijs, 1952-2018 (Jan Hallebeek)

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