30 June 2020

JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/The Legal History Review LXXXVIII (2020), nr. 1-2

(image source: Brill)

Laurent Waelkens † (De Dagelijkse Redactie/Le Comité de rédaction/The Editorial Committee) (open access)

Les traductions françaises des Commentaires de William Blackstone à la fin du XVIIIe siècle. Un chapitre de l'histoire de la découverte continentale de la common law anglaise (Filippo Ranieri)
The numerous translations through which the Commentaries on the Laws of England by William Blackstone – a milestone in the history of the common law – became known in France, and thus contributed for the first time to acquaint French jurists with English law, have been largely neglected by legal historians. The first section of the present contribution introduces the French anglophile visitors to England who, during the second half of the eighteenth century, disseminated the work of William Blackstone and its first translations in France. The biography and work of these first translators require a detailed examination. A second section assesses the influence of these translations, particularly in the legal and political debates on the English trial by jury in the context of revolutionary legislation. A third section considers the later translations of Blackstone’s work during the Napoleonic period and the following years. Finally, a call for further research outlines the impact of that translation literature.
A source of inspiration for legal historians: Raoul van Caenegem’s views on legal history (Dirk Heirbaut)
Although Raoul van Caenegem claimed otherwise, he had very strong views on what legal history should be. In his opinion, legal history belonged to the disciplinary field of history, not to law. The legal historian should not only chronicle past evolutions of the law, but also explain them. To this purpose, van Caenegem himself turned to sociology, trying to work with types and models in order to generalise. Van Caenegem rejected the idea of a Volksgeist and advocated to look at the European context in a comparative legal history. Nevertheless, his ‘Europe’ was limited to the founding members of the European Union, joined by England. He constructed legal history as a history of power and preferred to study groups of law makers instead of individuals. In his legal history, the European ‘Second Middle Ages’, from 1100 until 1750, stand out as the cradle of the modern rule of law, with a special role for the cities of medieval Flanders. Although well-known for a leading handbook promoting the idea of the ius commune, the common law of Europe, van Caenegem actually deemed custom to have been the primary source of law in medieval Europe, whereas the role of the ius commune had been, in his opinion, overestimated. As he showed many times during his distinguished career, van Caenegem wanted legal historians to take part in current debates. In the end, his main lesson from legal history was a plea for moderation, as taking a sound idea to its extreme leads to absurd or unintended consequences.
Die Schriftheimat von Vat. Reg. Lat. 886 (Codex Theodosianus libri IX-XVI) (A.J.B. Sirks) (open access)
It is generally assumed that the main manuscript of the Theodosian Code, Vat.Reg.Lat. 886, was copied in the 6th century in South-East Gaul, although Italy as provenance is not excluded. This manuscript contains marginal summaries, of which the origin is also attributed to Gaul. However, it can be shown that the largest group was made by one of the scribes (V2*) after 535 and before 554, on the very manuscript, that this was very likely done in Rome, and that the scribe was a Greek, perhaps a Byzantine official. This conclusion bears upon the provenance of Vat.Reg.Lat. 886. The errors in the Greek constitution CTh 9,45,4 imply that it cannot have been copied in the east. It must have been done in the west and not the Code, sent over in 437, was used (or else the Greek would be in order), but a copy of this Code, in which the scribe had misunderstood the Greek and made errors, which then figure in Vat.Reg.Lat. 886. The copying must have been done after 535 and just before the Summaria were made because the author of the Summaria was one of the correctors.
Zum Klagsziel der actio pigneraticia in personam contraria in D. 13,7,9pr. (Philipp Scheibelreiter) (open access)
In D. 13,7,9pr. (Ulp. 28 ad ed.) a debtor, who has handed over a res aliena as pledge to a creditor, will be sued with the iudicium contrarium. Whereas most handbooks of Roman law understand the aim of the actio pigneraticia contraria as the debtor’s duty to replace the res aliena by a new pledge, owned by the debtor, the sources do not necessarily lead to this conclusion. From the procedural perspective and the condemnatio pecuniaria of classical Roman law (instead of specific performance) this solution seems to be problematic and may have been developed under in any case influence of Justinianic law. Also on the basis of the concept of pignus as obligatio re contracta, it is submitted that the debtor’s obligation could only have concerned the alien thing itself; beside this, the aim of the actio contraria was compensation for the creditor’s damages.
Actor, colonus, conductor, procurator in einem Brief des Kaisers Honorius (Aldona Rita Jurewicz)
In this article the author presents three interpretations of the passage of emperor Honorius’ constitution that has been included in the Theodosian Code under the title quod iussu (CTh 2,31,1). The intention of the author is to prove the thesis that the emperor Honorius accepted a practically existing extension of the use of actio quod iussu to relations between landowners and overseers of the land property. Consequently the actio could be brought against the landowner or possessor of the land (dominus possessionis, cultor terrarum) on the ground that management personnel (servus, actor, conductor, colonus, procurator), regardless of their status libertatis, borrowed money with clear authorisation (iussum). The author does not share the opinion that the background of the emperor’s decision was the economic relation between the landowners and the management personnel.
Failing to observe holy days The evaluation of defense arguments in late medieval English ecclesiastical courts (Justin Scott Kirkland)
The implementation of canon law in the medieval ecclesiastical courts is an enigmatic issue. This article focuses on the types of defense arguments made by people accused of failing to observe holy days, as well as how courts judged such excuses. Even though failing to properly observe holy days – nonobservance – was a minor crime, the courts set a high standard when evaluating justifiable excuses for failing to observe holy days. The courts tended to reject most defense arguments. Despite the overall decline of the ecclesiastical courts in the late fifteenth and early sixteenth centuries, there was no decline in the high standards demanded by the courts in nonobservance cases.
Solórzano Pereira: la argumentación al modo del ius comune como práctica jurídico-cultural y política (Patrico Lazo)
The objective of this article is to characterize the argumental strategy of Juan de Solórzano Pereira in one of the chapters of the Política Indiana, by distinguishing the special features of his thought-structures and their goals. The methodology of this article is based on the Model-reader concept to characterize the adressee of Solórzanos’s work and to discover the effect he sought. Likewise, the article envolves the premise that historical legal argumentation rules are a meaningful manifestation of the Spanish colonial legal culture. The main outcome of this article is the evidence of the political function of Solórzanos’s legal argumentation.
Cassatieberoepen tegen criminele vonnissen en arresten in het Leiedepartement, 1796-1813 (Jos Monballyu)
In the department of the Lys, the cassation appeal against criminal judgments was introduced in 1796 and could be made by both the criminal convicts and the Public Prosecution Service. The first cassation appeal was lodged on 5 May 1796 and the last on 18 December 1813. In total, 187 (24%) of the 779 criminal judgments were appealed in cassation, in 172 cases by 319 criminal convicts and in 15 cases by the Public Prosecution Service. Of those 187 cassation appeals, 167 (89.3%) were rejected and 20 (10.7%) were accepted. In the latter cases, this led to the annulment of the contested judgment and, in most cases, the criminal proceedings were (partially) repeated for an equivalent, nearby criminal court.
Concepción Arenal and the place of women in modern international law (Ignacio de la Rasilla)
This article examines the long-forgotten first book-length treatise on international law ever published by a woman in the history of international law. The first part places Concepción Arenal’s Ensayo sobre el Derecho de gentes (1879) in the historical context of the dawn of the international legal codification movement and the professionalisation of the academic study of international law. The second part surveys the scattered treatment that women as objects of international law and women’s individual contributions to international law received in international law histories up to the early twentieth century. It then draws many parallels between Arenal’s work and the influential resolutions of the first International Congress of Women in 1915 and surveys related developments during the interwar years. The conclusion highlights the need of readdressing the invisibility of women in international legal history.
Book reviews:

  • La Loi des XII tables, Édition et commentaire, written by M. Humbert, 2018 By: A.J.B. Sirks
  • Ricerche sugli editti dei prefetti del pretorio del Cod. Bodl. Roe 18, Processo e documento, written by S. Schiavo, 2018 By: A.J.B. Sirks
  • « Es plantar un mondo nuevo », Légiférer aux anciens Pays-Bas (XIIe-XVIIIe siècle), written by Jean-Marie Cauchies, 2019 By: Serge Dauchy
  • Königliche Gerichtsbarkeit und Landfriedenssorge im deutschen Spätmittelalter, Eine Geschichte der Verfahren und Delegationsformen zur Konfliktbehandlung, written by H. Baumbach, 2017 By: P.L. Nève
  • Das Kleine Kaiserrecht, Text und Analyse eines mittelalterlichen Rechtsbuches, Leithandschrift der Fürstlichen Bibliothek Corvey, Bestandsaufnahme aller anderen Handschriften, Benennung Verfasser, Datierung, Quellen, Auswirkung, written by Dietlinde Munzel-Everling, 2019 By: P.L. Nève
  • Urkundenregesten zur Tätigkeit des deutschen Königs- und Hofgerichts bis 1451, Band 17: Die Zeit Ruprechts 1407-1410, B. Diestelkamp (Hrsg.), bearb. v. U. Rödel, 2019 By: P.L. Nève
  • Gemeine Bescheide, Teil 2: Reichshofrat 1613-1798, edited by P. Oestmann, 2017 By: P.L. Nève
  • Die Akten des Kaiserlichen Reichshofrats, Serie II: Antiqua, Band 4: Karton 278-424, W. Sellert (Hrsg.), bearb. v. T. Schenk, 2017 By: P.L. Nève
  • Fremde Traditionen des römischen Rechts, Einfluß, Wahrnehmung und Argument des «rimskoe pravo» im russischen Zarenreich des 19. Jahrhunderts, written by M. Avenarius, 2014 By: A.J.B. Sirks
Read more on Brill's website.

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