JOURNAL: The Journal of Legal History XL (2021), nr. 1

 

(image source: ESCLH Blog)

Articles

Natural Law in Early Twentieth Century Ireland – State (Ryan) v Lennon and its Aftermath (Thomas Mohr) OPEN ACCESS
DOI 10.1080/01440365.2021.1893946

Abstract:

This article examines the relationship between natural law and Irish law held by constitutional drafters, academic commentators and judges in the early twentieth century. References to natural law values in interpreting Irish law were not acceptable before 1922 when the entire island of Ireland remained part of the United Kingdom. The emergence of the self-governing Irish Free State in 1922 did not immediately change this position and natural law was limited to a peripheral position during the drafting of the first Irish Constitution. This article examines how and why the use of natural law by the Irish courts became increasingly acceptable by the middle of the twentieth century. It will also examine the connection between the drafting of the 1922 Constitution of the Irish Free State and the 1934 judgment of the Supreme Court in State (Ryan) v Lennon. This provides a new perspective on the judgments delivered in this case and on the origins of the use of natural law in interpreting Irish constitutional law. The article will also examine the legacy of State (Ryan) v Lennon, the position of natural law in the 1937 Irish Constitution and the evolving position of natural law in the decades that followed.

The Matrimonial Family in Byzantine Imperial Law: An Overview from Late Antiquity Until the Tenth Century AD (Manuel Vial-Dumas)
DOI 10.1080/01440365.2021.1893947
Abstract:

This article analyses the representation of the matrimonial family in Byzantine legislation. It provides an overview of the basic structures of the system from the time of Constantine the Great until the tenth century. The article considers the elements that can be seen in both the ideal conception provided by imperial law and the customs that imperial legislation recognized even when they differed from the ideal representation. In this reconstruction two types of matrimonial family are discussed: one that involves the transfer of property between families of origin and one that does not. From the matrimonial family, constituted without transfer of property, the logic behind the structure of exchange between families can be understood. This is especially revealing as regards its purpose, namely, the protection of the children and the surviving spouse and the conservation of the matrimonial family’s inheritance.

‘By Fraud and Collusion’: Feudal Revenue and Enforcement of the Statute of Marlborough, 1267–1526 (Ashley Hannay)
DOI 10.1080/01440365.2021.1893948
Abstract:

Following the Statute of Marlborough 1267, feoffments which were designed to deprive lords of wardship could in some circumstances be deemed ‘collusive’ or ‘fraudulent’. This was further complicated from the mid-fourteenth century onwards by the common practice of creating uses to circumvent the common law rules prohibiting the devise of land by last will. The effect of uses being created to perform last wills was that lords, in particular the king, were losing out on their feudal incidents. The current view, put forward by legal historians, is that the Crown struggled to enforce the Statute of Marlborough after 1410, and that the ‘campaign’ against this loss of feudal revenue began in the 1520s. This article seeks to re-examine this view, particularly in relation to how Marlborough and collusion were understood and the Crown’s approach to the avoidance of feudal incidents before the Statute of Uses 1536.

Scottish Legal History Group Report 2020

Migrations of Manuscripts 2020 (Sir John Baker)

Book reviews

• Law and Society in England 1750–1950 by William Cornish, Stephen Banks, Charles Mitchell, Paul Mitchell and Rebecca Probert, Oxford, Hart Publishing, 2019, 2nd ed., lvii + 721 pp. (including index)., £39.99 (paperback), ISBN 9781849462730 (Ciarian McCabe) 

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