JOURNAL: Tijdschrift voor Rechtsgeschiedenis/The Legal History Review/Revue d'Histoire du Droit XCII (2024), nr. 3-4

(image source: Brill)

Articles

Revisiting possessio naturalis and possessio civilis in Roman law: a new perspective emerges? (João Costa-Neto)
DOI 10.1163/15718190-20243411
Abstract:

This is a brief critical assessment of the distinction between possessio naturalis and possessio civilis in Roman law. The text provides a concise historical outline of the distinction. Costa-Neto re-examines conventional perspectives concerning possession, including those proposed by Savigny, Jhering and Riccobono. It also examines the notion of possessio naturalis as proposed by D’Angelo and Klinck in recently published works. Costa-Neto underscores the differences from possessio civilis and mere detention and concludes that, even if a ‘quite dominant’ view basically reduces naturalis possessio to mere detention, a new trend is gradually emerging: naturalis possessio as an independent and separate institution, distinct from detention.

The Libri feudorum Review of a new edition of the Latin text and a new translation into English, with a survey of the formation of the Libri feudorum and their Glossa ordinaria, of manuscripts, printed editions and previous translations (Jeroen M.J. Chorus)
DOI 10.1163/15718190-20243412
Abstract:

This article mainly reviews Attilio Stella’s new edition of the Latin text of the Libri feudorum and his new English translation thereof. Additionally, it seemed useful to recall and summarize Peter Weimar’s authoritative and convincing views regarding the notoriously complicated history of the formation of the Libri feudorum and their Glossa ordinaria. Moreover, some remarks are made on the surviving medieval manuscripts and the printed editions (1472–1896) of the Latin text. Previous translations into various languages (1493–2016) are discussed. Stella’s new translation is then addressed. It may be called sound and solid. It is but rarely that some nuance does not return in the translation. If the choice of Lehmann’s Latin text (1896) is debatable, its inconvenience has been compensated by references to Osenbrüggen’s standard edition (1840). Stella’s annotation to the translation is rich and ingenious and gives delightful explanations of many unclear or ambiguous passages.

Book reviews 

• J.D. Ford, The emergence of privateering. [Legal history library, 62; Studies in the history of international law, 24]. Brill / Nijhoff, Leiden – Boston 2023. X + 416 p. (Alain Wijffels)
• S. Longfield Karr, Jus Gentium in humanist jurisprudence, On justice and right. [History of European political and constitutional thought, 9]. Brill, Leiden – Boston [2022]. 400 p. (Gaëlle Demelestre)

Kroniek / Chronique / Chronicle

Articles

In memoriam Liesbeth Josephina van Soest-Zuurdeeg, 1939–2024 (Marguerite Duynstee)
DOI 10.1163/15718190-20243401
First paragraph:

Op 30 mei 2024 overleed te Leiden Dr Liesbeth van Soest-Zuurdeeg, de ‘stille kracht’ achter het Tijdschrift voor Rechtsgeschiedenis, die zich 60 jaar lang met zeer veel toewijding voor het Tijdschrift heeft ingezet. Geboren op 15 februari 1939 te Amsterdam, heeft zij een groot deel van haar jeugd in Utrecht doorgebracht waar zij het Stedelijk Gymnasium bezocht en in 1957 het diploma Gymnasium α behaalde.

Die Gottesmutter als Schiedsrichterin Michael Psellos, Rede auf das in den Blachernen geschehene Wunder (Dieter R. Simon & Diether R. Reinsch)
DOI 10.1163/15718190-20243402
Abstract:

Among the numerous writings that Psellos left behind, there is small but significant number of legal works. In the speech edited here, which was written und delivered on behalf of Emperor Michael vii Doukas, the focus is on a private arbitration procedure. The unusual and novel aspect lies on the fact that the Virgin Mary herself was appointed as the arbitrator. Psellos provides a detailed description of the approach, course and outgoing of this unique process.

Salvation and the Roman empire: Eusebius of Caesarea on pastoral peace and the martial shepherd (Francesco Rotiroti)
DOI 10.1163/15718190-20243403
Abstract:

The present article is the first in a diptych looking at the pastoral characterisation of Constantine in the works of Eusebius of Caesarea through the lens of institutional theory. Through pastoral discourse, I argue, Eusebius systematises key elements of the policy and functions of the first Christian emperor, thus contributing to the institutional construction of the early Christian basileiā. Central to this construction are pastoral narratives of peace and warfare, drawn from earlier traditions but revisited and remodelled. By identifying the so-called pax Constantiniana with the pastoral peace preannounced by the prophets, Eusebius’ panegyric at Tyre, in particular, repositions the Roman empire within the conceptual framework of Christian soteriology. The perceived peace of the empire becomes a juncture of salvation history, brought about by the divine shepherd through the agency of the pious emperors. Eusebius’ later works reiterate the association of the pastoral metaphor with warfare already articulated in the panegyric at Tyre, but also innovate it significantly, as the soteriological underpinning of the shepherd’s military engagement becomes increasingly blurred.

A Biscayan jurist in the Renaissance Fortún García de Ercilla (ca. 1486–1534) and the echo of his homeland’s legal and political culture on De pactis (1514) (Mikel Mancisidor)
DOI 10.1163/15718190-20243404
Abstract:

Fortún García de Ercilla (Fortunius) was a quite known jurist in his century, quoted and discussed by some significative authors of his time. He was also a politician with relevant mandates in the service of Emperor Charles v. However, his name faded away in the following centuries. It is only very recently that his contributions to different areas of law, as well as to Castilian and Navarrese politics, have been vindicated. This article a) begins with a brief outline of his hitherto insufficiently well-known biography; b) proposes an updated list of his written works, including news of two recent findings, and places him as an actor in the communicative process that sixteenth century law was; and c) defends the hypothesis that the political and legal culture of his homeland, and the specific position of his lineage, allows a better understanding of some of the implications the topic of his first work, De Pactis (1514), had for him.

Struggling for legal primacy in the Zwin: Bruges and Sluys, 1492–1520 (Femke Gordijn)
DOI  10.1163/15718190-20243405
Abstract:

This article examines a series of conflicts between the city of Bruges and its main outport Sluys brought before the Council of Flanders and the Great Council of Malines around the turn of the sixteenth century. Although Bruges’ commercial successes declined during this period, the previously consolidated hierarchical relationships with Sluys persisted as the courts continuously judged in Bruges’ favour. This contribution attempts to expose the underlying legal dynamics that determined Bruges’ continued primacy over its outport.

Co-ratification in practice The Treaty of the More and the city of Rouen (1525) (Daniel Bökenkamp)
DOI 10.1163/15718190-20243406
Abstract:

This contribution examines the role of the city of Rouen in the co-ratification of the Treaty of the More in 1525. On looking into the deliberations of Rouen’s city council, this article provides a local perspective into the participation of cities in treaty processes, challenging the traditional view that such affairs were solely the domain of monarchs and their courts. This contribution analyses the correspondence of the Regent of France, Louise of Savoy, and the council of Rouen. The findings reveal how Rouen’s City Council balanced loyalty to the French crown with efforts to preserve local interests, using diplomatic channels and delaying tactics. This case-study illustrates the complexity of power politics in 16th-century France, where cities like Rouen played a significant, yet often overlooked, role in shaping international agreements. The article contributes to broader historiographical debates on the development of modern diplomacy and the agency of cities.

Droit au coeur de la science politique Le ‘Trésor’ de Jean de Chokier, canoniste liégeois (1571–1656) (Wim Decock)
DOI 10.1163/15718190-20243407
Abstract:

This article serves as a prolegomenon to further studies on the political and legal thought of Jean de Chokier (1571–1656). Trained in Roman law and canon law at the University of Orléans, he became one of the most prominent canon lawyers, political thinkers and humanist scholar of the Principality of Liège, an Imperial State situated in the Western part of the Holy Roman Empire. Author of major works in canon law, history and political science, he became vicar general of the Diocese of Liège under Prince-Bishops Ferdinand and Maximilian-Henri of Bavaria, successively. He belonged to the Neo-Stoic network around Justus Lipsius (1547–1606), the humanist jurist from Overijse. Inspired by this intellectual movement, Chokier published legal, political, historical and literary treatises next to performing his duties as an ecclesiastical administrator. His life and writings reflect the osmosis between humanist erudition, political commitment and legal knowledge that characterized the careers of many of the great jurists of the sixteenth and seventeenth centuries. Considering that Chokier was foremostly trained as a canon lawyer and also professionally active in this domain, this article invites readers to take a fresh look at Chokier’s political and juridical oeuvre from a canon law perspective. 

Courts and judicial transformation in modern China The architecture of the late Qing dynasty Daliyuan and local courts (Tao Han and Li Chen)
DOI 10.1163/15718190-20240301
Abstract:

The Daliyuan and the local courts in the late Qing dynasty served as the loci of judicial power in the early days of modern China. Following the doctrine of separation of powers, these judicial organs emerged during the preparation for constitutionalism and the quest for judicial independence in the late Qing dynasty. The government brushed aside the standard design of the government office, drawing inspiration from the designs of the highest courts in constitutional states in the East and West. Despite the financial constraints, significant funding was allocated to the construction of the Daliyuan premises. The grand and majestic Western-style structure was designed for high purposes. In addition to its customary functions, it was also entrusted with a political mission – impressing the world writ large with the successes of judicial reform and the image of China’s new-fangled judiciary. Due to a lack of funding, the local courts had downsized architecture, yet they still incorporated Western styles, mirroring the design of the Daliyuan. The transformed style of these courts offers insight into the prevailing philosophy of the reform and the new regime. It also illuminates the tension and fusion of legal culture that contributed to the modernization of the Chinese legal system.

Le travail forcé au Congo (1960–2001): entre décolonisation du droit et vestiges du joug du droit colonial belge (Christian Via Balole)
DOI 10.1163/15718190-20243409
Abstract:

This article examines the enduring influence of Belgian colonial law on forced labour in the Congo, particularly in the context of the process of decolonising Congolese law. It demonstrates two key points: first, that remnants of colonial law persisted beyond colonisation, and second, that these remnants shaped the development of new legal frameworks by an independent Congo to perpetuate the exploitations of the Congolese population. The analyses reveal a stark contrast between the pro-independence rhetoric advocating freedom of labour by repealing colonial law and the post-colonial law that continues the subjugation of the Congolese people. Ultimately, the article highlights the damaging influence of the former coloniser, which impeded the new Congolese state’s ability to implement a truly sovereign policy. Conversely, this enduring influence provided a pathway for President Mobutu to seize power and further advance the exploitative economic of the Congo and its people rooted in Belgian colonial law.

Not Feuerbach: the origin of the adage Nulla poena sine lege in the Ancien Régime (François Pierrard)
DOI 10.1163/15718190-20243410
Abstract:

The expression Nulla poena sine lege is one of the most widely used Latin legal adages in the world. It is one of the formulas of the principle of the legality of offences and penalties. Lawyers and legal historians unanimously date its invention from 1801 and attribute it to Paul Johann Anselm von Feuerbach (1775–1833), the promoter of the Bavarian Criminal Code of 1813, which served to disseminate it. However, a consultation of the archives held at the Haus-, Hof- und Staatsarchiv in Vienna has forced us to revise this conclusion. The first occurrence found dates back to 1777, but the adage appears to be even older, as it was already considered a maxim in the Austrian Netherlands. Originally, the adage Nulla poena sine lege does not seem to have had the positivist and legicentrist connotation that it has had since the 19th century. 

 Read the full issue here.