Pub Date : 2020-12-23DOI: 10.1163/15718190-08834p14
P. Néve
{"title":"Die Akten des Kaiserlichen Reichshofrats, Serie II: Antiqua, Band 5: Karton 425-516, edited by W. Sellert, 2019","authors":"P. Néve","doi":"10.1163/15718190-08834p14","DOIUrl":"https://doi.org/10.1163/15718190-08834p14","url":null,"abstract":"","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":"14 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2020-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82203318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-13DOI: 10.1163/15718190-00880a14
W. Zwalve, T. D. Vries
In an earlier edition of Tijdschrift voor Rechtsgeschiedenis we have contended that Justinian’s Digest was composed on the basis of Ulpian’s Libri ad Edictum and the peculiarities and special exigencies of the legal curriculum. It was also contended that the distribution of the fifty books over the seven partes of the Digest was based on a mathematical formula, complicated by the fact that Justinian (Tribonian) had decided to assign four books to the first pars (Ta prota) and 36 to the first five partes together according to ‘the nature and science of numbers’ (natura et ars numerorum). This article offers some additional arguments supporting our thesis and concentrates on the composition of the quarta pars Digestorum, designated by Justinian himself as ‘The Navel’ (Umbilicus) of the entire composition. The hypothesis is that Tribonian composed the quarta pars Digestorum as a microcosm of the Digest as a whole and that he has been ‘juggling with numbers’ within the composition of ‘The Navel’ as he has ostensibly done in the composition of the Digest as a whole.
在《法学研究》的早期版本中，我们认为查士丁尼的《摘要》是在乌尔比安的《诏书》和法律课程的特殊性和特殊紧迫性的基础上写成的。还有人认为，《文摘》七部分的五十本书的分配是基于一个数学公式的，而查士丁尼(Tribonian)决定根据“数字的本质和科学”(natura et ars numerorum)，将四本书分配给前几部分(Ta prota)，将三十六本书分配给前五部分，这一事实使情况更加复杂。这篇文章提供了一些额外的论据来支持我们的论点，并集中在四分之一的部分，由查士丁尼自己指定为整个作品的“肚脐”(脐部)。假设特里博尼安将《四分之一的消化》作为《文摘》整体的缩影他在《肚脐》的创作中一直在"玩弄数字"就像他在《文摘》整体的创作中所做的那样。
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Pub Date : 2020-10-28DOI: 10.1163/15718190-00880a10
C. Maes, Brecht Deseure
The exact nature of the concept of sovereignty enshrined by the Belgian Constitution of 1831 has recently become the object of academic debate. This article takes a stand in this debate by analyzing the representative system instated by the constituent National Congress. It is argued that the congressmen attributed primacy to the legislative Chamber because it concentrated in its midst all the individual wills of the people in order to express the general will or the wish of the Nation. Importantly, though, parliament was not the only representative of the national will, neither was it considered completely self-contained. Parliament’s expression of the national will was subject to constant evaluation by public opinion. When the assembly failed to respond to popular grievances, other representatives were qualified to address the issue: the king could disband the Chamber or pronounce his veto when the national interest required it. The jury, assessing press or political related crimes, could correct oppressive governmental action. And if all of this failed – and only then – the nation could ultimately resist and take directly matters in its own hands. Thus, it is argued that the character of sovereignty in the Belgian state system was ultimately popular.
{"title":"‘The Nation will always prevail’, Representation, participation and contestation in the Belgian Constitution of 1831","authors":"C. Maes, Brecht Deseure","doi":"10.1163/15718190-00880a10","DOIUrl":"https://doi.org/10.1163/15718190-00880a10","url":null,"abstract":"\u0000 The exact nature of the concept of sovereignty enshrined by the Belgian Constitution of 1831 has recently become the object of academic debate. This article takes a stand in this debate by analyzing the representative system instated by the constituent National Congress. It is argued that the congressmen attributed primacy to the legislative Chamber because it concentrated in its midst all the individual wills of the people in order to express the general will or the wish of the Nation. Importantly, though, parliament was not the only representative of the national will, neither was it considered completely self-contained. Parliament’s expression of the national will was subject to constant evaluation by public opinion. When the assembly failed to respond to popular grievances, other representatives were qualified to address the issue: the king could disband the Chamber or pronounce his veto when the national interest required it. The jury, assessing press or political related crimes, could correct oppressive governmental action. And if all of this failed – and only then – the nation could ultimately resist and take directly matters in its own hands. Thus, it is argued that the character of sovereignty in the Belgian state system was ultimately popular.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":"11 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2020-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78493762","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-28DOI: 10.1163/15718190-0880a13
Marc de Wilde
This article provides an analysis of an unpublished manuscript of Hugo Grotius, entitled De societate publica cum infidelibus, ‘On public partnership with infidels’. In the text, Grotius examines the legal conditions under which Christians may enter into treaties and alliances with non-Christians. Grotius’s text has been interpreted by Peter Borschberg and Martine van Ittersum as a justification of the Dutch commercial and military policies in the East Indies. However, as this article shows, Grotius probably conceived of De societate as a more general treatise, which related not only to the East Indian context, but also to the domestic debate about the legal position of non-Christians in the Dutch Republic. The same arguments that served as a justification for overseas expansionism could thus serve as a justification for religious toleration in the domestic context.
这篇文章提供了对雨果·格劳秀斯一份未发表的手稿的分析，题为De societate publica cum infidelibus，“论与异教徒的公共合作”。在文本中，格劳秀斯考察了基督徒可以与非基督徒缔结条约和联盟的法律条件。格劳修斯的文本被彼得·博尔施伯格和马丁·范·伊特瑟姆解释为荷兰在东印度群岛的商业和军事政策的理由。然而，正如本文所示，格劳秀斯可能认为《社会论》是一篇更普遍的论文，它不仅与东印度的背景有关，而且与荷兰共和国关于非基督徒法律地位的国内辩论有关。因此，作为海外扩张主义理由的同样论据，也可以作为国内宗教宽容的理由。
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Pub Date : 2020-10-26DOI: 10.1163/15718190-00880a11
Li Chen
This article retraces the beginnings of Roman law studies by Chinese students during the latter part of the 19th century. It relies on archival research in order to piece together the curricula and careers of three pioneering Chinese law students who first came to study law, including Roman law, in England, France, and China. Wu Tingfang’s legal training at an Inn of Court in London, Ma Kié-Tchong’s legal education at the University of Paris and Wang Chung Hui’s study at Peiyang University in Tianjin, all included a more or less in-depth exposure to Roman law. Ma Kié-Tchong’s wrote a thesis on Roman law in Latin. As the first surviving specimen of legal Latin written by a Chinese jurist, his work not only reflects Roman law studies in France in the 19th century, it also sheds light on the level of proficiency in legal Latin which a Chinese scholar could attain.
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Pub Date : 2020-10-26DOI: 10.1163/15718190-00880a12
Fernando Arlettaz
The League of Nations established, in the interwar period, a legal regime for the protection of minorities which considered them as intermeditate groups between the State and the individuals. On the contrary, the Universal Declaration on Human Rights, adopted in 1948 by the United Nations, assumed a radically individualistic point of view and did not include any mention to minority rights. The travaux préparatoires of the Universal Declaration suggest that the question of minorities caused strong tension among States and that, for this reason, they avoided its inclusion in the 1948 document.
{"title":"Les minorités dans la Déclaration Universelle des Droits de l’Homme, une absence délibérée","authors":"Fernando Arlettaz","doi":"10.1163/15718190-00880a12","DOIUrl":"https://doi.org/10.1163/15718190-00880a12","url":null,"abstract":"\u0000 The League of Nations established, in the interwar period, a legal regime for the protection of minorities which considered them as intermeditate groups between the State and the individuals. On the contrary, the Universal Declaration on Human Rights, adopted in 1948 by the United Nations, assumed a radically individualistic point of view and did not include any mention to minority rights. The travaux préparatoires of the Universal Declaration suggest that the question of minorities caused strong tension among States and that, for this reason, they avoided its inclusion in the 1948 document.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":"Suppl 2 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2020-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91143203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-25DOI: 10.1163/15718190-00880a09
D. Heirbaut
Summary 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.
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Pub Date : 2020-06-25DOI: 10.1163/15718190-08812p01
_ _
{"title":"Laurent Waelkens †","authors":"_ _","doi":"10.1163/15718190-08812p01","DOIUrl":"https://doi.org/10.1163/15718190-08812p01","url":null,"abstract":"","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":"43 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73325149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-25DOI: 10.1163/15718190-00880a07
Philipp Scheibelreiter
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.
{"title":"Zum Klagsziel der actio pigneraticia in personam contraria in D. 13,7,9pr.","authors":"Philipp Scheibelreiter","doi":"10.1163/15718190-00880a07","DOIUrl":"https://doi.org/10.1163/15718190-00880a07","url":null,"abstract":"\u0000 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.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":"75 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88196264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-25DOI: 10.1163/15718190-00880a02
J. 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.
{"title":"Failing to observe holy days","authors":"J. Kirkland","doi":"10.1163/15718190-00880a02","DOIUrl":"https://doi.org/10.1163/15718190-00880a02","url":null,"abstract":"\u0000 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.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":"74 6 1","pages":"122-148"},"PeriodicalIF":0.1,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87817056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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