Legal History Library – serie

In May It Please the Court, artist Xavier Cortada portrays ten significant decisions by the Supreme Court of the United States that originated from people, places, and events in Florida. These cases cover the rights of criminal defendants, the rights of free speech and free exercise of religion, and the powers of states. In Painting Constitutional Law, scholars of constitutional law analyse the paintings and cases, describing the law surrounding the cases and discussing how Cortada captures these foundational decisions, their people, and their events on canvas. This book explores new connections between contemporary art and constitutional law. Contributors are: Renée Ater, Mary Sue Backus, Kathleen A. Brady, Jenny E. Carroll, Erwin Chemerinsky, Xavier Cortada, Andrew Guthrie Ferguson, Leslie Kendrick, Corinna Barrett Lain, Paul Marcus, Linda C. McClain, M.C. Mirow, James E. Pfander, Laura S. Underkuffler, and Howard M. Wasserman.

This comprehensive volume offers fresh insights on Latin American and Caribbean law before European contact, during the colonial and early republican eras and up to the present. It considers the history of legal education, the legal profession, Indigenous legal history, and the legal history concerning Africans and African Americans, other enslaved peoples, women, immigrants, peasants, and workers. This book also examines the various legal frameworks concerning land and other property, commerce and business, labor, crime, marriage, family and domestic conflicts, the church, the welfare state, constitutional law and rights, and legal pluralism. It serves as a current introduction for those new to the field and provides in-depth interpretations, discussions, and bibliographies for those already familiar with the region’s legal history.Contributors are: Diego Acosta, Alejandro Agüero, Sarah C. Chambers, Robert J. Cottrol, Oscar Cruz Barney, Mariana Dias Paes, Tamar Herzog, Marta Lorente Sariñena, M.C. Mirow, Jerome G. Offner, Brian Owensby, Juan Manuel Palacio, Agustín Parise, Rogelio Pérez-Perdomo, Heikki Pihlajamäki, Susan Elizabeth Ramírez, Timo H. Schaefer, William Suárez-Potts, Victor M. Uribe-Uran, Cristián Villalonga, Alex Wisnoski, and Eduardo Zimmermann.

Throughout Europe, the exercise of justice rests on judicial independence by impartiality. In Reason and Fairness Ulrike Müßig reveals the combination of ordinary judicial competences with procedural rationality, together with the complementarity of procedural and substantive justice, as the foundation for the ‘rule of law’ in court constitution, far earlier than the advent of liberal constitutionalism. The ECHR fair trial guarantee reads as the historically-grown consensus of the functional judicial independence. Both before historical and contemporary courts, justice is done and seen to be done by means of judgements, whose legal requirements combine the equation of ‘fair’ and ‘legal’ with that of ‘legal’ and ‘rational.’ This legal determinability of the judge’s fair attitude amounts to the specific (rational) European idea of justice.

The Development of Commercial Law in Sweden and Finland provides a broad perspective on recent research into the history of North European commercial law in a comparative and international framework. The book brings together themes that have previously been considered largely from a national perspective.Despite Sweden's and Finland's peripheral locations in Europe, global legal phenomena took place there as well. These countries were at the crossroads of cultures and commercial interests, allowing us to re-examine them as lively laboratories for commercial laws and practices rather than dismissing them as a negligible periphery. The importance of trade and international transactions cannot be disclaimed, but the book also emphasizes the resilient nature of commercial law.Contributors are: Dave De ruysscher, Stefania Gialdroni, Ulla Ijäs, Marko Lamberg, Heikki Pihlajamäki, Jussi Sallila, and Katja Tikka.

How did people solve their disputes over debt, compensation, inheritance and other civil matters in early China? Did they go to court? How did the authorities view those problems? Using recently excavated early Chinese legal materials, Zhang Zhaoyang makes the compelling argument that civil law was not only developed, but also acquired a certain degree of sophistication during the Qin and Han dynasties. The state promulgated detailed regulations to deal with economic and personal relationships between individuals. The authorities formed an integral part of the formal justice system, and heard civil cases on a regular basis.

Based on consilia and decisiones, Wouter Druwé studies the multinormative framework on loans and credit in the Golden Ages of Antwerp and Amsterdam (c. 1500-1680). He analyzes the use of a wide variety of legal financial techniques in the Low Countries, such as money lending and the taking of interest, the constitution of annuities, cession and delegation, bearer bonds, bills of exchange, partnerships, and representation in financial affairs, as well as the consequences of monetary fluctuations. Special attention is paid to how the transregional European system of learned Roman and canon law (ius commune) was applied in daily ‘learned legal practice’. The study also deals with the prohibition against usury and with the impact of moral theology on legal debates.

The driving force of the dynamic development of world legal history in the past few centuries, with the dominance of the West, was clearly the demands of modernisation – transforming existing reality into what is seen as modern. The need for modernisation, determining the development of modern law, however, clashed with the need to preserve cultural identity rooted in national traditions. With selected examples of different legal institutions, countries and periods, the authors of the essays in the two volumes Modernisation, National Identity and Legal Instrumentalism: Studies in Comparative Legal History, vol. I: Private Law and Modernisation, National Identity and Legal Instrumentalism: Studies in Comparative Legal History, vol. II: Public Law seek to explain the nature of this problem.Contributors are Judit Beke-Martos, Jiří Brňovják, Marjorie Carvalho de Souza, Michał Gałędek, Imre Képessy, Ivan Kosnica, Simon Lavis, Maja Maciejewska-Szałas, Tadeusz Maciejewski, Thomas Mohr, Balázs Pálvölgyi, and Marek Starý.

In this monograph, Caroline Laske traces the advent of consideration in English contract law, by analysing the doctrinal development, in parallel with the corresponding terminological evolution and semantic shifts between the fourteenth and nineteenth centuries. It is an innovative, interdisciplinary study, showcasing the value of taking a diachronic corpus linguistics-based approach to the study of legal change and legal development, and the semantic shifts in the corresponding terminology. The seminal application in the legal field of these analytical methodologies borrowed from pragmatic linguistics goes beyond the content approach that legal research usually practices and it has allowed for claims of semantic change to be objectified. This ground-breaking work is pitched at scholars of legal history, law & language, and linguistics.

From the late eighteenth century, more and more men and women wished to marry their cousins or in-laws. This aim was primarily linked to changes in marriage concepts, which were increasingly based on familiarity. Wealthy as well as economically precarious households counted on related marriage partners. Such unions, however, faced centuries-old marriage impediments. Bridal couples had to apply for a papal dispensation. This meant a hurdled, lengthy and also expensive procedure. This book shows that applicants in four dioceses – Brixen, Chur, Salzburg and Trent – took very different paths through the thicket of bureaucracy to achieve their goal. How did they argue their marriage projects? How did they succeed and why did so many fail? Tenacity often proved decisive in the end.

In the history of the development of Polish law and administration, the short period of the constitutional Duchy of Warsaw, and next of the Kingdom of Poland, was a special time. This is because it was the only moment in the 19th century when the Polish elites gained an opportunity to concentrate their efforts on the organization of the modern state machinery. This book presents the process of restructuring the administrative structures following the collapse of the Napoleonic Duchy of Warsaw and before the establishment of the Kingdom of Poland in 1815. The author focuses on the approach of the Polish elites to the nascent modern state, increasing importance of administration within it and to the young Polish bureaucrats.

Colonial Adventures: Commercial Law and Practice in the Making addresses the question how and to what extend the development of commercial law and practice, from Ancient Greece to the colonial empires of the nineteenth and twentieth centuries, were indebted to colonial expansion and maritime trade. Illustrated by experiences in Ancient Europe, the Americas, Asia, Africa and Australia, the book examines how colonial powers, whether consciously or not, reshaped the law in order to foster the prosperity of homeland manufacturers and entrepreneurs or how local authorities and settlers brought the transplanted law in line with the colonial objectives and the local constraints amid shifting economic, commercial and political realities.Contributors are: Alain Clément (†), Alexander Claver, Oscar Cruz-Barney, Bas De Roo, Paul du Plessis, Bernard Durand, David Gilles, Petra Mahy, David Mirhady, M. C. Mirow, Luigi Nuzzo, Phillip Lipton, Umakanth Varottil, and Jakob Zollmann.

This volume explores familial wealth arrangements and gendered property from the fourteenth to the nineteenth centuries in Italian, German and Austrian territories (including Florence, Trento, Tyrol, and Vienna), Nordic countries, Western Pyrenees, and England. Family property as capital in the form of houses, land, movables, financial assets, and rights were of great importance in the past. Arrangements of such property were characterised by a high degree of negotiating competence but likewise they entailed competition between the parties involved and were highly conflict prone. Fifteen contributors from Austria, Finland, France, Germany, Italy, and the UK address different marital property regimes in relation to the practices and legal regulations of inheritance patterns with consideration to inter-familial negotiation, conflict, and resolution. Contributors are: Marie-Pierre Arrizabalaga, Laura Casella, Isabelle Chabot, Siglinde Clementi, Simona Feci, Ellinor Forster, Andrea Griesebner, Christian Hagen, Margareth Lanzinger, Janine Maegraith, Silvia Mattivi, Beatrice Moring, Craig Muldrew, Regina Schäfer, and Georg Tschannett.

This book fills a significant gap in our current understanding of early modern Scottish history. It is the first systematic consideration of the workings of seigneurial courts of feudal lords in 18th century Scotland. For several hundred years, these courts were one of the main forums for justice across Europe. Until 1748, Scottish courts of barony and regality handled both criminal complaints and civil disputes; they made by-laws and levied taxes; they set wages and enforced morality. The 18th century was a time of epoch-defining events in Scotland, such as the Jacobite rebellions, and union with England. The amount of literature on this period of Scottish history is extensive; it is therefore remarkable that the story of these courts has been left untouched.

In 1807 Napoleon Bonaparte created the Duchy of Warsaw from the Polish lands that had been ceded to France by Prussia. His Civil Code was enforced in the new Duchy too and, unlike the Catholic Church, it allowed the dissolution of marriage by divorce. This book sheds new light on the application of Napoleonic divorce regulations in the Polish lands between 1808-1852. Unlike what has been argued so far, this book demonstrates that divorces were happening frequently in 19th century Poland and even with the same rate as in France. In addition to the analysis of the Napoleonic divorce law, the reader is provided with a fully comprehensive description of parties as well as courts and officials involved in divorce proceedings, their course and the grounds for divorce.

Behind the controversies that have marked the history of the idea of Economic Constitution emerges the highly political issue of the room for manoeuvre left to public authorities in the economic sphere. The notion thus encapsulates a fundamental tension: between democracy and rule of law, which model of legal ordering of the economy should prevail?From physiocrats to neo-liberals, from the Weimar Republic to European integration, from national constitutions to Global Governance, this collective book invites us to explore the genealogy of the controversial concept of Economic Constitution. The result of this interdisciplinary dialogue is a comprehensive reflection on the legal and political issues at stake in the current constitutionalization of the market order in Europe.Contributors are: Philippe Steiner, Guillaume Grégoire, Hugues Rabault, Peter C. Caldwell, Thomas Biebricher, Werner Bonefeld, Serge Audier, Vincent Valentin, Pieter van Cleynenbreugel, Xavier Miny, Frédéric Marty, Claire Mongouachon, Hans-Wolfgang Micklitz, Francesco Martucci, Michael Wilkinson, Hjalte Lokdam, Susanna Maria Cafaro, Peter Lindseth, Cristina Fasone, Pierre Nihoul, François Colly, Peter-Christian Müller-Graff, Tony Prosser, Damien Piron, Mahmoud Mohamed Salah, Stephen Gill, Thibault Biscahie, Sebastien Adalid, and Christian Joerges. Derrière les controverses qui jalonnent l’histoire de l’idée de Constitution économique émerge la question éminemment politique de la marge de manœuvre laissée aux autorités publiques dans la sphère économique. La notion cristallise ainsi une tension fondamentale : entre démocratie et État de droit, quel doit être modèle d’organisation et d’ordonnancement juridique de l’économie?Des physiocrates aux néolibéraux, de la République de Weimar à l’intégration européenne, des constitutions nationales à la Global Governance, cet ouvrage collectif nous invite dès lors à explorer la généalogie du concept polémique de Constitution économique. Les auteurs ouvrent alors, à travers un dialogue interdisciplinaire constant, une réflexion globale autour des enjeux juridiques et politiques du processus actuel de constitutionnalisation de l’ordre de marché en Europe.

This volume offers an extensive introduction to Western legal traditions from antiquity to the twentieth century. Drawing from a variety of scholarly writings, both in English and in translation, thirteen leading scholars present the current state of western legal history research and pave the way for new debates and future study. This is the ideal sourcebook for graduate students, as it enables them to approach the key questions of the field in an accessible way.Contributors are: Aniceto Masferrer, C.H. (Remco) van Rhee, Seán P. Donlan, Stephan Dusil, Gerald Schwedler, Jean-Louis Halpérin, Jan Hallebeek, Agustín Parise, Heikki Pihlajamäki, Dirk Heirbaut, Bernd Kannowski, Adolfo Giuliani, Olivier Moréteau, and Jacques Vanderlinden.

This book is a summary of the extensive research by the co-authors on the validity and application of the 1804 French Civil Code in the Free City of Cracow (1815-1846), the Polish constitutional city-state established at the Congress of Vienna. From the wealth of case-law and legal practice of the Cracovian Republic emerges a picture in which its inhabitants were consciously and consistently building the structure of a modern state. As far as was possible amid the realities of post-feudal society, this state was already based on the rule of law. One of the basic elements of this legal structure was precisely the Napoleonic Code, which established the framework for the private law of the Free City, and made it a very small, but important, part of European legal heritage.

Starting in Louisiana in the early nineteenth century, this book takes the reader on a journey through the USA and the development of their civil codes. From Georgia and New York, civil codes traveled to California and Dakota Territory; in the Great Plains, they made their way to Montana, North Dakota, and South Dakota by the end of the century.Unveiling the history of nineteenth-century civil codes in the USA, this book examines their origin stories, circulation, and usage by focusing on the social-historical context of their drafting and legal concepts.“Rocheton's work, published four decades after Cook's book on ‘The American Codification Movement,’ contains an exhaustive and insightful analysis of nineteenth-century civil codes. It thoroughly discusses their context, how they were conceived, discussed, drafted and approved, their main foreign influences and content, and their practical operation." - Aniceto Masferrer, University of Valencia“While there is a vast corpus of literature on codification and, more specifically, civil codes in the civil law tradition, it is much less known that six US states codified their private laws during the 19th century. This book tells the fascinating story. Spoiler alert: it’s a family affair.” - Stefan Vogenauer, Max Planck Institute for Legal History and Legal Theory

Lawyers in Scotland in the later sixteenth century took a disproportionate interest in the law governing maritime commerce. Some essays in this collection consider their handling of the subject in treatises they wrote. Other essays, however, show that disputes relating to maritime trade were handled in a different way in the courts of the towns at which ships arrived. Further essays examine the relationship between these contrasting perspectives. Although the essays focus on the law governing maritime commerce in Scotland, they also contribute to a wider debate about the nature of maritime law in early-modern Europe.

On July 4, 1653, the Nominate or Barebones Parliament convened with a minority of committed radicals (Levellers and religious extremists) and a conservative majority of Cromwell’s allies. During acrimonious debates on law reform, the radicals demanded a condensed law book similar to the one adopted in Colonial Massachusetts.These mostly overlooked events reveal a radical wing of Puritanism determined to found a self-governing state, fully cognizant of the real possibility that England would interdict such attempts by force of arms. This work investigates the motives for such a hazardous undertaking, and the possible influences these events had on the colony’s posterity.

This wide-ranging collection of essays reflects the manifold scholarly interests of legal historian Charles Donahue, whose former students engage here with questions related to foundational Roman law concepts, the impact of the law on women and families in medieval and early modern Europe, the intersection of law and religion, and the echoes of legal ideas on later developments in American law and in world literature and philosophy. From the monks of Metz to the book sellers of colonial Boston, from fourteenth-century English charters to the writings of Faust, these essays invite you to experience law at once learned and lived.Contributors are: Charles Bartlett, Anton Chaevitch, Wim Decock, Rowan Dorin, Sally E. Hadden, Elizabeth Haluska-Rausch, Nikitas E. Hatzimihail, Samantha Kahn Herrick, Daniel Jacobs, Elizabeth Papp Kamali, Amalia D. Kessler, Saskia Lettmaier, Sara McDougall, Stuart M. McManus, Elizabeth W. Mellyn, Bharath Palle, Ryan Rowberry, Carol Symes, James R. Townshend, and John Witte, Jr.

In this book, it is argued that twenty regulae in title D. 50.17 of Justinian’s Digest are not the legal rules that scholarly wisdom has long held them to be, but are instead rhetorical arguments. As arguments, these regulae do not comfortably fit the modern perception of Roman law as a system and sometimes even appear to have no connection with law whatsoever. By explaining them in the context of rhetoric, and of Cicero’s Topica especially, the authors identify and reconstruct the original tenor of these twenty regulae as well as that of the famous regula Catoniana, stating their case for a paradigm shift in the study of Roman law in the process.

This book highlights the ideological aspects influencing the modern shape of private law in Central and Eastern Europe (CEE), examining Poland as a representative example given the shared historical trajectory of the 20th century across this region. In the historico-legal literature currently in international circulation, there is a dearth of studies on the development of modern positive law in CEE countries. This volume therefore aims to bridge this gap and deliver a more profound reflection on the long-term social, economic, and political role of private law in this region.

This volume is the first anthology to address the topic of the regulae iuris, or maxims of law, from a uniform methodological point of view. It approaches the regulae iuris as a dynamic system with an ever-evolving structure. The contributors of this volume, being among the leading experts in the field, look at the regulae both in their essence and in their expanding interrelationships, taking account of their changing social and cultural contexts. This volume places the crystallisation and evolution of legal rules within a history of ideas, spanning a wide historical period and going beyond the narrow confines of the history of legal thought.Contributors are: Ilya A. Kotlyar, Adolfo Giuliani, Maria Kola, David Deroussin, Piotr Alexandrowicz, Ger Coffey, Harry Dondorp, Emanuel G.D. van Dongen, and James R. Gordley.

The first codification of Polish court proceedings was made in 1523. Half a millennium later, the jurists in this volume have carefully analyzed the transformation of Polish civil procedure from then to the present day against the historical background of the development of modern European legal orders and institutions. This study is the result of the work of a research group established at the Jagiellonian University in Kraków, consisting of historical and modern jurists and scholars of civil procedure and private law.Contributors are: Grzegorz J. Blicharz, Andrzej Dziadzio, Radosław Flejszar, Krzysztof Fokt, Kacper Górski, Jan Halberda, Vincent R. Johnson, Izabela Lewandowska-Malec, Martin Löhing, Franciszek Longchamps de Bérier, Dorota Malec, Maciej Mikuła, Andrzej Olaś, Grzegorz Smyk, Kamila Staudigl-Ciechowicz, and Abdoul Yatera.

Natural Law and Domestic Government in the Early Modern Period examines how natural law informed evolving ideas of governance from the sixteenth to eighteenth centuries. Through case studies spanning France, the Low Countries, England, Iberia, and colonial America, this volume explores how jurists, theologians, and political thinkers grappled with questions of sovereignty and justice. Contributors analyse influential figures from Bodin and Coke to Tuldenus and Lipsius, tracing how natural law intersected with legal concepts of rights, obligations, contracts, and associations. By uncovering diverse and contested uses of natural law, this collection offers a nuanced account of its enduring role in shaping early modern statecraft and political thinking.Contributors are: Marie Seong-Hak Kim, Rafael Cronje Mateus, Jeffrey Dymond, Pedro Ricardo da Silva Santos, Geert Sluijs, Paolo Astorri, Lars Cyril Nørgaard, Rosalind Acland, Carlos Pérez-Crespo, Signy Gutnick Allen, Sarah Limão Papa, and Alain Wijffels.