Volume 132, Issue 1

The Proxy, or: How Does a Face to Face Society Deal With Absence. In contemporary terminology of the late medieval social world, characterized by high spatial mobility as well as by legal pluralism, the proxy or agent represented a central legal instrument that allowed building bridges between both present and absent persons of different legal status. Agency was indispensable, because mobility often scattered the families - and in consequence the heritage - in all directions, and because for most merchants and artisans their affairs did not end at the town walls. This applied to nearly all branches of urban trade, not only to merchants, grocers, skippers or butchers engaged in livestock trade. Agency allowed to direct the circulation of money, goods and inheritance in legally secured paths beyond the town walls. This paper will focus on 340 proxy authorizations recorded in the Basel Liber judicij (1425-1437), an exceptional testimony, which lets the social profile of late medieval agencybe sharpened for the first time.

Entanglements and disentanglements. Differentiating and dedifferentiating law and religion, statute and legal reason in early modern natural law debates. The article reconstructs the connections between modern (17 th and 18 th century) natural law and the 15 th and 16 th century catholic natural law discourse. It is shown that the modern natural law was based on the work of catholic theologians who treated questions of conscience as legal issues. The natural law was then cut out of theology by Grotius and by later natural lawyers, who reformulated within the law what they perceived as the universal elements of catholic natural law. In those debates the natural lawyers established the - since then evident - differences between positive law and natural law on the one hand and between legal and religous natural law on the other. Yet, those debates did not concern a ‘secularization’ of natural law. Much more specifically, the natural lawyers disentangled the universal logic of law and those religious elements that could, in the confessional age, no longer be regarded as universal.

Moral Theology as a Pre-condition and Presupposition of Economic Ethics in Late Scholasticism. In the context of a rapidly developing economy, the late Spanish or Iberian scholasticism dealt with numerous ethical issues of economic life. The moral presuppositions and conditions of their ethical and legal decisions are important because moral theology was established as a discipline of its own right precisely in the wake of the School of Salamanca. The influence of Thomas Aquinas, as well as the nominalist School, on Iberian late scholasticism becomes apparent in its shift to the concrete and to the law. Three elements in particular are discussed in this essay: the interaction between law and morality; the discovery of history as a source of theological knowledge; and Probabilism as a moral theological method. On the basis of the natural law, the late Spanish scholastics defended private property against any encroachment by temporal or spiritual powers. In their value and price theory they focus on the just price, which they generally consider to be the market price, corrected by the requirements of the common good. The lasting importance of scholastic statements on the economy lies in their emphasis on its ethical dimension.

Salamanca in America. Legal History has been interested in the ‘School of Salamanca’ mainly because of its contributions to systematic and dogmatic legal thought. The School was seen as part of the history of legal scholarship. It was because of this perspective that it was considered to be a European phenomenon. In this article, I am proposing a complementary vision of the School. Drawing on an example of how the problem of usura was dealt with in late 16th century New Spain, I call attention to the practical dimension of the School; I intend to highlight its place in a history of ‘finding the law’ (Rechtsfindung); I want to point out that the School can be seen as a producer of erudite practices, especially considering its particular casuistry, which does not fit easily into the traditional history of continental European law as a history of systematization. Looking at these dimensions, the School of Salamanca seizes to be a European phenomenon, but turns out to be a network which stretches over continents. Thus, ‘Salamanca’ was also a part of Amerika.

Argument about legal fees in the early modern period. Part 1: Methodic foundation, advocates’ contracts and payment modalities. Early modern records of proceedings consist mainly of advocates’ legal papers. Nevertheless, one does know just a little about the procurators and advocates and their cooperation with the legal parties, especially if they were no aristocrats, but subjects. However, if the parties did not pay their advocate and the advocates then asserted their fee claim in court, a number of records of proceedings have regularly survived and provide full information about the advocate’s and client’s relation. Next to the proxy, there was the commission as actual advocates’ contract. Regardless of the normative standards, the procurators drafted their contracts mostly as continuing obligations in addition with a yearly fixed fee. The contribution analyses and compares the practical contracting at the Imperial Chamber Court with the Imperial Aulic Council and the Wismar Court of Appeal. Herein the Arrha, an additional item on the invoice, and the attempt to assert contingency fees come into focus. Methodically, the paper pleads in favour of the history of legal practice, which in its valuations renounces itself mostly from the standards of normative sources.

Writing, Paper and Law. Concerning the Transition in Storage Media in the Modern and Postmodern Eras - a Sketch. At present, certain fields of law experience a media transformation, which is well underway. As at the threshold of the late Middle Ages and the Early Modern era, the transfer of money and payment plays a leading role. But what is, intrinsically, this media transition? Legal history proofs that principles of the written form had taken effect already in the ancient world rather than only in the Early Modern era. The invention of letterpress printing was neither cause nor trigger of the written form, while influencing the theory of the close of writing: The “demise of writing” is not to be expected, as the current transition does not concern the writing itself but rather the storage medium. New legal development stems from the emancipation of writing from paper. Today, the role of the printed book in the future, or whether there will still be bank notes, or bank statement printers, and how notaries will certify marriage contracts, or last wills, or company agreements, is uncertain. Surely, the “materiality” of paper has a wider time horizon than electronic storage media. Paper can be restored. It stays without continuous new formatting. As for literacy, the enhancement of the mobile phone on keyboards and screens (“the eye’s victory over the ear”) is also a victory of writing over the spoken word. Therefore we may expect paper to stay important, but within a diversification of information storage media.

“Founder’s Crisis” and “Great Depression”. The Necessity of a New Historic Approach. Looking out for structural change in the economic order of the German Reich after 1870, the dominant literature hitherto presupposed a more or less dramatic “Great Depression”, which began 1873 and led to fundamental legal and economic changes. There is, however, no valid proof for such a depression. Instead most criteria rather suggest economic stability or even success until the 1890s. Similarly the axiomatic change, described mostly as “organized capitalism” and “State interventionism” or as turn to the social welfare state can hardly be detected in the Wilhelmine legislation. Instead, the belief in economic freedom remained strong, whereas competition was partly put under state control in order to “enhance” it in a moral way. Such measures established more stability and predictability and strengthened the market. The Reich ascertained in all its levels economic success and did not wait for entrepreneurs. And yet the enhanced state activism clung to the inherent liberal heritage, although often in a pragmatic and undogmatic way. This proves a strong path dependency particular of Prussian economic history

From Cooperative Society to Ethnic Community: German Legal Studies in Legal History during National Socialism. The history of Germanist legal historians during the era of National Socialism is a history of a declining scholarship. The old hierarchy amongst Germanists from the Weimar Republic had vanished, but even the pressure of the NS-state and its organizations did not lead to a new firm order. Although the Germanists adapted their scholarship to the Nazi ideology and although some of them were deeply involved in injustice, they had no really significant influence in the new regime. German legal history was confined to deliver the keywords for decisions of lawmakers and practitioners. Germanist scholarship survived, but at the cost of merely being a subordinate element in a dictatorship.

Breaking the Law as a Norm: Contours of Ideological Radicalism within the Nazi Dictatorship. This article analyzes the relationship between Nazi legal experts’ efforts to create a canon of constitutional law for the Third Reich and the ideological radicalism characteristic of Hitler and the SS-state. The attempts of legal professionals to establish “völkisch” constitutional law emerged out of the staunch anti-liberalism that had spread throughout Germany since the end of World War I. However, this “völkisch” constitutional law bore no resemblance to rational European legal thought. It not only proved to be ineffective for this reason, but also because the ideological radicalism that reigned supreme in the Third Reich sought to break the law and let lawlessness rule.

This contribution describes the life and work of an American law professor who writes about European legal history. It is a sad truth that American interest in European scholarship has been in steady decline for some decades. The author remains a believer in the fundamental importance of European legal history despite that; the contribution describes his quarter century of research in the United States, and his efforts, not always successful, to convince his colleagues that Europe matters. After beginning his career working on the German history of Roman law, the author was drawn into topics that spoke more directly to the dilemmas and oddities of American life. Many of those topics involved the comparative legal history of dignity; more recently they have included work on criminal procedure and the law of war.

Addendum to “German Law Books of the Middle Ages and their Manuscripts”. The article describes variations to the manuscripts and single leaves listed in U.-D. Oppitz’s “Deutsche Rechtsbücher des Mittelalters”, vol. II, Cologne 1990. It presents recently discovered manuscripts and single leaves of German-language customary law books. Special attention should be paid to No. 1214a, which contains sketches from a Zodiac manuscript on four leaves.

That one should be someone else’s property. Bondage in the Sachsenspiegel. It is often assumed that the Sachsenspiegel (Saxon Mirror), a private medieval compilation of Saxon law, contradicted bondage fundamentally with its revolutionary demand for freedom. This article challenges the established view by explaining that the Sachsenspiegel’s author, Eike von Repgow, merely argued against the usurpation of another person’s freedom while accepting bondage by contract. This contractual approach at least implied a mitigation of bondage. Eike tried to refute common justifications of bondage derived from biblical narratives. Because he took these narratives as true stories, he brought forward arguments of historical analysis instead of dogmatic considerations. Nowadays, bondage within the Sachsenspiegel is often equated with serfdom, while Eike described the status of a bondsman rather like that of a slave.