Legal History Library

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.

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.

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.

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.

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.

This volume formulates the hypothesis of a truly global revolution that reflected a Great Divide between ancient and new legal regimes. The volume brings together several case studies of transition from an ancient to a new legal regime characterized by the positivization of the law. This was an effect of Western imperialism, but also of local elites’ conviction that positive law was an efficient instrument of governance. The contributors emphasize the depth and scale of the positivist legal revolution and explore the phenomenon whether it was the outcome of either direct colonialism (Morocco, Egypt, India) or indigenous reformism (Ottoman empire, China, Japan).

Legal historians have analysed the characteristics of merchant guilds and nationes (i.e., associations of foreign merchants), as well as the political clout of merchants, including foreign ones. However, how the legal status of citizens related to the merchant class and how its contents were influenced by trade remains largely unclear. Did governments have a policy of citizenship that was tailored to commercial interests? Were foreign merchants belonging to a separate legal category of resident? If so, what defined this category? To what extent could different types of legal status and membership of communities or guilds overlap? And how did all this affect merchants’ identities, their self-images of belonging? This collection of essays provides anwers to these questions.

Contributors are: Sonja Breustedt, Pieter De Reu, Gijs Dreijer, Maurits den Hollander, Marco In’t Veld, Marta Lupi, Manon Moerman, Remko Mooi, Patrick Naaktgeboren, and Joost Possemiers.

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.

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.

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.

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.

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.

Equity in Early Modern Legal Scholarship takes the reader through the vast amount of legal writings on equity that were published in continental Europe in early modern times. The book offers the first comprehensive overview of the development of the legal concept of equity through the sixteenth and seventeenth century. During this time, equity scholarship broke with its medieval past and entered a lively debate on the nature and function of the concept. Lorenzo Maniscalco links these developments to the early modern identification of equity with Aristotelian epieikeia, a conceptual shift that brought down the barrier that divided theological and legal writings on equity and led to its development as a tool for the interpretation and amendment of legal rules.

The first overview of the history of criminal law in the area that is currently within the territory of Belgium. Jos Monballyu treats both the sources of criminal law, the different judicial bodies that dealt with criminal issues, the general characteristics of the offences, the manifestations of the offences, the different punishments and their functions, the administration of criminal justice and, finally, some offences and their punishments in particular, namely suicide, witchcraft and press offences. All of these subjects are treated in such a manner that they can immediately be compared with the contents of similar standard works concerning the history of criminal justice in other countries.

Gaius Meets Cicero. Law and Rhetoric in the School Controversies sheds new light on a much debated issue in the field of Roman law, i.e. the so-called 'school controversies' between the Sabinians and the Proculians. Tessa Leesen rejects the general assumption in modern literature that the two schools each adhered to a fundamentally different theoretical conception of law. She argues that the 'school controversies' as described in Gaius' Institutiones arose in legal practice when the heads of the two schools were consulted by two conflicting parties and each gave opposing advice. In order to make their opinions persuasive, the jurists were in need of adequate arguments. For this purpose, they made use of rhetoric and of the argumentative theory of topoi as described in Cicero's Topica.