Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review最新文献

{"title":"The rise of the comparative approach in Russian legal scholarship as a factor in the modernisation of civil legislation, from the Svod Zakonov of 1833 to the Draft Civil Code of 1905","authors":"D. Poldnikov","doi":"10.1163/15718190-00870A01","DOIUrl":"https://doi.org/10.1163/15718190-00870A01","url":null,"abstract":"The place of Russian law in European legal history is debated both in the national and international literature. The advocates of the European character of Russian law have to face the particularity of its legal culture, the sources of law, and the tradition of sui generis national identity. Yet, national identities and legal traditions are not innate but man-made and changeable. In this paper the focus on the period of the 19th century when Russian law was essentially modernized to match the best coeval European standards. It began in the early 1860s with the judicial and university reforms of Alexander II which introduced modern principles of judicial dispute resolution and professional legal education and lasted until the October revolution of 1917. The rapid and profound transformation of Russian law is best illustrated by the legislation in the domain of civil law, the leading branch of codified law in 19th century Europe. The pre-reformed Svod Zakonov (Digest of Laws) of 1833 (its 10th volume) was notably casuistic, inconsistent, and voluminous to the extent that it may not qualify as a modern code. The Draft Civil Code of 1905 could stand comparison with any European codification to date in terms of the systematic and coherent arrangement of general provisions on material civil law. Another important change was the progressive use of the best European legal experience: from the masked, fragmentary and unskilled borrowings in Svod Zakonov to a fully-fledged comparative legislation in the Draft Civil Code. A comprehensive comparison of all major European codes allowed the draft of a better piece of legislation but this has not been yet been researched by legal historians. The main question – how did this comparative approach came about – remains largely unanswered. In this paper attention is drawn to the decisive role of Russian legal scholarship in developing a comparative approach using an original synthesis of several streams of European legal thought (Savigny's historical school, German Pandectistics, French ecole de l'exegese, and Jhering's sociological approach) which it managed to develop in the second half of the 19th century. It is argued that such legal scholars as Meyer, Pobedonostsev, Pakhman, Shershenevich, Annenkov succeeded in overcoming the limits of the pre-reformed, literal knowledge of Svod Zakonov and began to study Russian civil law as part of a larger phenomenon (the law of the 'civilized nations') through dogmatic comparison which resembled the comparative legislation in western Europe. The evidence for this claim is taken from the main doctrinal works between 1840 and 1910 which represent both streams of comparison and it is analysed in the framework of comparative legal history. Special attention is paid to the contribution of dogmatic comparison in developing the general part of contract law as a recognizable hallmark of civil law in continental Europe which came to be adopted in the doctrinal writings and the draft","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81589289","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}

{"title":"The decline and displacement of custom in early modern Spain","authors":"A. Masferrer","doi":"10.1163/15718190-00870a10","DOIUrl":"https://doi.org/10.1163/15718190-00870a10","url":null,"abstract":"This article aims to describe the reasons for the decline of customary law in the early modern era. Confining the discussion to a limited geographical setting – the Iberian Peninsula – the arguments I used might be easily applied to other European jurisdictions. Part I presents an explanation of the predominance of custom in the medieval Spanish legal traditions. Part II describes the general features of the law in the early modern era, since they contributed – to a greater or lesser degree – to the demise of custom. Part III focuses more specifically on the theoretical and practical reasons for the decline and displacement of custom in early modern Spain. Part IV describes the consequences of the Decrees of Nueva Planta (1707-1718), approved by Felipe V in the context of the War of the Spanish Succession (1700-1714), regarding the development of the notion and role of custom in the eighteenth century. The article concludes with some reflections, emphasising that although customs do not easily co-exist with the state or a strong political power, neither do they entirely perish.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77810057","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}

{"title":"The barratry of the shipmaster in early modern law: the approach of Italian and English law courts","authors":"Guido Rossi","doi":"10.1163/15718190-00870A02","DOIUrl":"https://doi.org/10.1163/15718190-00870A02","url":null,"abstract":"For a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think that the different legal framework of civil and common law courts progressively led to very different interpretations of the same thing. Thus, with the shift of insurance litigation from mercantile justice to law courts maritime barratry began to acquire increasingly different features in the two legal systems. Very often, the very same conduct of the shipmaster was considered as negligent by civil law courts and barratrous by common law courts. The difference was of great practical importance, for many policies excluded barratry from the risks insured against. So, depending on the kind of law court, an insurer could be charged with full liability for the mishap or walk away without paying anything. If the beginning of the story was the same, its end could not have been more different.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83840157","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}

{"title":"Open access","authors":"Dirk Visser","doi":"10.1163/15718190-00873p01","DOIUrl":"https://doi.org/10.1163/15718190-00873p01","url":null,"abstract":"\u0000 Open Access is great, but killing academic journals is not. Also on the internet, there is no such thing as a free lunch. Peer review, editing and keeping articles available online all cost money. And someone has to pay for that. Either through subscriptions or through article processing charges and through the hidden costs of thousands of library people and university technicians making sure that articles go and stay on line and are accessible with the latest browsers.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81233466","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}

{"title":"De viering van het 100-jarig bestaan van het Tijdschrift voor Rechtsgeschiedenis/Le centenaire de la Revue d’Histoire du Droit/The Centennial of the Tijdschrift voor Rechtsgeschiedenis","authors":"_ _","doi":"10.1163/15718190-00873p00","DOIUrl":"https://doi.org/10.1163/15718190-00873p00","url":null,"abstract":"","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78206653","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}

{"title":"Peer review","authors":"M. Kemerink","doi":"10.1163/15718190-00873p06","DOIUrl":"https://doi.org/10.1163/15718190-00873p06","url":null,"abstract":"Over the years, peer review has developed into one of the fundaments of science as a means to provide feedback on scientific output in a relatively objective manner. While peer review is done with the common good in mind, specifically to provide a quality check, a novelty and relevance check, fraud detection and general manuscript improvement, it has its weaknesses and faces threats that undermine both its effectiveness and even its goals. Herein, I address the role of the various actors in the peer reviewing process, the authors, the editors, the reviewers and the broader society. While the first three actors are active participants in the process, the role of society is indirect as it sets the boundary conditions for the process. I will argue that although authors, editors and reviewers all are in part to blame for the sub-optimal functioning of the system, it is the broader society that intentionally and unintentionally causes many of these problems by enforcing a publish-or-perish culture in academia.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79502381","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}

{"title":"De 19e-eeuwse geschiedenis van de Nederlandse wetenschap van het burgerlijke recht? Helemaal niet!","authors":"J. Chorus","doi":"10.1163/15718190-08712P06","DOIUrl":"https://doi.org/10.1163/15718190-08712P06","url":null,"abstract":"\u0000 This article reviews C.J.H. Jansen’s attempt to write the history of Private Law (except for Commercial Law) doctrine in The Netherlands during the 19th Century. Regrettably, Jansen’s book does next to nothing discuss academic and other scholarly writings on the Law of Property and of Obligations, and does not at all discuss such writings on the Law of Persons and the Family, of Juristic Persons and of Succession. It only deals with aspects of methodology, of sources of law and of extra-legal factors which inspired some authors, apart from pouring out over the reader lots of facts unconnected with Private Law doctrine. The book’s title is misleading.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86688581","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}

{"title":"The Gloss to the Saunteen Kesta (Seventeen Statutes) of the Frisian Land Law","authors":"J. Hallebeek","doi":"10.1163/15718190-08712P02","DOIUrl":"https://doi.org/10.1163/15718190-08712P02","url":null,"abstract":"\u0000 The Seventeen Statutes is one of the oldest classical texts of Old Frisian Law. In its late fifteenth century edition, as part of the Frisian Land Law, it was provided with Latin glosses. Analysis of these glosses, which were scarcely investigated until now, enables us to pronounce with more certainty upon the date of both the Frisian Land Law, as a compilation, and its Gloss. Moreover, the glosses to the Seventeen Statutes reflect a considerable increase of ecclesiastical competence, point to certain principles of Romano-canonical procedure and use Roman law texts when applying provisions of indigenous law. This all may indicate a stronger presence of learned law in late medieval Friesland than previously assumed.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86926786","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}

{"title":"The barratry of the shipmaster in early modern law: polysemy and mos Italicus","authors":"G. Rossi","doi":"10.1163/15718190-08712P03","DOIUrl":"https://doi.org/10.1163/15718190-08712P03","url":null,"abstract":"\u0000 ‘Barratry’ is a polysemic term: it means deceit, bribe, simony, and fraud of the shipmaster. This article seeks to trace the origins of the word and to explore its different meanings, focusing especially on the influence that older meanings had on the development of more recent ones. This operation is of particular importance to understand the meaning of barratry that would appear for last – that of fraud of the shipmaster. By the time civil lawyers started dealing with maritime barratry, they were already well familiar with the other meanings of the term. This probably favoured the adaptation process, but it also left a deep mark on its outcome: the weight of those other meanings of the same term had a significant influence on the qualification of maritime barratry, an influence otherwise difficult to explain.","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83630099","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}

{"title":"Deutsche Rechtsgeschichte im Kontext Europas, written by Peter Landau, 2016","authors":"Stephan Dusil","doi":"10.1163/15718190-08712P11","DOIUrl":"https://doi.org/10.1163/15718190-08712P11","url":null,"abstract":"","PeriodicalId":43053,"journal":{"name":"Tijdschrift Voor Rechtsgeschiedenis-Revue D Histoire Du Droit-The Legal History Review","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85471809","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}