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L’élaboration d’une normativité en droit des gens: le recours au discours historique dans le De legationibus d’Alberico Gentili 万国法规范性的发展：Alberico Gentili 的《De legationibus》中历史话语的运用
The Legal History Review Pub Date : 2023-12-22 DOI: 10.1163/15718190-20233407
Emilie Colpaint
{"title":"L’élaboration d’une normativité en droit des gens: le recours au discours historique dans le De legationibus d’Alberico Gentili","authors":"Emilie Colpaint","doi":"10.1163/15718190-20233407","DOIUrl":"https://doi.org/10.1163/15718190-20233407","url":null,"abstract":"<h2>Summary</h2><p><em>The development of normativity in international law: the use of historical discourse in Alberico Gentili’s</em> De legationibus. – The aim of this article is to examine the sources used and the method employed by Alberico Gentili in his <em>De legationibus</em>, to elaborate a norm for the law of embassies. Although legal sources feature prominently in this treatise, the majority of them are derived from a variety of sources from Antiquity (historians, philosophers, rhetors, poets, etc.). Alberico Gentili mainly uses historical sources, and more specifically the <em>exemplum</em>, in his treatise. By mobilizing historical <em>exempla</em> alongside legal sources, the jurist created a rational normative system capable of responding to the diplomatic challenges of the sixteenth century brought about by constantly evolving practice.</p>","PeriodicalId":501512,"journal":{"name":"The Legal History Review","volume":"13 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139054088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Modest building blocks: The state of the art of monopoly thinking at the turn of the Middle Ages and the Early Modern Period in the works of lawyers and theologians 最小的积木：中世纪与现代早期之交律师和神学家作品中的垄断思维艺术现状
The Legal History Review Pub Date : 2023-12-22 DOI: 10.1163/15718190-20233401
Wout Vandermeulen
{"title":"Modest building blocks: The state of the art of monopoly thinking at the turn of the Middle Ages and the Early Modern Period in the works of lawyers and theologians","authors":"Wout Vandermeulen","doi":"10.1163/15718190-20233401","DOIUrl":"https://doi.org/10.1163/15718190-20233401","url":null,"abstract":"<h2>Summary</h2><p>This article seeks to contribute to the growing current of legal historical literature on early modern commercial law. It examines the topic of monopolies and their prohibition in the Codex of Justinian (C. 4,59,2). Its purpose is to explore one aspect of the renewed interest in the topic among lawyers and theologians in the early 16th century, when trading corporations and authorities worldly and ecclesial caused a proliferation of monopolies. The aspect in question is the source material from the legal and theological tradition that early modern authors had at their disposal. Through analysing the printed editions of medieval works from Roman and canon law and from theology, this contribution sketches an image of scattered attention and a strong focus on guilds until the very last years of the Middle Ages. Only after 1450 do the roots of the notions that would dominate later debates come to the fore, and near exclusively in the works of moral theologians such as Konrad Summenhart.</p>","PeriodicalId":501512,"journal":{"name":"The Legal History Review","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139051220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The legal personality of foreign states in civil law: l’affaire Zappa and the bequest of the Marquise du Plessis-Bellière 民法中外国的法律人格：扎帕事件和普莱西斯-贝利埃侯爵夫人的遗赠
The Legal History Review Pub Date : 2023-12-22 DOI: 10.1163/15718190-20233408
Laurens van Apeldoorn
{"title":"The legal personality of foreign states in civil law: l’affaire Zappa and the bequest of the Marquise du Plessis-Bellière","authors":"Laurens van Apeldoorn","doi":"10.1163/15718190-20233408","DOIUrl":"https://doi.org/10.1163/15718190-20233408","url":null,"abstract":"<h2>Summary</h2><p>This article traces the doctrinal debate on the civil legal personality of foreign states occasioned by two famous legal cases during the closing decade of the nineteenth century: the protracted conflict between Greece and Romania following Evangelis Zappa’s bequest of immovable property located in Romania to the Greek state for the purpose of resurrecting the Olympic Games, and the contested will of the Marquise du Plessis-Bellière which named Pope Leo xiii as legatee of real estate located in France. As Ernst Rabel and others have thought, the debate confirmed the scholarly consensus that the recognition given to a foreign state according to the rules of public international law, implies recognition of its capacity in private law matters. The objective of this article is to reconstruct the considerations that led to this apparent consensus, thus helping to facilitate an assessment of the persuasiveness of those considerations.</p>","PeriodicalId":501512,"journal":{"name":"The Legal History Review","volume":"351 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139051110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The capture of the Ponte: the development of vicarious liability of shipowners and its limitation in Roman-Dutch law 庞特的占领:船东替代责任的发展及其在罗马-荷兰法中的限制
The Legal History Review Pub Date : 2022-05-26 DOI: 10.1163/15718190-20220012
Tim Lubbers
{"title":"The capture of the Ponte: the development of vicarious liability of shipowners and its limitation in Roman-Dutch law","authors":"Tim Lubbers","doi":"10.1163/15718190-20220012","DOIUrl":"https://doi.org/10.1163/15718190-20220012","url":null,"abstract":"<h2>Summary</h2><p>In 1599, Dutch privateer Melchior van den Kerckhoven unlawfully captured the Venetian merchantman <em>Ponte</em>, which resulted in extensive legal proceedings before the Supreme Court of Holland, Zeeland and West-Friesland. The <em>Ponte</em> case soon became the centrepiece for discussions about vicarious liability of shipowners for unlawful acts of their shipmasters, and – more importantly – about limitation of this liability to (the value of) their ship and cargo. Within these discussions, a secondary role was reserved for the case arising from the capture of the French ship <em>Levrette</em> by a Dutch merchantman in 1610. Based on extensive archival research, the present article offers a detailed reconstruction of the facts and proceedings of the <em>Ponte</em> and the <em>Levrette</em> case, and sets out how these cases were employed by Roman-Dutch lawyers to give shape to limited liability of shipowners for unlawful acts of their shipmaster.</p>","PeriodicalId":501512,"journal":{"name":"The Legal History Review","volume":"184 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138535515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Creditor fructus percepit, Sul pegno con patto anticretico 债权人弗鲁图斯，在反宗教契约上
The Legal History Review Pub Date : 2022-05-26 DOI: 10.1163/15718190-20220013
R. Perani
{"title":"Creditor fructus percepit, Sul pegno con patto anticretico","authors":"R. Perani","doi":"10.1163/15718190-20220013","DOIUrl":"https://doi.org/10.1163/15718190-20220013","url":null,"abstract":"<h2>Summary</h2><p>Creditor fructus percepit, <em>On pledge with a</em> pactum antichreticum. – May the pledgee take the benefits of the <em>res</em>? Pledge did not allow it, there would have been theft <em>(furtum usus</em>). In fact, the thing given as pledge was excluded from any economic use. However, Roman law attests an agreement called <styled-content lang=\"el-Grek\" xmlns:dc=\"http://purl.org/dc/elements/1.1/\" xmlns:ifp=\"http://www.ifactory.com/press\">ἀντίχρησις</styled-content>, which allowed the creditor to have the fruits of the <em>res</em>, under some conditions. Among the jurists only Marcianus uses this Greek term (in D.13,7,33 and D.20,1,11,1).</p><p>In this paper, I wish to demonstrate that the antichresis has become part of Roman legal thought. The legal sources attest a late appearance of the antichresis (very late 2nd and early 3rd century <span style=\"font-variant: small-caps;\">AD</span>), but some Severian constitutions suggest that it may already have been known in practice. The Greek word indicated its foreign origin, but Roman jurists called it simply <em>pignus</em>.</p>","PeriodicalId":501512,"journal":{"name":"The Legal History Review","volume":"76 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138535516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Accused of infanticide: Criminal prosecutions of the deliberate killing of a new-born child in the Belgian province of West Flanders, 1796-1867 被控杀婴:1796-1867年，比利时西弗兰德斯省蓄意杀害一名新生儿的刑事起诉
The Legal History Review Pub Date : 2022-05-23 DOI: 10.1163/15718190-20220001
J. Monballyu
{"title":"Accused of infanticide: Criminal prosecutions of the deliberate killing of a new-born child in the Belgian province of West Flanders, 1796-1867","authors":"J. Monballyu","doi":"10.1163/15718190-20220001","DOIUrl":"https://doi.org/10.1163/15718190-20220001","url":null,"abstract":"<h2>Summary</h2><p>In Belgium, from 1796 until 1867, infanticide was a crime which was legally defined as the deliberate homicide of a new-born child and punished with the death penalty. In the province of West Flanders, for a long time the second most populous province in Belgium, this crime was strongly women-related. As in the other Belgian provinces and abroad, this crime was mainly committed by unmarried domestic servants who lived with their employer and with whom there was no time nor a place for a mother with a child. Infanticide was a crime that was prosecuted before the Court of Assizes of West Flanders and its predecessors. Such prosecutions happened rather exceptionally (109 people in all were prosecuted in West Flanders over a period of 70 years, i.e. an average of 1.5 per year), albeit in a steadily increasing line and with a peak during the years 1850-1867. The Court of Assizes punished this crime only very exceptionally with the statutory death penalty (only in 34 cases, i.e. 31% of the 109 accused). The other 75 accused were either acquitted (58 cases, i.e. 53% of the accused) or punished for another offence (17 cases, i.e. 15.5% of the accused). The acquittals and the punishments for another offence were not the result of the jurors’ or professional judges’ inclination to accept the puerperal insanity of the accused women, but a consequence of the fact that it was exceedingly difficult to prove that a child had been born viable, had lived independently of the mother for a while, and had been killed with the clear intention of killing it, when the child’s mother had given birth without assistance and claimed that the child had been still-born or died from a natural cause.</p>","PeriodicalId":501512,"journal":{"name":"The Legal History Review","volume":"36 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138535517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Hugo Grotius’s De societate publica cum infidelibus, Justifying overseas expansionism or religious toleration?
The Legal History Review Pub Date : 2020-12-23 DOI: 10.1163/15718190-00880a13
Marc de Wilde
{"title":"Hugo Grotius’s De societate publica cum infidelibus, Justifying overseas expansionism or religious toleration?","authors":"Marc de Wilde","doi":"10.1163/15718190-00880a13","DOIUrl":"https://doi.org/10.1163/15718190-00880a13","url":null,"abstract":"SummaryThis 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.","PeriodicalId":501512,"journal":{"name":"The Legal History Review","volume":"19 1","pages":"422-439"},"PeriodicalIF":0.0,"publicationDate":"2020-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138535518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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