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Beiträge zur Rechtsgeschichte Österreichs, 3. Jahrgang, Heft 2/2013

Beiträge zur Rechtsgeschichte Österreichs, 3. Jahrgang, Heft 2/2013
recht[durch]setzen ̶̶ Making Things Legal. Gesetzgebung und prozessuale Wirklichkeit in den europäischen Rechtstraditionen
Nummer:
3
Jahrgang:
2013
Heft:
2
1. Auflage, 2014
Die „Beiträge zur Rechtsgeschichte Österreichs“ wurden als Zeitschrift der Kommission für Rechtsgeschichte Österreichs gegründet. Seit 2011 erscheinen die „BRGÖ“ zweimal jährlich sowohl in einer Printfassung als auch online; in der Regel ist ein Band einem besonderen Thema gewidmet, während der zweite Band vermischte Beiträge enthält.
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Geleitworte zum 18. Forum Junger Rechtshistorikerinnen und Rechtshistoriker
Seite 311 - 312
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Eröffnungsvortrag
Seite 313 - 320
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Migration, Labour and Legal Discourse in the early 20<sup>th</sup> Century. A French-Italian Example in the Making of International Labour Law
The making of the international labour law was the result of a complex proceeding carried out by some jurists in the early 20th Century, between the draft of the first Labour Treaty (Franco-Italian Bilateral Treaty of 1904) and the institution of the International Labour Organization (Treaty of Versailles of 1919). The jurists interested into this “nouveau droit” focused on the emergence of collective interests and their doctrinal efforts aimed to give a legal answer to the social question as a consequence of the industrial revolution. The peculiarity of their approach was the framing of the labour question into a transnational context, by paying great attention to the growing migratory phenomena. The connection between migration and labour emerges from a preliminary examination of the legislative and doctrinal sources. Both in the drawing of an international labour law and in the regulation of migration, lawyers started from the same economic assumption: the mobility of labour, and referred to a same subject: the foreign worker. In this matter the relationship between Italy and France seems to be exemplar in order to show the premises, the ideological plans and the practical results of the construction of the new legal discourse about international labour relations.
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Seite 321 - 328
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Procedural Reality in Corsica under the Rule of the Banco di San Giorgio after 1453
The colonization of Corsica (1453–1562) by the Genoese Banco di San Giorgio, a private financial institution with public powers, aimed at restoring law and order and installing a modern administration. However, the economic exploitation of the Isle was the ultimate goal of the capital investors of the Banco. The controversy about the nature and impact of the Banco’s governance on the Isle could disclose a particular stadium in the colonial and capitalistic expansion of the West. The attempt to establish a social contract between the Genoese administrators and the Corsican forces of opposition was revelatory. More specifically, we will discuss the internal processes of democratization in a fragmented Corsican society within an external colonial framework of oppressors which were themselves affected by sociopolitical struggles in the Republic of Genoa. In this way we will try to show how the interaction between the popular movement in Corsica and the new administrative model of the Banco di San Giorgio signified fascinating transformations in political philosophy and legal history. However the sad conclusion is that the struggle for equality was equivalent with a bloody disaster.
Schlagworte:
Seite 329 - 334
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To Be Killed Over and Over Again. A Case Study on Juridification
The article discusses the lethal labour accident of Adolphe Dufer (17 May 1894) as a case study illustrating the complex phenomenon of juridification. Firstly, the accident itself, the subsequent administrative and criminal investigations and civil trial are being discussed. Secondly, these facts are situated within their (legal) historical context. Thirdly and finally, the distinct worlds of industry, administration and justice are interpret as so-called ‘semiautonomous social fields’. On the one hand, these social fields all have distinct characteristics, objectives and evolutions. On the other, they influence each other, catalysing and explaining some complex (legal) evolutions described as ‘juridification’.
Schlagworte:
Seite 335 - 341
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Making the Political Offence Legal? The Interpretative Role of the Jury in the Belgian Legal Tradition
The 1831 Belgian Constitution restored the jury trial for criminal matters, press offences and political offences. The latter was copied from the 1830 French Charte constitutionnelle, but despite the fact that this was a terminological novelty in the western legal tradition, no definition was given. The Belgian constituent did so on purpose, as it enlarged the interpretative role of the jury. In this regard, it was even attributed a double role, the jurors did not only have to judge on the substance of the case, but on the interpretation of the criminal provisions as well, which were often vague in political matters. However, in Belgian legal practice, the judicial authorities soon lost faith in jury trials and a case-law was developed which substantially narrowed the definition of the political offence, which eventually led to a fossilization of the constitutional ideal. Hence, professional magistrates have succeeded in developing a strategic way to avoid a popular judgment in political matters without violating the constitution.
Schlagworte:
Seite 342 - 348
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The Paradox of the Statutory Proofs Theory in the Criminal Ordinance of Saint-Germain-en-Laye
Justice was administered in the name of the king by his judges before the French revolution. Criminal decisions were not founded on the judges’ own findings. They were theoretically based on a tripartite classification of proofs according to their probative value: the statutory proofs theory. Is the use of the term "statutory" legitimate to describe such an organization? According to the litteral meaning of the word it originates from the medieval civil and canon law. In Modern Times texts such as the Constitutio Criminalis Carolina expressly referred to it whereas French legislation was much more sparse. We should examinate other sources of law, doctrine and case law to understand the history of this theory. In 1668 Louis XIV. created the parliament of Flanders, a royal court of justice. A study of its criminal sentences will highlight the judges' attitude in front of this classification of proofs.
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Seite 349 - 354
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German or European? Jülich and Berg between Imperial and Public International Law
Charles VI. famously promised Prussian King Frederick William I. the succession of the duchies of Jülich and Berg in 1726, but did not keep this treaty pledge. Frederick II. did not think high of public international law, but used this as a political motive for revenge on Austria in November 1740, starting the War of the Austrian Succession. Although the Emperor benefitted from an advantageous position in Imperial law, which was essentially feudal for successions, his decisions in the 1720s were always the counterpart of a bilaterally negotiated concession by the other party, triggered by European, rather than German politics. In the light of the Utrecht and Italian examples, it can be argued that the power relations at the inter-sovereign level and the resulting political compromise created an implicit hierarchy, where vertical Imperial law was bowed and bent to fit the main players’ horizontal options.
Schlagworte:
Seite 355 - 362
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Die Korrelation von Text und Normativität im Recht
The question of the relation between text and normativity is both relevant and of basic importance for jurisprudence: The law has to constantly deal with oral and written texts. And the law is a normative order: statutory regulations contain constitutive or regulative rules which create and shape the status and behaviour of institutions, social groups and individuals. Texts have a normative effect once they claim validity, in other words, once authority is attributed to them. Law can be seen as an entity of texts with a normative effect. Laws medias are language and writ. Hence law encompasses text and normativity by nature. In the conjunction of both, text and normativity, reliable statements about the effect of normativity and the construction of cultural identities to which the law contributes to as a component become possible. After the ‘linguistic turn’ and the ‘hermeneutical turn’ – both ‘turns’ contributed substantially to differentiating between language and text – it is time to ask for the “normative power of textuality”.
Schlagworte:
Seite 363 - 373
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Ehebruch als Ehehindernis. Das impedimentum adulterii im protestantischen Eherecht der Wittenberger Reformation
The impediment of adultery, one of the two basic kinds of the impediment of crime, is fairly unknown by today. This paper will first speak about the impediment of adultery in its medieval form as laid down in the law of the Catholic Church. Its focus will be on the reformatory circle of Wittenberg around Martin Luther. A legal picture of the protestant marriage as well as the changes connected with it is drawn, because literature and theology had to struggle with numerous subsequent problems due to the new understanding of marriage – which now also could be divorced. In doing so, Luther and the reformatory jurists were not always uniform in their respective views. Finally, the impediment of culpable divorce because of adultery, being a historic novelty, will be analyzed.
Schlagworte:
Seite 374 - 385
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Die Macht des Faktischen. Prozessuale Wirkung von unbeschränkten Appellationsprivilegien in der reichshofrätlichen Gerichtspraxis der Frühen Neuzeit
The article examines the question of whether the unrestricted appeal privileges (“privilegia de non appellando illimitata”), which were granted to the electors of the Holy Roman Empire, proved themselves in legal practice of the Imperial Aulic Council (“Reichshofrat”). Following result can be given: The unrestricted appeal privileges served their purpose. The rare number of appeals introduced by subject of the electors as well as the low number of attempts to avoid the unrestricted appeal privileges manifests this fact. The attempts to avoid were launched by various forms of complaint (eg. querela nullitatis or iustitia denegata). Moreover the article shows that these requests had little or no chance of success. The Imperial Aulic Council let these requests either undecided or it refused them. Finally the unrestricted appeal privileges can be considered as one of the strongest tools in the development of the electorates to more independent territories.
Schlagworte:
Seite 386 - 394
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Glücks „Pandekten“ und die italienische Bearbeitung. Von der Rechtstheorie zur Gerichtspraxis
The “Ausführliche Erläuterung der Pandekten”, the huge commentary begun by Christian Friedrich von Glück and later carried on by German pandectists, represents the meeting point between usus modernus pandectarum and German pandectist science. In Italy, the latter became the main foreign model for legal culture around about the 1880s. Italy’s most influential scholars of Roman and private law intensified the activity of translation and annotation of German pandectist literature, in order to adapt it to the distinctive features of Italian legal background. The Italian version of Glück’s commentary represents an integral part of this project. Guided by the editors Filippo Serafini and Pietro Cogliolo, Italian translators revised and updated the commentary by increasing its practical feature, so that it could be profitably used by Italian legal practice of that time.
Schlagworte:
Seite 395 - 402
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Conflict Resolution and Punishment in Hungarian Medieval Laws and in Practice
Modern scholarship realizes that statutory law of Árpádian Hungary may not have meant to regulate actual situations, but only to follow general medieval patterns of Christian rulers issuing codes of law. Sources on actual legal practice show a different picture of the practice of conflict resolution and of punishment in comparison with the laws. They report a higher number of extrajudicial settlements and lack of any corporal punishment, in harmony with the results of research of scholars from Western Europe. This may have been caused by the fact that the immediate superior authority of the researched communities was the king whose court was far away, and the freemen (later nobles) had to settle their disputes by themselves. In such a situation corporal punishment was not the solution. Instead, compository payment was imposed in order to re-establish peace and order.
Schlagworte:
Tomas Gábriš
Seite 403 - 412
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Von der Anerkennungspraxis der Habsburgermonarchie gegenüber den südamerikanischen Staaten im 19. Jahrhundert
In the beginning of the 19th century, when the Latin and South American former colonies started their struggle for independence, the European world all of the sudden found itself in the very delicate situation, having to decide how to legally deal with new up-raising entities, which were in fact already independent states but officially still part of the mother land. The European position on the „South American issue“ – as it was called – had from 1815 on been subject to many conferences hosted by the powers of the Holy Alliance. Between 1815 and 1823, for which period the Germans have invented the term „Kongressdiplomatie“, it became clear that there was no such thing as an European position on the „South American issue“ and that the Holy Alliances` attitude towards South America could not have been more diverse: While Great Britain and France, in their capacity of colonial and imperial powers acted in favour of the recognition of the newly established independent states, Austria, Russia and Prussia officially opposed to the recognition of states, which had been craeted as a result of a revolution. Consequently, Brazil, the only monarchy in South America by that time, remained the one and only South American state officially recognised as a sovereign and independent country by Austria up to the year 1842.
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Seite 413 - 422
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Die interne Rechtssetzung und die Rechtsdurchsetzung im Deutschen Orden
The legislation in the Teutonic Order started just after its founding in 1191, at latest after his rising to the rank of a military order in 1198. In the first phase the brethren simply took over the rule of the Templars with some supplements from the rule of the Hospitallers. With the development of their own legal ideas around 1210-1215 the second legislative phase began. At its end the Teutonic Knights revised their legislative acts entirely and replaced them with new, written in a book called “Ordensbuch” – the Book of the Order – and consisted of Rules, Laws and Customs. In every castle of the Teutonic Order a copy of such a Book should be present and read to all the members once a week to allow them a thorough legal knowledge. In few cases the legal acts proved insufficient or not clear enough so the later Grandmasters developed or changed them. So began the third and last step in the legislation. In each of those three phases the general chapter – an assembly of all the brethren of the Order – played a crucial role for without their permission no legal act could be launched. A strict system of punishments applied by the local chapters made sure that the regulations of the Brotherhood were observed thus providing a main function in the law enforcement.
Schlagworte:
Seite 423 - 429
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Recht durch Kommentare? Der juristische Kommentar als materielles Requisit der Rechtsumsetzung
This paper highlights the role juristic commentaries may play in the process of “making things legal”. In explaining, for example, a statute (or other legal text), a commentary works as a “bridge-builder”: it transforms law from a ‘solid’ textual state into ‘law in action’. This role, and its paradox shape, can aptly be illustrated by outlining a jurisprudential discussion in Germany from the time of the Third Reich. On the one hand, commentaries were seen as undesirable implementers of the positive law existing hitherto, which stood in the way of the desired legal change. On the other hand, lawyers treated commentaries as a means of implementing National Socialist ideas in the legal system and transforming statutes to comply with these ideas.
Schlagworte:
Seite 430 - 438
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The Roots of Judicial Review in Hungary
In 1848, during the initial phase of the Hungarian Revolution, the Parliament approved a reform package called “April Laws” thereby transforming the feudal-representative monarchy into a constitutional one. The aim of this legislation was to reform the entire legal system, and to make all necessary changes for the new economic and political system. Following the suppression of the Revolution in 1849, the Habsburgs established an absolutistic regime that lasted until 1860. The Hungarian historical constitution was suspended, and the entire country was divided into 5 provinces treated as territories of the Austrian Empire, and because of that, step-by-step the entire Austrian legal system was introduced in Hungary. As the international political crisis deepened in the late 1850s, Emperor Franz Joseph decided to restore Hungary’s constitutionality. The question was inevitable: which legal norms were in force? Were these the ones in use before the Revolution, the Acts made by the legislation in 1848, or the Austrian legal system as a whole?
Schlagworte:
Seite 439 - 446
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Volkswille und Legitimation. Direktdemokratische Erfahrungen aus der Zwischenkriegszeit
The paper examines the direct democratic experience of the interwar period based on German and Estonian regulation and practice of referendums. As a background to the examination it outlines the two most important models of European direct democracy: the French plebiscitary and the Swiss direct democratic models. The French tradition is characterised by “top-down” plebiscites ordered by the president for his own political interest. The Swiss tradition is based on facultative referendums and “bottom-up” initiatives: these instruments induce state organs to involve the groups concerned into the decision-making process in order to establish a wide-ranging consensus. The constitutions of the Weimar Republic and of the Republic of Estonia contained both “top-down” and “bottom-up” instruments. However, procedural norms and the political circumstances hindered direct democratic institutions from reaching consensus and rather contributed to the strengthening of authoritarian forces which transformed the referendum into their own plebiscitary weapon.
Schlagworte:
Seite 447 - 455
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Wann muss der Herrscher schweigen? Zur Behandlung königlicher Machtsprüche in der Preußischen Rechtsreform
The present paper shall provide an analysis of the discourse regarding Machtsprüche (‘dictums’) in the elaboration of the codification of the Prussian private law – the “Allgemeines Landrecht für die Preußischen Staaten” – towards the end of the 18th century. A Machtspruch consisted of an authoritative decision by the monarch through which he could intervene in on-going judicial proceedings in civil law matters either by giving a ruling himself or by instructing the court to come to a certain decision. In Prussia the question arose of whether Machtsprüche should be forbidden by law. The paper will reflect the positions of King Frederick II., King Frederick William II., high-ranking Prussian civil servants, and legal reformists in this discourse. It will show that the discourse concerning this question is in a way a continuation of the dichotomy between power on the one hand and law on the other, that was typical of Enlightened Absolutism.
Schlagworte:
Seite 456 - 464
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Film, Law and Propaganda. Preliminary Remarks on the Law and Film Relations at the Beginning of the Communist Poland
After World War II in Central and Eastern Europe cinema and literature were harnessed in the construction of a new order (as earlier in the USSR). Contrary to traditional belief, it was built not only on violence. Ideology played a fundamental role in the escape from postwar nihilism and convinced many intellectuals to join building the “better world”. The propaganda was supposed to effectively influence the minds of those who did not understand the laws of historical necessity. Law-making and the making of cultural texts were tied together in an unprecedented way. Which results did it bring to cinematography? How did the law and cultural texts present the new order? Which conclusions remain relevant from that lesson of “making things legal”?
Schlagworte:
Seite 465 - 472
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Steuereintreibung und Steuerprozesse in der Antike
Although compared to Modern Times taxes were considerably lower in Roman Antiquity, taxes were seen as a massive infringement of rights which needed additional justification. Raising taxes and contributions often caused turmoil and uprising among the population and immunity from taxes was not only seen as a great privilege, but also as a sign of freedom. At least partly, the unpopularity of taxes was owed to the publicans, private entrepreneurs who bought the collections from the state for a fixed price and were allowed to keep the rest. During the time of Augustus a private treasury of the imperial family was instituted and its agents undertook some of the functions of the old Republican treasury while at the same acquiring new financial sources like the inheritances of the convicted, sometimes with ruthless methods.
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Seite 473 - 484
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Beweisführung und Wahrheitsfindung im athenischen Prozess
The article at hand deals with questions of objectivity and the conception of “truth” in the law courts of classical Athens. The surprising differences of Athenian and modern legal systems in this respect raise the question of how legal evidence was presented before the jurors and what was actually deemed relevant for reaching a just verdict in Athenian courts. In order to give an insight into Athenian legal thinking the article will explain first how (and by whom) evidence for a law suit was chosen. Next, some specific forms of evidence, their actual use in court and their incorporation in the law court speeches are to be presented in detail. This way, some unique structures in Athenian legal thinking will become apparent and show that the unusual perception of evidence in Athenian law courts must not be seen as a result of legal disability or lack of rationality but as a means of highly differentiated legal strategies.
Schlagworte:
Seite 485 - 493
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The Rhetoric and Reality of Access to Justice in Sixteenth Century England
The ideal of justice played an important role in sixteenth century England, but the legal system could be difficult to navigate even for the most adept, let alone for those without the advantages of wealth, education or political connections. Most people were not legal experts, but a striking feature of life in early modern England was that a very wide section of society was able to gain access to legal advice from a variety of sources, whether professional or otherwise. With the help of such advice, a larger number of people than one might expect were able to make use of the legal system and gain redress for their grievances. Focussing on the Thames Valley in the mid sixteenth century, this article explores the rhetoric and reality of access to justice. As in all societies, ignorance, poverty, inertia and corruption impeded the realisation of any ideal form of justice, but for many people in sixteenth century England the reality was at least close enough to the ideal to be recognisable as such.
Schlagworte:
Seite 494 - 501
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Die Könige und das Reformationsverfahren des Rechts in den polnischen Städten vom 14. bis zum 16. Jahrhundert
Magdeburg law was in force in many Polish cities as a result of location and translocation from Polish to German law. Create and modify rights can take many forms in the Polish cities of the late Middle Ages and Renaissance: legislation of king and parliament, municipal legislation, legal-theoretical proposals and modifications of legal manuscripts (Mirror of Saxony and Weichbild of Magdeburg). According to the Magdeburg law, change of the written law required a consent of the owner of the city, so in the case of the royal cities – of the monarch. Thus, the legislative procedure in many cases require the mandatory participation of the king: in cases of a new regulation was contrary to the written law (criminal law, civil law, the city system and other issues addressed in the Mirror of Saxon and Weichbild of Magdeburg) and when he played a role as a legislator in the king's powers (taxes, duty exemptions, business licenses, et al.). Most of the regulations was initiated by stakeholders (municipalities, citizens et al.). The process of the reformation of the municipal law includes not only the replacement of the existing regulations and adding the new regulations, but also the necessary steps preceding and following the legislation sensu stricto (E.g. the cities regularly gave "gifts" to public officials, hoping for their support).
Schlagworte:
Seite 502 - 511
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Creating a Law about Religion under Constantine the Great The Case of the Edict against the Heretics (Eus. Vita Const. 3, 63–66)
During the Christianization of the Roman Empire the matter of the relationships between State and Church became essential. In this context, one of the most interesting aspects concerns the fight against the phenomenon of heresy in its many forms. A meaningful attempt was undertaken by the first Christian emperor, Constantine the Great. He tried to find a solution to the divisions which were starting to trouble the ecclesiastical community and therefore the majority of the people. He tried to realize his aim, both through the Council of Nicaea and through legal instruments. He legislated using mainly the lex generalis – a kind of imperial constitution, which perfectly embodied the spirit of that time. Around 325 AD.– he issued an edict against some sects of radical heretics. The text represents the emperor's political attitude including his chancellery, which was in the hands of the bishops most of the time. It seems to contain all the aspects which characterize the Theodosian legislation, for example the condemnation to a series of inabilities or the comparison between the religious deviance and the concepts of sin like a mortal disease. Object of the work is to investigate the construction of a law in connection with the repression of heresy, by making some remarks about its concrete procedure.
Schlagworte:
Seite 512 - 519
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Legislative Proceedings outside Parliament in Authoritarian States. The Case of the 1930 Italian and 1940 Brazilian Criminal Codes
This paper aims to study the experience of the criminal reforms carried out by the Italian fascist (1922/1943) and the Brazilian Estado Novo (1937/1945) authoritarian regimes by means of legislative delegation, procedure in which state authority achieves greater strength. The edition of such codes serves as a strategy to legitimize the regime by strengthening the government's authority imposing obedience of the new laws established by it. The analysis will examine the constitutional legality and legitimacy for the Parliament’s dismissal in the procedures. In Italy, the Parliament itself has abdicated its competence by a delegation of powers to the government; in Brazil, the 1937 coup d’État imposed a new constitution in which the parliament became inactive, leaving the legislative competence fully to the Executive.
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Seite 520 - 527
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From Legislature to Code? Goal-oriented Formalism in French and Dutch Cases about Marriage and Parental Authority in the 19<sup>th</sup> Century
Nineteenth century judicial interpretation in the Netherlands has been characterized as legalistic. This article deals with the question whether this legalistic interpretation witnessed a shift in emphasis during the nineteenth century: from the legislature’s intention with a legal rule to focusing on the literal wording of a statutory rule. Such possible shift from legislature to code has been investigated for judicial decisions about the enforcement of marital duties and parental authority. It appears that in these cases, any judicial method of interpretation eventually sought to serve particular purposes identified by the judiciary itself, here the effective enforcement of marital cases, which did not coincide with either the legislature’s intention or the literal wording of a provision.
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Seite 528 - 535
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Ars et termini artis. Practical Issues in Application of Latin Legal Terms
The article discusses the accuracy of the form and content of Latin legal terms. Law is a field where linguistic means of expression are of utmost importance. This discipline operates directly through language. The material analysed comprises the terms collected from the law review Juridica (published since 1993). The time period looked at in the given research has been a decisive era in the development of Estonian law: it is characterised by turning back to the Western legal environment which largely depends on the Latin language. The legal reform in Estonia has been accompanied by changes in the usage of terms by Estonian lawyers. The integration of Estonian legal language into European legal culture is reflected by a relatively high increase in the usage of terms in Latin. At the same time, there occur several problems when Latin terms are employed.
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Seite 536 - 543
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Legitimation oder Auslegung? Die römischrechtlichen Quellenverweise vom Baltischen Privatrecht in den Riga’schen Stadtgerichtsentscheidungen
This article deals with the goal of the references to Roman law in the Baltic Private Law Act (BPLA), a law, which did enter into force in 1865. The BPLA was the collection of laws that was in force so far and as such it had to have under articles references to the sources of the articles. The author of present article has so far analysed the compatibility of the references to Roman law with the article text and the origin of article texts. On the bases of the analyses the main purpose of BPLA so far identified was to legitimise the code of laws both for Russian central authorities and local lawyers. In present article the use of the references to Roman law in the decisions of the city courts of Riga is examined. The examination showed that referred Roman law was used quite often also for the interpretation of the articles and so Roman law was had double purpose: to legitimate the code, but also for the interpretation.
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Seite 544 - 552
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The Edicts of the Prefect of Egypt. The Case of P. Oxy. XXXIV 2704
The edicts constituted the most distinguished form of prefectural legal settlements in Egypt. They usually followed the same scheme, which is evident from the edict of Titus Honoratus, published as P. Oxy. XXXIV, 2704. This edict prescribes measures against persons who allow livestock to graze on someone else’s field, thereby damaging the crops. The standard edict contains the prescript, followed by the main body of the edict. The date would be stated at the end and it followed the Egyptian calendar. The regulations contained in the exemplary edict are slightly illustrated by two papyri – P. Cair. Isid. 78 and P. Mert. II, 92 which, in particular, sheds light on the provisions governing the penalty contained in the edict. It is still not entirely clear to what situation the edict refers but an analysis of the language used in it and in other documents indicates that it applied to the situation where the humans, rather than the animals, were responsible for damages.
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Seite 553 - 560
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Römisches Recht und lokale Rechtssysteme. Der Schutz der hellenistischen parakatatheke in drei Textstellen der Digesten
In 2<sup>nd</sup> century a.d. the Roman empire is by then a cosmopolitan reality, open to the Hellenistic uses’ influences. The jurists come up against the difficults to interpret the many-sides and new provincial background with the conceptual and legal tools of Roman law: they adapt the usual means of protection to original case record, follow a real justice’s aim and update the law. The achieved outcomes are proved by some Digest’s passages, where cases of extraitalic world – that breaks in even the language, with the use of Greek – and not perfectly frameble in Roman typical agreement are put. D 16, 3, 26, 1 (Paul. 4 resp.), D 31, 34, 7 (Mod. 10 resp.) and D 32, 37, 5 (Scaev. 18 dig.) can be considered illustrative of described interpretational operation: they are three passages mit Hellenistic setting, united by clauses in Greek with a reference to Greek ‘parakatatheke’.
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Seite 561 - 569
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Making Children Legitimate. Die Gesetzgebung Justinians zu concubinatus und liberi naturales in Nov 74 und ihre Vorläufer
On the 14<sup>th</sup> of June 538, the Emperor Justinian issued a constitution known as Novel 74 in the Corpus Iuris Civilis. The aim of this constitution was to determine all the possibilities for the legitimation of 'natural' children. In Novel 74 Justinian determined what the conditions are that allow children to be called either natural or legitimate as well as who the children are who are neither legitimate nor natural. After that, he created three mechanisms to legitimate children: by their parents' marriage, by imperial decision on demand of the father, or on the children's demand based on their father's testament. But is this legislation as new as Justinian pretends it to be?
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Seite 570 - 580
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Law-Making in the Age of New Imperialism (1870–1914). The Dubious Question of How the Protectorate Treaty as a Political Instrument Became International Law
In the Age of New Imperialism (1870–1914), the African continent was partitioned by several European powers, which collided in their ambitions to seize territory. The protectorate treaty, concluded between Africans and Europeans, formed the main mode of acquiring title to land. These treaties put the door ajar to the acquisition of full and all comprehensive sovereignty, and, therefore, the regulation and administration of internal affairs, like the allocation of property rights and landownership. Mainly by way of decrees the Europeans took over the internal administration of the protectorate. The European administration in Africa soon implemented the concession system, expropriated the indigenous population of their lands, and placed the African peoples in reservations. It is assessed whether these practices were in accordance with contemporary legal standards.
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Seite 581 - 593
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Making the New Order Legal! Het Juristenblad 1941–1944
Periodicals enable (legal) historians to construct a trustworthy picture of past events. They are seen as mirrors or seismographs of cultural and social processes in a society and legal periodicals are no exception to that. They register day-to-day legal culture and reflect its evolution over a longer period. On the crossroads of many sociological groups, they externalize the opinion of editors and authors making the content not always (politically) neutral. One of those ‘unneutral’ legal reviews was Het Juristenblad, a collaborationist legal journal published during the Second World War. Its editors and authors tried to convince Belgium’s legal world that a New Legal Order was dawning and spread this idea through the journal, but were they successful?
Schlagworte:
Seite 594 - 600
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Gesetzgebung, verfahrensrechtliche Realität und Rechtslehre im römisch-holländischen Recht des 16. bis 18. Jahrhunderts. Das Problem des Mitverschuldens bei Schiffskollisionen
This article presents the different solutions provided by various statutes, case law and legal doctrine on the subject of contributory negligence in the event of a collision of ships. With regard to collision cases in Roman-Dutch law, there were various views on the legal solution in cases where two ships collided and both captains had acted negligently. The Hoge Raad decided that where it was not clear who had acted negligently, or where the negligence was equal on both sides, the damage had to be regarded as common and both should bear the damage equally. This decision obviously contrasts with that advanced by Roman law. The Roman approach was adopted as a basis by legal doctrine scholars such as Van Bijnkershoek, and later Van der Keessel, who argued that each should bear his own loss. Interestingly, this view was supported by two local statutes. The article ends with a discussion on another situation, namely that of a stationary ship being hit by a sailing ship. Van der Keessel considered the fault of the sailing ship as more serious and therefore argued that the fault of the (captain of the) sailing ship could not be compensated by the fault of the stationary ship. Thereby he introduced a renewed application of the medieval culpae compensatio doctrine.
Schlagworte:
Seite 601 - 610
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Noble Standing, Education and Networks. Judges of the Turku Court of Appeal 1623–1753
The Turku Court of Appeal, founded in 1623, was the second Swedish court of appeal. This article examines the educational and career backgrounds of the court’s judges from 1623 to 1753. The research shows that the educational level of the judges rose quickly and many had also studied at foreign universities, but it was not until the eightteenth century that they were almost exclusively educated in Sweden. At the same time career paths within the Court of Appeal started to emerge, whereas in the (early) seventeenth century career paths had been more varied and had included different positions with the Crown’s administration. A comparison with the first Swedish court of appeal, Svea, shows some differences between the two courts in the seventeenth century, but similar trends in the eighteenth century. Finally, the article shows that the networks and contacts of the judges also played an important part in their career paths.
Schlagworte:
Seite 611 - 618
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Ausgabe:
978-3-7001-7595-7, Zeitschriftenausgabe, broschiert, 21.01.2014
Auflage:
1. Auflage
Seitenzahl:
618 Seiten
Format:
30x21cm
Sprache:
Englisch
DOI (Link zur Online Edition):

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