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The Laws' Many Bodies

Studies in Legal Hybridity and Jurisdictional Complexity, c1600–1900

Editors: Donlan, Seán Patrick | Heirbaut, Dirk

Comparative Studies in Continental and Anglo-American Legal History, Vol. 32

(2015)

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About The Author

Seán Patrick Donlan lectures at the University of Limerick, Ireland. He has published in the areas of comparative law, legal history and legal philosophy. He is especially interested in mixed legal systems, legal pluralism and micro-jurisdictions. Donlan edits »Comparative Legal History« and is active in a number of associations, including the »European Society for Comparative Legal History«. He is past President of »Juris Diversitas«, co-edits their book series (Ashgate) and is a member of the »International Academy of Comparative Law«.

Dirk Heirbaut is professor of legal history and Roman law at Ghent University. He publishes on comparative legal history, the history of private law codifications and medieval customary and feudal law. He currently leads a research team working mainly on modern Belgian legal history. He is a member of the »Royal Flemish Academy of Belgium for Science and the Arts« and of the »Academia Europea«, a member of the board of editors of the »Legal History Review« and »Pro Memorie« and co-editor of the series »Iuris Scripta Historica« and »Studies in the History of Private Law«. In 2014 he was awarded the Eike von Repgow prize of the City and the University of Magdeburg.

Abstract

Across the West, a legal system centred on the state, the creation of general national laws, the elimination of competing jurisdictions, and the marginalization of non-legal norms was a very long historical process. This volume examines the »poly-juralism« of Europe's past – its legal hybridity and jurisdictional complexity – through case studies from a number of perspectives and traditions: Anglo-American, continental, Nordic, and mixed. The authors remind us that law precedes and surrounds the state, which is but one source of norms. They contest the anachronistic projection of modern legal nationalism, positivism, and centralism into the past. And these studies challenge both ideas of deep correspondence between laws, culture, and society and the division of Western traditions into reasonably discrete, closed legal families. Indeed, the lessons of this plural past can shed considerable light on the present, both in the West and across the globe.

Table of Contents

Section Title Page Action Price
Foreword 5
Inhaltsverzeichnis 7
Seán Patrick Donlan / Dirk Heirbaut: ‘A Patchwork of Accommodations’: European Legal Hybridity and Jurisdictional Complexity – An Introduction 9
I. Introduction 9
II. Uncommon Laws 11
III. Integral Histories of Hybridity 14
IV. The Laws' Many Bodies 17
V. Progressive Appropriation by the State 23
VI. Hybridity and Complexity 28
VII. Conclusion 33
Adolfo Giuliani: Jurisdictional Complexity in the Ecclesiastical State: A Discussion on the Diversity of Laws in Legal Education and Legal Practice 35
I. Jurisdictional Complexity: A Methodological Problem 35
II. Giovan Paolo Lancellotti: Diversitas Legum in Legal Education 39
1. Lecturing on the Diversity of Laws 39
a) The Problem of the Ius Commune 42
b) Roman Law as Ius Commune 43
c) Ius Canonicum Commune 45
d) The City-Statute as Ius Commune 46
2. Legal Hybrids 47
III. Giovanni Battista De Luca: Diversitas Legum in Legal Practice 48
1. Four Facets of Diversitas Legum 49
a) Diversitas Legum: The General Context 49
b) Diversitas Legum: A Plurality of Legal Orders 51
c) Searching for the Appropriate Rule 53
d) Diversitas Legum: Problems and Solutions 54
IV. Concluding Remarks: Managing Diversitas Legum 54
Bram Van Hofstraeten: Jurisdictional Complexity in Antwerp Company Law (1480–1620) 57
I. Introduction 57
II. The Official Establishment of a Private Partnership 59
III. Joint and Several Liability Among Partners 61
IV. Limited Liability of Silent Partners 64
V. The Contractus Trinus 66
VI. Death of One of the Partners 68
VII. Premature Exit of One of the Partners 71
VIII. Stipulations on Book-Keeping 73
IX. Borrowing Money from the Company's Assets 76
X. Allocation of Profits and Losses 76
XI. Private Debts of the Partners 77
XII. Conclusion 79
Alain Wijffels: Ancien Régime France: Legal Particularism under the Absolute Monarchy 81
I. Two Stages of Building an Overarching Law in France: From Le Caron's Droict François to Bourjon's Droit Commun de la France 84
1. Droict François: Louis le Caron 84
2. Droit Commun de la France: François Bourjon 93
II. The Northern Cross: French Flanders 100
III. Concluding Remarks: the Unnatural and Porous Borders of French Common Law 106
Anthony Musson: Jurisdictional Complexity: The Survival of Private Jurisdictions in England 109
I. Jurisdictional Anomalies in the Medieval Period 111
II. Challenges to Private Jurisdictions 114
III. Personnel of Local Justice 118
IV. Architectural Experience 120
V. Legal Hybridity in the Modern World 123
Heikki Pihlajamäki: On Forgotten Jurisdictional Complexities: The Case of Early Modern Sweden 127
I. Introduction 127
II. Jurisdictional Complexities in Sweden Proper 128
III. Jurisdictional Complexities in Livonia 135
IV. Conclusion 143
D. De ruysscher: Normative Hybridity in Antwerp Marine Insurance (c. 1650 – c. 1700) 145
I. Living and Official Law in Early Modern Marine Insurance: Some Preliminary Thoughts 145
II. The 1608 Costuymen: Crisis Legislation in a Dwindling Insurance Market 149
III. The Living Marine Insurance Law in Standard Terms of Contract (c. 1650 – c. 1700) 154
1. From Negotiated to Standard Terms 154
2. Breaking Away from Legislation 161
IV. Marine Insurance Law in Action in the Antwerp City Court (c. 1650 – c. 1700) 163
V. Conclusion 167
Bernard Durand: Pluralism in France in the Modern Era – Between the ‘Quest for Justice’ and ‘Uniformity Through the Law’: The Case of Roussillon 169
I. The Reorganization of Legal Systems 172
II. The Sovereign Council at the Crossroads Between Various Legal Systems 174
III. The Church as an Agent of Pluralism 178
IV. The Use of the Penal and Civil Legacy 182
V. Conclusion 190
Aniceto Masferrer: Plurality of Laws and Ius Commune in the Spanish Legal Traditions: The Cases of Catalonia and Valencia 193
I. Introduction 193
II. The Reception of the Ius Commune and its Position in the Order of Legal Sources from the Middle Ages to the Nueva Planta Decrees 196
1. The Catalan Case 196
2. The Valencian Case 201
III. The Ius Commune after the Nueva Planta Decrees 202
1. Catalonia 202
2. Valencia 205
a) The Foral Law and Its Interpretation 206
b) Legal Doctrine 208
c) The Roman Law and the Ius Commune 214
d) Judicial Precedent: Its Nature and Value in the Forensic Practice 216
e) The Value of the Sources of Law and the Application of Castilian Law in the Forensic Practice 219
IV. Concluding Considerations 222
John Finlay: Jurisdictional Complexity in Post-Union Scotland 223
I. Introduction 223
II. The Union Legislation 226
III. Statute 228
1. The Implied Extent of Legislation 228
2. The Position of the Crown 232
3. Economic Cases 235
IV. Case Law 239
1. Jurisdiction 240
2. Equity 243
3. Interpretation 244
V. Conclusion 246
Martin Löhnig: Killing Legal Complexity: The Jurisprudence of the German Reichsgericht in the First Years of its Existence 249
I. Introduction: Some Words about German Legal Complexity 249
II. The Purpose and Competence of the Supreme Court 251
III. What Did the Court Actually Do? 253
1. National Law vs. Local Laws 253
2. Review of Legal Qualification 255
a) Qualification of a Legal Norm 255
b) No Recognition of Local Customary Laws 256
c) Interpretation of Statutes 259
3. The Ius Commune as a Complexity-Killer 260
a) Reviewability 261
b) Substantive Decision Making 265
IV. Conclusion 269
List of Authors 271