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Donlan, S., Heirbaut, D. (Eds.) (2015). The Laws' Many Bodies. Studies in Legal Hybridity and Jurisdictional Complexity, c1600–1900. Duncker & Humblot. https://doi.org/10.3790/978-3-428-54715-9
Donlan, Seán Patrick and Heirbaut, Dirk. The Laws' Many Bodies: Studies in Legal Hybridity and Jurisdictional Complexity, c1600–1900. Duncker & Humblot, 2015. Book. https://doi.org/10.3790/978-3-428-54715-9
Donlan, S, Heirbaut, D (eds.) (2015): The Laws' Many Bodies: Studies in Legal Hybridity and Jurisdictional Complexity, c1600–1900, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-54715-9
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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 |