Savigny, Friedrich Karl von (1779–1861)

2018 ◽  
Author(s):  
Neil MacCormick
Keyword(s):  
Nineteenth Century ◽  
Historical Development ◽  
Customary Law ◽  
Roman Law ◽  
Sovereign Power ◽  
Philosophy Of Law ◽  
Historical School ◽  
Romantic Movement

Friedrich Karl von Savigny was a powerfully influential student of Roman law both in its medieval manifestations and in the contemporary ‘Pandektenrecht’ (law based on Justinian’s Pandects, or Digest) of nineteenth-century Germany. His contributions to the philosophy of law are in the spirit of the Romantic movement, and lay stress on the organic character of the legal experience of a people, hence favouring customary law over statute law, and opposing the contemporary movement towards codification. A founder of what is sometimes called the ‘historical school’ in the philosophy of law, he argues that law is to be understood always in its historical setting, the result of a process of historical development, not simply as the arbitrary command of a – perhaps transitory – sovereign power.

scholarly journals Roman law and the development of legal science in S.A. Muromtsev’s concept

2019 ◽  
pp. 191-199
Author(s):  
L. V. Batiev
Keyword(s):  
Historical Development ◽  
Scientific Practice ◽  
Roman Law ◽  
Scientific Concept ◽  
Special Role ◽  
Historical School ◽  
Theoretical Approaches ◽  
History Of ◽  
Legal Thinking ◽  
History Of Law

The predominant interest of S.A. Muromtsev in Roman law and jurisprudence (legal thinking) in the 1870-1880s is due to their special role in the history of law and in the legal system of modern Europe, as well as the science of civil law. His research in this area was not so much historical as theoretical. It was works on Roman law that formed the S.A. Muromtsev’s scientific concept. Based on the analysis of the problem of the conservatism of Roman jurisprudence, S.A. Muromtsev, following R. Iering and contrary to the historical school, comes to the conclusion that the content of law is causally dependent on the needs of civil life and the activity of legal thinking (jurisprudence in the broad sense), formulating new standards in the struggle of ideas and goals. With this approach, along with economic and other factors of the development of society and its needs, to understand the development of law, it is important to study the properties of legal thinking in its historical development. The combination of historical and theoretical approaches to the study of law and legal thinking seems fruitful, but little realized in scientific practice.

Jurisprudence, historical

2018 ◽  
Author(s):  
Peter Stein
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
Natural Law ◽  
Historical Development ◽  
Political Power ◽  
Economic Change ◽  
Roman Law ◽  
Scottish Enlightenment ◽  
Economic Changes ◽  
The Will

Historical jurisprudence is the title usually given to a group of theories, which flourished mainly in the nineteenth century, that explain law as the product of predetermined patterns of change based on social and economic change. It is thus opposed both to theories that see law as essentially an expression of the will of those holding political power (positivist theories) and to those that see it as an expression of principles that are part of man’s nature and so applicable in any kind of society (natural law theories). The writers of the Scottish Enlightenment first connected the historical development of law with economic changes. In the nineteenth century, Savigny and Maine postulated grand evolutionary schemes, which purported to be applicable universally. They were, however, based on the development of ancient Roman law and could only with difficulty be applied to other systems. These schemes are now discredited, but in the twentieth century more modest studies have successfully related particular kinds of law to particular sets of social circumstances.

scholarly journals РОЗВИТОК ІДЕЇ НАРОДНОГО СУВЕРЕНІТЕТУ ЗА ДОБИ СЕРЕДНЬОВІЧЧЯ: ДЕРЖАВНИЙ І ЦЕРКОВНИЙ ВИМІРИ

2019 ◽  
Vol 3 (1-2) ◽  
pp. 116-128
Author(s):  
Владислав Сасін
Keyword(s):  
Middle Ages ◽  
Historical Development ◽  
Popular Sovereignty ◽  
Customary Law ◽  
Roman Law ◽  
The Political ◽  
William Of Ockham ◽  
John Of Salisbury ◽  
Marsilius Of Padua ◽  
The Middle Ages

У статті наводиться історико-політологічний аналіз розвитку категорії «народний суверенітет» в епоху європейського середньовіччя. Проаналізовано причини відродження інтересу політиків та юристів до ідеї народного суверенітету. Вказано на розвиток ідеї народного суверенітету крізь призму державного і церковного життя й основних віх державно-церковних відносин в епоху 128 середньовіччя. Визначено місце феодальних відносин (сюзерен-васал), рецепції римського права та аристотелевої теоретико-методологічної спадщини, звичаєвого права варварських племен у формуванні ідеї народного суверенітету. Також проведено аналіз творчого доробку правників (Джона Солсбері, Генрі Бректона) і філософів (Томи Аквінського, Марсилія Падуанського, Йоанна Паризького, Вільяма Оккама, Гілезія Римського та інших), охарактеризовано місце народовладдя в їхніх творах. Досліджено соціально-політичні феномени життя середньовічних європейських міста, держави й церкви, що спричинили вплив на дефініцію ідеї народного суверенітету в означену епоху. Зроблено загальний висновок про вплив середньовічних політичних підходів щодо народного суверенітету на формування новочасного і ранньомодерного розуміння суверенітету й демократії. Ключові слова: демократія, народний суверенітет, епоха середньовіччя, «теорія двох мечів», консиліаризм, римське право. THE DEVELOPMENT OF IDEA OF POPULAR SOVEREIGNTY IN THE MIDDLE AGES: STATE AND CHURCH VIEWS The article deals with the political and historical development of popular sovereignty in the Middle Ages. The reasons for a revival of interest were analyzed according to the idea of popular sovereignty. Also were analyzed the characters of feudalism relations between suzerain and vassal, reception of Roman law as well as the works of Aristotle, customary law of German tribes have been used in the understanding of the idea of popular sovereignty. A lot of works of medieval lawyers and philosophers (John of Salisbury, Henry de Bracton, Marsilius of Padua, William of Ockham, John of Paris, Thomas Aquinas) were analyzed in the article. Keywords: Democracy, Popular Sovereignty, Middle Ages, Two-Swords Theory, Conciliarism, Roman law. )

The American Catholic Minority in the Later Nineteenth Century

1953 ◽  
Vol 15 (3) ◽  
pp. 275-302 ◽  
Author(s):  
Thomas T. McAvoy
Keyword(s):  
Nineteenth Century ◽  
Church And State ◽  
The United States ◽  
Roman Law ◽  
American Democracy ◽  
Nineteenth Century America ◽  
Hierarchical Arrangement ◽  
Great Culture ◽  
Definition Of ◽  
American Catholic

The factors that caused the Roman authorities to insist on a Plenary Council of the American Bishops in 1884 have not been sufficiently explained. Perhaps the role of the American prelates in opposing the opportuneness of the definition of the doctrine of infallibility had some influence. Undoubtedly the reports of the bishops in their ad limina visits to Rome did little to subdue any fears that may have arisen. The frequent appeals of recalcitrant clergymen against their bishops were going directly to Rome because there was no intermediate court. The Instruction of 1878 makes this quite clear. Rome had shown its dissatisfaction with the condition of Catholic education by its interrogatory and its Instruction of 1875. The renewed condemnation of the Fenians had some American effects; and the renewed condemnation of the Masons with applications to certain other American social organizations indicated that all was not well in the social conditions of Catholics in the United States. Had the prelates in Rome understood American democracy and American conditions they would have had to have been much better informed than most Europeans in the nineteenth century. America was to Europe a land of great physical possibility, but a land without any great culture or religious accomplishments. Even European liberals did not understand the manhood suffrage of American democracy. The Catholic leaders of southern Europe, so generally aligned with conservative and monarchist parties, could have little understanding of American democracy in the religious sphere. In Rome where the hierarchical arrangement had not been fully dissociated from monarchical government and where Roman law with its insistence on the union of Church and State was the basis of most political thought, even the most sympathetic seemed to have some misgivings about the manifest loyalty of the American Catholics to the Holy See.

Believe in the Border, or, How to Make Modernity in the Nineteenth-Century Maghrib

2017 ◽  
Vol 60 (1-2) ◽  
pp. 83-114 ◽  
Author(s):  
Brock Cutler
Keyword(s):  
Nineteenth Century ◽  
Late Nineteenth Century ◽  
Sovereign Power ◽  
Levels Of Abstraction ◽  
Late Nineteenth ◽  
Territorial Claims ◽  
Frontier Zone ◽  
Environmental Relations

The Algerian-Tunisian frontier zone was much contested in the late nineteenth century, defying the logic of modernity that sought to establish territoriality. This modernity appeared only through an imbrication of raids, warfare, environmental shifts, and competing territorial claims. The violence of the territorial process, the changing geography of sovereignty, and uncertain frontier delimitation: these and other elements challenge the image of modernity arising in a fixed territory according to a linear chronology. This article argues that modernity in the Maghrib, seen through the lens of territory, is a temporally and spatially variable process: “modern” sovereign power existed only at certain levels of abstraction and within certain environmental relations. To consider modernity in the Maghrib, we will have to see how claims of sovereignty and the process of territorialization were understood by actors operating on local, regional, and imperial scales.

Do International Organizations Enjoy Immunity Under Customary International Law?

2014 ◽  
Vol 10 (2) ◽  
pp. 287-318 ◽  
Author(s):  
Michael Wood
Keyword(s):  
Nineteenth Century ◽  
General Practice ◽  
International Law ◽  
Present Article ◽  
International Organizations ◽  
Historical Development ◽  
Customary International Law ◽  
Domestic Courts

The present article considers whether there is “a general practice accepted as law” establishing rules of customary international law on the immunity of international organizations from the jurisdiction of domestic courts. Apart from treaties, there does not appear to be a great deal of practice or opinio juris on the immunity of international organizations. And while there are many treaties dealing with the matter, their significance for the generation of a rule of customary international law seems questionable. This article sketches the historical development of the immunity of international organizations since the nineteenth century, describes various approaches that have been suggested to this question, and sets out such practice as there is and academic consideration of that practice. It then considers whether practice has to date generated any rules of customary international law regarding immunities, and finally suggests some conclusions.

The Historical Development of the Application of Humanitarian Law in Non-International Armed Conflicts to 1949

1998 ◽  
Vol 47 (2) ◽  
pp. 337-361 ◽  
Author(s):  
Lindsay Moir
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
International Law ◽  
Historical Development ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Similar Magnitude ◽  
International Conflicts ◽  
International Regulation ◽  
Internal Armed Conflicts

That humanitarian rules were applicable in armed conflicts was accepted long before the nineteenth century, but the fact that non-international armed conflicts were regarded as beyond the ambit of international regulation meant that the application of such norms to internal armed conflicts was certainly not a matter of course. Towards the end of the eighteenth century there had been a move towards the application of the laws of warfare to non-international armed conflicts as well as international conflicts, but this was based on the character of the conflicts and the fact that both were often of a similar magnitude, rather than any humanitarian concern to treat the victims of both equally. Not until the nineteenth century did the application of the laws of war to non-international armed conflicts become a widespread issue in international law.

American Legal Thought in Transatlantic Context, 1870-1914

2021 ◽  
Author(s):  
David M. Rabban
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
Twentieth Century ◽  
First Generation ◽  
The United States ◽  
Recent Book ◽  
Historical School ◽  
Legal Thought ◽  
Early Twentieth Century ◽  
Sociological Jurisprudence

Most American legal scholars have described their nineteenth-century predecessors as deductive formalists. In my recent book, Law’s History : American Legal Thought and the Transatlantic Turn to History, I demonstrate instead that the first generation of professional legal scholars in the United States, who wrote during the last three decades of the nineteenth century, viewed law as a historically based inductive science. They constituted a distinctive historical school of American jurisprudence that was superseded by the development of sociological jurisprudence in the early twentieth century. This article focuses on the transatlantic context, involving connections between European and American scholars, in which the historical school of American jurisprudence emerged, flourished, and eventually declined.

Tracing Legal History In Continental Civil Law

2018 ◽  
Author(s):  
Heikki Pihlajamäki
Keyword(s):  
Legal History ◽  
Global Politics ◽  
Roman Law ◽  
Historical Science ◽  
Legal Scholarship ◽  
Historical School ◽  
Introductory Note ◽  
Recent Trends ◽  
Post War

This chapter begins with a brief introductory note on the role of legal history in ancient Roman law, and the legal scholarship of medieval glossators and commentators. It then turns to the dominant schools of continental legal scholarship in the seventeenth and eighteenth centuries, the ‘Neo-Bartolists’ and the usus modernus pandectarum. It considers the rise of the Historical School in Germany and the corresponding movements elsewhere in continental Europe. Methodologically, the representatives of the Historical School were the first professional legal historians in the modern sense of the term. Finally, the chapter retells the story of the rise of European legal history in the post-war period, and the recent trends towards a creation of global legal histories. It shows that legal history’s turns have in many ways followed from not only legal scholarship in general, but also from developments in historical science and global politics.

The Influence of Roman Law

2011 ◽  
Author(s):  
Donald R. Kelley
Keyword(s):  
Nineteenth Century ◽  
Twelfth Century ◽  
Civil Law ◽  
Human Condition ◽  
The Other ◽  
Roman Law ◽  
Christian Doctrine ◽  
The Law ◽  
Civil Science

Centuries of Roman jurisprudence were assembled in the great Byzantine collection, the Digest, by Tribonian and the other editors. Roman law became more formal when during the Renaissance of the twelfth century it came to be taught in the first universities, starting with Bologna and the teaching of Irnerius. The main channels of expansion were through the Glossators and post-Glossators, who commented on the main texts and on later legislation by the Holy Roman Emperors, which included “feudal law,” but also by notaries and other proto-lawyers. Christian doctrine also became part of the “Roman” tradition, and canon and civil law were taught together in the universities as “civil science.” According to the ancient Roman jurist Gaius, “all the law which we use pertains either to persons or to things or to actions,” three categories that exhaust the external human condition—personality, reality, and action. In the nineteenth century, the study of Roman law lost its ideological power and became part of philology and history, at least so concludes James Whitman.

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