Bankruptcy and the Praetorian Pledge: The Law of the Books and the Law in Action in the Early Modern Netherlands

2019 ◽  
Vol 80 ◽  
pp. 181-196
Author(s):  
Ilya A. Kotlyar
Keyword(s):  
Early Modern ◽  
Roman Law ◽  
Collective Rights ◽  
Ius Commune ◽  
The Law

The article points out at the discrepancy between the different Mss. of the Roman Justinianic text: Littera Pisana and Littera Bononiensis. The discrepancy entailed that the doctrine of medieval Ius Commune offered stronger protection of the collective rights of the creditors, in comparison with the Classical Roman law. The Roman Dutch “Elegant School”, despite its general reliance on the original Roman sources, already in the writings of Grotius demonstrated allegiance to the medieval doctrine on the issue of bankruptcy. The authors of the “Elegant School” continued to prefer the medieval interpretation of the creditors’ rights and bankruptcy, although Dutch practice was, in many respects, drastically different from the Ius Commune doctrine. This ensured a strong protection of creditors in bankruptcy in Dutch law.

scholarly journals The origin of the institute of procedural substitution in Bulgarian law

2021 ◽  
Vol 16 (3) ◽  
pp. 10-22
Author(s):  
Todor Kolarov
Keyword(s):  
Roman Law ◽  
Ancient Rome ◽  
Legal Regime ◽  
Ius Commune ◽  
The Law

The article strives to analyse the origin of the institute of procedural substitution (for the lack of a better term) in Bulgaria through historic overview, starting with the law of Ancient Rome, going through ius commune and finishing with the contemporary legal regime. From a procedural standpoint, the conclusion is that the institute came into being at the end of the XIX and beginning of the XX century. While manifestations of procedural substitution can be found in the Roman law, this is not an indication of a formulation of the legal institute itself.

scholarly journals Civilians and insurance: approximations of reality to the law

2015 ◽  
Vol 83 (3-4) ◽  
pp. 323-364
Author(s):  
Guido Rossi
Keyword(s):  
Early Modern ◽  
Roman Law ◽  
History Of ◽  
The Subject ◽  
The Law ◽  
Do So

In the study of the history of insurance, much attention has been paid to early modern jurists. Their importance as a source for the study of the subject is, however, debatable. Early modern jurists were more interested in systematising insurance than in describing it for what it was. Their main effort lay in explaining this non-Roman contract in Roman law terms. To do so, something had to be sacrificed - reality.


Sources in the Modern Tradition

2018 ◽  
Author(s):  
Randall Lesaffer
Keyword(s):  
Early Modern ◽  
International Law ◽  
Roman Law ◽  
Grand Narrative ◽  
Historical Source ◽  
Law Of Nature ◽  
Modern Age ◽  
Law Of Nations ◽  
State Practice ◽  
The Law

This chapter considers how the modern historiography of international law has ascribed pride of place to the jurisprudence of the law of nature and nations of the Early Modern Age. Whereas the writers from this period have had a significant influence on nineteenth-century international law, their utility as a historical source has been far overrated. The development of the law of nations in that period was much more informed by State practice than historians have commonly credited. Moreover, historiography has overestimated the novelty of the contribution of Early Modern jurisprudence and has almost cast its major historical source of inspiration into oblivion: the late medieval jurisprudence of canon and Roman law. It is thus important to restore medieval jurisprudence to its rightful place in the grand narrative of the evolution of international law.

Dramatic Judgments Measure for Measure, Revenge, and the Institution of the Law

2019 ◽  
pp. 33-74
Author(s):  
Bernadette Meyler
Keyword(s):  
Early Modern ◽  
Common Law ◽  
Ancient Greece ◽  
Roman Law ◽  
Institutional Form ◽  
Ancient Greek ◽  
Norman Conquest ◽  
Measure For Measure ◽  
The Law

Analyzing William Shakespeare’s Measure for Measure as the paradigm for theaters of pardoning, this chapter examines the relationships among judgment, pardoning and sovereignty in the play. It posits that Measure for Measure relies on a judicial model of pardoning and at the same time pits a more bureaucratic, institutional form of judgment against a vision of judgment as emanating from a sovereign decision on both the law and its application. The chapter further explains the connection between the institutional form of judgment staged in Measure for Measure and the work of early modern jurist Sir Edward Coke, who promoted a form of common law that he suggested derived from ancient Greek sources rather than the inheritance of Roman law from the Norman conquest. Drawing on this link with ancient Greece, the chapter then concludes with a comparison between Aeschylus’s Oresteia and Measure for Measure, contrasting both their genres and visions of justice.

Protection against Being Passed Over or Disinherited in Roman Law

2020 ◽  
pp. 1-19
Author(s):  
Reinhard Zimmermann
Keyword(s):  
Middle Ages ◽  
Roman Law ◽  
Legal Scholarship ◽  
Ius Commune ◽  
High Middle Ages ◽  
Complex Regulation ◽  
The Law ◽  
Do So

What is today referred to as ‘compulsory portion’ or ‘forced heirship’ was subject to a very complex regulation in Roman law. The development went from family succession to freedom of testation and subsequently led to the establishment of a balance between the testator’s freedom of disposition over his property and the ‘natural claims’ of his closest relatives to benefit at least to some extent from the estate. In the process, the Roman lawyers developed a number of interesting ideas, among them, in particular, protection of descendants by means of form requirements; the availability of a querela inofficiosi testamenti (complaint concerning an undutiful will); and the establishment of a minimum quota to which a testator had to appoint his closest relatives (‘legitima’) as well as the introduction of an actio ad supplendam legitimam for cases where the testator had failed to do so. Justinian also saw the necessity to provide for the testator’s widow; she could, under certain circumstances, demand one quarter of the estate by way of statutory legacy. Unfortunately, Justinian, in his Novel 115, failed in his attempt to simplify and streamline the law. From its inception in the High Middle Ages, therefore, legal scholarship based on the ius commune was faced with considerable difficulties in the application of the Roman rules.

Legal Obstacles

2016 ◽  
Author(s):  
Kenneth Stow
Keyword(s):  
The State ◽  
Personal Life ◽  
Roman Law ◽  
Modern State ◽  
Ius Commune ◽  
The Law

This chapter discusses how the law confers privileges on the Jews as cives, except in the spiritual forum. Nonetheless, while in the Papal State, the privileges of being cives were never entirely erased. It was the burdens and the confessional aspects of ancient Roman Law that came ever more to the fore. To these burdens were added evolving legal interpretations that facilitated the “offerings” and denunciations that upended the life of Anna del Monte and many others. However, Jews were not the only ones affected. The demands of the burgeoning modern state fell ever more heavily, and in new ways, on all residents. Using the tools of ius commune to augment centralized authority, the state began to interfere unprecedentedly in the personal life of its residents.

Causa in D. 44,4,2,3

2007 ◽  
Vol 75 (2) ◽  
pp. 199-212
Author(s):  
Laurent Waelkens
Keyword(s):  
Characteristic Feature ◽  
Early Modern ◽  
Roman Law ◽  
Ius Commune ◽  
Legal Thinking ◽  
Legal Fact

AbstractIn Roman law, D. 44,4,2,3 is the reference-text for stipulation without cause. Causality is a characteristic feature of early-modern legal thinking, but it may seem alien to a text from the 3rd century A.D. Would it therefore be possible to understand that text without reading into it the stipulation without cause? If one looks for a single meaning of causa in all the passages of the Digest where the phrase appears, the term seems to have a complex significance, including both a law-suit, litigation, a legal act and a legal fact. In that light, D. 44,4,2,3 takes on another dimension, as the text explains a particular feature of the exceptio doli. This study may thus offer a caveat for differentiating, when reading a text of Roman law, between its original ancient use and its reception during the ius commune era.

scholarly journals PRAWO RZYMSKIE A EUROPEJSKA TRADYCJA PRAWNA

2016 ◽  
Vol 11 (4) ◽  
pp. 191
Author(s):  
Danuta Kabat-Rudnicka
Keyword(s):  
Regional Scale ◽  
General Rule ◽  
Roman Law ◽  
Western World ◽  
Political Values ◽  
Ius Commune ◽  
The Law ◽  
Anglo American ◽  
The Individual ◽  
Point Of Reference

ROMAN LAW AND EUROPEAN LEGAL CULTURESummary The Roman law and the later neo-Roman law (ius commune), underlies the legal systems of the Western world, i.e. the continental system (civil law) and the Anglo-American system (common law). The essential constants of European legal culture, formed also by the Roman law are: personalism, referring to the individual as subject, end and an intellectual point of reference in the law; legalism, meaning not merely the monopoly of the modern legislator to create and change the law, but the need to base decisions about social relationships and conflicts on a general rule of law, whose validity and acceptance does not depend on moral, social and political values or purposes; intellectualism that relates to the particular way in which the phenomenon of law is understood. And even today, when we observe a trend towards the unification of law, whether on global or only a regional scale, the Roman law can still serve as a point of reference.

The Role of Women in Pursuing Scottish Criminal Actions, 1580–1650

2020 ◽  
Vol 24 (2) ◽  
pp. 232-250
Author(s):  
Stephanie Dropuljic
Keyword(s):  
Early Modern ◽  
Legal History ◽  
Criminal Court ◽  
Current Understanding ◽  
The Law ◽  
Role Of Women

This article examines the role of women in raising criminal actions of homicide before the central criminal court, in early modern Scotland. In doing so, it highlights the two main forms of standing women held; pursing an action for homicide alone and as part of a wider group of kin and family. The evidence presented therein challenges our current understanding of the role of women in the pursuit of crime and contributes to an under-researched area of Scots criminal legal history, gender and the law.

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