Historical and cultural norms under the traditional Chinese legal order
Peter C.H. Chan
This article explores the position of mediation as a means of civil disputes resolution in China’s legal history. While civil adjudication existed in imperial China, the legal tradition of wu song (‘[a society] free from litigation’) played a fundamental role in shaping China’s imperial civil justice system. Under the Confucian ideology, disputes of a civil nature should be settled through conciliatory means so that the amicable relations of the disputants could be maintained. The culture of face-saving and the maintenance of cordial relations remains a distinctive characteristic of the modern Chinese society. This legal historical background provided the ideological foundation for civil procedural systems during the Republican era (1911-1949) and the early days of the People’s Republic (since 1949). The current debate on the contemporary mediation system is placed into the appropriate context when one understands that civil process in China today still operates under the shadow of cultural norms of the traditional Chinese legal order.
Legal historians have surmised that court records of the British province of East Florida (1763-1783) have been either lost or destroyed. This assumption was based on the poor conditions for survival of documents in Florida and statements made in the secondary literature on the province. Nonetheless, a significant number of documents related to the courts of British East Florida exist in the National Archives (Kew). These materials reveal an active legal culture using English law in a wide range of courts including (1) the Court of Common Pleas; (2) the Court of Chancery; (3) the Court of General Sessions of the Peace, Oyer et Terminer, Assize and General Gaol Delivery; (4) Special Courts of Oyer et Terminer; (5) the Court of Vice-Admiralty; (6) the Court of Ordinary; (7) the General Court; and (8) a District Court.
This article studies a portion of the documents related to the Court of Common Pleas to describe the nature of the court’s practice in civil litigation. It closely examines three cases for which sufficient extant pleadings permit the reconstruction of the general contours of recovery for breach of a sales contract through an action of trespass on the case, for contract enforcement through an action of covenant, and for recovery of a sum certain through an action of debt. The small window provided by these cases into the activities of this court reveals a heretofore unknown world of English common law in North America during and after the American Declaration of Independence. This new information supplements and challenges our established understanding of colonial law in North America in the revolutionary period and the use of law in the British Empire. This study illustrates the many opportunities these sources offer to legal historians of the period.
José Domingues and Pedro Pinto
This study examines the first and to date probably the only known fragment of the legislative compilation known as the Reforma das Ordenações de D. Afonso V, [‘Revised Laws of King Afonso V’], accomplished by Doctor Rui Fernandes in the town of Arruda on 28 July 1446. The fact that it is a parchment fragment has given rise to the hypothesis that it is the only known vestige of the original version, which would have been deposited at the central Chancery immediately after the revision was concluded, in order to serve as the matrix for subsequent authentic copies.
V.J.M. van Hoof
A Roman debtor and his creditor could tailor their contract of pledge to fit their needs. If the parties specified the pledged asset in the contract, they wanted to restrict the debtor’s right to dispose of the pledged asset. The debtor would transfer pledged assets subject to pledge if he acted without permission of the creditor. The creditor could recover the pledged asset from any third-party possessor. If the parties pledged all of the debtor’s present and future assets, they wanted to enable the debtor to dispose of pledged assets in his ordinary course of business.
The French translation of Baldus de Ubaldis’ commentary on the Peace of Constance (1183) by Dominique Gaurier provides an opportunity to point out some difficulties with regard to the original’s textual transmission. A lacuna occurring in the Milanese edition of c. 1502 was reproduced in the collections of treatises printed in Lyons in 1535 and 1544, and spread in the glossed editions of the Corpus iuris which appeared after the mid-sixteenth century.
On the origin, nature and composition of the partes Digestorum
W.J. Zwalve and Th. de Vries
The present article purports to stress the importance of the legal curriculum in the over-all compilation process of Justinian’s Digest. The basic hypothesis is that, in composing the Digest, Justinian’s drafting committee based its composition on the arrangement of the legal curriculum as it was before Justinian and as it was about to be changed in the process. The basis of this hypothesis is the division of the Digest into seven partes. It is contended that the basic structure of the first five partes of the Digest was predetermined by the legal curriculum, whereas the last two partes are an ‘Appendix Masse’. It is also contended that the distribution of books over all the seven partes of the Digest is the result of a preconceived formula inspired by the mathematics of Diophantus of Alexandria.