Intercultural Trade, Commercial Litigation, and Legal Pluralism
Jeroen M.J. Chorus
This article reviews C.J.H. Jansen’s attempt to write the history of Private Law (except for Commercial Law) doctrine in The Netherlands during the 19th Century. Regrettably, Jansen’s book does next to nothing discuss academic and other scholarly writings on the Law of Property and of Obligations, and does not at all discuss such writings on the Law of Persons and the Family, of Juristic Persons and of Succession. It only deals with aspects of methodology, of sources of law and of extra-legal factors which inspired some authors, apart from pouring out over the reader lots of facts unconnected with Private Law doctrine. The book’s title is misleading.
The Seventeen Statutes is one of the oldest classical texts of Old Frisian Law. In its late fifteenth century edition, as part of the Frisian Land Law, it was provided with Latin glosses. Analysis of these glosses, which were scarcely investigated until now, enables us to pronounce with more certainty upon the date of both the Frisian Land Law, as a compilation, and its Gloss. Moreover, the glosses to the Seventeen Statutes reflect a considerable increase of ecclesiastical competence, point to certain principles of Romano-canonical procedure and use Roman law texts when applying provisions of indigenous law. This all may indicate a stronger presence of learned law in late medieval Friesland than previously assumed.
Dave De ruysscher and Ilya Kotlyar
In the County of Holland, in the sixteenth and seventeenth centuries the rules regarding security interests in movables changed fundamentally. Rules of doctrine came to be combined with rules found in local law, that is the bylaws of cities and regions. This went together with the re-interpreting of fragments of older bylaws. In 1631 Grotius’ Inleidinghe categorized the lien of the unpaid seller after delivery of the merchandise sold as entailing a reivindicatio. This new rule was adopted in cities in Holland, even though it ran counter the earlier approach that third-party effects of sales in this regard were very limited. Also, the new line of thought that holders with a legitimate title did not respond to pledgees pushed out older conceptions on tracing for some special pledges. In their legal writings Dutch authors after Grotius attempted to construe consistent solutions; in the legislative practice of cities, older rules could be preferred over new ones. Bylaws of cities, to which authors of Roman-Dutch doctrine referred as well, stipulated limits on tracing by unpaid sellers. All the mentioned developments were not determined by changes in the market, even though they could be incited by them. Legal change in Holland, even in the Golden Age of the seventeenth century, was due more to the embracing of academic ideas than to responsiveness to economic conditions.
‘Barratry’ is a polysemic term: it means deceit, bribe, simony, and fraud of the shipmaster. This article seeks to trace the origins of the word and to explore its different meanings, focusing especially on the influence that older meanings had on the development of more recent ones. This operation is of particular importance to understand the meaning of barratry that would appear for last – that of fraud of the shipmaster. By the time civil lawyers started dealing with maritime barratry, they were already well familiar with the other meanings of the term. This probably favoured the adaptation process, but it also left a deep mark on its outcome: the weight of those other meanings of the same term had a significant influence on the qualification of maritime barratry, an influence otherwise difficult to explain.
Because of its manifold references to the consultation of medical experts in homicide and infanticide cases, the Constitutio Criminalis Carolina of Holy Roman Emperor Charles V (1532) is often regarded as an important milestone in the development of early modern forensic medicine. During the sixteenth and seventeenth centuries the County of Flanders, a principality within the Habsburg Netherlands, witnessed a similar upsurge in the production of normative and doctrinal texts aiming to regulate forensic activities. Drawing on princely legislation, local customary law and the writings of the jurists Filips Wielant and Joos de Damhouder, this contribution will compare the corpus of Flemish legal texts with its practical application by the myriad of law courts operating within the county. As the princely legislation only laid out a general framework, the regulation of the forensic post-mortem was essentially an issue of local governance. The local nature of forensic practices should however not be overestimated. Evidence from preserved post-mortem reports demonstrates that there were more similarities between towns and regions within the county than actual differences.