Im Februar 1777 lobte die Ökonomische Gesellschaft zu Bern einen Preis von 100 Louis d’Or aus für den besten Vorschlag eines umfassenden Kriminalgesetzes. Das Preisgeld kam aus dem Kreis der französischen Aufklärer. Eine Hälfte stammte vermutlich von dem Pariser Parlamentsadvokaten Elie de Beaumont, der sich in den Justizaffären um Jean Calas und Pierre Paul Sirven einen Namen gemacht hatte. Die andere Hälfte hatte Voltaire beigesteuert, der das Geld von Friedrich II. von Preussen erhalten hatte. Das Preisausschreiben war ein großer Erfolg. Neben zahlreichen unbekannten Juristen beteiligten sich eine Reihe bekannter Persönlichkeiten, von denen hier nur die späteren Revolutionäre Marat, Brissot de Warville sowie die deutschen Strafrechtsprofessoren Quistorp und Gmelin genannt seien. Die historische Bedeutung des Berner Preisausschreibens liegt darin, dass es die bis dato vorwiegend programmatische Debatte um die Strafrechtsreform in eine praktische Phase überleitete. Es trat eine Welle praktischer Reformschriften los, in denen die Forderungen von Thomasius, Montesquieu und Beccaria umgesetzt wurden. Entscheidend dafür war, dass es mittels des Preisausschreibens gelang, eine große Zahl juristischer Experten zu aktivieren, die neben dem Reformwillen auch über das Fachwissen verfügten, das für die Entwicklung eines neuen Strafrechts erforderlich war. Von den 46 eingesendeten Preisschriften sind neun im Druck überliefert. Sechsundzwanzig befinden sich in Manuskriptform im Archiv der Ökonomischen Gesellschaft zu Bern. Der vorliegende Band versammelt die Transkriptionen von sieben manuskriptförmig überlieferten Preisschriften. Vier sind in französischer und drei in deutscher Sprache verfasst. Eine Preisschrift stammt von dem Genfer Jakobiner Julien Dentand, eine andere von dem deutschen Publizisten Johann Wolfgang Brenk. Die Autoren der übrigen fünf Manuskripte sind unbekannt. Die transkribierten Preisschriften sind Teil der quellenmäßigen Basis einer Untersuchung des strafrechtlichen Denkens im späten 18. Jahrhundert. Diese erscheint demnächst in den Studien zur Europäischen Rechtsgeschichte (Christoph Luther: Aufgeklärt strafen. Menschengerechtigkeit im 18. Jahrhundert). / In february 1777 the Economic Society of Bern hosted a promotional contest. 100 Louis d’Or were offered for the best draft of a penal law codification. The prize money was donated by two proponents of the French Enlightenment. One half presumably came from the Parisian advocat Elie de Beaumont, who had made himself a name in the legal scandals involving Jean Calas and Pierre Paul Sirven. The other half of the prize money originated from Voltaire, to whom it had been given by Frederick II. of Prussia. The contest was a great success. Amongst a big number of unknown jurists several of well-known individuals took part, of which the future revolutionaries Marat and Brissot de Warville as well as the German law-professors Quistorp and Gmelin shall be mentioned here. The historical significance of the prize contest resides in the fact that it inaugurated the practical stage of the formerly programmatic debate on the reform of the penal law. It unleashed a wave of proposals for the implementation of the changes Thomasius, Montesquieu and Beccaria had sought. A condition for the practical turn of the debate was the mobilization of experts who among the good will disposed of the technical knowledge necessary to create a new penal law. In establishing this condition the Bern promotional contest played a decisive role. 46 reform proposals were handed in. Nine were published, 26 remain as manuscripts in the archive of the Economic Society of Bern. The present book gathers the transcriptions of four French and three German manuscripts. One was written by the further Genevan Jacobin Julien Dentand, another by the German publicist Johann Wolfgang Brenk. The other five authors remain anonymous. The transcribed manuscripts are part of the sources of a study on the thinking of penal law in the late 18th century, that will appear soon in the series Studien zur Europäischen Rechtsgeschichte (Christoph Luther: Aufgeklärt strafen. Menschengerechtigkeit im 18. Jahrhundert).

The members of the Canadian War Crimes Liaison Detachment ??? Far East travelled across the Pacific in April 1946 to participate in ???minor??? war crimes trials in Hong Kong and Japan. The assignment stemmed from the harrowing experiences of the Winnipeg Grenadiers and Royal Rifles of Canada in Hong Kong and Japan following the Japanese invasion in December 1941 through to their liberation from POW camps at the end of the Pacific War. Literature pertaining to war crimes trials during this period focuses primarily on the Nuremberg and other European trials, or on the major, often politicized Tokyo Trial. This dissertation addresses the frequently proffered recommendation in the literature that further explorations into the ???minor??? trials of 5600 Japanese war criminals are needed. The members of the Canadian Detachment served as prosecutors at the American operated Yokohama War Crimes Trials, as well as the British Hong Kong War Crimes Courts. Their cases covered the entirety of the POW experience, from atrocities during battle and in the immediate aftermath, to brutal abuses and medical neglect in POW camps and exploitation in war-related and dangerous labour. The Canadian trials were steeped in emerging and evolving legal concepts including issues of command responsibility and superior orders, as well as the use of common or joint trials and broadly expanded rules of evidence. The uncertainty of trial outcomes and the leniency of many of the sentences combined with the genuine effort extended by the Canadian Detachment members in investigation, case development, and in the courtroom belie the crude and misguided application of a victors??? justice framework. Although the trials were not marked with a clear sense of unfairness, their historical legacy has ultimately been a failure. When the international community sought answers to war crimes starting in the latter half of the twentieth century, these trial records have been left to gather dust on archive shelves. However, the transcripts offer historians the opportunity to better understand both the brutality and banality of the POW experience, and the legal community a series of pragmatic and thorough avenues for addressing violations of the laws and customs of war.

During the latter half of the 11th century through to the end of the 13th century, Europe was experiencing what is considered by some historians as “the” medieval renaissance, otherwise referred to as the European Renaissance of the Twelfth Century. The time appears to have been ripe for an explosion of cultural and intellectual advancement and change. Two fields that experienced significant development during that period were law and governance, both secular and ecclesiastical. In England, the period which most legal historians consider to be the key formative years of the common law was the reign of King Henry II. Indeed, Sir William Holdsworth credits Henry II for “substituting one common law for that confused mass of local customs of which the law of England had formerly consisted”. But as R.H. Helmholz said, “legal history, like any other, is a history of winners, and the history of the losing side is often overlooked. That we only hint of the history of the canon law by reference to the common law is a fact of life and not to be lamented”. However, he admonishes us not to ignore the intrinsic importance of the jurisdiction once exercised by the courts of the Church in the development of the law of England. I take up Helmholz’ challenge in this thesis and examine the relationship that developed between the English royal authorities and the Latin (Western) Christian Church from the beginning of the reign of Edward the Confessor to the end of the reign of King John. Through a review of cases reported by the Selden Society from the royal courts of Henry II, Richard I and John, I then focus my research on the 62 year period between the beginning of the reign of Henry II and the death of John, and consider the influence of the Church and State relationship on the structure and processes of the developing English royal law and its scope. / Graduate

Die Konferenz „International Conference for the 10th Anniversary of the Institute of Comparative Law” hat am 24. Mai 2013 in Szeged stattgefunden. Im Rahmen der viersprachigen Konferenz haben mehr als dreißig Teilnehmer ihre Forschungsergebnisse präsentiert. Der Essay von Zoltán Péteri blickt auf die Disziplin aus der Perspektive der Wissenschaftsgeschichte. Katalin Kelemen und Balázs Fekete gehen in ihrem Aufsatz der Frage nach, welchen Weg die Versuche der Klassifikation der Rechtssysteme von Osteuropa in der späten Phase der Umbrüche der 1980/90er Jahren genommen haben. Die historische Betrachtungsweise mit Bezug auf Rechtsgeschichte und Rechtsvergleichung spiegelt sich auch in anderen Essays wider, vor allem in den Aufsätzen von Szilvia Bató, Magdolna Gedeon und Béla Szabó P. sowie auch in den Aufsätzen von Péter Mezei und Tünde Szűcs. Attila Badó analysiert die Rechtsvergleichung aus der Sicht des Rechts, der Soziologie und der Politikwissenschaft anhand von Untersuchungen über das Sanktionsystem der Richter in den USA. Diese politikwissenschaftliche Seite wird auch in den Aufsätzen über die aktuellen Fragen der europäischen Integration von Carine Guemar und Laureline Congnard betont. Eine Reihe von Aufsätzen behandeln die konventionelle normative Komparatistik auf dem Gebiet des Verfassungsrechts (Jordane Arlettaz und Péter Kruzslicz), Gesellschaftsrechts (Kitti Bakos-Kovács), Urheberrechts (Dóra Hajdú) und Steuerrechts (Judit Jacsó). Daneben bilden eine weitere Gruppe die Aufsätze von János Bóka und Erzsébet Csatlós, die die Verwendung der vergleichenden Methode in der Praxis der Rechtsprechung untersuchen. Die Rechtsvergleichung ist eine sich dynamisch entwickelnde Disziplin. Die Konferenz und dieser Band dienen nicht nur der Würdigung der bisherigen Arbeit des Instituts für Rechtsvergleichung, sondern zeigen gleichzeitig neue Ziele auf. Die wichtigsten Grundsätze bleiben aber fest verankert auch in einem sich stets verändernden rechtlichen und geistigen Umfeld. Das Motto des Instituts lautet „instruere et docere omnes qui edoceri desiderant“ – „alle lehren, die lernen wollen.“ Auch in den folgenden Jahrzehnten werden uns der Wille des Lernens und Lehrens, die Freiheit der Forschung sowie die Übertragung und Weiterentwicklung der ungarischen wie globalen Rechtskultur leiten.

abstract: This dissertation examines the relationship between secular law and Old and early Middle English hagiography in order to illustrate important culturally determined aspects of early English saints’ lives. The project advances work in two fields of study, cultural readings of hagiography and legal history, by arguing that medieval English hagiographers use historically relevant legal concepts as an appeal to the experience of their readers and as literary devices that work to underscore the paradoxical nature of a saint's life by grounding the narrative in a historicized context. The study begins with a survey of the lexemes signifying theft in the 102 Old English saints’ lives in order to isolate some of the specific ways legal discourse was employed by early English hagiographers. Specialized language to refer to the theft of relics and moral discourse surrounding the concept of theft both work to place these saints lives in a distinctly literal and culturally significant idiom. Picking one of the texts from the survey, the following chapter focuses on Cynewulf’s Juliana and argues that the characterization of the marriage proposal at the center of the poem is intended to appeal to a specific audience: women in religious communities who were often under pressure from aggressive, and sometimes violent, suitors. The next chapter addresses Ælfric of Eynsham’s Lives of Saints and discusses his condemnation of the easy collaboration of secular legal authorities and ecclesiastics in his “Life of Swithun” and his suggestion in the “Life of Basil“ that litigiousness is itself a fundamentally wicked characteristic. Lastly, the project turns to the South English Legendary’s life of Saint Thomas Becket. Rather than a straightforward translation of the Latin source, the South English Legendary life is significant in the poet's inclusion of a composite version of the Constitutions of Clarendon, demonstrating the author's apparent interest in shaping the reception of legal culture for his or her readers and emphasizing the bureaucratic nature of Becket's sanctity. In sum, the study shows that the historicized legal material that appears in early medieval English hagiography functions to ground the biographies of holy men and women in the corporeal world. / Dissertation/Thesis / Ph.D. English 2012

The regulation of bankruptcy poses a dilemma to societies. It needs to address two problems at once: the first concerns the balance between debtor and creditor interests; the second pertains to the question between deterrence and continuity. Up to the present day there is much disagreement about the appropriate design of bankruptcy procedures. German states in the nineteenth-century found it impossible to agree on a common insolvency regime until the 1870s. This thesis investigates the legal as well as the social process of bankruptcy in a sample of towns and states in Germany between 1815 and 1870. It focused on non-Prussian legal systems in order to shed light on those alternative solutions to bankruptcy that were not ultimately adopted in the national bankruptcy code. Bankruptcy was a social process that could take place in court as well as out of court. Creditors and debtors had strong incentives to turn to extrajudicial settlement mechanisms. Where strong local corporate organisations for merchants existed, they facilitated settlements and rule-enforcement among its members out of the official court system. Those local clubs often played the role of an arbitrator. For long, bankruptcy regulation had been part of the mercantile self-administration. Legal harmonization and processes of state formation put an end to these practises. Simultaneously, an industrializing economy devised new organisational forms that were alien to the old legal framework. Toward the second half of the century, legal harmonization gained momentum; creditor protection became the focus of lawmakers while local communities and their interests no longer played a role. As German legislators built a national and universally shared legal framework, bankruptcy regulation ceased to be local and communal. This was to the liking of businessmen, who had long complained about legal fragmentation when trying to conduct business across different German regions.

European legal history, as a field of scientific enquiry, is a relatively young discipline that can trace its roots back to the German jurist Savigny, whose work on the jurists of the medieval ius commune is commonly seen as the first of its kind. As one of the foremost German scholars of the nineteenth century and a fierce opponent of German codification, Savigny laid the foundation for generations of subsequent historians, not only in terms of the scope, but also in terms of the method of enquiry. Thus, in the generations after Savigny, European legal history tended to be approached in terms of general narratives charting the development of the European legal order through successive historical epochs. Within these narratives, jurists played a prominent role. Thus, the creation of the legal order of Europe was based upon a translatio studii from the Roman jurists via the medieval ius commune to civil codes of the nineteenth century. By grouping jurists into “schools” or “movements”, modern commentators, so it was argued, were able to assess the impact of these on the narrative of European legal history. Although, since the end of the Second World War, this narrative has become more nuanced, the jurists remain central to it. This has had a number of consequences. The main consequence of this focus on jurists (mostly academic figures teaching at universities) has been the marginalisation of legal practice and legal practitioners in the narrative of European legal history. And yet, as recent research on the rise of central courts in Europe has shown, legal practice clearly had an impact on the development of the European legal order. In light of these insights, this thesis seeks to contribute to the narrative of European legal history by focusing not on the works of academic jurists, but on the activities of legal practitioners. This statement requires delimitation. Rather than focusing on a number of legal practitioners over a long period of time, this thesis will focus on a single legal practitioner who flourished during a specific period in European history using the principles of a microhistory. The individual in question is the French lawyer Nicolas Bohier (1469-1539). The reasons for this specific focus are twofold. First, a focus on a specific individual and his works allows for greater scrutiny in depth, thus providing a counterbalance to (and also a means of testing and verifying) the broad sweep accounts found in most works on European legal history. In second place, Nicolas Bohier and his oeuvre cry out for a critical analysis and, until now, remain largely unstudied. As a practising lawyer and eventually president of the regional court of Bordeaux, Bohier was at the coalface of French legal practice in the sixteenth century. As a prolific writer and editor, Bohier left a rich corpus of work consisting of records of decisions of the court in Bordeaux, legal opinions as well as customs of the region. Furthermore, sixteenth-century France is a particularly exciting topic of investigation. This period not only saw the rise and solidification of Royal authority, but also saw the beginning of the homologation of customary law in France. On an intellectual level, the sixteenth century saw the rise of “legal humanism”, a particularly controversial intellectual movement in the context of European legal history as shown by recent research. This then brings us to the central point of this thesis. If, during the sixteenth century, the medieval ius commune was being replaced by “national” legal orders across Europe, as the general surveys of European legal history state, the works of a legal practitioner would show it much more clearly than the works of academic jurists. This thesis will therefore examine Bohier’s use of the term ius commune across his works to assess not only his understanding of the term, but also to assess how this concept operated in relation to other “sources of law”, for example statute and custom. Although the results of a microhistory study should not be generalised too far, it will permit us to interrogate the general narratives of European legal history of the early modern period.

This thesis examines the construction of legal arguments in the English ecclesiastical courts, 1193-1300. The primary source materials used are the records of the thirteenth-century provincial Court of Canterbury, the earliest extensive collection of English ecclesiastical court records. The thesis is divided into two sections: 1) the development and use of Romano- canonical procedure in the Court of Canterbury, and 2) the construction of arguments based on procedure, issues of fact, and issues of law, as well as the citation of legal sources. As yet, very little work has been done on the practical aspects of litigation and legal representation in the ecclesiastical courts before the fourteenth century. By combining a broad overview of procedure with a detailed analysis of select documents and cases, this thesis will provide a more in-depth study of legal argument in the ecclesiastical courts than has previously been available. In the thirteenth century, the ecclesiastical courts were operating within an extensive framework of written law, which made the litigants dependent on both the eloquence of their argument and on their ability to cite their sources and offer proofs. The increased complexity of arguments and the appearance of explicit canon and civil law citations at the end of the thirteenth century were almost certainly a result of the development of the roles of advocates in the church courts. This study will use the surviving records from Canterbury to provide a detailed picture of litigation in the period, in particular with regard to the way in which litigants constructed their arguments and accessed representation, and the manner in which legal experts made use of their education when practising in the church courts. This will allow us to further investigate how litigants were able to understand and make effective use of a changing legal system.

A formação territorial do Brasil foi marcada por duas grandes características: a grande extensão das propriedades e a indefinição quanto aos seus limites. Se em um primeiro momento a sua aquisição se dava por concessões feitas pela Coroa Portuguesa, ou pela simples ocupação, com o passar do tempo também surgiram vendas entre os próprios particulares. Com estas características, uma questão inevitável surge já no final do século XIX na doutrina e jurisprudência brasileiras: havendo divergência entre a área tratada e a efetivamente apurada, a quem cabe a responsabilidade? O primeiro problema é o do direito aplicável: Ordenações ou Direito Subsidiário? E, neste último caso, qual seria o direito? Os Códigos Civis de 1916 e de 2002 trouxeram em seu bojo artigos tratando especificamente da questão. Contudo, permaneceram dúvidas, em especial quanto à natureza da proteção concedida às partes chave de todo o sistema. O presente trabalho pretende demonstrar, com base em subsídios históricos, que a solução tradicionalmente adotada a cisão das vendas entre ad corpus e ad mensuram é inadequada, propondo um outro modo, resgatado do passado, de se compreender o tema. / The territorial evolution of Brazil is regarded by two important characteristics: the great extension of the land properties, and the unclear definition of its limits. At first, the acquisition of land occurred by concession of the Portuguese monarchy or simply by the territorial occupation. Later on, there would be a land trade between commoners. By the end of the nineteenth century, the characteristics of the land occupation bring about an unavoidable question to the legal thinkers and court decisions: who should be responsible in case of divergence between the contracted dimensions and the found dimensions ? The first problem regards the applicable law. Portuguese \"Ordenações do Reino\" or the \"Direito Subsidiário\"? And, on the latter case, what would be the solution? The Brazilian civil codes of 1916 and 2002 brought within articles regarding the question. Nevertheless, there is still uncertainty, especially concerning the nature of the legal protection given to the parts - the key of the whole system. The aim of the present work is to demonstrate that, based on the historical facts, the solution traditionally adopted - the division of the purchasing agreements, between ad corpus and ad mensuram selling - is inappropriate. In addition, the work proposes a distinctive way of understanding the topic, based on the past.

Embracing a spatial and historical lens and the insights of critical legal theory, this dissertation maps the patterns of protest and the law in modern British Columbia―the social relations of adjudication—the changing ways in which conflict between private property rights and customary rights invoked by social movement actors has been contested and adjudicated in public spaces and legal arenas. From labour strikes in the Vancouver Island coal mines a century ago, to more recent protests by First Nations, environmentalists, pro- and anti-abortion activists, and urban “poor peoples’” movements, social movement actors have asserted customary rights to property through the control or appropriation of space. Owners and managers of property have responded by enlisting an array of legal remedies and an army of legal actors—lawyers, judges, police, parliaments, and soldiers—to restore control over space and assert private property rights. For most of the past century, conventional private property claims trumped the customary claims of social movements in the legal arena, provoking crises of legal legitimacy where social movement actors questioned the impartiality of judges and the fairness of adjudicative procedures. Remedies and legal technologies asserted by company lawyers, awarded by judges, and enforced by police and soldiers were often severe―from Criminal Code proscriptions against riotous assembly and deployment of military force, to the equitable remedy of the injunction and lengthy prison sentences following criminal contempt proceedings. But this pattern shows signs of change in recent years, driven by three major trends in British Columbia and Canadian law: (1) the effective assertion of indigenous customary rights; (2) growing recognition of the importance of human rights in democratic societies, particularly in the context of the Canadian Charter of Rights and Freedoms; and (3) changes in the composition of the legal profession and judiciary. This changing legal landscape has created a new and evolving legal space, where property claims are increasingly treated as contingent rather than absolute and where the rights of one party are increasingly balanced by customary rights, interests, and aspirations of others. Consequently, we are seeing a trend toward the dilution of legal remedies traditionally available to the powerful, creating space for the assertion of non-conventional property claims and the emergence of new patterns of power relations. / Graduate