Zeitschrift Rezensionen

Rezensiert von: Paul Brand*

Guido Rossi (ed.), Authorities in Early Modern Law Courts. Edinburgh Studies in Law, Volume 16, Edinburgh University Press, Edinburgh 2021, 320 p., ISBN 9781474451000

1This volume contains papers from a conference held at the Centre for Legal History in the School of Law in the University of Edinburgh in the summer of 2018. Guido Rossi, the main organiser hopes (as he suggests in his introduction) that these papers will help to suggest and chart a new direction for the legal history of Early Modern Europe and one which will use surviving evidence (both printed and manuscript) from the superior courts of different jurisdictions to demonstrate the role played by the various different kinds of legal authority (the medieval jus commune and its commentators, local customs and statutes and the prior judgments of those courts themselves) as legal foundation for their judgments and the ways in which the relative importance of each of these sources in each of these jurisdictions changed over time. The papers do indeed demonstrate the possibilities offered by such an approach and over a wide geographical range of European jurisdictions. For Northern and Central Europe Maciej Mikula offers a fascinating glimpse of what it has to tell us about the law and practice of the main municipal criminal court in Cracow in Poland in the sixteenth and seventeenth centuries and Heikki Pihlajamäki provides an overview of the different kinds of authority which were invoked in the high courts of Sweden proper and the rather different kinds applied in Sweden’s overseas territories in north-east Germany which formed part of the Holy Roman Empire. Peter Oestmann’s paper on the Imperial Chamber Court and the Development of the Law in the Holy Roman Empire suggests that this court’s judgments had relatively little influence on its successors or on other courts but that the legal literature produced by assessors and others associated with the court and arising out of the cases it heard was an important influence on lower courts and can occasionally be seen to have influenced its own later decisions. From Isabelle Storez-Brancourt’s paper on the Parliament of Paris and the Making of Law at the beginning of the eighteenth century we can see how much material there survives from the highest court of Ancien Regime France but also how much work still remains to be done by legal historians on this archive to understand the substantive and procedural law of this court. Annamaria Monti’s paper on the legal authority of the Senate of Milan in the sixteenth and seventeenth centuries tells us something of the work of a court whose main archives were almost completely destroyed in the Second World War but seems to have relatively little to say on the main overall topic of the volume. Three papers look at superior courts in the Low Countries. A paper co-authored by Geraldine Cazals, Sabrina Michel and Alain Wijffels looks at the written and printed reports of judgments of the Parliament of Flanders, a French provincial sovereign court for what had in the main been the southern part of the county of Flanders, in the late seventeenth and eighteenth centuries. They show that the published reports of Matthieu Pinault (of 1702 and 1715) and Jacques Pollet (of 1716) provide good information about the authorities cited by litigants in cases before the Parliament and that Pollet also reveals the reasoning behind the judgments given (which evidently also included the use of prior judicial precedents). The paper of Philip Thomas on Legal Fragmentation in the Dutch Republic during the seventeenth and eighteenth centuries concentrates on the Hoge Rad (Great Council) of the province of Holland (which also came to act as a court of appeal and revision for Zealand). The formal judgments of the court give neither facts nor the racio decidendi for the decision but these are available in other records and in the extensive notes of van Bijnkershoek (although these were not published till the twentieth century). Thomas seems, however, to suggest, that it is mainly in the work of the great Dutch legal writers of the period from Grotius onwards that we see most clearly the emergence of Roman-Dutch law as an amalgam of local law (national, local and regional legislation and custom, Roman law and natural law) and changes over time in the relative importance of each of these elements. Alain Wijffels is the sole author of the third paper on Law Reports as Legal Authorities in earl modern Belgian legal practice. He points to the value of surviving documents submitted by proctors during court proceedings in superior courts like the Great Council of Mechlin and legal opinions obtained by litigants that survive in the archives as sources for our knowledge of the authorities cited in cases and much more useful than the official record of the decisions of the court. Of printed work he also notes the value to the legal historian of the consilia of various professors of the university of Leuven and of the various editions of Paul van Christijnen’s reports of cases decided by the Great Council, the Council of Brabant and some other courts (Decisiones). Two papers take us much further West to the Iberian peninsula. Javier García Martin looks at Legal Authorities in the Practice of the Castilian Courts in the Early Modern period when one of the most notable features of the Castilian legal system was the multiplicity of supreme courts but in which there seems to have been little interest in reporting decisions of these courts (except briefly in the seventeenth century by Larrea and Vela, two law professors at Salamanca) but much more interest in commentaries on statutes. Gustavo César Machado Cabral considers Legal Authorities in the Making of Portuguese Private Law in the sixteenth and seventeenth centuries and shows that cases decided in the higher courts were an important element (together with existing legal literature and statutory law) in the published work of the major Portuguese legal authors writing for practitioners, mainly in the Decisiones literature but also in the Resoluciones forenses practicabiles of Manuel Alvares Pegas of 1682. Last, but not least, come two papers from the British Isles. John Ford’s paper on Paradigms of Authority in the College of Justice in Scotland looks at the workings of the College of Justice from its foundation in 1532 through to the eighteenth century and its significant role in the development of private law in Scotland. He shows that initially the advocates and judges made frequent use of the literature of the mos italicus but that by the seventeenth century the basic texts of civil law were being read and used much more critically with a division developing between those who thought civil law should be followed if it was equitable and those who thought it a foreign law that they might or might not follow. The prime authority for Scottish judges and lawyers was Scottish legislation (if it had not fallen into desuetude) followed by local custom of various kinds and then civil law. David Ibbetson’s paper on Law Reporting, Authority and Precedent provides a stimulating overview of the longer-term impact of the change in England from manuscript law reporting to printed editions of Year Books and Nominate Reports and how important changes in the way litigation worked that ensured facts were ascertained before judges gave judgments which both helped to establish the English Common Law as a system of case law, based on judgments rather than the common opinions of judges and counsel. The volume shows clearly the importance for the legal historians of Early Modern Europe of understanding the role of superior courts in the development of law in the various jurisdictions but also suggests there is still much more work to be done.

Rezension vom 9. Juni 2022
© 2022 fhi
ISSN: 1860-5605
9. Juni 2022

DOI: https://doi.org/10.26032/fhi-2022-007