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Islands of Transnational Governance

Alec Stone Sweet

in On Law, Politics, and Judicialization

The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law ... More

The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.Less

Medieval Incest Law—Theory and Practice

Elizabeth Archibald

in Incest and the Medieval Imagination

This chapter presents an overview of the development of medieval incest law, in relation to biblical teaching and Greco-Roman law. It raises questions about the rationale for a system of taboos that ... More

This chapter presents an overview of the development of medieval incest law, in relation to biblical teaching and Greco-Roman law. It raises questions about the rationale for a system of taboos that had become so complex by the early 13th century that to avoid hardship the number of prohibited degrees of relationship were drastically reduced by the Fourth Lateran Council in 1215. Various modern hypotheses about the medieval taboo are reviewed. Fear of inbreeding and deformity is rarely mentioned. What justified the inclusion of such distant relatives, and why the ban on in-laws and ‘spiritual incest’? How seriously did medieval people take these laws? Among the aristocracy, at least, they seem often to have been honoured in the breach. The practice of selling of dispensations to marry within the prohibited degrees was condemned by Luther, among others.Less

Servitude Doctrine in Early Law

JOSHUA GETZLER

in A History of Water Rights at Common Law

Water rights in England developed first through the application of title and nuisance actions to land-use disputes, and then by the adaptation of Roman law doctrine as lawyers categorized the results ... More

Water rights in England developed first through the application of title and nuisance actions to land-use disputes, and then by the adaptation of Roman law doctrine as lawyers categorized the results of such litigation. This chapter analyses the medieval law of proprietary incidents emerging from these two juristic sources.Less

The Property

Alexander Murray

in Suicide in the Middle Ages: Volume ii: The Curse on Self-Murder

This chapter examines the handling of the property of the one who committed suicide. As far as can be divined from the treatment of a suicide's property, it examines by whom suicide was conceived to ... More

This chapter examines the handling of the property of the one who committed suicide. As far as can be divined from the treatment of a suicide's property, it examines by whom suicide was conceived to be a wrong. It considers ethical comments on suicide, and the doctrines embedded in law, implicitly or explicitly, have their own message in this context. In particular, it estimates the degree to which the Church may have influenced suicide laws in any of its varied roles. The first section depicts usages which treated property and body as the same. The second section looks more closely at the rules of confiscation. The third section deals with the main modifications allowed by late medieval law, to understand in what respects the economic debt was seen as open to remission.Less

The Sources of Medieval Learned Law

Harry Dondorp and Eltjo J H Schrage

in The Creation of the Ius Commune: From Casus to Regula

This chapter presents the sources and editions of medieval learned law. As well as guidance on the texts, it offers advice on how to approach the study in more general terms. It draws on and updates ... More

This chapter presents the sources and editions of medieval learned law. As well as guidance on the texts, it offers advice on how to approach the study in more general terms. It draws on and updates an earlier introductory booklet which appeared in Dutch and German under the title Utrumque Ius. The discussion covers the text of the Corpus iuris civilis, Roman and Canon law, the Corpus iuris canonici, procedural law, feudal law and a strategy for research.Less

Towards the Medieval Law of Hypothec

Paul J du Plessis

in The Creation of the Ius Commune: From Casus to Regula

This chapter makes a modest contribution to modern understanding of the law of hypothec by investigating a single aspect of this legal institution and its transmission into medieval learned law. The ... More

This chapter makes a modest contribution to modern understanding of the law of hypothec by investigating a single aspect of this legal institution and its transmission into medieval learned law. The investigation focuses on the manner in which the medieval jurists engaged with a particular rule of law and the way in which they developed it. The argument is divided into two sections. First, an account of the Roman law of hypothec is provided in order to explain the context of the rule in question. Secondly, the transmission of this rule into medieval learned law is examined.Less

The Law of Slavery and the European Ius Commune

R.H. Helmholz

in The Legal Understanding of Slavery: From the Historical to the Contemporary

This chapter explores the ways slavery was defined in the medieval and early modern ius commune. It studies some of the consequences of that definition of slavery for men and women in Europe. It ... More

This chapter explores the ways slavery was defined in the medieval and early modern ius commune. It studies some of the consequences of that definition of slavery for men and women in Europe. It first defines ius commune as a combination of canon and Roman laws that led European legal education and shaped the practice in European courts between the 12th and 19th centuries. One section focuses on the texts of Roman law, while another addresses the problem of defining slavery. This is followed by a discussion of the legal changes that occurred from the eras of Roman law until medieval law.Less

An Insular Tradition of Ecclesiastical Law: Fifth to Eighth Century

Roy Flechner

in Anglo-Saxon/Irish Relations before the Vikings

This chapter examines the immediate background of the emergence of the highly influential insular canonical collections and investigates the way they relate to the earliest canonical texts compiled ... More

This chapter examines the immediate background of the emergence of the highly influential insular canonical collections and investigates the way they relate to the earliest canonical texts compiled in Ireland and Anglo-Saxon England. It discusses the Irish collection of canons Collectio Canonum Hibernensis and the Canons of Theodore, and explores how the compilers of canonical literature approached an age-old problem inherent to medieval canon law. The chapter also outlines the governing principles which characterised insular canonical thinking and shows that the Collectio Canonum Hibernensis was firmly grounded in an insular canonical tradition.Less

‘Go and Look in the Latin Books’: Latin and the Vernacular in Medieval Wales

Paul Russell

in Latin in Medieval Britain

In one form or another Latin and Welsh have coexisted and interacted in Wales from the Roman period onwards: whether in the quasi-charters of the Lichfield/Llandeilo Gospels, Braint Teilo ‘The ... More

In one form or another Latin and Welsh have coexisted and interacted in Wales from the Roman period onwards: whether in the quasi-charters of the Lichfield/Llandeilo Gospels, Braint Teilo ‘The Privilege of Teilo’ in the Book of Llandaf, the verse of the family of Sulien in Llanbadarn, the lament for the Lord Rhys in the Peniarth 20 Brut y Tywysogion (with its quotations from Ovid and Boethius), the various chronicles (such as the Cronica de Wallia), or the Medieval Welsh laws of Hywel Dda (the last two preserved in both Latin and Welsh). This chapter explores some consequences of that coexistence, and in particular how in some contexts Medieval Welsh became distinctively Latinate and how in certain respects the Latin of medieval Wales arguably became Cambricised.Less

Speaking Treason

David Cressy

in Dangerous Talk: Scandalous, Seditious, and Treasonable Speech in Pre-Modern England

This chapter discusses the medieval law of treason and its development up to the mid-16th century, reviewing case histories from the reign of Henry VI to the reign of Philip and Mary, with extended ... More

This chapter discusses the medieval law of treason and its development up to the mid-16th century, reviewing case histories from the reign of Henry VI to the reign of Philip and Mary, with extended analysis of treasonous words in the reign of Henry VIII. It reviews some legislation and case histories from an earlier period before dealing with the speech offences against Queen Elizabeth and her Stuart successors. In examining the law governing treasonable speech and its application in 15th- and 16th-century England, it notes that the treason laws of early modern rested on medieval foundations. Though periodically modified, strengthened, or adjusted, the framework that protected the Tudors and Stuarts was centred on the legislation of Edward III. Some lawyers discerned an older common-law tradition concerning treason, but the core of both theory and practice was derived from statute.Less

The Ignorant Seller’s Liability for Latent Defects: One Regula or Various Sets of Rules?

Jan Hallbeek

in The Creation of the Ius Commune: From Casus to Regula

This chapter investigates the way in which developments in medieval learned law contributed to the formation of a more general doctrine on the ignorant seller's liability for latent defects, as far ... More

This chapter investigates the way in which developments in medieval learned law contributed to the formation of a more general doctrine on the ignorant seller's liability for latent defects, as far as such liability is imposed by the law; in other words, not based on warranties or contractual clauses voluntarily agreed upon by the parties, or on the seller's malicious intent. The differing remedies in the Roman texts allowed the medieval jurists to develop contrasting solutions to complex intellectual problems as they weighed up alternate advantages and disadvantages.Less

4. The Substantive Law of Torts

D. J. IBBETSON

in A Historical Introduction to the Law of Obligations

This chapter begins with a discussion of how the substantive law of torts in the Middle Ages was inherently messy, mainly because the law of torts always responds retrospectively to alleged ... More

This chapter begins with a discussion of how the substantive law of torts in the Middle Ages was inherently messy, mainly because the law of torts always responds retrospectively to alleged wrongdoings. It then discusses strict liability and the role of fault and the scope of trespassory liability.Less

The making of marriage in fifteenth-century Valencia: canon law, civil law and community opinion

Dana Wessell Lightfoot

in Women, dowries and agency: Marriage in fifteenth-century Valencia

This chapter gives a brief history of the city from its conquest from the Muslims in 1238 to its rapid rise as the centre of the Crown of Aragon, the wider polity of which it was a part. It then ... More

This chapter gives a brief history of the city from its conquest from the Muslims in 1238 to its rapid rise as the centre of the Crown of Aragon, the wider polity of which it was a part. It then turns to consider the experiences of immigrants who moved to Valencia during the fifteenth century, exploring the various opportunities available to them and why women, in particular, came from other parts of the kingdom of Valencia, Castile, Aragon and Catalonia. The second part of this chapter sets the theoretical framework for marriage in late medieval Valencia by considering what made marriages valid in the eyes of the canon law, civil law and community opinion. It explores canonical legal strictures regarding marriage in the medieval period and then more specifically looks at synodal legislation. The next section of this chapter focuses on the civil marriage contract and examines the secular legal precepts that governed marital property. Lastly, this chapter analyses the social definitions of a marital union using witness testimony from dowry restitution cases. These criteria both complemented and differed from those defined by canon and secular laws.Less

8. Trespass, Case, and the Moral Basis of Liability

D. J. IBBETSON

in A Historical Introduction to the Law of Obligations

This chapter shows how central to the later medieval law of torts was the division between the action of trespass and action on the case. The former lay for invasive interferences to land, goods, or ... More

This chapter shows how central to the later medieval law of torts was the division between the action of trespass and action on the case. The former lay for invasive interferences to land, goods, or the person; the latter covered a range situations where loss had been caused wrongfully. The formal division between trespass and case, and the crystallization of negligence are discussed.Less

Thomas Littleton

in Shaping the Common Law: From Glanvill to Hale, 1188-1688

This chapter focuses on Sir Thomas Littleton and his book, Tenures. Littleton's arrangement of the tenures and the estates of medieval English law passed into the entire literature of the law and the ... More

This chapter focuses on Sir Thomas Littleton and his book, Tenures. Littleton's arrangement of the tenures and the estates of medieval English law passed into the entire literature of the law and the history of medieval English institutions. His Tenures was a masterly summation of English property law as that law stood on the eve of far-reaching adaptations, and was a rose of rational analysis and jurisprudential concerns in a thicket of how-to and what-was-done works. Littleton's achievement was enormous, if for no other reason than that the Tenures demonstrated that the common law of property was not all procedures but also substantive rules.Less

Conclusion

Dana Wessell Lightfoot

in Women, dowries and agency: Marriage in fifteenth-century Valencia

The conclusion to this monograph re-emphasizes the role of socio-economic status and immigration on the manoeuvrability of labouring-status women in terms of marriage and the law. It highlights how ... More

The conclusion to this monograph re-emphasizes the role of socio-economic status and immigration on the manoeuvrability of labouring-status women in terms of marriage and the law. It highlights how medieval urban settings impacted the ability of people to develop social kin networks, looking particularly at those created by women.Social kinLess