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1
Henderson, Duane. "VI. Law, Custom, and Medieval Judges." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 101, no. 1 (August 1, 2015): 217–57. http://dx.doi.org/10.7767/zrgka-2015-0109.
Анотація:
Abstract The paper studies the practice of judging marital separation cases in the ecclesiastical court of Freising in the second half of the fifteenth century. The first chapter outlines the legal position for separating marriages from bed and board as practiced in the later Middle Ages, locating the practice between canon law, the communis opinio of legal scholars and regional traditions. Using the extensive documentation of the act books of the court in Freising, the paper then systematically analyses separation processes and judgement patterns under two judges. The results reveal a number of similarities, but also distinct differences between the way the two judges treated separation cases, indicating the importance of the role of the individual judge as a variable between the ius commune and regional legal traditions.
2
Cuenca, Esther Liberman. "Bad Customs, Civic Ordinances, and “Customary Time” in Medieval and Early Modern English Urban Law." Historical Reflections/Réflexions Historiques 47, no. 3 (December 1, 2021): 39–58. http://dx.doi.org/10.3167/hrrh.2021.470304.
Анотація:
This article examines 45 preambles in collections of urban customary law (called custumals) from 32 premodern towns in England between the twelfth and sixteenth centuries. Urban custom was the local law of English towns, and constituted traditions and privileges that gained legal force over time. How lawmakers conceived of “bad” custom—that is, the desuetude or corruption of custom—was crucial to the intellectual framework of urban law. Evidence from preambles shows that lawmakers rooted the legitimacy of their laws in “customary time,” which was the period from the supposed origins of their customs to their formalization in text. Lawmakers’ efforts to reinforce, ratify, and revise urban customs by making new custumals and passing ordinances were attempts to broaden their autonomy and respond to the possibility of “bad” custom.
3
Stein, Peter. "Custom in Roman and medieval civil law." Continuity and Change 10, no. 3 (December 1995): 337–44. http://dx.doi.org/10.1017/s0268416000002836.
Анотація:
La rhétorique romaine voyait dans la coutume la base de toute loi sauf celles quiavaient été déterminées par une législation, alors que les écrits juridiques, à l'origine, n'accordaient de valeur qu'à la coutume locale dans la mesure où cette dernière complétait la loi générate. Julien le légiste soutenait que le consensus populaire qui est à la base de la législation pouvait s'exprimer aussi à travers les pratiques coutumières; au contraire, l'empereur Constantin estimait que la coutume n'était valable que si elle ne s'opposait ni au bon sens ni à la loi écrite. Les juristes du Moyen Age durent arbitrer entre ces deux positions. C'est à la faveur de ces débats que les juristes anglais trouveront de quoi justifier la nouvelle Common Law.
4
Komnatnaya, Yulia, Evgeny Miroshnikov, Irina Saveleva, Bela Bidova, and Yulia Boltenkova. "Role of the doctrine of legal customs in the formation of European law in the Middle Ages." Jurnal Cita Hukum 11, no. 3 (December 31, 2023): 403–12. http://dx.doi.org/10.15408/jch.v11i3.36084.
Анотація:
The purpose of this article is to analyze the medieval legal doctrine of legal customs as a source of law. The author uses comprehensive historical analysis based on traditional scientific cognition methods for jurisprudence, such as analysis, synthesis, deduction, and induction. The issues of the correlation of legal custom and law in Europe in various periods of the Middle Ages, the influence of customary law on the formation and development of substantive and procedural law, as well as the formation of civil and commercial legislation in European countries, are discussed. The research method used is a qualitative research method with a literature and legislation approach. The research results state that understanding of custom developed during the Middle Ages, leading to its recognition as an independent source of law on a par with statutory regulations.
5
Van Caenegem, R. C. "Aantekeningen Bij Het Middeleeuwse Gewoonterecht." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 64, no. 1 (1996): 97–110. http://dx.doi.org/10.1163/157181996x00049.
Анотація:
AbstractCustomary law is both important and difficult to comprehend. In medieval society it was paramount. It lived in people's memory and manifested itself in ritual gestures and words, and through adjudication. One competitor was legislation which, to the modem lawyer, stands in clear contrast to custom. However, medieval terms such as leges consuetudinariae show that there was at the time no absolute opposition between them. Another competitor was the learned ius commune, whose impact on the daily lives of medieval people should not be exaggerated. When trying to define customary and statute law the legal historian meets the four following problems. The first is the exact nature of the 'homologated' customs, which pretend to be old norms, but are in reality laws promulgated by the government. The second is the fact that so-called customary law often appears to have resulted from deliberate action instead of unconscious spontaneous evolution. The third problem concerns the character and application of the Volks
6
Masferrer, Aniceto. "The decline and displacement of custom in early modern Spain." Tijdschrift voor Rechtsgeschiedenis 87, no. 4 (December 19, 2019): 427–72. http://dx.doi.org/10.1163/15718190-00870a10.
Анотація:
SummaryThis article aims to describe the reasons for the decline of customary law in the early modern era. Confining the discussion to a limited geographical setting – the Iberian Peninsula – the arguments I used might be easily applied to other European jurisdictions. Part I presents an explanation of the predominance of custom in the medieval Spanish legal traditions. Part II describes the general features of the law in the early modern era, since they contributed – to a greater or lesser degree – to the demise of custom. Part III focuses more specifically on the theoretical and practical reasons for the decline and displacement of custom in early modern Spain. Part IV describes the consequences of the Decrees of Nueva Planta (1707-1718), approved by Felipe V in the context of the War of the Spanish Succession (1700-1714), regarding the development of the notion and role of custom in the eighteenth century. The article concludes with some reflections, emphasising that although customs do not easily co-exist with the state or a strong political power, neither do they entirely perish.
7
Kim, Marie Seong-Hak. "Law and Custom under the Chosŏn Dynasty and Colonial Korea: A Comparative Perspective." Journal of Asian Studies 66, no. 4 (October 29, 2007): 1067–97. http://dx.doi.org/10.1017/s0021911807001295.
Анотація:
A number of Korean legal historians have argued that Chosŏn Korea had a tradition of customary law and that it was suppressed and distorted by the Japanese during the colonial period. But a comparison of Korean “custom” with that in late medieval France, where the legal concept of customary law developed, reveals that custom as a judicial norm was absent in premodern Korea. The Korean “customary law” that has been postulated as a true source of private law in Korean historiography was the invention of the Japanese colonial jurists. The Japanese collected Korea's popular usages that were supposed to serve as an antecedent for a modern civil law, and colonial judges employed the legal instrument of custom in reordering Korean practices into a modern civil legal framework. In colonial Korea, custom played the role of an intermediary regime between tradition and the demands of modern civil law.
8
Cattelan, Valentino. "Between Theory(-ies) and Practice(-s): Legal Devices (Ḥiyal) in Classical Islamic Law". Arab Law Quarterly 31, № 3 (27 жовтня 2017): 245–75. http://dx.doi.org/10.1163/15730255-31030053.
Анотація:
Abstract By assuming a disconnection between jurists’ doctrines and the reality of social life, Joseph Schacht interpreted ḥiyal (legal devices) in classical Islamic law as ‘the maximum that custom could concede, and the minimum (that is to say, formal acknowledgment) that the theory had to demand’. Challenging this interpretation, this article argues that ḥiyal were not exclusively the product of commercial customs that were unrelated to the jurists’ ideal law. In actual fact, the diverging contractual theories of the Sunni maḏāhib contributed to the development of diverse ḥiyal practices, whose social acceptance in medieval trade was correspondingly fostered (or rejected) by underlying fiqh doctrines.
9
Jones, Andrea F. "Madness in Medieval Law and Custom ed. by Wendy J. Turner." Comitatus: A Journal of Medieval and Renaissance Studies 42, no. 1 (2011): 267–71. http://dx.doi.org/10.1353/cjm.2011.0004.
10
Aryamov, A. A., and V. V. Kulakov. "THE AMALFI CODE (TABULA AMALFITANA): PUBLIC LAW PROVISIONS OF PRIVATE LAW ORIGIN." Вестник Пермского университета. Юридические науки, no. 1 (59) (2023): 6–23. http://dx.doi.org/10.17072/1995-4190-2023-59-6-23.
Анотація:
Introduction: many modern legal institutions were originated and developed significantly in the law of the Italian city-states in the medieval period, which makes it important to study individual sources of medieval Italian law. Purpose: to introduce into scientific discourse the historical and legal doctrine of the Amalfi Code, which is a documentary monument of the 11th century. Objectives: to translate the available text of this document from the lingua franca; to describe the historical background of its creation; to establish the relationship between custom and statutory law in the legal practices of medieval Italy (through the example of the city of Amalfi); to perform institutional analysis of the text; to determine the relationship of private law and public law provisions; to assess the influence of the Amalfi Code’s legacy on the modern Russian legal framework. Methods: the universal dialectical-materialistic method of scientific cognition; deterministic, logical, and historical methods (the last one as formulated by the ancient historian Thucydides, involving the study of the prerequisites, economic and socio-geographical background, driving forces, subsequent influence of historical events). Results: the paper introduces the Amalfi Code into scientific legal discourse; the content of its text is explained in the context of historical events preceding, accompanying, and following the creation of this legal act. Its corresponding connections with Roman law, Arabic law, legal customs, and the medieval practice of law enforcement are studied. The legal institutions that were formalized in the document are analyzed through the prism of a symbiosis of the provisions of private and public law. From the perspective of ideas about the spiral process of social evolution, this phenomenon is currently manifested in the design of the national anti-corruption policy model in Russia: one of the most effective countermeasures aimed against such a criminal law phenomenon as corruption is appropriation of civil servants’ assets burdened with a defect in declaring that is performed under civil law (see subitem 8 of Item 2 of Article 235 of the Civil Code of the Russian Federation). The paper provides an analysis of the views of medieval jurists on the institution of financial insolvency/bankruptcy as a type of highly qualified fraud; parallels with this phenomenon in the modern Russian legal space are drawn. Conclusion: the study of the Amalfi Code made it possible to identify trends and patterns in the evolution of the legal system of the medieval thalassocratic city-states and to extrapolate them to modern legal realities.
11
Van Engen, John. "The Future of Medieval Church History." Church History 71, no. 3 (September 2002): 492–522. http://dx.doi.org/10.1017/s0009640700130240.
Анотація:
For centuries, from its Roman endorsement as imperial cult around the year 400 to its revolutionary disestablishment in the 1790s, the Christian religion laid claim to the allegiance of Europe's peoples, even a right to set policies about Jews. This fateful historical conjunction between the making of Europe and the spread of Christian allegiance rested upon an ever-changing mix of custom, law, and conviction, religious in coloration but political, social, and cultural in expression. Diverse practices and patterns, worked out over centuries, became so tightly interwoven that to pull on one was to stretch or unravel another. To call for religious purity or poverty was to upset social and legal custom; to round up heretics was to secure political order, and the reverse; to see into the end-state of things presaged, for some, the overthrow of Roman prelacy as the reign of Babylon, whence its reverse: to manage time and chronology was to stabilize the standing order.
12
Klein, Elka. "The Widow's Portion: Law, Custom, and Marital Property among Medieval Catalan Jews." Viator 31 (January 2000): 147–64. http://dx.doi.org/10.1484/j.viator.2.300764.
13
Greenberg, Janelle, and Robin Fleming. "Domesday Book and the Law: Society and Legal Custom Early Medieval England." American Journal of Legal History 44, no. 1 (January 2000): 83. http://dx.doi.org/10.2307/846263.
14
Kuskowski, Ada Maria. "The Time of Custom and the Medieval Myth of Ancient Customary Law." Speculum 99, no. 1 (January 1, 2024): 143–82. http://dx.doi.org/10.1086/727943.
15
van Caenegem, R. C. "Lex and consuetudo in English lawsuits from the Conquest to Glanvill." Tijdschrift voor rechtsgeschiedenis 82, no. 1-2 (October 23, 2014): 19–29. http://dx.doi.org/10.1163/15718190-08212p03.
Анотація:
Medieval people wrote and copied numerous law books, custumals and borough charters, which, however, were seldom quoted or even referred to in the law courts. Many legal historians have remarked on this phenomenon in general terms, but the present author has systematically looked for such references in English lawsuits of Norman and Angevin times. He found a number of cases where local or national customary law was mentioned, and others where specific enactments were followed. In a case of 1088 a well-known canon law book was quoted by one party in support of his claim. Laws and customs were, however, seldom specifically invoked. The author discusses the meaning of such terms as Anglica lex, leges regni, jus militare, jus feodi and patriae consuetudo and finally looks at the impact of royal legislation on ancient custom.
16
Kalinina, Elena. "Law Between Public Norm and Narrative: from Fazaña and Fuero to Royal Jurisdiction in Medieval Castile." ISTORIYA 13, no. 1 (111) (2022): 0. http://dx.doi.org/10.18254/s207987840018843-6.
Анотація:
The formation of the state-legal system in medieval Europe can be represented as a model. This is convenient for a more detailed study of historical and legal processes. This model does not completely coincide with historical reality, but it reflects the main laws of the evolution of the state and law. This process is considered on the example of medieval Castile. There the law developed in a spiral. Developed legal forms inherited from Rome were replaced by primitive barbaric law, and then returned to the patterns proposed by Roman law, but at a higher level. This evolution corresponded to the formation of state (public) power. In the described model, the following stages are highlighted. Romanization of the local population, the arrival of Roman law. Visigothic conquest, the creation of vulgar Roman law mixed with Germanic customs. The Arab conquest, the destruction of the emerging system. Castile's abandonment of the previous legal system, a return to regulation by custom. Fixing customs in court decisions, the emergence of precedents (fazañas). The influence of the Royal administration on the formation of a unified state-legal system, the creation of fuero. Development of Royal written law by means of abstract rules of law. The peculiarity of the evolution of the legal system was a fact that periods could not be rigidly separated from each other. Legal forms at each stage coexisted and interacted. Each instrument regulated legal relations in its own sphere. Another feature is that the development of law went from a narrative (a story about Law, saturated with emotions, values, morality) to an abstract faceless rule of law, the source of which was public power.
17
Nolte, Cordula. "Wendy J. Turner (Ed.), Madness in Medieval Law and Custom. (Later Medieval Europe, Vol. 6.) Leiden/Boston, Brill 2010 Turner Wendy J. Madness in Medieval Law and Custom. (Later Medieval Europe, Vol. 6.) 2010 Brill Leiden/Boston € 103,–." Historische Zeitschrift 296, no. 3 (June 2013): 763. http://dx.doi.org/10.1524/hzhz.2013.0236.
18
Van den Brande, Philippine Christina. "‘Remedium repraesaliarum’: The Medieval and Early Modern Practice and Theory of Reprisal within the Just War Doctrine." Grotiana 41, no. 2 (December 17, 2020): 305–29. http://dx.doi.org/10.1163/18760759-41020004.
Анотація:
Abstract Centuries before being included in Hugo Grotius’s De iure belli ac pacis and De iure praedae, the subject of reprisal was already being discussed in medieval literature. The aim of this paper is to examine the medieval and early modern practice and theory of reprisal as it developed before and during Grotius’s lifetime. Its first part investigates a number of important foundational elements, such as the issues of definition and terminology, and the common characteristics of a reprisal case. In the second half, the author explores why reprisals were deemed to be a ‘perversus mos’ or ‘bad custom’ and how continued reliance on this practice was nonetheless justified by inserting it into the medieval just war doctrine. The paper does not provide a systematic study of Grotius’s own engagement with medieval reprisal sources. Rather, it should be read in conjunction with another publication in this same volume, ‘Grotius on Reprisal’ by Randall Lesaffer.
19
Holt, J. C., and Robin Fleming. "Domesday Book and the Law: Society and Legal Custom in Early Medieval England." Albion: A Quarterly Journal Concerned with British Studies 31, no. 3 (1999): 438. http://dx.doi.org/10.2307/4052959.
20
Vinokurova, Marina. "Manorial Custom and Its Role in the World of English Copyhold." ISTORIYA 14, no. 7 (129) (2023): 0. http://dx.doi.org/10.18254/s207987840027255-9.
Анотація:
The article deals with the problem of manorial custom and its role in the life of peasant world of medieval England. Manorial custom is defined as a legal phenomenon of local significance, as its socio-economic, legal and moral public norm, balancing thepowerful will of manorial lord. Peculiar regulative features of manorial custom revealed themselves in the sphere of socio-economic development and manorial jurisdiction of customary courts, in the rules of inheritance and women’s property rights including widow law, in compliance with behavioral norms. Manorial custom was based on such criteria as antiquity of legal rules, reasonableness (its correlation with everyday life and manorial economic development), permanence and continuity of reliance on the custom (its frequent usage). Historical destiny of manorial custom revealed itself in the process of coercive deformation by the powerful lord’s will, constantly growing in its significance in the period of agrarian revolution because of the market conjuncture’s changing. Its role had been gradually decreasing, and this fact (together with other circumstances) partly brought to mass expropriation of English peasantry in the period of parliamentary enclosures of 18th century.
21
Yahalom, Shalem. "The Dowry Return Edict of R. Tam in Medieval Europe." European Journal of Jewish Studies 12, no. 2 (August 29, 2018): 136–67. http://dx.doi.org/10.1163/1872471x-11311041.
Анотація:
Abstract Adolescent marriage was the norm for the Jewish girls of medieval France. The frequency of death of these brides was high, which led R. Tam to decree that in the event of death during the first year of marriage all dowries shall be refunded. This edict contradicted Talmudic law that awarded the husband rights to his wife’s estate. Factors that led to the decree include personal tragedy, Palestinian custom, Roman law, and norms of royalty and feudal society. The edict of R. Tam was accepted in France and the Rhine Valley communities. However, East German communities rejected the decree by means of clever literary devices, including the invention of the author’s retraction. The conflict surrounding the Dowry Edict opens a portal to the spiritual world of the Eastern communities during their formation.
22
Laclavíková, Miriam, and Adriana Švecová. "Dve strany jednej mince – úbohá alebo veselá vdova? Právne postavenie vdovy v súkromnom práve konca 19. a v prvej polovice 20. storočia na území Slovenska." PRÁVNĚHISTORICKÉ STUDIE 52, no. 2 (September 15, 2022): 95–111. http://dx.doi.org/10.14712/2464689x.2022.21.
Анотація:
The study introduces the peculiarities of the private law status of the widow in Hungarian law and subsequently in Czechoslovak law, specifically in the legal sphere of Slovakia and Carpatian Ruthenia. It notes the respect and preservation of traditionalism in the view of the originally medieval institution of widow’s law and the efforts to gradually transform its content and scope (also in the draft of the Hungarian Civil Code of 1900). The study had to deal with the specific nature of the sources – the basis of the widow’s private law status was in fact the provisions of the Provisional Judicial Rules of the Judicial Conference (1861), legal custom, established judicial practice and only partial statutory regulation. The failure of codification efforts in the field of Hungarian civil law and the subsequent reception of the law into the Czechoslovak legal order led to the preservation of this platform of sources of law – and thus also certain relics of medieval law – in the law in force in the territory of Slovakia and Carpathian Ruthenia. The study approaches the widow through her broadly understood widow’s right (ius viduale), competing with the husband’s legal heirs, and its place in the period of constructed modernity.
23
Barnwell, P. S. "EMPERORS, JURISTS AND KINGS: LAW AND CUSTOM IN THE LATE ROMAN AND EARLY MEDIEVAL WEST." Past & Present 168, no. 1 (August 1, 2000): 6–29. http://dx.doi.org/10.1093/past/168.1.6.
24
Wijffels, Alain. "A British ius commune? A Debate on the Union of the Laws of Scotland and England during the First Years of James VI/I's English Reign." Edinburgh Law Review 6, no. 3 (September 2002): 315–55. http://dx.doi.org/10.3366/elr.2002.6.3.315.
Анотація:
This article considers the debate about the union of Scots and English law which followed the Union of the Crowns in 1603. The catch-phrase “union of law” was itself ambivalent, referring as it did to a range of different forms ofharmonisation of Scots and English law. Moreover, the British debate is not altogether alien, whatever the special status and weight the English Common Law had already acquired, from that which went on at the same time on the European continent. The same fundamental tension can be perceived between an established order and a new, emerging constitution of the commonwealth. On one side, a traditional attachment to ancient freedoms inherited from medieval times and struggles was perceived by many as the very foundation of partiadar laws expressed through a variety of authorities, the extension of which could be anything from a local custom or statute to a body of legal rules prevailing throughout the realm. On the other side, the growing concept of sovereignty based on fresh premises, sometimes connected to the first signs heralding some national identity, paved the way for a transformation of the established legal traditions (such as customs, statutes, and the learned law), which lost henceforth some of their autonomy in order to accommodate the new dynamics of early-modern sovereignty. The most successful legal developments of that period were indeed those which combined that medieval legal heritage of “ancient liberties” and the early-modern concept of sovereignty. It is easy to see several parallels between the present-day discussion on the making of a European “common law” and the debate on the union of laws which was meant to “perfect” the union of the Crowns in 1603.
25
Beckerman, John S. "Procedural Innovation and Institutional Change in Medieval English Manorial Courts." Law and History Review 10, no. 2 (1992): 197–252. http://dx.doi.org/10.2307/743761.
Анотація:
In England during the twelfth, thirteenth, and fourteenth centuries, the royal courts cast a longer and longer shadow over private and local jurisdictions. By a series of steps embracing much innovation, the custom of the king's court gradually became the common law of England, and the royal courts asserted their supremacy over other jurisdictions in many areas. Foremost among these were disputes over freehold land and cases involving felonies. It has been suggested that the royal innovations’ jurisdictional effects on private courts were “neither intended nor foreseen.” Nonetheless, they reduced private jurisdictions—with the exception of the palatinates—to constitutional insignificance during the thirteenth century. Occasional baronial objections, such as that enshrined in clause thirty-four of Magna Carta or the bluff waving of a rusty sword at a quo warranto inquest do not disguise this basic fact of English legal and constitutional history.
26
Nasir, Mohamad Abdun. "Islamic Law and Paradox of Domination and Resistance." Asian Journal of Social Science 44, no. 1-2 (2016): 78–103. http://dx.doi.org/10.1163/15685314-04401006.
Анотація:
Judicial divorce symbolises women’s resistance to the domination of local interpretations and practices of Muslim family law in Lombok, such as male arbitrary repudiation and polygamy. In this pattern, husbands hold the privilege to terminate marital unions unilaterally and remarry without their wives’ consent. These practices find their grounds in classical-medieval Islamic jurisprudence (fiqh), which is endorsed by the custom of patriarchal society. It is by turning to the court that women attempt to subvert such hegemonic discourses. By examining divorce cases from the religious courts, and looking at their broader socio-religious and cultural contexts, this study attempts to propose an analysis of judicial divorce as a locus of women’s resistance against male domination endorsed by local practices of Islamic law, customary law and state law, and examines an important dimension of contemporary practice of Islamic family law, which reveals patterns of domination and resistance.
27
Skvoznikov, A. N. "The concept and purpose of punishment in Russian medieval law." Vektor nauki Tol’attinskogo gosudarstvennogo universiteta. Seria Uridicheskie nauki, no. 3 (2022): 34–39. http://dx.doi.org/10.18323/2220-7457-2022-3-34-39.
Анотація:
The paper considers the evolution of the purpose of criminal punishment in the sources of Russian medieval law with regard to the subjective guilt of a law-violator. For a long time, the essence of punishment in Russian law was expressed not so much in the application of sanctions to an offender for violating the norm of behavior (a custom) by the latter, but in restoring the violated order (the truth) and satisfying the victim’s resentment by causing physical suffering to an offender, or to compensate an offense by recovering the property of an offender. The essence of punishment was expressed in the restoration of justice, which was understood as an equivalent retribution to an offender for the evil committed, causing offense, and violating the general order. Such an understanding of the idea of justice, inseparable from law, has historically become the core of Russian legal consciousness. The author used the methods of historical-legal and comparative-legal analysis to study the activities of the legislator to limit the use of retaliation (revenge) by victims against an offender carried out privately without the state power participation. The author concludes that in the late medieval period, during the formation of the Muscovite state in the XIV–XV centuries, punishment becomes a compensatory remedy representing not a private, but a public (state or class) interest. Punishment in the state hands becomes retribution (punishment) to an offender formally on behalf of the whole society, but, in fact, on behalf of the ruling class. The legislator begins to pay attention to the internal (subjective) attitude of a person to a committed offense and its consequences when sentencing.
28
Rominskyi, Ye V. "Local rule-making in Ancient Rus’." TRANSFORMATION LEGISLATION OF UKRAINE IN MODERN CONDITIONS DOCTRINAL APPROACHES AND MEASUREMENTS, no. 14 (September 1, 2023): 314–20. http://dx.doi.org/10.33663/2524-017x-2023-14-314-320.
Анотація:
The subject of this study is the ways and methods of regulating legal relations at the local level in medieval Ukraine. The main attention is paid to the state formations of the East Slavic legal-cultural and political space of the 11th–14th centuries. The legal reality of Ancient Rus’ was characterized by limited centralized legal regulation. In contrast to the Middle Ages of Western Europe, rulers in Ancient Rus’ did very little to create laws. As a result of this policy, a significant part of legal relations had to be settled at the local level. The unique social structure of Ancient Rus’, which did not know self-governing urban communities, did not know self-governing craft guilds, etc., also contributed to this. The complex structure of the society of Ancient Rus’, its characteristic features and basic elements is revealed. Family and pseudo-family corporate structures served as the basis of society. These structures included certain families, clans, large and small families, as well as numerous «people of the house», that is, people who were in various types of legal dependence. Attention is drawn to how these corporations, as rule-making subjects, regulated relations within themselves and among themselves. The contractual nature of pseudo-family corporate structures, whose counterpart in Western Europe is «conjuratio», is revealed. Ancient Rus’ was characterized by the lack of legal formalization of the division of society into estates. At the same time, a significant number of types of forms of early feudal and ministerial dependence, as well as slavery, are known. There is no record of the existence of proper laws, or of the regulation of such relations of dependence through tradition. Thus, dependency relations in all their forms were mostly to be regulated by local law acts, in particular by law-making treaties. And the more complex the form of dependence was, the more complex was the legal act regulating it. A separate subject of research is church institutions and monasteries, which formed separate corporate structures with their own regulatory system, which combined both downward normative legal regulation and local rulemaking, which could come into conflict with such centralized legal regulation. Attention is also paid to terminological problems and their solution at the modern stage. It is necessary both to update the existing scientific terminology and to be cautious about the terminology of the past. The peculiarities of the use of the word «custom» (zwychay) in the medieval society of Ancient Rus’. Examples from church literature illustrate how this word was used precisely in a legal sense, which is quite different from the modern legal understanding of legal custom. Key words: Medieval Ukraine, East Slavic state formations, Ancient Rus’, Medieval Law, Ancient Rus’ Law, law-making treaty, Source of Law, Legal history.
29
Davies, R. R. "Presidential Address: The Peoples of Britain and Ireland, 1100–1400: III Laws and customs." Transactions of the Royal Historical Society 6 (December 1996): 1–23. http://dx.doi.org/10.2307/3679227.
Анотація:
Edward I and his judges delivered some of the most resounding obiter dicta on the nature of law and justice in the medieval period; but on occasion they found themselves at the receiving end of such pontificating practices. One such occasion took place at Oswestry in January 1279. Walter de Hopton and his fellow justices were ambling their way through the interminable dispute between Llywelyn ap Gruffudd, prince of Wales, and Gruffudd ap Gwenwynwyn, lord of Powys and client of die English king. In rotund phrases, at once deeply flattering and profoundlychallenging to Edward I, Llywelyn delivered himself of a grand declaration about the relationship of law, people and political power:Each province under die empire of the lord King has its own laws and customs according to the habit and usage of the parts in which it is situated—for example, die Gascons in Gascony, the Scots in Scodand, the Irish in Ireland and the English in England. This indeed exalts rather than diminishes the crown of the lord King. The Prince accordingly requests diat he likewise should have his Welsh law and should proceed according to it. He has all the more reason for making diis request since the King, of his own free will, in die recent peace treaty concluded between diem, granted to Llywelyn and all Welshmen die right to have their own law. By natural justice (de jure communi) he ought to have Welsh law and custom, just as other peoples(naciones) under the empire of the lord King have their laws and customs according to their language, or ethnic affiliation (secundum linguam suam).
30
Vinokurova, Marina. "Problem of Legal Inheritance of English Medieval Borough: Borough Customs about Debt Obligations." ISTORIYA 12, no. 9 (107) (2021): 0. http://dx.doi.org/10.18254/s207987840017053-7.
Анотація:
This article is devoted to the problem of legal inheritance of the medieval English boroughs in the field of debt obligations (their regulation by borough customs). Usually this legal regulation was linked with the process of attachment, distress and further confiscation of property in case of default of a debtor. Borough customs organized everyday life of boroughs in due way and brought to life an element of “civilized approach” in the sphere of law. They minimized behavioral anarchy when collecting debt. In spite of the fact that in some boroughs the right of collecting belonged to a creditor, who could distress his debtor right in the street, nevertheless the process of distress wasn’t marked by a total legal arbitrariness. In many cases distress was prohibited inside the house in order not to brake its private space, and a debtor usually received a summon to appear in court (sometimes it was sent thrice). Attachment and subsequent trail provided a special legal procedure and its proper order in the actions of both plaintiffs and defendants, including their behavior before the Jury. Besides, after the sale of property on the account of debt, a defendant could (and often was obliged) initiate so-called replevin, that is return to himself a part of property (or its monetary expression) which had not been sold after cash coverage of debt. He had to initiate so called affidation (appeal to bailiffs through the court). At the service of the persons connected with debt obligations was also a custom of withernam, which provided a collective responsibility of borough community for financial “costs” of its members.
31
Rosati, Simone. "Community (Custom) vs. State (Law): The Debate about Property in the Papal States in the 18th – 19th Centuries." Studia Iuridica 80 (September 17, 2019): 335–53. http://dx.doi.org/10.5604/01.3001.0013.4817.
Анотація:
During the 18th century, an increasingly strong individualistic attitude in the way of understanding the relationship between man and the tangible world spread throughout Europe. The legal institution which, more than any other, suffered from the effects of this reductionism was the Property as victim of incredible compression in comparison to medieval world. The exclusive model that the new Enlightenment and the bourgeois mentality wanted to adopt was the individual Property, to the detriment of all those forms of possession documented in the Middle Ages. The present study intends to investigate, in the geographical context of the Papal States, the great juridical dispute between the individualistic model – endorsed by the Sacred Legislator – and that of a collectivistic nature defended by the Community.
32
Heirbaut, Dirk. "A source of inspiration for legal historians: Raoul van Caenegem’s views on legal history." Tijdschrift voor Rechtsgeschiedenis 88, no. 1-2 (June 25, 2020): 24–41. http://dx.doi.org/10.1163/15718190-00880a09.
Анотація:
Summary Although Raoul van Caenegem claimed otherwise, he had very strong views on what legal history should be. In his opinion, legal history belonged to the disciplinary field of history, not to law. The legal historian should not only chronicle past evolutions of the law, but also explain them. To this purpose, van Caenegem himself turned to sociology, trying to work with types and models in order to generalise. Van Caenegem rejected the idea of a Volksgeist and advocated to look at the European context in a comparative legal history. Nevertheless, his ‘Europe’ was limited to the founding members of the European Union, joined by England. He constructed legal history as a history of power and preferred to study groups of law makers instead of individuals. In his legal history, the European ‘Second Middle Ages’, from 1100 until 1750, stand out as the cradle of the modern rule of law, with a special role for the cities of medieval Flanders. Although well-known for a leading handbook promoting the idea of the ius commune, the common law of Europe, van Caenegem actually deemed custom to have been the primary source of law in medieval Europe, whereas the role of the ius commune had been, in his opinion, overestimated. As he showed many times during his distinguished career, van Caenegem wanted legal historians to take part in current debates. In the end, his main lesson from legal history was a plea for moderation, as taking a sound idea to its extreme leads to absurd or unintended consequences.
33
Vinokurova, Marina. "Etude on Comparative Source Studies: Example of Medieval English Manor." ISTORIYA 12, no. 12-1 (110) (2021): 0. http://dx.doi.org/10.18254/s207987840018303-2.
Анотація:
The paper offers a number of problems connected with specificity and comparative characteristics of manorial records — surveys and court rolls of medieval England. Manorial surveys as a basic type of records include various data concerning lands, tenements, and rents of English peasants, entry fines, heriots, enclosures, different social types of peasantry, etc. A number of them have been thoroughly researched by Russian historians, while manorial court rolls haven’t been yet researched enough. Manorial court rolls if compared with manorial surveys, are sources of another type. They represent everyday life of English medieval peasantry, including its legal aspects as well as crucial role of manorial custom in the relations between peasants and manorial lords; order of manorial courts’ work and their types; crimes and punishments in the manors; borrowings from the system of Common law (e.g. the Jury), etc. Manorial court rolls have been substantially researched in England and in the USA by both historians and legal scholars. This article also deals with the problem of interpretation of numeric and legal “languages” of manorial records.
34
Neville, Cynthia J. "Domesday Book and the Law: Society and Legal Custom in Early Medieval England, by Robin FlemingDomesday Book and the Law: Society and Legal Custom in Early Medieval England, by Robin Fleming. New York, Cambridge University Press, 1998. xix, 548 pp. $95.00." Canadian Journal of History 34, no. 1 (April 1999): 84–86. http://dx.doi.org/10.3138/cjh.34.1.84.
35
Marienberg, Evyatar. "Menstruation in sacred spaces. Medieval and early-modern Jewish women in the synagogue." Nordisk Judaistik/Scandinavian Jewish Studies 25, no. 1 (January 1, 2004): 7–16. http://dx.doi.org/10.30752/nj.69606.
Анотація:
How sacred is the Synagogue? Can a woman enter this holy place while menstruating? What is more sacred: the space, or the Holy objects within it? In the classic sources of the Halakhah, the Jewish Law, one can find no restrictions on women from entering a synagogue while being in the state of Niddah, the state of menstrual impurity. Nevertheless, in the medieval period, more and more sources indicate that many women avoided going to the synagogue when at this state. Why? Was this custom created by women, or by men? Where did it originate? The article suggests it was the same religious mentality that pushed Jewish and Christian women to avoid going to their respective Houses of Worship while menstruating. The custom was socially problematic, as it prevented women from participating, at least passively, in the service, and from being a visible part of the community in its weekly reunion. It is suggested that in order to solve this issue, the notion of the sacrality of the synagogue was reduced to some extent in the mind of many Jewish women in the early-modern period. The Sacred was the Torah Scroll, the holiest object in the synagogue, and not so much the Synagogue itself. By doing that, women created a new viable solution: they could enter the synagogue without feeling to be transgressing its sacrality. Their respect to the Holy was shown by them avoiding looking at the Torah Scroll when it was presented to the worshippers.
36
Furrow, Melissa. "Dalhousie University." Florilegium 20, no. 1 (January 2003): 125–27. http://dx.doi.org/10.3138/flor.20.038.
Анотація:
There are only a handful of scholars who have their primary appointments in Dalhousie departments and a primary interest in medieval fields. In French, we have Hans Runte, best known among medievalists for his work on the Seven Sages of Rome, but his more recent publications have been in the field of Acadian letters. In English, we have Hubert Morgan, who works in Middle English, Old Norse, and Old English (romance, saga, and epic are particular interests), and Melissa Furrow, who has finally completed a long labour on reception of romances in medieval England (Expectations of Romance: Drasty Rymyng or Noble Tales, currently under review) and is now returning to an earlier editorial project (Ten Fifteenth-Century Comic Poems) to revise for a new edition with TEAMS. In History, we have Cynthia Neville, well known personally to members of CSM for her extensive work 011 the national and international scene on prize, review, and adjudication committees, and more broadly known through her scholarship on late medieval English legal history and on Scottish social, political, and cultural history. She is the author of Violence, Custom, and Law: The Anglo-Scottish Border Lands in the Later Middle Ages (Edinburgh UP, 1998) and the forthcoming Native Lordship in Anglo-Norman Scotland: The Earldoms of Stratheam and Lennox, 1170-1350 (Four Courts Press). A recent and exciting addition is Jennifer Bain in Music, a music theorist who works on Hildegard of Bingen, and on fourteenth-century music. This tiny number and the clearcut disciplinary boundaries proclaimed by departmental organisation might suggest that medieval study at Dalhousie has fallen off steeply from the days when we had a formally recognised honours degree in Medieval Studies and a bigger pool of faculty. It is true, a bigger pool would be helpful, and the priority within English for the next appointment is for a medievalist. But in various ways medieval studies at Dalhousie does better than it looks as if it should.
37
Ackerman-Lieberman, Phillip I. "Commercial Forms and Legal Norms in the Jewish Community of Medieval Egypt." Law and History Review 30, no. 4 (November 2012): 1007–52. http://dx.doi.org/10.1017/s0738248012000685.
Анотація:
Scholars agree that medieval Jewish legal writers responded to “the needs of the times” in making their legal rulings, carefully choosing the legal sources and precedents upon which they relied, rereading or even rejecting those sources in light of their quotidian reality. Particularly in the Geonic Period, as Talmudic norms encountered a geographically expansive community experiencing radical social transformations in the engagement with Islam, as well as rapid economic development concomitant with the rise of the ʿAbbāsids, which urbanized and transformed the economic life of the Jewish community, classical sources of Jewish law faced new pressures. Geonic leaders responded to these pressures by making recourse to the traditional institutions of taqqana (Hebrew, “legislative enactment”) and minhag (Hebrew, “custom”). Therefore, it is widely accepted that the vicissitudes of daily life influenced both the responsa of the Geonim and their contributions to the expanding codificatory literature. On the other hand, the potential influence of Jewish legal norms upon daily life remains an unsettled area in the study of the history of the premodern Jewish community. A paucity of documentary or archaeological evidence complicates this problem, and edited literary texts of various genres remain themselves among the most important witnesses to Jewish life in the period.
38
Brett, Mark G., and Naomi Wolfe. "Sovereignty: Indigenous Counter-Examples." International Journal of Public Theology 14, no. 1 (May 8, 2020): 24–40. http://dx.doi.org/10.1163/15697320-12341599.
Анотація:
Abstract Through assertions of ‘sovereignty’, modern nation states lay claim to an undivided authority. It is commonly suggested that this kind of political assertion superseded the overlapping authorities of medieval theological imagination. But in settler colonial states, Indigenous sovereignties endure to the present, not washed away by the ‘tide of history’, and in many cases Indigenous peoples embrace Christian identities along with traditional law and custom. The peculiar complexities of Australian history reveal many counter-examples to the conventional modernist tale, and in particular, the article seeks to show how Indigenous Christians snatched the King James Bible from Protestant doctrines of discovery. This discussion comes at an historically significant time as Australian state governments contemplate treaty making with the First Nations, each of whom exercise their own alternative model of sovereignty within local jurisdictions. This article argues that biblical theologies can support the making of modern treaties.
39
Wolffe, John. "The Church of England in the Diocese of London: What does History have to Offer to the Present-Day Church?" Studies in Church History 49 (2013): 248–58. http://dx.doi.org/10.1017/s0424208400002175.
Анотація:
On 21 February 1900 in St Paul’s Cathedral Bishop Mandell Creighton delivered his first, and what proved to be his last, visitation charge to the clergy of the diocese of London. He began by reflecting briefly on the particular challenges of his own position and of London itself, but quickly moved on to focus on current ecclesiastical controversies, especially the nature of holy communion and the practice of confession. Creighton had been a historian long before he became a bishop, and it was therefore natural that his response to contemporary issues should rapidly move into an insightful lecture on Reformation history. His analysis was both specific and general. For example, he pointed out that breakfast was not normally eaten in medieval and early modern societies and so congregations naturally came fasting to a late morning communion service. In changed social circumstances it would be inappropriate ‘to revive this custom as an absolute law’.
40
Korzilius, Sven. "Property vs. Liberty: Procedural law and practice of freedom trials in Portugal and Brazil." Fronteiras & Debates 4, no. 1 (February 19, 2018): 55. http://dx.doi.org/10.18468/fronteiras.2017v4n1.p55-85.
Анотація:
The article provides an overview of the historiographical debates on the relevance of law and courts for colonial slavery in the early modern, presenting several possible master narratives. Departing from the question about the legal sources used by the jurists of the early modern era producing “slave law in action”, the article focuses on procedural law of the freedom trials, especially on the interim situation of the person whose status the trial was about. This aspect of the proceedings is fascinating, because here the tension between the two extreme positions of the parties (liberty vs. slavery/property) is discharged for the first time. A close look at the sources proves that the jurists sought to justify the possible solutions not only with the custom of the courts (<em>stilus curiae</em>), but that a variety of legal formants contributed to colonial slave law, notably the authority of the Roman model, which the article presents shortly in its development, and of certain medieval forms, like the <em>summariissimum </em>or the <em>actio </em>(or<em> execeptio</em>)<em> spolii</em>. Legal doctrine was frequently quoted. As a result, Brazilian colonial slavery did not occur in a legal vacuum, but proves to have been highly institutionalized, and many aspects of the civil law of slavery appear as a relatively conservative continuation of European practice, without visible innovations to the favor or the detriment of the unfree population.
41
Drew, Katherine Fischer. ":Domesday Book and the Law: Society an Legal Custom in Early Medieval England . By Robin Fleming ( New York , Cambridge University Press , 1998 ) 548 pp. $95.00." Journal of Interdisciplinary History 30, no. 3 (January 1999): 498–99. http://dx.doi.org/10.1162/jinh.1999.30.3.498.
42
Drew, Katherine Fischer. "Domesday Book and the Law: Society an Legal Custom in Early Medieval England. By Robin Fleming (New York, Cambridge University Press, 1998) 548 pp. $95.00." Journal of Interdisciplinary History 30, no. 3 (January 2000): 498–99. http://dx.doi.org/10.1162/jinh.2000.30.3.498.
43
James, Stuart. "Domesday Book and the Law:98432Robin Fleming. Domesday Book and the Law: Society and Legal Custom in Early Medieval England. 1998. xiv + 548 pp, ISBN: 0 521 63038 X £60.00 ($95.00)." Reference Reviews 12, no. 8 (August 1998): 15–16. http://dx.doi.org/10.1108/rr.1998.12.8.15.432.
44
Łapa, Romana, and Agnieszka Słoboda. "Językowe wykładniki intencji prawodawcy w Kodeksie Działyńskich." LingVaria 31, no. 1 (May 10, 2021): 99–110. http://dx.doi.org/10.12797/lv.16.2021.31.08.
Анотація:
Linguistic Exponents of the Legislator’s Intention in the Działyński Code
The article presents syntactic methods of expressing the legislator’s intentions in the medieval legal document called Kodeks Działyńskich (the Działyński code). The intention is understood by the authors as ‘the goal towards which the action of the legislator is directed’. This type of element of a legislative text does not appear in modern legal texts, apart from the Code of Canon Law. However, in the oldest texts, the purpose of which was to change a functioning custom into binding law, the justification for introducing certain regulations was very important. We also pay attention to the information about the legislator, which is included in the text. The information is expressed by pluralis maiestaticus forms of performative verbs. Three types of syntactic structures serve to express the intention of the legislator: subordinate clauses introduced by the conjunction: aby, participial sentence equivalents based on the verb chcieć, and prepositional phrases with prepositions: na, ku and dla. These structures usually occur in preposition to the superior predicate. The fragments excerpted from the text are characterized by a considerable degree of cohesiveness, not only in terms of meaning but also in structure. A sentence or a participal construction in the semantic relation of the goal functions in a broader context, therefore it becomes necessary to introduce reference indicators and anaphorical elements such as repetitions, pronouns and pronominalization.
45
Neville, Cynthia J. "Robin Chapman Stacey, From Custom to Court: The Road to Judgment in Medieval Ireland and Wales, Philadelphia: University of Pennsylvania Press, 1994. Pp. xvi + 342. $46.95 (ISBN 0-8122-3216-X)." Law and History Review 14, no. 2 (1996): 376–78. http://dx.doi.org/10.2307/743789.
46
Karim, Ridoan, and Imtiaz Mohammad Sifat. "Treatment of silence as misrepresentation in contracts." International Journal of Law and Management 60, no. 1 (February 12, 2018): 69–78. http://dx.doi.org/10.1108/ijlma-08-2016-0073.
Анотація:
Purpose This paper aims to provide a comparative discussion on silence as a misrepresentation in contractual obligations between common law and Islamic law. The objective of this paper is to – from a legal pluralism point of view – highlight the contrasts between the two traditions and provide recommendations for best practices to achieve fairness and equity among the contracting parties. While common law does not treat silence as conscious misrepresentation, in Islamic law, silence does not constitute affirmative will. This has repercussions for the contracting parties because if future disputes arise, the aggrieved party in Islamic law reserves the option to rescind or nullify the contract – an opportunity not afforded by common law. We have discussed and analyzed the implementations of the different contractual terms, such as fraud, misrepresentation, trickery and deception in relation with Islamic law principles and common law practices. This research is an effort to draw the attention for further development in both Islamic law and common law practices on contractual obligation. The notion of misrepresentation – subset of a broader gamut of fraud – is arguably nebulous in Islamic literature as well. We delve into these nuances and provide examples both from common law and Islamic law precedents and provide recommendations for reform in both traditions. Design/methodology/approach This paper operates under qualitative methodological framework and uses secondary sources for analysis. Sources include journal databases, review of cases, classical/medieval Islamic scripts, etc. Findings This paper provides a general comparative study between common law’s principle and practice and Islamic law’s principle to forge a better understanding of fine-tuning existing practice and contribute to the debate on determining the best practices to unify international trade and custom exercise. Common law principle, obviously, holds a historical and traditional reputation as those principles are derived from long years of practice and judicial interpretation. Such historical legal system should accommodate fresh ideas in their repertoire and welcome novel ideas which would positively influence its own practice. This paper affords the freedom to the reader to interpret which general principle is acceptable in terms of contractual obligation. Originality/value Previous works exist on the issue of misrepresentation. However, those are mostly explanations of fraud and deceit in Islamic law or common law. The treatment of silence as affirmative will is seldom touched upon. To the authors’ knowledge, this is the first attempt at contrasting the treatment of silence in common and Islamic law. They have also advocated pluralistic practices and argued for legal reform whereby both traditions can benefit from each other.
47
Holt, J. C. "Robin Fleming. Domesday Book and the Law: Society and Legal Custom in Early Medieval England. New York: Cambridge University Press. 1998. Pp. xix, 548. $95.00. ISBN0-521-63038-X." Albion 31, no. 3 (1999): 438–39. http://dx.doi.org/10.1017/s0095139000070630.
48
Brand, Paul. "Domesday Book and the Law: Society and Legal Custom in Early Medieval England by Robin Fleming. Cambridge: Cambridge University Press, 1998, xix + 437 + (indexes) 111 pp (hardback £60.00) ISBN 0 521 63038 X." Legal Studies 19, no. 1 (March 1999): 114–18. http://dx.doi.org/10.1017/s0261387500004803.
49
Katančević, Andreja. "Hutman of Serbian Medieval Law." Anali Pravnog fakulteta u Beogradu 70, no. 2 (June 28, 2022): 517–31. http://dx.doi.org/10.51204/anali_pfbu_22205a.
Анотація:
The subject of the paper is the institute of hutman in Serbian medieval mining law. The first question to be answered is related to the extent of transplantation of the institute from Saxon customs to Serbian written law. The second aim is the definition of the competence of hutman and the way he was appointed. The results indicate the Despot Stefan’s Mining Code recognized two different institutes of hutman. The first was auxiliary service to urbarar, measuring and marking the land in the procedure of granting mining concessions and after breaking one mine into another, charging a fee. He was probably appointed by tax collectors. The second one is the supervisor of a mine, entitled to collect the payment from the owners of its shares, to record it and presumably to take care of correct conducting all kind of activities in the mine. Most likely he was employed by the shareholders of the mine partnership. The linguistic, systemic, and historical interpretation is applied as well as the comparative method and regressive analysis.
50
Plotskaya, O. A. "USUALLY-LEGAL MEDIEVAL SOURCES (FORMS) OF HUNGARIAN LAW." Law Нerald of Dagestan State Universit 34, no. 2 (2020): 44–49. http://dx.doi.org/10.21779/2224-0241-2020-34-2-44-49.
Анотація:
In this paper, we study the usual legal medieval sources (forms) of Hungarian law that existed during the 11th – 16th centuries. Considerable attention is paid to the analysis of historical and legal texts of monuments of law containing empirical data. The paper discusses various Hungarian legal customs.