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During the draing process from the 1920s to 1940s, the Weimar Constitution (WRV) played a decisive role in shaping Chinese social(-ist) con- stitutions, especially the part related to the social- economic issue. Through the lens of cultural trans- lation, this paper seeks to explain how the WRV was adapted, reinterpreted, and recontextualized throughout several rounds of constitution making in China. By focusing on the roles played by the translators, legislators, and interpreters, this paper discusses how the social rights created by the WRV were translated into the fundamental policy of the 1947 Constitution of the Republic of China. More- over, regarding »policy« as the legal instrument for regulating the social-economic life, and even broader fields, it triggers the modern transforma- tion of Chinese meritocracy and reinforces the national legal tradition depicted in its modern form. To some extent, this case study on cultural translation of constitutional law discloses the mechanism, both temporarily and spatially, for the intercultural communication of the normative information.

This paper deals with the use of matrimonial dispensations to marry relatives in prohibited degrees by Canon law, mainly among the indigenous peoples of Charcas (present Bolivia) during the seventeenth and eighteenth centuries. As a source to understand social and religious practices, the dispensations provide a privileged place of observation, insofar as they constitute a gap between the norm and the social practice, and a space of interaction and agency, from the anthropological point of view, since the request for dispensations was part of the social and material reproduction strategies of indigenous groups. Even when, in this sense, the use of this legal recourse does not seem to differ much from what the population of European origin did, which secularly employed the same resource, this paper proposes that the reasoning behind the use of matrimonial dispensations, as well as the arguments employed varied in both socio-ethnic groups. From the vantage point of a global history of law which involves the Tridentine Church, expanded around the globe, dispensations are an example of the accommodation in terms of »time, place and circumstances«. Taking into account that the Council of Trent had extended matrimonial impediments, the granting of dispensations among the indigenous population serves as an example of the paradoxes of the Christianisation of marriage in colonial Hispanic American territories, which frequently forced the Church to dissimulate and make concessions rather than to restrict and discipline.

By analyzing the encounters at the borders between the Kingdom of Castile and Granada, and those on the Canary Islands, this paper delves into the dynamics of slavery and captivity practiced by Christians, Muslims, and the Indigenous inhabitants of the Canarias archipelago between the 15th and 16th centuries. Legal and judicial documents from this period show how common human trafficking was in the peripheries of the Spanish dominions even before the overseas expansion. This activity often included revolts, horseback raids, robberies, death, the capture and enslavement of people, and other notions such as slavery under ›just war‹, which sometimes blurred the margins between slavery and captivity. Whether at sea or on land, life in the frontier was a difficult one, with people exposed to many dangers. Furthermore, these local practices had global significance once the Spanish Empire expanded its frontiers to America and beyond.

This paper analyzes the institutional and legal organization of the Brazilian Empire during the transition from the Old Regime to a liberal world, in a country still deeply affected by its colonial status. The paper tries to answer the following questions: With the country moving towards independence, how was the new liberal order put in place in a continental, agro-exporting, slave-owning and predominantly illiterate country like Brazil, whose source of power came mainly from large rural estates? And how was the new normativity established during this huge and long period of transition? It is determined that the liberal framework involved new constitutional and infra-constitutional laws, while also accepting the survival of old legal and judicial rules and doctrines.

This paper reflects on legal pluralism. How did medieval societies incorporate both unwritten customs and written law at the same time? How did they constitute the process of finding justice? What is the essense of legal pluralism, and will it help us understand the situation of Taiwan’s indigenous population? We aim to solve these problems by taking a closer look at medieval Saxony: for around 400 years, both laws given by the authorities and traditional customs in Saxony worked fine in parallel. The latter were put into writing by the legal practitioner Eike von Repgow around 1230 for reasons unknown. We refer to his collection of laws and customs of the Saxons as the Sachsenspiegel (»Mirror of Saxons«). While Saxons certainly differed from Taiwan’s indigenous population for many reasons, such as the supposedly weaker egalitarianism among the Saxons than among at least some indigenous groups, the two show some remarkable similarities nonetheless. Just like the Taiwanese Gaya, the Sachsenspiegel’s spiritual origin raises the claim to validity. Furthermore, comparing the handling of a person’s sale of inherited property, the legal situations in the Sachsenspiegel and Taiwan’s unwritten customs resemble each other. The heir can transfer only property he acquired personally. Furthermore, the author discusses the different character of courts and procedure under oral law in contrast to written modern law. Finally, the paper concludes with some remarks about a learned commentary on the Sachsenspiegel written around 1325, combined with an outlook on the possible future of Taiwanese customs.

Based on anthropological and historical considerations, this paper analyses the evolution of the relationship between Western law and aboriginal custom in Latin America by focusing on the most tangible and problematic issue in customary law: land tenure. My aim is to provide a critical review of the impact of the rule of law in the arrangement of the alternative cosmologies that flows from the material and spiritual relationship of indigenous groups with their lands. Historical and political issues will be emphasised to illustrate the current problems concerning the interaction between custom and formal law in the case of the Mapuche people from Chile. By looking at some recent developments in the arena of public law, indigenous legislation and legal doctrine, the paper finally suggests how private law discourse, which traditionally has paid almost no attention to the discussion of indigenous law, might be integrated into the legal systems that widely recognise indigenous customs.

The question of what the law is may preoccupy some legal theorists. Answering it is definitely the legal professionals’ nightmare. Constitutional and statutory requirements now require Taiwan’s officials and lawyers to confront the problem of ascertaining and applying indigenous customs in the exercise of all state powers. Yet, the most widely accepted juridical concept of custom results in a choice between two evils, to wit, breaching either the general duty to uphold law or the concrete obligation to respect indigenous values. So far, efforts have only been made to document the customs, but the documentation thus produced is too ethnographic to be legally useful. The challenge, therefore, is one of translation. Values are to be carried from an indigenous world into the modern one, and the little-known form of custom is to be expressed in the language of the science of law. This paper argues for the translation of indigenous customs with conceptions available in an array of examples from European legal history. This paper explains that, in cases like Taiwan, the solutions known to the English-speaking literature all end in the dilemma I call »modern state centralism« (MSC). The solutions are divided into two types: legal pluralism and Francisco Suárez’s conception of custom. The former defeats itself in that its criticism against the state’s monopoly of law amounts to suggesting that the state tolerate all kinds of non-state normativity. The latter reduces to MSC because recent literature ignores Suárez’s legal historical references and important studies written in German. The rest of the section shows how »non-modern« legal techniques may help. This paper concludes by suggesting that the concept pair of law and custom be dissociated from four others, to wit, written and unwritten law, state and society, law in books and law in action, and, finally, alien and native law.

The article is a working paper from the project ›Non-state law of the economy. The normative order of industrial relations in the metal industry from the Empire to the early years of the Federal Republic of Germany‹, undertaken at the Max Planck Institute for Legal History and Legal Theory in Frankfurt am Main (mpilhlt). A key part of the project is the creation of a digital edition of primary sources that reflects the diversity of norms and regulations in factories of the metal industry in the 19th and 20th centuries. The article illustrates the multiplicity of these normative arrangements by looking at work regulations (Arbeitsordnungen) and explains their importance for the history of labour law as well as the theoretical links to the research of the mpilhlt. Using the regulation of working hours as an example and selecting specific keywords – including the regulation of work breaks, of smoking and of child labour, and the introduction of measures to monitor individual working time – the article demonstrates the possibilities of analysis offered by a digital source edition and discusses preliminary methodological considerations and challenges of the digital editing of legal sources.

The term Enlightened Absolutism reflects a certain tension between its two components. This tension is in a way a continuation of the dichotomy between power on one hand and law on the other. The present paper shall provide an analysis of these two concepts from the perspective of Carl Gottlieb Svarez, who, in his position as a high-ranking Prussian civil servant and legal reformist, had unparalleled influence on the legislative history of the Prussian states towards the end of the 18th century. Working side-by-side with Johann Heinrich Casimir von Carmer, who held the post of Prussian minister of justice from 1779 to 1798, Svarez was able to make use of his talent for reforming and legislating. From 1780 to 1794 he was primarily responsible for the elaboration of the codification of the Prussian private law – the »Allgemeines Landrecht für die Preußischen Staaten« in 1794. In the present paper, Svarez’ approach to the relation between law and power shall be analysed on two different levels. Firstly, on a theoretical level, the reformist’s thoughts and reflections as laid down in his numerous works, papers and memorandums, shall be discussed. Secondly, on a practical level, the question of the extent to which he implemented his ideas in Prussian legal reality shall be explored.

This article deals with some crucial aspects of the legal history and culture of Jews in the late Russian Empire and the early Soviet Ukraine, 1905–32. Considering numerous unique archive and printed sources, this paper examines the following fields: the legal and political features of the Jews; the tax on kosher meat; the court cases involving participation by Jews; the development of legal terminology; and finally Jewish lawyers before and after 1917. The article argues that the so called »Jewish question« was in essence a legal question. The cases presented in this paper prove a continuity of certain norms and practices between the tsarist and Soviet periods.

This paper is a prolegomenon to further study of the intensified relationship between law and moral theology in early modern times. In a period characterized by a growing anxiety for the salvation of the soul (»Confessional Catholicism«), a vast literature for confessors, which became increasingly juridical in nature, saw the light between roughly 1550 and 1650. By focussing on some of the most important Jesuit canonists and moral theologians, this article first seeks to explain why jurisprudence became regarded as an indispensable tool to solve moral problems. While Romano-canon law showed its merits as an instrument of precision to come to grips with concrete qualms of conscience, with the passing of time it also became studied for its own sake. The second part of this paper, therefore, illustrates how the legal tradition, particularly with regard to the law of obligations, was reshaped in the treatises of the moral theologians.

Science and technology scholars tend to emphasize space over time. Current studies in the history and sociology of laboratory practices mainly focus on the »spaces of knowledge« tied to and created by these practices, e. g. institutional settings, networks of human and non-human actors, visual and textual representations, etc. This paper argues in favour of a more dynamic, time-based understanding of science. Drawing on examples from the history of 19th century physiology, it suggests conceiving of experiments as machines that combine and contrast a variety of times: the time of the experimenter, the time of the model organism, the time of the instruments, the time of reading and writing, etc. It is true that historians of science have often dealt with the problem of time, in particular with concepts of time and time measuring. However, in these studies time often remained an exterior parameter of the natural and/or artificial phenomena and processes investigated by historical actors. The more recent work of authors such as Andrew Pickering and Hans-Jörg Rheinberger suggests conceiving of time as an operator built into the very functioning of »experimental systems.« Along these lines, the paper briefly discusses the semiotic and material culture of the pioneering experiments on the propagation speed of nerve stimulations carried out by the German physiologist Hermann von Helmholtz in the early 1850s. These experiments contributed in important ways to our understanding of physiological time as the »proper time« (Eigenzeit) of organic individuals. At the same time, they illustrate in an exemplary manner that the organization and management of time in its diversity is a crucial factor in the construction of scientific objects.

This paper analyses the distribution channels for law books in the Hispanic Atlantic world, the agents who took part in the circulation of books, and the recipients of consignments of books. The aim is to identify the infrastructure that underpinned the transport of books from Europe to the Spanish Crown’s American territories. In addition, an analysis of the distribution spaces and characteristics of supply provides an overview of the mechanisms that operated in the market for law books in the early modern period. As a result, it has been possible to identify instances of law libraries belonging to Crown and ecclesiastical officials as well as shipments delivered to booksellers, students and holders of civilian or ecclesiastical offices. It has also been possible to demonstrate the presence of pragmatic texts intended for a variety of audiences and to trace consignments bound for judicial officials and notaries, who needed compendiums of the laws and rules in effect in Spain’s overseas possessions.

The History of Parliament Oral History Project has been interviewing former Members of the UK Parliament since 2011. Life stories from inside Parliament reveal missing information about personal motivations, informal cross-party collaboration and use (and misuse) of procedure that helps to demonstrate both how the institution worked and the difficulties of writing and passing legislation. Oral history interviews can be used as a source to add different perspectives on legal history, encouraging researchers to challenge more traditional sources. The paper discusses memories of some controversial legislation where individuals have deeply-held beliefs: laws around abortion. This is an example of how oral history can be used to understand the complexities of the process of law making and how things are done inside an institution, while also providing some personal and human perspectives on Parliament

This paper, drafted in response to Dr. Kiesow’s question, »Wozu Rechtsgeschichte?«, begins with a backward glance at the nineteenth century, when legal history played a leading role in the intellectual life of the western world. Since those great days, when legal history attracted figures like Karl Marx and Max Weber, the field has fallen on hard times. This is in large part the inevitable consequence of the declining prestige of law itself, which no longer seems to matter in the way that it did in the nineteenth century. Nevertheless, the paper pleads for something of a Return of Grand Theory in legal history. It is true that we can never bring back the glory years. But we can be figures of importance in the public debates of our time if we remain mindful of what it is that gives law itself its enduring social importance. Law reflects, in an unsystematic but telling way, some of the basic value commitments of society-commitments such as the contemporary American commitment to the free market, or the contemporary European commitment to »human dignity«. Law also reflects stylized histories of a given society’s past-histories like that of the American triumph over race slavery, or the European triumph over Nazism. These value commitments and stylized histories are the natural territory of legal historians, who can best claim a role for themselves in public debate if they think of themselves as historians of values, rather than as historians of social realities.

The Forum of Young Legal Historians came together in Budapest this year, being inaugurated by high political and clerical dignitaries and accompanied by an impressive cultural program. Following the motto »A new Europe and its Traditions. Ius privatum – ius publicum – ius canonicum« several interesting papers were given, but mostly contributors seemed eager to examine traditions rather than anything »new«. Very traditional, indeed, the entire style of research: To »prove« and »preserve« the past was the intention of many papers given. Legal historical research presents itself, as much with the young as with the old, as both timeless and lost in time, ignoring the fact that anything happening – meaning also research – is happening in present times. More of this presence of mind would be of great help for legal history. One way of gaining this presence could be through modern social theory – a way worth being tried by young legal historians.

From the very beginning of writing culture, there has been a deep semiotic interrelationship between language and money, which has already been described from various perspectives by philosophy (Plato, Georg Simmel), linguistics (Ferdinand de Saussure) and media and communication studies (Marshal McLuhan, Niklas Luhmann). Hence, economy in literature not only plays a constitutive role in the plot, but also in the poetological structure of the text itself. An evident example of this semiotic connection between literature and economy is the evolution from coin to paper money, which is linked to an increased level of abstraction and semantic risk for textual structures.A similar but much more complex interrelationship between the semiotics of money, on the one hand, and poetics, on the other, is present in contemporary literature dealing with postindustrial financial economics. In contrast to economic subjects dealt with in the 19th and early 20th centuries, financial economics based on algorithms and computerisation no longer have any semantic or narrative qualities. Three examples from different language cultures show how this loss of narrativity in financial economics is reflected in contemporary literature: Don DeLillos’ Cosmopolis (2003), Elfriede Jelinek’s The Merchant’s Contracts (2006) and Vladimir Sorokin’s Capital (2006). The volatility of the exchange market is emulated in the temporal structure of DeLillos’ novel, the tragedy of Jelinek’s work shows how financial technical rationality leads to a desemiotisation and a complete emptiness of linguistic sense, and Sorokin’s drama shows how the technical maximisation of profit goes hand in hand with memory loss and atavistic rituals in the social sphere.

In the early 1990s, the Fritz Thyssen Foundation organized a series of working groups that explored the history of the humanities in Germany in the 1920s. Knut Wolfgang Nörr took the initiative to merge his working group on the history of jurisprudence with that led by Friedrich Tenbruck (who was later succeeded by Karl Acham) on sociology, and that of the author on economics, in order to pursue the process by which the old German Staatswissenschaften split into separate disciplines. While interacting less, they all had to respond to changing challenges such as those connected with the First World War. The paper concentrates on Nörr’s personal contribution. He started from Adolph Wagner’s view of law as derived from the state, as opposed to the traditional foundation of civil law on Roman private law. Cooperatives, social policy, the first elements of the welfare state created under Bismarck, cartels and state enterprises led to conceptions of an organized capitalism that were reflected in the paragraphs dealing with economic matters in the Weimar Constitution. The joint Thyssen project was extended, and the joint working groups considered in subsequent sessions (later published in two volumes) how liberalism was revived as ordoliberalism, in theory as a clandestine oppositional movement during Nazism, in practice – though subject to various compromises – after the Second World War, and how the academic outlook in the three disciplines of the humanities changed around 1968. Nörr examined how Keynesianism and planning optimism came into conflict with the ordoliberal conception. The constitution of the Federal Republic did not define the economic order, the social market economy was ambiguous between the principles of efficiency and redistribution. The state had a duty to stabilize the economy according to the law of 1967, but the legal standards to judge whether this obligation was being fulfilled were ill-defined. The economist, however, has to confront the economic crises and has to propose measures to mitigate them, and so it becomes a new task to reconcile ordoliberal principles with requirements of Keynesian stabilisation policies.

Publicity rules for the marriage ceremony were one of the key issues addressed by the Fathers gathered at the Council of Trent. As from this watershed moment certain conditions had to be met before, during and aer the wedding ceremony to guarantee this publicity. Some of these rules were also conditions sine qua non of the validity of the bond. This new Tridentine legisla- tion was soon implemented in Spanish America. This paper deals with enforcement of this new marriage ritual in the archdioceses of Lima and Charcas before the Pragmática Sanción of 1776. The research is based mainly on an examination of the provisions laid down by local councils and synods, together with the pastoral instruments that were most widespread in the Andean region. This is rounded out by a check of some pastoral visitations and written wedding records kept by parish priests in their Libros de matrimonios (Marriage Registers). All this research together gives a good working idea of how Tridentine marriage rules were actually enforced in the area.

During the 17th and 18th centuries, the practices of learning were regulated by an informal »moral economy of knowledge«. Practices like fraud, plagiarism and symbolic claims to a superior social status were difficult to control and could not be handled by the law alone. Setting the norms for scholarly practices can thus serve as a case study for the workings of multinormativity in early modern societies. The deviant practices of scholars were addressed by religious norms, the ideals of courtly society and the emerging bourgeois society, and they were articulated in different media like satires, academic dissertations and moralizing pamphlets. The multinormativity of the discourse of scholarly vices was not compensatory but operated on different layers of normativity concerning both the sources of articulation and the origins of different norms. The paper traces in three steps how the norms of conduct of the learned were implemented. First, it discusses norms beyond the law, then it focuses on the jurist as an object of that normative order, and third it takes a look at the challenges of regulating practices of social distinction in juridical terms. Practices of self-fashioning beyond the limits of what was deemed acceptable were counted as misdemeanours but nevertheless were hard to sanctify. Grappling with that challenge became a multinormative project that offers new insights into the historicity of normative orders as well as orders of knowledge.

Today’s growing multinormativity arises out of global developments in the world of states and their societies. As a result, there has been a corresponding increase in the legal and non-legal rules governing their actions and behaviour. The present paper focuses on the phenomenon of historical »multinormativity« that determined the legal and normative systems of the 17th –18th centuries, since »mononormativity« has not, in fact, ever existed. A large number and variety of laws, stemming from social elites or the ruler on specific legal questions, constitutes a veritable cosmos of norms of quite different genres in this period. Thus, pressure necessarily emerged to regulate competition and conflicts between these different norms as well as a search for solutions through comparative study.

In this paper I compare two field studies of customary law in action. Minangkabau in Western Sumatra is home to the largest population with matrilineal property transmission rights in the world. I show how customary law, the so-called »adat«, has been an essential part of the identity of this population, next to Islamic law, since the 17th century. Adat was also shaped by the efforts of the Dutch colonisers to write it down. My second case is set in the French medieval town of Beauvais at the turn of the 12th century, when the town was thriving. I focus on one judicial conflict surrounding a water-mill. The document pertaining to this case is the oldest to provide information about customs in Beauvais. This document illuminates the evolving legal consciousness of competing groups in the city and the process by which a medieval judge wrote custom down.

The terms used to refer to the sources of law are still marked by the influence of Rome: lex and consuetudo. Despite this semantic legacy, it is difficult to know what those terms referred to in the Roman period. Of course, it would be presumptuous to transpose our modern categories and to consider laws as impersonal and general rules issued from sovereign powers, and customs as spontaneously generated uses that have been accepted by the social groups concerned. Though Roman jurisconsultes did not deal with the theoretical question of custom, the problem of the relationship between laws and customs did occur in the practice of law. Everywhere in the provinces, local rules persisted alongside Roman law, and judges had to reconcile the discrepancies. Obviously, it is impossible to grasp the realities of native laws. When texts mentioned the consuetudines of some cities, those customs were only considered in light of their interactions with Roman law. Legal anthropology has emphasised that the very existence of custom does not simply reflect popular will. Rather, it is linked to a legal order anxious to choose from among local traditions those to be deemed customs. In the Late Empire, customs are mainly visible in administrative matters, and those administrative customs could be part of the very legacy of Rome. Indeed, they helped to shape particular identities. My paper will promote the view of legal anthropology to understand the role of the custom in Late Antiquity. I focus on the fact that custom can be understood as a privilege (privata lex), especially in the case of the first national laws given to barbarian tribes established in the Late Roman Empire.

The essay, originally written in German as an introduction to a volume of collected papers, shows the influence of the Historical School of Law on legal, historical and social sciences in Germany throughout the 19th and even 20th centuries – a time span running contrary to the dominate view that sees the end of the School in the middle of the 19th century. In my view the School constitutes not only a method for developing norms of private law out of the historical materials of Roman and German-Germanic laws, but is based on a wider conception of culture, law and history that is also connected to the political positions of that time. In Savigny’s founding pamphlet, »The vocation of our time ...«, two major theoretical topics for this long-lasting influence can be found: The Romantic one, which views law as a part of culture and parallel to language and custom, based on the »spirit of the people«, and, on the other side, the rationality of the European tradition of Roman law, which was developed and administered by jurists. These two basic points, in part standing in contradiction to one another, form a fertile tension that provides an impulse to the intellectual discussions and new movements in jurisprudence and history analysed in the text. Realism, founded in the connection of both sciences to political and social life, builds a kind of »basso continuo« and acts as a counterbalance to the former two. And it is in this context that the works of Jacob Grimm, Puchta and Beseler, Heinrich Brunner, Georg von Below and others are analysed, in particular the works of Otto von Gierke and Max Weber. Finally, evidence is furnished that a new image of the medieval period, and its impact on law, as a centre of Western identity was outlined in the 20th century by authors like Ernst Kantorowicz, Fritz Kern, Otto Brunner and, last but not least, by Harold J. Berman (walking in the footsteps of Eugen Rosenstock- Huessy), all of whom were situated in different ways within the tradition of the broader, cultural-based Romantic view.

This paper discusses the possibility of thinking the colonial ambit of 19th century Spain as a common legal space in which legal understandings and categories covering both the metropolis and colonies are shared. The consolidation of the American independences and the political redefinition of Spain, not to mention its imperial remnants would have led in appearance to a normative division of space between metropolis and colonies; one that allegedly would have introduced the European Spain into a liberal constitutionalism, while the American and Asiatic territories would have remained mired in the Ancien régime, thus giving rise in 1837 to the »special legislation« attributed to the Spanish Antilles and the Philippines. However, if the entirety of that space was contemplated not from the perspective of a legal system, but rather from a wider cultural and juridical point of view, then a shared understanding of the law both on the Peninsula and overseas would emerge which had the potential to explain how the metropolis conceived, through juridical instruments, the government of the colonies and, in turn, how they modulated the progressive establishment of the own Spain as a liberal state.

What happened to the tremendous legacy of juridical knowledge left behind in Italy in the 6th century? Into what labyrinth did it plunge only to re-emerge after the silent age of the early Middle Ages into the light of day, and effectively come to shape the renewal of the jurisprudence at the beginning of the 12th century? One-and-a-half centuries after the fanciful writings of Hermann Fitting, legal historians are still looking for the answers to these questions. Considering the new information we have (especially coming from the paleographical research), this paper re-examines the existence as well as the activities of the school of Rome both during the Justinian Age and in the two centuries thereafter. The aim of this essay is to verify whether Rome, during the very early Middle Ages, continued to represent a centre of juridical culture. According to the hypothesis developed in this contribution, Rome – at that time – not only played a very important role with regard to the material conservation of the Justinian’s libri legales, but also in the initial establishment of the new (i. e., Justinian) imperial law in the West and creation of its image as a significant juridical centre. The absence of such a centre as well as its wide-spread image would truly make the Bolognese renovatio appear ›miraculous‹ and very difficult to explain. After Justinian, the 7th and 8th centuries can truly be characterised as ›silent‹ in the history of Roman law in the West. However, by studying the medieval manuscript tradition, in particular, that of the Institutiones and the Novellae, we can gather together a series of elements helping us to clarify the situation. Also quite useful is an examination of the manuscript tradition of the Collatio legum Mosaicarum et Romanarum. Through the spread and use of these Late Antique works, we can see how – in conjunction with the actions of the papacy – Rome, toward the end of the 8th century, returned to being a centre of world politics and – given that law follows politics – of the legal culture.

The paper discusses the relationship between history of law and history of science. It argues that just as the history of science has recently been widened to include a more encompassing history of knowledge, the history of law may also be conceived of as part of a larger history of normativity. Science and law, when viewed as cultural abstractions deriving from reflections on concrete practices and experiences along historical trajectories, must be understood from a global perspective. Aspects of a global history of knowledge that shaped the emergence of modern science inform this approach.

The paper analyzes how the self-regulatory institutions of two legal professions – attorneys-at-law and in-house lawyers – developed in Poland and Russia from the second half of the 19th century until the collapse of state socialism at the beginning of the 1990s. These two countries constitute the most contrasting cases of socialist transformation in the region in terms of legal traditions and of the broader socio-political context. To adequately grasp the case differences it is necessary to include the formative period of the modern legal profession in the region. The comparative analysis uses the conceptual framework of the sociology of professions. It shows that (1) attorneys-at-law were able to preserve a certain degree of collective autonomy and self-regulation during most of the time; (2) institutional path dependencies reaching back into the pre-socialist past determine the degree of autonomy and self-regulation; (3) the discrepancy between both countries is particularly pronounced in the case of the occupational group of in-house lawyers; (4) the state-socialist regimes were, therefore, not as unifying and homogenizing as it is sometimes assumed.

Der Artikel ist den sog. probati auctores gewidmet, d.h. Kanonisten und Theologen, die gemeinhin als bewährte und getreue Interpreten der Lehre der katholischen Kirche in Fragen des Kirchenrechts, des Glaubens oder der Moral anerkannt sind. Die Ursprünge dieser Wahrnehmungskategorie liegen teils in einer Personalisierung der Lehre von der communis opinio, die im spätmittelalterlichen Ius Commune entwickelt worden ist, teils in älteren theologischen Vorstellungen wie z.B. von dem heiligen Kirchenvater und Kirchenlehrer. Ausgehend von einer Entscheidung Benedikts XIV. ( Redditae Nobis) von 1744, wird der Frage nachgegangen, weshalb die »bewährten Autoren« in der Kanonistik bis ins 20. Jahrhundert eine so hervorragende Rolle spielten, während die communis opinio in der weltlichen Jurisprudenz im Laufe des 18. Jahrhunderts zunehmend an Bedeutung verlor. Dabei kommen vor dem Hintergrund der zeitgenössischen Wissenschaftsgeschichte u.a. kanonistische Informationsbedürfnisse und -angebote in den Blick. Das betrifft zum einen das Interesse an einem gesamtkirchlichen und »römischen« Bild des Kirchenrechts, zum anderen die Funktion der probati auctores als Instrument der Kurie, durch das sie die kanonistische Meinungsbildung beeinflussen konnte. Das working paper endet mit einem Ausblick auf das allgemeine Erkenntnispotential und mögliche Forschungsperspektiven.

The paper observes the emergence of an international order of criminal prosecution in Europe from the late 18th century, which was characterised by two ambiguous developments: nation-based criminal law systems on the one hand and an increasing demand for international, transborder co-operation in matters of criminal law and criminal justice on the other. For with increasing migration, economic transactions and political dissidents, new crimes and threats of order and security, which could not only be handled within the national criminal systems, evolved. Thus the main fields in which a new international order in criminal matters was developed over the course of the 19th century were extradition, asylum and mutual assistance, as shaped by international treaties, domestic national laws and by international legal discourses. Based on different national legal orders and traditions, nearly every country established slightly different legal regulations and instruments, though in the long run it was inevitably the establishment of rules and instruments of transborder co-operation and mutual assistance in criminal matters which would at last lead to an international – and fragile – order of criminal prosecution. In this regard the project that will be presented in the conference makes a wide-ranging topic for comparative legal history in the field of criminal as well as international law.

This paper studies the relationship between the concepts ›crime‹ and ›sin‹ as used in the criminal law of the modern Spanish Monarchy, analyzing the interpretative postulates of Francisco Tomás y Valiente’s classic work. Based on juridical and theological literature, as well as the types of »leges mere poenales« and »leges poenales mixtae«, the text analyzes the difference between »lata sententia« and »ferenda sententia« penal rules. To conclude, an evolution of the general criteria used to classify the penal statutes of the 19th century is explained.

This paper addresses the role played by federal judicial institutions in Argentina during the nineteenth-century rebellions and civil wars, thus adding a dimension of the Argentine state-building process frequently neglected in historiography. Contrary to received interpretations emphasizing the institutional mechanisms introduced by the 1853/60 Constitution to limit the concentration of power in the hands of the national executive and the subordination of judges to political authorities, this article aims to recover the ways in which judicial institutions protected civilians involved in military conflicts and guaranteed due process to the rebels. Using judicial decisions from provincial judges and the National Supreme Court as sources, the article covers episodes in the establishment of federal jurisidiction over military or provincial tribunals in the treatment of rebels, the protection of civil liberties and economic interests of civilians in wartime, and the limitation of the responsibility of civilians involved in acts of rebellion against political authorities. Finally, following the pioneering work of Jonathan Miller, the article reflects on the role played by the court in creating a »spirit of moderation« towards political opposition, thus contributing to the establishment of modern political institutions.

The advent of the republican state involved the imposition of liberalism as the central value of the new institutional Latin-American order. Such a process, justified by the prestige of the European experience, was supported by the proliferation of a set of laws aimed at cancelling any reference to the colonial system. In its economic profile, the new ideology gravitated around the establishment of individual freedom of disposition over the most valued asset according to the European values of physiocracy: the land. For this reason, the process of economic consolidation led to the establishment of an increasing market in land based on individual titles to property, and to the eradication, through an exhaustive legislative production, of any obstacle to the free alienability of land. This paper illustrates, within the wider legal framework required to carry out this operation, the ideological and normative approach that altered the structure of the land tenure systems of the Andean indigenous groups during the 19th century. Our analysis will focus on the principal legal milestones enacted in four countries of the Andean area: Argentina, Bolivia, Chile and Peru, with particular regard to the experience of the Bolivian state during the period between 1825 and 1880. The study seeks to reflect about the legal transplant of possessive individualism in order to provide a critical review of the impact of the rule of law in the arrangement of the indigenous agrarian system during the 19th century.

The purpose of this paper is to examine the general outline of the constitutional reforms approved in the countries of the Andean region in the past decades. It is preceded by a general consideration of the meaning of constitutions and constitutional development in Latin American juridical culture. It also approaches the origins and political meaning of some constitutional processes and analyzes recent attempts to revise the constitution carried out in the region.

The »juridification« of covert investigations in the transition from the ius commune inquisition process to the reformed criminal justice process of the 19th century, understood as a material (i. e. law creating) normative distinction between true or wrongful circumstances, is a complex phenomenon. This paper traces the introduction of covert investigations into the law of criminal procedure. It takes its starting point in the uncodified, but nevertheless legally sophisticated search and seizure of letters or the use of informers in the ius commune process. Influences of the French Revolution on the development of law, the 19th century’s early individual legislation, but mainly the tumultuous times before the Revolution of 1848 and the great surge of single procedural codes in the mid 19th century are the subject-matter of this analysis. This research has unearthed some surprising facts: Juridification affects various measures in quite different ways. At the same time, it is shaped by subjects which are hardly comparable with one another (monarchs, parliaments etc.), and it is associated with the production of the criminal process as a subject that manifests itself particularly in the redefining of the pre-trial phase.

Sir Kenelm Digby, when living in Paris, served as mediator for the correspondence between the mathematicians John Wallis (Oxford) and Pierre de Fermat (Toulouse). In a letter of February 6, 1658 to Wallis, Digby claimed that Fermat as »supreme Judge in the sovereign Court of Parliament« of Toulouse had condemned a priest, who had abused his position, to be burned alive. What actually happened has remained in dispute until now. In this paper, I describe how I managed to solve the case, an important event in Fermat’s life, in the archives and libraries of Toulouse.

The nature of the Empire was the object of constant discussion on the part of the jurists. In the 15th century, the Italian intellectuals paid more particular attention to the nationality of the Emperor and confirmed its inevitable non-Romanization and its subsequent Germanization. The present paper examines the sources, both legal and humanistic, of this important debate. One of the turning points in the discussion was the creation of the duchy of Milan in 1395. Baldo degli Ubaldi was one of the legal experts to make his contribution, explaining that the creation of duchy was like a revival of the Empire in Lombardy. At the end of the century, the discussion between Italians and Germans became more virulent. At stake was the legitimate nationality of the emperor. The question is not neutral because it reveals the capacity of the intellectuals to use the most diversified sources to answer the fundamental question of the legitimacy of states, in particular Italian territorial states. It is moreover striking that humanists and Italian jurists, so often in opposition between themselves, have had convergent points of view on this issue, even when the theoretical base of their reflection was not the same. The Empire had stopped being Roman and had been reduced to its Germanic dimension. The German intellectuals naturally tried to benefit from it.

The Italian science of criminal law in the second half of the nineteenth century is closely linked with politics and with the construction of the new Italian liberal State. Criminal science is the privileged meeting point of political theory and the new social sciences in general. This theme is responsible for the orientation of a great part of historiography, reflecting a dichotomy between two Italian juridical schools: the Scuola liberale (Carrara, Lucchini) and the Scuola positiva (Ferri, Lombroso). Among the new social sciences, the »positive school« made use of psychiatry, statistics and criminal anthropology in order to discuss the approach to the criminal problem, constructing the figure of the »delinquent« to redefine the problems of liability and of the rationale of punishment. In this framework the paper expounds the role of medical examinations in the criminal trial through the analyses of the leading criminal reviews and the legislation of the late nineteenth century. The debate, which started with the reform of the regulation of medical examinations, allows us to reconsider the dispute between doctors and jurists for supremacy over deviance and crime, emphasizing the transformation of the judge into a doctor and of the doctor into a judge.

On the basis of an analysis of the legislation passed to control migration, passport formats and the practice of frontier controls, this paper argues that social rank – often directly tied to class of travel – remained a crucial category for migration control even in the liberal, bourgeois nineteenth century. It could rival nationality, ethnicity, or religion as a basis of inclusion or exclusion at borders. Even the First World War did not lead to a complete triumph of nationality or race over rank as a focus of migration control policies; some traditions established before 1914 continued into the twentieth century.

As there are no time-independent biological processes, time seems to be a biological phenomenon kat echen. This statement is true not only for developmental or evolutionary transformations, which show specific temporal and spatial patterns, but for all known physiological, genetic or molecular-biological as well as ecological or populational processes. The remarkable time dependency of all life-processes attracted the attention of biologists and philosophers – Whitehead’s concept of actual entities which constitute the monad-like centrepoints of his Leibnizian universe provide a perfect example. Despite the relevance of temporal descriptions, their methodological status in the sciences is often unclear.The aim of this paper is to present at least some of the most important non-empirical aspects of any scientific treatment of temporal phenomena. Following a constructivist approach, the introduction of temporal language particles is traced back to explicit contexts of human everyday life practices and action. »Time« is considered to represent a specific façon de parler, which allows us to deal with temporal aspects of processes and world-states, which themselves are the very subject-matter of scientific descriptions. Following this line of argument, the attempt to derive time as an epistemological precondition of subjective knowledge on grounds of biological descriptions in the perspective of an »evolutionary concept of knowledge« (Evolutionäre Erkenntnistheorie) is rejected by proving the pre-empirical, categorical status of temporal concepts. Accordingly, an evolutionary derivation of time is shown to be impossible: in contrast to naturalistic approaches, time is either to be understood as a condition of the possibility of knowledge itself (i. e. of scientific knowledge a fortiori) or it designates temporal aspects of natural processes, which are described in reference to the presupposed categories of knowledge. In both cases, »time« is neither a »natural« nor a biological object.

The European Constitutional Treaty and the European Charter of Fundamental Rights (Title II of the Constitutional Treaty) currently challenge the legal orders of the member states. Transfer processes are to be expected, e.g. due to the adoption of the »right to a good administration« by the European Charter of Fundamental Rights, the development of which will be presented in more detail. This paper tracks the way in which this legal principle developed from a structural condition for the granting of development aid (»good governance«)into a central category for the description of European minimum standards for government and administration. To provide some perspective, possible »reactions« by the legal orders of the member states, particularly of Germany and France, are sketched. Following up this point, considerations on the transfer of laws are pursued and a situational view of the communication among legal orders is advocated. In order to illustrate this approach, analogies between legal interactions and chemical reactions are drawn.

Somebody who is speeding on motorways or in high-speed trains through Europe generally will not feel in the mood to think about historical reasons for technical infrastructures like roads or tracks. In everyday life these infrastructures seem to go without saying. Even in the realm of planning there is – after a short period of lively debates – a silent consent. Therefore this essay seeks the unquestioned conditions of infrastructural planning and representation with reference to the Roman Empire. How far do modern infrastructures of mobility and demarcation refer to ancient models? In modern times translatio imperii et studii sought always to find technical solutions for the construction of nations, states and empires. paper shows, with many examples, in which way physical remains and discourses which could be traced back to Rome, took part in the moulding of European infrastructures of traffic and of boundaries.

This paper questions the resort to systems theory as the foundation of an evolutionary legal history. In particular, the theoretical legacy of Niklas Luhmann upon which Marie Theres Fögen proposes to draw seems to have limited application outside a context in which advanced system differentiation is present. Although (like Marx, Durkheim and Weber before him) Luhmann drew in a broad evolutionary trajectory, he was concerned principally with “functionally differentiated society”. Earlier phases – covering precisely those formations that historians will presumably focus upon – are very hazily sketched in and relatively poorly theorised. In general, we should not too readily acknowledge “the exhaustion of the paradigm of modernity” (Santos, 1995) or rush to proclaim the obsolescence of multi-dimensional approaches such as those of Bourdieu (1977) and Giddens (1984). Any legal history that marginalises both human actors and the conditional environment has a considerable task in making up the ensuing deficit.