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Authorities in Early Modern Law Courts Edited by Guido Rossi EARLY MODERN LEGAL EDINBURGH STUDIES IN LAW PRACTICE IN EUROPE Series Editor: Elspeth Christie Reid Volume 12 Authorities in Early Modern Law Courts Edited by Guido Rossi The first comparative study of the relationship between law courts AUTHORITIES IN and substantive law in the Early Modern period EARLY MODERN Bringing together some of the most distinguished scholars in the field including Alain Wijffels, Peter Oestmann, David Ibbetson, John Ford, Annamaria Monti, Heikki Pihlajamäki and Javier García Martín, this volume looks at the comparative development LAW COURTS of legal practice in the early modern period across Europe. Focusing deliberately on the impact of law courts on substantive law – and not on its systematisation by learned jurists – it studies similarities and differences in the development of the law across different jurisdictions. In doing so it evaluates whether and to what extent it is possible to consider this development as a unitary and truly European phenomenon. This collection re‑evaluates current debates surrounding the development of civil law in the Edited by Guido Rossi Edinburgh Edited by early modern period in the context of the grand narratives of European legal history and sets out to challenge current orthodox views about early modern civil law. Guido Rossi Key Features • A comparative study on the passage from Late Medieval to Early Modern civil law from a practical viewpoint • Assesses the influence of law courts on the development of substantive law • Brings together a range of distinguished and up and coming scholars in the field including Alain Wijffels, Peter Oestmann, David Ibbetson, John Ford, Annamaria Monti, Javier García Martín, Heikki Pihlajamäki and Gustavo César Machado Cabral • Re‑evaluates and challenges current orthodox views about early modern civil law Guido Rossi is Reader in European Legal History at the University of Edinburgh. Logo reproduced by the kind permission of the Faculty of Advocates EDINBURGH STUDIES IN LAW 2416 eup Rossi_PPC.indd 1 06/11/2020 07:54 Authorities in Early Modern Law Courts EDINBURGH STUDIES IN LAW Series Editor Alexandra Braun, University of Edinburgh Editorial Board George Gretton, University of Edinburgh John Lovett, Loyola University Hector MacQueen, University of Edinburgh Elspeth Reid, University of Edinburgh Kenneth Reid, University of Edinburgh Lionel Smith, McGill University Anna Veneziano, Universities of Teramo and UNIDROIT Neil Walker, University of Edinburgh Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law in Hamburg Volumes in the series: Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in Transition: T B Smith and the Progress of Scots Law (2005) Hector MacQueen and Reinhard Zimmermann (eds), European Contract Law: Scots and South African Perspectives (2006) John W Cairns and Paul du Plessis (eds), Beyond Dogmatics: Law and Society in the Roman World (2007) William M Gordon, Roman Law, Scots Law and Legal History (2007) Kenneth G C Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession: Studies National, Historical and Comparative (2007) Vernon Valentine Palmer and Elspeth Christie Reid (eds), Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland (2009) J W Cairns and Paul du Plessis (eds), The Creation of the Ius Commune: From Casus to Regula (2010) James Chalmers, Lindsay Farmer and Fiona Leverick (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) Elaine E Sutherland, Kay E Goodall, Gavin F M Little and Fraser P Davidson (eds), Law Making and the Scottish Parliament (2011) Neil Walker (ed), MacCormick’s Scotland (2012) Eric Descheemaeker (ed), The Consequences of Possession (2014) Remus Valsan (ed), Trusts and Patrimonies (2015) John W Cairns, Law, Lawyers, and Humanism: Selected Essays on the History of Scots Law, Volume 1 (2015) John W Cairns, Enlightenment, Legal Education, and Critique: Selected Essays on the History of Scots Law, Volume 2 (2015) Paul J du Plessis and John W Cairns (eds), Reassessing Legal Humanism and its Claims: Petere Fontes? (2016) Guido Rossi (ed), Authorities in Early Modern Law Courts (2021) https://edinburghuniversitypress.com/series/esil EDINBURGH STUDIES IN LAW VOLUME 16 Authorities in Early Modern Law Courts Edited by Guido Rossi Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: edinburghuniversitypress.com © The Edinburgh Law Review Trust and the Contributors, 2021 Edinburgh University Press Ltd The Tun – Holyrood Road 12(2f) Jackson’s Entry Edinburgh EH8 8PJ Typeset in New Caledonia by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain A CIP record for this book is available from the British Library ISBN 978 1 4744 5100 0 (hardback) ISBN 978 1 4744 5102 4 (webready PDF) ISBN 978 1 4744 5103 1 (epub) The right of Guido Rossi to be identified as the editor of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988, and the Copyright and Related Rights Regulations 2003 (SI No. 2498). Contents Preface vii A Note on Names and Book Titles xii List of Contributors xiii 1 Law Reports of the Parliament of Flanders and their Authority in the Parliament’s Practice 1 Géraldine Cazals, Sabrina Michel and Alain Wijffels 2 Paradigms of Authority in the College of Justice in Scotland 29 John D Ford 3 Legal Authorities in Castilian Courts’ Practice: Decisiones and Consilia to Study the Arbitrium Iudicis 50 Javier García Martín 4 Law Reporting, Authority and Precedent: the Common Law Paradigm 84 David J Ibbetson 5 Legal Authorities in the Making of Portuguese Private Law: Emphyteusis and Majorat in Practical Literature 98 Gustavo César Machado Cabral 6 Iura Scripta and Operae Iurisperitorum in Poland (Sixteenth to Eighteenth Centuries) 122 Maciej Mikuła 7 Under the Legal Authority of the Senate of Milan (Sixteenth to Seventeenth Centuries) 137 Annamaria Monti 8 The Imperial Chamber Court and the Development of the Law in the Holy Roman Empire 150 Peter Oestmann 9 Legal Authorities in the Seventeenth-Century Swedish Empire 168 Heikki Pihlajamäki vi authorities in early modern law courts 10 The Parliament of Paris and the Making of the Law at the beginning of the Eighteenth Century 184 Isabelle Storez-Brancourt 11 Legal Fragmentation in the Dutch Republic during the Seventeenth and Eighteenth Centuries 202 Philip Thomas 12 Law Reports as Legal Authorities in Early Modern Belgian Legal Practice 222 Alain Wijffels Bibliography 245 Index of Names and Places 296 Preface This collection of essays is clustered around an apparently simple question: what role did law courts have in the development of early modern law in different parts of Europe? The question hides a fundamental problem: how did early modern law develop? The importance of the problem is magnified by the relative lack of interest among scholars. The early modern period – especially in works written in English (which nowadays means the vast majority of the literature that circulates internationally) – is considered the age of natural lawyers. Somehow encouraged by the legal humanism and foreshadowed by the Salamanca School, the Age of Natural Law brought order to the chaotic – and, by then, stale – approach of the epigones of Bartolus, paving the way for the first wave of codification (which begins with the so-called “Natural Law Codes”). This narrative, the standard one among legal history textbooks, ultimately builds a bridge between the late ius commune (often called mos italicus) and the codification movement. It is an elegant bridge, which dispenses with the need to cross the muddy river of reality. Thanks to this scholarly construction we have come to appreciate the civil law as a set of abstract, dogmatic constructions, which could be neatly contrasted with the practice-based common law, and thus encompass most of continental Europe – especially those countries that are members of the European Union. A common legal heritage, made of general principles and abstract rules, was the perfect starting point for legal harmonisation of discrete portions of private law. There was a certain elegance in this model, despite its patent ideological drive. From the view- point of continental European Dogmengeschichte, the narrative may even have some historical merits. Despite the recent setbacks and failures of the European integration, the appeal of legal abstractions has not faded away. Partly because the inter- est of some scholars has shifted towards a broader picture (towards global approaches, postcolonial studies, and so on), and partly because of a renewed interest in local history (where European-wide discussions have no place), few scholars are still working on early modern European legal issues. Thus, whether the focus is far broader or much narrower, either way it is best to stay clear of that general narrative. Almost paradoxically, while specific viii authorities in early modern law courts strands of legal-historical scholarship are making very significant progress, that grand narrative lingers on – almost by way of inertia. A crucial problem of early modern law is that it is difficult to capture into a precise definition. Even the termusus modernus pandectarum – which supposedly defines what happens in the German territories – does not explain much. Confining this definition – and everything that it represents – to the Reich has contributed to strengthen the impression that its main features did not reach beyond a large but specific European region, thus preserving the broader European-wide narrative. Admittedly, some features of the German usus modernus are not to be found in most other territories. So, for one, the Aktenversendung (the “dispatching of the records” from the law court that was hearing the case to a law faculty for a – non-binding yet authoritative – opinion) remained typical of (most of) the German territo- ries.
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