Legal History from a European Perspective

Legal History from a European Perspective

By Emanuele ConteEducationCourses
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Legal History from a European Perspective episodes

  • LH0920: Towards a German Code
    • 1871: the Second Reich.
    • 1874-1887: the first draft.
    • 1887-1890: Discussion on the Entwurf (provisional version of the code).
    • The Germanists suggest the introduction of some (allegedly) customary institution.
    • An Example: protection of the rent of houses. The return of the Gewere.
    • Other example: foundations and communities.
    • 1896-1900 Bürgerlich Gezetzbuch (BGB).
      • 13 min
    • LH0910: German Model: the Primacy of Jurisprudence
      • 1814: Savigny against Codification.
      • Volksgeist and the customary origin of every form of law.
      • Aporia: how could Roman Law be customary?.
      • Against Roman Law: the Germanists refuse the « law of Professors ».
      • The real meaning of the contrast: liberal individualism vs. social corporatism.
      • An example: Possession (Herzog 213):
      • - Good faith, titulus, res habilis;
      • - Exclusion of possession of rights.
        • 21 min
      • LH0850: Also the jurist must be the mouth of the law?
        • Napoléon’s reform of legal studies.
        • Studying law means to understand the Civil Code.
        • École de l’exégèse: what is exegesis?
        • Triumph and defeat of the codification: the whole law is reduced to the code, but the code still needs a doctrinal interpretation.
        • More codifications:
        • - 1810: Criminal Code;
        • - 1806: Procedure;
        • - 1807: Commercial Code;
        • - 1808: Criminal Instruction Code;
        • New branches of legal science.
          • 11 min
        • LH0840: Mouth of the Law (bouche de la loi)
          • Articles 4 and 5: no judge can refuse a judgement.
          • Interpretation: the declaration of rights and the constitution help the judges in applying the Code.
          • The judge cannot « bend » the law: he can just apply it.
          • The judge must not extend the meaning of the law by analogy: if a case is not clearly foreseen in the Code he must ask directly to the legislator (the National Assembly).
          • A judge is like a robot: just the mouth of the law.
            • 7 min
          • LH0830: Code Napoléon, 1804
            • The Revolution did not issue a Civil Code: all projects raised criticisms.
            • Portalis drafts the Code. He was a jurist formed in the French tradition.
            • Herzog 209: the Code « was not all what it was supposed to be ». Is that right?
            • Structure of private law: the two « major innovations » (Herzog 189-192) are there.
            • Absolute property, freedom of contract, unification of subject.
            • Abrogation of all existing laws.
              • 8 min
            • LH0820: Absolutism and Codification
              • Codifying without a Revolution: Tuscany 1786 and Prussia 1794.
              • Innovation and conservatism: the code is often contradictory.
              • Also the projects set by revolutionary governments in France realise an absolutist project.
              • Assemblée Nationale is not absolutist enough.
              • 1804: a French Empire under Napoléon.
                • 6 min
              • LH0810: 1792-1815: France at War
                • The military side of the Revolution.
                • 1792: The French Revolution against the coalition of conservative States.
                • International attitude of entlightened theories.
                • Internal and external enemies justify the terror and forms of dictatorship.
                • Italy: 1796-97: Cisalpine Republic.
                • 1804: French Empire.
                • 1805-1815: More wars from Portugal to Russia. Final defeat at Waterloo and restauration.
                  • 11 min
                • LH0740: Using European Legal Culture for Founding the US
                  • During the 18th Century European jurists developed the theories of natural laws.
                  • They established the natural right of every nation to rule itself.
                  • Emer de Vattel’s Law of Nations (1758).
                  • American Revolution introduced also a major example of the claim of the colonies for independency.
                    • 5 min
                  • LH0730: 1787-1798: the Constitution and the Bill of Rights
                    • 1787: the government of the Union: separation of powers.
                    • Executive: the President.
                    • Legislative: the Congress.
                    • Judiciary; judges and the Supreme Court.
                    • The American Constitution is a new pact - not the acknowledgement of existing ancient popular customs.
                    • Four innovations: 1) Expression of general priciples; 2) Nature and reason as grounds; 3) Written form; 4) Definition of natural rights.
                    • The Constitution above and beyond ordinary laws.
                      • 11 min

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                    A series of academic podcasts for students. Feel free to write to [email protected] for slides and more additional material