Legal History from a European Perspective episodes:

• January 17, 2021LH0720: 1776: Declaration of Independence

  Drafted by Thomas Jefferson.

  … all men are created equal.

  … they are endowed by their Creator with certain unalienable Rights.

  … among these are Life, Liberty and the pursuit of Happiness..

  Jefferson uses european legal concepts:

  - The “constitution” of the people is its consistency;

  - a king who oppresses his people is “a tyrant … unfit to be the ruler of a free people".

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• January 17, 2021LH0700 and LH0710: Is America European?

  European culture moved towards Enlightenment.

  A new concept of the society: a gathering of free individuals based on a social pact (This is an ancient idea, now renewed).

  A new concept of the individual: every man has fundamental rights; religion must not affect the State; every power must respect the rights of every individual; everyone think for himself.

  A new concept of law: it is Nature itself that justifies the legal institutions. Every power arbitrarily wanting to impose a legal organization is basically illegal and can be overturn.

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• January 17, 2021LH0520: An Early-Modern Definition of the Common law

  British lawyers of the 16th and 17th century used the legal concept of custom.

  But they used it to claim for the absolute independency of the common law from the continental tradition.

  Every judicial decision was then seen as an enforcement of customary principles. Herzog shows that actually it was not the case.

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• January 17, 2021LH0510: Customary National Laws

  A shared unrest for the whole of Europe.

  The most powerful nations of the North-West of Europe tended to an increasing centralisation of power in the hands of the kings.

  The tendency to a royal absolutism was balanced by the establishment of a strong national identity.

  The Nation existed before the institution of a legislative power.

  Two conceptual tools: 1) custom (= Roman consuetudo); 2) national history.

  Modern national historiography as part of the early “constitutionalism”.

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• January 17, 2021LH0500: Customs

  Is a custom non-written law? And if yes, can it be written down?

  Examples of written customs: the libri Feudorum.

  Writing down a custom is usually the sign of a new agreement between the ruler and the subjects: the example of the magna carta.

  The self determination of the communities: an idea connected with Protestantism.

  The construction of the French State in the 16th century: writing down customs, establishing representative parliaments.

  The role of royal jurists and the persising influence of the ius commune.

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• January 17, 2021LH0490: Customs in France and François Hotman

  Hotman converted to calvinism while attending to the legal studies.

  Geneva: the myth of a christian evangelical community.

  1567: Hotman publishes Antitribonian.

  Replacing Roman law with a national legislation and national customs.

  Imagining a constitutional balance: the King and the Nation ==> Royal legislation and customary law of the Nation.

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• January 17, 2021LH0480: Protestant Reformation

  The rupture of the unity of the Christians under one Church sharing the same beliefs endangered the very idea of the existence of one jus commune.

  Martin Luther 1517: Christian salvation is an individual affair, and not the business of a community hierarchically organised. The clergy play no role.

  A crisis of the very idea of legal norm. Luther refuses the canon law.

  Secular regulation and individualism: the rise of the market (Max Weber and beyond).

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• January 17, 2021LH0470: Legal culture in France during the 16th century

  Since the 12th century: French legal scholarship was more open to extra-legal knowledge.

  French culture is opened to innovations brought by the humanists.

  Francesco Alciato moves to France.

  Mos gallicus: historical research aimed at discovering the Roman law of the classical period.

  Mos gallicus: building a new systematic of legal concepts. Hotman criticise Tribonian’s method. Hugues Doneau suggests a new sysematic.

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• January 17, 2021LH0460: Legal Humanism

  Rediscovery of Antiquity: the 14th century Italy: Petrarch and Boccaccio.

  Lorenzo Valla and Angelo Poliziano on the Digest.

  Humanistic philology: doubts about the text of the received legal books (and about the text of the Bible).

  Humanists learn Greek: new editions of the Code.

  15th/16th century: first humanist jurists. Andrea Alciato.

  The Roman law from the present to the past: turning it into a model, a source of inspiration.

  Admired, but distant: no more in direct use.

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• January 17, 2021LH0451: Herzog’s Early Modern Era

  Tamar Herzog is a specialist of the Early Modern.

  • Main points:

  1) Humanism and the change in culture,

  2) The Protestant Reformation and the rupture of the christian commonwealth;

  3) The crisis of the prestige of Monarchy, and the rise of the Rule of Law;

  4) Ius gentium, ius naturale, and the broadening of the geographical space;

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