Download An Historical Introduction to Private Law by R. C. van Caenegem PDF

Download An Historical Introduction to Private Law by R. C. van Caenegem PDF

By R. C. van Caenegem

During this publication one of many world's most well known criminal historians makes an attempt to give an explanation for what produced the non-public legislations of the Western global as we all know it at the present time. Professor van Caenegem will pay specific recognition to the origins of the typical law-civil legislation dichotomy, and the way it arose that England and the continent of Europe, even though sharing a similar civilization and values, stay lower than assorted criminal platforms. The chronological assurance extends from the Germanic invasion within the early center a long time to the current day, incorporating research of the medieval Roman and canon legislations (both items of the legislation schools), and that of the college of normal legislation that encouraged the good nationwide codifications of the fashionable age. He evaluates the function of the lawgivers--emperors, kings, and parliaments--and that of the judges, rather, after all, within the lands of the English universal legislations. The ebook relies on either an intensive secondary literature in numerous languages, and on proof collected via Professor van Caenegem over the last 40 years.

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Some rudiments of Roman thought were known through such texts as the lex Romana Visigothorum11 or the Etymologiae of Isidore of Seville, a small encylopaedia which distilled the knowledge of Antiquity. But these isolated traces of ancient legal culture were not studied or analysed. In any case the law schools and lawyers who would have been capable of such work had disappeared. The sources of the period reveal ignorance of Roman law, and sometimes of the law of the capitularies, even among those whose professional activities in principle required them to be acquainted with them.

Modes of proof were for the most part irrational. Justice made use of divine and supernatural powers, as in the case ofjudicial duels and other ordeals, and also in the oaths taken by one party and his supporters. Rational proof by means of documents and witnesses was not excluded, but proof by confronting the witnesses for either party with each other was undeveloped and highly formalistic. When the witnesses of the two parties refused to retract their testimony and the judges consequently found themselves in an impasse, a duel was the only possible outcome.

On Van der Tanerijen, see Nationaal Biogrqfisch Woordenboek v (1972), col. 877-81. 20 Edited by A. Orts (Ghent, 1872). 21 Wielant shows himself to be neither in favour of abolishing customary law nor blind to the European diffusion of the learned law. His work aims at a synthesis which preserves the fundamental position of customary law, while assimilating the doctrinal advances of academic law, especially of the Bartolist School. These qualities assured Wielant's works, which were written in Dutch, a wide audience in legal circles, in which few practitioners were sufficiently educated to embark on large Latin commentaries, but in which the learned law could no longer be ignored.

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