1) Anu Pylkkänen
CONSTRUCTIONS OF GENDER AND SEXUALITY IN THE HARMONISATION OF FAMILY LAW
This paper discusses the past and contemporary legal harmonisation exercises
of family law in the Nordic countries and Europe. The critique has been that
the harmonised ‘European family law’ just entrenches the status quo and
reiterates traditional family patterns, the male norm, heteronormativity,
and public/private divide represented in a neutral guise of liberal rights
discourse. Furthermore, the critics point out that the political economy of
the legal harmonisation is to a large extent ignored. In the Nordic
countries, egalitarianism and broad political deliberation have earlier
characterised much of the legal harmonisation in this area, whereas the
rights discourse in its very liberal sense is a novelty more or less
triggered by the European integration. The paper discusses the gendered
implications of the emerging rights discourse in the Nordic countries and
the linkages between family law, labour market and social welfare. The paper argues that the harmonisation exercise cannot be regarded as one of legal norms and reasoning only but rather, it should be discussed from the
perspective of a political and epistemological challenge to the prevailing
‘truths’ about marriage, family and sexuality.
2) Elsa Trolle Önnerfors
Justitia et Prudentia: the Law of Will in the Svea Court of Appeal and the Council 1640-1690. Law making and Law building.
In the 17th century, the Swedish nobility began to use wills in the form that we use wills today. A problem at the time was that the will was not regulated in the written Swedish medieval laws. In other words, the courts didn’t have any specific section of law to base their decision upon. So, how did the appeal courts handle this legal problem? Which other sources of law did they base the decisions upon?
In my dissertation I look into the argumentation in the sentences concerning wills from the Svea court of appeal and the Council (revisionen) from the period 1640-1690. The actors and their argumentation are in focus. The lawyers and the appeal court judges play an important role as well as the members of the Preparatory court (the lower review of justice (Nedre justitierevisionen)).
Characteristic of the period 1640-1690 is the rich jurisprudence and the connection to the Roman law and the Gemeines Recht. Furthermore, the judge in the 17th century was seen as the bearer of the classical virtues. Among others, Prudentia (wisdom) which gave him insight into the order created by God (ius naturae, the natural law) and Justitia (justice).
3) Sebastián Provvidente
The meaning of the Haec Sancta: between theology, canon law and history
The decree Haec Sancta approved by the Council of Constance on its 5th Session (sixth of April 1415) helped the Council fathers to put an end to the scandalous schism which since 1378 had divided the Latin Church between rival lines of claimants to the papal office. It did so by claiming and exercising an authority superior to that of the pope in certain circumstances. However, the interpretation of this decree has been a source of disagreement between historians, theologians and canonists. It is not our intention to propose in this presentation a new one, but only to point out that the origin of these divergent perspectives has usually been rooted in a priori theological or canonical attitudes or criteria. We think that the proper interpretation of this text can only be done through a careful reconstruction of the immediate context in which the decree was conceived. Finally, we will try to suggest that the judicial practices (trials and depositions) at the Council of Constance rely on the conceptions proposed on the decree Haec Sancta.
4) Marju Luts
Die baltische Rechtsvielfalt in der höchstrichterlichen Rechtsprechung des russischen Reichs
Die privatrechtliche Kodifikation der Ostseeprovinzen vom 1864 hat kein allgemeines und gleiches modernes Privatrecht geschafft. In die Kodifikation sind die ständischen und territorialen Unterschiede sorgfältig eingesammelt. Daneben waren durch die Bauerverordnungen noch die separaten privatrechtlichen Regelungen für Bauerstand bestimmt.
Die Rechtsprechung des ‚dirigierende Senats’ – der höchsten Justizbehörde – des russischen Reichs gilt für die bisherige Forschung als ein Vorhaben der Rechtsmodernisierung und öfters auch als Rechtsfortbildung.
Ich will in meinem Forschungsorhaben um die Modernisierung des Immobilienrechts in Estland u.a. danach fragen, wie hat der dirigierende Senat die baltische Rechtsvielfalt in seiner Rechtsprechung verwaltet. Es soll um die Fragen gehen, ob und inwieweit die Höchstgerichtsbarkeit in diesem Bereich sich eingesetzt hat für die Vereinheitlichung der baltischen Privatrechtsordnungen oder für die Modernisierung der vormodernen gesetzgebericchen Lösungen der baltischen Kodifikation.
5) Eirik Holmoyvik
A plurality of constitutional models for the Norwegian constitution of 1814
As a preparation for the National Assembly and the debates concerning the Norwegian constitution of May 17 1814, a number of drafts were written (27 are known today). These drafts represent a body of constitutional thinking in Norway in 1814 that is as diverse as their authors, which hailed from all parts of society.
This paper will discuss three of the drafts as representatives for particular constitutional models subscribing to different constitutional ideologies. These drafts also represent different epochs in European constitutional history. In this perspective, the first draft represents the former constitutional model of absolutism, a second represents the revolutionary constitutions based upon popular sovereignty and the division of powers, and a third draft, based partly on the revolutionary constitutions yet with a strong executive power, represents the restoration period of Europe from 1814.
As a result, the drafts represent a multitude of constitutional thinking that goes beyond the final constitution, which is based upon the principles of popular sovereignty and the division of power. Even though it is common to mention the Norwegian constitution in the same breath as the revolutionary constitutions before 1814, the constitutional thinking of 1814 is more diverse, and is not limited to this period.
6) Merike Ristikivi
Synonymy of Latin terms in legal language
Among the most significant questions raised in studies about terms, meanings, definitions and their interrelationships is the one about the key features ensuring that the users would understand a term or a phrase in a similar way. The nature of terminology requires that the signifier and the signified have a one-to-one correspondence. The actual operating conditions of terms, however, create typical situations in which the violation of the one-to-one correspondence between the signifier and the signified is inevitable: as a linguistic sign, a term is influenced by synonymy and polysemy.
In my presentation the problems of synonymy in Latin legal language are observed, i.e. the cases are analysed in which one idea is expressed in several different terms. The terminology analysed in this study comprises the terms collected for the compilation of “Latin-Estonian Juridical Dictionary” (2005). The issues contemplated on comprise the following questions: which synonyms can exist in Latin legal language, which linguistic phenomena they are conditioned by, and which practical issues need to be considered when using synonymous terms in Latin?
7) Heikki Pihlajamäki
Livonian, Roman or Swedish? Choice of Law in Seventeenth-Century Livonia
When Swedes assumed control over Livonia 1630s, Livonians were on the way to a lawyer-driven reception of ius commune. When attempting to remould the legal system, Swedes took the common European model of legal spheres, the Statutentheorie, as the point of departure. The central idea was thus to give priority to the smallest legal sphere and then, in the name of subsidiarity, to move to ever larger spheres. Article XXIX of the Swedish so-called Verbesserte Landgerichtsordnung of 1632 well encapsulates the idea of legal spheres. According to the paragraph, Livonian law came first, then Swedish, and then Roman law. According to the article, the Livonian and Swedish laws were to be used so that they remained “in harmony” (einstimmig) with ius commune. Statutory law and customary law were stricte interpretanda and ut quam minus laedent ius commune. Statutory provisions or theoretical standpoints on the choice of law, however, give little guidance when attempting to understand Livonian case law, which was far the theoretical ideal. In the presentation, the Livonian court practise will be approached in the light of some examples from the lower and high court practice. .
8) Toomas Kotkas
Some Preliminary Observations Concerning Police Ordinances in the Early Modern Sweden and Finland, 1523-1632
In my presentation I am going to present some of the preliminary observations concerning my ongoing post doc study on police ordinances in the early modern Sweden and Finland. The research material of my study consists of a collection of Royal ordinances, statutes, letters, etc. in the matters of police, economy and commerce, collected by Anton von Stiernman in the middle of the 18th century. The collection covers the period of 1523-1718.
I am mainly addressing questions like: what was regulated; in which manner; what was the parlance of the ordinances; etc. The aim is to recognize more general trends and shifts within the ordinances, and to consider the relationship between the ordinances and the law of the contemporary law codes.
9) Andreas Aure
Konrad Friedlieb’s ideas on law and war
Hugo Grotius’ (1583-1645) ideas in De jure belli ac pacis (1625), outlaying a new minimalist and secularised concept of natural law as guide for lawful social interaction, were regarded as groundbreaking for later developments within the field of political philosophy. A purpose of my PhD. study is to examine to what extent the German scholar Konrad Friedlieb (1633-1713) adopted the ‘modern’ natural law or post-scholastic thought (also known as the school of ius naturae et gentium) of Hugo Grotius. Friedlieb, a student of the more famous David Mevius (1606-1670), is regarded to have introduced the school of jus naturae et gentium to the University of Greifswald in Swedish Pommerania, since he lectured on this new discipline as early as 1657.
In the early modern period many monarchs saw a wider understanding of the new natural law doctrines as important means to strengthen their power vis a vis the estates system and the clergy. The Swedish crown saw Friedlieb as representing these ideas, and they found it easy to support his struggle to be appointed as law professor in Greifswald, despite the virulent protests from the law faculty.
The focus of my lecture will be to present Friedlieb’s ideas on law and just war based on my reading of his works De bello ac re militari (1675) and De obligationum natura (1671), and where appropriate, compare them with Hugo Grotius’ ideas.
10) Pierre Thevenin
A medieval discussion on the legal relevance of facts : one aspect of the debates about possessio by medieval civil lawyers (XIIth-XIVth century)
My presentation will deal with the medieval understanding of the factual part wich is entailed in the legal institution of the possessio. It will lean on the discussions about the possessio by medieval civil lawyers, from XIIth to XIVth century, focusing on the glossae brought to specific cases of the Corpus of Justinian out of which emerges the adage : « possessio quando plurimum iuris habet, quando plurimum facti ». My aim is then to present a reconstruction of this adage’s way into all the more known debates about the nature of possessio as a right or as a fact in the nineteenth century german Pandektistik, or, right in the Middle Ages, as civilis or naturalis, as animi or corpore. I claim that such a piece of work could help us to understand, in the long run, the general evolution which turned the possessio question into such a central puzzle to all the european legal thinking, as well as, by contrast, the specificity of the idea of legal fact which occured in medieval legal thinking.
11) Toni Malminen
Comparative Law of Self-Defense: Some Unused Evidence
It was Max Weber who popularized the notion that the state is an institution that “claims monopoly of legitimate violence.” Weber did not, however, seriously engage in historical and comparative research on this topic. Even Norbert Elias, who produced the most ambitious study on the history of monopolizing violence, concentrated only on mediaeval and early-modern Germany and France. Thus, despite its noble intellectual pedigree, the idea of monopoly of violence has received surprisingly little attention in comparative law. Yet, as George Fletcher puts it: “[n]o inquiry could be more important than probing this boundary between the state’s obligation to protect us and the individual’s right to use force, even deadly force, to repel and disarm an aggressor.”
Has the state monopolized violence? In Brazil? In South-Africa? In Los Angeles? It seems that both Weber and Elias actually generalized distinctively European experience into theory of modernity. A better approach would begin with comparisons. My point of departure is that the state has not, comparatively speaking, monopolized violence in the US. In trying to prove this thesis, I intend to compare main legal sources (statutes, case law, and legal scholarship), but also tap some unused sources: American self-defense manuals. These manuals can help us to meet one objection to traditional legal history, that it too rarely tells us what laypersons think of law. Gun and self-defense manuals give us important clues as to how laymen view American law of self-defense and guns. This view is dramatically different from Nordic understanding of law and violence.
12) Patrick Praet
From Westphalia with love.
The Peace of Westphalia and the writings of Hugo Grotius have introduced the concept of an international legal order made up of sovereign states enjoying the same formal equality as actores of the Law of Nations.
This Westphalian world system, “the majestic portal which leads from the old into the new world” (Leo Gross) is traditionally characterized by its three governing principles: sovereignty or self-determination of the state, non-intervention in other states’ domestic affairs and legal equality between states.
Furthermore, during the 19th Century most states within the world system have made the internal transition from absolutism to constitutional democracy.
After WW2 came the advent of supranational institutions, the humans rights ideology and globalisation. The paper aims at reassessing these great founding principles in the light of these recent changes.
13) Iisa Vepsä
Vaasa Court of Appeal in Action 1780–1800: preliminary observations
The Court of Appeal in Vaasa in Northwestern Finland was established in the mid-1770s. In my dissertation I will look more closely both at the establishment and the early activity of the appeal court. The research material I have at my disposal for the latter purpose covers the three sample years of 1780, 1790 and 1800.
In this presentation I will shortly present some preliminary findings dealing with the court’s activities. These have to do with questions such as what sort of the matters did the court deal with, who used the courts, the court’s role as an appeal instance, the applied law and so on. The aim is to gain some insight into the different roles of an appeal court in the late 18th century.
14) Emanuele Conte
I will propose a survey on the early science of public law in the 12th
century, focusing primarily on Italy, which was at that time in the middle
of a deep institutional change.
I’ll begin with some observations on the legal historiography and on some
old fashioned attitudes of legal historians. Although more than a century
old, these attitudes still affect our historical judgements. Going to the
core of my paper, I will then briefly emphasize how central Italians’
renewal of Roman public law was to this period of political transformation I
shall insist on the importance of this Roman model for Rome itself and
Tuscany, in particular for the city of Pisa.
I will develop some aspects of medieval Italy’s early theory of public law:
the public personality of the cities, the distinction between public power
and private property, the right to impose taxes, the role of the Emperor,
and the autonomy of the free cities.