woensdag, januari 30, 2013

BOOK: European Traditions: Integration or Disintegration ?, ed. J. Oosterhuis & E.D.G. Van Dongen (Nijmegen: Wolf Legal Publishers, 2013, ISBN ISBN 9789058509444)

The Acta of the 17th European Forum of Young Legal Historians, held in Maastricht in April 2011, are out. Janwillem Oosterhuis and Emmanuel Van Dongen compiled contributions from Tomislav Karlovic, Henrik-Riko Held, Dave De ruysscher, Valerio Massimo Minale, Paulina Swiecicka, Augustin Parise, Merike Ristekivi, Stefan Weishaar, Tamas Notari, Paulo Potiara de Alcantara Veloso, Frederik Dhondt, Raymond Kubben, Christoph Schmetterer, Diego Nunes, Laszlo Komaromi and Gabor Batho.

"European legal traditions can be characterised as a continuous balancing act of two seemingly contradictory forces: centralisation and de-centralisation. On the one hand, Justinian’s Corpus iuris, the medieval ius commune of Roman and Canon law, the usus modernus pandectarum, and the current European harmonisation efforts all have a centralizing  or  rather  an  integrative  quality  about  them.  While the ius proprium, including the English Common law, and particularly the national codifications of the 19th century, as well as the study of these laws, exhibit more diverse, decentralizing forces within European legal traditions.
This  volume  shows  how  comparative  legal  history  can be  used  as  a  tool  to  analyse  similarities  and  differences between legal systems. It aims to provide a deeper understanding of common strands in law shared by European countries,  in  particular  those  (i)  at  a  substantive  level, through shared legal ideas and principles such as clausula rebus sic stantibus, unjustified enrichment, cessio bonorum,  subsidiarity  or  popular  sovereignty;  (ii)  at  a  formal level, through a common legal language; and created (iii) by scholarly networks and (iv) appellate courts.
Above all, these contributions – though eclectic in their subject matter, time period and methodology – all reflect from a historical perspective on the fascinating, diverse European legal traditions."
Abstract for my article:
Early modern European international relations (1450-1815) appear in contemporary manuals as a ceaseless succession of bloodshed and competing sovereign claims. Likewise, the development of international law is assumed to have known a qualitative boost at the end of the nineteenth century, when law turns into a ‘gentle civilizer of nations’ (Koskenniemi). Law disciplines the sovereign state by imposing order through universal principles, applicable to other entities (individuals/international organizations) as well. However, both narratives are inconsistent with international law’s prime objective: international order, which can also be achieved through legal arguments in a non-institutionalized and tempered anarchical environment. This is the case during ‘les trente heureuses’(Le Roy Ladurie), the period running from the War of the Spanish Succession (1702-1714) to the War of the Austrian Succession (1740-1748). With the break-up of medieval conceptual European unity at the Westphalia Treaties (1648), a new discourse accom-modating all partners had to be found. It took the ‘Société des Princes’ (Bély) until the 1713 Peace of Utrecht to develop a horizontal, instead of a vertical consensus. The political impracticability of the latter structure had been proven, since it supposed a sufficiently strong and buttressing hegemony, which neither the Emperor, nor the Spanish or French King could incarnate. Consequently, Imperial (leaning on Roman and Imperial feudal law), Spanish (based on Castilian public Law) and French (rooted in unwritten domestic fundamental laws) discourse was unacceptable as a common vector. Within the practical community of early eighteenth-century diplomats, horizontal discourse, or the conceptual language of treaty law, became predominant (Lesaffer). An eminent example of this were the successions of extinguished sovereign houses (Steiger). As one of the most fundamental political issues, the designation of the prince’s successor was determined by internal constitutionalized norms. However, this proved to be a political fiction, because of the combination of the European state system’s interdependence and power inequalities. Succession laws and even domestic private law were used by big powers as a pretext to invade whenever they felt pleased to (War of Devolution/Nine Years War). Internationally unregulated successions stimulated instinctive instability and were thus a liability to European order. Through the process of negotiation of the so-called partition treaties on the Spanish Succession (1668-1700 – Bérenger/Rule), an early consensus on this last point materialized amongst the big powers France, Britain-Holland and the Empire. The War of the Spanish Succession sealed the fate of pan-European war, the alternative to regulation (Dhondt). In this conference paper, I present how the ‘peace system’(Chaussinand-Nogaret) of abbot Dubois (1656-1723) and Earl Stanhope (1673-1721) dealt with succession questions in the post-Utrecht period, and how this practice evolved during the 1720’s and 1730’s, under Prime Ministers Cardinal Fleury (1653-1743) and Robert Walpole (1676-1745)(Vaucher/Black). Generally speaking, a Franco-British tandem acted as the motor of European affairs, mounting multilateral interventions against transgressors such as Spanish King Philip V in his 1717-1718 invasion of Italy, pushing bilateral issues up to a higher level of resolution, the political agora of European-wide congresses. These congresses, held at Cambrai (1722/1724-1725) and Soissons (1728-1729) have left ample dispatches by the pleni-potentiaries, in which the above cited rhetorical and conceptual oppositions come into light. It reinterpret the latter primary sources (State Papers, Kew – Archives Diplomatiques, Paris), which I currently examine in my doctoral dissertation, through the rich explanatory grid of international law.

The book counts 256 pages and can be ordered with Wolf Legal Publishers for € 24,95.

A flyer can be found here.

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