In civil law courts, early modern civil procedure was based on the Roman-canonical model of proceedings originally developed in late medieval ecclesiastical courts and by academic scholarship. Its main features were the principle of party disposition and its corollary, the adversarial principle. These features also governed to a large extent English common law proceedings in civil litigation. The new secular and ecclesiastical social elites emerging in urban environments from the late eleventh century onwards rejected traditional forms of procedures because they perceived them as arbitrary. Early modern political developments tended to reorganize the courts’ systems in a polity under the authority of the sovereign, but in most territories, a patchwork of courts remained in place. The fundamental structure of civil proceedings remained by and large in place in the system of national courts established from the late eighteenth and early nineteenth century onwards.
Liliana Obregón Tarazona
From the 16th century to the early 19th century, the concepts of civilized/uncivilized, which categorized and stratified peoples, nations, or States, were keys to the language of informal European imperialism. In the 16th and 17th centuries, the holistic Christian vision of law and morality was the entitlement for European expansion as Native Americans entered into the universe of European sovereignty. In the 18th century, Enlightenment thought brought forth the concept of the ‘human’ and its other, which allowed for an alternative conceptual pair to the previous Christian/non-Christian universal view. In the late 19th century, the language of civilization transitioned to formal imperialism sustained by international law. This chapter concludes that international law surged in the 19th century as a discipline constituted by the tension in defining its inner and outer limits between the civilized and the uncivilized.
The impact of peace movements on the development of international law over the course of the 19th and early 20th centuries was significant, especially in advancing norms of equality of status, and in advocating for and legitimizing international organizations. This chapter relates the impact of peace movements and other civil society actors on the development of international law beginning in the early 19th century and culminating with the creation of the United Nations in 1945. During this period, civil society actors, including peace movements, had considerable success in influencing international legal norms, the development of institutions, and the negotiation of treaties regarding arbitration, humanitarianism, and arms control. The discussion focuses on ‘Western’, and especially Anglo-American, peace activists from the Global North. Legal norms promoted by these actors included constraints on States’ rights to wage war and the requirement that States attempt to resolve conflict peacefully before using force.
Roman law has been a system of practice and field of academic study for some 2,400 years. Today, the field enjoys unprecedented diversity in terms of linguistic, disciplinary, and national context. However, the contours of contemporary study are the product of complex and imbricated historical factors: the non-codification by the Romans of the classical period of their own public law; solutions taken in the classical period and later to resolve conflicts among sources of law of very different antiquity; the codification in late antiquity of academic jurisprudence regarding private law; the on-going prestige of Roman civil law in medieval and late medieval Europe, which made it a resource for analogical argumentation in both public and international law; and much else besides. This chapter evaluates the contribution made by some of these factors to Roman legal history as a contemporary endeavour, with an eye to its future.
This chapter begins with a brief introductory note on the role of legal history in ancient Roman law, and the legal scholarship of medieval glossators and commentators. It then turns to the dominant schools of continental legal scholarship in the seventeenth and eighteenth centuries, the ‘Neo-Bartolists’ and the usus modernus pandectarum. It considers the rise of the Historical School in Germany and the corresponding movements elsewhere in continental Europe. Methodologically, the representatives of the Historical School were the first professional legal historians in the modern sense of the term. Finally, the chapter retells the story of the rise of European legal history in the post-war period, and the recent trends towards a creation of global legal histories. It shows that legal history’s turns have in many ways followed from not only legal scholarship in general, but also from developments in historical science and global politics.