Civil Lawyers Research Articles

Voices of Difference in a Plural Community

The statement of intention by the European Council at Tampere to promote greater cooperation in the domain of Justice and Home Affairs placed co-ordination of our national criminal justice systems squarely on the EU agenda.1 By Laeken, the so-called Corpus Iuris programe was well advanced, and the current fears over terrorist activity allowed the programe to come into the open, taking its place formally on the Council's table.2 Work was also authorized on the drafting of an EU Charter of Rights, completed by the end of the year 2000 and proclaimed at the Nice Council.3 Both are steps in the direction of legal unity. In addition, many civil lawyers would agree with Heinz Kotz that4

From Chaos to Continuity: The Evolution of Louisiana's Judicial System, 1712-1862

From Chaos to Continuity: The Evolution of Louisiana's Judicial System, 1712-1862. By Mark F. Fernandez. (Baton Rouge: Louisiana State University Press, 2001. Pp. xviii, 135. Appendix, bibliography, index. Cloth, $29.95.) Louisiana has always been the odd state out in American law. The other forty-nine are squarely in the English common law tradition, but Louisiana is the only state with a legal system based in part on civil law, the Romanderived legal tradition of continental Europe. The standard explanation for Louisiana's unique status is that New Orleans, before the Louisiana Purchase, was the only city in the French or Spanish parts of what would eventually be the United States big enough to a significant number of lawyers trained in civil law. After all the other French and Spanish territories were acquired by the United States, American lawyers trained in the common law moved in, and they had no competition. But in New Orleans, American common lawyers encountered a bloc of civil lawyers, mostly trained in France, with a stake in holding on to the legal system they knew. And so, the conventional story goes, Louisiana's early nineteenthcentury legal system became a mixture of the common law and the civil law, reflecting a political compromise between the old French lawyers and the new Anglo-American lawyers. And so things remained ever since. One consequence, as Mark Fernandez points out in the introduction to his new study of Louisiana's legal system, From Chaos to Continuity, is that mainstream American lawyers and legal historians pay little attention to Louisiana. The state has its local academic lawyers, who, as Fernandez notes, publish specialized studies of the fine points of civil law in legal publications (xiv). Louisiana also has its local historians, who, Fernandez again comments, time perhaps a bit uncharitably, have reveled in the minutiae of its uniqueness (xii). But most American lawyers and legal historians treat Louisiana almost as a foreign country, a jurisdiction requiring arcane expertise to understand, and in any event a state not offering anything to the main story of American legal development. The thesis of From Chaos to Continuity is that mainstream view is a mistake. The legal system of early nineteenth-century Louisiana, Fernandez contends, was not really so different from that of any other state at the time. In comparison to other southern states of the period, he argues, this investigation of Louisiana shows it to be a representative model of an Anglo-American common law jurisdiction sharing remarkably similar experiences with its neighbors (xiii). This is a provocative thesis, and one that is likely to generate some controversy among Louisiana historians. Fernandez allows himself a short space to prove his thesis-only a bit more than one hundred pages. Chapter one is a perfunctory discussion of the period before the Louisiana Purchase based entirely on a few secondary sources, with little connection to the rest of the book. Readers primarily interested in French and Spanish colonization will be disappointed and may think the subtitle's promise of 1712-1862 something of a bait and switch, as the rest of the book only covers the last third of that span. …

Humanism and Scholasticism in Sixteenth-Century Academe: Five Student Orations from the University of Salamanca*

A collection of student orations by the Salamancan jurist Diego de Covarrubias, edited here in the appendix, offers a glimpse of the mental landscape of canon and civil lawyers in this era. The orations combine traditional scholastic forms of argumentation with humanistic themes, most prominently that of “arms and letters”. The article sets the orations in their intellectual and institutional context, and traces the intellectual lineages for this central topos. Although Covarrubias was conversant with the humanist literary tradition, in which “arms and letters” stood for twin achievements of a well-rounded courtier, the main point of these exercises was to assert, following Bartolus, that the legal profession rightfully deserved to inherit the honor and privileges bestowed in ancient times upon men of arms.

Medieval political thought in Europe, 1250-1450 (review)

138 Reviews Longer notes are placed at the end of the book, and while on the whole these are succinct and useful they exhibit at times a kind of fussy pedantry. Take, for example, the narrator's sententia concerning Dorothy's covert infidelities: 'The heart never grieves what the eye sees not' (p. 233). Though grammatically odd, this is perfectly intelligible in its context. The reader w h o nevertheless takes the trouble to seek out the endnote will scarcely feel rewarded to be told that 'Cranfill (p. 290) records that the more common form of the proverb was "what the eye seeth not, the heart rueth not" ' . This note will seem even more pointless to one who recognizes the phrase as idiomatic contemporary British English (as the chef in Fawlty Towers remarks philosophically, 'What the eye don't see, the 'eart don't grieve at'). Given this editorial redundancy, it is curious that there is no note on Riche's remark that the lawyer (one of Dorothy's lovers) 'so handled the matter that he had entered his action in her common place' (p. 239). No doubt the obscenity is self-explanatory, but its particular wit requires an elucidatory note for the m o d e m reader. But it is easy and ungracious to carp at details in a work of this scope. This is, on the whole, an excellent edition of a much undervalued writer. Peter Groves Department of English Monash University Black, Antony, Medieval political thought in Europe, 1250-1450 (Cambridge medieval textbooks), Cambridge, Cambridge University Press, 1992; rpt; paper; pp. xii, 211; R.R.P. AUS$29.95. The past few decades have seen an explosion in the study of medieval political thought. Although it is still underappreciated, it can hardly still be said to be 'strangely neglected', as Antony Black declares. What has been lacking is a general account of the entire field that includes all the recent work. Since Black's book attempts this, and also the equally laudable goal of presenting it in a form suitable for students, it must be evaluated on how well it succeeds in both of these areas. As the esteemed author of many publications, most notably in the areas of conciliarism and guilds, Black seems singularly qualified. But while his attempt is noble, the book's deficiencies prevent it from being definitive as either summary or text. The commencement date of 1250 is artificial, as Black himself tacitly acknowledges when he points out that the translation of Aristotle's Politics Reviews 139 around that date provided a new vocabulary but did not initiate a revolution in political thought. With earlier canon and civil lawyers, and thinkers such as John of Salisbury, left out, it is impossible to provide a coherent account. In fact, Black generally neglects ecclesiology and its role in secular political thought. Curiously, he does not even cite Brian Tierney's Religion, law, and the growth of constitutional thought, which covers this very subject, and he seems unaware of the existence and importance of corporate theory, as opposed to practice, another of Tiemey's themes. It is always possible to quibble with the organization of a book with such wide coverage. Black's division into thematic parts, such as 'Church and State' and 'Empire and Nation' works for the most part, although in fragmenting the views of major thinkers and assembling a bewildering array of views in a few paragraphs, it is hard for readers, especially for those unfamiliar with the subject, to build up a coherent picture. This is aggravated by his tendency to refer to thinkers without identifying them until much later and by his non-standard use of a person's place instead of name, such as 'Admont' for Engelbert of Admont. The book is marred by a number of small errors. Black also sometimes ascribes an idea to a particular thinker or camp without realizing that it was common earlier or was used by all camps. More significant are a series of misreadings and misleading treatments. For example, Black muddles Marsiglio of Padua's views. First, by giving an incomplete quotation, he leaves the impression that 'weightier part' means majority. Later...

Arguments on billeting and martial law in the parliament of 1628

ABSTRACTDebates over billeting and martial law arose in the parliament of 1628 in conjunction with such other grievances as the forced loan and discretionary imprisonment employed by royal servants from 1626 onward to keep alive the war effort against the monarchs of Spain and France. Both houses dealt with billeting rather quickly, the Lords by resolving a dispute among magistrates and military officers in Banbury, Oxfordshire, and the Commons by hearing general and particular complaints from civilians, expelling a member who signed an order for billeting, and petitioning the king. Attacks upon the employment of military law internally when a state of war did not exist in England originated in the Commons, reawakened fears over the perceived threat of Roman or civil law superiority to the common law, and set off fierce debates in which royal servants and civil lawyers supported and leading common lawyers denounced as illegal the commissions of martial law issued by the privy council. Underlying these debates, as with those over discretionary imprisonment, were conflicting interpretations of England's ancient constitution with practical consequences for the governance of the realm.

Control by the Courts: A Plea for More, Not Less

In virtually all seminars and articles devoted to international arbitration it can be fairly confidently predicted that the discussion will be tinged with at least some degree of self-congratulation at the role of arbitration in international disputes, and of proselytisation in favour of the various centres in London, Paris, Hong Kong, Kuala Lumpur and Australia which have been or are being created to provide it. Undoubtedly, too, there is currently a very widespread international movement, supported by civil lawyers perhaps more strongly than by common lawyers, advocating international arbitration even between developed countries and systems of law in the much wider context of commercial disputes generally rather than construction contracts in particular. This movement in some cases also advocates an overriding role for an international ‘lex mercatoria’ in such situations. In the narrow context of construction disputes, with which this paper is specifically concerned, these tendencies are strongly supported by civil engineers, architects and other technical arbitrators and experts and their institutions, and above all by contractors' organizations in all countries. Both movements appear to be in favour of removing arbitration generally, and international arbitration in particular, as far as possible from the oversight or control of the Courts (usually, of course, those of the ‘lex arbitrii’). Civil lawyers, in many cases coming from jurisdictions where much less interest or control has been exercised in the past by their own Courts in either commercial arbitration or construction law have, perhaps for this reason, been in the forefront of both movements. Thus the UNCITRAL Model Law of International Commercial Arbitration, for example, appears to permit judicial intervention only in cases of incapacity to contract, invalidity of the agreement, awards in default of service or notice, or excess of jurisdiction. Remarkably, it seems, no attack on an arbitrator's assumption of jurisdiction is …

The Fall and Resurrection of the Civil Bar, 1789-1820s

Almost every element of the civic order-where state and society intersect-came under scrutiny during the French Revolution. Few institutions or traditions remained untouched, and the system of civil justice was no exception. Each regime after 1789 reshaped the hierarchy of tribunals as well as their number, location, and procedures, while modifying the selection, tenure, and roles of their judges, lawyers, and bailiffs. True, if one takes the long view it might appear as if the Revolution had had little impact on the structure of the legal profession's civil branch. In the nineteenth century, family, property, and contract disputes still brought a stream of lawsuits to the courts and to the attorneys' chambers. The equivocal role and status of these civil lawyers appear quite similar if we jump from Beaumarchais' day to Balzac's. But such apparent continuity conceals the dramatic changes that cascaded over the bar during the 1790s. It is tempting but unproductive to dismiss these revolutionary changes as a mere aberration, and it would be an even greater error to accept at face value the seeming inevitability of Napoleonic policy in putting things right once again. Approached with an open mind as a problem in policy and the policy's implementation, the unglamorous subject of the civil bar can offer a fresh and suggestive perspective on the revolutionary and Napoleonic experiences.

FitzRalph's Antimendicant ‘proposicio’ (1350) and the Politics of the Papal Court at Avignon

The conciliar movement is often seen as the major political issue in which the universities of Oxford, Paris and the newer universities became actively embroiled during the fourteenth century and thereafter. It was the last and most ambitious product of the medieval vision of government by consent and representation that had evolved during the fourteenth century, and it marshalled the resources of theorists and practitioners of politics, of arts and theology faculty lecturers, of canon and civil lawyers, of monarchical publicists and papal hierocrats. In general, conciliarism drew upon the university-trained in a manner not previously seen on such a scale. During the Great Schism (1378–1449), the universities assumed exceedingly important roles in the affairs of the universal Church, with the University of Paris playing a dominant part from the start in proposing the via concilii. Pierre d'Ailly was, like Gerson, Conrad of Gelnhausen and Henry of Langenstein, and like the earlier Marsilius of Padua, a Paris scholar. And it has recently been argued that university support for the Basle conciliar programme was motivated not only by an attachment to the ideal of conciliar government but also by the hope of reforms which would improve the status of university-trained doctors in the Church. While the bulk of controls proposed by the conciliar movement concerned the reduction of papal control, a few aimed more explicitly at promoting the interests of graduates.

The Civil Lawyers in England, 1603-1641: A Political Study

The Civil Lawyers in England, 1603-1641: A Political Study

Voluntary Obligations and Normative Powers

Civil lawyers at least since the time of Gaius have been in the habit of taking 'the law of obligations' as a separate branch of study; within obligations, the practice of distinguishing 'voluntary obligations' from what Lord Stair called 'obediential obligations' is also fairly venerable. Voluntary obligations are of course those which arise from contracts and promises, obediential include, e.g., those whose incidence is determined by the law of delict. The point of the distinction is clear enough; I can choose whether or not to buy your house, and only if I choose to do so will I incur an obligation to pay you the price. If on the other hand I wilfully burn your house down, I am in breach of an obligation which applies to me whether I like it or not; and the existence of my consequential obligation to compensate you is equally independent of my choice. In the seventeenth century, at least, legal theorists such as Grotius, Pufendorf and Stair treated it as a very significant question to inquire into the nature and basis of voluntary obligation-how can the will obligate itself? Sometimes such disputes had significant practical results. For example, according to Grotius, it is of the essence of promises that they cannot bind without acceptance, whereas Stair took the opposite view. Grotius' view prevailed in most continental systems, but in relation for example to the rights of third parties under contracts, Stair's view is the basis of the modern Scots law.

The Lawyer-Client: A Managed Relationship?

Through a management sequence, a random sample of 125 civil lawyers were shown to engineer and control the lawyer-client relationship rather than leave its development and outcome to chance. The se...

The Lawyer-Client: A Managed Relationship?

Through a management sequence, a random sample of 125 civil lawyers were shown to engineer and control the lawyer-client relationship rather than leave its development and outcome to chance. The se...

The Nature of International Law

ONE of the most frequent assertions made among lawyers who are not specialists in the field is that there is no such thing as international law. Then, remembering their background as civil lawyers, they fall back on the rolled-up plea and assert that even if there is such a thing, it is not law and is wrongly described as such. It is not only the lawyers, however, who regard international law as something of a pretence. The man on the Clapham omnibus, too, in so far as he thinks about the subject at all, tends to regard international law as something that statesmen talk about, but which none of them has any intention of regarding. The blame for the development of such attitudes may, largely, be placed at the door of international lawyers themselves. Too many of them, accepting the academic nature of their subject, have adopted for themselves an egocentric ipse-dixitism that may have served their own ideas of self-aggrandizement, but that has done nothing but harm to the subject they profess to serve. There is a tendency for such authorities to postulate a principle as law, and to maintain it is such regardless of evidence that states in their practice have consistently behaved in a contrary fashion, without any allegations being made that such conduct constitutes a breach of the law.

Informal Relations in the Practice of Criminal Law

The hypothesis that strains from the formal institutional patterns in the practice in the practice of criminal law tend to manifest themselves in informal patterns is deduced from interviews with 101 criminal lawyers and 104 civil lawyers sampled from five jurisdictions. Differences between the two groups are related to functions characterizing the respective types of practice. Cliques and systems of informal relations develop as an effect of strains in starting a practice, in the adversary system of justice, and in rendering service to those accused of crime.