Legal Manuscripts Research Articles

Early Mālikī Manuscripts: A Retrospective

Abstract In this review article, I offer an overview of research undertaken thus far on early Mālikī Manuscripts, primarily the collection from Kairouan, Tunisia. Modern attention to this collection dates from the early twentieth century, as the collection itself moved from Kairouan to Tunis and back again. While access to Qurān manuscripts has been highly restricted, select scholars had been allowed to study and make copies of a limited number of legal manuscripts, primarily from the Mālikī school of Islamic law. These limitations had an effect on scholarship, making some forms of codicological and paleographic analysis difficult at best. The last part of the article addresses very recent scholarship and work that remains to be done, including network analysis and other ways of placing these manuscripts within broader social and historical contexts. I close with a reflection on the colonial history of research into these manuscripts and the responsibilities of researchers to reflect on the ethical implications of their activities into the future.

Against Literary Property: Arthur Murphy and the Copyright Metaphor in Eighteenth-Century England

Abstract: This essay reexamines the framing of copyright as "literary property" in eighteenth-century England through the figure of Arthur Murphy, one of the period's most successful playwrights, who was also legal counsel in two of the century's major copyright cases. Through analysis of Murphy's legal manuscripts alongside his literary works and theatrical career, I argue that Murphy fought against literalizing the property metaphor. By doing so, he aimed to protect the creative rights of authors and the good of the public.

The Challenge of Old Legal Manuscripts in Modern Law Libraries

AbstractOn the few occasions that old manuscripts are encountered in modern practice they may raise problems of reading old handwriting and identifying the place of the document in the legal process. This article by Barbara Tearle gives advice on why specialist help is needed and where to obtain it.

Decretum fuit per burgenses: a fresh perspective on law-making in the medieval Scottish burghs

Historians have long been aware of a text purporting to contain decisions made by the burgesses of four Scottish burghs: Berwick, Roxburgh, Edinburgh and Stirling. This text is internally dated to 1295 or 1296 and purports to lay down rules governing succession to deceased burgesses, some of which have echoes in modern Scots succession law. The text of the decisions has attracted little study, in part because of its complex manuscript tradition. This article draws on important recent work on the Scottish legal manuscript traditions, to explore the transmission of the decisions and what they meant to those who first articulated them. In the process, it also asks about the interaction between the manuscript traditions that transmitted the legal texts and the traditional customary practices of Scottish burghs. These questions may have some bearing on how historians understand the development of the Scottish legal tradition during the medieval period.

Persianate Fiqh in Indonesia: Majmuʿih-yi Khani as a Rare Legal Manuscript in a Cosmopolitan Context

Abstract It is often said that the Shafiʿi school of law was the main source of the Malay-Indonesian Islamic legal tradition and codes during the last couple of centuries. However, one may wonder if further Islamic legal schools were welcomed in the archipelago and, if so, how and under what circumstances. On this subject, the author examines a rare, thick, fragile, and rare Persian manuscript. Copied in the seventeenth century, the manuscript in question is a work that was not only in the possession of Malay-speaking people. The manuscript clearly shows an attempt to translate it into local languages and to expand its jurisprudential clauses. Being a comprehensive source for the study and practice of Islamic law, it includes both Sunni and Shiʿi classical legal treatises, their Qurʾanic commentaries on “legal verses,” and relevant theological comments. This source has the potential to invite scholars to re-examine the context of seventeenth and eighteenth-century Southeast Asian manuscripts which used to be known as the turning point towards “Shariatization” by means of Arabo-Sunni legal and theological treatises, and to raise a more robust conjecture about the cosmopolitan nature of the Indonesian archipelago.

Hung up on Judas: A Case Study on the Pragmatic Usage of Religious Iconography in Legal Manuscripts of the Institutiones

This article serves both as survey of illuminated manuscripts of the Institutiones and an analysis of the links between the iconography of criminal law and the model of Judas hanged. This investigation is based on the study of all digitalised manuscripts of the Institutiones. The corpus is composed of manuscripts ranging from the fifth to fifteenth century, produced all over Europe. The study elucidates how illuminated manuscript boomed during the thirteenth century, with Bologna at its heart. The production continued growing until the fourteenth century, to eventually die down during the fifteenth century. The world of legal manuscript’s illumination was Bologna-centric, however, some competitors, namely France and Germany, offered a visual counterpoint to understand this great iconography. When developing iconographic cycles around criminal law, two approaches existed. The approach developed in Northern Italy incorporated the representation of either a decapitation or a presentation of a prisoner. These illuminators created a specific iconography to further a distinctive visual identity within the field of legal manuscripts, whereas the rest of Europe adopted uniformly the image of a hanged man. This form of depiction takes for its model the motif of Judas hanged, heavily linking criminality to religion.

Imago, ius, religio. Religious Images in Medieval Legal Manuscripts: An Overview

Editorial introduction to “Imago, ius, religio. Religious Iconographies in Illustrated Legal Manuscripts and Printed Books (9th-20th)”. The aim of this monographic issue is to analyse the use of religious iconographies in legal manuscripts and printed books, to create a basis for discussion and exchange on the diverse artistic, historical, and social aspects of these iconographies.

A Legal Manuscript of 1784, Reflecting the Possessory Rights of the Romanian Pastoral Village of Rășinari

The study presents Transmissionales in causa Possesionis Resinar contra Liberam Regiamque Civitatem Cibiniensem 1784, a manuscript volume of 1,318 pages, preserved at the Church Museum of the Bishops’ House in Rășinari, Sibiu county, transcribed entirely and translated partially by a group of medieval and modern history researchers from the “George Barițiu” Institute of

The Governance of New Territories During the Qin Unification

Abstract This paper uses recently discovered administrative and legal manuscripts to investigate the governance of newly conquered territories during the Qin unification, with the aim of examining Qin’s governing intentions and strategies, which were inextricably interwoven with its swift territorial expansion. The manuscripts demonstrate that the new territories experienced instability and crisis and that Qin had to address various administrative problems to achieve successful governance. The paper explores the flexible, pragmatic policies that Qin devised and adopted to suit the specific social and political circumstances of the new territories. These policies included the removal of native Qin people, laborers, criminals, soldiers, and officials from the old lands to the new lands, preferential and tolerant treatment of the new population, and enactment of laws made specifically for the new territories. The paper shows that although the Qin central government successfully imposed its own administrative system in the new territories with some compromises, there remained a considerable number of unstable and treacherous elements.

The transmission of glosses. Script size and Irish legal commentary

Script size has long been used as one of the factors to distinguish the early Irish legal tracts from their accompanying glosses and commentary. This article examines the role of script size used in Irish legal manuscripts and argues that it is an unreliable guide. Heptads 64 and 65 will be used as a case study to argue this point.

Magical Charaktêres in the Carolingian World: A Ninth-Century Charm in MS Vat. lat. 5359 and Its Broader Cultural Context

There has been a common assumption among medievalists that the magical signs deriving from Eastern occult practices and known in Latin as caracteres first appeared in Western European manuscripts with the rise of “learned” magic in the high Middle Ages, and with the translation of relevant materials from Hebrew and Arabic. This paper questions this assumption by presenting a charm, hitherto overlooked, that contains occult signs of Eastern origin, recorded along with an exorcistic incantation deviating from normative Christian formulas, on the final page of a ninth-century Carolingian legal manuscript from northern Italy (Vatican City, Biblioteca Apostolica Vaticana, MS Vat. lat. 5359, fol. 146v). Thereafter, the paper sets this unique charm within a broader cultural context of eighth- and ninth-century Western Europe, where both laypeople and clerics continued to deploy graphic signs originating from Eastern occult traditions for apotropaic and healing purposes, despite the repeated criticism of this practice in normative Christian discourse.

Die Handschrift des Digestum vetus aus der Bibliothek in Kórnik (BK 824). Vom ikonographischen Programm der mittelalterlichen Künstler zur Hypothese über die Unterrichtsmethode

The collection of the Kórnik Library includes the digestum vestus manuscript, the uniqueness of which is emphasized by art historians. There are two main reasons why it is unique. Firstly, because of the number of illuminations in the legal manuscript. Secondly, because of the confirmed fact that relevant part of illuminations was implementing an illustrative program. The paper starts with presenting the history of the manuscript. The main part of the paper focuses on the issues if and how the illustrative program has reflected the medieval teaching method based on the first 24 books of Justinian’s Digest (digestum vetus). The analysis of allocating the illuminations and links between illuminations and specific legal issues give rise to recognizing the main features of this method: central role of the tort (aquilian) liability, semi-systemic approach to the formation and performance of contract and marginal role of the texts related to legal method and general concepts of law at the beginning of the Digest. This hypothesis formulated on the basis of one, unique manuscript should inspire further debate about the fragmentary pragmatic nature of medieval law teaching based on the Digest.

Preserving Dutch colonial hegemony through incorporated islamic matrimonial system in the Netherlands East Indies

The growth of Islamic matrimonial system in the present Indonesia was originally formulated in the 19th century of the Netherlands colonialism. There are several discourses among Dutch scholars in establishing an applicable law system since there are various legal system existed, and finally the colonial government issued legal dualism in order to preserve their hegemony. Provoked by several scholars the new constitution in 1854 was approved. In that, the Islamic matrimonial system was assimilated into Adat law and therefore the Islamic marriage system was allowed to be practiced in its own way. This Islamic matrimonial system was formed as a law under Dutch controls. Accordingly, the paper discusses Dutch hegemony system through applicable Islamic matrimony, and the development of this marriage as the formation of preserving hegemony. This paper arguably investigates Dutch hegemony system through applicable of Islamic matrimony. The analysis is guided by following questions: first, what are the reasons behind the implementation of indigenous legal institution such as Islamic marriage in preserving hegemony? Second, to what extent does the Islamic matrimony persisted within the applicable policy? The methodology is critical analysis of legal history contents, the data mainly taken from legal manuscripts which is a comprehensive view of law from a particular critical vantage point: a way of doing law, perhaps doing things with law. This paper argued that Dutch Hegemony system is poles apart from many colonialism regimes, the incorporated of indigenous legal system has become a method to subjugate indigenous power. Therefore, Islamic Matrimony developed into ways according to colonial’s interest

Illuminated Bolognese Legal Manuscripts and Angevin Regnum Siciliae. The Advocates Volumen parvum in Edinburgh (National Library of Scotland, Advocates ms 10.1.4 ([i

Carried by owners and traders, Bolognese libri legales spread widely over Europe, especially during the thirteenth and fourteenth centuries, including to the capital of Angevin Regnum Siciliae, Nap...

Kultura prawna w Polsce przed założeniem Akademii Krakowskiej

Culture is a very complex reality of human existence, which is comprehended in its different aspects. By the object of culture they are all products of human activity, events, behaviors ordered in certain examples present in societies in the form of rules of conduct which are determined by customs, morality and legal regulations. The acceptance of Baptism by Mieszko I of Poland in 966 was the turning point in the Polish history. The country of the first Polish Piast was rooted in the culture of the international community of European states. This situation favored the influence of certain rights of the foreign Polish legal system. In the then practice of Slavic states, the legal system was based on a tribal customary law (i.e., universally recognized, time-honored form of behaving, accepted in the given social community). From the 12th and 13th centuries the knowledge of Roman law and canon law broadened in Poland. During this period, developing the legal thought was based on both types of law. Knowledge of those systems derived from various sources. This process was used for the import of legal manuscripts of Roman and canonistic study to Poland. An example of the reception of Roman law and canon law in Poland until the beginning of the 13th century is the Chronicle of Poland by Master Vincent called Kadlubek (c. 1150–1223). The document is one of the most important and most abundant sources of law in this period.

Discrepancy between Laws and their Implementation

This article investigates the regulations on grain storage and the ration system during the Qin and Han periods of China (221 bce-220 ce), using the Shuihudi Qin legal texts and the Zhangjiashan Han legal manuscripts. The “Statutes on Granaries” (“Cang lü”) and the “Statutes on Rations at Conveyance Stations” (“Zhuan shi lü”) are compared to administrative documents from Liye and Xuanquan to demonstrate that there were significant discrepancies between these statutes and the actual distribution of food. This research on the process and the amounts of rations issued by local granaries reveals that the highly detailed regulations were designed not to guarantee a certain amount of rations to the recipients but to prevent the abuse of government property.

Calculating Crime and Punishment: Unofficial Law Enforcement, Quantification, and Legitimacy in Early Imperial China

This article analyzes the rules and practices of unofficial law enforcement as reflected in recently excavated legal manuscripts from the Qin and Western Han periods (221 B.C.-9 C.E.). I argue that, apart from limiting the potential abuses of the system such as excessive use of violence and arbitrary accusations, these regulations pursued an important ideological goal. By establishing encompassing, number-based hierarchies of crime, punishment, reward, and responsibility, legislators sought to make the society “legible” not only for the state but also for its common members, which was essential for legitimation of the empire in the eyes of its subjects. Early empires’ effort to promulgate number-based matrices for various social situations, including judicial ones, was an effective solution to the problem of legitimizing imperial order by offering people an effective mechanism of improving their social standing and boosting wealth through participation in the legal institutions. Even when attempting to manipulate the system, individuals implicitly recognized the official legislation as a source of practical taxonomies to structure thinking about obligation, responsibility, and limits of legitimate self-interested behavior.

Antonio García y García, O.F.M. (1928–2013)

Antonio Garcia y Garcia, O.F.M, died on July 8, 2013, after a decade of suffering from an agonizing form of Alzheimer's disease, in the Franciscan convent of Chipiona (Cadiz). Born in Bretona (Lugo, Galicia) on January 7, 1928, he joined the Order of St. Francis at the age of eighteen and was ordained a priest in 1952. He received his doctorate in canon law at the Pontificium Athenaeum Antonianum in Rome in 1956 and was appointed professor for History of Canon Law at the Universidad Pontificia de Salamanca in 1959, where he taught until his retirement.With the death of Professor Garcia, the profession has lost one of the last founding fathers of modern scholarship in medieval canon law. He belonged to the group of canonists led by Stephan Kuttner. These canonists were associated by friendship and pointed the way to a manuscript-based research of canon law. They were at the same time great scholars and true gentlemen. He was an amazingly prolific writer, with a scholarly output that surprises in quantity as well as in its wide range of content and interest. His oeuvre includes thirty-two books and almost 300 articles (see his bibliography published in Studia Gratiana 28,1998). The topics of his publications, which appeared in a large variety of Spanish, Portuguese, and international journals, stretch geographically from his own little hometown in Spain to Latin America and chronologically from the sixth to the seventeenth centuries. He critically investigated texts from the canons of the Fourth Lateran Council (1215) to the Tractatus de legibus of Francisco Suarez (1612); he analyzed problems of legal history from the fidelity oaths in Visigothic councils to the human rights of the indigenous people of Latin America; and he discussed the history of the European universities as well as that of the colonial conquests by Spain and Portugal. Among the innumerable findings of his research, two farsighted endeavors stand out, assuring that the international community of historians will remember Father Garcia forever with respect and gratitude. First is the monumental Synodicon Hispanum, which he conceived, directed, and partly compiled. Progressing at a steady pace since 1981, it has produced eleven volumes to date and covered a large number of Spanish and Portuguese dioceses in a systematic fashion, thus placing the two Iberian countries in a leading position within the international scholarship in synodal texts. The second invaluable accomplishment of Father Garcia results from his tireless and most successful efforts to highlight the treasures of medieval manuscripts in Spain. Fifty years ago, the manuscript holdings of that country were regarded, even by native scholars, as a kind of wonderland-immensely rich, but mysterious and practically inaccessible. If this situation has definitely changed by now, at least as far as medieval legal manuscripts are concerned, this is almost entirely due to Father Garcia, who acted as a very efficient access manager to Spanish libraries, operating on two different fronts. …

Die Könige und das Reformationsverfahren des Rechts in den polnischen Städten vom 14. bis zum 16. Jahrhundert

Magdeburg law was in force in many Polish cities as a result of location and translocation from Polish to German law. Create and modify rights can take many forms in the Polish cities of the late Middle Ages and Renaissance: legislation of king and parliament, municipal legislation, legal-theoretical proposals and modifications of legal manuscripts (Mirror of Saxony and Weichbild of Magdeburg). According to the Magdeburg law, change of the written law required a consent of the owner of the city, so in the case of the royal cities – of the monarch. Thus, the legislative procedure in many cases require the mandatory participation of the king: in cases of a new regulation was contrary to the written law (criminal law, civil law, the city system and other issues addressed in the Mirror of Saxon and Weichbild of Magdeburg) and when he played a role as a legislator in the king's powers (taxes, duty exemptions, business licenses, et al.). Most of the regulations was initiated by stakeholders (municipalities, citizens et al.). The process of the reformation of the municipal law includes not only the replacement of the existing regulations and adding the new regulations, but also the necessary steps preceding and following the legislation sensu stricto (E.g. the cities regularly gave "gifts" to public officials, hoping for their support).

Les genres artistiques “profanes” au XIIIe siècle: Convention et originalité dans le plafond à caissons de la cathédrale de Téruel et les marges du Vidal Mayor

Through the study of two Spanish works of the thirteenth century (the wooden ceiling of the Aragonese church of Santa María de Mediavilla, and the margins of the Vidal Mayor, a well-known legal manuscript preserved in the Getty Museum of Malibu), this study addresses a general question that has sparked numerous debates in recent times: the presence and meaning of ludic and profane imagery in sacred or other serious contexts. This issue is addressed from the perspective of what may be called—following Gombrich—the “primacy of artistic genres” in the modus operandi of artistic creation and reception in the Middle Ages, a principle which seems unavoidable when we want to establish the intended meaning of an image, or—as the article proposes—to distinguish between its generic (or topical) sense and its specific (or original) significance or significances.