Faculty Bibliography
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Modern comparative lawyers tend to date the foundation of their discipline to the nineteenth century and to the promulgation of the great European codes. This article claims that one could make an argument that comparative law is to be found in the ancient world, that despite the multiplicity of legal sources it is not often found in the early or high middle ages, that there are hints of it in the commentators of the later middle ages, that in a very real sense it can be found in the ideas of the French legal thinkers of the sixteenth century, and that one can trace a relatively clean line from the sixteenth century to whatever nineteenth-century authors one chooses to focus on as the founders of the discipline that produced the First International Congress of Comparative Law in 1900.
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This paper had its origins in a study of Benvenuto Stracca's De mercatura. The purpose of the study was to determine whether there was anything in that work that supported the notion that there was a system of customary mercantile law in operation in Italy in Stracca's time. The answer to that question proved to be a rather resounding 'no', and the arguments that lead to that conclusion will be published elsewhere. In the process of examining Stracca's sources, much information appeared about how the jurists of the fourteenth, fifteenth and early sixteenth centuries did deal with mercantile matters and, in particular, the way in which they manipulated the concept of equity to achieve what they deemed to be just results in such cases. Limitations of space allowed consideration of only a couple of procedural examples intheprevious paper. The story, it seemed to me, deserved consideration in its own right. What follows, then, is a fuller consideration of the use of equity by the commentators in their handling of mercantile cases, beginning, as the previous paper did, with Stracca's general remarks on the topic.
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This chapter discusses the crime–tort distinction and its supposed derivation from Roman law. In Anglo-American law the distinctions between crime and tort, and between criminal and civil procedure, are subdivisions of a wider distinction between public law and private law. The emergence of the justices of the peace in the fourteenth century, justices who had jurisdiction over lesser crimes but did not have jurisdiction over civil actions of trespass, was probably quite important in developing the crime–tort distinction in English law. There were people in Henry II's England who knew much more Roman law. The Roman distinctions between crime and delict, criminal and civil, proved useful to describe what had happened, and served to confirm its naturalness and inevitability. The Roman legal terms that correspond to the modern Anglo-American 'crime' and 'tort', and even more to the modern Continental crime and delict, are crimen and delictum.
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The history of institutions is plagued by the biological analogy. We speak so frequently of the life and death, the birth, growth, maturity, and decline, of institutions that we forget that these words are being used metaphorically. Of course, the human beings who create and use the institutions have a birth and a death, but human institutions have only a start and a stop (frequently a far less precise one than those words might imply), and there is no reason why the periods between the start and stop need parallel those of living organisms.
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"A service in celebration of the life of Samuel Edmund Thorne, Charles Stebbins Fairchild Professor of Legal History, Emeritus, 14 October 1907-7 April 1994, The Memorial Church, Harvard University, Wednesday, May 18, 1994"
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Charles Donahue, Jr., Thomas E. Kauper & Peter W. Martin, A Course in Basic Property (West Pub. Co. 3d ed. 1993).
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Andrew J. Finch has taken issue in these pages with my interpretation of “clandestine” marriage in the later Middle Ages. He is certainly correct that the phenomenon of “clandestine” marriage in the high and late Middle Ages cannot be given a single explanation. As I said in the first piece that I wrote on the topic: “The cases provide evidence for the proposition that some people were genuinely confused about to whom they were married; that the Alexandrine rules were being used to defraud the innocent; and that they were being used by people to get out of marriages which had become intolerable for reasons quite unrelated to the Alexandrine rules.” And again: “while the reasons why the parties chose to marry informally rather than solemnly is in many cases obscure, there are some cases in which we may conclude that the parties chose informal marriage in order to escape pressure from their families or lords. Howard… and Homans… both suggest that the reason for informal marriage is that the Church was unable to enforce her rules on the ingrained marriage customs of the people. Turlan…, on the other hand, sees as I do informal marriage as a way of escaping both family and ecclesiastical pressure. The two views are not necessarily inconsistent. Varying motivations may have played a part in different places and times and among different individuals.”
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The Harold J. Siebenthaler Lecture Series.
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Symposium - Religious Law and Legal Pluralism.
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