Histoire du droit: Fondements et Évolutions

Legal History: An In-Depth Exploration of European and Colonial Legal Models

Legal history is the study of how law has developed over time, influenced by cultural, political, economic, and social contexts. It examines the evolution of legal systems, institutions, and concepts, often challenging static or positivist views of law by revealing its dynamic and constructed nature. This exploration covers European legal models from the 11th to the 19th centuries, the rise of colonial law, the development of constitutionalism, and the processes of codification and international law.

Chapter 1: General Introduction to European Legal Models (11th-19th Centuries)

This period witnessed the emergence and evolution of distinct legal systems that shaped the modern legal landscape. Two core concepts for understanding this era are Legal Families and Legal Pluralism.

Legal Families

In 1977, legal historians Konrad Zweigert and Hein Kötz proposed a typology of eight legal families worldwide. These classifications, though criticized for rigidity, provide a framework for understanding the origins and characteristics of different legal traditions.

• Romanistic: Originating in the early 19th century, this family derives from Roman law and the revolutionary French civil code. It is primarily found in France, Italy, Belgium, and Spain.
• Germanistic: Also derived from Roman law, but with its own distinct development. While nearly disappearing in the 19th century, elements can be found in Switzerland.
• Nordic: Influenced by Roman law, but Konrad suggested civil law did not develop significantly here.
• Anglo-American: Known as Common Law, this system has evolved from the Middle Ages to today, especially through the British Empire.
• Socialist: Emerged after the industrial revolution.
• Far Eastern: Encompassing legal systems in Asia, such as Japan and China.
• Islamic: Prevalent in the Middle East.
• Hindu: Predates British colonization in India.

For this course, the most significant are the Romanistic and Anglo-American families due to their widespread influence.

Legal Pluralism

Modern historians find the concept of "legal families" too rigid, as pure legal systems are rare. Instead, Legal Pluralism is preferred, defined by Margaret Davis as "the co-existence of multiple systems or forms of law within one geographical space." Key Aspects of Legal Pluralism:

• Multiple sources of law: Law is not derived from a single origin. For example, in England, Roman law, common law, and Germanistic influences coexisted.
• Recognition of diverse legal realities: Interactions between different legal systems are recognized. Examples include India under colonization, and Quebec, which retains influences from both British and French legal systems alongside Canadian federal law. Louisiana also demonstrates a "tradition of codification like it does in France but still the federal law is American."
• Interaction between legal systems: Systems are not isolated but dynamically influence each other.
• Impact on access to justice: The existence of multiple systems can complicate or facilitate access to justice.

Chapter 2: The Birth of English Common Law and European Ius Commune (Middle Ages)

This chapter highlights fundamental differences between the English and European legal models that emerged during the Middle Ages.

	English Legal System	European Legal System
Legal Foundation	- Rooted in Common Law - Judicial decisions are primary	- Civil law derived from Roman Law - Statutes - Codified states (e.g., civil code)
Influence of Roman Law	- Limited influence	- Heavily influenced
Legal Institutions	- Distinct institutions: monarchy, Parliament, common law courts (evolved over centuries)	- Variety of systems: civil law courts, administrative bodies, constitutional frameworks
Historical Development	- Shaped by events like the Magna Carta, Parliament establishment, judiciary development	- Diverse influences: Ius Commune, Holy Roman Empire, French Revolution
Source of Law	- Primarily relies on case law, statutes, customary law	- Written codes, statutes, international treaties

The English Common Law

A. The Pre-Norman Legal System (before 1066)

Before 1066, Britain was characterized by barbarian invasions and a feudal society. Various kingdoms, including those of the Angles, Saxons, Scots, and Picts, relied on customs with "no written law." Roman law had "almost disappeared." The king later sought to unify these diverse customs.

B. The Development of Common Law after the Norman Conquest (after 1066)

The Battle of Hastings in 1066 was a pivotal event. William the Conqueror's victory led to the Norman reign and the introduction of French language and legal concepts, marking the beginning of Common Law. The Norman Conquest fostered a "circulation of law and people" between Britain and the continent. Legal scholars played a crucial role in reintroducing Roman and Canon law to England.

• Vacarius: An 11th-century priest from Bologna, he taught at Oxford and authored the « Liber Pauperum », a manual using extracts from Justinian's Code (Roman Law).
• Lanfranc: An Italian-born specialist and Archbishop of Canterbury, he served on the royal council, compiling existing customs and reintroducing Roman Law.

The Role of King Henry II in Legal Reforms King Henry II aimed to consolidate royal power. He established « royal courts » (tribunals) that were superimposed over existing local courts. These royal courts gained popularity due to their "more powerful" nature and efficient justice system. The Growing System of « Writs » The expansion of royal jurisdiction depended on two key elements:

1. The System of Writs: Originally royal "orders" or "instructions" (in Latin) to resolve specific problems. By the 13th century, these became standardized "fixed formulas" obtainable from the King's Chancery.
2. Record-Keeping: Unlike local courts, royal courts kept detailed records of cases, allowing for enforcement of decisions.

This led to the centrality of procedures, a defining characteristic of the English legal system, allowing common law to emerge as a unified system applicable to all and superseding local jurisdictions. The Professionalization of Law The writ system made common law highly procedural.

• Centrality of Procedure: Pleading became crucial, ensuring parties followed an "acceptable script." These rules promoted equal treatment and judicial impartiality.

The complexity of procedures led to new legal professions:

• Procurators: Represented absent parties.
• Barristers: Specialized in court pleading.
• Attorneys: Counseled clients but did not necessarily plead.

Famous Jurists:

• Ranulf de Glanvill: Author of the first legal treatise, « Tractatus de legibus e consuetudinibus regni Angliae » (late 12th century), codifying writ procedures.
• Henry of Bracton: A 13th-century jurist who compared common law norms to Roman law in « De legibus et consuetudinibus regni Angliae », highlighting similarities and distinctions.

C. The Backlash and the « Magna Carta »

The growth of royal jurisdiction met resistance from local lords, culminating in a major political crisis.

• The Rebellion: In 1214, after military defeats in France, barons rebelled against King John Lackland's financial demands.
• The Great Charter: In June 1215, King John signed the Magna Carta at Runnymede. Though often seen as granting rights to all Englishmen, it initially granted privileges only to the nobility. Henry III reaffirmed it in 1225. Lord Bingham noted its significance lies more in later interpretations as a symbol of limited royal power.

When common law writs were insufficient, a new system emerged:

• The Role of the Chancellor: The king allowed the Chancellor to hear litigants and grant "extraordinary remedies" through a process called « Equity », which emerged in the 14th century.
• Institutionalization of Equity: The Chancery became a court of justice for "appealing on writs." By the late 15th century, equity was institutionalized and integrated into the common law court system.
• Thomas More: A humanist and jurist, trained in both common and Roman law, who served as Lord Chancellor, exemplifying the system's professionalization.

D. The Emergence and Evolution of Parliament

The Magna Carta established a Great Council (nobles and London bourgeoisie) to approve taxation, alongside the king's Private Council.

• From Council to Parliament: By the 13th century (1240), this council was called a « Parliament ». In the Middle Ages, it functioned primarily as a "tribunal" for the nobility, not a modern representative chamber.
• The Two Chambers: During Edward III's reign (14th century), Parliament split into the « House of Lords » (higher nobles) and the « House of Commons » (knights, lower nobility, and "burgers" from cities).
• Political Role: Parliament gained legislative influence by using petitions to ask the king for laws in exchange for voting on taxes.

E. The Royal Legislation

The 16th and 17th centuries were marked by religious, political, social, and economic struggles.

• The Reformation: Henry VIII's divorce led to the creation of the Anglican Church, dividing England between Catholics and Protestants.
• The Stuart Crisis: James I claimed the king was "above the law," clashing with common law judges who believed the king was "under the law." His son, Charles I, insisted equity should prevail over common law.
• Civil War and Republic: In 1648, Parliament executed Charles I, establishing the « Commonwealth of England » under Oliver Cromwell for 11 years.

Expansion of Common Law since the 16th Century

The 17th century brought further crises. The monarchy was restored in 1660, but tensions persisted. James II's perceived closeness to French Catholic interests led to the Glorious Revolution (1688), where Parliament forced his abdication and invited William of Orange.

• The Bill of Rights (1689): William had to accept this document, which significantly limited royal power. Key articles included:
  • Art. 1: King cannot suspend laws without Parliament's consent.
  • Art. 4: Levying money for the Crown without Parliament's grant is illegal.
  • Art. 6: Maintaining a standing army in peacetime without Parliament's consent is illegal.
  • Art. 8: Free elections for Parliament.
  This document became a cornerstone of constitutional law, influencing the American and French Declarations of Rights.

B. Dissatisfaction with the Legal System

By the 14th-16th centuries, the writ system faced criticism for being uncertain, expensive, inefficient, and inappropriate.

• Multi-normativity: The coexistence of royal, local, ecclesiastical, and municipal jurisdictions made law complex. This multi-normativity was debated, with some seeing it as reflecting societal complexity and others as unfair.
• The acceleration of trade, immigration, and economic activities in the 16th century spurred calls for rationalization and systematization of law to ensure certainty and order.

C. Questioning Royal Justice

The 16th-17th centuries saw a rise of humanism and criticism of existing systems, including royal justice. Political and religious crises undermined the king's legitimacy, directly impacting confidence in Common Law, which was tied to the king's ability to guarantee fair treatment.

D. Judicial Response to the Crisis

To preserve Common Law from criticism and differentiate it from the monarchy, legal experts reinterpreted legal history.

• Distancing Common Law from the King: Common Law was re-framed as "customary law" predating the Norman conquest, originating from Anglo-Saxons. William Blackstone popularized this in the 18th century.
• Common Law as the Sole Significant System: Claimed Common Law was the "only significant system" in England, superior to all other jurisdictions. William Maitland (19th century) argued Common Law synthesized other jurisdictions by the end of the Middle Ages.
• Limiting Royal Power: Reinterpreted Magna Carta as a royal promise to respect subjects' customs and rights.

In the 20th century, modern scholarship challenged these reinterpretations, emphasizing the continued importance of local and ecclesiastical jurisdictions and the less independent nature of Common Law than previously claimed.

Chapter 3: Ius Commune (European Common Law)

The 12th century marked a pivotal period, often compared to the Renaissance, characterized by the demise of feudalism, rising monarchical power, and urban expansion. This led to a need for structured, written legal systems beyond unwritten customary law.

A. The Study of Law in Europe

15th-century Europe was fragmented into numerous principalities, kingdoms, and cities (e.g., 800 entities in Germany), resulting in extensive legal pluralism. The 12th century's Legal Revolution had three drivers:

1. Rediscovery and Reconstruction of Ancient Roman Law: Specifically, the « Corpus Iuris Civilis ».
2. Adoption of a New Method: For analyzing ancient texts.
3. Invention of a New Environment: The university setting for applying this method.

The Corpus Iuris Civilis (Justinian's 6th-century codification) comprised:

• The Code: Roman civil law.
• The Digest: Collection of commentaries.
• The Institutes: A student manual.
• The Novels: Justinian's new constitutions.

B. A New System of Law

Rediscovery in Bologna

Most of the Corpus was lost until the 11th century when a nearly complete copy of the Digest arrived in Bologna, Italy. This coincided with a power struggle between Emperor Henry IV and Pope Gregory VII, both seeking Roman law fragments to justify their claims, leading to its reconstruction.

The Scholastic Method

Scholars (often working for the church) developed Scholasticism to study these texts:

• Philological Analysis: Studying terminology.
• Dialectical Discussion: Debating interpretations.
• Commentaries: Documenting discussions.

The Gloss (Glosses)

Scholars annotated manuscripts with brief comments called glosses. Over time, "comments of the comments" obscured the original texts. By the 14th century, scholars provided practical advice as « consilia », applying theoretical debates to practical cases.

C. Spreading Ius Commune

This innovative approach created the Ius Commune (European Common Law), a shared legal system across Spain, Portugal, Italy, Germany, France, and the Netherlands.

• Spread via universities and mobile intellectuals.
• Manuscripts circulated widely.
• Princes and kings supported it to fortify their power.

Universities boomed from the 12th to 15th centuries (Bologna, Paris, Oxford), studying Roman, Canon, and feudal law, combining methodologies to form a new legal system. The Ius Commune did not replace existing local laws, which were called « Ius Proprium »; instead, it layered on top of them. By the end of the 16th century, these legal techniques permeated everyday life across Europe.

Chapter 4: Humanism and Reformation

The Ius Commune relied on a unified Catholic community, but the 15th-16th centuries saw challenges from the Reformation and growing political divisions, as kings asserted independence from the Pope and Emperor.

1. Legal Humanism

The Renaissance, with its rediscovery of antiquity, fostered Humanism, a movement centering the human being. Humanists advocated for a critical and rational approach to law, rejecting the scholastic method as disconnected from historical context.

• They insisted that law is a product of specific society and circumstances. Lorenzo Valla, for example, criticized scholasticism and sought a "purer" Corpus Iuris Civilis.
• They studied the historical production of Roman law fragments and incorporated Greek antiquity, logic, geometry, and grammar.
• Guillaume Budé: A French humanist who found scholastic law boring. He focused on philology, creating better translations, and founded the Collège de France in 1530 to teach outside traditional university systems.

2. The Emergence of the French Method of Law

The 16th century transitioned from medieval scholastic models to a new method. While traditional scholastic literature (« mos italicus ») remained common, the « mos gallicus » (French manner) emerged, adopting a historical and philological approach to Roman law.

• French humanists aimed to reconstruct ancient texts, purging errors and publishing critical editions, viewing their work as "archaeology" to rediscover original Roman law.
• Jacques Cujas: Reorganized the Corpus Iuris Civilis based on text genealogy.
• The French model integrated non-legal sources and material culture to understand historical context.

3. The Protestant Reformation

Beginning in 1517 with Martin Luther's 95 theses, the Reformation fragmented Europe's unified Christian community. This challenged the ius commune, which presumed a shared culture and religion. Protestants developed their own laws, viewing the ius commune as too intertwined with Catholic canon law.

4. The Combined Effect of Humanism and Reformation

These movements were subversive for the ius commune.

• Both sought freedom from previous legal generations' work. Humanists saw medieval methods as distorted; Protestants rejected law backed by the Catholic Church.
• Both emphasized returning to an authentic past through original texts.
• John Calvin: A former law student, applied the humanist method of textual return to his theological and legal vision.

5. A New Interest in Customs

In France, legal humanism also criticized royal power.

A. Remaining Local Laws

• Humanists focused on local law, arguing France had an authentic law distinct from both ius commune and other eras.
• They believed local laws were superior to royal law and that the king should obey them.
• This aimed to establish a normative order superior to royal mandates, challenging royal and papal supreme power. This was the stronghold of Mos Gallicus.

Political Pact

Jurists found in feudal law the idea of an unequal pact between lords/king and vassals. This concept implied that if a monarch acted tyrannically and violated the pact, they could be replaced, serving as a legal basis for resistance and revolution.

B. The Customs of France

This focus on local law led to a turning point.

• François Hotman (1524–1590): A Protestant legal humanist, he advocated purging French law of Germanic, canon, and Roman influences. In « Franco-Gallia » (1573), he argued for a political pact delegitimizing royal absolutism and asserted the king could not violate this pact because local French law was the only legitimate reference.

C. How Customs Bottomed Their Status

Campaigns to verify, clarify, consolidate, and write down local laws swept Europe in the 12th-13th centuries.

• From the 13th century, Ius Commune jurists transformed practical conflict resolution into « prescriptive customs », inquiring into and verifying invoked customs.
• By the 14th-15th centuries, jurists systematized and formalized local customs into abstract categories, linking different customs to create a "pure, stable, and permanent law."
• The ius commune in the 15th century deepened this centralization, working with customs rather than against them, and incorporating its ideas into local practices, thus giving customs their legitimate status and developing royal bureaucracy.
• By the 15th-16th centuries, customs began to be written down during the Humanism and Renaissance period, shifting from oral tradition.
• In the 16th century, French jurists compiled local laws in vernacular French rather than Latin. This fostered the idea of France divided into regions with different customary laws, notably the « pays de droit écrit » (south, Roman law influence) and « pays de droit coutumier » (north). This division was often "rhetorical," as monarchies and jurists actively influenced the written norms, effectively inventing "written laws."

Chapter 5: Colonial Law: Making European Law Universal

The early modern period universalized European law through ius gentium (law of nations), intended to apply universally. This concept is the origin of modern colonial and international law.

1. The Antecedents: Roman and Medieval Ius Gentium

• In ancient Roman law, ius gentium comprised norms common to all, based on "human reason and experience," used in dealings with non-Romans. It was identified with "natural law."
• In the Middle Ages, this natural law was transformed by Christianization into a divinely mandated order.

2. European Expansion: Iberian Beginning

In the 16th century, European expansion, led by Portugal and Spain, raised questions about which law should apply overseas.

• Spain justified its jurisdiction via a 1493 Papal Bull granting a monopoly to expand Christianity.
• The Treaty of Tordesillas (1494) moved the demarcation line to appease Portugal.
• To legitimize domination and conquest, jurists invoked the Roman doctrine of « Just War ». This principle distinguished justified from unjustified wars, legitimizing European expansion in the Americas, Africa, and Asia.

Defining Just War

• A doctrine from Roman antiquity distinguishing legal/justified wars (self-defense or against an attacking enemy) from illegal/unjustified ones.
• Under Roman law, only a justified war legitimized sanctions, including land appropriation and enslavement of the vanquished.

The Ritual of Requirements When Europeans encountered indigenous peoples (e.g., Aztecs) with different war traditions, the Spaniards created the « Requerimiento ». This legal formula was read to indigenous people before battle; if ignored, resistance was interpreted as disobedience, justifying war.

3. The Rebirth of Ius Gentium

The Concept of Ius Gentium

Originating from Roman and medieval legal systems, ius gentium posited a part of law shared by all peoples, independent of culture, a broad general law system.

The Second Scholastic School

By the mid-16th century, the University of Salamanca became central for discussing colonialism's legal aspects.

• Francisco de Vitoria, a Dominican friar, challenged traditional justifications for Spanish presence in America.
• He argued the Spanish king and Pope were not universal lords.
• Vitoria affirmed indigenous people as human beings governed by natural law, guaranteeing freedoms like communication, travel, and commerce. He stated their voluntary choice was necessary for subjection to Spain.

4. The Colonial Ius Gentium

The Controversy: Centered on Spain's right to the New World, to enslave indigenous people, and the legal basis for such actions. Vitoria redefined Ius gentium as the law of nations, based on natural law and reason, not Roman civil or canon law. He conceived it as a universal law governing relations between all people, ensuring indigenous dignity. This shifted law towards European consensus amidst the Reformation. Other jurists followed:

• Alberico Gentili: Argued war must be regulated by the law of nations.
• Hugo Grotius: Advocated freedom of the sea based on these theories.

Both sought consensual norms in a religiously divided Europe.

5. The Valladolid Debate (1550-1551)

King Charles V convened this debate to address the right of Spain to conquer the Indies and enslave Indians.

• Juan Ginés de Sepúlveda: Argued natives were inferior, like children or animals.
• Bartolomé de las Casas: Defended indigenous culture, arguing even human sacrifice was a religious sign.

Both agreed on Christianization but disagreed on means. The debate concluded that natives were human beings, making their enslavement unlawful under natural law. The Leyes Novas (or "New Laws") Issued by King Charles V in the 16th century to limit abuses in the New World. They aimed to protect indigenous people, though often not effectively enforced. This led to the Valladolid debate.

6. From Colonial Law to Colonial State

The Leyes Nuevas of 1552

Following the Valladolid debate, Spain established the « Leyes de las Indias » (1552), prohibiting enslavement of natives, mandating wages and fair taxation, and ordering good treatment under the crown.

The Emergence of the Atlantic Slave Trade

The conclusion that natives were human led to widespread African slave trade. Spanish and European beliefs held that Africans were not human, justifying their enslavement. Bartolomé de las Casas ironically suggested using African forced labor.

7. Changes in Colonial Empires

16th-17th century colonial legal systems were fluid and pluralistic. In Asia and Africa, European presence was often limited to coastal enclaves, leading to Horizontal Pluralism where European law coexisted with local systems. By the late 18th-19th century, colonial law evolved into a colonial state, moving from horizontal to a hierarchical (vertical) model, where European state law subsumed all colonial jurisdictions and customs. The second French colonial empire (19th-20th century) exemplified this with deep territorial control in Africa and Indochina, implementing administration, courts, roads, and railways. The Black Code (Code noir) 1685-1848 A collection of royal ordinances for slaves in French colonies, regulating Christianization, provisions, policing, and considering slaves as movable property. It established different civil statuses from free whites to black slaves. The Berlin Conference (1884-1885) 14 nations decided to regulate trade and colonization in Africa, without African representation. It established « effective occupation », dividing the continent into European zones, and creating tribunals where French judges often presided over African people, subordinating native courts to colonial law. Technological Supremacy 19th-century industrial revolution granted Europeans technological supremacy, leading to more bureaucratic states and organized colonies.

• Dual Judicial Structure: French courts judged locals by French law, while traditional local courts (« tribunaux de cercle ») handled cases by local customs. Traditional courts were under French jurisdiction, with colonial law considered superior.

Chapter 6: Constitutionalism

Constitutionalism refers to the principles and practices that establish and limit the powers of government, ensuring the protection of rights and freedoms.

Defining a Constitution

The Oxford English Dictionary defines it as:

• "A decree, ordinance, law, regulation; usually, one made by a superior authority, civil or ecclesiastical."
• "The way in which anything is constituted or made up [...] Physical nature or character of the body in regard to healthiness, strength, vitality, etc."
• "The mode in which a state is constituted or organized, especially, as to the location of the sovereign power, as a monarchical, oligarchical, or democratic constitution."

1. The Ancient Roots of Constitutions

The Greek City-States and the Constitutional Laws

Classical Greece is considered the first constitutional country, with city-states producing written laws (7th-2nd centuries BC) to govern the city and citizens. These texts mixed private and public law and distinguished divine from secular rules.

• Aristotle: In « The Politics », he analyzed the constitutions of many city-states, including Athens.
• Example of Dreros (Crete): One of the oldest (7th century BC), its constitution limited power (e.g., magistrates could not hold office twice in ten years). Greek laws were seen as divine and often displayed in temples.

2. The Roman Law and the Idea of Constitutional Law

The Twelve Tables: A Transition to Human Rule

Promulgated around 450 BC, the Twelve Tables were foundational to Roman law, emerging from plebeian agitation against oligarchical exclusion. They marked a transition from divinely mediated law to human rule, containing no mention of gods and consolidating traditions into a written format.

The Concept of SPQR and Political Rights

The acronym « SPQR » (Senatus Populusque Romanus) symbolized the senate and people of Rome. Roman constitutional law relied on the relationship between the people and political institutions, symbolizing citizens' fundamental right to participate in political life.

Ch. 2: The Middle Ages and the Early Modern Period

The medieval state lacked a clearly identified territory, supreme sovereign, or uniform law. Law was diverse, seen as a natural, positive order from God, adapted to each social group (a system of privileges).

• Diversity was the starting point: Law came from God through the king. Society was divided into orders (nobles, clergy), leading to legal pluralism.
• Laws were a mix of unwritten customs and royal charters, primarily limiting royal power by granting privileges to elites, not the whole population.
• Key Examples: The Magna Carta (1215) in England, and the Charter of Kortenberg in Brabant, which limited the Duke's power to tax.

The Development of the Modern State (16th-18th Centuries) The "modern state" emerged with growing administration and bureaucracy. Decisions, like pardons, moved from royal whim to administrative processing (e.g., Private Council in Brussels), professionalizing governance and separating it from the king's person. The Brabant Revolution (1787-1790), triggered by Emperor Joseph II's reforms, was seen by local nobility and clergy as a violation of medieval constitution and traditional privileges. Though "conservative," it can be viewed as a struggle for respect of independence guaranteed by ancient charters.

Ch. 3: The Birth of Modern Constitutionalism

1. The Origin of Modern Constitutionalism

Modern constitutionalism is rooted in Social Contract theories:

• Thomas Hobbes (1632-1704): Argued for a strong central power (Leviathan) to protect from the "state of nature" (war of all against all), inspiring constitutions centered on authority and protection.
• John Locke (1632-1704): Father of political liberalism, advocated for limited government derived from consent of the governed to protect natural rights (liberty, property, life), influencing constitutions guaranteeing fundamental rights.
• Jean-Jacques Rousseau (1712-1778): Proposed legitimacy from the general will of the people, promoting popular sovereignty and democratic participation, inspiring constitutions placing sovereignty in citizens' hands.

These thinkers shaped the modern idea of a constitution as a guarantor of rights and freedoms, influencing the American and French revolutions.

2. The Idea of Modern Constitution

The French Revolution fundamentally altered the conception of law.

• Pre-Revolution: Society divided, law characterized by privilege, diversity, legal pluralism.
• Post-Revolution: Law applies equally to the entire nation, emphasizing equality, uniformity, and a single legal system.

Middle Ages and Early Modern Period	After 1789
Society divided by orders	The Nation
Principle of diversity	Principle of equality
Privileges	Uniformity of Laws
Rights (plural)	The law (one)

Eight Generations of Modern Constitutions

Modern constitutions are fundamental laws limiting power and regulating relations between the nation, citizen, and government. Despite instability during decolonization (1950-1980), this period saw the highest number of constitutions written.

The First Generation: Monarchical Constitutions

(17th-18th centuries) Legal documents providing rules for government functioning.

• England: Instrument of Government (1653), Bill of Rights (1689) (applied to the entire nation).
• Sweden: Regeringsform (1634) limited royal power.

The Second Generation: Revolutionary Constitutions

(Late 18th century) Radical break, shifting governmental power from private ownership to an abstract, rules-limited entity.

• United States: 1787 Constitution, beginning "We the People," established a union and transposed Locke's ideas.
• France: 1789 Declaration of the Rights of Man and Citizen established free and equal rights. Frequent constitutional changes (1791 monarchical, 1792 First Republic, 1795 post-Terror).

The Third Generation: Restoration Constitutions

(1799-1820s) Mixed revolutionary ideas with Ancien Régime elements (e.g., Kingdom of the Netherlands 1814 combined equality with physical punishments).

The Fourth Generations: Liberal Constitutions

(1820s-1840s) Countries like Belgium, Greece, South American nations used constitutions to claim sovereignty. Marked the birth of Parliament and guaranteed political freedoms (e.g., 1830 Belgian Constitution).

The Fifth Generation: Imperial Constitutions

(1850s-WWI) New unified countries (Germany 1870, Italy 1863) emphasized the state's role in industrialization and colonization.

Sixth Generation: Leviathan Constitutions

(Interwar period) Totalitarian regimes (Italy, Germany) adopted fascist constitutions reflecting absolute, overbearing power.

The Seventh Generation: Liberal Constitutions

(1945-c.1980) Post-WWII and post-colonial constitutions. Major novelty: inclusion of social rights beyond classical individual freedoms (e.g., 1948 Italian Constitution included healthcare, social security, fair pay, right to strike).

The Eighth Generation: Liberal-Democratic Constitutions

(Starting 1980s) Wide variety of modern constitutions, complex and diverse.

Chapter 7: Codification

Codification became fashionable in the 19th century, with two main models: French and German. Definition of the Code (Ancien Régime): "Collections of laws, whether compiled by the public authority of the legislature or simply through the diligence of a few individual legal scholars" (Joseph Nicolas Guyot). Current Definition: "A code is a law that regulates a large part of the law, amends existing law to some extent and creates a new framework for the further development of the law, thereby making the law more organised for legal professionals" (Dirk Heirbaut). Organization is central to modern codification.

1. The Ancient Codes

• The Code of UR-NAMMU, Mesopotamia, -2100-2050 BC: The first legal code in history.
• The Code of Hammurabi, Mesopotamia, -1792-1750 BC: A foundational Babylonian legal text (1755–1751 BC) with 282 case laws, known for the "eye for an eye" principle (lex talionis). Covered family, theft, trade, wages, with penalties varying by social class.
• The Justinian Code, Rome -534 AD: (Refer to Lecture I).

2. The Great Ordinances of the Early Modern Period

Codification declined in the fragmented medieval feudal society.

A. In the Habsburg Low Countries (Modern-Day Belgium)

16th-century monarchs sought uniform laws.

• 1532: Constitutio Criminalis Carolina (criminal procedure, Holy Roman Empire, Charles V).
• 1570: Criminal Ordinance (criminal procedure, Habsburg countries, Philip II) aimed for uniform procedures.
• 1611: The Perpetual Edict (private law, Archdukes in Brussels).

B. In France

17th-century French Ordinances under Louis XIV became bases for 19th-century codification.

• 1667: Civil Ordinance
• 1669: Ordinance on Waters and Forests
• 1670: Criminal Ordinance
• 1673: Ordinance on Commerce
• 1681: Ordinance on the Navy
• 1685: Code Noir

3. Enlightenment and Codification

A. Penal Codification in the Age of Enlightenment: Cesare Beccaria

Criticism of Ancien Régime criminal justice (arbitrariness, punitive sentences, torture) led to re-examination. The arbitrium judicis (judicial discretion) declined from the 17th century. Cesare Beccaria's « On Crimes and Punishments » (1764) profoundly impacted legal reform, advocating for:

• Utilitarianism (vs. retributivism) in punishment.
• Vertical proportionality of crimes and punishments.
• Abolitionism of the death penalty (with exceptions), promotion of hard labor/perpetual slavery.
• A fixed, accessible code of laws.

B. Penal Codification in the Age of Enlightenment: From Compilation to Codification

Enlightenment ideas drove penal codification:

• Flourishing of criminal codes in the 18th century (Piedmont-Sardinia, Bavaria, Austria, Modena, Tuscany, Prussia).
• In Austrian Netherlands, Emperor Joseph II tasked local jurists to draft a criminal code.
• First draft: Goswin Fierlant's « Premieres idées sur la réformation des loix criminelles » (1770–1782) criticized Roman law, promoted hard labor/imprisonment over corporal punishments.
• Second draft: Crumpipen and Robiano's « Draft of a New Criminal Ordinance » (1785) for Belgian provinces.

Emperor Joseph II rejected these, imposing Austrian models to unify law across his empire. These efforts largely disappeared after the French Revolution, which imposed a new codification model.

4. The French Revolution and its Aftermath

A. Codification in Revolutionary and Napoleonic France

The Napoleonic era saw numerous codes:

• Penal Code (1791): Revolutionary, removed crimes like witchcraft.
• Code des délits et des peines (1795): Penal code and procedure.
• Civil Code (1804): Most famous, inspired codes in Belgium, Italy, Netherlands, Japan.
• Code of Civil Procedure (1806), Commercial Code (1807), Code of Criminal Procedure (1808), Criminal Code (1810).

B. The Invention of the Word « Codification »

Jeremy Bentham coined "codification" in 1817:

• Code = "Body of Laws" or "collection of statutory laws."
• Pannomion = Ideal of gathering all legal rules into a general code.
• Codification = "movement of writing down legal codes."

Chapter 8: International Law

International law comprises rules, norms, and standards governing relations between sovereign states and other entities.

1. The Origins of International Law

A. Antiquity and Roman Law

• Romans developed « ius gentium » (law of nations), a common law for all, forming the basis of interstate rules.

B. The Middle Ages

International law was a mix of canon, Christian morality, and feudal law. Relations were driven by vassalage.

• Trial of Pierre de Hagenbach (1474): Considered the first international recognition of commanders' obligations to act lawfully. Hagenbach was convicted despite arguing superior orders, rejecting the defense of superior orders.

C. Jurists and Theologians Who Theorized International Law

• Francisco de Vitoria (1483-1546): Theorist of just war, proposed a community of nations based on natural law, advocating international relations beyond force.
• Francisco Suarez (1548-1617): Jesuit, argued international relations should be based on Christian charity.
• Alberico Gentili (1552-1608): Italian jurist, wrote "first systematic treaty on the law of war," separating international law from theological authority using an inductive method.

2. Hugo Grotius, the Thirty Years' War, and the Peace of Westphalia (1648)

A. Hugo Grotius (1583-1645)

Considered the father of international law. His « De Jure Belli ac Pacis » (1625) linked peace and war.

• Envisioned a society of states governed by law and mutual agreement.
• Identified three types of Just War: defensive, obtaining what is owed, punishment.

Grotius' influence: Governance of international relations by law, influence on diplomats, reduction of violence by regulating force.

B. The Thirty Years' War and the Peace of Westphalia

The war (1618-1648) in the Holy Roman Empire escalated into a European conflict. The Peace Treaty (1648) applied Grotius' principles, establishing:

• Sovereignty of States
• Right to territorial integrity
• Diplomatic relations
• Legal framework for states
• Recognition of multiple actors

3. The Enlightenment and International Law

• Emer De Vattel (1714-1767): In « The Law of Nations » (1758), advocated sovereign equality of states, theorization of sovereignty, diplomatic protection, shift towards voluntarism. Major impact on international practices.
• Jeremy Bentham: Applied utilitarian principle ("greatest happiness for the greatest number") to international law, aiming for common utility, peace, and codification. Defined international law as rules between sovereign states, excluding individuals. Envisioned a codified system, international tribunal, and public opinion for compliance.

Flipped Classrooms I: History of Colonial Law

Ch. 1: Disputed Images of Colonialism: Spanish Rule and Indian Subversion in Northern Potosí

The Spanish Overseas Empire (late 18th century) was a complex legal and administrative structure legitimized by papal authority and the « Two Republics model » (República de Indios and República de Españoles).

• Uprising in Pocoata (1780): Aymara Indians attacked Spanish militia, capturing the corregidor, Joaquin Alos, who was exchanged for Tomas Katari. Katari forced Alos to recognize his removal and Katari as the official kuraka, using colonial rituals against the authorities.

Framework of Colonial Law: The conflict shows how European law was applied to non-European populations. Indigenous resistance often appropriated colonial legal mechanisms, turning to open rebellion only when these failed.

Ch. 2: The Legal Structure of Colonial Rule during the French Revolution

A tension existed between metropolitan constitutional principles and their colonial application. Revolutionary France established a « colonial exception » to reconcile liberty with slavery, while British colonial courts invalidated local laws.

• The Colonial Exception (1789-1792): The free-soil doctrine allowed slaves in France to sue for freedom (slavery tolerated in colonies, not mainland). Legal maneuvers maintained slavery. The legal system in colonies operated outside mainland constitutional norms. The 1791 Constitution remained silent on slavery; 1792 labeled colonies "pre-constitutional."
• The Limits of Abolition (1792-1795): The 1793 Constitution forbade slavery but was not applied in colonies. The Feb. 4, 1794, Emancipation Decree abolished slavery but was applied inconsistently and unevenly. The Constitution was suspended during the Terror.
• The Institutionalization of the Exception (1795-1799): The 1795 Constitution incorporated colonial territory, leading to an anomalous legal system. Colonial elections in 1796 offered conditional citizenship. The 1799 Coup by Napoleon excluded colonies from the domestic legal regime, leading to reestablishment of slavery in 1802.

Ch. 3: Invalidation of British Colonial Legislation: The Van Diemen’s Land Dog Act Controversy (1840s)

This case was the first where a British colonial court invalidated colonial legislation. The Dog Act 1846 taxed dog ownership, placing funds into general revenue, which critics argued violated Imperial law (Huskisson’s Act 1828) and exceeded colonial legislative powers, leading to the slogan "No taxation without representation." John Morgan challenged the law, and the Supreme Court declared it invalid in Symons v Morgan. This established that colonial legislatures were legally limited and courts could protect Imperial law's supremacy without explicit judicial review power.

Ch. 4: Intimate Violence in Colonial Bengal: The Phulmonee Case

The Phulmonee Case (1891) highlighted the gap between violence and law. Phulmonee died after forced intercourse (child marriage). The court convicted the husband only of negligence, revealing a "crime without a criminal." The 1891 Age of Consent Act, a limited reform, did not abolish child marriage or recognize marital rape. Both colonial state and nationalist opponents preserved male authority.

Ch. 5: Legal Pluralism in Muslim-Majority Colonies: Mapping the Terrain

Paolo Sartori and Ido Shahar analyzed legal pluralism (colonial statutory laws, Islamic law (sharia), customary law) in Muslim-majority colonies. Sharia's incorporation differed from oral customs due to its written traditions.

• Tripartite Relationship: These systems transformed each other.
• Control and Transformation: Colonial authorities subordinated Sharia through codification and review of Muslim judges' decisions.
• Individual Agency and « Forum Shopping »: Litigants navigated between religious, customary, and colonial courts.

Ch. 6: German Colonial Law and Comparative Law, 1884-1919

Jakob Zollmann examined German colonial law's construction through comparison and imitation of British and French models.

• Secondary Colonialism: Germany sought to emulate more successful colonial powers.
• Applied Comparative Law: Colonial bureaucrats used proven solutions from elsewhere.
• Influence of Foreign Models: Bismarck considered British "Royal Charters"; later adopted imperial decrees inspired by "Orders in Council."
• Management of Natives and Penal Law: "Native" status defined by comparison (e.g., French practices). Reforms (1896) copied British Gold Coast ordinance on corporal punishment.

German colonial law was part of an entangled European history, borrowing legal solutions.

Ch. 7: Legal Pluralism, Hybridization, and Everyday Criminal Law in Quebec

Donald Fyson explored legal pluralism in Quebec (18th century), where Indigenous traditions and European law coexisted and blended. Hybridization created a new legal system influenced by French, British, and local practices. Quebec's pluralism was "weak," Indigenous legal systems continued to operate in practice. The legal system was dynamic, shaped by authorities and litigants.

Ch. 8: The Jurisdiction of Muslim Tribunals in Colonial Senegal, 1857-1932

Senegal's originaires (inhabitants of the Four Communes) had special legal status as French citizens. This created conflict: French Civil Code is secular; Muslim law is religious. French judges wanted to reduce Muslim judges' power, advocating assimilation. Colonial administrators desired coexistence for stability. The 1857 decree established Muslim tribunals, but French magistrates tried to reduce cadi (Muslim judge) roles. The 1932 decree restored their power, officially recognizing legal pluralism: French law and Muslim law coexisted, allowing Muslim citizens to use religious courts for family matters.

Ch. 9: Customary Law and Colonial Jurisprudence in Korea

During Japanese annexation (1910), colonial authorities applied Korean customs for some private matters. As Korean civil law was unwritten, judges had to clarify, interpret, and create customary law.

• Constructed Korean Colonial Law: Not traditional, but shaped by judges and scholars using Western legal concepts (individual rights, property ownership, legal capacity). It was a mix of Korean social practices, Japanese legal structure, and Western legal ideas.
• Korean Law: A Production of Judges: Judges acted as "judicial activists."
• Legal Transplantation: Western legal systems influenced Japan, which imposed its system on Korea.

Example: Court decisions on women's property rights showed judges evaluated customs rather than just applying them. This legal pluralism demonstrated that customs are not fixed but transformed by interpretation, with long-term effects on family law debates in Korea.

Ch. 10: Heart of Ice

Catherine L. Evans' article examined the 1885 Canadian North-West Territories case of three Cree men accused of murdering Riskeyak, who they believed was a wendigo. This highlighted the clash between Cree law (killing a wendigo was a duty) and British colonial law (murder).

• Mens Rea: British law required criminal intent. Officials debated if Cree men lacked malice, given their cultural beliefs.

The case compared to "medicine murders" in colonial Africa. Death sentences were commuted to life imprisonment, showing limits of colonial law and partial recognition of Indigenous beliefs.

Ch. 11: When Jurisprudence Became Law: Italian Colonial Judges in Libya

Italian colonial judges in Libya faced cases involving Islamic law and local customs not covered by Italian codes. Unlike British/French hybrid codes, Italy failed to codify local laws.

• Shift from Codification to Jurisprudence: Attempts to codify failed. Instead, the jurisprudence of the Court of Appeals of Tripoli became a binding source of law when written law was silent, a departure from mainland Italian law.
• Role of the Colonial Judge: Judges became quasi-legislators, adapting Italian law to local circumstances, creating "jurisprudential law" – a flexible and culturally sensitive model.

Ch. 12: African Women, Violent Crime and the Criminal Law in Colonial Zimbabwe (1900-1952)

This article used a feminist framework to examine African women's violent crimes in colonial Zimbabwe. Colonial judges often interpreted these crimes paternalistically, assuming women were irrational or manipulated. Women who appeared "feminine" received sympathy. The article challenged the idea of passive African women, showing offenders demonstrated agency and legal awareness, influencing outcomes by shaping courtroom behavior or presenting themselves as victims.

• Types of Violent Crime: Spousal murder (linked to domestic abuse, limited options), intra-family violence, killing of newborn twins (clash between African cultural practices and colonial law).

The colonial legal system was male-dominated, racially biased, and European-normed. Some African customs were criminalized, while others (reinforcing patriarchy) were tolerated. The author used qualitative court records to show African women as both victims and active agents.

Flipped Classrooms II: History of Constitutionalism

Ch. 1: Constitutions and Commitment: Evolution of Institutions Governing Public Choice in 17th Century England

The Glorious Revolution of 1688 established conditions for economic growth by credibly committing to property rights.

• Dilemma of State and Property Rights: Governments must credibly commit to honoring property rights. Rulers face a "time-consistency" problem, tempted to expropriate wealth. Commitment achieved through institutional constraints.
• Stuart Era: Fiscal Crisis and Arbitrary Power (1603–1688): Chronic fiscal deficits led to forced loans, monopolies, manipulation of law (Star Chamber), and political interference (firing judges). Increased risk, lowered investment.
• Institutional Revolution of 1688: Redesigned fiscal/political institutions to limit royal power.
  • Parliamentary Supremacy: Sovereignty shifted to "king in Parliament."
  • Control over Expenditure: Parliament audited spending.
  • Independent Judiciary: Judges gained tenure, Star Chamber abolished.
  The dethroning of Charles I and James II established a credible threat against violating new arrangements.
• Results: Financial and Capital Market Revolution: Public debt exploded, interest rates fell dramatically (from 14% to 3% by 1730s), indicating reduced risk. This fostered private market growth, founding the Bank of England and flourishing securities markets.

These changes were necessary for the Industrial Revolution and British global hegemony, tying the king's hands and lowering transaction costs.

Ch. 2: Parliament and the People: The British Constitution in the 19th Century

The British constitution was a source of national pride, adapting to industrialization and mass politics through custom.

• Invisible Constraints: Public Opinion and Whiggism: Parliament's power was constrained by the constitution's spirit and public opinion. Whigs bridged elites and masses, channeling reform through legal means.
• Shift to Mass Democracy: Reform Acts (1832, 1867, 1884) made voting a mark of political belonging, equating "electorate" and "people." Political authority moved to electoral hustings.
• The Edwardian Crisis and the « Mandate »: Early 20th century saw fears of "Party Machine" stifling representation. The House of Lords claimed a "mandate" to protect "the people," paralyzing Parliament (1909-1914).

Despite tensions, the period's legacy was stability, as all parties adopted popular sovereignty rhetoric.

Ch. 3: Empires of Writing: Britain, America and Constitutions

Linda Colley explored the global spread of written constitutions.

• Emergence of Global Constitutional Culture: Rooted in historical laws, charters (Magna Carta, Bill of Rights).
• Role of Print and Literacy: 18th-century printing made constitutions portable, but also exclusionary to the illiterate. British imperial constitutional texts varied.
• Revolutions, Wars, and Empires as Drivers: American Revolution (Federal Constitution) influenced others. Wars and migration spread ideas. Constitutions were tools for imperial expansion.
• The British Paradox: Britain did not adopt a single written constitution, relying on parliamentary legislation, conventions, and precedents. Its unwritten constitution contrasted with the new American written one, which was deeply inspired by British traditions.

Ch. 4: Constitutional Panic in British India: The Ilbert Bill Controversy of 1883

The Ilbert Bill (1883) sought to remove racial judicial disqualifications, allowing senior Indian judges to preside over cases involving Europeans. This triggered "constitutional panic" from non-official Europeans.

• Key Arguments Against the Bill:
  • Right to Trial by Peers: "Peers" reinterpreted as race-based, excluding Indians.
  • Faith in Administration of Justice: Claimed Indian judges were impartial.
  • "Floodgate" Toward End of Empire: Feared judicial equality would lead to full equality and end of British rule.

The controversy led to a compromise (1884), preserving European privilege. It revealed racism's centrality to British rule, inconsistency of liberal claims, and inadvertently accelerated Indian nationalism.

Ch. 5: British Imperial Constitutional Law and the Zionist Campaign against the Legislative Council in Mandatory Palestine

The British wanted a Legislative Council in Palestine, but Zionist leaders opposed it, fearing Arab majority.

• Context: Post-WW1, British mandate over Palestine. Dilemma between Balfour Declaration and local demographics.
• Written Memorandum by Leo Kohn:
  • First memorandum (1930): For Zionist leadership, to amend British proposal. Used "Imperial Catalogue" method (finding precedents elsewhere in Empire). Proposed minority weightage, veto power, oath of allegiance.
  • Second memorandum: To British Colonial Office, to cancel the Council, arguing systemic failure (e.g., Ceylon/Sri Lanka).
• British Constitutionalism: Provided "rules of the game" for national movements. "Elastic" system, allowing varied constitutional systems. Palestine was unique due to dual obligation (self-governing institutions vs. Jewish National Home). Zionist campaign exploited this flexibility.

Ch. 6: The French Constitution in Prerevolutionary Debate

Marina Valensise explored the intellectual shift in "constitution" before 1789. From describing traditional social order to an abstract legal framework.

• Prerevolutionary Debate (1787–1789):
  • "A Constitution to Defend" (Traditionalist): France already had an unwritten constitution of "fundamental laws" and monarchical tradition. King's constraints were moral/traditional.
  • "A Constitution to Establish" (Modernist): France had no real constitution, only royal arbitrariness. Sought written code based on natural rights and social contract, shifting authority to the Nation.

This tension between material and ideal constitutions led to the 1789 Revolution.

Ch. 7: The Polish Constitution of May 3, 1791 – Myth and Reality

One of Europe's first modern constitutions, aimed to reform/strengthen the state.

• Situation in Poland: Weak, agrarian, strict social classes. Power with nobility/clergy. Inefficient political system (liberum veto). Strong Catholic Church influence.
• The Reforms: Enlightenment ideas (Kołłątaj, Konarski) inspired modernization. Wanted to reduce noble power, limit liberum veto.
• The Constitution: Compromise. Strengthened government, but nobility kept power, peasants/townspeople limited rights. Confirmed Catholic Church's dominance. Unlike American/French constitutions, did not establish full equality or religious freedom.

Ch. 8: Complexities of Imagining Haiti: National Constitutions, 1801-1807

Haiti's first four constitutions helped build national identity after independence.

• 1801 Constitution (Louverture): Abolished slavery, linked Haiti to French Empire, inhabitants as French citizens. Centralized power.
• 1805 Constitution (Dessalines): Rejected French rule, declared all Haitians "Black" for unity, excluded white property ownership.
• 1806 Constitution: More democratic (legislative/executive, popular sovereignty), but power with elite. Citizens "Haitians," Catholicism official, commerce encouraged.
• 1807 Constitution (Christophe): Authoritarian government in northern Haiti. Strong military control, promoted loyalty, supported agriculture/trade.

These constitutions show the difficult, gradual process of building Haitian identity, influenced by colonial history and external pressures.

Ch. 9: Constituent Power and Constitutionalism in 19th Century Norway

Norway experienced a constitutional conflict between delegation theory (constitution from sovereign people) and contract theory (sovereignty shared between monarch/people).

• 1814 Constitution: Based on popular sovereignty, Parliament (not King) could amend.
• 1820s: Charles XIV John tried to strengthen royal authority.
• Judicial Review: Norway first European country to establish it. Courts defended the constitution as representing the people's will. Chief Justice Christian Lasson (1866) described it as an appeal to popular sovereignty.

The conflict ended with the 1872–1884 impeachment crisis. Court of Impeachment rejected King's veto claim, confirming popular sovereignty and strengthening judicial review.

Ch. 10: Neither Traditional nor Modern: Constitutionalism in the Ottoman Empire and its Successor States

Louise Fawcett explained constitutionalism's fragility in Ottoman Empire and successor states due to historical/political causes, not cultural ones.

• Constitution vs. Constitutionalism: Constitution organizes power; constitutionalism means power is truly limited, rights protected. Many states had constitutions but not real constitutionalism.
• Ottoman Empire and Balkans had constitutional traditions (Tanzimat, 1876 Ottoman Constitution, 1844 Greek Constitution), but reforms were often temporary.
• Weakness due to decline of Ottoman Empire, foreign intervention, imported models. After independence, weak institutions, artificial borders, internal divisions, authoritarian regimes.

Fawcett concluded constitutionalism was an interrupted, unstable process.

Ch. 11: The Late Ottoman Ulema's Constitutionalism

Susan Gunasti examined the role of Ottoman ulema (religious scholars) in parliament (1908-1912), arguing they supported constitutionalism.

• After 1908 Young Turk Revolution, ulema gained influence.
• 1909 Constitutional Amendments: Committee (with ulema) reduced Sultan's powers, strengthened parliament. Required Sultan to swear loyalty to sharia and constitution.
• Ulema justified constitutional government, arguing sharia was compatible with rule of law, parliamentary supervision. Caliph was a representative, not absolute.
• Less successful in legal reforms (Mecelle, sharia courts) due to opposition favoring Western models. Committee of Union and Progress (CUP) gradually excluded ulema.

Ulema participated in modernizing Ottoman institutions, influencing constitutional debates in the Middle East.

Ch. 12: Transnational Jurist Networks and the Making of a Constitutional Practice of European Law, 1950—70

Alexandre Bernier studied the Association des juristes européens (AJE) and Fédération internationale pour le droit européen (FIDE), arguing they facilitated European legal integration.

• AJE (1950s, Paris): Lawyers/judges, focused on comparative law, harmonization.
• FIDE (1961): Coordinated national associations, created networks, supported European Court of Justice (ECJ), encouraged legal cases (e.g., Van Gend en Loos).
• Reception of European Law in France: Difficult due to Gaullist skepticism. Conseil d'État resisted ECJ supremacy. Paris Court of Appeal more supportive.

Development of European law was slow and contested. Full acceptance came later (1970s-1980s).

Flipped Classrooms III: History of Codification

Ch. 1: The Influence of the Napoleonic Penal Code on the Development of Criminal Law

The Napoleonic Penal Code (1810) modeled modern criminal law, introducing legality principle, offense classification, procedural reforms (public trials, separation of investigation/judgment). It was state-centered, with severe punishments. German jurists had mixed reactions. Some admired its clarity; others rejected it. Jury system criticized. French legal ideas spread.

• Applied in German territories: Rhineland (efficient), Westphalia/Berg (introduced, then abolished).
• Defensive modernization: Influenced Prussian Penal Code of 1851, foundation for Imperial Criminal Code of 1871.

Ch. 2: The Influence of the French Penal Code of 1810 on the Belgian Penal Code of 1867

The Belgian Penal Code of 1867, largely inspired by French (1810), aimed for more humane law after independence.

• Jacques Joseph Haus: Led reform, seeking compromise between society protection and offender's moral responsibility.
• Main changes: Better organization, abolition of corporal punishments, limitations on death penalty, cellular prison model.

Preserved Napoleonic system elements (offense division). Remained foundation of Belgian criminal law despite becoming outdated.

Ch. 3: Modernity as a Code: The Ottoman Empire and the Global Movement of Codification

Avi Rubin explained Ottoman Empire's legal codification (1840s-end of empire) as "glocalization"—combining international trends with local/Islamic traditions.

• Codification seen as symbol of modernity (systematic, rational, unified laws).
• Ottoman reformers adapted foreign models.
• Major reforms: Land Code of 1858 (modern structure, Ottoman traditions), Mecelle (1869–1876, transformed Islamic law into codified system).

Promoted legal formalism through Nizamiye courts. Ottoman codification was a hybrid form of modernity.

Ch. 4: Napoleon in America? Legal Reception in Civil Law Codification in Latin America

Francisco J. Andrés Santos criticized "reception" for describing French Civil Code's influence in Latin America as Eurocentric.

• Post-independence: Private law based on colonial Castilian law.
• First wave: Countries adopted French model almost literally (Dominican Republic, Oaxaca, Bolivia) due to its prestige.
• Second wave: More original systems. Chilean Civil Code of 1855 (Andrés Bello) combined French, Roman, Castilian law, influencing other Latin American countries.

Santos suggested "legal transfers" or "legal transplants" instead of "reception."

Ch. 5: The 1830 Criminal Code of the Brazilian Empire and its Originality

Brazilian Criminal Code (1830) was created after independence to address gap between law and social reality. Influenced by Enlightenment thinkers (Beccaria, Bentham).

• Result of long process, modeled on French, Bavarian, Spanish codes.
• Originality: Combines foreign influences with national modern ideas. Simplified categories, proportional punishments, legality principle, limited death penalty, aggravating/mitigating circumstances, reduced responsibility for minors/mentally ill. Adapted to Brazilian realities (e.g., slavery).

Ch. 6: The Mexican Codification of Criminal Law: Its Foreign Influences

Mexican criminal law (19th century) linked to codification and legal positivism. Aimed to replace Ius Commune with clear laws reflecting national sovereignty, preserving Roman/Castilian elements.

• Early influence: Spanish liberal reforms (Constitution of Cádiz 1812), abolishing torture, reducing jurisdictions.
• Spanish Penal Code of 1822: Major model.
• Penal Code of 1871 (Martínez de Castro Code): Combined Mexican/Castilian traditions with Belgian, Portuguese, Spanish codes, and European scholars. French influence more doctrinal than legislative.

Criminal procedure evolved (1880 code: orality, contradiction, publicity). Mexican codification was a modernization integrating European legal ideas.

Ch. 7: Codifying Credit: Everyday Contracting and the Spread of the Civil Code in 19th Century Mexico

Contract law in 19th-century Mexico shaped by elites and everyday economic practices (e.g., libro de conocimientos).

• Economic growth increased credit demand. Non-elite actors used legal mechanisms for transactions.
• Latin American legal systems based on colonial Castilian law. New constitutions promoted republican ideals.
• Codification in Mexico: First federal civil code (1866) influenced by Spanish/Chilean models, aimed to modernize.
• Mechanisms like interest, collateral, guarantors existed before codification. Advance payments (labor contracts, indebted labor) were also important.

Mexican contract law developed through codification, local adaptation, and everyday practices.

Ch. 8: Lawyers, Codification, and the Origins of Catalan Nationalism, 1881-1901

Siobhán Harty argued Catalan nationalism began with a legal battle: protecting local Catalan Civil Law against unified Spanish Civil Code.

• Role of Lawyers: Resisted legal unification to protect professional status and Casa Pairal (Hereu system).
• Strategic Shift from « Region » to « Nation »: Framed Catalan law as Volksgeist (unique spirit), turning property dispute into national duty, creating Lliga Regionalista (1901).

Lawyers were "conservative modernizers." Shared legal system was a stronger foundation for nationalism.

Ch. 9: Reconstructing the English Codification Debate: The Criminal Law Commissioners 1833-1845

Lindsay Farmer argued English Criminal Law Commissioners transformed understanding/organization of criminal law.

• Moved from "Baconian" method (simplifying existing laws) to Benthamite approach ("science of legislation").
• Aim: Reduce technical complexity, classify crimes scientifically (property, personal safety), proportionate punishments.
• Distinguished civil and penal law: criminal law punished violations of civil law rights.

Though criminal code never adopted, commissioners impacted legal modernity, establishing legislation as central source, viewing crime as social issue.

Ch. 10: Legal Ideology and Commercial Interests: The Social Origins of the Commercial Law Codes

Robert B. Ferguson examined social/ideological origins of British commercial law codification (late 19th-early 20th centuries).

• Driven by Mackenzie D. Chalmers and "lawyerly entrepreneurs" promoting codification ideology. Emphasized certainty, scientific system.
• Partnership Act influenced by commercial pressure groups.

Ferguson criticized idea that codes reflected business needs. Codification did not significantly reduce litigation. Many preferred private arbitration. Codification shaped by legal ideology, strengthened judicial authority.

Ch. 11: A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876-1935

H. F. Morris examined criminal law/procedure codification in British African colonies.

• Driven by administrative needs (colonial magistrates struggled with English common law).
• Resistance from African elites and European settlers.
• Competition between Indian-inspired code (simple, adaptable, East Africa) and "Queensland model" (aligned with English principles, promoted by Colonial Office, replaced Indian system).

By 1935, British African colonies largely converged on uniform system, shaping postcolonial legal systems.

Ch. 12: Codification and the Rule of Colonial Difference: Criminal Procedure in British India

Thomas Macaulay's codification project for colonial India aimed for unified, rational legal system (Benthamite principles, rule of law) to replace fragmented laws.

• Existing system marked by uncertainty, inconsistent rules, poorly trained officers. Difficulty controlling non-official Europeans.
• "Rule of colonial difference" (Partha Chatterjee): Codification reinforced racial/cultural distinctions to maintain control.
• European settlers resisted reforms, gaining special legal protections (separate appeal rights, preferential treatment). Justified as "personal law."

Codification institutionalized legal inequality, accommodating European demands, reinforcing racial distinctions.

Flipped Classrooms III: History of International Law

Ch. 1: Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism

Lauren Benton explored how law shaped imperial spaces and maritime regions. Empires were "imperfect geographies" connected by law.

• Atlantic Ocean vs. Indian Ocean: Atlantic relied on privateering commissions; Indian Ocean on cartaz pass system.
• Pirates as Legal Actors: Understood/manipulated legal systems, used ambiguous commissions.
• William Kidd case: Symbolized shift towards stricter control of maritime violence.
• "High seas" became distinct legal category. Admiralty courts replaced colonial juries.

Global legal rules were shaped by non-European powers and inter-empire interactions.

Ch. 2: Empire and Legal Universalism in the 18th Century

Jennifer Pitts examined international law and imperial expansion. 18th-century thinkers defended pluralistic legal order; 19th-century positivism justified colonial domination.

• 18th-century: Law of nations universal, based on natural law. Burke, Anquetil-Duperron rejected "barbaric" non-European societies. Scott (Admiralty Court) believed non-European states had recognizable legal systems.
• 19th-century: Belief in European superiority. "Civilized" nations participated in international law. Justified imperial expansion, excluded colonized peoples.

Pitts argued 19th century transformed international law into Eurocentric system.

Ch. 3: The Global Construction of International Law in the Nineteenth Century: Arbitration

Non-European actors contributed to international law's development.

• Public international arbitration: Peaceful dispute resolution. Latin American states (Chile, Peru, Bolivia, Colombia, Ecuador, Venezuela) used arbitration extensively for border disputes and relations with imperial powers.
• "Defensive modernization": Weaker states used legal mechanisms instead of military power.
• John Bowring: British diplomat, supporter of peace. Represented Hawaii and Siam, negotiated treaties with arbitration clauses with European countries.

Arbitration developed globally, not just in Europe.

Ch. 4: Liberalism and Empire in 19th Century International Law

Examined complex relationship between liberalism, empire, international law. Liberal thought divided on empire.

• Some liberals used international law to justify domination (e.g., Travers Twiss used territorium nullius for colonial occupation).
• Others criticized empire, fearing arbitrary power would threaten domestic freedoms (e.g., Charles Salomon, Gaston Jèze).

Liberalism was a field of debate. Some expanded empire, others criticized it using same legal principles.

Ch. 5: The Origins of the Concept of Belligerent Occupation

Developed in 19th century, codified in 1899 Hague Regulations. Principles: protecting civilians, respecting occupied state's sovereignty.

• Vattel, Rousseau: War concerns states, not individuals; civilians/private property protected.
• Heffter, Fiore: Distinguished occupation (temporary) from conquest. Sovereignty cannot be transferred by force.
• American Lieber Code (1863) introduced humanitarian limits.

Brussels Conference (1874), Hague Regulations (1899) established temporary administrative regime for occupation. Protections mainly for European states; colonial territories treated differently.

Ch. 6: International Law in Security Planning during the Pax Britannica

Scott Andrew Keefer argued 19th-century British leaders saw international law as practical instrument, "obstacle, though not a barrier."

• Lacked centralized enforcement, but seen as common framework for predictability. Positivism: law based on state practice, consent.
• Strategic purposes: Increased predictability (Rush–Bagot Agreement), signaled priorities (Belgian neutrality), strengthened alliances (Anglo-Japanese Alliance).
• Enforcement relied on self-help (habits, reputation, fears of isolation). Concert of Europe as informal mechanism. War still legitimate final means.

Assumptions of limited war, powerful neutrals collapsed during WWI.

Ch. 7: The Limits of British Power: Intervention in Portugal, 1820–30

Bruce Collins argued British foreign policy in Portugal shaped by practical limitations (military capacity, financial constraints, internal politics).

• Portugal strategically important (geography, trade, alliance).
• 1823–1824 crisis: Debated intervention, opted for limited naval action.
• 1826–1828 succession crisis: Sent troops to support stability.

Intervention faced obstacles: high national debt, parliamentary resistance. By 1828, Britain withdrew, accepting absolutist takeover, showing limits of military intervention.

Ch. 8: Civilizing Violence: International Law and Colonial War in the British Empire, 1850–1900

Christopher Szlaba examined how colonial wars challenged international law.

• Traditional view: International law applied only between "civilized" states; non-Europeans outside legal order. Colonial wars treated as exceptions.
• Szlaba: More complex. Some jurists recognized limited legal protections for "uncivilized" peoples.
• British practice inconsistent (Sind vs. Punjab).
• Journalists, activists, scholars questioned colonial violence. Bluntschli argued for basic legal rights for all. Berlin Conference Act (1885) created legal frameworks.

Battle of Omdurman (1898): Allegations of killing wounded Mahdist fighters led Britain to recognize Geneva Convention (Art. 6) universally.

Ch. 9: From International Law to Imperial Constitutions: The Problem of Quasi-Sovereignty, 1870-1900

Lauren Benton examined quasi-sovereignty: entities with internal authority but limited foreign control.

• British officials in India developed "political law" (imperial constitutionalism, influenced by Henry Sumner Maine). Sovereignty divided, shared. Legal decisions based on "usage."
• Kathiawar decision (1864): Britain could interfere in autonomous territories.
• Baroda crisis (1874): Imperial power could intervene when political considerations outweighed legal procedures.

Created fragmented legal geography. Similar tensions across empires (Basutoland, US Indigenous policies). Produced imperial constitutionalism.

Ch. 10: A Short History of International Humanitarian Law

Amanda Alexander challenged the idea that IHL is an ancient tradition. Argued it's a recent (1970s) construction.

• Critiqued orthodox (humanitarian tradition) and critical (imperial interests) narratives for projecting modern IHL into past.
• IHL politically constructed by various actors (MacBride, UN, ICRC). Armed conflict seen as human rights issue.
• 1977 Additional Protocols to Geneva Conventions: Important humanitarian developments (civilian protection, limits on warfare). Highly controversial.

Resistance from states (US, Israel, India). Attitudes changed in 1990s, Protocol seen as customary law. IHL is recent, historically contingent.

Ch. 11: The Force of International Law: Lawyers' Diplomacy on the International Scene in the 1920s

Sacristie and Vauchez examined how international law gained authority after WWI. Legitimacy stemmed from social position/influence of international lawyers.

• New international spaces (League of Nations, international courts). Cosmopolitan community of legal experts.
• Lawyers acted as brokers between national interests and emerging international order. Occupied multiple positions.
• Institute of International Law: Granted prestige, symbolic legitimacy.

Tensions (nationalism vs. internationalism). Lawyers adopted "spirit of internationality." Political involvement strengthened international law.

Ch. 12: The Historical Development of the Application of Humanitarian Law in Non-International Armed Conflicts to 1949

Historically, international law only governed interstate wars. Internal conflicts were domestic jurisdiction. Rebel was common criminal. Non-intervention.

• 19th century: Laws of war applied to internal conflicts via discretionary recognition of belligerency (e.g., 1861 U.S. Blockade).
• ICRC pushed for codification. Clash between "sovereign-based approach" and "humanitarian approach."

Common Article 3 (1949): Ensured "minimum humanitarian protection" in domestic conflicts. Fundamental humanitarian compromise.

Ch. 13: The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order

Francine Hirsch challenged traditional understanding of Nuremberg Trials. Soviet Union played central role.

• Aron Trainin's theories influenced "Crimes Against Peace" concept.
• Soviet representatives (judges, prosecutors) often participated in Moscow show trials. Nuremberg as political performance.
• Soviet Union suffered propaganda defeat: isolated, poorly equipped, unable to compete with Western media.
• Cold War: Relations deteriorated. Sensitive Soviet actions (Nazi-Soviet Pact, Katyn massacre) entered courtroom.

Final verdict deepened Soviet frustration. International law shaped by Western political interests.

Ch. 14: Public Discourses of International Law: US Debates on Military Intervention in Vietnam, 1965–67

International law functioned as public language for justifying/challenging political power.

• Johnson administration (1965): Defended bombing as collective self-defense (UN Charter, Art. 51).
• Opposition (Lawyers Committee): US intervention violated international law.
• Senate hearings, media coverage. Professional/academic circles debated.
• Doctrinal disputes: Collective self-defense vs. internal civil war. Interpretation of SEATO treaty.

Both sides used legal expertise. Washington's detailed defenses showed concern about acting outside law. Transformed American legal profession, influenced activist approaches, weakened "peace through law" ideal.

Ch. 15: International Law and World War I

WWI transformed international law. Before 1914, imperialism/war legitimate. System based on neutrality, early humanitarian rules.

• WWI challenged legal order (scale of destruction, new technologies).
• New international order: League of Nations (legal equality, collective security), peace treaties (punitive, reparations).

Interwar period: Shift in legal thinking, emphasized state responsibilities. Kellogg-Briand Pact (rejected war), Permanent Court of International Justice. "Peace through law" networks.

Ch. 16: International Law in the Third Reich

Detlev F. Vagts examined Nazi regime's transformation of international law (1933-1945).

• Gleichschaltung (coordination): Control of universities, legal institutions. Nazi legal doctrines (Carl Schmitt).
• Redefined international law: Race, Volk. Grossraum, Lebensraum justified expansion. Challenged treaties (Versailles), reshaped minority protections by race.

Dual reality in WWII law of war: Western Front (some respect), Eastern Front (ideological war, brutality). Nazi legal doctrines had negative legacy.

Conference I: The Legal Regime of the Belgian Congo

Elisabeth Bruyère examined how Belgian state justified excluding Congo from 1831 Constitution.

• Three Pillars: Nationality (Congolese people), Fundamental Rights, Specificities (corporal punishment, forced labor).

Ch. 1: Constitutional Status of Overseas Territories

A. 1890-1893: Sideling the Constitution

Congo initially private property of Leopold II (CFS), expensive to manage.

• 1890 Loan Treaty: Granted loan, Belgian state right to take over Congo if loan not reimbursed. Established principle of speciality: Constitution not applicable to Congo, governed by special law.
• Auguste Beernaert (PM) argued Constitution does not forbid subjects without full citizenship. Article 1 amended for overseas possessions.

Colony seen as property transfer, not annexation. M. Halewyck defined colony as division under Belgian hegemony.

B. 1908: Rejecting Parliament Bicameralism

Power to enact laws confided to King (Minister of Colonies), mixing legislative/executive powers.

• Colonial Charter (1908 Law): Compromise between Leopold II's absolute monarchy and anti-colonial party.
• Doctrine of comparative colonial law, transimperial dialogue.
• Twilight of jusnaturalism: Shift to pragmatic, empirical law, not idealistic principles. Renée Vauthier, Pierre Daye.

Counter-examples: Portuguese, Spanish, French empires. First model: CFS. Félicien Cattier denounced atrocities: "What does despotism in the Congo matter to those who live under one of the world's most liberal constitutions?" Second model: British Empire. Belgian partly drew inspiration from British model (more legally structured). George Lorand (1860-1919): Early "anticolonialist," criticized CFS authoritarian regime, defended parliamentary control, rule of law.

Ch. 2: Legal Status of Colonized People

A. Nationality, Citizenship, and Subjecthood

Congolese legal status indeterminate until 1960. No solid legal ground for Belgian nationality. François Laurent (1810-1887): Belgian jurist, argued "subject" status disappeared with French Revolution. For him, "subject" for Congolese was anachronistic. Colonial jurists revived it to justify exceptional regime. Pragmatism allowed maintaining racial hierarchy (white supremacy), bypassing equality. Classical Belgian theory (19th century): "Belgian" = nationals (private law). Two categories: Belgians, foreigners. Citizenship political rights. Pius IX to Leopold I: "Subject" reappeared. Citizens (mainland whites), Subjects (colonized people). Congolese subject could never become citizen. "National of colonial status" invented. Edmond Picard (1836-1924): Influential Belgian jurist, notion of "subjection" reappeared in his works, justifying dependence. Also known for antisemitism. National status under CFS (1885-1908): Specific Congolese nationality recognized. All natives or naturalized. Leopold II's personal sovereignty meant distinct nationality from Belgian citizenship. May 1891 decree founded nationality/naturalization. August Beernaert (1829-1912): PM, key figure in 1890 Loan Treaty. Instrumental in principle of speciality. Provided legal justification for creating a category of people without full rights. Defined colony as subordinate possession in "state of passage." Jules Renkin (1862-1934): First Minister of Colonies, "Congolese aren't Belgian citizens." « Indigénat »: In Belgium, structural legal category of non-citizenship, integrated into colonial regime based on speciality. Michel Halewyck de Heusch (1876-1950): Believed "Belgium and its colony nonetheless constitute parts of a single State." "No longer any Congolese nationality: in Congo, as in Belgium, there is now only Belgian nationality." Oscar Orban (1862-1923): Influential jurist, Secretary of Colonial Council. Colony not extension of Belgium, but territory governed by specific laws. Rejected annexation. Grounded in principle of speciality. Contributed to 1908 Colonial Charter. Léo Pétillon (1903-1996): Governor-General (1950-1954). Explicitly defended inequality. "Belgium" only for metropole citizens. 1908 Colonial Charter preserved privileges of birth/race for "supremacy of Whites over Blacks." Georges Van der Kercken (1888-1953): Invented "national of colonial status" to compensate for lack of clear legal basis for Congolese. Maintained legal indeterminacy. J.-P. Brasseur (1941), M. Crevecoeur (1947), Pierre Wigny (1905-1986), Léon Guébels (1889-1966) further contributed to legal concepts justifying colonial inequality.

B. Fundamental Rights

1908 Law ("small constitution") lower than Belgian Constitution.

• Equality: Principle intentionally not applied to ensure white supremacy.
• Civil Liberties: Press, association, assembly rights omitted.

Ch. 3: Specificities of the Congolese Legal Regime

A. Corporal Punishment

Penal regime: Colonial Courts (settlers, Belgian judges) and Indigenous Courts (local chiefs, « chefs médaillés »).

• Illegal use of flogging: Penal Servitude (compulsory corporal labor). Flogging (« The Chicotte ») used by indigenous courts and for discipline. Common illegal use by settlers.

B. Coerced Labor

• Forms: Conscription, recruitment for private companies, wartime effort, public interest work, « Servitude pénale ».

Belgian colonial legal system based on exception, separating metropole from colony. Congo governed by special laws (1908 Colonial Charter), bypassing equality/freedom. Pragmatic empiricism blocked Congolese citizenship.

Guest Lecture: Visualities & Legal History

Nathalie Tousignant explored legal visualities, how visual material/anthropology influence law understanding.

Ch. 1: The Multi-Dimension Approach of Visual Aspects

1. The Courtroom & its Pomp and Circumstance

Visual "pomp" of legal ceremonies (e.g., King Charles III's speech to Parliament) symbolizes unity of branches of power.

2. The Publicity of Law in Action: Public Execution

Historically, justice required being seen (public executions). Visual accounts built collective representation. Even with abandonment, witnessing remains (e.g., US executions).

3. Elements of Ornamentation in Public Buildings

The Judgment of Cambyses (Gerard David, 15th Century): Diptych for Bruges judges. Sisamnes (corrupt judge) flayed alive. His son Otanes forced to sit on father's skin. Message: reminder for judges to maintain integrity. The Judgment of Solomon (Artus Quellinus): King Solomon resolving motherhood dispute. Message: wisdom and impartiality of judge. Located in Amsterdam City Hall, reflects Protestant values. « Civilization » (Helene and Isidor De Rudder, 1897): Embroidery for Brussels International Exposition. Depicted "brutal" barter system vs. rule of law. Suggested rule of law as path to "civilization" in Congo. Problematic. Signature Buildings and Landmarks: Old Bailey (London), Palace of Justice (Brussels) are globally recognized symbols. The Congress Column (Brussels): (1850-1859). Leopold I at top. Commemorates 1830-1831 National Congress and liberal constitution. Four corners represent freedoms (press, association, education, worship). Tomb of Unknown Soldier added after 1919.

Photography and Footage as Evidence

Photography integrated into legal inquiries from mid-19th century. Crime reconstructions documented scenes. Anthropometric photography created "data banks of criminals." The Power of Amateur Footage: Abraham Zapruder's JFK assassination footage: crucial historical/legal record. Trump's mugshot: big impact. The Rodney King Beating (1991): Amateur footage challenged official police narrative, exposed "justice in action," triggered riots. Images are vital elements of proof. Recent Visual Evidence: George Floyd (2020): Bystander footage proved suffocation, highlighted systemic issues, Black Lives Matter movement. Body cam footage essential to challenge narratives (e.g., ICE shootings). Historical Archives and the Duty to Recall: Nuremberg trials filmed for future generations to remember and trust. Visual archives serve as "duty to recall." AI creates challenges (fake photos).

Ch. 2: Methodology of Visual Analysis

1. Four Pillars of Image Analysis

1. Identify the Author.
2. Context.
3. Material Used.
4. Authenticity.

2. The Duality of Images

Images tell dual stories (Zapruder's footage, Holiday's footage). Unique testimonies framed by filmmaker's perspective.

3. What We See and Don't See

"Italianness" in Panzani ads: context creates meaning. Shipwreck off Crotone (2023): absence of people. J.M.W. Turner’s 1840 painting, The Slave Ship: Striking light hides drowning black people. Based on 1781 Zong massacre. Reveals "dark side" of slave trade.

Guest Lecture: « In the eyes of... »: Representing Alterity

Nathalie Tousignant explored how images reveal about "others" and "us." Repetition of stereotypes, discriminations, hate rhetorics persist.

Ch. 1: Photography in 1930s Colonial Context

Kazimierz Zagórski (1883–1944): Polish photographer in Belgian Congo. "L'Afrique qui disparaît" captured vanishing African cultures. Each picture trapped in Zagorski's caption. The Gaze and Intersectionality: Male and imperial gaze. Manipulated subjects (women breasts, removed jewelry). Disseminated through albums/postcards. Zagórski suspected as communist/spy. Influenced by disruption of rural communities. Physical traits, scientific racism, eugenics, Muscular Christianity.

Ch. 2: 19th Century and Empires

Triumph of bourgeoisie, industrial revolution. Panopticism: Foucault's concept to impose behavior. Urban Segregation: Kinshasa split European/African quarters. African residents needed permit after 8 PM. Human Zoos – Freakshows: Sarah Baartman ("Hottentot Venus") objectified, body dissected. World's Fairs exhibited Congolese people. Visual Representation of African Bodies: Powerful tool to construct collective imagination. Portrayed brutality, brute force, closer to animal to justify violence/social control. Explorers, Missionaries, Anthropologists: Travelogues, evangelization, popular literature created biased images. Photos "more powerful" than words. Exoticism as rhetoric by dominant power, reflecting Western authority. Repetition of stereotypes. Myth of « Discovery » as an Erasure of History: Western-centric concept, implies indigenous peoples didn't exist until "discovered." Created shared imagined communities on racial essentialism. Beginning of Anthropology: Classifying local populations (language, culture, physical typology). Eugene Fischer (Nazi eugenist). The Definition and Practices of Eugenics: Hierarchy among human communities, struggle for survival. Forced sterilizations. Safeguard "Aryan" blood purity. Front/profile photographs for identifying "bottom" of social hierarchy. Assassination of millions. Physiognomy: Francis Galton (inventor of eugenics) characterized behavior through facial features. Phrenology: Elon Musk's idea of "bright people" having many children. Dangerous concept. Anthropometry: Classifying human types through physical measurements. Colonial context: basis for managing African populations. Ethnicity and Colonization: Classifying populations (Hamites, Bantu, Twa). Pygmies and Tutsi (extremes of ethnicity pyramid). Evolution of ethnicity concept: from anthropology to management of peoples. Segregated views. Historicism suggests human history is Western progress. West vs. East. Colonization as bringing civilization to "Heart of Darkness." Stereotypes persist. "Stay woke" originally meant attentiveness to individual rights.

Conference II: Constitution and Revolution

Brecht Desire on Belgian Constitution of 1831. Stable, liberal, international influence.

• Textual Origins: 40% Dutch Fundamental Law (1815), 35% French Charte (1830), 10% French Constitution (1791), 5% English constitutional law, 10% new.

1. The Symbol of the Constitution: The Congress Column

Congress Column (1850): "Constitution in Stone." Streets named after constitutional values. Iconography: four statues (press, worship, association, education). Leopold I at top.

2. The Context of Restoration Europe

Drafted post-French Revolution, Napoleonic Empire.

• Balancing Act: Avoided royal despotism and popular despotism.
• Exception of 1848: Belgium remained quiet due to constitution.

3. Three Myths about the Belgian Constitution

• Myth 1: National Sovereignty vs. Popular Sovereignty: Doctrinal distinction appeared in 20th century manuals. "Nation" and "people" synonyms in 1831. Article 25 (current 33) negated William I's monarchical sovereignty.
• Myth 2: Was the Constitution Democratic? "Not at all." Elitist system, <1% voted. Census suffrage. Senate designed as "counterweight."
• Myth 3: Built on Ancient Medieval Privileges? Discourse claimed constitution rooted in history/identity. Emphasized historical tradition of limited monarchical power. French rule (1795–1814) abolished old privileges, replaced with French institutions.

Revolutionary Recycling: ~90% copied. But combination was new. King Leopold I exercised significant influence. Rejection of Conservative Revolution: 1830 Revolution inspired by modern constitutional theories (Montesquieu, Benjamin Constant), not return to medieval structures. "Ancestral liberties" rhetorical tool.

Conference III: Claimed Seas: Sovereignty, Freedom, and the Making of International Law (1350-1800)

Dr. Stefano Cattelan on regulating the sea.

1. The Central Problem: Regulating a Space That Resists Ownership

Who has authority over navigation and sea? Tension between common use/freedom of navigation and claims of control/exclusive dominion. Sea resists ownership.

2. Contemporary Issues and Historical Continuities

South China Sea (China's "nine-dash line"), Arctic Ocean (geopolitical competition). Key passages (Strait of Hormuz) crucial.

3. Correcting the Traditional Narrative

Longer historical perspective beyond Grotius. Mare Liberum vs. Mare Clausum debates from Middle Ages. Conflictual development between legal theory and political practice.

4. The First Laboratory: The Medieval Mediterranean

Roman foundations: Sea as res communis omnium (common to all, not subject to ownership). Distinction Between Ownership and Jurisdiction: Jurists (Bartolus of Sassoferrato, Baldus de Ubaldis) distinguished proprietas (ownership, impossible over sea) and jurisdictio (authority/protection, possible). Maritime Republics (Venice, Genoa) claimed jurisdiction.

5. The Second Laboratory: Northern Europe

Fisheries and strategic control.

• Denmark controlled Oresund Strait, imposed tolls.
• Norway's Maritime Authority: "lords of the sea," protected fishing areas.
• Hanseatic League: Promoted freer navigation.

6. The Third Laboratory: Expansion to Global Oceans

Iberian Maritime Empires: Portugal/Spain relied on inventio (discovery), occupatio (occupation), apostolic donation. Treaty of Tordesillas divided global spheres. Maritime monopolization.

7. Resistance to Maritime Monopoly

French, English, Dutch challenged Iberian claims via piracy, privateering, illicit trade. Intellectual Resistance: Francisco de Vitoria developed ius communicationis. Hugo Grotius published Mare Liberum (1609), defending freedom of navigation (culmination of broader process).

8. The Emergence of the Modern Framework

Limits on Maritime Sovereignty: The Cannon-Shot Rule: Cornelius van Bynkershoek. Territorial authority extends only as far as military power reaches. The Modern Distinction: Territorial Sea vs. High Seas. Coastal sovereignty vs. freedom of navigation. Codification Through UNCLOS: These developments culminated in United Nations Convention on the Law of the Sea. The evolution of maritime sovereignty reflects continuous tension between freedom and control.