Fifth Panel Session
Panel 1: Codification as Nationalization or Denationalization of Law (I): Europe and America
Chair: Prof. Aniceto Masferrer University Valencia
Speakers: Dr Isabel Ramos Vázquez (Universidad de Jaén), Prof. Diego Nunes (Federal University of Uberlândia),
Dr Gabriela Cobo del Rosal (Universidad Rey Juan Carlos), Prof. Juan B. Cañizares-Navarro (University of Cardenal Herrera CEU)
This panel explores the criminal law codification in Spain and in some American jurisdictions in a critical and comparative way. As said in the Panel I, scholars have presented Codification as a means to both nationalize and denationalize the European legal traditions. The present panel explores this matter from a broader geographical perspective, encompassing some American jurisdictions, and focusing on the criminal law. The panel will also explore this issue from a critical and comparative perspective, trying to emphasize the connection between codification and theme of the Conference: “Culture, Identity and Legal Instrumentalism.”
The comparative approach to codification of criminal law is both geographically and analytically; geographically, because several jurisdictions are studied (Spain, Brazil, US); and analytically, because all papers connect 19th-century codification with the keywords of the Conference theme, namely, Culture, Identity and Legal Instrumentalism.
Prof. Diego Nunes
Federal University of Uberlândia
Diego Nunes from 1988 to 2001 studied at the Escola Elisa Andreoli (Brazil). In May, 2002, was admitted at the Universidade Federal de Santa Catarina’s (Brazil) Law School. In 2004, he participated in a research project about legal proceedings related to parricide in the city of Florianópolis during the twentieth century, coordinated by the Prof. Theophilos Rifiotis and financed by CNPq (Conselho Nacional de Desenvolvimento Científico e Tecnológico). Since 2005 up to now, he is a member of the Ius Commune Research Group on Legal Culture History (UFSC-CNPq), coordinated by Prof. Arno Dal Ri Jr., having an assistantship roleﾠin the group, such as researching, organizing conferences and seminars and translating historiographical and legal texts for internal studies. The Examining Committee of the thesis for Bachelor of Laws (Law School, September 2007) was composed by the historian of Brazilian laws Prof. Airton L. C. L. Seelaender (Universidade Federal de Santa Catarina) and the advisor Prof. Arno Dal Ri Júnior. Thesis was given the highestﾠdistinction laudatur. The Examining Committee of the thesis in Legal History was realized in 2007, July. In 2008, March he was admitted in Universidade Federal de Santa Catarina (Brazil) to attend the Master in Laws course, minor in Theory, Philosophy and History of Law. The research was funded by CAPES (Coordenação de Aperfeiçoamento de Pessoal de Nível Superior). The topic of the Mestrado thesis was the political crimes in Brazil during Getúlio Vargas’ dictatorship period (Estado Novo – 1937/1945). During November 2008 and January 2009, he has participated in the exchange program between Universidade Federal de Santa Catarina (Brazil) and Università degli studi di Firenze (Italy). This period of study and research was supervised by Prof. Paolo Cappellini. In addition, the researcher has followed certain classes of History of Law (Prof. Bernardo Sordi) and History of the Modern Codifications (Prof. Paolo Cappellini). The Masterﾠthesis wasﾠapproved withﾠhighest distinction. The Examining Committee of the thesis in Legal History was realized in 2010, March. In the same 2008, March he was admitted as adjunct professor at Universidade Federal de Santa Catarina’s (Brazil) Law School to teach Criminal Law for two years. During 2010, he was Criminal Law professor at the Complexo de Ensino Superior de Santa Catarina’s (Brazil) Law School. In January, 2011, was admitted at the Università degli Studi di Macerata’s (Italy) Dottorato di Ricerca in Legal History whit the project «“As irrequietas leis de segurança”. Sistema penale e repressione del dissenso politico nel Brasile dell’Estado Novo (1937-1945)» supervised by Prof. Massimo Meccarelli. It will be finished in December, 2013. The doctorate degree (with Doctor europaeus label) was earned in March, 2014, after public discussion. He was Stipendiat at Max-Planck-Institut für europäische Rechtsgeschichte (Frankfurt, Germany) twice: from July to September, 2012, whit the project ‘Repression of political dissidence and the Brazilian Criminal system in the Estado Novo regime: a comparison with Fascist Italy’; from March to September, 2014, whit the project ‘Extradition in Italy and Brazil in the 19th and 20th centuries: between the "international action against crime" and the ascension of an authoritarian Criminal Law’. In May, 2014, won in second place a public tender as Adjunct Professor in Legal History, at the Universidade Federal do Rio de Janeiro (Brasil). In June, 2014, was admitted as Adjunct Professor in Legal History at the Universidade Federal de Uberlândia (Brasil), after win in first place a public tender.
Dr Isabel Ramos Vázquez
Universidad de Jaén
Dr Gabriela Cobo del Rosal
Universidad Rey Juan Carlos in Madrid
Gabriela Cobo del Rosal is a Phd. Lecturer in the area of History of Law at Universidad Rey Juan Carlos, Madrid. She received the Extraordinary Award for her thesis. She has been a Research Fellow at Harvard University (Real Colegio Complutense). Her area of expertise is the Spanish Criminal Law Codification´s process. In relation to this topic she has published a number of publications such as “Los mecanismos de creación legislativa tras la derogación del Código penal de 1928: Tres Códigos penales entre 1931-1932”, Revista de las Cortes Generales, n° 80, Segundo Cuatrimestre, Madrid, 2010, págs. 181-223; “La Codificación penal en un periodo de alteración de los Derechos Fundamentales: El Código penal de 1928”, Masferrer A., Estado de Derecho y Derechos Fundamentales en la lucha contra el terrorismo, Una aproximación multidisciplinar, Global Law Collection, Thomson-Aranzadi, Navarra, 2011, págs. 333-358; “Dos siglos de codificación penal y una misma inercia legisladora: El proceso codificador a lo largo de la Historia jurídica penal española”, E-Legal Review, Iustel, n° 13, Enero 2012; “Los mecanismos de creación normativa en la España del S. XIX a través de la codificación penal”, Anuario de Historia del Derecho, Tomo LXXXI, 2012, págs. 921-969; “El proceso de elaboración del Código penal de 1928”, Anuario de Historia del Derecho, Tomo LXXXII, 2012; “Los antecedentes de la Comisión General de Codificación”, Revista E-Legal Review, Iustel, 2013; La creación Legislativa en materia penal en los siglos de la Codificación XIX‐XX, Dykinson, Madrid, 2014, among others.
She teaches at Universidad Rey Juan Carlos where she is been responsible of subjects such as History of Law, History of Contemporary Law, History of International Relations, History of European Institutions, History of Institutional Relations between the Church and the State and Ethics for Social Responsibility among some others.
Prof. Juan B. Cañizares-Navarro
University of Cardenal Herrera CEU
Panel 2: Commercial Law in Europe: Of Glaciers, Codes, Merchants and Consumers
Chair: Prof. Dave De ruysscher (Free University of Brussels)
Speakers: Dr Sean Thomas (Durham University), Dr Johannes W. Flume (Eberhard Karls University of Tübingen),
Dr Anna Klimaszewska (University of Gdańsk), Dr Janwillem (Pim) Oosterhuis (Maastricht University)
This panel wants to explore the driving force of 19th century commercial law on the development of general private law. The panellists will try to identify how commercial law has shaped and transformed legal ideas that today seem absolutely normal to us. There are numerous examples of civil law institutes in European jurisdictions that indeed originated from commercial law practice in the 19th century. In 1891, the driving force of commercial law, led Levin Goldschmidt to the following observation:
„In comparison to the general civil law the commercial law has a ground-breaking reformatory position. Developed under the dominant influence and overwhelmingly in the interest of the economically most educated and farsighted classes – industrial magnates, ship-owners, wholesale traders, financial institutions – it tends to penetrate the whole civil law with its spirit; yet at the same time it becomes part of the general civil law and so narrows its own scope. It is constantly expanding again to provide new legal principles to meet new commercial needs of trade. One can compare it to a glacier: in the lower regions the melting ice unites with falling rain, whilst in the high regions new ice is perpetually being formed.”
[L. Goldschmidt, Universalgeschichte des Handelsrecht (Stuttgart 1891), p. 11-12]
However, might the metaphor of Goldschmidt actually be no more than a romantic view of his beloved 19th century commercial law?
For English, German, Polish, and Dutch law the pervasiveness of certain commercial law institutes on private law in general will be investigated. This enables to compare the influence of commercial law – and also the underlying socio-economic conditions – on general private law in the selected jurisdictions, and contrast differences and similarities in the chosen solutions. In a time of a growing body of consumer law it is not so easy to identify what has remained of commercial law at all. And if Goldschmidt’s observation appears to be correct, what is left of this driving force of commercial law? Has consumer law already taken over to such extent that certain of the identified commercial law institutes have already faded away since the 19th century? Or are we confronted with several, competing areas of law, each partly shaping the various European private laws?
Dr Anna Klimaszewska
University of Gdańsk
Dr Johannes W. Flume
Eberhard Karls University of Tübingen
Dr Sean Thomas
Johannes W. Flume is currently a senior researcher at the Faculty of Law,
at the University of Tübingen. His research focuses on civil, commercial,
corporate law and capital markets law as well as comparative legal history
and economic history. He studied at the University of Regensburg, Cologne
and Bonn and completed his doctorate in law in 2008. Between 2005 and 2010
he worked as research fellow at the University of Cologne, where he also
taught courses on civil law. In 2011 he was a Max Planck Scholar and
Visiting Fellow at Wolfson College, Cambridge. His research has been
published in leading journals in Germany, France, Austria and the UK.
Anna Klimaszewska, PhD, in her research focuses on issues from the field of the history of French law and on the influence exerted by the French law on the shape of Polish legal culture. In 2013, she completed two projects financed by the Joint Center for History and Economics of Harvard University & University of Cambridge: "Adoption of the French Commercial Code of 1807 in the Duchy of Warsaw as a Significant Factor in the Development of Commercial Law on the Polish Territories” and "How to Rebuild the Feudal World? The Backward Poland at the Turn of the 18th and 19th Centuries in Clash with the Western European Legal, Political and Economic Thought” (co-authored with M. Gałędek). Since 2014, she is the head of the research grant projects financed by the NSC, entitled “National Codification - a Phantasm or a Realistic Alternative? In the Circle Debates over the Native Court Law System in the Constitutional Kingdom of Poland” (SONATA-bis) and "Implementation of the French Rules of Commercial Law in the Duchy of Warsaw, Constitutional Kingdom of Poland and the Republic of Krakow - Code de Commerce in Clash with Polish Reality" (OPUS 5; co-authored with Dr M. Gałędek). She holds a scholarship awarded by the Minister of Science and Higher Education (a Scholarship for Outstanding Young Scholars) and by the Foundation for Polish Science. She is also a laureate of numerous prizes and a visiting professor at Université de Toulouse Capitol 1.
Janwillem (Pim) Oosterhuis (1976) is Assistant Professor (UD) at the department of Methods and Foundations, at the Faculty of Law at Maastricht University. He is also fellow of the Maastricht European Private Law Institute (M-EPLI). He teaches i.a. Law in Europe, from Gaius to the EU, Rechtsgeschiedenis/Legal History and States Markets and the European Integration. His research interests are Comparative Legal History, in particular 19th century commercial contract law in Europe, the general Law of Obligations, and also Law and Economics.
Dr Janwillem (Pim) Oosterhuis
Panel 3: Strategies, Policies and Ideologies in the Field of Public Law
Chair: Prof. Valdis Bluzma (Turiba University in Riga)
Speakers: Prof. Bart Wauters (IE University in Madrid - Segovia), Prof. Marek Maciejewski, (University of Wrocław),
Dr Ivan Kosnica (University of Zagreb), Dr Thomas Mohr (University College Dublin)
Prof. dr. Bart Wauters teaches European Legal History and Legal Theory at the Law School of IE University in Madrid and Segovia (Spain). He studied history, law and canon law at the Catholic University of Leuven (Belgium)
Dr Ivan Kosnica
University of Zagreb
Prof. Marek Maciejewski
University of Wrocław
The relationship between natural and statutory law in ancient and medieval conceptions
Prof. Bart Wauters
IE University in Madrid – Segovia
Marek Maciejewski – professor ordinarius, doctor habilitatus of juridical science, academic teacher in the Chair of Political and Legal Doctrines at the Faculty of Law, Administration, and Economics of the University of Wrocław (head of the Chair), and in the Chair of History of State and Law and Political and Legal Doctrines at the Faculty of Law and Administration of Opole University. Between 1993 and 1999 deputy dean of the Faculty of Law and Administration of the University of Wrocław. Lecturer in Collegium Polonicum at Viadrina European University in Frankfurt on the Oder (1994-1996). Subjects of academic research and courses taught: political and legal doctrines (with particular emphasis on antisemitism, racism, nationalism, Nazism, conservatism, and extremism), political philosophy (especially the issues of justice, social contract, and human rights), history of philosophy, economic and social history (in particular the history of capitalism), history of the concept of European integration, political and legal aspects of national security, and history of Polish and German relations.
Author and coauthor of approximately 380 publications (including more than one hundred extensive biographical and other entries in encyclopedias and lexicons) in Polish, English, German, French, Spanish, Portuguese, and Ukrainian. Advisor to ten successfully defended doctoral dissertations (a further six doctoral dissertations are in progress), reviewer of about fifty applications for the title of professor, as well as habilitation and doctoral dissertations. Permanent reviewer of history books published by Wydawnictwo Dolnośląskie publishing house and articles published in the following journals: Politeja (Jagiellonian University), Krakowskie Studia z Historii Państwa i Prawa (Jagiellonian University), and Contemporary Law Review (Nicolaus Copernicus University). Prof. Maciejewski has been awarded academic scholarships, internships, and stays in the FRG, GDR, Austria, Czech Republic, France, Italy, Spain, Portugal, Great Britain, Israel, Mexico, and Chile, as well as Lithuania and Ukraine. Since 2008 he has served as editor-in-chief of the periodical Studia nad Faszyzmem i Zbrodniami Hitlerowskimi as part of the Acta Universitatis Wratislaviensis series (from vol. XXXIV titled Studia nad Autorytaryzmem i Totalitaryzmem). Member of the Programme Board of Wrocławskie Studia Erazmiańskie and the editorial committee of the periodical Pro Fide, Rege et Lege. Head of the ministerial national research grant “Prawo w totalitaryzmie. Aspekty teorii i praktyki” (Law in totalitarianism: Aspects of theory and practice).
Member of: the Partnership Committee of Katholischer Akademischer Ausländerdienst Foundation in Bonn, the Centre for Latin American Constitutional Law in Buenos Aires, the International Academic Council of the Oświęcim Center for Research on Totalitarianisms, the Holocaust, and Human Rights (Oświęcimskie Centrum Badań nad Totalitaryzmami, Zagładą i Prawami Człowieka), Center for Holocaust Studies (Centrum Badań Holokaustu) at Jagiellonian University, the Wrocław branch of the Institute of National Remembrance, Association for the Institute for Western Affairs (Stowarzyszenie Instytut Zachodni) in Poznań, Polish Historical Society (Polskie Towarzystwo Historyczne), Wrocław Scientific Society (Wrocławskie Towarzystwo Naukowe), Polish Association for Political Thought (Polskie Towarzystwo Myśli Politycznej), Krzyżowa Foundation for European Agreement, and the Poland-FRG Society (until 1998).
Ivan Kosnica, Assistant Professor of the Chair of Croatian History of Law and Stateﾠat the University of Zagreb
Dr Thomas Mohr
University College Dublin