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Legal Contexts, Judicial Archetypes and Deep-Structures Regarding Courts of Appeal and Judiciaries from Early Modern to Late Modern Europe kjell å modéer &martin sunnqvist (eds.) CUIQUE TRIBUERE SUUM


The depicted medal of Johan Stiernhöök, engraved by C.M. Mellgren, was made on behalf of the Swedish Academy in 1837 Editors: Kjell ÅModéer and Martin Sunnqvist Cover picture: The goddess Justitia, who adorns the Fountain of Justice (Gerechtigkeitsbrunnen) on the Römerberg in Frankfurt amMain, Germany Photo©Shutterstock Cover & Graphic Form: Pablo Sandoval Printing & Binding: Tallinna Raamatutrükikoja, Estonia Publisher: Institutet för Rättshistorisk Forskning Grundat av Gustav & Carin Olin box2298, 103 17 Stockholm e-mail: Order & Distribution: Jure ab. Artillerigatan 67, 114 45 Stockholm phone+46 8 662 00 80, fax+46 8 662 00 86 e-mail: isbn 978-91-86645-11-3 issn 0534-2724


Contributors kjell å modéer alain wijffels wolfgang sellert anja amend-traut jean-louis halpérin marie seong-hak kim wilfrid prest maeva marcus marju luts-sootak per andersen sören koch

Legal Contexts, Judicial Archetypes and Deep-Structures Regarding Courts of Appeal and Judiciaries from Early Modern to Late Modern Europe Kjell Å Modéer & Martin Sunnqvist (eds.) suum cuique tribuere

n 2014 the oldest swedish court of appeal, Svea Hovrätt in Stockholm, celebrated its quadricentennial. The co-founder of the Olin Foundation for legal history, Gustav Olin, served as judge at the I Svea Court of Appeal, and the foundation contributed to this celebration by publishing a volume edited by Professor Mia Korpiola, The Svea Court of Appeal in the Early Modern Period: Historical Reinterpretations and New Perspectives (Rättshistoriska studier, vol. 26). In October 2014 the foundation arranged an international symposium on the premises of the Svea Court of Appeal. The second day of the symposium was devoted to talks by legal historians from different countries in Europe as well as from the United States and Australia, who focused on central problems within current legal historical research regarding the jurisdictions of the courts of appeal (appellate courts), the appellate judiciaries and the complex relationship between the appellate courts’ decisions and the emperor or the king. The conference provided a forum for an engaging exchange of thoughts and opinions, which have stimulated further discussions. We want to thank all of the contributors and participants for making this conference possible. The conference papers are of impressive scholarly quality and their publication in this volume will make them available to a wide circle of readers. Martin Sunnqvist Lund in August 2018 Kjell Å Modéer Preface

Kjell Å Modéer Alain Wijffels Wolfgang Sellert Anja Amend-Traut Jean-Louis Halpérin Marie Seong-Hak Kim Wilfrid Prest 1 2 3 4 5 6 7 Suum Cuique Tribuere. An Introduction Central and Peripheral Courts: Changing Historical Perspectives Imperial Control of the Aulic Council and the Imperial Chamber Court. Law and Reality How Legal Actions Can End – Alternative Forms of Ending Proceedings Before the Imperial Chamber Court in the seventeenth and eighteenth Century The Legacy of the Parliament of Paris in the Longue Durée Michel de L’Hôpital and Christophe de Thou: Two Perceptions of Royal Justice during the French Religious Wars The House of Lords as a Court of Appeal in the Seventeenth and Eighteenth Centuries suum cuique tribuere 10 Table of contents 13 31 57 75 115 131 175

8 9 10 11 12 13 Maeva Marcus Marju Luts-Sootak Per Andersen Sören Koch Discussion Contributors table of contents 195 217 245 279 313 319 11 Hybrid Appellate Courts in the Early Republic The Swedish Court and Appeal System in the Russian Empire: The Case of Livland in 1710-1889 Danish Courts of Appeal from Early-Modern to Modern Times Courts of Appeal in Norway Intervention by Bernhard Diestelkamp and reply by Heikki Pihlajamäki


13 Suum Cuique Tribuere. An Introduction Kjell ÅModéer

suum cuique tribuere 1 Korpiola, Mia (ed.), 2014. 2 Wersäll, Fredrik et al., 2014. 3 See, for example: Wijffels, Alain and C.H. van Rhee (eds.), 2013. 4 Smend, Rudolf, 1911. 14 he firstearly-modern Swedish Court of Appeal, Svea hovrätt in Stockholm, celebrated its quadri-centennial in 2014 with two monographs and several seminars and symposia. The Olin Foun- T dation of Legal History published an anthology edited by Professor Mia Korpiola, Turku University, with scientific articles regarding the early modern history of the court.1 The Court also celebrated with a substantial Festschrift edited by among others the President of the Court Fredrik Wersäll and emphasizing the role of the court in the current time and also with prognosticating perspectives regarding the Swedish Courts of Appeal in the future.2 In October 2014 the Olin Foundation arranged an international symposium in the Wrangel’s Palace, the venues of the Svea Court of Appeal since1756, with the titleSuumCuique Tribuere: Legal Contexts, Judicial Archetypes and Deep-Structures regarding Courts of Appeal and Judiciaries from Early Modern to Late Modern Europe. The aim of this symposium was to identify and discuss the new trends and discourses within legal history regarding European Supreme and Appellate Courts and their judiciaries – a theme of high priority among European legal historians.3 ThepreSecondWorldWar-discoursesemanating fromRudolf Smend’s classical work on the Imperial Chamber Court (Reichskammergericht) from19114 were brought into an intense critical research initiated by German postwar legal historians, mainly Bernhard Diestelkamp (Frankfurt/Main), Wolfgang Sellert (Göttingen), and Friedrich Battenberg (Darmstadt).But also legal historians from the Netherlands participated, professor Jacobus Thomas ”Tom” de Smidt (Leiden; 1923-2013), and 1.

kjell å modéer professor H.C.C. de Schepper and from Belgium professor L.Th. Maes, Antwerpen (1918-1978). Professor de Smidt set up a research group in 1969“Werkgroup Groote Raad van Mechelen”, which not only initiated the research regardingParlement/Grand Conseil deMalines (De Grote Raad vanMechelen) created in 1473, but which also initiated a memorable symposium in Mechelen due to the celebration of the 500 years of this High Court. In 1994 the Olin Foundation sponsored a symposium in Jönköping (Sweden) resulting in a volume regarding the Supreme jurisdiction and judiciaries in Early Modern Europe.6 At this symposium several of the first generation of postwar Imperial Chamber Court scholars participated, for example the law professors Bernhard Diestelkamp (Frankfurt/ Main),7 Friedrich Battenberg (Mainz),8 Wolfgang Sellert,9 Adolf Laufs,10 Jürgen Weitzel11 and Ulrich Eisenhardt.12 The Olin Foundation was also involved in a symposium related to the 350 years commeration of the inauguration of the ”Tribunal in Wismar, the Swedish Supreme court for their provinces within the Holy German Empire in 2003.”13 All the monographs regarding the Imperial Chamber Court in the German-Roman Empire have been published in the e.g. ”Green Series” (Die grüne Reihe), today (2018) containing 71 volumes.14 This research has now reached its third generation of scholars in our time of judicialization and when the judicial power has become a hot topic within law all over the place.15 5 500 jaar Grote Raad 1473-1973 - Catalogus tentoonstelling ’Van Karel de Stoute tot keizer Karel’ Cultureel Centrum Burgemeester A. Spinoy, Mechelen 16/09 - 4/11/1973. 6 Diestelkamp, Bernhard (ed.), 1996. 7 Diestelkamp, Bernhard, 1977, pp. 450 ff. 8 Battenberg, Friedrich, 1990, pp. 173 ff. 9 Sellert, Wolfgang (ed.), 1980/90. 10 Laufs Adolf (ed.), 1976. 11 Weitzel, Jürgen, 2006. 12 Eisenhardt, Ulrich, 1980. 13 Jörn, Nils et al., 2003. 14 15 Rhee, C.H. (Remco) van, 2013, pp. 240 ff. 15

suum cuique tribuere TheOlin-Symposium inOctober 2014 aimed firsthand to release the volume on the Court of Appeal Professor that Mia Korpiola had edited.16 It also aimed at putting the Svea Court of Appeal into its European and global contexts of research. In this volume, edited by LL.D. Martin Sunnqvist and me, assisted by LL.M. Kim Dohm-Hansen, most of these international contributions to the 2014 symposium, providing context to the Svea Court of Appeal and discussing High Courts from different jurisdictions, are published. Since the late 1990s a generation of younger researchers in legal history and history have founded an interdisciplinary network to stimulate research not only on the Imperial Chamber Court (Reichskammergericht) and Aulic Council (Reichshofrat) but also on the territorial courts in the Holy Roman Empire and their international counterparts. This research has to a great extent been made possible by the great inventory work regarding all the files in those courts initiated and implemented by the older generation since the 1970s.17 The Stockholm symposium opened with professor Alain Wijffels’s keynote address, Central and Peripheral Courts: Changing Historical Perspectives, which also initiates this volume. Professor Wijffels is a leading contemporary European legal historian. Professor Tom de Smidt was his Doktorvater, and he came early in the 1980s into the network of the scholars related to the Imperial Chamber Court studies. He holds degrees from Amsterdam (1985), and Cambridge (UK) (1994). He is Professor of Legal History and Comparative Law at Université catholique de Louvain and teaches European constitutional history and the History of International Public Law at the University of Leiden, as well as comparative constitutional legal history at theKatholieke Universiteit Leuvenand at the Katholieke Universiteit Leuven Campus Kortrijk. He is a member of several academies and scholarly associations throughout Europe, and his article in this volume is a grand survey of the relation between political and ju16 See supra fn. 1. 17 Denzler, Alexander et al., 2015, pp. 1 ff. 16 2.

kjell å modéer dicial powers in Europe in the Early Modern Time. Together with Professor Remco van Rhee, Maastricht, he a few years ago edited the work on Royal Courts in Europe.18 The first session gave perspectives on international judicial models from Early modern to Modern times and discussedJudicial Models within the German Empire. In this session three legal scholars with deep scientific experience in the German Imperial Courts contributed. The two first papers were given by two of the leading representatives of the Imperial Chamber Court network, professor Peter Oestmann, University of Münster, and professor Anja Amend Traut, University of Würzburg, who both substantially have worked with the files of this court. Professor Peter Oestmann, who from his great publications is an expert regarding the forms of procedure in the Imperial Chamber Court, talked about The learned civil procedure at the Imperial Chamber Court and it’s weakness. Professor Oestmann’s talk was given spontaneously and is not included in this volume. In his talk, however, he linked to his impressive empirical research,19 and pointed out how the problems for the parties to receive a decision and especially to get it executed resulted not only in an increasingly weak authority for the court – but also that the parties preferred amicable agreements and settlements.20 Professor Amend-Traut in her paper dealt with the result of this lack of confidence in the Imperial Chamber Court and how it resulted in alternative initiatives from the parties: models of external conflict resolutions. Professor Amend-Traut wrote her “Habilitationsschrift” on a topic related to the empirical study of the practice of private law in the Imperial Chamber Court.21 She holds the current chair of the scientific board of the Society for Research on The Imperial Chamber Court (Gesellschaft für Reichskammergerichtsforschung). In her paper she focused on “ How legal actions can end – alternative forms of ending proceedings 18 Wijffels, Alain and C.H. van Rhee (eds.), 2013. 19 Oestmann, Peter, 2009. 20 This is a problem Oestmann has dealt with in several publications. E.g.: Oestmann, Peter, 2001, pp. 15–54. – Cfr. Rasche, Ulrich, 2015, pp. 199 ff. 21 Amend-Traut, Anja, 2009. 17

suum cuique tribuere 18 Participants at the conference-dinner in the van der Nootska Palace. In the front row from left to right: Martin Sunnqvist, Maeva Marcus, Anja AmendTraut, Marie Seong-Hak Kim, Marju Luts-Sootak, Urte Sellert, Gisela Diestelkamp,

contributors 19 Wolfgang Sellert, Mia Korpiola. In the back row: Adam Croon, Eric Bylander, Peter Oestmann, Sören Koch, Alain Wijffels, Bernhard Diestelkamp, Jussi Sallila, Rikard Lemming, Heikki Pihlajamäki, Wilfrid Prest, Kjell ÅModéer.

suum cuique tribuere 20 before the Imperial Chamber Court in the 17th and 18th Century”, and made a deep study of some representative cases and how they were handled with amicable settlements. ProfessorWolfgang Sellert,University of Göttingen, is the doyen within the research and the study of the Aulic Council, the other of the two Imperial Courts in the Roman Holy Empire. He talked on new findings in his research about the emperors’ influences regarding their imperial jurisdictions: ”Imperial Control of theAulic Council and the Imperial Chamber Court: Law and reality”. Professor Sellert has since his Frankfurt dissertation as well as his “Habilitationsschrift” dealt with comparisons between the two imperial jurisdictions.22 As a professor emeritus he is still on the chair for the comprehensive project on publishing the records of the Aulic Council.23 At the symposium he presented a study on the emperor’s control of the justices in the Aulic Council, and towhat extent they were protected from the ruler’s intervention and control of them. Another civil law jurisdiction was the FrenchParlement presented in two articles. Professor Jean-Louis Halpérin, École Normale Supérieure, Paris, delivered his talk in written form: ”The Legacy of the Parliament of Paris in the Longue Durée”. He emphasized on the importance of the Parliament of Paris in Early modern times and its judiciary – the noblesse de robe – were ”heirs of a ’legist’ tradition” and at the same time not at all ”closed to the ideas of reforming law according the ideas of natural reason”. Also his article demonstrates how new findings and recent research has given new perspectives on the tasks of this high court in France. Professor Marie Seong-Hak Kim, St. Cloud University, Minnesota, USA, a comparative legal historian, has worked substantially on French judicial culture during the early modern times and has been a fellow at the Collegium de Lyon (2010-2011) and atthe Netherlands Institute for Advanced Study (2013-2014). Her latest book is a monograph on Korean customary law,24 which is the first in English that comprehensively studies 22 Sellert, Wolfgang, 1964; Sellert, Wolfgang, 1973. 23 „Erschließung der Akten des Kaiserlichen Reichshofrats” financed by Göttingen Academy of Sciences and Humanities in cooperation with the Austrian Academy of Sciences and the National Archives of Austria. Eight volumes published as of 2018. 24 Kim, Marie Seong-Hak, 2014.

suum cuique tribuere•contributors 21 Discussion at the session International Judicial Models from Early Modern to Modern Times. From left to right: Professor Wolfgang Sellert, professor Anja Amend-Traut, professor Peter Oestmann.

suum cuique tribuere•contributors 22 Excursion to the Sigtuna Foundation. From left to right: Professor Bernhard Diestelkamp, professor Marie Seong-Hak Kim, professor Maeva Marcus and Mrs. Gisela Diestelkamp. In the back: Assistant Rikard Lemming.

kjell å modéer Korean legal history in comparison with European legal history, with particular emphasis on customary law. In her article “Michel de L’Hôpital and Christophe de Thou:Two Perceptions of Royal Justice during the French ReligiousWars” she is giving an illustrative example on how the French Parlement de Paris practiced law. Professor Kim argues that historical unfolding in sixteenth-century France was shaped by constitutional, religious, political, and administrative issues, and it was also swayed by both public and private interests. The consolidation of the noblesse de robe in the midst of religious conflicts presented unique opportunities and challenges to both the king and his judges. The focus then turned from the continental European to the AngloAmerican scene. Professor emeritus Wilfrid Prest, Law School & School of History and Politics, University of Adelaide, is not only a distinguished specialist of William Blackstone25 and Blackstone’s England, he has also published an important study on the Early modern legal profession in England.26 He gave a survey of The House of Lords as a Court of Appeal in the 17th and 18th centuries. At first hand there seems to be little common ground between the continental imperial and territorial courts of appeal and the High Court of the Parliament, but he demonstrated in his paper “that the gulf between the institutions and practices of the early modern House of Lords, and contemporary appellate jurisdictions of Continental Europe, was by no means so broad and deep as might at first appear.” Also in the United States a great project regarding publishing of files from the first decade of the Supreme Court 1789 – 1800 was initiated in 1977. The Supreme Court Documentary History Project resulted in eight volumes, the last one published in 2007.27 Professor Maeva Marcus, at the School of Law, George Washington University, WashingtonD.C. (USA) – a specialist in the Supreme Court’s judicial culture in the early republic – was themain editor of the project The Documentary History of the Supreme Court of the United States, 1789-1800, concluded in 2007. The project resul25 Prest, Wilfrid, 2008. 26 Prest, Wilfrid, 1986. 27 Marcus, Maeva and Perry, James (eds.), 1985 – 2007. 23

suum cuique tribuere ted for her in eight volumes with many related articles on legal history.28 Professor Marcus has also published extensively in the field of constitutional studies. At the symposium she delivered a paper on “Hybrid Appellate Courts in the USA in the Early Republic”. In her interesting contribution she not only explained the roots of the judicial review in the intermediate circuit courts, erected by the Judiciary Act 1789, she also with the treason case regarding former vice president Aaron Burr as an example explained not only the role of intermediate courts, with both original and appellate jurisdiction –but also the independence of the federal judiciary in relation to the executive power. The third and last session took the Nordic perspective in a broad sense. How should the North European perspective be defined? Normally the Nordic territory has been identified by the territories of the five Scandinavian countries, but after the Cold War and the breakdown of the Soviet Union in the early 1990s a historical argumentation has entered the discourses by talks about new geopolitical entities as the Hanseatic countries and the Baltic Sea Area. When Sweden in the Early modern period expanded in this area to be a European great power after the Treaty of Westphalia 1648, not only the Baltic states but also parts of the Holy Empire were part of the Swedish jurisdiction.29 The legal historians in the Baltic Sea area have since 2000 held biannual meetings.30 The Baltic perspective at this symposium was given by the Professor of legal history Marju Luts-Sootak at the School of Law, Tartu University, Estonia. Professor Luts-Sootak is a very good example of a contemporary legal history scholar with three identities. She is an Estonian legal scholar, as well as a Nordic and a European one. At the symposium she gave an interesting perspective regarding the influences not only from Sweden but also from Russia as its following ruler in the Livonian legal culture: The Swedish Court and Appeal System in Russian Empire: The Case of Livland in 1710 – 1889. Professor Luts-Sootak compared in her contribution the deep structures of the two institutions erected by the Swedish 28 Greenhouse, Linda, 2006. 29 Modéer, Kjell Å, 1975. 30 Eckert, Jörn, and Modéer, Kjell Å (eds.), 2001. 24

kjell å modéer rule: The University and the Court of Appeal. Tartu University is still around, the high court however disappeared with the procedural reform 1889 during the Russian rule. The successive change from Swedish to Russian organization of the court is described as a not only political but also as a professional development. Professor of Comparative Legal History at Helsinki University, Heikki Pihlajamäki, covered theFinnish Courts of Appeal fromEarly-modern to Modern Times – a theme he has researched substantially as regards not only theHelsinki Court of Appeal but also the Livonian Court of Appeal at Tartu, based on rediscovered records.31 The history of the Swedish courts of appeal was given by the associate professor of procedural law at Uppsala University, Eric Bylander. In 2006 he defended his dissertation onThe Principle of Orality: ALegal Study of Procedural Communication Forms in Swedish Law.32 This doctoral thesis examined different forms of procedural communication available to the Swedish courts. The choice traditionally stood between oral and written procedure. Today the procedure in the general courts is dominated by the principle of orality, while in the administrative courts, procedure chiefly takes the written form. The historic conditions of the procedural communication forms were well articulated in his dissertation and his paper at the conference to a great extent referred to this his scholarly work. The papers given by the East-Scandinavian Swedish and Finnish scholars, however, are not included in this volume, but the presentations of the history of the courts of appeal in the West-Scandinavian countries are fascinating contributions to the volume Professor of legal history Per Andersen, Faculty of Law, Århus University, Denmark, gave a survey on theDanish Courts of Appeal fromEarly-Modern toModern Times and his Norwegian colleague professor Sören Koch, Faculty of Law, Bergen University, Norway, filled in with a substantial article on the Courts of Appeal in Norway. The two articles are giving important not only national perspectives on the courts of appeal, but also explaining the differences in ju31 Pihlajamäki, Heikki, 2017. 32 Bylander, Eric, 2006. 25

suum cuique tribuere dicial cultures and attitudes to international legal phenomena considered in the West-Scandinavian countries. At last some concluding remarks. At this memorable symposium participated also the “Nestor of modern research regarding the Imperial Court” the Frankfurt professor emeritus Bernhard Diestelkamp, who during his more than twenty years as emeritus has contributed with several monographs on the history of the Imperial Chamber Court.33 He did not give a paper of his own, but he took actively part in the discussions.Adiscussion after the symposiumbetween himand professor Heikki Pihlajamäki is included in this volume. The judicial themes articulated in the contributions of this volume are to be seen as scholarly contexts to the parallel volume, celebrating the first Swedish Court of Appeal, edited by professor Mia Korpiola (2014).34 They identify the deep structures of European (and American) judicial culture. The appellate courts and the High Courts are important icons not only for independence and judicial autonomy but also examples of institutions for which historical arguments have guaranteed their survival from Early modern to Late Modern Europe. 33 Diestelkamp, Bernhard, 2002; 2012; 2014. 34 Korpiola, Mia (ed.), 2014. 26

suum cuique tribuere•kjell å modéer 27 500jaar grote raad1473-1973 - catalogus tentoonstelling‘van karel de stoute tot keizer karel’, Cultureel Centrum Burgemeester A. Spinoy, Mechelen 16/09 - 4/11/1973 amend-traut,Anja 2009:Wechselverbindlichkeiten vor demReichskammergericht, Praktiziertes Zivilrecht in der Frühen Neuzeit. In: Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reichvol. 54, Cologne battenberg, Friedrich 1990: Reichskammergericht und Archivwesen. Zum Stand der Erschließung der Reichskammergerichtsakten. In: Das Reichskammergericht in der deutschen Geschichte. Stand der Forschung, Forschungsperspektiven (ed. Bernhard Diestelkamp), Quellen und Forschungen zur höchsten Gerichtsbarkeit imAlten Reich vol. 21, Cologne 1990 bylander, Eric 2006: Muntlighetsprincipen: En rättsvetenskaplig studie av processuella handläggningsformer i svensk rätt, Uppsala denzler, Alexander – Franke, Ellen – Schneider, Britta 2015:Einleitung. In: Prozessakten, Parteien, Partikularinteressen. Höchstgerichtsbarkeit in derMitte Europas vom 15. bis 19. Jahrhundert (ed. Alexander Denzler, Ellen Franke, Britta Schneider) Bibliothek Altes Reich vol. 17, Oldenburg 2015 diestelkamp, Bernhard 1977:Bericht über das Projekt ”Sammlung vonQuellen zur Tätigkeit der Höchsten Gerichte imAlten Reich”. In: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 94 diestelkamp, Bernhard 1996 (ed.):Oberste Gerichtsbarkeit und Zentrale Gewalt im Europa der Frühen Neuzeit. In:Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reich vol. 29, Cologne diestelkamp, Bernhard 2002:Das Reichskammergericht am Ende des Alten Reiches und sein Fortwirken im 19. Jahrhundert. In: Quellen und Forschungen zur Höchsten Gerichtsbarkeit im Alten Reichvol. 41, Cologne diestelkamp, Bernhard 2012:Ein Kampf um Freiheit und Recht: Die prozessualen Auseinandersetzungen der Gemeinde Freienseen mit den Grafen zu Solms-Laubach, Cologne diestelkamp, Bernhard 2014:Vom einstufigen Gericht zur obersten Rechtsmittelinstanz. Die deutsche Königsgerichtsbarkeit und die Verdichtung der Reichsverfassung im Spätmittelalter, Cologne eckert, Jörn – Modéer, Kjell Å (eds.) 2001: Geschichte und Perspektiven des Rechts imOstseeraum: Erster Rechtshistorikertag imOstseeraum 8.-12. März 2000, Frankfurt Secondary Literature Bibliography

eisenhardt, Ulrich 1980:Die kaiserlichen prilvilegia de non appellando. In: Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reich vol. 7, Cologne greenhouse, Linda 2006: After 30 Years, Supreme Court History Project Turns a Final Page, New York Times, Dec. 30, 2006. jörn, Nils – Diestelkamp, Bernhard – Modéer, Kjell Å (eds.) 2003: Integration durch Recht. Das Wismarer Tribunal (1653 – 1806). In: Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reich vol. 47, Cologne kim, Marie Seong-Hak 2014:Law and Custom in Korea: Comparative Legal History, Cambridge korpiola, Mia (ed.) 2014:The Svea Court of Appeal in the early modern period: Historical reinterpretations and new perspectives, Rättshistoriska studier, 26, Stockholm laufs, Adolf 1976: Die Reichskammergerichtsordnung von 1555. In: Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reichvol. 3 (eds. Bernhard Diestelkamp et. al.), Cologne marcus, Maeva – Perry, James (ed.) 1985-2007: The Documentary History of the Supreme Court of the United States 1789 – 1800vol. 1-8, New York 1985 modéer, Kjell Å 1975:Gerichtsbarkeiten der schwedischen Krone im deutschen Reichsterritorium, 1630–1657. In:Rättshistoriskt Bibliotek vol. 24 oestmann, Peter 2001: Die Rekonstruktion reichkammergerichtlicher Rechtsprechung als methodisches Problem. In: Prozeßakten als Quelle. Neue Ansätze zu Erforschung der höchsten Gerichtsbarkeit im alten Reich (eds. Anette Baumann et al.), Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reichvol 37, Cologne oestmann, Peter 2009:Ein Zivilprozeß amReichskammergericht. Edition einer Gerichtsakte aus dem 18. Jahrhundert, Cologne pihlajamäki, Heikki 2017: Conquest and the Law in Swedish Livonia (ca. 1630– 1710): A Case of Legal Pluralism in Early Modern Europe, Brill prest, Wilfrid 1986: The Rise of the Barristers: A Social History of the English Bar 1590–1640, Oxford prest, Wilfrid 2008: WilliamBlackstone: Law and Letters in the Eighteenth Century, Oxford rasche, Ulrich 2015: Urteil versus Vergleich: Entscheidungspraxis und Konfliktregulierung des Reichshofrats im 17. Jahrhundert im Spiegel neuerer Aktenerschließung. In: Mit Freundschaft oder mit Recht?: Inner- und außergerichtliche Alternativen zur kontroversen Streitentscheidung im 15.-19. Jahrhundert, (eds. Albrecht Cordes et al.), Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reich vol. 65, Cologne rhee, C.H. (Remco) van 2013: Supreme Judicature in the 20th and 21st Centuries. In: European Supreme Courts: A Portrait through History(eds. A. A. Wijffels and C.H. van Rhee), London suum cuique tribuere 28

bibliography sellert, Wolfgang 1964: Über die Zuständigkeitsabgrenzung von Reichshofrat und Reichskammergericht, Frankfurt sellert, Wolfgang 1973 Prozeßgrundsätze und Stilus Curiae am Reichshofrat im Vergleich mit den gesetzlichen Grundlagen des reichskammergerichtlichen Verfahrens, Aalen sellert, Wolfgang (ed.) 1980/90, Die Ordnungen des Reichshofrates 1550 – 1766. In: Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reichvol. 8/III, Cologne smend, Rudolf 1911: Das Reichskammergericht. Erster Teil: Geschichte und Verfassung (Quellen und Studien zur Verfassungsgeschichte des deutschen Reiches in Mittelalter und Neuzeit IV/3), Weimar weitzel, Jürgen 2006: Der Kampf um die Appellation ans Reichskammergericht: zur polit. Geschichte d. Rechtsmittel in Deutschland. In: Quellen und Forschungen zur höchsten Gerichtsbarkeit imAlten Reichvol. 4, Köln Wien 1976. – Second edition wersäll, Fredrik –Hirschfeldt, Johan – Eka, Anders – Fura, Elisabet – Modéer, Kjell Å (eds.) 2014: Svea Hovrätt 400 år, Stockholm wijffels, A.A. – C.H. van Rhee (eds.) 2013:European Supreme Courts: A Portrait through History, London 29 SUUM CUIQUE TRIBUERE Legal Contexts, Judicial Archetypes and Deep-Structures Regarding Courts of Appeal and Judiciaries from Early Modern to Late Modern Europe


suum cuique tribuere 31 Central and Peripheral Courts: Changing Historical Perspectives Alain Wijffels

central and peripheral courts 1 These are just examples.The point is that a country’s central or peripheral geographical or political position is not an absolute standard for assessing its influence or conformity to general developments. In legal history, Switzerland, a centrally situated cluster of regional polities, resisted for centuries a strong impact of ius commune or Roman law on its legal particularisms; it was not until the nineteenth century that the legal developments of its larger French and German neighbours affected much more deeply Swiss law. In constitutional law, it may be argued that the so-called Restorations in Western and Central Europe after the defeat of Napoleon created constitutional systems (based on new written constitutions) which were, as regards constitutional monarchies and parliamentary systems, strongly inspired by the (unwritten) English constitution which many exiled statesmen had been acquainted with since the upheavals of the French Revolution. 32 he notionsof what is supposed or perceived to be “central” or “peripheral” are relative, and may therefore change in different cultural and historical contexts. They are also relative because of T different perspectives. Inmany ways, Sweden may be regarded – and perhaps may regard itself – a peripheral in comparison to “Europe” as a continent, or “Europe” as in the European Union, while it holds geographically (and to a large degree, also historically) a central position among Scandinavian countries. Our general geographical formatting tends to conceal how even territories which appear “central” in the conventional mapping of our (part of the) world may be peripheral in a different sense. Belgium, for example, a country which has traditionally been seen as a territory and polity situated in the centre of Western Europe, and which is now the seat of some major institutions of the European Union, has had a multi-secular peripheral history in the European context.1 Politically, it has been (and still is) of marginal importance because of its small size; while historically, under Spanish, Austrian, French and Dutch rule, Belgium was mostly regarded by its rulers as a peripheral (albeit at times strategically relevant) territory among their dominions. The Cold War finally reminded Europeans, whatever their Eurocentric and nationalist past, that they hadall become politically peripheral. Introduction

alain wijffels Non-Western civilisations have also used the conceptual dichotomy of central and peripheral polities – for instance the self-styled “Empire of the Middle”, as China used to be referred to. But in the Western tradition, especially since eighteenth-century rationalism, the distinction between what is defined as central and, in contrast, what may be in different degrees peripheral, has been a fundamental feature of bringing a strict hierarchy in our whole thinking, a principle of structuring the human mind and projecting that structure from there on to the whole outside world. Only over the past few decades has that rationalist way of thinking and structuring our reality partly been challenged and jettisoned.2 The dichotomy between central and peripheral is therefore not simply an issue of territorial or geographic structures, such as the famous or infamous, but still common, world maps following the old Mercator twodimensional projection and putting the diminutive European continent right in the centre, causing all sorts of distortions in representing territories relegated to the far northern, southern, eastern or western fringes of themap.3 Legal theory, to take an example which may appeal to jurists, both in the common law and in the civil law traditions, was until a few decades ago strongly determined by, and therefore centred on, concepts and principles developed around private law. In many countries, until a generation or two ago, the curriculum in law schools was therefore overwhelmingly focused on private law subjects. Concepts and principles of private law could readily, or so one thought, be transposed to areas of public law, which were often regarded as not being founded on the same consistent legal-scientific theoretical basis as what had been achieved by Roman law scholarship (on the Continent) or common law judges (in England) – and in both cases, viz. Roman legal scholarship and common law doctrines, private law took central stage.4 2 Changes of paradigms in corporate governance have strongly influenced the departure from the hierarchical model in a great variety of areas. In legal thinking, the shift has been aptly analysed; see Ost, François – Van de Kerchove, Michel 2002. 3 Again, such a political and cultural strategy of map-making should not be attributed to Europeans only: for the famous case of the recently “rediscovered” map of the Chinese sea, see Batchelor, Robert 2014; Brook, Timothy 2013; (Last accessed 1May 2017.) 4 That more or less explicit or conscious focus on private law spread well beyond legal theory. 33

central and peripheral courts Various forms of governance, especially since the late eighteenth century, were also affected by this paradigm based on a basic configuration around a centre and a range of peripheries. The modern state, for example, as it was restructured in France during the Revolution and under Napoleon, and which served as a model to many other countries, whether they had been subjected to French rule or not, was a model of public governance where the hierarchical apex was also at the centre of the whole state edifice. The pyramidal administrative structures, which were also reflected in the pyramid-like construction of the courts’ system from the eighteenth century onwards, were adaptations in the area of public governance of an all-encompassing reform of state powers according to the paradigmof a central source of all legitimate power, expressed through the hierarchy of state institutions.5 By the nineteenth century, the notion of a country’s capital city became much more than a mere location, such as the seat of higher or even supreme constitutional authorities. It became in practice the unique source of political decisions and the administrative hub from where all communication – sometimes literally: cf. the nineteenth-century structure of many national railway systems – would flow. In spite of earlier examples – in ancient times, all roads were said to lead to Rome –, the scale and intensity of centralisationwere unparalleled when the rationalist way of thinking was transposed into public governance during the nineteenth century.6 Legal historiography, in particular in general introductions, often privileged in its “internal legal history” approach (Dogmengeschichte) on private law topics. Until recently, that was also true in the area of comparative law: for example, several taxonomies of “legal families” worldwide, considered primarily the private law of legal systems. 5 Auer, Leopold –Ogris, Werner –Ortlieb, Eva (eds.) 2007; Van Rhee, C.H. –Wijffels, Alain (eds.) 2013. 6 A distinct discussion in this context ought to be allowed for the development of complex states. In this context, it may simply be pointed out that the establishment of federal states (such as the United States of America, Switerland, Germany) from the late-eighteenth century onwards included, whatever the powers left to the component states of the union, a clearly defined central power. If nothing else, federal states at least implied a popular basis which had reached a sufficient degree of unity for legitimising a democratic polity. During the twentieth century, the transformation of unitary states to complex polities (federal states, or at least states with a measure of regional devolution), and, conversely, the creation of the European Union standing on a “federal middle ground”, see Schütze, 34

alain wijffels One might object that most polities, in European history and around the world, have been conceived around the notion of a supreme power, and that supreme power was most often also a central power. However, if we look at European history since the Second Middle Ages (i.e. from around the eleventh century onwards), we notice that sovereign power was not always the same as a central or exclusive power. What is today regarded as devolution (or whatever the phrase used in different countries) is often a way of reconstructing (sometimes along different geographical or functional lines) a more diffuse notion of multi-layered and fragmented sovereignty which existed before the attempts to streamline the state structure along the exclusive principle of central supreme power. At the risk of over-simplifying the case (as in the diagram of Fig. 1): one may argue that during the Second Middle Ages, the prevailing paradigm of political power was one of concurrent or competing sovereignties, not only in each individual territory, but also through trans-jurisdictional corporations and networks.7 By the sixteenth century, a new paradigm was taking shape: that of exclusive sovereignty, i.e. where all legitimate power within a territory was concentrated into one body, usually (but not necessarily) amonarch.8 Towards the end of the eighteenth and by the beginning of the nineteenth century, that paradigm of exclusive sovereignty was maintained, but it Robert 2012, pp. 65-66, may be regarded as various forms of the general de-centralisation process in political governance during the second half of the twentieth century. In the case of the European Union, diverging dynamics have been at work: its main challenge may be said to have sought a state structure which departed from the state structure of the nation-state, without any pre-conceived model. On the Western tradition of complex unions, see the by now classical analysis of Forsyth, Murray 1981. 7 Throughout the Second Middle Ages and Early-Modern Times (and also later, especially in non-Western societies), the development can be followed not only in domestic public law, as the expression of “internal sovereignty”, but also in international public law, since the autonomous actors often also appeared in international relations, and could therefore claim a degree of “external sovereignty”. 8 Even in some complex polities where the “sovereign” was not a physical monarch, the attributes of the early-modern sovereign can be recognised in the rulers of the entities of such complex polities. Perhaps one of the most telling illustrations is the position of the territorial princes in Holy Roman Empire. Even the staging of their quasi-sovereignty, for example the Versailles-like palaces (though built on a smaller scale) reflected in many cases the French model of exclusive (and absolutist) sovereignty within their territory. 35

central and peripheral courts 36 Schematic diagram of the evolution of the constructs of sovereignty in Europe (11th – 21st centuries). CONCURRENT EXCLUS I VE CONCURRENT MI DDLE END OF 2 0TH CENTURY 1 6TH CENTURY AGES C . 1 8 0 0 SOVEREIGN [TYPE: MONARCH] SOVEREIGN = PEOPLE, NATION

alain wijffels was notionally transferred to the people or the nation.9 Finally, during the last decades of the twentieth century, it has become apparent that the paradigm of exclusive sovereignty is making way for a return to a paradigm of competing sovereignties – not of course, a return to the medieval political actors, but a fresh and continuously evolving combination of public and private actors who, both in domestic and international affairs, are more or less legitimately exercising in various ways some of the attributions which had before been identified with powers and attributes of the sovereign national state.10 One would expect that such a very general scheme expressing the development of sovereign power in European history would be reflected in the history of courts. However, it appears that that assumption is only partly true. Judicial powers, in the western tradition, tend to be somewhat out of step with the developments of political powers. The divergence is certainly not complete, but it is nonetheless sufficiently significant so as to warrant a distinct historical narrative, which shows to what degree courts expressed the prevailing concept of political sovereignty in their time, and also to what extent they have challenged the distribution 9 Some earlier examples can be found. Perhaps the most famous in constitutional history is the English Bill of Rights of 1689, in which – with some of the inevitable ambivalence characteristic of a transitional stage – repeated reference is made to “the people” or “the Nation” represented by Parliament. These references did not amount to establishing the realm as a democracy (in the sense of that phrase in the at the time prevailing political theory). Rather, it may be said that the Bill established the realm more firmly as an oligarchy (viz. of the interest groups represented in Parliament) than (as the Stuarts would have had it) as a monarchy. The ensuing doctrine of parliamentary supremacy or even parliamentary sovereignty shows that the early-modern theoretical model of an exclusive sovereignty (albeit with significant adjustments) was largely upheld, though transferred (with some qualifications) from the monarch to Parliament. Thus, even an early-modern Parliament could express exclusive (and absolutist) sovereignty. 10 One may distinguish between those powers and attributions traditionally linked with public authority, and those which are not necessarily associated with the regalia. The devolution of legislative and executive powers to regions, which has occurred over the past decades even in some countries with a strong tradition (over the last two centuries) of centralised government, is an example of the erosion of the national state’s public authority. On the other hand, the privatisation of many services which had often come into the hands of the state or state-related companies (e.g. utilities of energy, water-supply, communications, post…) and were in some countries regarded as “public services”, has, especially since the 1980s, also contributed to erode, or at least modify, the image and understanding of the state in the eyes of public opinion. 37

central and peripheral courts or concentration of political powers of their era. That approach may be illustrated through three distinct epochs of our legal history: (i) The challenge of early-modern courts to the paradigm of exclusive sovereignty; (ii) Modern courts: the paradigm of exclusive sovereignty subverted; and (iii) Today’s Judiciaries: a peripheral “state power” at odds with the principle of democracy? Medieval legal pluralism(i.e. the diversity of legal laws based on territory, personal status, the nature of property etc.) was strengthened by a corresponding jurisdictional pluralism. Most interest groups which could avail themselves on a particular legal status and regime also benefited from a privilegium fori. Local and regional customs, for example, were in the first place implemented by a specific local or regional court. During the early-modern period, political actors were neutralised or subordinated by the actor who succeeded in concentrating exclusive sovereignty in his hands. One would therefore expect that this political actor would also have controlled (if he had not abolished) the courts of the former concurrent actors in the polity. However, although the earlymodern sovereign did establish or develop his own system of courts, these usually did not acquire a judicial monopoly within the polity: hence the characteristic “patchwork” of courts during the Ancien Régime, reflecting successive layers of interest groups which retained to some extent their particular laws, but also their particular courts – even if, nominally or effectively, those courts could be subordinated to the supreme judicial authority of the sovereign. France is a good example. It was, after all, in many ways the model of the polity where the new paradigm of exclusive sovereignty of the King had triumphed: by the sixteenth century, the King of France had eliminated competing political rulers within the realm, and was emancipated fromany rulers whomight pretend to exercise universal authority, whether emperor or pope.11 Throughout his kingdom, a hierarchy of royal 38 The challenge of early-modern courts to the paradigm of exclusive sovereignty

alain wijffels courts effectively took over the autonomous courts which had developed during the Middle Ages. Yet, the ordinary system of courts was not extended to a single integrated judiciary throughout the realm.12 By the fifteenth century, both for practical reasons and for the sake of political expediency, the territorial jurisdiction of the Parlement de Paris, which until then had by and large followed the extension of the royal domain, was rounded off and provinces which were newly attached to the political authority of the Crown were given their own sovereignParlement. That policy was further implemented until the end of the Ancien Régime, even for newly acquired territories, whether in Europe or overseas, through the creation of new provincial Parlements, or the establishment of regional and overseas sovereign courts. Thus, from the fifteenth century onwards, the pattern of royal courts consisted in a large territory (perhaps half the kingdom) controlled by the Paris Parlement, and various “peripheral” territorial jurisdictions each capped by their particular provincial Parlement or sovereign court, but without a paramount, overarching ordinary appellate court for the whole realm. Yet, following the principle which has been usually referred to in French historiography as justice retenue, which refers to the royal prerogative justice notwithstanding delegation of judicial tasks, the King and his council exercised from the early-modern royal court of government judicial and quasi-judicial powers which were partly competing with those of the ordinary royal superior courts of judicature, partly aiming at controlling 11 It is not a coincidence, although the ideas had been maturing for a long time in several parts of Europe, that Jean Bodin’s Six livres de la République ( 1576) expressed a theoretical concept of sovereignty which seemed at the time to reflect the general trajectory of the French monarchy’s long-term history, more particularly its success in neutralising both the territorial competitors within the realm and the rulers who had claimed universal, and therefore a superior political authority in Medieval political doctrines (the pope and the emperor). By the mid-sixteenth century, the incorporation of the duchy of Brittany appeared to confirm the policy of the King of France in establishing his government over (almost) the whole kingdom. Even though the French kings never succeeded in turning their kingdom into a fully centralised state, their policies gradually paved the way towards such a state, and they consolidated the notion and the image of a supreme and central political power. The Revolution was quick to seize the benefits of that concept of sovereignty, and, having transferred it to the people, ruthlessly attempted to eradicate the various institutional forms of particularism which had subsisted. 12 Rigaudière, Albert 2010. 39

central and peripheral courts the decisions of those courts.13 The end result was, apart from the great diversity of courts and special-interest tribunals which co-existed at the lower levels of the Judiciary, a proliferation of distinct supreme courts in different territories (theParlement de Paris and the provincial Parlements),14 which were in theory of equivalent status, even though the weight and the ascendancy of the Paris Parlement tended to overshadow the authority of its counterparts elsewhere in the country. Moreover, the King’s prerogative justice underpinned the development of another type of supreme royal justice outside the system of those territorial sovereign courts. One may perhaps argue that this whole system, although it was not integrated into a single hierarchy, nevertheless came under the ultimate control of royal authority. On the other hand, the revolutionaries’ early zeal to wipe out the whole system shows that although contemporaries may not have perceived the Ancien Régime system of court as a uniform, integrated or hierarchical structure, the revolutionary ideology viewed the very fragmentation of the old system as a protection of particular interests which ran against the Revolution’s promise of equality.15 From a very different political perspective, the Holy Roman Empire leads in some ways to similar findings.16 On the one hand, the duality of imperial power, shared by the emperor and the Estates of the Empire, led to the establishment of two competing supreme imperial courts, the Imperial Chamber Court (Reichskammergericht)17 and the Aulic Council 13 The phrase and concept of justice retenue in French legal historiography has been criticised by Jacques Krynen in the first volume of his fundamental analysis of the relationship between the judicature and politics in France from the thirteenth until the twentieth century, see Krynen, Jacques 2009 and 2012. 14 Jacques Poumarède – Jack Thomas (eds.) 1996. Since then, for several Parlements and sovereign courts, both in the French metropolitan provinces and overseas, much research has been done, leading to several publications, but (to my knowledge), no new attempt at such an overall state of the art; see (Last accessed 1 May 2017.). The “peripheral” Parlements of Roussillon and Flanders have been recently discussed in the context of complex jurisdictions in Donlan, Seán Patrick –Heirbaut, Dirk (eds.) 2015. 15 Royer, Jean-Pierre 2010; Farcy, Jean-Claude 2001. 16 For an overview of the German developments, with comparative perspectives, see Oestmann, Peter 2015. 17 Cf. the volumes in Amend-Traut, Anja et al. (eds) 1973-2017. 40