GLOSSAE. European Journal of Legal History

Miguel Pino Abad, La depuración de funcionarios de la Administración de Justicia durante la Segunda República, Dykinson, Madrid, 2024, 229 pp. [ISBN: 978-84-1070-077-2]

2024-09-19T12:39:07+02:00

Henar Murillo Villar, El orden sucesorio “ab intestato” de Roma al Derecho español contemporáneo, Editorial Aranzadi, Cizur Menor (Navarra), 2023, 219 pp. [ISBN 978-84-1163-946-0]

2024-09-19T12:42:19+02:00

Alicia Valmaña Ochaíta, La caza en el mundo romano. Aspectos sociológicos, económicos y jurídicos, Tirant lo Blanch,Valencia, 2024, 285 pp. [ISBN: 9788410563445]

2024-09-19T12:43:38+02:00

Aniceto Masferrer, Cornelis Hendrik (Remco) van Rhee, Seán P. Donlan and Cornelis Heesters, (eds.), A Companion to Western Legal Traditions. From Antiquity to the Twentieth Century (Legal History Library, vol. 65), Leiden/Boston, Brill and Nijhoff, 2024

2024-09-19T12:45:15+02:00

Erika Prado Rubio, Voorspel, el Preludio: génesis jurídico-institucional del conflicto de los Países Bajos, Asociación Veritas para el Estudio de la Historia, el Derecho y las Instituciones, Valladolid, 2024, 445 pp. [ISBN: 978-84-09-59056-8]

2024-09-19T12:48:49+02:00

Julie Rocheton, The Genesis of Nineteenth-Century Civil Codes in the United States, Brill - Nijhoff, Leiden - Boston, 2024, 272 pp. [ISBN: 978-90-04-68997-8]

2024-09-19T12:50:50+02:00

Soazick Kerneis, La justice en vérité. Une histoire romaine du dire-vrai, Paris, Dalloz, collection “Les sens du droit”, 2022, 142 pp. [ISBN: 978-2-247-21667-3]

2024-09-19T12:52:00+02:00

Eduardo Cebreiros Álvarez, Aproximación histórica a la teoría general del delito, Tirant lo Blanch, Valencia, 2023, 233 pp. [ISBN 978-84-1169-060-7]

2024-09-19T12:53:28+02:00

José Franco-Chasán, The Reception of Positivism in Spain, Springer, Berlin et al., 2023, 233 pp. [ISBN: 978-3031464348]

2024-09-19T12:54:40+02:00

Modesto Barcia Lago, Eugenio Montero Ríos y la modernización jurídica de España, Editorial Bosch, Barcelona, 2023, 171 pp. [ISBN: 978-84-10044-26-5]

2024-09-19T12:55:58+02:00

Entrevista a Joaquín Salcedo Izu

2024-09-19T19:37:45+02:00

Profesor honorario de la Universidad de Navarra

Entrevista a José Antonio Escudero López

2024-09-19T19:40:21+02:00

Profesor emérito de Historia del Derecho y de las Instituciones, UNED.

Académico de número de las Reales Academias de Jurisprudencia y Legislación y de la de Historia.

Entrevista a Román Piña Homs

2024-09-19T19:42:44+02:00

Profesor emérito de la Universidad de las Islas Baleares.
Presidente de la Real Academia Mallorquina de Estudios Históricos, Genealógicos y Heráldicos.

Participation in the criminal offence in the Supreme Court’s doctrine (1870-1978)

2024-09-19T12:03:23+02:00

Jurisprudence has paid special attention to authorship and other forms of participation in the crime. Legal doctrine itself has been concerned with studying the judgments of the Supreme Court referring to participation in the crime, and especially those related to direct authorship, as well as the criteria for differentiating the necessary cooperation from complicity, establishing a periodization in that jurisprudence. Along with these aspects, attention is also paid in this work to other forms of participation in crime such as inducement and concealment, which have also occupied the Supreme Court in its sentences.

An approach to the case-law of the Supreme Court on the death penalty in Spain in the ordinary jurisdiction in the first third of the 20th century (1901-1936)

2024-09-19T12:10:15+02:00

This paper studies the jurisprudence of the Spanish Supreme Court on the death penalty in the period 1901 to 1936, based on the study of 466 sentences seen in cassation by the Spanish Supreme Court. From the criminal legislation on the death penalty in that period, a balance is made of the crimes and the circumstances modifying criminal responsibility considered in those sentences. It is a contribution to the knowledge of the prosecution of the death penalty in that period and to the knowledge of the jurisprudential doctrine of the Supreme Court on this matter in Spain between 1901 and 1936. In the second part of the article, some of the main jurisprudential contributions in relation to the death penalty provided by the Supreme Court in those cassation rulings are extracted in an orderly fashion. The article concludes with a bibliographical appendix and a complete table with the basic information provided by the 466 judgments located and studied. It thus represents a contribution to the study of the death penalty and its prosecution during this period, as well as to knowledge of the Supreme Court's jurisprudential doctrine on capital punishment between 1901 and 1936.

Law as Facultas in Luis de Molina’s general Law of the contract

2024-09-19T12:14:05+02:00

In the present paper, the problema of the presence of the concepto of Law as facultas is studied, in what is known as “general law of the contract”, of wich Luis de Molina was a distinguished precursor, elucidating the real scope of the presence of the Law as facultas in that general contract doctrine. For this purpose, it is analyzed, among another points, the concept of Law in Luis de Molina’s De Iustitia et Iure, the relationships of the Jesuit tradition with the modernity and finally, the presence of that notion as an operative structure of his system is analyzed in his treatise De contractibus.

Autonomy of the Commune and origin of its own written law (Piacenza, mid 12th century)

2024-09-19T12:16:26+02:00

Research on the genesis of the Italian communes and their own law in the twelfth century should be developed with respect to local situations, without teleologically reconstructing the events and directing attention to the first manifestations of the autonomy of the cities. The statutes of 1135 and those of 1144 are normative acts of the Commune of Piacenza, enacted by the general assembly of members and by the consuls together with an enlarged council. They were drafted by the iudices of Piacenza, who outlined applications of Lombard law and moved confidently with respect to the first recovery of the Roman-Justinian tradition. They were not conceived in the exclusive interest of the hegemonic social groups, but were also concerned with protecting what must have been a small multitude of cultivators (and perhaps artisans), in order to find a balance capable of reconciling the different needs. The community that gave life to the Commune of Piacenza manifested its political autonomy by dictating, in order to resolve social tensions and legal controversies, its own written law with a new content. It did not ask for the law to supra-ordained subjects (the Church, the imperial power) nor to the tradition of uses and customs (customary law), but it did it in an original way, thus also achieving the objective of establishing itself as a legitimate political subject. This historical and juridical process was also the result of chance, but above all of a precise political will and a well-formed juridical culture.

The Liber Belial in Europe in the 15th and 16th centuries: comparison of legal citations

2024-09-19T12:20:22+02:00

The bishop and canonist Iacopo da Teramo was active in Italy between the 14th and 15th century. In 1382, he wrote the Liber Belial de consolatione peccatorum. The work reconstructs the imaginary trial brought by Satan against Jesus for the latter's appropriation of the souls imprisoned in Hell. Due to the variety of topics covered, the Liber Belial is a work with many possible interpretations. The Belial, however, is first and foremost an agile ‘manual’ of the Roman-canonical procedural discipline established in the late Middle Ages. The work had a European circulation and with the introduction of movable type was printed dozens of times in Italy, France, Germany and Holland. For this reason, the thesis that the Belial was manipulated and systematically adapted to the procedure in force in the place where it was printed was consolidated in the 19th century. Through a comparison of the apparatus of legal citations found in four ‘versions’ of the Liber Belial (two Italian, one French and one German,) this contribution aims to verify the thesis of the existence of different versions of the work and, incidentally, seeks to offer a tool for the reconstruction of the dissemination of the Roman-Canonical process in Europe.

Divorce, Civil Code, and Common Law: The Case of Nineteenth-Century United States

2024-09-19T12:25:35+02:00

Assumptions about the differences between common law and civil law have profoundly shaped understandings of US legal history and have rendered nineteenth-century American civil codes invisible to all but the most specialized legal scholars. During the nineteenth century, the states of Louisiana, Georgia, California, Dakota Territory, North Dakota, South Dakota, and Montana each enacted a civil code, creating a single document enforced by the state, which brought together all of the sources of private law. Simultaneously, divorce developed as a prominent legal issue, prompting an exploration of the interplay between civil codes and divorce legislation. How did civil codes and divorce impact each other’s? While the breakdown of marriages often unfolded within the private sphere, the parameters and conditions governing their instances were outlined within the public sphere of civil codes of individual states. The legal framework governing divorce proceedings underscored the era's societal and cultural norms, thereby exerting a profound influence on the dynamics of marital relationships. Through an analysis of the pre-existing divorce laws, the incorporation of divorce regulations within the civil codes, and the ruling of State Supreme Courts in the civil code states, this article seeks to elucidate whether the civil codes served as catalyst for legal transformation, reshaping the legal landscape, or whether they merely mirrored the existing legal framework. The study examines the reciprocal influence between evolving divorce practices and the legal provisions encapsulated within the civil codes, aiming to ascertain the directional flow of change between these intersecting legal domains.

Fifth Postgraduate Conference in Comparative Legal History: «The Making of Law in Comparative perspective: Legislators and Judges» (European Society for Comparative Legal History, Valencia 2 - 4 de mayo de 2024)

2024-09-19T13:54:18+02:00

IV Congreso de la Sociedad Española de Historia del Derecho

2024-09-19T19:28:50+02:00

V Encuentro Hispano-Luso de Historiadores del Derecho

2024-09-19T19:30:30+02:00

Nuevos profesores titulares y catedráticos de Universidad de Historia del Derecho y de las Instituciones

2024-09-19T19:32:04+02:00

Historiographical Notes on the Contribution of the Supreme Court to the Configuration of Crimes in Spain (1870-1978)

2024-09-18T19:03:58+02:00

Criminal case law has been scarcely studied for various reasons. In fact, until a few years ago, no legal historian had set out to study it as an element shaping the criminal-legal system. Some of them began this task and have achieved surprising results, both in terms of the volume and quality of their scientific production, to the point that they have practically completed the study of the entire doctrine of the Supreme Court with respect to the Special Part of criminal codes. This article analyzes the importance of case law as a source of law and as an object of legal and historical-legal study, and includes an exhaustive description of the results obtained in recent years.

Jurisprudence of the Supreme Court on the crime of lèse majesté (1870-1972)

2024-09-18T19:14:41+02:00

This article analyzes the cassation rulings issued by the Supreme Court from 1870 to 1978 referring to the crime of lèse majesté or crimes against the head of State, which was the name it acquired over time, to see its relationship with legal modifications existing in each historical period and verify both the legislative evolution and the regulations related to said crimes. Our purpose is to carry out a review and analysis task on the Jurisprudence of the Supreme Court from 1870 to 1972, to observe how the doctrine of the Supreme Court has evolved.

The offence of murder in the jurisprudence of the Supreme Court (1870-1995)

2024-09-18T19:33:53+02:00

The object of this work is the study of the sentences of the Supreme Court's appeals on the crime of murder in the legislation contained in the Spanish criminal codes and its doctrinal evolution in the 19th and 20th centuries. The contribution of the Supreme Court to the concept of the criminal type of murder and its qualifying characteristics is highlighted.

The crime of recklessness in the historical Spanish Jurisprudence (1870-1995)

2024-09-18T19:36:47+02:00

Until 1995 reform, most of the historical Spanish penal Codes (Codes of 1848, 1870, 1932, 1944 and 1973) classified the reckless imprudence as a particular crime in their special parts, not in their general parts about criminal responsibility, and they established a wide-open method allowing recklessness resulting in many types of crimes. Thus, the particular application of this crime was left to jurisprudence, or “the prudent discretion” of Courts in words of the legal provisions. This work aims to approach the jurisprudence issued between 1870 and 1995 for the determination of reckless imprudence offenses, its classes and its requirements.

The crime of fraud according to the jurisprudence of the Supreme Court (1870-1970)

2024-09-18T19:39:30+02:00

The historical-legal study of the contribution of jurisprudence in the evolution of the special part of Spanish criminal law is receiving particular attention in recent times. In order to delve deeper into this field, the main objective of this research, namely, the examination of the crime of fraud according to the judicial rulings of the Supreme Court from 1870 to 1970. This article shows the role of jurisprudence in the application and interpretation of this criminal figure. The results indicate that, except for two specific basic elements, it exerted a significant influence on the configuration of its legal nature.

Analysis of the jurisprudence of the Supreme Court on the crime of illegal exactions

2024-09-18T19:41:42+02:00

Until the present moment there is a high number of contributions on the crime of illegal ex -exctions, which address various aspects about it from the perspective of the most recent right. Our objective in this article is focused on analyzing the interpretations carried out by the Supreme Court to its regulation in the different nineteenth -century criminal codes, with special attention to the 1870, since since then the fundamental lines that last until today were set. Thus, the 1869 Constitution considered that this crime committed any public official who tried to demand or demand the payment of a contribution that would not have been voted by the Courts or the popular corporations, legally authorized to impose it. Such behaviors were typified in articles 223 to 227 of the new code of 1870. Together with the previous rights that the public official had indicated.

Prevarication and the jurisprudential doctrine of the Supreme Court (1870-1978)

2024-09-18T19:48:59+02:00

Prevarication is one of the most consolidated crimes in the history of our criminal legislation, but -as we have been able to verify- without a considerable historical trajectory in our jurisprudential doctrine of the Supreme Court. It is, however, a notable criminal figure since we are talking about crimes with a fixed addressee: the public official. And hence, precisely, we must highlight its significance, since the criminalized conducts would affect the essence of the public service, from the issuance of an unjust resolution. Thus, we present the historical evolution, the elements and the protected legal right in administrative and judicial prevarication, to then delve into all the jurisprudence collected during the period covered by our research (1870-1978), finally, reflecting the results obtained.

The jurisprudence of the Supreme Court (1870-1995) on offences committed by public officials: disobedience and refusal of assistance

2024-09-18T19:53:02+02:00

This paper aims to analyse how jurisprudence has contributed to the configuration of offences committed by public employees, specifically disobedience, refusal of assistance and refusal to hold public office. Even though criminal law is one of the branches of the legal system in which the evolution of a society is most noticeable, if we analyse the precepts of the different Penal Codes in force from 1870 to 1995, referring to offences committed by civil servants, they hardly vary in content. In this sense, it is necessary to study criminal jurisprudence as it carries two fundamental tasks for developing law: its interpretation and configuration - that is, in part, its creation.

The Jurisprudence of the Supreme Court on the crime of embezzlement of public funds

2024-09-18T19:56:22+02:00

From the beginning, the Supreme Court made it clear that the theft directly carried out by the official in charge of the funds was punished with the same penalty as the former's consent for another to steal them, since it was based on the premise that without such authorization the embezzlement could not have been consummated. For it to be committed, it was required, therefore, that the subject of the theft was an official or authority and that the object on which it fell was public funds placed in his charge. Likewise, he pointed out the necessary concurrence of a malicious intention to seize the assets. In relation to the prosecution for misappropriation of public funds, it was not enough for the accused to administer them, but it was essential to have received them or consented to others stealing them. Regarding the meaning of theft, the Supreme Court declared that it referred to definitive appropriation, forever, with the intention of not restitution, that is, with the purpose of profiting from another's property, without requiring that it cause harm or not. damage or hindrance to public service. While within the concept of funds or public effects it not only included amounts in cash or negotiable public effects, but also all the things that constituted the estate or assets of any kind, in accordance with the grammatical and usual meaning of the word.

Jurisprudential contribution of the Supreme Court in the legal configuration of the crime of violation of secrets in public officials (1870-1978)

2024-09-18T19:59:06+02:00

The jurisprudential contribution of the Supreme Court is analyzed in the legal configuration of the crime of violation of secrets in public officials in Spain between the period from 1870 to 1978. The normative evolution of the crime of violation of secrets in four Penal Codes is examined (1870, 1928, 1932, 1944) and a jurisprudential analysis is carried out (1870-1978) to conclude if the jurisprudence of the TS has contributed.

The crime of contempt in the jurisprudence of the Supreme Court (1870-1995): the protected legal right and the precision work of the jurisprudence

2024-09-18T20:02:59+02:00

This paper focuses on the crime of contempt through the light shed by its history and jurisprudence. Its history provides a better understanding of its surprising longevity, which, even in the democratic period, has been in force for almost two decades. Therefore, in order to develop the study of its jurisprudence, its background and historical origins have been reviewed, as well as an abundant number of Supreme Court rulings. This has made it possible to verify the controversial existence of this crime, whose controversy has accompanied it since its birth, questioning not only its mere existence but also specific aspects of its elements and its protected legal right. The marked continuity in its wording and its resistance to the passage of time and thus to the political changes that accompanied the eventful criminal codification, contrasts with the fact that some of the elements that made it up were unclear to the doctrine, as well as with the lack of a peaceful definition of its protected legal right. This paper exposes the function of precision and clarification of the jurisprudence of the Supreme Court throughout its existence in relation to the crime of contempt.

The contribution of case law to the making of the offences of misappropriation of powers and unlawful appointment (1870-2024)

2024-09-18T20:06:54+02:00

Since the first texts of the codification, various types of usurpation (patrimonial and non-patrimonial) have been punished. Among the latter, those of functions and attributions stand out, which are sometimes confused. The former are committed by private individuals. The latter are committed by agents of the State who, exceeding the exercise of their powers, invade the sphere of power of other public subjects. Jurisprudence has not dealt with any particular form of them with particular care, despite the frequency with which cases of this type appear (especially those of administrative authorities who arrogate jurisdictional powers to themselves). From CP 1822 to 1995, the same letters have remained practically unchanged in the penal texts. This relative stability and their scarce presence in court practice (to which not all offences have always had access) explains, in part, the scarce jurisprudential and doctrinal contribution to the formation of these offences (which does not prevent recognising certain contributions). In short, contrary to what happens with other types of offences (such as sexual offences), case law has not contributed decisively to the development of the offences of usurpation of powers and illegal appointment.

The crimes of anticipation, prolongation and abandonment of public functions in the Spanish Supreme Court’s case law (1870-1978)

2024-09-18T20:19:31+02:00

The analysis of case law of the crimes of anticipation, prolongation and abandonment of public functions reflects the respect of the Spanish Supreme Court towards law’s provisions. This is a guarantee for the proper performance of the public function as to when and in what manner one assumes or leaves a public office, especially regarding issues such as the separation of powers. Thus, the jurisprudence on the crime of prolongation of functions, specifically, applies in a forceful manner the provisions for municipalities, avoiding interference by figures such as gobernadores civiles. It also emphasizes the value given to the positions provided through popular elections, highlighting the seriousness of unduly holding such positions. Although less numerous, the jurisprudence on the anticipation and abandonment of functions also echoes the respect for the norm. In this second crime, a greater interpretation is made in the determination of the "damage to the public cause", requirement that this crime demands, as a moral damage or a paralyzation of the organ or institution in which the official is inserted. Even so, this interpretation that specifies the literal meaning of the precept is constant in the jurisprudence that we have studied here.

Misfeasance in the custody of prisoners: a porous issue of criminal obedience

2024-09-19T10:42:39+02:00

The offence of misfeasance in the custody of prisoners possesses a very strict doctrine on behalf of the Supreme Court and this is reflected in its case-law between 1870-1978. This offence is based on a strong legal formalism, reminiscent of the most basic theory of criminal obedience. The judge’s own intermediate considerations are often conspicuous by their absence. There is virtually no cultural notion of crime. There is a departure from the marked interventionism and discretionality of judges that characterised the exercise of the judicial function before the codification period.

The Crime of rape in the Spanish criminal Codification of the 19th-20th centuries: an approach to its jurisprudential analysis

2024-09-19T10:47:04+02:00

observed the evolution of the type of crime in the nineteenth-century Penal Codification and the way in which it is maintained in the following century, until 1995. On the other hand, it is proceeded to study a set of sentences that reach in cassation to the Supreme Court. So the doctrinal contributions of the High Court are observed.

Jurisprudential contributions to the historical evolution of the illicit possession of weapons

2024-09-19T10:55:33+02:00

This article aims to review the jurisprudence of cassation appeals before the Spanish Supreme Court on the illicit possession of weapons throughout its different codified forms in the 19th and 20th centuries as a crime, a misdemeanor or an aggravating circumstance that increases the criminal responsibility of the accused.