Conference: Directions in Legal History and Roman Law

On 6 July 2017, the University of Edinburgh awarded the degree of LL.D. honoris causa to Wolfgang Ernst, Regius Professor of Civil Law in the University of Oxford. At the same ceremony two Ph.D. students in legal history graduated with their doctorate: Asya Ostroukh, whose thesis is entitled “Reception of the French Civil Code in Francophone Switzerland, Louisiana, and Quebec: A Socio-Legal Study”, and Ilya Kotlyar, who thesis is entitled “The Influence of the European Jus Commune on the Scots law of succession to moveables: 1560-1700”. These three happy events encouraged the Centre for Legal History, with the support of the School of Law, to organise a small conference entitled “Directions in Legal History and Roman Law”, involving the new graduates and some current PhD students, to showcase the diversity of the research in the Centre.

Asya Ostroukh, now Senior Lecturer in Law, University of the West Indies, gave a paper entitled “Exclusion and Inclusion of the French Law on Neighboring Plots of Land in the Civil Codes of Quebec, Louisiana and Francophone Switzerland: Some Reflections on the Relation between Law and Society”. She explored the way in which none of the codes she discussed copied the detail of the French law and discussed the reasons why this was so.

The second paper, “The Northern Circuit of the Justiciary Court and the Regality of Grant, 1708-1750”, was delivered by Charles Fletcher, a current, full-time, Ph.D. student just finishing his first year. His thesis focuses on the regality court; but he explored how its work was affected by the development of the Justiciary jurisdiction, after the institution of regular circuit courts in 1708. The paper highlighted the continuing significance of the regality court, while also showing why certain prosecutions were taken to the Justiciary court.

Ilya Kotlyar, currently Postdoctoral Researcher, University of Tilburg, the Netherlands, spoke on “The Historical Scots Law of Succession in a Civilian Perspective”. Along with some general remarks, and discussion of the impact of politics on the Commissary Court, the paper discussed testamentary practices and the use of various devices to avoid the effects of Scots common law, as in many ways Scots sought methods to achieve freedom in disposing of their moveable and heritable property.

This was followed by a paper entitled “The Economics of Property Rights in the Ship in Roman Law”, delivered by Peter Candy, a Ph.D. student about to enter his third year of study. He explored how New Institutional Economics can be deployed in a subtle and nuanced way to understand issues in Roman law, in particular how Roman law provided incentivise to possessors to behave as owners.

The final paper was given by Professor Wolfgang Ernst and was entitled: “Insulam exurere – reading Coll. 12,7,1-3 closely”. Professor Ernst provided a close discussion of the text of Ulpian as found in both the Collatio and the Digest, suggesting that there were changes in the Digest version that reflected neither the textual history but rather an editing decision of the compilers. He also explained what he thought was the original context of part of the text, as a responsum of Labeo.

The conference aimed to give plenty of time for speakers and discussion, and indeed there was much debate over the papers. Notable amongst those attending were Professor Jean-Jacques Aubert of the Université de Neuchâtel and Professor Emeritus Laurens Winkel of Rotterdam. It was a successful exercise in discussion of their research by scholars from junior to senior, which benefited all.



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Monastery and Book of Deer

Scottish legal historians who have an interest in the Middle Ages are all familiar with the importance of the Book of Deer. The Book of Deer is an illuminated manuscript of the Gospels (though not in their entirety, now held in Cambridge University Library. It had once belonged to the great collector, Bishop Moore, who acquired some of manuscripts, notably the Moore Bede, through the Scots scholar and dealer, Alexander Cunningham. There is no reason to associate Cunningham’s activities with Moore’s acquisition of the Book of Deer. Indeed the good Bishop probably acquired it from his friend Thomas Gale.

The Book of Deer is a tenth century manuscript written by a single scribe in an Irish hand. What makes it of interest to legal historians is the legal material inserted into it when the MS was at Deer. Some of this is in Gaelic, making the Gaelic notitiae the earliest surviving medieval Scots Gaelic, as well as a Latin brieve of David I.

In 2009 Katherine Forsyth edited a new collection, Studies on the Book of Deer, published by the Four Courts Press of Dublin. This contains new editions and translations of the legal material. It is an important work.

What has inspired your blogger to revisit this is the note in today’s BBC Scotland website that a search is on again for the old monastery, the one referred to in the Book of Deer. Its site has never been located, though the ruins of the later Cistercian monastery are known and, indeed, charming, though it is many years since your blogger, one side of whose family comes from Buchan, has visited them.

But in the collections in the Book of Deer, Gaelic, Pictish, and Norman Scotland all come together. It is of tremendous importance.

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Professor Norma Dawson: Legal Historian, C.B.E.

 (photo QUB)

The Blog is delighted to note that the distinguished legal historian, Professor Norma Dawson, of Queen’s University Belfast, has been honoured by Her Majesty with appointment as C.B.E. in the recent Queen’s Birthday Honours list. Professor Dawson’s services to legal education have been varied and many, but here it is worth recording her work as a legal historian.

Professor Dawson is also a distinguished property lawyer with a strong specialism in trade marks. This has also been reflected in her work as a legal historian, with interesting work on trade marks in the eighteenth century, as well as on matters such as treasure trove. As well as her own research, she is a past president of the Irish Legal History Society and been a major force in that Society’s programme and publications. She has facilitated and guided the work of others, as well as carrying out her own research.

Here in Scotland she is remembered for her Address to the AGM of the Stair Society on 17 November, 2012. Her topic was entitled “Letters from Inverarary – the Eighth Duke of Argyll’s correspondence with the Marquis of Dufferin and Ava, with particular reference to Gladstone’s Land Acts”. It was a tour de force. It can now be read in the Stair Society’s seventh volume of miscellany.

If your blogger may be permitted a personal note, he started his career as a lecturer at the Queen’s University. Professor Dawson, then herself a young lecturer, was notably welcoming and helpful, and always willing to guide and advise. It is important to note that Professor Dawson, as well as brilliant as a scholar is also wise, an attribute, which, alas, not all scholars possess. It is this wisdom and experience which no doubt explains the calls on her service in the Presbyterian Church in Ireland, the Advisory Council of the Institute of Advanced Legal Studies, and as an Honorary bencher of the Inn of Court of Northern Ireland.


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Alan Watson seminar in legal history – 26 May

Details of our last event for the academic year below: A paper by a visitor to the centre, Wouter Druwé.

In the early modern period, the Low Countries performed a key role in trade and commerce on the European continent. In their golden ages, Antwerp in the sixteenth and Amsterdam in the seventeenth century attracted merchants from all over Europe and even beyond. The massive development of commerce and finance within this transregional reality raised new normative questions on how to deal with novel financial techniques. Most often, the answers were multifold. Different layers of normativity were at stake: apart from learned legal treatises and commentaries, also moral theological literature, princely or local ordinances, and customary law had to be taken into account. The Netherlandish published volumes of consilia and decisiones – together coined as ‘learned legal practice’ – form two types of legal sources which offer an excellent insight into the combined application of these different normative layers. In consilia, learned lawyers gave their opinion on specific disputes, either before or in the course of legal proceedings. Volumes of decisiones contain reports of decisions by the superior courts of the Low Countries.

After an introduction into the sources and a short overview of the overall Ph.D. project, this paper will deal with the Netherlandish learned legal practice regarding the sale of annuities (emptio-venditio redituum), a common technique to circumvent the prohibition against usury. Someone in need of credit sold an annuity to a buyer-financier who in return paid a purchase price. As of the mid-sixteenth century learned authors accepted that the seller could unilaterally redeem the annuity, even though discussion remained as to the possibility of contractual clauses which temporarily limited that right. As this possibility was only guaranteed in case of pecuniarily constituted annuities, debates also concerned the burden of proof of an annuity’s emptitious nature. Furthermore, this contribution deals with the possibility by a public debtor to mitigate its own annual liabilities through the enactment of legislation. Finally, it is shown that the buyer-creditor was generally denied a right to claim restitution of the capital.

Wouter Druwé (FWO / KU Leuven)

26 May – Legal History Poster

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Paris: histoire, droit, et lois

For the legal historian, walking around central Paris is always of interest. For example, close to where your blogger had his flat in the Marais, is an elegant house on which there is a plaque stating that Raymond (or Roumain) de Sèze (1748-1828), one of the lawyers of Louis XVI at his trial, had lived in 1793. He was noted for his spirited defence of the unfortunate king. He had earlier acted for Marie-Antionette in the affair of the Queen’s necklace. After the King’s trial de Sèze was imprisoned for a while, though released on the fall of Robespierre. After the Restoration, he became Président of the Cour de Cassation in 1815. His tomb is to be found in the  Père Lachaise Cemetery.

The Palais de Justice in Paris is very grand complex of buildings on the Île de la Cité.

One of its interesting features is the Salle des Pas Perdus, which has a function rather similar to that of Parliament Hall in Parliament House, Edinburgh, as a giant vestibule connecting parts of the building, in which one one often sees avocats in their robes walking and discussing. Attached to this elaborate complex is the Conciergerie, the medieval royal palace that was used as a prison, for, among others, Marie-Antoinette. At the end of the Conciergerie is the grand classical, or perhaps rather baroque, pile of the Cour de Cassation. This functions as the court of appeal in civil matters.

Nearby is the Tribunal de Commerce, not attached to this grand complex.

On the tower at the end of the Conciergerie is a remarkable clock, which has given its name to the nearby quai, the Quai d’Horloge. The clock here dates from the late fourteenth century, and was the first public clock in France. It has been repaired, restored and acquired a new dial several times through the centuries; and it was beautifully restored again in 2012. What is interesting to the legal historian are the allegorical figures. These were restored in the mid-nineteenth century, after being burned during the Revolution. They are mannerist in style, and represent law and justice.

The iconography of figures of justice is always very interesting. This figure has no blindfold are even. The Latin inscription on the top alludes to Henry III of France; that on the bottom is more interesting here: it states that “This machine that divides the hours into twice six warns us to protect justice and uphold the laws.” It is tempting to reflect on the deeper meanings that this suggests in the context of a clock. But it is interesting to reflect on them in the context of de Sèze’s defence of Louis XVI, before the Convention, which de Sèze described as full of accusers but not of judges, and in which he remarked that Louis seemed to be the only Frenchman without rights.

Codification, of course, emphasised that in France droit is expressed in lois. One can think of the projects of Henri François d”Aguesseau (1668-1751), Chancellor, commemorated with a statue outside the Assemblée Nationale, and eventually of the various projets of

Cambacérès during the 1790s, as attempts were made to unify and reform French law.

This, of course, eventually brings us to Napoleon Bonaparte. He is too famous to need much discussion. (It is worth noting here that the University of Edinburgh owns a table he used in imprisonment in St. Helena.) The significance of the Code civil des Français (later Code Napoléon) as one of the most important legal texts hardly needs stating. Napoleon’s remains were eventually returned to France from St Helena and buried in a huge new crypt in the Eglise du Dôme, the splendid baroque church, added for Louis XIV to the Hôpital des Invalides in Paris. It is a matter of taste, but to your blogger the tomb and its associated walk-way and other statuary and paraphernalia, all in a heavy, almost vulgar, Greek-revival style, form an unfortunate contrast with the baroque Louis XIV church, and indeed seem artistically to be at war with it.

This said, the tomb is fascinating. The walkway round it contains huge sculptures representing significant non-military achievements of Napoleon. The sculptor obviously had in mind Greek commemorative sculptures of the Hellenistic period. One, for example, commemorates the Code de commerce. One inevitably is devoted to the Code civil. Napoleon is portrayed as Greek lawgiver, perhaps a Solon, surrounded by acolytes and allegorical figures. On his right, the viewer’s left, is a tablet referring to Roman law and Justinian’s Institutes. Napoleon grips its corner. On his left, the viewer’s right, is a tablet referring to the Code civil, on which is an inscription, to which he points with his finger, stating “justice égale et intelligible pour tous”. It is as if the ancient imperial law of Rome has traveled through and been transformed by his body into the modern Code. The stone tablets also make the legal historian think of Moses and of the Twelve Tables (even if the last were not initially carved in stone). Perhaps he is a new Moses leading his people from the bondage of the old law to a new dispensation. Below his feet is the rather hubristic inscription: “My Code alone, by its simplicity, has done more good in France than the mass of previous laws.” Other books and scrolls of law are found discarded below the Emperor’s feet. These include the works of Domat and Pothier, whether discarded as replaced, or after use in drafting the code, or both, is for the viewer to decide!




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Alain Wijffels: Chaire Européenne, Collège de France

During his time in Paris, your blogger was lucky enough to receive an invitation to the inaugural lecture that our friend and colleague Professor Alain Wijffels gave for his chair in European History at the Collège de France,  which he holds for 2016-17. The lecture is now available for downloading on the website of the Collège de France. The theme was whether there was a European legal history and whether one was needed. See

It is important to stress the very significant but well deserved honour achieved here by Professor Wijffels. Your blogger believes that Professor Wijffels is the first legal historian or lawyer to have been awarded this chair. The word “prestigious” is now embarrassingly over-used in an academic context, as universities exaggerate the often trivial achievements of their academic staff. But Professor Wijffels’ appointment to this chair at one of the world’s leading academic research institutions (one far more important intellectually than some bizarre “world” rankings may suggest) is indeed a real mark of prestige and honour. And it should be a real source of pleasure and delight to all legal historians.

The intellectual life of Paris puts a great emphasis on such lectures at the Collège de France, and Professor Wijffels has also been interviewed on the radio on France Inter, and next month he will be interviewed by Antoine Garapon on France Culture. Garapon is an interesting figure, a magistrat, as well as secrétaire général de l’Institut des Hautes Etudes sur la Justice. He is noted for his intellectual discussions and interviews, late-night on Thursday, on France Culture. Considerable public exposure of the ideas behind the lectures is thus achieved.

It was an excellent lecture, a positive tour-de-force, which your blogger found very stimulating. The theme raises all kind of historical and indeed political questions. It is worth noting that Professor Wijffels extensively discussed and analysed the recent Scottish case of Holdich v. Lothian Health Board (2013). This was one of the many recent cases dealing with the personal tragedies arising out of the failure of electricity supplies leading to the degrading of sperm stored in a sperm bank, often deposited by young men who have stored their sperm because forthcoming medical treatment will render them infertile. The case was taken before Lord Stewart on the procedure roll for debate on the relevancy and specificity of the averments. This issue has been litigated around the world, as the very learned and wide-ranging judgment of Lord Stewart demonstrates. But one can be confident that the discussion in the opinion of the role of the praetor, his edict, the actio indirecta in Aquilian liability, and the views of Ulpian on ownership of the body, as well of the Roman rules on acquiring ownership of property by occupatio is rather unique to Scotland. Professor Wijffels’ elegant discussion brought all this together in a European historical context.

Your blogger had hoped to attend the next lecture, but, alas, he was laid low by some type of viral attack; the following week he could not attend, as he had to prepare for his own leçons at the École normale supérieure.

Professor Wijffels’ inaugural lecture was followed by an elegant reception with champagne and canapés. Your blogger was delighted to find there more old friends than he had anticipated. The publication is anxiously awaited.

 Image: Collège de France



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Law in Theory and History – a Neglected Dialogue

Guest blog by Peter Candy.

On Friday 28 April the Law School at the University of Edinburgh was delighted to host a workshop dedicated to the theme of ‘Law in Theory and History: A Neglected Dialogue’. The conference, which was convened by Prof. Claudio Michelon and Dr. Paul du Plessis (both Edinburgh), followed the recent publication of an important volume edited by Michael Lobban and Maks Del Mar, entitled Law and Theory in History: New Essays on a Neglected Dialogue (Hart Publishing, 2016).
Michael Lobban (LSE) began proceedings by with an exploration of the tension between the instinct of the theorist to reach for the universal, and that of the historian to find meaning in context. Michael suggested that, if we are to follow Milsom’s proposal that the aim of the legal historian is to establish what legal actors at any given time thought they were doing, then we should look to theory to help us understand the life of the legal concepts with which they were engaged.
The relationship between philosophical inquiry and historical inquiry was further interrogated by Maks Del Mar (Queen Mary). While the former, he argued, is characterised by the ‘pursuit and identification of distinct units’, historical inquiry is acutely sensitive to ‘affecting variables’. This latter expression refers to any number of real-world factors that can impact upon the patterning of legal thought: for example, archival practices, the architecture of legal spaces, and the medium through which that thought is communicated.
After a short break, Maks was followed by John Hudson and Caroline Humfress (both St. Andrews). John explored how different definitions and conceptions of law shape the dialogue between theory and history, each of which is attended by the respective pitfalls of over-generalisation and hyper-nominalism. Caroline, meanwhile, set out to provide a fresh understanding of how legal historians engage with legal concepts. Expressing an unease with the dichotomy of ‘law-in-theory’ as opposed to ‘law-in-practice’, she introduced Hart’s appeal to Wittgenstein as a possible alternative. If, as Hart suggests, “we wish to understand our concepts”, “we must consider them when they are ‘at work’, not when they are ‘idling’ or ‘on holiday’”. Building on the critique of how we understand concepts ‘at work’ contained in Lobban and Del Mar’s Law in Theory and History, Caroline offered her own view that concepts are both at work when they are applied in determinate circumstances and when they are used in juristic discourse.
Stephen Bogle (Glasgow) finished the morning session with a critique of James Gordley’s The Philosophical Origins of Modern Contract Doctrine (Clarendon Press, 1991). Stephen identified three analytical approaches to historical sources: rational reconstructions, historical reconstructions, and, finally, Hegelian appreciations of the place of the text within a given Geistesgeschichte (loosely, cultural history). While in the first approach scholars are apt to ask modern questions of the text, an historical reconstruction seeks to understand its meaning in a way that could have been within the original author’s contemplation. Looking to The Philosophical Origins, Stephen argued that Gordley’s approach seems to have been inspired by Hegelianism; that is, a method of bringing together theory and history as part of the Geist (or, spirit) of the culture by which it was produced.
After lunch, Dan Carr (Edinburgh) gave an illuminating paper on the role of narrative in judicial decision making in modern Scots law. Tracing a thread back to the influential 20th century professor of Scots law, T. B. Smith, Dan showed how a narrative concerned with the perceived corruption of Scots law by foreign (and, particularly, English) influence has taken hold over time. In a number of important judicial decisions this narrative has been used to justify one particular outcome over another. Consequently, it represents a form of judicial reasoning that deserves closer scrutiny and attention.
Finally, Chloë Kennedy (Edinburgh) returned to the tension between theory and history by looking more closely at whether legal concepts are best understood in their ‘immanent’ (i.e. contextual) or ‘transcendent’ state. Turning to the concept of criminal responsibility, Chloë argued for a ‘middle way’ (following John Hudson), by which legal concepts could be better understood through theory and history without positing a conflict between them.
All the papers provoked energetic discussion, which continued over dinner at the ever-dependable Ciao Roma. Also in attendance: Thomas Gallanis (Iowa), Neil Walker (Edinburgh), Martin Kelly (Edinburgh), Paul Burgess (Edinburgh), and Peter Candy (Edinburgh).

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Les rues et les jurisconsultes de Paris: Streets and Lawyers in Paris

Your blogger is currently spending some time in Paris. He has noticed that there are some streets named after famous jurists in the fifth arrondissement, the quartier latin, where some famous educational institutions, such as the Sorbonne, the Collège de France, and the École Normale Supérieure are situated. Close by the building of the Faculté de droit on the Place Panthéon are rue Cujas and rue Toullier.

Rue Cujas is named for  the great sixteenth-century Roman lawyer, Jacques Cujas (1522-1590), known for the humanistic or elegant study of Roman law. His thinking about Roman law remains relevant for modern scholars. He has recently been the subject of an important book by our colleague, now of Bordeaux, Xavier Prévost. The street is a large, busy street, with some grand buildings.

Rue Toullier is rather smaller. It is named for Charles Bonaventure Marie Toullier (1752-1835). He is little known outside France. Like Cujas, Toullier lived through very stormy times. After the reorganisation of the universities in the Napoleonic period, he again became a professor at Rennes (he was from Brittany), where he had occupied a chair before the Revolution. He survived the Restoration. What he is known for is his multi-volume Droit civil français suivant l’ordre du Code Napoléon, ouvrage dans lequel on a tâché de réunir la théorie à la pratique, Paris, 1811-1831. It is an important early commentary on the Code civil des Français of 1804. It became very familiar to your blogger when he worked on his doctoral studies in the late 70s. These concerned codification in Louisiana in 1808 and Quebec in 1866 (see now John W. Cairns, Codification, Transplants and History: Law Reform in Louisiana (1808) and Quebec (1866), Talbot Publishing, 2015). The redactors in Quebec consulted Toullier’s work regularly, as indeed did those who revised the Louisiana Code in 1825.

Rather removed from the Law School, closer to the Seine and the Île de la Cité, opening out of Rue Dante, is rue Domat. This is named for Jean Domat (1625-96). Domat was from Clermont-Ferrand in the Auvergne. He studied arts in Paris and law in Bourges (where Cujas had once taught, and where, apparently, Domat was taught by a follower of Cujas), and then worked in Clermont. He is best known for Les lois civiles dans leur ordre naturel (1689). This rationalist account of a universal law went through a great many editions, and was one of the most influential law books of the next 100 or so years, exercising significant influence on the Code civil des Français as well as on, for example, both the Louisiana and Quebec codes. The most important work recently on Domat is by David Gilles, now of the université de Sherbrooke, Sherbrooke, Québec.

Indeed, though not immediately obvious, what links these streets together, is the Code civil des Français of 1804, one of the most influential law texts ever, almost approaching the significance of Justinian’s Digest. The most interesting work on it recently has been by our colleague Jean-Louis Halpérin, now of the ENS in Paris.

One does wonder if the grandeur of the street is a reflection on the perceived status of the jurist when the street was named after him! But that would perhaps be to make too much of the minimal evidence. It is nonetheless worth mentioning that there is a Place Cujas in Bourges and a rue Cujas in Toulouse, a rue Toullier in Rennes and another in St Malo, as well as a rue Domat in Clermont-Ferrand.

These streets in Paris acquired these names in the 1860s during the second Empire. The same era in Britain also saw the start to create national histories through naming and creating monuments to the great dead. For example, in much the same period, St Giles Kirk in Edinburgh, which had been divided into a number of different churches at the Reformation, was recreated as its original medieval space, and started to be filled with monuments as a type of Scottish history, while Parliament Hall became a reading of Scottish legal history.

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PhD candidates sought

The Centre for Legal History in the University of Edinburgh has considerable experience in successfully supervising students for the degree of Ph.D. Supervision can be offered in Roman law, Roman and Canon law in the middle ages and early modern period, the history of Scots law, law and the Enlightenment, and slavery and law in the eighteenth century. Recent theses successfully examined include topics as diverse as legal transplants in Francophone Canada, sixteenth-century French legal practice, and moveable succession in the ius commune and Scots law.
Anyone interested should consider contacting Dr Paul du Plessis, Director of the Centre. Help can be given in finding funding to support the studies of appropriate candidates.

Posted in Legal History, Louisiana, Old Books, Opportunities, Roman Law, Slavery | 1 Comment

Conference on Leibnitz

Our blogger has recently been made aware of the publication of a new translation of Leibnitz’s famous treatise on the teaching of law. Details about the conference here.

A short blurb by the author of the translation below:

About the Leibniz’s The New Method of Learning and Teaching Jurisprudence

“This book, small in relation to its size, but considerable if we look at the aim which Mr. Leibniz pursues, became an extraordinary rarity. I would have done certainly useless movements to find it in bookshops, or at friends, if the case would not have dropped it in my hands in an unforeseen way” .[ M. L. de Neufville (1734), Histoire de la Vie et des Ouvrages de Mr. Leibnitz. Amsterdam chez François Changuion, 25,my transl.].
Indeed, after the first issue in Frankfurt 1667, published only with the initials of the Author , the Nova Methodus will be reprinted only in 1748 with a short preface by Christian Wolf (or Wolff, 1679–1754) . This edition will be reused twenty years later by Luis Dutens in the first critical publication of Leibniz’s works.
At the end of the XVII century, Leibniz added in late revision the so called note “D” , now printed in footnote to the critical edition of Nova Methodus by Paul Ritter [1872–1954], Willy Kabitz [1876–1942], Heinrich Schepers (eds.) of the German Academy of Science.
As for translations of Nova Methodus in modern languages , to my knowledge the only one complete is mine in Italian and here in English. I tried to give the most comprehensive framework of the juridical thought of Leibniz not only in philosophical sense, but also in juridical technical sense, which is the most important in this booklet, because the same is specifically devoted to the Right.
The other translations in modern languages contain only selected passages, pursuing different aims, so that a judgment about cannot be expressed, except that in some cases they inaccurately translate juridical terms, for they are made by philosophers not by jurists, and this is an unacceptable limit for a juridical book.

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