Economic crises, particularly those inherent to war situations, represent privileged moments for understanding the functioning of regulatory institutions often obliged to redefine their priorities and constrained to adapt their functioning to the urgencies certain situations demand. Instituted by law only in 1912, Belgian juvenile courts almost immediately faced a transformation of the juvenile delinquency reported: incidences clearly and directly linked to subsistence during wartime. These specific incidences testified to the economic vulnerability of the offenders as well as of their victims. This contribution examines jurisdictions in direct contact with families plunged into poverty precisely from the angle of the judicial response made to behaviours more or less directly related to the crisis of subsistence: pilfering, gleaning, theft, vagrancy and begging. During the war and in the immediate post-war period, these actors in child protection provided a well-delineated analysis of the delinquency of subsistence, exhibiting a relative degree of tolerance of theft while firmly condemning begging, and a fortiori when it formed part of a family strategy. Evaluation of these various behaviours, as well as of the families implementing them in a more or less strategic manner reveals that the actors in the judicial protection of children held a relatively complex interpretation of the contexts of war and economic crisis, as well as their effects on juvenile delinquency and, more generally, on the morality of families.

Post-war penitentiary repression remains an unexplored angle of the Belgian historiography of the Great War. It was nevertheless a key task of the state when reclaiming its post-conflict authority and legitimacy, as popular violence was rising in a divided and devastated country. How did the state repress its own citizens in the immediate aftermath of the war? How did it manage the detention of the numerous ‘anti-patriotic’ suspects? Which behaviours were targeted, and which ‘bad Belgians’ actually ended up in jail? How were the detention conditions experienced by them? This essay aims to provide a first overview of the role played by prisons in the restoration of the post-war political rule of Belgium, to describe its legal boundaries, and to explore the daily-life conditions of prisoners after the war. It reveals how wartime and post-war political decisions impacted the arrests policy of suspects and how those decisions modified the detention conditions of the prisoners.

Between May 1940 and August 1944, at least 900 prisoners were executed in German-occupied Belgium and northern France following a death sentence; 420 others were shot as hostages in reprisal for unsolved acts of violence against members of the Wehrmacht or their local collaborators. According to German military law, all convicts and hostages facing execution could ask for the assistance of a clergyman. In occupied Belgium and northern France, it was Monsignor Otto Gramann, head chaplain to the German military administration, who assisted most of these inmates during their last hours. Gramann kept detailed records of his encounters with the executed, documents which have never been studied before. They do not only give an insight into the study of execution of the death penalty in occupied Belgium and northern France from a grass-roots perspective. The case of Otto Gramann also provides the opportunity to research the complex relationship between the military chaplaincy and the Nazi regime in general.

Like several other European belligerent countries, Belgium faced significant difficulties in regard to housing during World War One. In particular, the drop in household income caused the multiplication of rent disputes and the polarisation of relations between two classes of citizens with conflicting interests: tenants and landlords. If most countries at war took measures to resolve the crisis—e.g., instituting a moratorium on rents or setting rent price controls—the Belgian case was different and unique in Western Europe because the country was then governed by the German occupier. Likely influenced by lobby groups created within occupied Belgium, the occupier established new authorities—the arbitration tribunals—charged with resolving disputes between landlords and tenants. This essay explores the judicial dimension of the rent issue during World War One. Indeed, beyond its social effect and its impact on judicial organisation, the rent problem questioned the legality of the occupier’s decrees and their applicability by Belgian judges. The debate around the legitimacy of those arbitration tribunals provoked the question of the judges’ patriotism and generated strong internal divisions amongst them.

Food was a particularly tense issue in Belgium during the German occupation in’14-‘18. This experience left a lot of bad blood between customers and merchants. Consumers accused sellers and producers of “profiteering”, i.e. making good money out of the food shortages. The prosecution of this group after the war proved to be a very difficult operation, due to complex legal restraints. This article argues that the Belgian government did try to hit this group by introducing stricter food regulation after the Armistice. A study of the Judicial Statistics demonstrate that this was not a mere legislative propaganda exercise, since food offenses were also massively prosecuted. Only the accusation of theft would bring more people to the correctional courts in the first post-war years. Prosecution was not very severe however. Court records show mostly smaller infractions being prosecuted and quite mild sentences given. On the other hand, the law targeted a group that was largely ‘new’ to the justice apparatus, namely: farmers, retailers and butchers. Thereby, the Belgian state was thus forced to take up a new role in a market that it had largely left free before the war. The Food Profiteering Law should therefore be considered as a non-retroactive form of transitional justice.

Belgian historical research concerning the repression of collaboration after the Second World War, has mostly overlooked the East Cantons. This mostly German-speaking region only became a part of Belgium in 1920, as a consequence of the treaty of Versailles. The integration of these populations turned out to be a very complicated process. In 1940, Nazi-Germany did not only occupy the East Cantons like the rest of Belgium, but annexed them back into the Third Reich. One of the main conclusions of the regional historiography is to view the repression of the collaboration as another step in the general misunderstanding between the local inhabitants and Belgian State authorities. This is evidenced by the high conviction rate (2.41% of the local population) and by assimilationist discourses which accompanied the workings of the Belgian military courts. In this contribution, we study the role of judicial actors in the actual establishment of the repression of collaboration and the civic purge in a top-down and a bottom-up approach. We analyse the special prosecution policy developed by the military prosecution office during the post-war period for with the enemy. We also show how political and administrative actors reinforced the living sentiments of injustice among the local population.

In the wake of the First World War, the Belgian judiciary prosecuted Belgian civilians for various kinds of collaboration with the former German occupier. This chapter examines how Belgian civilians suspected of having denounced others to the German occupier defended themselves against such accusations during the post-war judicial investigations. To this end, a corpus of judicial case files of cases of denunciation was scrutinized. Besides analysing the suspect’s defence strategies, this chapter also reflects on the nature of cases of denunciations. It is argued that due to the distinctive interpersonal character of the underlying conflicts, the difficulties to prove a denunciation in court and the lack of material evidence, suspects were given ample opportunity to develop various rhetorical strategies to defend themselves against accusations of denunciation to the enemy.

This chapter serves as a general conclusion to the monograph. I give a short overview of the various book chapters. I finish the chapter by coming to a general conclusion on the freedom principle in Western Europe during the Early Modern Era.

This chapter takes a comparative approach to the freedom principles. It discusses the various country experiences and compares them to discern similarities and differences in the origins, application and evolution of the freedom principle. I start by comparing the origins of the freedom principle, contending that the principle had stronger grounding in the Low Countries and France than it had in England. Second, I compare the evolution of the freedom principle during the heyday of the Atlantic slave trade. I discuss and try to explain some of the most striking differences and similarities across the different jurisdictions. Finally, I also make some remarks on the limits of the strictly legal comparison by evoking the concept of law in action.

This chapter provides an overview of the evolution of the freedom principle in England during the period 1650–1800. It first sketches the historiography of the black presence in England during this time. I then discuss how common law courts and writers dealt with questions of slavery before 1772. I proceed by discussing the landmark case of Somerset v. Stewart, as well as the various interpretations of the case. Finally, I provide a short overview of the situation post-Somerset, up until the abolition of slavery across the British Empire in 1834.

In the third and final chapter on the evolution of the freedom principle during the period 1650–1800, I assess the situation in the Low Countries. I first discuss the historiography of the black presence in the Dutch Republic. I proceed by giving an overview of the limited sources for the Dutch Republic pre-1770s. I then extensively discuss the background and consequences of the placaet of 1776, which limited the freedom principle in the Dutch Republic. I then give a short overview on the freedom principle from the Batavian Revolution to the abolition of slavery across the Dutch Empire in 1863. Finally, I also give an overview of the evolution of the freedom principle in the Spanish (and then Austrian) Netherlands, focusing on the 1733 case of Antonio Bartholomeo de Lion.

In this general introduction to the book, I provide an overview of the structure of my argument. First, I discuss the research question and clarify its constituent parts. Second, I give a succinct overview of the state-of-the-art in research on the freedom principle, discussing the literature in England, France and the Low Countries. Third, I discuss the methodological framework and provide more information on the main primary sources. “The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged” Lord Mansfield, (1772) Lofft 19 The inspiration for this work first came when I stumbled upon the case of Somerset v. Stewart in the monograph Slave Law in the Americas by the late Professor Alan Watson. Driven by the want to conduct research on the legal aspects of slavery and the slave trade in the Early Modern Period, I found Professor Watson’s book to be the holy grail. Watson, a prolific scholar who had written on many aspects of (comparative) legal history, wrote on the substantive slave laws of the European Atlantic colonies in this book. He noted how, according to him, some details or expressions of the law of slavery had caught the attention of scholars, who have then attributed undue significance to it, whilst undervaluing other expressions (Watson (1989), p. 115). One such detail that has received much significance, according to Watson, was the landmark case of Somerset v. Stewart. This case came before the English Court of King’s Bench in 1772 and pitched the staunch abolitionist Granville Sharp against the interests of colonial slave proprietors, who sometimes took their slaves with them to the metropolis. Francis Hargrave, one of the slave Somerset’s lawyers, wanted to have his client declared free. He published an eloquent work called An argument in the case of James Somersett a Negro, lately determined by the Court of King’s Bench, setting out his argument for Somerset’s freedom. Most interestingly, Hargrave not only mentioned a plethora of English precedents in favour of his client’s freedom, but also referred to a combination of legal tracts, laws and cases from Scotland, France, the United Provinces and the Southern (then Austrian) Netherlands (Hargrave (1772)). The plight of the slave Somerset himself has been meticulously discussed in English historiography and legal scholarship. However, Watson noted that Hargrave’s references to continental precedents holding that slaves were automatically freed when brought in the jurisdiction of those countries, had been sorely neglected in legal-historical research (Watson (1989), p. 122). Over the past three decades, several legal scholars and historians have taken up the gauntlet to address Watson’s 1989 remark. As I searched for the foreign precedents mentioned by Hargrave in his defence of Somerset, I soon discovered the work of a small group of scholars who have meticulously researched many of these slavery cases. Collectively, these scholars write about a so-called “freedom principle” or “free soil” principle (The terms “freedom principle” and “free soil” are often used interchangeably. Upon the suggestion of the peer reviewer, I have chosen to consistently refer to “freedom principle”, instead of “free soil”. The term “free soil” can create some confusion, given that it can also be taken to refer to the difference between states that did or did not recognize slavery in the United States in the nineteenth century in general, or, more specifically, the short-lived Free Soil Party in the United States). This principle stated that slaves coming to i.a. France, England, and the Low Countries became personally free as soon as they touched the soil of these countries. It is the story of the legal origins and ramifications of this principle, which this book will explore.

In this second chapter on the evolution of the freedom principle during the period 1650–1800, I assess the situation in France. I start by discussing Turkish galley slavery in Southern France, and the effects this had on the freedom principle. I proceed by discussing the situation of black, enslaved persons coming to France. After a short historiographical overview, I discuss the most important legislation (the Edict of 1716, the Declaration of 1738 and the Declaration of 1777) and case law (selected cases for which the written memorials have been published). I end with a short overview of the situation in France between the French Revolution and the second abolition of slavery in the French Empire in 1848.

This chapter consists of three parts and sets out the necessary background facts for this study. First, I discuss the problem of defining slavery by referring to authoritative definitions (e.g. the Slavery Convention 1926) and distinguishing slavery from other institutions such as serfdom. Second, I provide an overview of the occurrence and gradual disappearance of slavery in Western Europe from the Roman era until the end of the Middle Ages, and also discuss the so-called evolution from slavery to serfdom. Third, I consider two legal aspects of the transatlantic slave trade. On the one hand, I assess the legal legitimation Early Modern European scholars (epitomised by the writers of the Classics of International Law book series) gave to slavery and the slave trade. On the other hand, I also provide a short overview of the substantive slave law in the English, French and Dutch colonies.

This chapter focuses on the creation of the freedom principle in England, France and the Low Countries during the period 1500–1650. First, I discuss the case of England. I focus on the slow disappearance of villeinage and look at the various times the English legal order came into contact with questions of slavery. Likewise, for France, I first discuss the decline of serfdom. My discussion then focuses on the municipal origins of France’s freedom principle, and its transformation into a national principle. I end the chapter by providing an overview for the Low Countries, showing a similar transformation from a municipal to a national freedom tradition.

Constitutional precedence constitutes a defining element of modern constitutionalismConstitutionalism . This chapter aims to elucidate the way in which this idea was embedded in the Belgian ConstitutionConstitution Belgian 1831 of 1831. It does so by combining a historical-genealogical approach with a legal one. The chapter begins with a discussion of the genesis of the Belgian ConstitutionConstitution Belgian 1831 in relation to the Fundamental LawConstitution Dutch 1815 of the United Kingdom of the NetherlandsNetherlands, United Kingdom of the . It shows how the Belgian opposition’s constitutional resistance to government policy created a debate over the interpretation of the Fundamental LawConstitution Dutch 1815 , which in turn provided the conceptual building blocks for the understanding of constitutional precedencePrecedence of constitution in the 1831 Constitution. After examining the concept of legal order, the chapter explains how, in the eyes of the Belgian revolutionaries, the Belgian ConstitutionConstitution Belgian 1831 could be a legitimate replacement for the Fundamental LawConstitution Dutch 1815 as the foundational document of the state. The concern for constitutional precedencePrecedence of constitution was expressed furthermore by recurring debates within the National CongressNational Congress, Belgian and the press over the constitutionality of the acts of both the constituting and constituted powers. The chapter then turns to the constitutional text and analyzes the way the precedence of the Constitution was legally anchored into the Belgian state system. Constitutional precedence was expressed by a combination of measures concerning (a) the special status and the endurance of constitutional law as compared to ordinary law and (b) the Constitution’s status as the legally binding ground rule for the constituted powers. Finally, the precedence of the Constitution was symbolically expressed by a discourse of respect for the Constitution as the ultimate guaranteeConstitutional guarantee of the wellbeing of the state.

The 1815 constitutionConstitution Dutch 1815 of the United Kingdom of the NetherlandsNetherlands, United Kingdom of the established a deferential control on the sovereign power to declare war and conclude treaties. Following articles 57 and 58, international agreements could be concluded and ratified by the monarch, save for peacetime cessions of territory. The constitutional committee’sConstitutional Commission Dutch debates treat the matter rather hastily. WilliamWilliam I of Orange-Nassau, Dutch King I (1772–1843)’s role at the establishment of the Kingdom of the United Netherlands had been so decisive, that the advent of a less qualified successor seemed inconceivable. The monarch personified the common interest. Foreign policy, the privileged terrain of princes and diplomats, was judged unsuitable for domestic political bickering. Finally, the Estates Generals’ budgetary powers were seen as an indirect brake on potential royal martial ardours. The incidental objections formulated by Jan Jozef RaepsaetRaepsaet, Jan Jozef , a Southern conservative publicist, show the more structural deficiencies of the constitution as a pact between the monarch and the nation. Leaning both on feudal law and law of nations doctrine, RaepsaetRaepsaet, Jan Jozef demonstrated how WilliamWilliam I of Orange-Nassau, Dutch King I had been dressed in Napoleon’s clothes. The King had a nearly unchecked competence in foreign affairs, beyond the usual Old RegimeAncien Régime” \i safeguards, contrary to Enlightenment criticism of autocratic rule. John Gilissen aptly labeled WilliamWilliam I of Orange-Nassau, Dutch King I as a “monocrat”. VattelVattel, Emer de or PufendorfPufendorf, Samuel von ’s opinion on the ruler as a mere usufructuary seemed to have evaporated. RaepsaetRaepsaet, Jan Jozef ’s arguments on the inconsistent nature of Art. 57 and 58 are echoed in the 1831 Belgian constitution’s Art. 67—subjecting most treaties to parliamentary consent—as well in ThorbeckeThorbecke, Johan Rudolph ’s criticism of the document.

We are said to live in an age of democratic legitimacy. The rightfulness of a political and legal order is meant to reside in a widespread belief in the rightfulness of democracy. Contemporary democratic legitimacy is tied, among other things, to consent, to representation, to the identity of ruler and ruled, and, of course, to legality and the legal forms through which democracy is structured. The nation, its unity, and whatever democratic legitimacy its form of rule enjoys, become tangible and emerge as much in shared taste, in the pre-supposition and generation of aesthetic con-sensus, as in the formation or execution of a common will or the inculcation or reasoning of a common reason. This introduction presents the ten chapters of the edited volume, each of which engages with the intersection of aesthetics and law, and, more specifically with the question of how the nation—and its (fundamental) law—are ‘sensed’ by way of various aesthetic forms.

The Constitution, as fundamental, formal law, needs some form of representation in order to gain validity. This chapter demonstrates that, apart from using symbols such as tables of the law, artists alternatively chose for an artistic device, for which the name DCM (Decisive Constitutional Moment) is put forward. This device entails the selection and depiction of a specific, pivotal moment from constitutional history. The definition of this device consists of three parts, drawing on existing theory about the decisive moment by photographer Henri Cartier-Bresson, the constitutional moment of legal scholar Bruce Ackerman, and the depiction and narration of a history and a moment in visual art, with particular attention for the relationship between the depicted moment and the moment of depiction. The chapter’s focus is on works of art from the long nineteenth century, the age of revolution, Constitution and a new idiom in art history in which artist took scenes from contemporary life as subject matter, thus combining a journalistic eyewitness account with an academic style. Looking into the main artistic media of this era and their use in DCMs allows for a better understanding of the legitimizing function of the art works under scrutiny. The chapter further develops with an elaborate study of the design entries for the 1849 competition for a constitutional monument in Brussels, Belgium, which demonstrates the variety of possible decisive constitutional moments and the challenges which artists faced when including them in their designs.

This paper tackles the topic of disinheritance as a punishment against the marriage of children without their parents’ consent in the Middle Ages and in the Modern Era. According to Roman law, the father’s consent to the marriage of his children-in-power was required. In a society based on parental authority, many medieval Italian (but also Spanish and French) cities issued statutes in order to preserve the father’s control over his children’s marriages (above all over underage daughters’ marriages). Such a perspective, however, met the opposition of canon law, since according to the laws of the Church parental consent was not necessary to enter into wedlock: marriage was also a sacrament which only concerned the decision of those who were involved. Thus a conflict between lay and church powers arose, since it was hard to coordinate different laws and their respective jurisdictions and to understand which one should prevail. Jurists had to deal with several issues, trying to find a delicate balance: they had to determine whether, in the field of marriage consent, canon law repealed Roman laws or whether lay laws could enforce penalties against those who married without parental permission, for example disinheriting them. Disinheritance was indeed the most serious patrimonial consequence provided for by secular laws against children who did not adhere to the choice of the head of the family. In this way, jurists gave an essential contribution to the solution of a complex problem in the medieval order of powers, and were pivotal to defining the line between lay and Church jurisdiction. The paper is divided into two sections. The premise and Part I, by Giovanni Chiodi, illustrate the most important doctrinal positions of canonists and civilians from the Middle Ages to the Early Modern Era. Part II, by Wim Decock, furthers the debate among early modern scholastics in the sixteenth and seventeenth centuries.

As soon as Belgium became independent, a will to reform the Napoleon Penal Code of 1810 emerged. In 1848, a reform commission initiated the reform process that will lead to the new Penal Code of 1867. Under the impetus of J.J. Haus, a penalist from the Ghent University, the revision process took a rather abstract and technical direction. Influenced by the dominating neoclassical penal thought, the new Penal Code of 1867 does not mark a clear rupture with the imperial Code of 1810. The text oscillates between reform and continuity, with a specific wish to correct the punitive excesses of the earlier text.

The second chapter is devoted to the transitional period of the fifteenth and sixteenth centuries, during which printed books came to replace manuscripts. Books discussed in this chapter had an important manuscript tradition in earlier centuries. In continental Europe, legal incunabula and early-sixteenth-century imprints included mainly the fundamental compilations of civil (Azo, Accursius, Bartolus, Baldus, Tartagni) and canon (Gratian, Hostiensis, Durantis, Panormitanus) law, setting out the curriculum of law studies, in which the text of the compilation was often surrounded by a comprehensive system of glosses, commentaries, summae, and collections of learned opinions produced for political authorities or private litigants in specific cases. But there were also some important works on customary law (e.g. the Saxon Mirror in German territories, Bracton and Littleton in England, Boutillier in France).

53 books, published between 1801 and 1950, illustrate the evolution of legal science in the nineteenth and first half of the twentieth centuries. The industrial revolution improved manufacturing methods and distribution dramatically. Some legal works became veritable bestsellers, running to various editions, and very often several translations, inspiring revolutionaries and legislators. Evolving National States and codifications had a major impact on legal doctrine. Different ‘schools’, like the German Historical School or the American Realist School, took very different views on the role of law and legal construction.

Adorned with several illuminated title pages, frontispieces and portraits of authors, an overview is given of the most important types of legal books during the Early Modern Era: commentaries, case reports, consilia, treatises… The introduction describes the role of printing centres and especially universities in the ‘booming’ legal book industry, and it shortly describes the different ‘schools’ and how these combined centuries old legal corpora iuris with new challenges. 84 particular books illustrate the most important evolutions in the formal presentation of legal books, in the use of Latin or the vernacular, in the influence of Church and State, and with regard to their legal content.