https://journals.phil.muni.cz/studia-historica-brunensia cs-CZ shb@phil.muni.cz (Studia historica Brunensia) journals@phil.muni.cz (Technická podpora OJS FF MU) Út, 31 pro 2024 00:00:00 +0100 OJS 3.2.1.4 http://blogs.law.harvard.edu/tech/rss 60 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39910 Přemysl Bar, Lenka Šmídová Malárová, Lukáš Führer Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39910 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39911 The paper deals with the role of the jury in Roman court proceedings. It presents the basic characteristics of Roman civil procedure in the classical period. It points out the differences between the older period of so-called proceedings by means of statutory actions (legis actiones) and proceedings by means of so-called procedural formulas. The emphasis is on the classical period of Roman law. The court proceedings of this period differ in substance from both the older and the Justinian proceedings. The judicial process of the Emperor Justinian is based on the type of extra ordinem procedure that was introduced during the reign of the Roman emperors. This procedure has all the characteristics of a modern judicial procedure – the trial is presided over by a professional judge, appointed by the State and trained in law, the legal effects of the proceedings occur when the action is served, there is a possibility of appeal within a hierarchical system of appeal courts, etc. The court proceedings under classical law are much less formal and based on greater cooperation between the parties; the parties themselves determine the conditions under which they will submit to the judge's judgment, and the state only authorizes the parties' agreement. The parties also choose the arbitrator in whom they have confidence and to whom they entrust the fate of their dispute. The arbitrator focuses not on the legal evaluation of the dispute, but only on proving particular facts that are alleged by the parties during the process. The arbitrator's judgment itself is as binding and immutable as that of a modern court and can also be – very quickly and effectively executed by the power of the state. Petr Dostalík Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39911 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39912 For the first time in legal history, the system of proof was developed in late medieval learned law. Legal historians have long debated the role of the judge within this system. Some scholars argue that the idea of legal evidence existed in Roman or canon law, suggesting that the judge's role in evidentiary proceedings was confined to determining whether the presented evidence met specific, rigid standards. Conversely, other researchers propose that this system operated under different assumptions, asserting that judges possessed greater discretion in evaluating evidence, and that legal doctrine provided a framework for shaping the judge's conviction. Both perspectives offer a range of arguments supporting them. In this paper, I aim to briefly review selected scholarly positions on this issue, present my own interpretation and propose research directions for further inquiry. Upon reflecting on the meaning of the ordo iudiciarius procedure, I contend that, at least in the context of canon law, there is significant alignment with the concept of legal evidence. Patryk Maćkowiak Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39912 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39913 Concerning arbitration many issues remain unsolved including the important question of its origin. Especially referring to the most important legal institution of the Roman-German empire, the kingship. Evidence of royal documents with structure and vocabulary clearly referring to the phenomenon of arbitration has been demonstrated for the first time in the second half of the 12th century. Nevertheless it remains open whether arbitration was already practiced in royal jurisdiction or prototypical forms at an earlier time. Considering these circumstances my contribution examines systematically the vocabulary, inner structure as well as the external form of charters in the time from Henry V to Conrad III to find evidence that could point to prototypes of arbitration. Furthermore contemporary historiography is also included. In summary this investigation showed that an earlier dating as the beginning of royal arbitration in the Empire to the first half of the 12th century is necessary. The identified legal phenomena could at best be summarised under the term "proto-arbitration". Felix Timmer Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39913 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39914 One of the common ways in which the Church (either individuals or institutions) settled its disputes in the Czech lands in the 13th century was through arbitration. This form of extrajudicial ettlement is documented by various types of charters in which different stages of the arbitration proceedings are recorded. This probe will focus on two questions: 1) What types of charters were produced in connection with arbitration in the 13th century and how do they look from a formal point of view? 2) What is the content of these charters and how does the content testify to the practice of arbitration in the Czech lands in the 13th century? Lukáš Führer Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39914 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39915 In medieval Bosnia, the existence of a unified legal code that defined the legal principles, duties, and obligations of the parties involved in a particular dispute was not recorded. One of the most significant relationships in the history of medieval Bosnia was the relationship between the ruler and the nobility. The rights and obligations of the nobles in relation to the ruler in the medieval Bosnian state were defined through the institution of "faithful service" on one side and "noble faith" on the other. Simply put, as long as the nobles faithfully served the ruler, they were secure and their possessions were protected. This article focuses on instances of treason against the ruler and the judicial body responsible for investigating charges and delivering judgments according to established legal customs. The nobles mentioned in the Bosnian charters played a role in defining the relationship between the ruler and the respective noble, as did members of the hierarchy of the Bosnian Church. The Bosnian Church was a religious institution formed in the territory of Bosnia after the displacement of the Catholic diocese in the mid-13th century and was first mentioned in the 1320s. It was considered a heretical movement by the Roman Church, and its followers were excommunicated. It was accepted by the Bosnian ruling dynasty of Kotromanić and by the majority of noble families. From the perspective of neighboring states, the hierarchy of this church was considered to be the authority characterized by exceptional moral values. The aim of this article is to provide the research results regarding the role of the head (djed) of the Bosnian Church in determining the culpability of Bosnian nobles during the 14th and 15th centuries. Enes Dedić Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39915 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39916 This paper deals with the question of to what extent alternative dispute resolution was reflected in the legal instructions issued by Brno City Council at the request of the towns that constituted the Brno legal circuit. For this purpose, the author selected the town of Uherské Hradiště as one such recipient of such legal instructions, since it has the most well-preserved agenda of these documents from the period of the first half of the 14th century up until the pre-White Mountain era. On the basis of these sources, it is possible to determine the extent to which the issue of alternative dispute resolution penetrated Brno's instructional practice. Lenka Šmídová Malárová Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39916 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39917 The submission analyses the arbitrary practice within two of the archbishop's representative offices in the diocese of Prague. It focuses on the arbitrary agenda as documented in the Acta iudiciaria and Acta correctoris cleri 1407–1410, which served as judicial records for the vicar general and the corrector of the clergy (the ecclesiastical criminal judge). These selected offices provide an insight into the application of general canon law in bohemian practice. Subsequently, the paper addresses three main questions. The first question pertains to terminology issues and the potential distinction between "Arbiter, arbitrator and amicabilis compositor" before the judge, particularly considering that these terms held distinct meanings under canon law. The second question delves into an overview of the cases and focuses on the status of arbiters and their compliance with canon law. In the final analysis, the paper explores the procedural approach of the vicar general and corrector of the clergy, offering insight into the practices at the turn of the 14th and 15th centuries. Given the nature of out-of-court litigation, the submission also comments on the methods of coercion used in the recorded cases and the punitive measures applied within the proceedings. Veronika Ondrášková Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39917 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39918 This paper focuses on the procedural manual Parvus ordinarius and its distinctive approach to conflict management. The work first appeared in Paris in two editions in the 1220s and 1230s. One of its copies, drawn up and glossed in the first half of the 14th century, was then brought to Bohemia. The main source for the study is this manuscript of the Parvus ordinarius, preserved until today in the National Library in Prague and bearing the reference VIII. G. 5. It has the advantage of being linked to a specific historical person who was demonstrably active in the legal profession and came to prominence during the Hussite Revolution (after 1419). According to the owner's note, the Parvus ordinarius from the Czech National Library at the Clementinum once belonged to Pavel of Slavíkovice. As shown in the first part of this paper, by 1436 Pavel had become a priest at the Church of St. Giles in Prague and a corrector, in other words, an ecclesiastical criminal judge who could benefit from the court manual in his daily routine. The second part of the text outlines the court procedure as reflected in the Parvus ordinarius. Here, the starting point of investigation is the basic triangle of persons involved in the proceedings before the court. In addition, principles and dynamics of the medieval Roman-canonical procedure are discussed, together with three fundamental procedural steps, i. e. a citation, a joinder of issue, and a final sentence. In the third part, a more detailed analysis of the doctrine of extrajudicial proceedings is conducted, drawing mainly on the rubrics de compromissione and de transactionibus and contextualizing the Parvus ordinarius with the teachings of medieval proceduralists. Jakub Razim Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39918 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39919 This case study examines the protracted dispute over confiscated property between the prominent merchant Henry Haiden of Vienna and his heirs on the one side and the city of Bologna and one of its citizens, Ercole Fantuzzi, on the other, which unfolded between 1438 and 1498. Thanks to the wealth of as yet unpublished sources stored in the Bologna archives, it is possible to reconstruct the individual phases of the 60-year conflict in considerable detail, to analyse the strategies pursued by the parties involved, and to identify the various legal instruments employed to obtain justice. On a broader level, this paper shows the possibilities and limits of transalpine dispute resolution in the late Middle Ages, which was necessarily conditioned by the interplay between trade and diplomacy, law and politics. Ondřej Schmidt Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39919 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39920 The paper deals with federations and alliances in the late medieval Swiss Confederation, where cohesion was established by leagues and common interests. From the 13th to the end of the 15th century, the alliance landscape became so dense, that new treaties had to be carefully fitted into the existing hierarchy of alliances. Within the alliances, clauses on arbitration and its procedures took up more and more space. Thus, a dense network of a contractually defined "arbitration landscape" developed. The task of the arbitration courts was, on the one hand, to ensure the long-term validity of the alliances and, on the other hand, to be flexible enough to deal with changing power positions and to keep pace with the development of the legal framework. Older legal historical research even went so far as to see the arbitration system as the core of Swiss federal law. The focus is on a series of alliances between the two cities of Bern and Fribourg, which is used to illustrate the development of arbitration courts. The bilateral contracts of 1243, 1271, 1341, 1403 and 1454 show as an example how arbitration develops. Examples from the surrounding Alpine and pre-Alpine regions involving one of the two cities demonstrate the widespread use, procedural differentiation and regional importance of arbitration courts. Heinrich Speich Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39920 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39921 The rule of Emperor and Roman King Sigismund of Luxembourg in the Holy Roman Empire is considered weak because it could not rely on its own imperial principality. Therefore, the ruler had to base his policy towards the princes and cities of the empire on his royal dignity and the royal prerogatives. Among these privileges belonged the position of the Roman King as supreme feudal lord and judge of the imperial princes. The role of judge was increasingly exercised by the Roman king in the late Middle Ages in the form of arbitral tribunals. This article examines the court proceedings that Sigismund conducted as Roman King in the disputes between the Dukes of Bavaria – as a judge, but above all as an arbitrator. The most important question is whether the king instrumentalized his position as arbiter for his own power-political interests with regard to Bavaria and the Bavarian dukes of the Wittelsbach dynasty. In particular, the correspondence between the Bavarian dukes and between them and King Sigismund is examined. It is revealed that Sigismund did not consistently exploit the opportunities of his position as judge and arbitrator to his own advantage. Nevertheless, the Bavarian dukes saw the danger of the king's influence in Bavaria and tried to find alternative variants for suitable arbitration tribunals. Uwe Tresp Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39921 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39922 In this paper, we demonstrate a computer-aided analysis of charter material on arbitration. We apply a soft classification and analyze feature importances in order to quantitatively identify potentially significant formulas of arbitration charters. More specifically, we identify the previously little-noticed formula de alto et basso as particularly characteristic and qualitatively trace the path of its inclusion in late medieval charters on arbitration. This exemplary experiment lays the foundation for future research in this area, which could incorporate more diverse and multimodal approaches, including the (semi-)automated analysis of visual elements such as seals, writing materials, or fonts. Daniel Luger, Florian Atzenhofer-Baumgartner Copyright © https://creativecommons.org/licenses/by-nc/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39922 Út, 31 pro 2024 00:00:00 +0100 https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39923 Klara Hübner Copyright © https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode.cs https://journals.phil.muni.cz/studia-historica-brunensia/article/view/39923 Út, 31 pro 2024 00:00:00 +0100