Monthly Archives: November 2010

At the core of law

November is almost passed. People start looking back at this year, and prepare for the coming holidays and search for gifts to present. Looking for new books I could not help spotting a book with a title that made me frown, willynilly, for better or for worse. After a second I realized the title was not at all a surprise. It could be reasonably expected that after so many books starting with The canon of…. someone would present a book with the title The canon of law. The Dutch juridical publisher Ars Aequi Libri has published a volume entitled Canon van het Recht (“Canon of the law”), edited by R.J.B. Schutgens and others. The volume with 260 pages contains fifty essays published earlier in their monthly journal Maandblad Ars Aequi. The blurb about the book states that Corjo Jansen and Jan Lokin, both legal historians, were involved in choosing subjects for the essays. You might notice that the editors hide themselves behind abbreviated Christian names, but the authors’ names are stated in full…

Let’s have a brief look at the historical subjects considered worthy of inclusion in this volume. In chronological order appear Justinian, Irnerius, Grotius, the Dutch East India Company, Beccaria, the French Revolution, the first national codifications of the nineteenth century, the constitutional monarchy and the Historical School. With the trias Diephuis, Opzoomer and Land, famous for their commentaries on the Dutch code of private law that came into function in 1839, the list of items seems to focus only on Dutch matters, starting with Johann Rudolph Thorbecke and the 1848 constitution. However, The Hague gets an article as a center for international law, and the essays about the European Convention on Human Rights, the decolonisation of Indonesia, the Maastricht Treaty, the start of European competition law and the role of legality in modern law prevent the volume from becoming an exclusively Dutch, and worse, an utterly provincial book.

How should one criticize this selection of historical milestones? Instead of picking at the choice of subjects I would prefer looking at the title. Historically a canon is a guideline or rule. Canon law is a system of law which is constituted of such rules. This volume would be much more interesting with an introduction to the juridical concept of a canon, not to mention some decent treatment of the history and influence of canon law. Legal procedure, administrative law and matrimonial law are just a few fields to mention. I am perfectly aware that any selection of major subjects in legal history has severe limits, but in creating a canon of law one exposes these limits even more. The narrowing of subjects to one country and the stress on the last century are understandable, but this technique tends to create a tunnel view. To me these modern canons seem to foster a false sense of identity and certainty which sacrifices the continuities and discontinuities of history, of histories in plural really which interfere with each other.

The Dutch vogue for historical canons started with the canon for Dutch history in 2003 constructed by a team of scholars. The main aim was to establish a series of key facts, subjects and events in Dutch history to be taught in schools at the primary and secondary level. The Dutch Republic of the seventeenth century, Grotius, The Dutch East India Company and the constitution of 1848 figure in this canon. It is interesting to compare it with the online timetable of Dutch history created by the Institute for Dutch History in The Hague.

For whom does one publish a volume of essays on major legal developments through the centuries, either worldwide or centered around the history of one country? Is it only meant for law students who are happy to have survived obligatory courses in legal history, or for lawyers who want to dip a bit into legal history for their leisure? Perhaps such a volume can induce people to look further and better, and one cannot object against this. These essays were published originally in a monthly legal journal. Ars Aequi invites readers to comment on the essays. At least there is a second chance to read them and to be amused or annoyed by the vogue of historical canons. Asking to define the core of law is a perennial quest. It means posing a valid and necessary question never to be answered easily.


An old boundary

What happened to the walking historian? Lately I did not often go for a walk. During springtime I made several long walks, and I promised to keep a story about one of these walks in stock.

In February Janjaap Luijt published a short note ‘De leeuwenpaal: grensconflicten tussen Utrecht en Holland’ (The lion’s post: boundary conflicts between Utrecht and Holland) in the journal Oud-Utrecht 81 (2010) 10-11, the first of a series of short articles on boundary-posts in this journal of the historical society for Utrecht Oud-Utrecht. On the cover of this issue two men pose in historical costumes in front of one of the old boundary-post discussed by Luijt.

An old boundar-post along the Hollandsche Rading

An old boundary-post along the Hollandsche Rading

I would like to add some information to Luijt’s article which clearly was meant to introduce the subject and to point to the present situation of these objects. Luijt sketches their history. The sixteenth-century posts were renewed in 1719, and eight of them again in 1925. Luijt mentions the 1531 peace treaty on the boundary between Utrecht and Holland. The Great Council of Malines also had to give judgment about the exact boundary. J.M.I. Koster-van Dijk published Gooilanders voor de Grote Raad 1470-1572 (Amsterdam 1979) in which she dealt with all cases brought before this court concerning the Gooiland, the most eastern part of the medieval county of Holland. Many historians have written about Gooiland.  On May 21, 1541 the Great Council pronounced an important verdict on the disputed boundary between Utrecht and Holland.

The boundary-post on the picture I took in early spring is situated at the Hollandsche Rading, a field name which literally means “The boundary of Holland”, a straight line in the landscape, nowadays part of the border between the provinces of Utrecht and North-Holland. The forest in the background is called Einde Gooi, “The End of Gooi”.

A team lead by Thom de Smidt and the late Jan van Rompaey published six volumes with calendars of the verdicts given by the Great Council of Malines between 1465 and 1581. In the fourth volume of the Chronologische lijsten van de geëxtendeerde sententiën (…) Grote Raad van Mechelen (Brussels 1985) it is indicated at no. 11 that several dossiers of one of the highest courts of the Low Countries refer to the 1541 case. The Werkgroep Grote Raad van Mechelen, the team of legal historians that has done so much to enlarge knowledge about the Great Council of Malines, published several books on cities, regions and even one on a country and their cases decided at Malines, for Haarlem, Amsterdam, Leiden, Gooiland, Delfland – the region around Delft – and Portugal. Checking the inventories of archival collections at Het Utrechts Archief made it clear that one could harvest also a nice number of cases concerning the city and diocese of Utrecht. Due to the renovation of the main Utrecht archive building it will not be easy to do research on the history of Utrecht in the near future. As always, some sensible planning and patience will help more than complaining about this situation. For this posting on boundary-posts it is clear how the presence of these historical objects can make one curious to know more about the history to which they refer.

Law, land and art

Law and the humanities, a subject likely to show up on my blog. However, this post has not as its first objective praising seminars on Law and Humanities, nor is it my goal to push anybody to start reading Martha Nussbaum’s Not for Profit: Why Democracy Needs the Humanities, though this is certainly a good idea. I hesitated myself when art came into my view for a post on legal history, but in fact a work of art was already a central element of my latest post.

This time I want to write about art objects with legal power. Kings and emperors had their sceptres, often beautifully crafted, and now often on display in museums around the world. However, the art objects to be discussed here empower people. They express their claim to lands that in times beyond written memory belonged to them.

The Aboriginal Art Museum Utrecht

The Aboriginal Art Museum Utrecht at the Oudegracht

In 2001 the Aboriginal Art Museum Utrecht (AAMU) was founded, the only museum in Europe which specializes in works of aboriginal art. Apart from its own collection the AAMU houses an art gallery. The AAMU held in 2005 an exhibition titled Law and Land. Art of the Spinifex People, which until then had been on tour through Australia. The Spinifex People who live in the Great Victoria Desert in Western Australia decided in the nineties of the last century to put forward a land claim. To support it they created in 1998 two Native Title Paintings, interestingly one by men and one by women. In 2001 the Western Australian Government accepted under the Spinifex Land Agreement the claim of the Spinifex People as decided by the Federal Court of Australia (FCA 1717; November 28, 2000).

Exhibition catalogue "Law and Land"

A fragment of The Women's Native Title Painting

The area of land to which the Spinifex Land Agreement applies covers 55,000 square kilometers, almost twice the size of The Netherlands. The concept behind the native title paintings is well-known thanks to Bruce Chatwin’s novel The Songlines (1987), a masterful evocation of the Australian landscape, Aboriginal culture and its struggle to survive in modern Australia. The Aboriginal people described in songs kept secret to outsiders in sometimes minute detail the landscape of their country. Perhaps one should think of the title paintings more as evocations than of straightforward representations of geographical elements. The Spinifex Native Title Paintings lead in 2001 to the start of the Spinifex Foundation which promotes the arts.

The Spinifex people had to leave the northern part of their land in the fifties because of British nuclear testing. This made it difficult for them to show continuous habitation following normal procedures for land claims. The 2000 agreement does not apply to the natural resources found in the region during the twentieth century, and thus for instance the rights of mining companies are not touched by it.

The Spinifex Native Title Paintings form a landmark in Australia’s legal history equal to the first admission of aboriginal documents in 1963, the Yirkalla bark petitions. In the late eighteenth century the view came into existence that Australia was terra nullius, land belonging to nobody, and this doctrine held sway for over two centuries. Only in 1992 the Mabo Case put an end to this doctrine (HCA 23; 175 CRL 1 (June 3, 1992)) in which verdict the concept of native title was recognized.

Much more can be said about the rights of the Aboriginal people and other indigenous Australian people. When I added some Australian addresses to my link collection of digital libraries it dawned upon me that some Australian things just happen to be in Utrecht, near at hand. The AAMU is worth a visit, although I could not help remembering immediately Chatwin’s description of Australian artists because of the presence of an art gallery. While musing about Chatwin’s view it would do more justice to say that people can be as versatile as the Australian Spinifex plant (Triodia pungens) which can be used in several ways. In order to survive in a desert, and more specific in the Nullarbor region, you simply have to be able to cope with different situations in different ways. Making traditional culture and land survive can call for unorthodox methods. Using art as an argument in law calls for fresh thinking, and this post is only meant as a glimpse of more. Anyway, today I liked to think about the desert on a particular rainy and stormy day.