Theories of Statuta - An Interpretative History of the Conflict of Laws

Project: Research

Project participants


The book deals with the late medieval and early modern theory of (conflicting) statuta. This theory treats the question which of several local rights is applicable in cases that touch different legal systems. The origins of the theory lie in the writings of northern Italian jurists of the 13th and 14th century in which they deal with the applicability of city laws (statuta). Especially the writings of Bartolus and Baldus have been read and cited in wide parts of Europe since the 16th century. In many cases, however, they have not simply been adopted, but adapted to the local circumstances and legal situation of the author. The book shows that the theory of statuta in its different forms can only be fully understood against the background of the local concept of iurisdictio and the public and legal structures of time and place. To this end the book identifies three spaces in which the theory of statuta has special features. In 16th century France there is a strong focus on the territorium. As a consequence, Bertrand d'Argentré develops a theory of conflict of laws in which the lex fori is applicable in most cases and leaves the complicated differentiations of the commentators behind (§ 2). In the 17th century, Dutch jurists developed a theory of conflict of laws that still cited the older theories regulary but moved the own element of comitas into the center. Since the Dutch provinces aimed for their own sovereignty – and reached it in the Westfalian peace – they felt the need for an explanation why foreign laws should be applicabe at all (§ 3). The German jurists of the 17th century rejected wide parts of the Dutch and French theories and there are more parallels to the elder Italian theories again. This can be understood against the background of the German jurists being confronted with a legal pluralism that was quite comparable to the late medieval law (§ 4).