Sebastiaan Vandenbogaerde

Introduction

Inhoudstafel

1At the end of 2013, the Centre d’histoire judiciaire (Université Lille 2), conjointly with the Instituut voor Rechtsgeschiedenis (Universiteit Gent) and the Centre de recherches en histoire du droit et des institutions (Université Saint-Louis-Bruxelles), organised a workshop on French-Belgian legal periodicals. This resulted in a two-day conference called European legal periodicals (19th-21st Century). Legal, political and cultural challenges.

2On November 8, 2013, on the first day of the conference, which occurred in Ghent, historians, legal historians and literature scientists discussed Belgium’s legal periodicals across the centuries1. The second day, in Lille, on December 6, 2013, they addressed a rather wide scope of topics on colonial publications2. The most important conclusion of the first conference day was that interdisciplinary research can contribute a great deal to the methodology and approaches used to study legal periodicals. Legal historians are not familiar with those methodologies and approaches, whereas historians or literature scholars are not very familiar with the research object. This volume of Cahiers du centre de recherches en histoire du droit et des institutions publishes a few of the papers presented at the Ghent conference and tries to kick-start a new discipline in the arts : legal periodical studies as a subdivision of the broader periodical studies.

Legal periodicals : no need for a definition ?

3Each cross-century study on periodicals encounters terminological problems. Terms, such as periodical, journal, magazine, publisher, author and editor, have changed since the eighteenth century3. The parts that publishers, authors and editors played were less divided than they are now. Subscriptions, as we know them today, were non-existent. Readers paid only for the paper4. If even the basic term periodical is hard to define, what about the difficulty of defining a legal periodical ?

4Adequate definitions of what constitutes a legal periodical seem very hard to find. Almost every study approaches this topic differently5. Evidently, one can wonder whether a legal periodical can be described and whether it is even desirable to describe it. Jurists seem to have reached some sort of consensus about the titles that qualify as legal journals. It is most important to realise that the character of periodicals – including legal ones – has changed over the centuries6. Initially, they had a broad focus, which slowly became more specialised, along with the on-going juridification of society7.

5Nevertheless, it seems very appropriate to identify a few criteria with which legal periodicals must comply. There are a few general criteria – which are inherent to all periodicals – and a few specific ones, which are applicable only to legal periodicals.

6Periodicals are published according to a certain frequency. Literature scholars agree that a publication having only one issue per year cannot be considered a journal8.

7Specifically, legal periodicals need to be legal, and this can be determined by examining its actors. Do jurists publish it ? Are its readers jurists ? Also, the content can be legal. Classical legal periodicals contain three sources of law : doctrine, case law and legislation. Of course, one may wonder whether a journal that only publishes legislation qualifies as a legal periodical.

Legal periodicals : more than mirrors ?

8In 2006, Sean Latham (University of Tulsa) and Robert Scholes (Brown University) published their ground-breaking Rise of periodical studies, which discussed the emergence of a new discipline in the humanities and humanistic social sciences : periodical studies9. Driven by the cultural turn in language and literature departments, recent technological developments, such as digitisation, which have increased the potential number of titles available for research, and debates in academia about the rankings of journals, periodical studies are on the frontline of literature science. More than ever, (literature) historians are convinced of the social role that journals, magazines and periodicals play10. The focus has been mostly on literature titles, which has pushed legal periodicals to the background. A bias viewing the latter as merely a professional magazine with no real policy has caused this lack of interest.

9However, during the 1960s, some Belgian jurists saw the potential of researching journals for legal history. Glancing through the pages of successive volumes offers a unique image of how law has evolved over a longer period of time11. In a way, they offer a window on law, or they are mirrors or seismographs of law12. This is based on the belief that periodicals contain more than monographs or textbooks ; rather, they reveal the living law13. Literature scholars and historians have abandoned the mirror metaphor ; rather, they have upgraded periodicals to active participants in society that, among other things, react to each other14. Instead of mirrors, they are vectors. Without engaging in a semantic discussion, a vector has to be understood according to its most fundamental meaning. Periodicals are spreading or transporting ideas. In various ways, they offer editors and authors the opportunity to spread their message. In doing so, periodicals shape thinking about the law in the broadest way. In addition, this means, almost inherently, that complete neutrality, which is often asserted in an editorial, is revealed to be an illusion. Some legal periodicals in Belgium are notorious for selecting certain case law, and in doing so, imposing a vision of how legal practice should deal with cases15. Everyone should be aware that legal periodicals are anything but neutral, and that the choices of editorial boards may have a determining impact on legal development. This alone is a reason to plead for a better understanding of the history of legal periodicals, not only in Belgium, but also elsewhere in Europe.

State of the art

Law reviews in the Anglo-Saxon world

10Since the 1930s, especially after Fred Rodell’s Goodbye to Law Reviews (1936), law reviews have been questioned throughout the entire Anglo-Saxon world16. Legal periodicals, meaning journals not published by students for students, have not received the same level of interest17. On the European continent, the difference between law review and legal periodical is non-existent. This might explain the late start of research regarding the history of legal journals in Europe.

Legal periodicals on the continent

11In 1983, Italian professor and supreme judge Paolo Grossi organised a three-day conference on La cultura delle riviste giuridiche Italiane. A year later, he published the papers18. Grossi wanted to examine whether legal culture is reflected in legal journals19. He suggested several questions to his colleagues, who were asked to discuss the most important titles in their fields of law. The following were amongst these questions : Who were the actors ? Are they impartial sources that discuss all of the trends in the legal world, or do they adhere to a certain vision ? Is that vision a specific political one ? Grossi wished for his initiative to be copied all over Europe. Thus, four years later, Parisian professor André-Jean Arnaud published La culture des revues juridiques françaises20. Both works discussed the most important legal periodicals in various legal branches. In Latin America, a similar work followed21. The set of questions provided by Grossi did not result in uniform work. Some authors collected legal titles in a database and distilled some general trends, while others confined themselves to one or a small selection of titles. The heterogeneity of their approaches made it more difficult to reach general conclusions about the culture of legal journals. Despite these flaws, interest in legal journals was also kindled in the Low Countries, but there, more case studies were published22.

12Beginning in the 1990s, German scholars, particularly those connected to the Max Planck Institut für Europäische Rechtsgeschichte, engaged in new research. The Handbuch der Quellen und Literatur der Europäischen neueren Privatrecht Geschichte, edited by the renowned professor Helmut Coing (1912-2000), was the sound basis for Gedruckte Quellen der Rechtsprechung in Europe (1800-1945) in 1992, which provided an overview of the legal periodicals in sixteen European countries23. Although it was nothing more than an inventory with technical descriptions of the recorded titles, this work has been very valuable for heuristic purposes. Ernst Holthöfer catalogued all of the periodicals from the Benelux countries. Well aware of the shortcomings of this inventory, a year later, he published a synoptic work, although he did not frame the journals in their historical background24.

13Frankfurt remained the centre of periodical research, as a few years later, professor Michael Stolleis, together with his German colleagues, examined the history of German legal journals, which he labelled the “neue Medien des 18.-20. Jahrhunderts”25. A logical step to the European level followed in 2004, when professor Stolleis invited experts from several European countries to discuss the national legal periodicals. The book mentioned that “das Thema der juristischen Zeitschriften damit bei weitem nicht erschöpft ist, aber wir meinen, die damit gegebenen Impulse sollten ausreichen, um detailliertere Studien anzuregen”26. A few national studies followed this call for more detailed case studies27.

14In 2007, Katharina Saleski published her doctoral thesis, Theorie und Praxis des Rechts im Spiegel der frühen Zürcher und Schweizer juristischen Zeitschriften, on Swiss legal periodicals28. To reconstruct the legal culture, Saleski selected four titles published between 1833 and 1874 in Zurich, the legal centre at that time, and the three main on-going titles. She looked at how legal journals functioned and the role they played in the development of legislation, case law and politics. She concluded that Swiss legal periodicals had contributed to the formation of the law. On the one hand, by publishing case law, they brought legal certainty. On the other hand, they tried to bridge the gap between scholarship and legal practice. The question is whether the same can be said about Belgium’s legal periodicals. Like Switzerland, Belgium is a federal state that is confronted with several language communities. Unfortunately, Saleski focused on German legal periodicals and did not report on any possible linguistic problems.

15In 2011, Monika Krupar published Tschechische juristische Zeitschriften des 19. und 20. Jahrhunderts, which was primarily intended to reconstruct the political and historical development of Bohemia up to 191829. Her research was based on a limited number of journals, all published in Prague, which was a centre of nationalist culture during the nineteenth century. Jurists and their periodicals played an important role in disseminating Czech national feeling by publishing in the Czech language. At that time, German was an elite language, whereas the local population used Czech. Editors referred to the country’s rich past, hoping that Czech national feeling, and eventually, independence - which arrived in 1918 – would emerge. In this way, a parallel with the Belgian situation, with a differentiation between French and Dutch, can be easily drawn. Krupar concluded that the periodicals were initially modelled on German examples.

16The research activity of the Estonian University of Tartu is remarkable. Members of the legal history department have organised a number of conferences on legal periodicals, which resulted in a special issue of the journal Juridica International30. Further, the research on legal periodicals in Poland must be mentioned31 and an overall study on Belgium has been finished recently32. In France, publications are ready to be published33. Derived from those national histories, the field of colonial legal periodicals questions the role these titles and their editors played in implementing a new legal system in colonies in Belgium and France34. Also other specialist titles, such as criminologist and penal law, which appeared in large numbers at the end of the nineteenth century and early twentieth century all over Europe, have been studied35.

Legal periodicals in Belgium

17Researchers who examine Belgian legal periodicals can use several tools, including bibliographic reference works. At the end of the nineteenth century, the well-known Brussels lawyer Edmond Picard (1836-1924)36 and his good friend, publisher Ferdinand Larcier (1852-1889)37, collected all Belgian legal publications for the period 1814-1889. This bibliography, which provided a full list of the journals available to Belgian lawyers at that time, allows modern researchers to retrace supposedly lost periodicals. A few years later, an addendum was published. Then, it was not until after World War II that Charles Van Reepinghen (1903-1966)38, the post-war editor of the Journal des Tribunaux commenced the annual publication of the Recueil Annuel de Jurisprudence Belge (now Permanent Overzicht van Juridische Tijdschriften/Recueil permanent des revues juridiques), which, in the 1980s, was followed by a Dutch counterpart, Tijdschrift voor Rechtsdocumentatie. Both reference journals laid the foundation for all kinds of electronic databases.

18In addition to the compilation of bibliographies, editors often tended to commemorate the establishment of their periodicals. For instance, the Tijdschrift voor Privaatrecht and the Journal des Tribunaux systematically celebrated each lustrum. These editorial contributions are often short and are not always objective. Other legal titles were less attentive to their own history. The monumental Rechtskundig Weekblad devoted only a few pages to its history on its twenty-fifth and seventy-fifth anniversaries39. Sometimes, editorial boards contacted experts to write a commemorative article, such as the Tijdschrift voor Notarissen, which celebrated its three-quarters of a century of existence in 201240. The same occurred at the fifty-year anniversary of Tijdschrift voor Privaatrecht41. Some journals attracted attention simply because of their outspoken prestige and infamy. In Belgium, this seems to have been the case for the Journal des Tribunaux42, among other things, because of its famous founder, the aforementioned Edmond Picard. At the end of the nineteenth century, he moved into the world of politics, academics, the judiciary and fine arts43.

19These specific studies outnumber the general studies, and if there are any, they are rather limited. Geertrui Van Overwalle published, on the twenty-fifth anniversary of Tijdschrift voor Privaatrecht, a modest analysis of the legal journals published in Dutch in Belgium44. She discussed the (official) publication of legislation, case law, legal doctrine and reference journals, but did not reach any major conclusions. Her article is of great interest, because, until that date, the list had been published only in a footnote. Almost twenty years later, the first decent legal historical research was conducted45. In 2006, Juristische Zeitschriften in Europa appeared, which assembled the papers of the aforementioned seminar, which had been held two years earlier at the Frankfurt Max Planck Institut für Europäische Rechtsgeschichte. Ghent legal historian Dirk Heirbaut briefly sketched the history of Belgium’s legal journals. He did not conclude on a positive note, but stated that all of the periodicals followed the French model, not really specifying what this model was, except that it served practical matters. Consequently, the author deemed Belgium’s legal periodicals to be “an example of the failure of legal scholarship in the country”46. Bluntly, no one considered those findings47. It was not until 2014 that there was a general study on Belgium’s legal periodicals.

Belgium’s legal periodicals : responsive instruments of editors48

20Belgium’s most influential titles proved they were more connected to each other than one would suspect. They – or, more accurately, their editors – responded to certain evolutions in society or in the legal world. When La Belgique Judiciaire – the mother of all legal periodicals in Belgium – was established in 1842, it sought to do something about the hegemony of French titles in the country. Its nationalist vision voiced a need that was felt by Belgian legal practitioners to have their own title. In its wake, specialised titles followed, which again, was a reaction to the generality of La Belgique Judiciaire. When the latter literally became fossilised, because the founding editors grew older, a new initiative encouraged Belgium’s nationalism.49 The Journal des Tribunaux (1881-today) was established when Belgium turned fifty, and the country was overwhelmed by a new wave of patriotism. King Leopold II had transformed Belgium almost single-handedly into an important international player, both economically and politically. He used Congo as an important resource market, and the wealth reflected itself in Brussels, which became, with its new palace of Justice, the centre of the legal world. This optimism was reflected in the Journal des Tribunaux. It is notable that the network underlying this journal initiated periodicals on colonial law. In that very same era, another cluster developed. Dutch-speaking jurists profiled themselves as guides for the oppressed Flemish people, who were not accepted by the Belgian government in their own language. This resulted in several legal periodicals paving the way for the most important Dutch title : the Rechtskundig Weekblad. The latter was established in 1931 as part of a full linguistic war. It sought to be the Dutch counterpart of the Journal des Tribunaux and, during its first years, it was formally a copy. Once the Dutch legal periodical was settled in Belgium, it was able to pursue new goals : legal science in Dutch. In this context, we see that, first, the Revue Critique de Jurisprudence belge (1947) was established, and in 1964, the Dutch Tijdschrift voor Privaatrecht was founded as a reaction50. This brief history demonstrates that Belgium’s legal periodicals must be understood in connection with each other and in connection with broader Belgian history.

21Journals are on the crossroads of several actors, including their editors, authors, publishers and readers. It is striking that the founders of legal periodicals often have noble intentions, as they believe that the existing journals are insufficient, and that only their initiative can fill the gap. Yet they are not entirely altruistic. Journals are a way to promote themselves within their environment. Bourdieu described this as symbolic capital, something that all people ultimately seek. Heading a journal offers a certain prestige and authority51. Nevertheless, this job is not to be underestimated, as it is a relentless struggle to meet deadlines and fill issues with interesting information. Not surprisingly, many journals can be called literally “the journal of...”, as many founding fathers suffer from what psychologists call the founder’s syndrome or founderitis. The original editor-in-chief sees hard times and leaves his child to others, with all its consequences.

22The strong commitment of the founder-editor inflicts a form of nepotism, which is defined in sociology and historiography as social reproduction, and leads to so-called editorial dynasties. Most of the time, the editor appoints his own successor, whom he believes is worthy to head the journal and to maintain its (initial) goals. In practice, the editor recruits his companions in his own personal-professional environment, where family ties and friendships are very important.

23We formulated a hypothesis on the role of legal journals in the creation of a specific legal culture, which is connected to State-building. From our perspective, legal journals participate in the definition and the dissemination of a legal culture. Especially when a study is delimited to the Belgian experience, historians are confronted with a very tight microcosm, highly intertwined, but limited in size, due to the availability of trained jurists on the market. Untangling this web means paying attention to successive generations of jurists trained in French, in Brussels, Ghent, Louvain and Liège, who were active practitioners, as lawyers, magistrates and civil servants ? The selection of case studies collected in this issue tends to translate this hypothesis. It justifies the rather large chronological framework and the thematic diversity. At first glance, colonial legal journals do not appear to be connected to Belgian social law journals. The two case studies devoted to the Journal des Tribunaux document the pre-eminence of the weekly publication, transforming the journal as a milestone, either as a franchise or as an opponent.

24Perceived as a paragon of Brussels high society, animated by strong personalities who successively and successfully (re)defined the scope of the journal, the Journal des Tribunaux became a brand and a benchmark in Belgian legal culture, or perhaps in a French-speaking subculture, if the Belgian qualification is contested or if it is less appropriated today than it was in 1890, 1920 or 1950.

25In such a small world, the circulation of scientific debates on crucial legal topics could also participate in political discussions, fuelling parliamentary debates and, rarely, influencing legislative decision-making procedures or judiciary activities through case law publication and annotations. This could express the pragmatic aspect of legal journals, as tools for life-long learning instruments, especially in new legal territories, such as colonial and social law. As training offered in universities or their equivalents might not be fully adapted to daily practice, legal journals spread technical information.

26Legal journals contribute to the creation of a national legal order, which progressively differentiates itself from its neighbours’ legacies (French, German and Dutch models) in the logic of State-building. At the same time, they also assist in the management of a legal legacy in order to transform and adapt it to new situations. In that sense, the great originality and inventiveness of the editors of legal journals who were active in Belgium translates the mix of traditions and cultures, the capacity to imagine new legal categories in order to sort out emerging issues. Due to the long-lasting tradition of multilingual habits and to the geographical position of Brussels and Belgium at the heart of Western Europe, it should not be a surprise to find Belgian representatives at the forefront in fields of legal specialisation.

Voetnoten

Om dit artikel te citeren:

Over : Sebastiaan Vandenbogaerde