Civilian Treatises on Presumptions, 1580-1620
Giuliani, A. “Civilian treatises on presumptions, 1580-1620,” in R. Helmholz (ed.), The Law of Presumptions: Essays in Comparative Legal History (Comparative Studies in Continental & Anglo-American Legal History, Duncker & Humblot, Berlin, 2009), pp. 21-71
28 Pages Posted: 19 May 2016 Last revised: 20 Jan 2017
Date Written: 2009
This essay argues that some practice-oriented works published between 16th and 17th century sometimes had a place in the formation of high-level legal theory.
Focusing on some major treatises on presumptions, the aim is to show that they were the carriers of a new vision of judicial procedure, which has come to be embodied in a number of fundamental ideas, such as (i) the separation between law and fact, (ii) the judge’s subjection to principles of reasoning, and (iii) the centrality of will as an autonomous source of contractual obligation.
The aim of this essay is to sketch the contribution made by such treatises to the genesis of those three ideas.
Keywords: presumption, inference, evidence, legal reasoning, ius commune, judiciary
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