Acta Universitatis Lodziensis. Folia Iuridica, 99, 2022
https://doi.org/10.18778/0208-6069.99.03

Frederik Dhondt^*

https://orcid.org/0000-0001-9999-5658

John Gilissen and the Teaching of Legal History in Brussels^[1]

John Gilissen i nauczanie historii prawa w Brukseli

In the following contribution, I present a reconstruction of John Gilissen’s (1912–1988) academic contribution to legal history, with a focus on teaching, based on fragmentary files kept at the archives of the Université libre de Bruxelles (ULB) and Vrije Universiteit Brussel (VUB).^[2] After a brief biographical introduction (1), an overview of his academic career and experience in the seminal period of the Second World War (2), and the blossoming of his research from 1950 on (3), the focus will be on the remains of his teaching at the ULB and VUB (4), administrative responsibilities (5) and his central role in many academic networks (6). Finally, I will briefly signal the enduring legacy of this predecessor on the teaching of legal history in Brussels today.

1. LIFE

Professor Jean-Joseph (“John”) Gilissen (1912–1988) was born just before the outbreak of the Great War. He studied in Brussels and Antwerp (high school) and enrolled at the predominantly French-speaking Université libre de Bruxelles as a law student in 1930. He simultaneously pursued studies in law and history, to obtain the degree of doctor of law in 1935 and master (licencié) in history in 1934. As a historian, his master thesis treated the law of contract according to the law applicable in the county of Flanders and the duchy of Brabant in the thirteenth century. As a historian, Gilissen was influenced by his masters, the early modernist Paul Bonenfant (1899–1965, see Despy 1989)^[3] and the specialist of Ancient Egypt Count Jacques Pirenne (1891–1972, see Gilissen 1979, 9).^[4]

Gilissen mastered both Dutch and French, a relatively rare quality among the academic staff of the ULB (Ingber 1983, XII).^[5] He published and taught in both languages. When he grew up and studied, the linguistic question rocked Belgian politics. Dutch had only been recognised on par with French as a legal language in 1898 following the so-called Gelijkheidswet, literally: “equality law” (X 1959). University teaching in Dutch commenced at the law faculties of Brussels and Ghent in the 1890s, since the use of Dutch had been allowed in criminal procedure in 1873 (Prayon-Van Zuylen 1892). Further reforms were demanded after the Great War.^[6] Right after the conclusion of the armistice on 11 November 1918, King Albert I announced in Parliament that equality in rechte en in feite (“equality in law and fact”) would be established. Universal male suffrage was introduced contra constitutionem for the elections of 1919, and the King promised that the State University of Ghent would switch to exclusively teaching in Dutch. This was part of the moderate Flemish nationalists’ aim to establish a linguistic border, and apply the territoriality principle.

The following seven decades of Gilissen’s life would see the transformation of the unitary Belgian state to a federal state, and the end of bilingual universities. Whereas the ULB counted a Dutch-speaking section in the 1930s, the university “disintegrated” and split in 1969 (Tyssens 1995, 28; Baeteman, De Vroede et al. 1987). This should be situated against the background of the global student revolts of 1968.^[7] In Belgium, student protests were translated in the separation of the Catholic University of Leuven, with the French-speaking section moving to an entirely new city, Louvain-la-Neuve. In Brussels, the standalone VUB (Vrije Universiteit Brussel) was created, with its own law faculty, as the logical continuation of the Dutch-speaking courses organised in the ULB before. The VUB moved to a new campus, a quarter of an hour on foot from the ULB’s main site at the Solbosch, built for the universal exhibition of 1910. Both institutions would share this former military exercising site.^[8] Gilissen was one of the rare professors to continue teaching in both ULB and VUB. Only a couple of joint initiatives survived the split of the university, such as the Studiecentrum voor de Verlichting, but not for very long.^[9]

He received honorary doctorates from the universities of Lille (1965), Strasbourg (1970) and Paris (1974), was a member of both the Belgian (Flemish-speaking, 1956) and Dutch (1976) Royal Academies and was distinguished with the Grand-Cross of the Order of Orange-Nassau. Gilissen founded the Société internationale de droit pénal militaire et de droit de la guerre, the Association internationale d’histoire du droit et des institutions and the Centre d’histoire et d’ethnologie juridiques. The latter centre, based at the ULB, published a seven-volume Introduction bibliographique à l’histoire du droit et à l’ethnologie juridique.^[10]

We cannot omit one crucial episode in Gilissen’s extra-academic career. On 8 September 1942, pursuant to the closure of the ULB, Gilissen had been dismissed as chargé de cours, at the order of Nazi-commissioner Petri.^[11] He remained as an assistant public prosecutor.^[12] At the end of the second World War, the young assistant public prosecutor joined the ranks of the military courts and tribunals to prosecute wartime collaboration with the German occupant.^[13] These procedures took place in the military councils and courts.^[14] Gilissen acted at the appeals level, in the Brussels Military Court, which attracted the attention of both Dutch- and French-speaking media.^[15] Incidentally, his name appeared in press reports on the cases of famous collaborators, such as the former president of the Socialist Party Hendrik De Man (1885–1953), who was sentenced by default to twenty years of imprisonment by the War Council on 12 September 1946. Le Soir reports that Gilissen, as assistant chief military prosecutor, requested a revision of the verdict by the Military Court, because De Man’s “malicious intent” (intention méchante) would have been insufficiently taken into account. He had drawn up a note on the Belgian Workers Party for the occupant’s authorities, from which Gilissen (as prosecutor) derived a défaillance encore plus grande que celle de Degrelle, the latter being a far-right French-speaking politician, who had already been an outspoken fascist before the war (De Man 1927; Conway 1993; Stutje 2018). Gilissen requested a life sentence for De Man, albeit with the alleviating circumstance that De Man had come to modify his attitude afterwards. The Military Court confirmed the earlier sentence of twenty years.^[16] Another illustrious trial where Gilissen acted as prosecutor was that of the Grand-Bruxelles, where Belgians who executed the Nazi occupant’s desire to merge the municipalities of Brussels, were put on trial.^[17] The legal historian had now become a part of the country’s authorities.^[18]

His involvement in prosecution will certainly have conferred an impressive aura on Gilissen in the eyes of his students, adding to the traditionally hierarchical relationship between professors and students, prior to the democratisation of university education. “Patriotism and integrity” explained his nomination as adviser to the Minister of Defence and Head of the Research Department of the Ministry in 1945, “charged with the delicate mission to check the biographical notes of Belgian officers” (Ingber 1983, XIII). In 1965, Gilissen was promoted to the rank of Auditeur-Generaal (head of the prosecution department) at the Military Court.^[19] His parallel career at the Palace of Justice engendered a stream of publications on military law and criminal law (X 1988).

2. ACADEMIC AND JUDICIAL CAREER TO 1950

While he was pursuing his internship at the Brussels Bar (1935), John Gilissen was appointed as assistant at the ULB (1936) (Feenstra 1989; Godding 1988, 17). Since the law faculty did not require a doctoral dissertation (all graduates obtained the title of Doctor of Laws until 1972), he was assigned the course Historische Inleiding tot het Burgerlijk recht (“Historical Introduction to Civil Law”) in 1938.^[20] He combined this function with a course on Kunstgeschiedenis (“History of Art”) and Geschiedenis van de Bestuursinstellingen van België (“History of Belgian Administrative Institutions”) at the evening classes of the Higher Institute for Administration (Brussels, Antwerp).^[21]

After the war, Gilissen was entrusted with both the French and Dutch version of the courses Historical Introduction to Civil Law, Legal History (1948), and, from 1958 on, Contemporary History. On 1 January 1948, he attained the rank of “Professor” (hoogleraar) (Ingber 1983, XII).^[22] Gilissen’s archives contain many relevant documents to trace the history of the Dutch-speaking section of the ULB’s law faculty, which eventually became the independent faculty of Law and Criminology of the VUB. Already in the Winter of 1944, Gilissen and his colleague Joseph Van Tichelen (professor of constitutional law)^[23] took part in the special committee appointed by the Board of Administrators to study “the Flemish question” (Tyssens 1995, 62).^[24] Following articles 2 and 43 of the linguistic law of 15 June 1935, which made a Dutch-speaking Law degree mandatory to practice law at the bar, as a notary or to become a magistrate in the Flemish provinces (Antwerp, West Flanders, East Flanders, Limburg), the district of Leuven and the district of Brussels outside of the city centre, the ULB had decided to create Dutch versions of the law courses taught in French (Van Goethem 1990; Vandenbogaerde 2018, 187–285).^[25] From 1938 on, the first cycle of the law programme became gradually available in both French and Dutch.^[26]

This had become necessary as a consequence of the linguistic laws of 1932, which had imposed Dutch as the main teaching language in secondary schools in the Dutch-speaking part of Belgium.^[27] Furthermore, pursuant to the law of 28 June 1932, appointments in the civil service (including for medical doctors, scientists and engineers) required a Dutch-speaking degree.^[28] Pupils at high schools in Flanders could only be taught by teachers with a Dutch-speaking academic degree.^[29] Where would non-Catholic teachers in languages, sciences or mathematics graduate, if the ULB could not provide programs in Dutch?^[30]

As a consequence, the ULB risked losing its students from Flanders, and would not be able to send out its graduates to compete for positions in Flanders. Gilissen thought that the university needed to “double” all degrees as soon as possible, starting with the strategic faculties which provided teachers for high schools. The necessity of a law degree in Dutch had already been established before the war. The committee’s reports included statements according to which socialist and liberal ministers of justice complained on the lack of non-Catholic Dutch-speaking law graduates, which obliged them to appoint Catholics as judges and prosecutors.^[31] The philosophical pluralism in Flanders, and thus the overall balance of Belgian society, was at stake. If a non-Catholic elite were to survive in Flanders, the free university in Brussels had to take on its responsibility as a university in the nation’s capital, providing both French-speaking and Dutch-speaking graduates to fill the courts of law, the civil service, business management, banking and – of course – university research and teaching positions in Dutch.

The committee’s detailed preparations included a statistical analysis of the ULB’s recruitment. In the final year, out of 150 law students in the final cycle (the “Doctorate” in law), around 31 were originally from Flanders, mainly from Antwerp.^[32] The ULB’s general recruitment in Flanders hovered around 10% of the total number of students. This explained the small number of students in the Dutch-speaking section: ten in 1938–1939, twenty-five in 1941–1942 and eighteen in 1944–1945, after the liberation of Belgium. However, the potential of a Dutch-speaking alternative to the Catholic university of Leuven and the State University in Ghent was estimated to be considerably bigger than the enrolment numbers before the war.

Gilissen tried to convince his peers to hire more professors in the Faculty of Arts and Philosophy, especially in the History section, since the latter provided the bulk of courses taught in the first cycle of law studies.^[33] If Dutch-speaking alumni from Flemish secondary schools were to enrol at the ULB, they ought to be able to follow the full curriculum in Dutch. This included the provision of tutors for Dutch-speakers, the compulsory study of Dutch terminology for students in the French-speaking section and the “defense of our own candidates at state exams” (which could allow a candidate to obtain a qualification to teach in both languages).

Gilissen and Van Tichelen vibrantly pleaded for equal treatment of Dutch-speaking students and academic staff. They refuted the idea that the ULB should only harbour “reasonable” (read: bilingual or predominantly French-speaking) Flemings.^[34] The statistics accompanying the commission’s works showed that the ULB’s enrolments had not declined after the State University of Ghent had switched to exclusively Dutch teaching (1930). This could be interpreted as a sign that the ULB’s natural audience was averse to an education in Dutch. Especially students from Antwerp seemed to prefer Brussels over Ghent.^[35] Quite the contrary, Gilissen and Van Tichelen argued, the university ought to show its benevolence to the Flemish provinces, rather than entrench the wartime perception of Flanders as the harbour of widespread collaboration with the German occupant. This statement is to be taken seriously, in view of Gilissen’s eminent role as assistant military prosecutor at the Military Court. They considered the university to be incomplete or only operating at a restricted level of its true potential, and suggested the inclusion of Dutch-speaking personalities from outside academia in the Board of Administrators.

Before World War One, only elements of criminal law and criminal procedure and practical exercises in these matters had been taught in Dutch (Tyssens 1995, 61).^[36] The early linguistic legislation in Belgium had first introduced the use of Dutch in criminal procedure in Flanders. After the Great War, exercises in commercial law in the final year were equally taught in Dutch. Doubling the second cycle (from 1935–1936 on) had only resulted in a meagre two students in 1938–1939, and six in 1938–1939 (first year), eight and five (second year) and a single student in the final year (in both years). The French-speaking programme in law had only a handful of Flemish students left. The linguistic legislation had thus clearly produced the legislator’s intended effect. Gilissen and Van Tichelen pleaded that the 506 students pursuing their final year of high school in the Flemish state schools (traditionally affiliated to non-Catholic families) ought to be seen as the future students of the ULB.^[37]

Van Tichelen drew up a note with various reflections that illustrate the complex relationship between the Dutch-speaking and French-speaking elements in the ULB’s academic community.^[38] He thought that the cultural renewal in Flanders in the course of the past century should not lead to a break-up of Belgian unity. Flanders had managed to inverse its position in fifty years, due to the rise of the Flemish movement and the extension of suffrage. “Quislings” were common all over Europe. The totalitarian excesses of the Flemish movement during the war, according to Van Tichelen, should not obscure that “the Flemish movement had belonged to the left” before World War One. He framed the emancipation of Dutch culture in Belgium as a final correction on the state of “isolation and regression” caused by the split of the Low Countries in the revolt against Spain in the late sixteenth century. Only after the Great War would the Flemish movement have come under Catholic control. French was seen as a tool to liberate the mind in Flanders in 1830, but the reverse should be true more than a century later: the study of Flemish culture, and the practice of teaching and research in Dutch would enrich the mind of a university whose devise was le libre examen i.e. free investigation (Stengers 2004). He suggested the academic authorities ought to speak out publicly and plead for a regeneration of the country after the war.

This major constitutional redesign, which Van Tichelen hoped for, was not realised in the immediate years after the war. Yet, Gilissen and Van Tichelen clearly saw the danger of the intertwining of the confessional/non-confessional divide with the linguistic opposition in the country. The ULB’s potential to attract Dutch-speaking students was a symbol for the ties that could preserve the country’s pluralism. Belgium would fend off the introduction of federalism. A lengthy process of “reform of the state” only started in 1970. The “Royal Question” on the attitude of King Leopold III (1901–1983) during the Second World War, would divide the country, along the left-right and linguistic conflict, until the King’s abdication in 1950.

In the immediate aftermath of the Committee’s report, the ULB confirmed its decision to “double” the full law program in 1946.^[39] The first alumni of the fully Dutch-speaking law programme graduated in 1951 (Tyssens 1995, 63). However, the operation would not be extended to the other faculties.^[40] Linguistic issues would only resurface in the 1960s, together with new social movements and growing democratisation in secondary education, intimately linked with the post-war growth of the welfare state and the “baby boom.”^[41]

3. RESEARCH

Gilissen’s research was very broad. He authored over eight thousand pages. His publications proliferated after the end of his assignment to the repression of collaboration (1950). However, it should be underlined that Gilissen combined this prolific writing with an exceptionally dense activity as a central hub in many scientific networks.^[42] He took up the prestigious function of secretary-general of the Société Jean Bodin pour l’histoire comparative des institutions. Gilissen’s scientific renown stems in part from the extensive, clear and insightful syntheses he managed to produce (e.g. Société Jean Bodin pour l’histoire comparative des institutions 1969: 134 pages). The society’s collective thematic volumes’ sweep was astonishingly large, as scholars from all major legal systems contributed (Gilissen 1970). Gilissen aimed to discover the grands courants of human and institutional behaviour. When criticized by the famous French political scientist and constitutional lawyer Maurice Duverger (1917–2014), Gilissen replied that comparative legal history was different from sociology, since it did not pretend to discover universal truths (Gilissen 1973; Gilissen 1975).

Gilissen was equally a Belgian member of the board of editors of The Legal History Review (Tijdschrift voor Rechtsgeschiedenis; Winkel 2019) for over three decades. This leading journal of legal history, founded by Dutch lawyers in 1919, became a truly Dutch-Belgian review after the Second World War. Gilissen served on the board for more than thirty years, together with – among others – Robert Feenstra (1920–2013), Felix Wubbe (1923–2014), Egied Strubbe (1897–1970), François Louis Ganshof (1895–1980) and Raoul Van Caenegem (1927–2018). The journal dedicated a special section to him in 1982, with articles by Felix Wubbe, Raoul Van Caenegem, Pieter Gerbenzon (1920–2009) and Philippe Godding. He was equally a board member of the Franco-Belgian-Dutch Société d’histoire du droit et des institutions des pays flamands, picards et wallons, founded in 1929 and of the Royal Commission for the Publication of Old Laws and Ordinances at the Belgian Ministry of Justice, established in 1846, an institution he presided over from 1969 to his decease.^[43]

In his own publications, themes vary from family law (the legal status of women in the Low Countries), the historiography of law (Gilissen 1980a), judiciary institutions (Gilissen 1980b) to constitutional law (Gilissen 1981, 1984, 1986), sources of law (“the phases of codification and homologation of customs in the XVII Provinces of the Low Countries,” Gilissen 1950) and the teaching of law (Gilissen 1985). His work on representative institutions before and after 1790 has been the work of reference for decades (Gilissen 1952, 1958a). Part of John Gilissen’s source material for his famous articles on customary law (and, as illustrated below, probably for student exercises), still resides in the VUB’s library, which contains several Coutumiers (Ferriere 1714; Richebourg 1724; Kersteman 1772).

4. TEACHING

Gilissen’s Introduction historique au droit, published by Bruylant in 1979, is a classic.^[44] The originality of the work lies in its approach of the course, which is designed to teaching concepts to students. Three themes are treated: a comparative introduction to legal systems (see below), an overview of the sources of law (which implies institutional history before 1795) and elements of private law. Teaching on the sources of law meant that Gilissen elaborated on the empire of custom and, after 1795, that of (French) law (Gilissen 1979, 14). Gilissen astutely quoted the monument of Belgian civil law doctrine, ULB-professor Henri De Page (1894–1969) (Heirbaut 2019). In his Traité élémentaire de droit civil belge, the oracle of positive law had stated that legal history alone could clarify the origins of rules, and was, in that sense, superior to philosophy and theory of law (Gilissen 1979, 11). This endorsement ought to have impressed Gilissen’s students, as references to De Page were practically mandatory for all student writing and pleading. Of course, Gilissen did not stick to a mere genealogy of legal rules, but questioned concepts and multiple types of normativity.

4.1. Gilissen’s course at the VUB

At the newly established VUB (1969–1970), Gilissen taught two mandatory courses in the first year. The manual was written for Gilissen’s crown course Historische Inleiding tot het Recht (“Historical Introduction to Law,” 60 hours), which ran over a whole year. Students had to follow his course on comparative institutional history (60 hours), as well as Roman Law (Jacques-Henri Michel, 60 hours).^[45] An optional course Geschiedenis van het recht (“History of Law,” 45 hours) and a seminar in legal history on “doctorate” (master) level (30 hours) were equally under his responsibility.

As a young institution, the VUB’s Faculty of Law and Criminology could flexibly innovate and alter the teaching scheme. Faculty council reports indicate a certain responsiveness to student requests in the creation of courses and assistant positions. In the course guide for 1977–1978, Gilissen’s course Geschiedenis van het Recht (“History of Law,” 45 hours) in the second year mentions that hours have to be “agreed with the students.”^[46] In this year, the teaching staff for legal history and legal theory counted four professors (Frédéric Dumon,^[47] S. Frey, John Gilissen, Jacques-Henri Michel), six assistants (among whom Gilissen’s successors Frits Gorlé (Gorlé 1980) and Michel Magits), three language instructors and one monitor (the future professor of constitutional law and judge in the Council of State André Beirlaen).^[48]

Gilissen’s teaching, which always eyed for the contemporary relevance of the past, also created a logical and automatical bridge to popularisation in the series Actuele geschiedenis (“Current History”). In a note dated 5 May 1969, John Gilissen explains that he had conceived the course “Contemporary History” (1958) as one in “Current History,” focusing on the historical background of present-day questions of public law. The letter enumerates the following cases: the presidential elections in the USA (at the occasion of Nixon’s election in 1968), the “negro question” in the USA^[49], the British Labour Party, the evolution of public law in the USSR, the constitutional revision in Belgium and the problem of abstentions, the genesis and evolution of political parties in the German Federal Republic since 1949, fascism and Christian Democracy in Italy, Chinese Communism, colonisation and decolonisation in Africa. The letter gives us a glimpse of how Gilissen organised his tremendous teaching load: the first five cases were destined for the history students, the latter four for the law students. There was no immediate link in content: the law students took 60 hours of class, whereas students in history and political science only followed 45 hours. Gilissen foresaw for the next year (the first “independent” academic year for the VUB), “the third revision of the Belgian constitution,” “De Gaulle and après-Gaullism,” “South-Africa and Rhodesia,” “South-America” and the “question of famine in North-America.”

He published small booklets on “The third revision of the Belgian Constitution 1954–1971” (Gilissen, Croisseau 1974), “The USSR” (Gilissen, Gorlé 1978), “South-Africa” (Gilissen, Magits 1978) or “The Irish Question” (Gilissen, Nauwelaerts 1974), “China” (Gilissen 1977) and “The French Fifth Republic.” All of these themes had been the subject of practical exercises at the VUB in his course on comparative institutional history.^[50] The main course started with the constitutional history of Britain and the United States (Part I), before turning to France, Belgium and the Low Countries 1789–1831, the Netherlands and the USSR (Part II). Germany, Italy, Spain nor the Scandinavian countries were treated.

4.2. In the Master’s workshop: Course preparations

John Gilissen’s handwritten course preparations in his archives at the ULB give insight into the practical ordering of the major mandatory course Introduction historique au droit civil and the genesis of the manual, as the eventual pagination in the following paragraph indicates. The start of the academic year 1959–1960 was on 14 October, the last course on 17 May, with a small interruption for the Christmas break. Twelve sessions were dedicated to external legal history (pp. ­12–489). “Primitive legal systems”^[51] (pp. 31–52, with examples in the 1979 manual on Zaire (Congo) and “Antiquity” (pp. 53–84: Egyptian, Cuneiform and Hebraic law) were the subject of a single course. Two courses were devoted to the sources of Roman, Germanic and canon law, including (annotated in margine) the Haut Moyen Âge or Early Middle Ages (pp. 120–182, 219–313). Customary medieval law (Bas Moyen Âge or Late Middle Ages) occupied one session and a half (the latter being complemented by half a session devoted to legislation). Roman law and canon law occupied the first session of December, the second one being earmarked for Roman law and customary law in the early modern period (pp. 258–267, 358–377). The second session devoted to the early modern period treated codification and doctrine (pp. 314–357). External legal history continued well into the new year, as the revolutionary and 19th century legislation (379–447) occupied the first two sessions of January, and the final one doctrine, custom and the judiciary branch (pp. 454–479). Hindu, Muslim and Chinese law, or Soviet and Communist Law, which were included in 1979, did not figure in the program yet (pp. 91–120, 198–217).

This schedule implied that Gilissen could only devote nine sessions to the internal history of private law, divided into family law (3: marriage, divorce, tutelage, emancipation, pp. 505–564), real property (2, pp. 565–588), succession (589–622) and the law of obligations (2, pp. 637–674).^[52] The handwritten course preparations include clear and well-structured schemes and extracts of own contributions to reviews.^[53] Copies of recent relevant book reviews or articles are a sign of the author’s continuous attention to the development of legal historical scholarship.^[54] Gilissen’s files furthermore contain elaborate offprints from legislative publications and contemporary jurisprudence, in order to remain up to date in teaching. Legal history had to serve as an historical introduction to positive law. It is thus hardly surprising that his archives contain a consistent section devoted to the Belgian Judiciary Code of 1967.^[55]

The course preparation for the Dutch-speaking variant Geschiedkundige Inleiding tot het Burgerlijk Recht informs us of the number of students for this mandatory course in the preparatory candidature (“Bachelor”) leading to admission in the “Doctorate” (Master) of Law: twenty-six students for 1957–1958 and seventeen students for 1959–1960.

4.3. Students at work: Exercises in legal history

The archives at the ULB contain copies of student essays written for the course Legal History in the second year of the “preparatory Candidate Degree to the Licentiate in Law and Notarial Sciences” from the 1950s. Only the “Doctorate” was exclusively reserved for law courses. In the first cycle, law students were instructed with matters taught at the Faculty of Arts and Philosophy (see also Waelkens, Stevens 2014, 230). The programs of Economics and Political Science equally contained many historical courses.^[56]

Gilissen ordered his students to work on the legislation of the Prince-Bishopric of Liège, an immediate member of the Holy Roman Empire, comprising the major part of the Belgian provinces of Liège, Limburg and parts of Luxemburg, Namur and Hainault. The neighbouring abbatial principality of Stavelot-Malmédy was equally scrutinized.^[57] The “democratic” representative regime in Liège guaranteed a right of advice and in many cases co-decision for the Estates. However, the exact degree to which the Prince-Bishop was bound to respect the Estates, varied across the ages.^[58] Gilissen requested his students to work on specific constitutional documents^[59] and legislative acts, which had all been published in the 17th, 18th and 19th centuries.^[60] This allowed him to map all areas of material^[61] and procedural law.^[62] A similar approach was taken for early modern legislation in France, Germany and the Dutch Republic.^[63]

In 1955–1956, the Dutch-speaking law students worked on the legal status of women. Four female and eighteen male students studied regional variations of customary law^[64], positions in doctrine^[65], published case law^[66] and applicable legislation in various periods.^[67] A single synoptic note grouping student names, topics, marks and comments allows to reconstitute the pedagogical nature of Gilissen’s approach. Five students failed the course, three of them having been “often” and “almost always” absent, one student “silent, even when he has something to report” and a final one who “never understands what he had to do.”^[68] By contrast, praise for excellent students is rendered clearly as well: the “excellent” B. (18/20), “intelligent” D.C. (16/20) and “very good” V. (16/20) who had “thoroughly researched, although he had failed to understand everything.”^[69] According to Gilissen’s assessment, some oral presentation was mandatory.^[70]

Interestingly, Gilissen blended polemic issues of his own times and institutional history.^[71] The folder dedicated to exercises for second year law students contains press clippings evoking the major political controversies of his lifetime. For example, a piece written late in 1958 by right-wing Catholic senator Pierre Nothomb (1887–1966) questioning the appropriateness of proportional representation, drew Gilissen’s attention. Belgium had adapted proportional representation in 1899, with major adjustments in 1919. The majority system (1830–1899) threatened to obliterate the chances of minorities (Catholics in Wallonia, Socialists in Flanders) to be represented, and posed a threat to the Liberal party, due to the extension of suffrage in 1894. After the First World War and the introduction of universal male suffrage (one man, one vote), the system was perfected to guarantee smaller parties that their “residuary” votes in small constituencies would be added up at the intermediate, provincial level, in order to ensure accurate representation of minority opinions in parliament. This system of apparentement ensured pluralism, as no votes in smaller constituencies would be “lost.”

Nothomb’s article criticised the governmental agreement concluded by the Christian democrat Prime Minister Gaston Eyskens (1958–1961). His party, the CVP/PSC, had just won an overall majority in Flanders (56,6% of votes), controlled the Senate, but fell just short of a majority nationwide (46,5% of votes, 104 seats out of 212 in the Chamber of Representatives). Eyskens was accused by the notoriously Conservative Nothomb of “conceding” to the Liberals’ demands: by lowering the threshold for participation in the repartition of parliamentary seats at the provincial level, Eyskens gave in to the “moral advantages” of “sticking as closely as possible to justice.” For the Chamber of Representatives, the CVP/PSC had obtained 49% of the seats with 46% of votes, its coalition partner had 9,4% of the seats with 11% of the popular vote, and was thus slightly under-represented.^[72]

Yet, Nothomb thought Eykens was reinforcing a “very bad governmental system” by conceding to the Liberals. Nothomb’s remark referred to the crisis of the French Fourth Republic (1944–1958), where governmental majorities tried to defend themselves against the pressure of Gaullist and Communist electoral successes.^[73] He accused the Liberal party of aiming at the instauration of a nation-wide system of apparentement, which would de facto take the national vote count as a decisive criterium for the attribution of seats. As a Conservative Catholic, Nothomb wanted to restrict the impact of “systems built on mathematics,” which he saw as a “destruction of personalities, local forces and independences.” Any “strong government” would be rendered impossible if smaller parties were granted their full electoral weight in parliament. Furthermore, small constituencies (where the principle of proportionality is almost cancelled out due to the high factual threshold) would constitute the guaranty for a close link between electors and politicians.^[74]

Nothomb’s remarkable opinion pleaded for “true and integral universal suffrage.” After the introduction of female suffrage for parliamentary elections (1948), the next logical and necessary step ought to be suffrage for “men, women and children.” Nothomb suggested all “members of a society of free men” had been entrusted by “natural law” with the right to participate in elections. The actual exercise of this right was logically limited by the threshold of majority, but why couldn’t children be represented by their head of family (ergo, the father)? True “familial suffrage” would be rejected by Socialists and Liberals, added Nothomb, just as they had “ridiculously and uselessly” opposed female suffrage.

Just as with the Old Regime ordinances, Gilissen presented a thematically coherent corpus of primary to his students for exercises on electoral law and its practice. In one case, sixteen Dutch-speaking students were attributed the constituencies of Brussels (pre 1878, post-1878), Antwerp, Mechelen-Turnhout, Louvain and Nivelles, Ghent-Eekloo, Termonde-St Nicolas, Alost-Audenarde, Bruges and Ypres-Ostend-Furnes-Dixmude, Courtrai-Roulers-Tielt, Tournai-Ath-Soignies, Mons-Charleroi-Thuin, “Limburg,” Liège/Huy-Waremme, Namur, and Luxemburg/Verviers. Gilissen associated constituencies from various provinces. Four out of sixteen students failed the course (their paper being annotated as “weak”), five excelled (with a “Miss Van Mieghem” receiving the highest mark). Six out of sixteen students were female.^[75]

Gilissen’s notes contained calculations on the relationship between popular vote and seats in the Chamber of Representatives, or on electoral abstention.^[76] Unsurprisingly in view of the linguistic and confessional situation,^[77] he noted with interest that in Roulers, Tielt (both in West-Flanders) and Maaseyck (Limburg), no Liberal candidates had been presented at the 1857 parliamentary election, which was held under a system of suffrage based on a tax threshold. Without apparentement and in a majority system, the Catholics obtained all available seats, unopposed. Conversely, no Catholic candidates had been presented in Dixmude (West Flanders), Mons (Hainault), Waremme (Liège), Arlon (Luxemburg) and Philippeville (Namur). Gilissen tried to adapt the popular vote numbers by adding the electors who had failed to turn up. The contrast with the proportional system as adopted in 1899 and, most importantly, the apparentement introduced in 1919, was clear.

Investigating the technicalities of the nineteenth-century’s electoral system rendered students more aware of the specificity of the contemporary system, and of the implications of future modifications. The life of constitutional and legislative texts was heavily documented. Gilissen’s notes and course documentation emphasise the only partial renewal of the Chambers between 1830 and 1914, save for the full dissolution of Parliament (1833, 1848, 1857, 1864, 1870, 1884, 1892, 1894, 1900, 1912), as well as the elitist nature of the Senate, for which 507 people were eligible in 1880.^[78] The system of voting with a fiscal threshold was documented with statistics on population and electors, including statistics on the various professional categories included and excluded by fiscal criteria.^[79] This was relevant, as the competing Liberal and Catholic ministries tried to eliminate part of their rival’s sociological support groups from voting, with the most famous controversies focusing on priests and bar-tenants.^[80]

Another theme, treated in the tumultuous sixties, was the imminent reform of the Belgian state. In his Dutch-speaking seminars for master students in political and diplomatic science,^[81] Gilissen decided to study the preceding proposals for constitutional reforms, which contained several elements that would return in the constitutional debates of the 1970s, 80s and 90s.^[82] These attempts only rarely receive attention nowadays, as the full deployment of the process of state reform from 1970 on has introduced a complex form of federalism. Gilissen’s students examined the proposal by Herman Vos (1889–1952) of 23 April 1931. This left-leaning Flemish Nationalist proposed to introduce a “Federal Statute” for Belgium (Van Causenbroeck s.d.).^[83] His proposal, elaborated with the help of the Dutch historian Pieter Geyl (1887–1966) and the Dutch constitutional lawyer Frederik Gerretson (1884–1958), was not thought fit for consideration and was never treated in Parliament.^[84] At the occasion of the (procedural) vote on consideration of the proposal, solely the communist Jacquemotte supported the treatment, insisting on the fundamental nature of the right of self-determination and secession (Parliamentary Transactions – Chamber of Representatives, 19 July 1932, Paper L.R., 8–9). Chamber president Frans van Cauwelaert, a Catholic and Flemish nationalist, thought the proposal merely intended to “destroy the Belgian state” (Parliamentary Transactions – Chamber of Representatives, 19 July 1932, Paper L.R., 8).

Vos aimed to transform the unitary Belgian state into a “United Kingdom of Flanders and Wallonia.” The formula was not a coincidence, as the previous “United Kingdom of the Netherlands” (1815–1830) had united Belgium and the Netherlands. Vos proposed to let the capital alternate between Brussels (which he considered as the capital of Flanders) and a city in Wallonia, following the example of The Hague and Brussels in the nineteenth century. Both member states would have a bicameral parliament, following the American model. At the federal level, the “Federal Assembly” would be constituted by an equal number of representatives from both parts of the country. This parity was equally present in the Federal Government, which controlled the Executive Branch. Only foreign policy, customs and transport, common finance and the colonies would remain a joint competence. Vos thought an army was not necessary. The state ought to be permanently neutral and disarmed, with a constitutional interdiction of alliances, exclusively reliant on the League of Nations and the Locarno Pact (Paper L.R., 6). Needless to say, this very restricted form of bipolar federalism loosened the link between Flanders and Wallonia, and was a poorly disguised conception of a confederation to be dissolved as soon as the occasion would present itself.

Several proposals for the introduction of federalism by Walloon politicians equally received attention, including one by three Socialist members of the Chamber of Representatives in 1938, proposing a federalism with three constituent entities: Flanders, Wallonia and Brussels (Paper L.R., 12–14).^[85] These three entities would obtain an equal number of Federal Senators. Brussels would return 30 MPs for the Federal Chamber, Flanders and Wallonia each 90. A “Constitutional Supreme Court,” inspired on the US Supreme Court would exercise judicial review on federal and state legislation, as well as enforce the competence structure (Paper L.R., 12–14). The text aimed to constitutionalise social measures taken in the aftermath of the First World War and the major strikes of 1936.^[86] This proposal was not thought fit for consideration either, although Flemish nationalists, Communists and Walloon Socialists provided 62 votes in favour of its discussion. At the end of the Second World War, the dissolution of the Flemish nationalist and totalitarian party VNV put an end to these proposals, but did not prevent the Walloon Socialists from introducing new attempts (Witte, Van Velthoven 1999).^[87] Another case treated was the proposal of the CVP/PSC-government Van Houtte (1952–1954) to modify the constitution in order to incorporate “Belgian accession to the European supranational institutions” (Paper L.R., 29).^[88]

The thorough treatment of these proposals in the preceding paper was greatly appreciated by Gilissen and resulted in a 16/20. The archives give us the occasion to see both positive and negative comments on student works. A paper submitted on the political workgroup constituted by the Lefèvre-Spaak government (1961–1965) to prepare a constitutional revision was criticised as “weak”: the student had copied the report by Minister of Justice Piet Vermeylen, displayed a total “lack of critical sense.” The literature review was incomplete, “although not much material is available,” and, most importantly, “no solid historical criticism or comparison of sources” were present, which justified a meagre 8/20. A similar work on the roundtable conference devoted to constitutional reform in 1964–1965 received a 15/20. Gilissen justified this shortly, but did not forget to include a copy of a student’s letter arguing that she had been able to obtain the official records of the relevant meetings from the Minister of Justice himself.^[89]

Gilissen’s teaching on more contemporary institutional and political issues was logical in the context of the law faculty at that time. The administrative documents in the archives render clearly that many courses were open to (or even mandatory for) students in political science or economics.^[90] The correspondence contained in the preparatory documents for courses tend to suggest that a considerable part of the course documentation was not yet available at the university, and had to be collected by the Professor himself.^[91] As Substitute and Chief Military Prosecutor at the Military Court, Gilissen used his authority to request documents for teaching purposes at the Ministry of Justice.^[92]

5. ADMINISTRATIVE RESPONSIBILITIES

John Gilissen’s involvement in teaching was intimately linked to his own research. Of course, the hierarchical nature of his position involved his participation in the direction of the common policy of the university and its faculties, beyond the linguistic question. Gilissen acted as president of the ULB’s Faculty of Arts and Philosophy (1962–1964)^[93] but was of course a member of many deliberative organs. His archives contain an interesting note on the perspectives of scientific research. The Belgian National Fund for Scientific Research, set up in 1927, emphasised the need to generalise the mandatory writing of a thesis, in order to test student abilities for research, and evoke vocations.^[94] To enliven academic research, the note proposed to create six month research-sabbaticals for maximum five professors per year, diminishing the burdens of teaching and administration.^[95] The rejection rates cited in the note are relatively modest compared to present-day standards.^[96]

In spite of the differences in scale (as a consequence of the democratisation of higher education) and the changes in governance structure (due to internationalisation and the scission of the Fund in a Flemish and French-speaking Foundation), the fundamental problems of scientific research are still familiar today: the available means only allow for a limited number of positions to be awarded, and scientific mandates that do not lead to a tenured position as professor (including other responsibilities besides research) can create a situation whereby a brilliant researcher runs out of funding.^[97] This is of course explained in the terms of the generic professional and private life patterns prevailing in the 1950s: a brilliant researcher arriving at the end of his postdoctoral trajectory will be “over thirty, married, possibly a family father” (and will thus have to support a housewife and/or children). Without “the means to wait patiently and with dignity for a stable situation, conformably to his ideal, this person will easily become an angry man, suffering of social declassification. His bitterness will be even more poignant because he had the greatest and legitimate hope.”^[98]

The high hopes of the Fund for Scientific Research contrasted with the reality experienced in faculty meetings. At the meeting of the School for Political and Social Science of 8 March 1954, the eminent historian Jean Stengers pointed to the lack of professors to supervise thesis research by master students.^[99] His colleague, the economic historian Guillaume Jacquemyns (1897–1969) thought students would not be induced to apply for a doctoral dissertation, nor would the master thesis… “allow us to chase the more mediocre students.”^[100] Another council member, Lameere, complained that students tended to spend too much time in writing a thesis, which “fatally” damaged their “general culture.”^[101]

6. A MAN OF MANY NETWORKS

Besides the activities of the Société Jean Bodin, Gilissen’s international lecturing activities allowed him to extend his teaching to external audiences. He gave guest lectures at the University of Leiden,^[102] travelled to Rio de Janeiro for a conference on “Lacunae in law,” and intervened at dozens of foreign institutions.^[103] Of course, the master’s pupils had to follow his trail. A dossier filed for renewal by assistant Ivan Roggen mentioned participation in the Société d’histoire du droit’s conference in Algiers, besides the Société Jean Bodin and the Société d’histoire du droit et des institutions des pays flamands, picards et wallons.^[104] Conversely, Gilissen equally invited his foreign colleagues for guest lectures, e.g. the invitation for Peter Stein’s (1926–2016) lecture on “The notion of General Principles of Law, from a historical perspective.”^[105] As explained in Peter Stein’s personal note to Gilissen:

I have prepared a lecture which I think is suitable for those beginning the study of law (while still having some interest for those who know some legal history) […] I have prepared it in French but of course if you would prefer not to risk the possibility of my French being unintelligible to the audience, I could give it in English.^[106]

Stein’s letter gives a privileged view of the international nexus of renowned legal historians in the 1960s, in a world without high-speed rail connections and with less frequent flights. He asked Gilissen whether it would be possible to move the lecture forward, as the eminent Dutch colleague Robert Feenstra had announced him to travel by train through Brussels on his way to Nancy, where a celebration for the late François Gény (1861–1959) was foreseen. As Feenstra projected to spend the night at Metz before reaching his final destination, Stein inquired whether he could be free to join his Dutch colleague there, sketching the perspective of taking only a later train the next day at 08:31 in the morning to Nancy.^[107]

Gilissen’s archives show he had annotated a previous letter of Stein, dated two weeks earlier, in order to ask for lodging for his guest at the University Foundation, a traditional meeting point of academic sociability in the heart of Brussels.^[108] An ensuing letter containing practical instructions showed how academic travel was arranged in a world without mobile phones or internet: Gilissen requested his guest to phone him after arrival at the University Foundation after a lengthy travel by ferryboat and by train, either at the ULB (between 10 and 10:15 AM), or at the Palace of Justice (from 10:30 AM on), with the kind request to speak in French.^[109]

One could wonder how Gilissen managed to combine a position as military prosecutor with a heavy teaching and administrative load, added to simultaneous activity in several national, bilateral and international scientific networks. A letter to the Centre d’études René Marcq of 31 January 1955 lifts a tip of the veil. Gilissen apologises for not having been able to attend a meeting, since he had been retained at the Military Prosecution Department. Gilissen notes that the legal history section of the Centre René Marcq, named after a model alumnus of the ULB, had fallen in “lethargy” in 1954, after only two years of activity. Two members had been called to other priorities, as Frans De Pauw (1929–2006, future dean of the VUB’s Faculty of Law and Criminology; Scheelings s.d.)^[110] had obtained a scholarship for the United States, and Philippe Godding (1926–2013, from 1966 on professor of legal history in Louvain; X 2013)^[111] had been appointed as substitute public prosecutor in Brussels. Together with assistant Ivan Roggen (1921–1997, governor of the Province of Brabant from 1976 to 1989 for the liberal party PRL),^[112] Gilissen had compiled some conclusions of past research, and presented them at the conference of the Société Jean Bodin, “albeit in a geographically enlarged form” as Le droit privé dans les villes médiévales belges (Gilissen 1954). Gilissen proposed that the René Marcq center would work on the same theme as the Société Jean Bodin for 1955: “the status of strangers in old law” (Société Jean Bodin pour l’histoire comparative des institutions 1958). Furthermore, Gilissen appears to have counted on assistants acting as replacement lecturers.^[113]

7. LEGACY

Besides the many citations of Gilissen’s work by historians and legal historians alike, the teaching program at the VUB still carries the distinct set-up that followed from the structure described above.

7.1. History of public law

Gilissen’s successor at the VUB, Michel Magits, took over the mandatory 60 hour-course on Institutional history (Geschiedkundige inleiding tot de instellingen van de voornaamste moderne staten – “Historical Introduction to the Institutions of the Principal Modern States”), as well as a mandatory course – Historische inleiding tot het Belgische recht (“Historical Introduction to Belgian Law,” 60 hours). As a compensation for this heavy teaching load, no master courses associated with legal history were taught.

In parallel, founding Dean Frans De Pauw taught the mandatory course of “Historical Introduction to Legal Philosophy including Natural Law” (30 hours) in the second year. This course disappeared at De Pauw’s retirement. The general course on Legal Philosophy in the first year (Jean-Marc Piret), however, does take an historical approach.

7.2. History of private law

Roman Law (45 hours of ex cathedra teaching, 11 hours of tutorials, Jacques-Henri Michel) still figured in the mandatory courses of the second year in 1987–1988, to appear in the first year in 1992–1993 for 75 hours of ex cathedra teaching and 15 hours of exercises (Robert Raes). Roman law was merged with the course “History of Law” (see below). This recreated the hybrid form of course Gilissen had imagined. Gilissen had also communicated at public lectures and conferences on Roman law, but preferred to stick to its external history and the reception in Western Europe. Gilissen lectured in South Africa on the matter.^[114]

7.3. Comparative legal history

Gilissen’s courses at the ULB and VUB contained a strong component devoted to comparative law. His “Introduction” gives credit to his colleagues Frits Gorlé (for Soviet law), Jacques Vanderlinden (African law), Aristide Theoridès (Egyptian law) and Léon Anciaux (Islamic law) (Gilissen 1979, 9).^[115] The present-day reader is of course struck by the Cold War context in which the manual generated. Gilissen, as well as his Brussels colleague René Dekkers (X 1982)^[116] were interested in the functioning of a society without a concept of the state or law. The manual clearly stated that in spite of ideological pretences, the law of the USSR could not escape its filiation with Romanist systems (Gilissen 1979, 20). Gilissen devoted attention to the separate development of Chinese and Maoist conceptions. In spite of the recent Cultural Revolution (1968), the manual thought that the PRC had started to develop just a new Confucian ethics (li) from 1958 on. African customary law, finally, was characterised as “archaic, but not primitive,” in the sense that African, non-written, collective and solidarity-based legal systems had been the fruit of a long evolution and multiple subjections by non-African political systems (Gilissen 1979, 21).

After his retirement, Geschiedenis van het Recht (“History of Law [including the evolution of the main legal systems]”) was taught by Frits Gorlé (30 hours, 15 hours of exercises). The first section “Sketch of a universal history of the main legal systems” in the “Historical Introduction to Law” has been trimmed down to the benefit of a broader internal history of private law, with a focus on real property, contracts and trade. Since 2018–2019, the course’s name has been modified to “Historical Introduction to Private Law.”

Legal history and political history still occupy a prominent position at the Vrije Universiteit Brussel and the Université libre de Bruxelles. At the VUB – besides the course Politieke Geschiedenis van België (“Political History of Belgium,” 6 ECTS) – Historische en Vergelijkende Inleiding tot het Publiekrecht (“Historical and Comparative Introduction to Public Law, 6 ECTS conforms to Inleiding tot de Voornaamste Moderne Staten) and Historische Inleiding tot het Privaatrecht (“Historical Introduction to Private Law,” 6 ECTS) can be traced back to the summa divisio set out in Gilissen’s 1979 manual.

At the ULB, the courses Histoire du droit et des institutions (10 ECTS) and Histoire de la Belgique contemporaine (6 ECTS) are mandatory in the first year. The former course is the direct successor to John Gilissen’s course (Beauthier 2007). Roman law has been integrated into a broad course Droit civil et fondements de droit romain (10 ECTS).

^* Frederik Dhondt, Vrije Universiteit Brussel; Ghent University, Faculty of Law and Criminology, frederik.dhondt@vub.be