Comparative law and legal history are two disciplines with slightly differing focal points: comparative law looks at legal developments across space while legal history focuses on evolution of laws over time. Yet, every study in comparative law should have a historical component as the characteristics of each legal system as well as the fact that legal systems may share some commonalities generally can be explained by history. In fact, the very assumption of legal families or legal traditions/cultures that is so prevalent in comparative law presupposes some historical connection.
The question then is how much effort in a comparative study should be devoted to historical research? Most publications in comparative law dedicate historical considerations only a minor part of the work, usually in the form of some introductory remarks on how the legal situation used to be. Yet, more in-depth research in comparative legal history has the potential of providing better insights into the core of legal traditions and their inter-relatedness.
In fact, in a world where cross-border legal transactions and collaborations become the norm, where courts and governments are increasingly inspired by their foreign counterparts, and where the need for international regulation of the many facets of life becomes more and more imminent, would it not make sense to take a step back and look at the roots in order to find common denominators? A quick study of the current literature, however, shows that research in comparative legal history proper is rather scarce. The most likely reason for this is that the area of comparative legal history is quite complex as it requires intimate knowledge of two or more legal cultures not just in their present form, but also in their past.
Unfortunately, a thorough study in comparative legal history is beyond the scope of this blog. Still, I plan to devote the upcoming contributions to history: the history of comparative law and its main protagonists and the history of legal traditions.
Comparative Law and Legal History in the United States, 46 Am. J. Comp. L. 1 (1998, Supplement)
Instead of starting this first post in the New Year with the usual promises to be more regular and frequent in my posting (things I am admittedly working on …), I would like to take a short moment to reflect on the purpose of this blog and of law blogs in general by citing a recent (very interesting) article by Katharina Isabel Schmidt, a J.S.D. candidate at the Yale Law School.
By way of conclusion, I would suggest that the particular merit of law blogs […] results from their capacity to advance the following two objectives: Firstly, to facilitate transnational self-reflection on the kind of endeavor we, as jurists, consider ourselves to be engaged in. Secondly, to give a voice to younger scholars and practitioners who have historically been excluded from important conversations about the future of law and the legal profession. For this purpose we should by all means continue to take advantage of the dynamic, democratic and decentralized nature of non-traditional approaches to legal knowledge production for the purpose of remedying the particular flaws of traditional national law journal culture […].
Hopefully CompareLex will play a role in this new era of broadcasting legal knowledge and discourse through non-traditional channels.
To conclude this “chapter” on culture and tradition in comparative law, I would like to mention two forthcoming publications in this area.
On the legal culture side, David Nelken has a paper forthcoming in the Asian Journal on Law and Society on the concept of legal culture.
This paper addresses the controversial concept of legal culture. It first considers the different meanings of the term and the variety of debates in which it figures. It then goes on to consider difficulties in deciding the units to which the term legal culture is applied, and the problems in using the term in explanations. It concludes by examining the way assumptions about what gives legal culture its coherence have implications for explaining how and when it changes. In each section of the argument an attempt is also made to show the relevance of these questions for this journal as seen in the articles published in its first issue.
The paper can be downloaded here.
On the legal tradition side, Madeline Kochen has a book forthcoming on Organ Donation and the Divine Lien in Talmudic Law.
This book offers a new theory of property and distributive justice derived from Talmudic law, illustrated by a case study involving the sale of organs for transplant. Although organ donation did not exist in late antiquity, this book posits a new way, drawn from the Talmud, to conceive of this modern means of giving to others. Our common understanding of organ transfers as either a gift or sale is trapped in a dichotomy that is conceptually and philosophically limiting. Drawing on Maussian gift theory, this book suggests a different legal and cultural meaning for this property transfer. It introduces the concept of the “divine lien,” an obligation to others in need built into the definition of all property ownership. Rather than a gift or sale, organ transfer is shown to exemplify an owner’s voluntary recognition and fulfillment of this latent property obligation.
More details are available on the publisher’s website.