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)
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.
In my previous post about mixed legal systems, it became evident that the conventional definition of a mixed legal system is influenced by Western ideas of a division of legal systems into two groups: civil law countries and common law countries. Such a concept is insufficient for the growing importance of non-Western law in today’s global community. Both Patrick Glenn’s idea of legal traditions and Csaba Varga’s concept of legal culture try to break with convention in order to make more remote legal systems workable for comparative law. The question is whether and how they deal with mixed legal systems.
Patrick Glenn in his Legal Traditions of the World, deals with the civil law tradition and the common law tradition in two different chapters. His focus is, however, more on their different roots that led to two different methodologies than their mixing. As a result, mixed legal systems are rather neglected.
Csaba Vargas’ starting point, in turn, is the heterogeneity of laws. For him, legal systems are intrinsically diverse. Consequently, any classification into any specific group – it being civil, common, or mixed – is artificial in nature and only serves to facilitate the comparative task.
- PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD (2004). A newer edition is available.
- William Twining et al., A Fresh Start for Comparative Legal Studies? A Collective Review of Patrick Glenn’s Legal Traditions of the World, 2nd Edition, 1 Journal of Comparative Law 100-199 (2005).
- Csaba Varga, COMPARATIVE LEGAL CULTURES: ON TRADITIONS CLASSIFIED, THEIR RAPPROCHEMENT AND TRANSFER, AND THE ANARCHY OF HYPER-RATIONALISM 2012.