Kjell Å Modéer
This chapter is about the relations between the national legal system and the ‘other’—especially from the creation of the modern nation state in the early nineteenth century and up to current times. Comparative law in the twentieth century was dominated by the concept of ‘valid law’, functionalism, legal positivism and legal realism. The parameters of time and space within law were minimalized. The German law emigrés from Nazi Germany to England and the United States played a special role for the relation to comparative law, and several of these scholars played a great role for the post-war development of comparative law. Critical theories and post-colonialism have developed new legal discourses on culture and identity, and have increased interest not only in history but also in differences between legal cultures—and thus an increasing interest in comparative legal history.
The paradigmatic public institution associated with the application of Islamic law from the rise of Islam until the end of the nineteenth century has been the qadi. This essay examines the scholarship on this institution, organizing studies into doctrinal works and empirical works. Doctrinal studies of the qadi are based almost entirely on literary sources, most commonly legal texts. Historical sources have also been important, especially for the pre-Ottoman period. Empirical studies of the qadi, by contrast, base themselves almost entirely on surviving court records. Thus, most empirical studies are limited to courts of the Ottoman Empire which kept systematic records of court decisions in contrast to the courts of previous Muslim states, which did not. In the modern period, there has been a distinct rise in an anthropological approach to the qadi, with numerous studies having been published based on direct observation of the behavior of Muslim judges.
This chapter considers the history of comparative law. The birth of comparative law as a discipline can be traced back to the year 1900, when the Congrès International de Droit Comparé in Paris raised it above the level of singular, disparate, albeit remarkable studies and treatises to a collective, concerted venture guided by theories, methods, and projects. Before 1900 there was little interest in systematic legal comparison. Comparative law was marked, in the Western comparative community, by a significant inferiority syndrome. Comparatists felt neither adequately recognized by their academic peers nor sufficiently represented in the law school curriculum. Today, the (changing) reality of curricular marginality and comparative law’s growing popularity appears to nourish the hope for the well-deserved invitation to the field of the legal sciences.
From Evolutionary Functionalism to Critical Transnationalism: Comparative Legal History, Aristotle to Present
Katharina Isabel Schmidt
This chapter explores practices of legal-historical comparison from their beginnings as an occasional element of ancient, medieval, and early modern treatises to their institutionalization as a discipline at the turn of the twentieth century. It also makes a case for ‘critical transnationalism’ as a way for legal-historical comparativists to produce works that are both timely and interesting. Finally, it surveys promising areas of and approaches to transnational legal research, all the while bearing in mind the particular challenge law poses to transnational history.
This article reviews scholarship on the history of Sunni usul al-fiqh—also known as “Islamic jurisprudence,” “legal theory,” “source law,” “legal methodology,” and “proofs of the law” (usul al-fiqh adillatuhu)—during the premodern period. It first considers the emergence of usul al-fiqh from the second AH/eighth CE to the middle of the fourth/tenth centuries, paying attention to debates about when and how jurists began to produce texts dedicated to the exposition of the genre. It highlights scholarly accounts of the gradual shift from early rudimentary discussions on legal methodology to systematic and detailed elaborations in the so-called mature texts of usul al-fiqh. It also explores the relationship between usul al-fiqh and furu‘ before turning to scholarship on usul al-fiqh sources from the late fourth/tenth up until the tenth/sixteenth century. The article concludes by assessing the relevance of the key intellectual debates over usul al-fiqh to legal practice.
This article presents a history of ideas of constitutional designs and conceptions of constitutionalism. It discusses the problem with typologies, identifying the object, the constitution as law, constitutions as expressions of political ideas, and national and international constitutions.