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.
Legal historians have sometimes studied the law of one place and time while disregarding that of others. Comparative lawyers have sometimes compared the law of different jurisdictions while ignoring the historical reasons they are alike or unlike. The consequences have been unfortunate. Historians have often explained rules which are ubiquitous by the circumstances peculiar to one time and place. Comparative lawyers have often explained the similarities and differences among laws with a blind eye to how they arose. To understand how these problems came about, this article examines the origins of legal history and comparative law. It then describes, more concretely, why these disciplines need each other. Legal rules acquire their structure over time. Thus even if a comparative law scholar were only interested in the structure of modern rules, he would need the help of history.
Modern comparative lawyers tend to date the foundation of their discipline to the nineteenth century and to the promulgation of the great European codes. This article claims that one could make an argument that comparative law is to be found in the ancient world, with some suggestion of it in the early writings of Aristotle’s Politics; that despite the multiplicity of legal sources it is not often found in the early or high middle ages; that there are hints of it in the commentators of the later middle ages; that in a very real sense it can be found in the ideas of the French legal thinkers of the sixteenth century; and that one can trace a relatively clean line of sources from the sixteenth century to whatever nineteenth-century authors one chooses to focus on as the founders of the discipline that produced the First International Congress of Comparative Law in 1900.
H. Patrick Glenn
For much of the twentieth century, comparatists have divided the world into ‘legal families’ (such as the civil law, the common law, socialist law, etc.) and assigned each (national) legal system a place in one of them. The chapter argues that this taxonomic enterprise has largely remained at the descriptive state, entailed a misleading division into fixed categories, and that is has failed to produce real comparison between laws. It is also too static, state-centred, and Euro-centric to be workable under conditions of late twentieth and early twenty-first century globalism. It should be replaced by the paradigm of ‘legal traditions’ which not only emphasizes the evolving nature of law, but also avoids dividing the world into clearly separated groupings. Instead, a ‘legal traditions’ approach focuses on the fluidity, interaction, and resulting hybridity of laws, thus facilitating their comparison. As it is not tied to Western-style national legal systems, it can easily capture the laws of the whole world, including the increasingly important non-state forms of legal normativity. Since the chapter was written by the late H. Patrick Glenn over a decade ago, the editors added a postscript bringing the reader up to date on the scholarship on, and the debate about, legal families and traditions.
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.
Sources of law serve to separate the province of law from the realm of non-law. Only propositions that are derived from a valid source of law are genuinely legal propositions. This article outlines the role of sources of law and legal method in the study of comparative law. The second section explains why these topics have been central to comparative legal scholarship from its very beginnings. The third section attempts to clarify their ambit for the purposes of comparative study, and identifies the pitfalls lurking for the comparative lawyer who wants to determine another system’s sources of law and the methodological approach prevailing there. The fourth section gives an overview of the most important comparative studies specifically dedicated to these matters. The fifth section maps out some areas which merit further research.
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.