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.
Richard P. Boast
This chapter examines the connections between the field of legal history and the various ways in which claims against states by indigenous groups are adjudicated and resolved. It focuses on ‘indigenous’ and ‘settler’ relationships, and on redress mechanisms in Australia and New Zealand. In both cases, the establishment of such mechanisms arose out of political and legal conjunctures within each country, and owed little to developments in international law. The Waitangi Tribunal in New Zealand and the Native Title Tribunal in Australia have very different functions, utilize different kinds of expert evidence, and operate in very different political and constitutional settings. While both bodies require expert evidence typically provided by non-indigenous specialist researchers, the required expertise in each case is different: anthropology in the Australian case, and history in New Zealand.
James Thuo Gathii
This chapter traces the two major trends in thinking about Africa’s engagement with international law from a historical perspective: ‘contributionists’ who emphasize Africa’s contributions to international law, on the one hand; and critical theorists who examine Africa’s subordination in its international relations as a legacy that is traceable to international law, on the other. For authors such as Taslim Elias Olawale, ‘inter-civilizational participation in the process of crafting genuinely universal norms’ has historically involved Africa as a central player. This emphasis on Africa’s participation in the formation of international law amounts to contributionism. Critical theorists, such as Makau Wa Mutua, Siba Grovogui, Kamari Clark, Ibironke Odumosu, and Obiora Okafor, among others, by contrast focus on the manner in which modern international law continues the legacy of colonial disempowerment while providing spaces for resistance and reform.
Fatiha Sahli and Abdelmalek El Ouazzani
This chapter argues that the impact of Islam on the contribution of North Africa in the production of the norms of international law has been but relative. It must be associated with another reality, which is that of the relationships between powers and their competition for domination. All through the centuries of coexistence of the Muslim empires and the European nations, their reciprocal relations were guided by war strategies and by the power games that dominated the Mediterranean world. If there is a contribution of the Muslims to international law, it is in the field of the protection of the laws of the persons, particularly in the laws of the Dhimmi, and more precisely in the laws of the religious minorities and the humane treatment of the war prisoners that it could be found.
The word ‘codification’ was invented and promoted by Jeremy Bentham. It is used by legal historians to grasp the movement that leads to the writing down of systematized codes, notably of civil codes, in continental Europe from the end of the eighteenth century to the aftermath of the Second World War. This chapter focuses on the diversity of codes and on the different policies of codification that were implemented in Europe during the period beginning with the Prussian General Code, the Napoleonic Code, or the Austrian Civil Code (1794–1811) and finishing with the German, Swiss, and Greek Civil Codes (1900–46). As political and social programmes, civil codes were the vectors of new conceptions and rules about family, property, and contract. The comparative perspective includes some developments about the so-called modernization of English private law that used other channels than codification.
This article examines the historical development and social and intellectual functioning of Islamic law in the twelfth through fifteenth centuries. In particular, it considers the progressive stabilization and institutionalization of the four classical Sunni madhhabs (schools of law) and the corresponding developments in Imami Shi‘ism; developments in legal theory (usul al-fiqh); and the practical administration of the law. It also discusses the various forms of ijtihad and taqlid that could generate new legal rulings, along with the textual forms and real-world interactions within which legal judgments were sought and expressed. Finally, it looks at the fatwa, which consists of a legal opinion issued in response to an inquiry (istifta’).
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 examines Alberico Gentili’s life and teaching; Gentili and the history of international law; and Gentili and the doctrine of war. In Oxford, Alberico Gentili wrote a large number of works, which can be divided in four main groups: treatises on topics of the civil law, law of nations, issues pertaining to political theology, and various questions of legal erudition. His major works include Three Books on the Law of War, Two Books on the Roman Armies, and Two Books of Spanish Attorneyship.
This chapter gives an overview of law in ancient Greece. After discussing the unity of Greek law and scholarship on Greek law, it reviews the evidence for law in Gortyn (in Crete), including the Gortyn Law Code, in Sparta, and at greater length in Athens, which is best documented. Athens had a highly democratic legal system. Legislation was enacted by an Assembly open to all citizens, laws were written and publicly displayed, plaintiffs and defendants pleaded their own cases, and trials were judged by juries of 200 or more. Private disputes first went to arbitration. When no individual victim existed (e.g. public embezzlement), anyone could prosecute. There were no professional judges, prosecutors, or advocates, but the rule of law was largely observed. In Hellenistic Greece, law in cities remained relatively unchanged but in newly settled areas like Egypt, law developed very differently. Greek law had little influence on later law.
Syed Adnan Hussain
This article examines the historical origins, sources, and subject-matter jurisdiction of Anglo–Muhammadan law, along with its influence on the trajectories of Islamic law. After providing a short history of Anglo–Muhammadan law, the article discusses its subject matter. In particular, it considers the contributions of Syed Ameer Ali, especially in the area of trust law, or awqaf. It proceeds by looking at various sources of Anglo–Muhammadan law, which include textbooks and English translations of primary texts, case law, and legislation and custom. To give a sense of how Anglo–Muhammadan law operated in case law, the 1922 case of Narantakh v. Parakkal is analyzed. The article concludes with an overview of changes in Anglo–Muhammadan law in the immediate period after independence and partition of India.
This chapter examines the scholarship in the new and growing field of study of Islamic animal law. It starts by defining the field of animal law generally and then explaining what makes animal law scholarship Islamic. Turning to Islamic animal law, the chapter first explains the origins of the field and then discusses contemporary Islamic animal law scholarship, which dates to the early-twenty first century and has focused on questions of purity and the dog; causing animals harm; anthropocentricism; and slaughter and the designation of halal. The chapter concludes by identifying promising areas for future scholarship.
John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari‘a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari‘a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ‘ibadat.
Archives and historical records are central to histories of law and legality. Themes and debates in legal history have been shaped, and in some cases even determined by the availability of and access to archival sources. Despite growing critiques of archives as partial, incomplete, and uneven sites of power/ knowledge, ‘the archive’ continues to operate as a site of retrieval and recuperation in legal history. This chapter builds on and expands the author’s earlier work on ‘law’s archive’. which explored how law writes its authority and legitimacy through a double logic of violence: the violence of law and the violence of the archive. In this chapter, this argument is reconsidered through the ocean as legal archive. Oceans productively materialize the tensions between what can be known and unknown of the past. They invite other artefacts, imaginaries, and possibilities for writing legal history, especially those of transatlantic slavery.
This chapter looks at debates about Asia in scholarship on the history and theory of international law. It also traces the evolution of concepts of sovereignty in the context of Asia’s colonial history, and more recent preoccupations with development. What counts as the ‘history and theory’ of international law is itself continuously changing and scholars must engage with new materials and issues. Possible new initiatives include deeper research on Asian traditions and concepts of rule and governance, justice, and order; approaching the history and theory of international law in Asia in global rather than regional terms; and turning to other disciplines—such as social/cultural anthropology—to develop new insights into the questions of governance and territory, and the powerful imaginaries of nationhood, sovereignty, and empire that animate the peoples of Asia, and that have not been entirely displaced by modern concepts of sovereignty and globalization. Examining these themes illuminates the important issues of how Asian states have attempted to innovate and use international law to further their own interests.
This chapter examines the evolution of sovereignty, universal jurisdiction, and state authority prior to the existence of the Westphalian international legal order, studying three cases from the Roman and medieval practice. The first case is a reply by Roman emperor Antoninus Pius on the limits of his jurisdiction with regards to the high seas. The second case revolves around the Constitutio Antoniniana, a disputed legal rule that gave citizenship to all inhabitants of the Roman Empire, for the first time invoking the territoriality principle. The third case relates to the principle of universal jurisdiction and the pope’s universal authority and its implications for the development of international jurisdiction. These cases highlight that the traditional image given in the literature of the history of the world being divided into a premodern world based on the personality principle and the ‘post-Westphalian’ world dominated by nation states and the territorial principle is misleading.
In the last quarter of the twelfth century a new type of royal court was created in England with courts possessing nationwide jurisdiction, whose justices required specific authorization to hear individual cases and who began regularly to use jury verdicts for fact-finding. From the first the justices of these new courts kept written records and from the last quarter of the thirteenth century these are supplemented by unofficial law reports made by those listening to what was done in court. Initially these courts were concerned mainly with serious crime and property rights over land but they also came to exercise jurisdiction over disputes about the mutual obligations of lords and tenants and helped to control various forms of coercion and self-help. These new courts created the English common law and well before 1350 this had also spread (to a greater or lesser extent) outside England to Ireland, Wales, and Scotland.
This chapter notes that the Austrian writer Bertha von Suttner was one of the leading figures of the late 19th-century peace movement. Her novel Die Waffen nieder! (Lay Down Your Arms!) was published in 1889 and was soon translated into the most important European languages. In 1891, Suttner founded the Austrian Society for Peace (Österreichische Gesellschaft der Friedensfreunde) and was the major influence on Alfred Nobel’s decision to include a peace prize among those prizes provided in his will. She was awarded Peace Laureate in 1905. Suttner’s attitude towards international law reflects the 19th-century optimism of liberal internationalism, characterized by its belief in rational thought and its advocacy for international cooperation within international institutions. Suttner was a talented propagandist whose aristocratic social background helped her to gain access to circles of power and influence.
The chapter explores the emergence of European legal history in the years after the Second World War through an analysis of Paul Koschaker’s seminal work, Europa und das römisches Recht. Whereas the rise of a European discourse of legal history gels with European integration, the chapter argues that its roots are rather to be found in Koschaker’s attempt to salvage the study of Roman private law from the crisis it had fallen into at German law schools during the interbellum. By highlighting the enduring role of the Roman legal experience for the formation of the European legal tradition, he hoped to give Roman law a new relevance for law students. The chapter further surveys the gradual widening of European legal history towards other subjects than Roman private law, in particular during the 1970s and 1980s.
John V. Orth
This chapter focuses on Sir William Blackstone (1723–1780), the author of the most important book in the history of the common law. The four-volume Commentaries on the Laws of England (1765–1769) and the series of lectures Blackstone delivered at Oxford from 1753, changed the way lawyers thought about the law. Blackstone’s Commentaries were read by more people, non-lawyers as well as lawyers, than any other English law book. Their influence is difficult to overstate, and extends into the twenty-first century. Almost as momentous was Blackstone’s influence on legal education. While gradual, the transfer of legal education from the law office and the courts to the university, which Blackstone pioneered, had an enormous impact on legal development, as law professors contributed to the formation of generations of lawyers and themselves came to play a significant role in legal development.
Tahirih V. Lee
This chapter begins with a brief overview of the foundations of the field of Chinese legal history. It then delves into questions of methodology and approach. Three such questions face the field now and in the near future. First, historians, law scholars, and anthropologists with their different training and bases of knowledge, ask different questions about law. Second, comparative law inextricably intertwines with Chinese legal history, and its use and abuse needs to be examined and its lessons be better learned. Third, given the sophistication for centuries of Chinese rulers’ efforts to propagate official lines about the law, it has been exceedingly difficult for scholars to pierce through it to see what was actually happening on the ground. Improvement in this will help us understand how, and the extent to which, substantive law reached the population during different periods of China’s history.