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’).
This article discusses academic work in relation to appellate courts. It concentrates on characterizing and explaining judicial decision-making and winning on an appeal. Furthermore, it raises questions about the nature and coverage of empirical legal research on appellate courts, and discusses general methodological questions. It also looks at rival approaches to describing what judges do in making decisions, and what motivational assumptions are most commonly made and finally indicates the broad outlines of how the field should develop methodologically in the future. Empirical legal research suffers from the main weakness of the entire body of empirical research applied to appellate courts. This article concludes by mentioning that a shift of focus is needed to other aspects of law. To be forced into a choice, a judge must feel that what he regards as morally correct would be inconsistent with existing law.
This chapter considers both the foundations for, and the content of, the High Court's authority in Australia. It focuses principally on the current authority of the High Court, but with reference to some aspects of its history. The chapter first explains the Court's constitutional status as Australia's apex court, performing the role of both constitutional court and ultimate appellate court for both federal and State matters. It next outlines the institutional features of the Court that underpin its authority, in particular its composition and independence. The chapter then examines the Court's authority to enforce constitutional limits through judicial review of legislative action. Lastly, the chapter considers the Court's authority to review executive action and the constitutional foundation for that role.
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.
This chapter examines the uneasy relationship between the Australian Constitution and membership of the Australian polity. Unlike some constitutions, the Australian Constitution contains no mention of ‘citizenship’. Instead, formal membership of the Australian community is determined by reference to the constitutional categories of ‘subjects of the Queen’ and ‘people of the Commonwealth’ and through the legislative definition of citizenship under federal law. These peculiar features of the Australian context reflect what is generally assumed to be the modest role of the Constitution in determining national identity and the fact that Australia was not an independent nation at the time of the Constitution's drafting. Developments in legislation, constitutional jurisprudence, and mooted constitutional amendments all point towards a greater role for the Constitution in determining Australian ‘citizenship’ in the future.
This chapter considers the meaning of the term ‘common law’ and its application in the context of Australian federalism. It discusses some views on common law vis-à-vis the Constitution, as well as the history of the development of common law in Australia. The common law of Australia includes the choice of law rules. The common law choice of law rules select which of the competing State or Territory laws is the lex causae. They apply either directly in the court of the forum, or where federal jurisdiction is exercised, as ‘picked up’ by operation of section 80 of the Judiciary Act 1903 (Cth). A further significant aspect of the development of the common law of Australia is its illustration of the temporal character of the common law.
T. W. Bennett
Customary law grows out of the social practices which a given jural community has come to accept as obligatory. It is a pervasive normative order, providing the regulatory framework for spheres of human activity as diverse as the family, the neighbourhood, the business of merchant banking, or international diplomacy. This article looks at the indigenous customary laws of sub-Saharan Africa. It deals with the preservation of the law in an oral tradition and how it has been influenced by certain social, economic, and political structures. This focus requires, in turn, that particular attention be paid to factors influencing the production of texts on customary law. Because textual information on the subject is limited, often outdated, and somewhat subjective, readers must be made aware of how changes in the theories of jurisprudence and anthropology have affected ideas and preconceptions.
Jan M. Smits
This article assesses the scholarly state of affairs regarding the influence of comparative law in national systems. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously. The second and third section distinguishes several types of use of comparative law by national legislatures and courts, providing the background for a critical evaluation of this influence in the subsequent sections. The fourth section discusses the legitimacy question and the question of how to categorize the different uses of foreign law. The fifth section addresses why a legislature or court actually refers to foreign law and is how to explain the different extent to which countries are open to foreign influence. The last section considers the exact influence of comparative law arguments on the legislature’s or court’s reasoning.
This article examines comparative law in Islamic/Middle Eastern legal culture. The first section discusses the comparative framework in Islamic law and civilization. The second section describes the rule of law in the prism of the legal profession. The third section discusses the notions of public and private in issues such as constitutions, contracts, and torts, and family law. A millennium and a half after the Islamic revelation, unrest and violence associated with the Islamic/Middle Eastern world make one wonder, from a comparative perspective, whether West and East are not on a collision course precisely because of their diametrically opposed concepts of law. On the Western side, law is associated with nation-states and their territory; on the Islamic/Middle Eastern side, law is dominated by the personal dimension, defined by an individual’s religious, and often sectarian identity.
Jacques Du Plessis
Legal systems generally are ‘mixed’ in the sense that they have been influenced by a variety of other systems. However, while some legal systems, for a period of time at least, reach a certain level of uniformity, the diversity or ‘mixedness’ of the origins of other systems is more pronounced. This chapter deals with the experiences of the latter systems, and especially with their relevance to the discipline of comparative law. The focus is first on the concept of a mixed legal system, as well as related concepts, such as legal pluralism and hybridity, that have gained prominence in comparative analyses. Thereafter key questions that arise from these analyses are then considered in detail. These questions include how the mixed nature of legal systems is to be dealt with in representations of legal diversity of the world, how mixed legal systems are formed, and what could be learned from their experiences.
The region of Central and Eastern Europe covers many of the European nations east of Germany. The dominant nation of the region is Russia. Between Russia and Germany there are, first, a number of small nations composing the region known as Central Europe (Poland, Hungary, the Czech Republic, and Slovakia); second, the nations which formed the western part of the Soviet Union; and, third, the states on the Balkan peninsula. This article shows the rich history of comparative law before the installment of communist regimes, such as the era of Stalin, and then discusses comparative law under communism and the role and status of comparative law after the fall of communist rule.
Jeffrey Goldsworthy and Lisa Burton Crawford
This chapter explains how constitutionalism developed and how it currently operates in Australia. It first explains the historical developments whereby Australia combined elements of the British and American models of constitutionalism, which employ legal and political constitutionalism in very different ways. The chapter then describes three main stages in the development of Australian constitutionalism. The first was the establishment in the nineteenth century of colonial Constitutions, which employed a predominantly political form of constitutionalism and, upon federation in 1900, became the Constitutions of the six Australian States. The second was the establishment of the Commonwealth Constitution in 1900, which necessarily blended elements of political and legal constitutionalism. The third consists of more recent innovations by the High Court that have expanded the role of legal constitutionalism. Each development has built on its predecessor, resulting in a distinctive combination of political and legal constitutionalism.
The chapter introduces the Court of Justice of the EU by looking at five key elements defining the institution in a diachronic perspective: the structure of the Union courts located in Luxembourg, looked at vertically (the ECJ, the GC, and the CST) as well as horizontally (division of work within the ECJ and in particular the role of the grand chamber); the type of judicial business the Court of Justice carries out today, in both its quantitative as well as qualitative dimensions; its composition, including the recent changes made by the Treaty of Lisbon to the way in which judges and Advocates General are selected and appointed; the often discussed reasoning style and structure of the judgments; and, finally, the even more frequently discussed and recurring question of the legitimacy of the Court of Justice.
Analysis of EU law making is made difficult by the presence of multiple legislative procedures. Matters are further complicated by neither national nor postnational models of democracy providing convincing answers as to when EU law making is democratic. This grants EU law making a democratic ambiguity. It is committed to democracy and has democratic features, but not sufficiently to convince the Union’s citizens of its democratic authority. The scepticism generated by this is itself valuable. Democratic ambiguity generates further positive features within all EU legislative procedures: the possibility of triple review by different institutional actors—the European Parliament, national governments, and national parliaments. This is unparalleled but compromised by other features of EU law making: first, the lack of compass to indicate when it is democratic for the Union to legislate, and second, democratic fluidity, the presence of informal processes that serve to bypass and undermine this triple review.
This chapter examines the design of Australia's federal system. Two historical propositions affirmed in the preamble to the Constitution are central to this conception. These are, firstly, that the Constitution was predicated on an agreement between the people of the Australian colonies and, secondly, that the intention was to unite the colonies into an indissoluble federal commonwealth. The Australian Constitution does not rest upon the consent of an already consolidated people; nor does it create a unitary state. It is the result of an agreement among several mutually independent political communities and it establishes a federal system of government that preserves their continuing existence as self-governing polities.
France has a long and solid tradition of comparative law. This article traces the discipline’s development in France, describing its strengths and weaknesses. As universal a science as it is, comparative law has distinctive features in each country. While there is currently no such thing as French or Italian comparative law in the sense that there is French or Italian contracts law, there is an identifiable French style in comparative law that is closely related to the development of French legal thought in general. The never-ending question of the purpose of comparative law emerges as one of the fundamental jurisprudential debates of the twentieth century. The first section of this article details the historical rise of comparative law in France. The second section chronicles its decline. The third section predicts its renaissance, provided French scholars, practitioners, and judges give the study of comparative law the regard it is due, in the light of the internationalization and Europeanization of the law.
This article provides an overview both of the development of comparative law as a field of research, and of its impact on legal changes in Germany, Switzerland, and Austria. It focuses on the development of comparative law in the field of the law of obligations. The second section deals with the long nineteenth century. The third section considers the golden age of comparative law, which covers the period of the Weimar Republic. The fourth section discusses the ‘dark age’ of the 1930s and the first half of the 1940s. The fifth section describes recovery and post-war developments until the end of the cold war. The final section focuses on attempts to unify the law and on new approaches to comparative law which have gained in importance in the course of the Europeanization of private law.
John W. Cairns
Comparative law developed in Great Britain in the second half of the nineteenth century. The discipline focused mainly on imperial problems of foreign law and the assimilation of the laws of the different dominions of the Empire. Despite an interest in evolutionary jurisprudence, British scholars generally did not view the discipline as involving a search for universal principles. Through the twentieth century, there was a tendency to focus on comparison of the common law with the civil law, especially that of France. The discipline started to be significant in the universities with the expansion of legal education after the Second World War. Some aspects of the discipline developed into more anthropological studies, others remained more traditionally academic, while British membership of the European Economic Community (EEC) and more global pressures engendered interest in issues such as legal transplants and mixed systems, even if British scholars have traditionally been sceptical of unification of laws as an aim.
Since Italy’s unification in 1861, Italian law has mainly been a ‘context of reception’. In contrast to contexts of production, where legal scholarship tends to unfold in a self-centred mode, contexts of reception tend to search for legal innovation abroad. Italian legal culture has often copied legal ideas, norms, and institutions from foreign countries but only rarely produced original work of its own. The article begins the story of comparative law in Italy in the early part of the twentieth century. It distinguishes three fundamental layers: a commercial law branch, a reformist tradition, and a mainstream, ‘scientific’, approach. It discusses the current state of Italian comparative law resulting from the academic and cultural influence of these three layers. It also attempts to assess the impact of the more significant and original contributions of Italian comparative law at the European and global levels.