Sociological Perspectives on Social Change and the Role of Learned Law: Building on and Going beyond Berman and Bourdieu (original) (raw)
THE HISTORICAL LAWYER AND THE GOALS OF LEGAL EDUCATION
Zbornik Pravnog fakulteta u Zagrebu, 2022
Sloppy education results in misdirected graduates. We need to see legal education as a matter of shaping in adepts something that can be called caliber of intellect. It is referring to the university formation of a way of thinking and of perceiving the world that distinguishes legal studies from any other intellectual or scientific preparation. The author argues that legal education in the main must ensure that graduates are historical lawyers. There are two occupational paths open to law graduates, that of practitioners and that of scholars. The vast majority choose to be practitioners. Law adopts not only a dogmatic or comparative legal perspective, but also a historical perspective of discourse and argumentation. The users of this argumentation—and, one might say, everyone who appreciates it—are, on the strength of this fact, historical lawyers. Law is in a constant process of historical development, therefore a historical lawyer is a realist lawyer. The historical lawyer, with his awareness of the inevitable successive changes in the law, has no illusions as to the immutability of specific regulations, and is consequently more able to estimate the spectrum of such changes and what future amendments might entail. He is aware of the mistakes of the past and can thus take care to avoid them in the future—and, hopefully, help others to avoid them, too.
Origin and historical differentiation of the roles of lawyers
Jogelméleti Szemle
The European legal systems and the professional judicial roles have their beginning from the discovery of the collections of Justinianus and the emergence of the teaching of law in Bologna in 1100 and in the modern epoch of the last two centuries the differentiated judicial roles of lawyer, of judicially trained judge and of legal scholar are common. This differentiation has been going on for several centuries, and by the middle of the 19th century, differentiated legal roles already existed in most European countries. It is generally known that this development had its basis and its starting point in the Roman law, but the amazing parallelism of the thousand-year legal development of the Romans with the subsequent eight-hundred-year development of the law in the continental European countries perhaps did not receive such a strong emphasis in the literature. In the first part of this small paper I intend to sketch the emergence and differentiation of the jurist roles among the Romans during their thousand years of legal history, and the sketch to the parallel development of the last centuries starting from 1100 in Bologna is to be read in the second part.
Lawyers and the Vital Relationship between the Past and the Present
German Law Journal
is composed of numerous interesting essays (21 essays in total) and, in the time at my disposal, I shall not be able to expound on them with the care and attention that they merit. Consequently, I shall be able to mention only some of the relevant topics that this book addresses. My general impression is that we have before us an important, original, and complicated book. It is a book that does not run the risk of mingling in the mass of the works devoted to the past, the present, and the future of Europe. It is a book centered on an original and, in some ways, disturbing hypothesis: the hypothesis that the relationship between the twentieth century totalitarian regimes and the liberal and democratic traditions may be different from a mere antithesis, as our common sense tends to suppose.
Legal Revolutions, Cosmopolitan Legal Elites, and Interconnected Histories
Law as Reproduction and Revolution: An Interconnected History
The global rise of financial capitalism and neoliberal economics over the past thirty to forty years has helped produce a "legal revolution" (Berman 1983) in much of the world. Tangible results of this process include the proliferation of large corporate law firms-a US invention-in the major capitals of the world and, more recently, a trend toward legal education reform geared toward those corporate law firms and US approaches to legal education. The current legal revolution, like the earlier one in the United States, is associated with a modernist commitment to meritocracy, which can be deployed against entrenched legal elites-even oligarchies-held together by family or quasi-familial capital. The strong impact of this revolution is apparent in the major countries of Asia, including the subjects of this study-China, Hong Kong, India, Japan, and South Korea. Our book is about this revolution and the very different ways it is playing out in those countries. But it is also about how such revolutions both attack legal hierarchies and are central to their reproduction. Richard Abel's well-known work on the legal profession emphasized professional control of markets and "the production of producers" (e.g., Abel and Lewis 1989-90) as keys to the success of the profession. In contrast, we argue that control of the production (and reproduction) of producers is applied mainly to protect those at the top of the legal hierarchies. In other words, the key strategy is not so much to restrict internal and external competition through monopoly and limited entry into the profession; rather, it is to enforce an internal hierarchy that reserves access to the top positions to a cosmopolitan elite blessed, most typically, with inherited legal capital and degrees from highly selective schools. Such elites include descendants of the French "noblesse de robe, " notable "jurists" in Brazil, high court advocates and judges in India, and, in places like China, Japan, and South Korea, families with sufficient resources that their children will excel on national examinations and rise to the most respected positions.
Legal Knowledge as Social and Political Capital
AJIL Unbound
The 150th anniversary of the Institut de Droit International (IDI) and the International Law Association (ILA) provides an opportunity to assess the role of legal scholarship in the codification and institutionalization of international law. This essay argues that academic expertise is a form of social and political capital that is at once individual, institutional, and structural. Empirically focused on international dispute settlement mechanisms (interstate adjudication and arbitration), this essay underscores that academic expertise shapes the professional status of international lawyers, and influences the clout of international institutions as codifiers of international law.
History of law and other humanities: views of the legal world across the time
2019
The collection of thirty-five essays presented here examines the links forged through the ages between the realm of law and the expressions of the humanistic culture. The essays are organized into sections of ten chapters based around ten different themes. Two main perspectives emerged: in some articles the topic relates to the conventional approach of ‘law and/in humanities’ (iconography, literature, architecture, cinema, music), other articles are about more traditional connections between fields of knowledge (in particular, philosophy, political experiences, didactics). The variety of authorial nationalities gives the collection a multicultural character and the historiographical interpretation is the element that unites the collection, with a breadth of the chronological period goes from antiquity to the contemporary age. This project is the result of discussions that took place during the XXIII Forum of the Association of Young Legal Historians held in Naples in the spring of 2017
HEIRBAUT MO 005 History of the University in Europe: after WWII, Law
414 The history of the law faculties, of legal education and legal research, is a part of the history of the universities, but it is more than that. Law schools belong to two worlds: the academic and the legal, and many law professors, teachers or researchers are more familiar with legal professionals than with their colleagues from other faculties. In fact, many academic lawyers are also practising lawyers and true academics are a rare breed in law schools, only to be found in some unpractical, and hence very minor, fields like the philosophy of law. Moreover, unlike the subject of other sciences, law is not universal, but national, which means that national law, national legal culture and national legal professions have done as much to shape the law schools in the second half of the twentieth century as the global evolution of science and education, 1 which is generally disregarded by lawyers, even academics, when they discuss the history, the current situation or the reform of law faculties. Nevertheless, law schools took part in the general evolution of the European universities, 415 but sometimes the common pattern was warped by elements specific for the legal world and some evolutions were unique to law schools.
The aim of the seminar is to problematize the legal phenomena in a multidisciplinary approach and beyond the normative and descriptive dimensions of laws and legislations. Considering law as a multi-layered dynamic process, the seminar intends to explore the complex relationship between law, legal institutions and social dynamics and to problematize law within the social landscape and the particular cultural settings in which it emerges in relation to a variety of social actors. Normative approaches investigating law only understand it within the narrow context of legal reforms and are far from reflecting the epistemological process, which preceded the final textual productions. Without leaving aside the making of state laws and other forms of normativity, the epistemological dimension of the seminar will focus on law in all its variety, in the form of ideas, ways of reasoning, doctrines, legal and cultural transfers and will analyze the role of education and other processes (Enlightenment, invention of the printing press, etc.) in the development of legal thought. The seminar will also contextualize law within historical momentums and global movements (such as constitutionalism, dynamics of colonialism, revolutions, etc.) and will address issues such as legal pluralism and imperialism. The various themes of this seminar will also overlap with those of colonial and imperial history. The seminar will privilege the Ottoman space in relation to Europe without neglecting the global context by offering a list of suggested readings on the legal history of other geographies as well. The time frame under consideration will be mainly the nineteenth century. Requirements Every week, participants will be asked to read in advance a certain number of selected texts and to present the readings. Participants will be responsible only for essential readings. Suggested readings are only to give further ideas on the legal developments of the Ottoman space and other geographies for comparative purposes. The seminar targets an audience of students in their final year of bachelor's degree program as well as master's students and PhD candidates. In that respect, in addition to participation-presentation, bachelor's degree students will have an exam while master's students and PhD candidates will submit a term paper (10.000 words maximum) based on a research theme of their choice and related to the seminar at the end of the term. The grade for the seminar will consist of: Participation-presentation: 30% Exam (for bachelor's degree students): 70%
The Common History of European Legal Scholarship
Erasmus Law Review, 2011
This paper traces the common history of European legal scholarship from its beginning in the late 12 th century to the development of national codifications which started some six centuries later. During this period, Roman law was of great importance in the universities, and Justinian's Corpus Iuris Civilis was the central text for legal studies. We will look at the different approaches to this body of text that legal scholarship has taken over the years. Still, Roman law did not have a complete monopoly: we will have a look as well at Canon law and Moral Theology, which also developed a system of legal norms, but on an entirely different basis. They paved the way for Natural law, which-in a critical dialogue with Roman law-paved the way for modern codifications.
2018
Course description The aim of the seminar is to problematize law in socio-legal and multidisciplinary approaches and to trace "law in action" beyond the static and descriptive dimension of legislations. Locating law in its socio-temporal context and considering the legal phenomena as a multi-layered dynamic process, the seminar intends to explore the complex relationship between law, legal institutions and socio-historical dynamics and to problematize law within the social landscape and the particular cultural settings in which it emerges in relation to a variety of social actors. As Christopher Tomlins argues, the project of situating law in its socio-temporal context engenders an almost infinite set of relationships for examination. Normative approaches investigating law only understand it within the narrow context of legal reforms and are far from reflecting the intellectual and epistemological process, which preceded the ultimate form of legislations. After introducing the major theories on the sociology of law, the seminar intends and to explore law as a social product. Without leaving aside the making of state laws and other forms of normativity, the epistemological dimension of the seminar will focus on law in all its variety, in the form of ideas, ways of reasoning, doctrines, legal and cultural transfers, and more importantly as a subject of legal science and will analyze the role of education and social movements in the development of legal thought. Such an approach to law also opens a productive dialogue between neighboring disciplines, law, history and sociology and offers an empirical laboratory through historical case studies. The seminar will privilege the Ottoman/Turkish geographical space in relation to Europe without neglecting a global context. The time frame will mainly cover the nineteenth century. The seminar will contextualize law within historical momentums and global movements (such as constitutionalism, dynamics of revolutions, etc.) and will address issues such as legal pluralism and imperialism. The various themes of this seminar will also overlap with those of imperial history.
Comparative Legal History: Law and Innovation
PIHLAJAMÄKI, Heikki; NUNES, Diego; DAL RI Jr., Arno (Ed.s). Comparative Legal History: Law and Innovation. Belo Horizonte: Del-Rey, 2024
The present volume is the outcome of an international initiative by UFSC’s (Federal University of Santa Catarina) Ius Commune – History of Legal Culture Research Group, in collaboration with the Universities of Helsinki and Turku. Most of the articles are based on presentations given at the seminar “Law and Modernization: from Colonial Laws of the Early Modern Period to the Technical Revolution (19th–20th Century)”, conducted in conjunction with researchers from Helsinki and Turku Universities on November 17–19, 2021, with support from the Fundação Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES). This selection of articles aims to promote a dialogue between comparative legal history scholars from various European and Brazilian law faculties, and to construct and consolidate this field in Brazil. The dialogue, furthermore, attempts to strengthen the role of legal history in relation to the more technical and dogmatic legal disciplines, and to promote healthy critical distancing from current legal discourse. The organizers wish to discuss the way that modernizing processes have modified the ways of contemplating and dispensing justice through law. Here, we emphasize two standpoints. First, the colonization process made new tools and theories available on the construction of modern law, in which the metropolis-colony relationship must be considered beyond mere subordination. Second, long since and irrevocably, technology has altered the picture of modern law. Economic development and its relationship with environmental challenges constitute a fundamental axis of discussion. By incorporating historical content into legal curricula, academia has fostered the education of critical legal scholars. One of history’s most useful tools, therefore, is comparison, a fundamental analytical resource for modern jurists. For legal practitioners, the ability to contemplate matters through diverse spatial and temporal lenses is of paramount importance. Since the importing of metropolitan legal models into the colonies and the impact of the technological revolution on modern nation states, technological changes have shifted our ways of thinking about our legal systems. This collection of articles offers a comparative and global perspective on law and innovation, which we believe is fundamental in order to broaden Brazilian thinking on legal history. The contributing authors exemplify an approach to law as a cultural, historically localized phenomenon, distinct from approaches that take legal structures as atemporal foundations of society or as automatic reflections on social formations. Lastly, the book highlights contributions by researchers at Ius Commune UFSC, further advancing the debate on the subject through lectures and discussions held during the 2021 event. The opening article consists of a comparative historical analysis by Heikki Pihlajamäki, who argues that private law codification was not as indispensable to nineteenth-century continental legal culture as standard legal histories would have us believe. Indeed, law was modernized at roughly the same time in Western countries that did not codify private law – the common law world and Scandinavia. This suggests a connection between the legal history of regions with and without codification. In this exercise in critical legal history, Pihlajamäki argues that the driving force behind the modernization of Western law has been legal scholarship, not legislators and their codes. The article duly illustrates the relationship between comparative legal history and critical legal history: critical legal history may not be comparative by definition, but in practice it almost always is. Pietro Costa, in his essay, discusses the impact that the thematization of the spatial-temporal dimension has had on historical research, and on legal historiography in particular. The author mobilizes the idea of the “spatial turn”, which led several disciplines of the time to rethink some vital aspects of their frame of reference, such as the notion of space and the relationship between the temporal and spatial dimensions. With this in mind, the author attempts to answer the following questions: What improvements does the concept of ‘spacing history’ offer to the framing and instruments of historical research? How can a better awareness of spatial and temporal coordinates sharpen the cognitive instruments of the historian? In short, the author believes that understanding the concepts of space and time, and the link between them and social process, can contribute to improving historical research. Diego Nunes discusses extradition in Fascist Italy and in the Brazil of Getúlio Vargas to understand whether the institute suffered authoritarian torsions in the domestic law field in these countries, and in the diplomatic relations between them. In Codice Rocco, the provision on extradition was intended to strengthen repression. If the 1938 Brazilian Extradition Act, on one hand, relies on the elements of the institute created in the nineteenth century, the Act also adds important elements to the defense of a strong state. However, the Italian-Brazilian extradition treaty of 1932, attached to the liberal paradigm, ended up protecting the individuals subjected to extradition. In that case, were these rules truly of a fascist origin? Surely “Fascist Criminal Law” did not quite amount to a revolution, since despite introducing major changes, it coexisted with the liberal tradition of criminal law. Reconsidering the relationship between the science of criminal law and penitentiary systems, Jean-Louis Halpérin analyzes the literature on prison innovations during the nineteenth century. Halpérin draws on texts on the penitentiary system produced by specialists across various fields, emphasizing the contribution of criminal law professors to the legal discourse. The article traces a chronological path from the inception of penitentiary knowledge to the science of criminal law in the middle of the nineteenth century, and to the emergence of criminology as a third discipline, associated with the positivist school. According to Halpérin, the debates on the penitentiary system were progressively integrated into penal science, and consistently sought to defend the autonomy and primacy of the science of penal law over sociological, statistical, and medical points of view. In his article, Georges Martyn points out that nineteenth-century Belgium can in many ways be considered a “legal province” of France. According to the tradition of the Exegetical School (École de l’exégèse), legislation is the one and only formal source of law for judicial decisions. This legislation is primarily composed of the Napoleonic codes. Judges seem to be wary of referring to other sources, particularly the supreme court, known as the Cour de cassation. If a “foreign” source is quoted, it is a French one. The scrutiny of various published court sentences confirms what has been written by many Belgian scholars: the Belgian legal culture was part and parcel of the French one, at least until the mid-20th century. After the Second World War, due in part to Belgium’s “de-federalization” and its integration into the European Union, Belgian jurists increasingly turned their attention to other foreign legal systems. They were no longer apprehensive about using other formal sources of the law, such as case law, doctrine and (unwritten) general principles. The establishment of the Council of State and the Constitutional Court in the latter half of the twentieth century contributed to the shift away from France, and the development of a distinct Belgian and Flemish legal culture. In her article, Mia Korpiola examines the extent to which early Finnish automobile regulation was influenced by foreign norms and the channels through which these foreign influences emerged in the 1900s and 1910s. Sources used in the article include local automobile traffic ordinances and their preparatory works, proposals, and impact studies for an aborted nationwide decree on liability in motorized traffic situations, archival material, and newspapers. The author shows how, although Finnish automobile traffic remained only locally regulated until the 1920s, regulation was heavily influenced by foreign norms. When the municipal authorities and committees in Helsinki drafted various proposals for automobile ordinances, they closely followed what was happening abroad. Newspapers, foreign legal literature and trips abroad provided Finns with information on European legal developments regarding the regulation of automobile traffic. Influences came from Germany, England and especially from the Nordic countries, particularly Denmark and Norway. Despite its local application, Finnish municipal automobile regulation is an example of both spontaneous and intentionally organized convergence of traffic norms in early twentieth-century Europe. Airton Ribeiro analyzes the pluricontinental Portuguese judicial administration, characterized by intensive movement of personnel around and between its dominions, forming a global network of rotating judicial posts, where both individuals and their books circulated. The study focuses on the book lists of eleven magistrates appointed to judicial posts in a range of locations throughout Portuguese America between 1799 and 1807. Censorship sources allow us to identify the books that these itinerant magistrates regarded as indispensable for the exercise of their judicial duties. In view of the shipping costs, the weight and, above all, the temporary nature of the functionaries’ posts, the judges established traveling libraries, portable collections of essential professional books. Identifying the books that the judges selected as tools for their overseas judicial activities gives us a good idea of the legal literature available in the final years of the Portuguese Ancien Régime. Ultimately, this investigation sheds light o...
The Encyclopedia of Christianity, ed. Erwin Fahlbusch, 2003
This Article provides a brief analysis of the main shifts in Western law and legal theory in four watershed Enlightenment of the eighteenth and nineteenth centuries. It shows how major shifts in dominant religious ideas transformed the legal ideas and institutions of their day. It concludes that, although recent secular movements have removed traditional forms of religious influence on Western law, contemporary Western law still retains important connections with Christian and other religious ideas and institutions.
The article examines the nature of contemporary legal training in two French elite higher education institutions -one dedicated to prepare for legal careers in the economic field, the other one to train top civil servants -in order to assess the role of legal knowledge in the shaping of French contemporary elites. Based on observations of law classes in these schools, it sheds light on the kind of knowledge, skills, and values transmitted through this education. The article shows that in both schools law is presented as a major tool of power, which reinforces its traditional place as governing knowledge. This goes along with the promotion of an instrumental vision of the law, encouraging playing with the law to serve political and financial goals. In this regard, these schools elude the traditional French conception of law as a self-sufficient, coercive and neutral system of positive norms. Though observations show that this move away from French patterns is not fully accomplished in the schools, the promotion of law as a means to profitability and efficiency favours a convergence in the modes of thinking of both economic and administrative elites.