Classical Legal Thought: Revising the Revisionists and the Search for aMiddle Ground (original) (raw)
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Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this chapter I try to capture some aspects of this methodological moment—or moments— and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of " interdisciplinary " analysis (economical, philosophical, sociological, literary, etc.) and " doctrinal " analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between " modern " and " traditional " legal scholarship, and that between " common law " and " civil law " scholarship besides.
Law as . . .': Theory and Practice in Legal History
SSRN Electronic Journal, 2000
2011] AFTERWORD 1041 influence of "law and" in their resort to synchronic analyses of relational conjunction and disjunction, to which they add diachrony in order to reveal the effect of law, or to explain its reality, by assessing change in its relation to other phenomena over time. Unsurprisingly, the animating hypotheses of twentiethcentury legal history embrace the same broad relational problematics that have preoccupied twentieth century "law and" theory: instrumentalism, relative autonomy, mutual constitutiveness, legal construction, autopoiesis, and indeterminacy. 10 The shift to "law as. . ." suggests something else, something distinctive. Concretely, it suggests that explanations of law are not to be found, either necessarily or sufficiently, in its relations to other things. As Shai Lavi notes, with justification, the shift affords an opportunity to think beyond long-familiar Weberian categories and trajectories. 11 It is not determinedly programmatic, a route to the next big concept, but open-ended (hence the ellipsis). Yet it would be idle to pretend that "law as. . ." takes no position, that it is not historically situated. Blithely unaware of it at the outset, the conveners of the conference where the essays here were first presented have discovered that we are on a path that others are also following. We find ourselves riding a wave, one reverberating in both legal 12 and historical 13 scholarship. The wave owes its existence to developments in both history and law. As to the latter, it has never been more of a "hypostatized construct" than at present. 14 We return to this observation below. 15 But what of the former? It, too, hypostatizes itself, though in a more limited sense, being a professional practice with less instrumental reach. Still, as a professional practice, contemporary history, like law, is full of talk of itself. History's talk is of what history has to offer the present. 16 One offering is the narrative history that has become something of a staple of literary nonfiction. Narrative history represents history as edifying stories of the past. As Gordon 10.
Legal traditions: A dialogue between comparative law and comparative legal history
Comparative Legal History, 2018
‘Legal tradition’ is a term frequently used in legal history and comparative law. The increasing interest in global perspectives on law and history, the dialectics inherent in globalisation as such, as well as some tendencies of ‘de-’ and ‘re-tradionalisation’, often enhanced by law, have made legal traditions even more topical. But what does ‘legal tradition’ mean? In this article, I review some characteristic usages of the term by classical authors from both legal history and comparative law, like JH Merryman and Harold J Berman, with special emphasis on the work of Canadian comparative law scholar HP Glenn. Beyond its grounding in contemporary information theory and evidence of an impressive command of legal-historical scholarship, his concept of legal tradition as normative information bears analytical potential for legal historians and should be read as an invitation to dialogue between comparative law and comparative legal history.
A jog mint kultúra', a reply to András Karácsony's polemical essay in Jogelméleti Szemle 2002/3 http://jesz.ajk.elte.hu/varga11.html. 1 As we know, this has never been a fulfilled claim, not even in principle-if not back in the age of exegetic law-application in the first third of the 19 th century, when this ideal was pursued with all efforts in the euphoria of the textuality of the Code civil, with mechanical imple-10 DISCIPLINARY ISSUES mentation guaranteed and the legal clearly separated from the non-legal.The legal profession's smooth acceptance of the regime of National Socialism was due largely to the positivistic formalism inherent in modern formal law-similar to the strikingly easy transition of the German bureaucracy once created by BISMARCK to the post-BISMARCKian era, as described by WEBER. Both Soviet Bolshevism and German National Socialism broke with legal formalism, tracing it back to the liberal tradition, and condemned it as anti-revolutionarily bourgeois. The national socialist conception of law, defined by OTTO KOELREUTTER as he introduced Volksgeist and the Führer-Prinzip, remained faithful to this all along. In contrast, Bolshevism, further reduced to STALINism, returned to the classical bourgeois model simplistically idealised and broken into a dictatorial hierarchy. Cf., by the author, Codification as a Socio-historical Phenomenon (Budapest: Akadémiai Kiadó 1991) viii + 391 pp., especially chs.V-VI. 2 As to the latest development, cf., by the author, 'Meeting Points between the Traditions of English-American Common Law and Continental-French Civil Law (Developments and Experience of Postmodernity in Canada)' Acta Juridica Hungarica 44 (2003) 1-2, pp. 21-44 & http://www.akademai.com/content/x39m7w4371341671/fulltext.pdf. Accordingly, for me the genuine question is not when and to what extent legal positivism could become dominant at all-either as a theory or as an allegedly successfully implemented practice-but its underlying ideology. For the whole concept of Civil Law is defined throughout by the reduction of ius (as the core element of juridicity) to lex (as a set of posited texts), that is, by the embodiment of anything legal being posited by legal acts and, thereby, by reducing the complexity of legal processes to the artificial separation between 'law-making' and 'law-applying', or-in brief-by an institutional ideology (no longer separable from the very structure it institutionalises) that has remained up to the present day quite alien, strange and simply incomprehensible in light of the English as well as for the classical Jewish and Islamic understandings of law. 3 It was more than thirty-five years ago that I formulated for the first time as my own realisation just how dual our approach to law and legal conceptualisation is. That is, within a given legal arrangement we cannot but formulate each and every issue in a positivistic way, or, to put it another way, from the perspective of the image and ideology the law offers about itself, while in scholarship we have to provide a (philosophical, sociological or analytical) description and conceptual definition verifiable/justifiable in theoretical reconstruction. 4 And, my studies on LUKÁCS also revealed to me that such a self-image is by no means something randomly attached from the outside to the otherwise automatically well-functioning realm of law after the fact, but is part of the legal arrangement in question as a sine qua non integral component of it. 5 This is the context in which the feasibility of investigations dedicated to equations like "law as…" emerges, with variables such as history, culture, communication, process, linguistic game (etc.)-i n a d d i t i o n t o "law…" as positivation, text, rule (etc.). However, all this is not meant to eliminate the law's positivistic self-description as it defines the self-identity of modern formal law but only to promote theoretical reconstruction with insights not otherwise accessible. And it is to be noted that no such investi-Law as Culture? 11 3 Cf., e.g., Peter G. Sack 'Law & Custom: Reflections on the Relations between English Law and the English Language' Rechtstheorie 18 (1987) 4, pp. 421-436. 4 Cf., by the author, 'Quelques questions méthodologiques de la formation des concepts en sciences juridiques' in
The Intellectual History of Law
The Oxford Handbook of Legal History (Markus Dubber and Christopher Tomlins eds,, Oxford: Oxford University Press, ), 2018
This chapter of The Oxford Handbook of Historical Legal Research identifies some recent trends in historiography generally, and in the study of intellectual history. The chapter discusses the relevance of these trends to the study of the intellectual history of law, referring to relevant legal history works reflecting these trends, noting existing lacunas, and proposing future directions for the development of research in the study of the intellectual history of law.