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14 June 2014

JOURNAL: (2014) 2:1 Comparative Legal History (the Official Journal of the European Society for Comparative Legal History)

I'm very pleased to announce that the latest volume of Comparative Legal History, a partnership between the European Society for Comparative Legal History (ESCLH) and Hart Publishinghas been published.

Seán Patrick Donlan (sean.donlan@ul.ie), Editor


Access the issue online and purchase individual papers here.

Subscription information is available here. As the official ESCLH publication, its members receive a free subscription.

The articles in this issue include:

Geoffrey MacCormack - ‘Agreement’, ‘Contract’ and ‘Debt’ in Early Chinese Law

This paper examines the evidence for the development of a law of contract during the period of the Warring States (481-771 BCE) and the Qin/Han dynasties (221 BCE – 220 CE). From a study of the technical terms found in the context of agreements, in particular zhai (debt), yue (agreement), and quan (document in two parts), the conclusion is drawn that early Chinese law never developed beyond the stage of recognition of a number of distinct types of agreement to which legal consequences were attached. No ‘law of contract’, comparable to that developed in Rome at roughly the same epoch, emerged from these particularities. The main reason for the difference between Rome and China, it is suggested, lay in the lack of emergence in China of a class of private lawyer resembling the Roman jurists.

Marcel Senn -  ‘Law and Authority’: A Political and Legal Paradigm by Thomas Hobbes and its Different Receptions in the USA, Canada, Britain and Germany since 1989

Thomas Hobbes’ Leviathan is one of the few grand oeuvres representing the code of pre-modern political power. This code often legitimates our present understanding of law and state. Therefore it is necessary to discover the ‘socialisation’ of the interpreters – that is the impact of social, cognitive interests within scientific interpretations of law – so as to improve our understanding in a more differentiated way. The author demonstrates this in relation to three different discourses on Leviathan conducted in North America, Britain and Germany during the last twenty-five years. He thereby shows how the ‘socialisation’ of the interpreters is manifest in these particular discourses, and what this means to a reader’s critical comprehension when he or she tries to understand an opus such as Leviathan by merely reading secondary literature.

Johannes W Flume - Law and Commerce: The Evolution of Codified Business Law in Europe

This paper tracks the evolution of the codification of commercial law and company law, also known as business law. Although the literature on codification in general is vast, little attention has been dedicated to the importance of business law in this context despite the first major moves towards codification being achieved in this field. A comparative and historical survey of the codification of business law in France, England and Germany illustrates how the European legal landscape has been affected by the process of casting the law in statutory form. Indeed, regardless of the commonly-held misconception that there is ‘a’ commercial code, the legislative responses to the needs of commerce have varied widely from country to country, for while company law was always in focus, the rest of the corpus differs substantially. The code de commerce of 1807 was primarily of a procedural nature, while the German commercial code of 1863 created its own ‘private law cosmos’ and the late English codes adopted yet another, very selective, strategy. The aim of this comparative study is to understand the foundations of the legal institutions of the nineteenth century which still form the basis of our current statutes. This in turn allows some predictions for likely future developments to be made.

Tatiana Borisova and Jukka Siro - Law between Revolution and Tradition: Russian and Finnish Revolutionary Legal Acts, 1917–18

This article compares the legislative practices of two socialist revolutions in Russia (the Bolshevik revolution) and Finland in late 1917 and in 1918. Notwithstanding the considerable differences in the social, political and economic conditions in Finland and Russia, the revolutionaries in both countries had similar legislative strategies. The revolutionary legislative policies had the same ends: to secure the success of the revolutions, and, eventually, to build a new and better society. This article seeks to demonstrate the history of revolutionary law-making as a juncture of two main tendencies: the emergence of new ‘revolutionary’ features of legislative politics and the preservation of pre-revolutionary law.

We argue that the pre-revolutionary practices of law-making on which the revolutionaries relied shaped their strategies and, to some extent, the criteria by which they judged the ultimate success of their revolutions. We argue that the performative effect of revolutionary slogans should be perceived, at least in part, as a continuity of pre-revolutionary legal and administrative practices. Our comparative analysis of revolutionary law-making provides a more complex understanding of the role of revolutions in modern state empowerment.

The Reviews, including a Review Article, include:
  • Paolo Napoli - A review article of Giorgio Agamben, Altissima povertà. Regole monastiche e forma di vita
  • Arno Dal Ri Jr - A review of Ignazio Castellucci, Sistema juridico latinoamericano: una verifica
  • Peter CH Chan - A review of Lei Chen and CH (Remco) van Rhee (eds), Towards a Chinese Civil Code: Comparative and Historical Perspectives
  • Jasmin Hauck - A review of Irene Fosi, Papal Justice: Subjects and Courts in the Papal State, 1500–1750  
  • Dave De ruysscher - A review of Stefania Gialdroni, East India Company: una storia giuridica (1600–1708)
  • Merike Ristikivi - A review of Heikki ES Mattila, Comparative Legal Linguistics: Language of Law, Latin and Modern Lingua Francas
  • Elisabetta Fiocchi Malaspina - A review of Luigi Nuzzo, Origini di una scienza. Diritto internazionale e colonialismo nel XIX secolo   
  • Viviana Kluger - A review of José María Pérez Collados and Samuel Rodrigues Barbosa (eds), Juristas de la Independencia  
  • Abelardo Levaggi - A review of Rebecca J Scott and Jean M Hébrard, Freedom Papers: An Atlantic Odyssey in the Age of Emancipation 

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