SPECIAL ISSUE: Symposium "Legal History and Comparative Law: A Dialogue in Times of the Transnationalization of Law and Legal Scholarship" (American Journal of Comparative Law LXVI (2018), Issue 4)

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Preface (Thomas Duve)
Abstract:

Comparative law and legal history are witnessing a remarkable moment of reorientation in their methods and perhaps even in their disciplinary identities. Historically linked to and emerging from a shared paradigm of historical jurisprudence, both disciplines have developed their own institutions, canons of knowledge, mechanisms of communication, and academic practices over the last century. Both flourished under the juridical nationalism of the late nineteenth and early twentieth centuries, and this national paradigm has shaped their analytical framework and categories. Both disciplines are now also facing similar challenges due to the transnationalization of their object and of their institutional structures, but also due to the broad recognition of the importance of context and traditions. Consequently, both are increasingly situating their research on a global horizon, and both are endeavoring to decentralize their approaches and to expose themselves to new notions of law and justice.1 This situation suggests that there should be renewed dialogue between the two disciplines, but it also leads us to question what shape such a dialogue might take. What can they learn from each other?

Merging Comparative Law and Legal History: Towards an Integrated Discipline (Heikki Pilhajamäkki)
Abstract:

This Article argues that legal history and comparative law ought to merge into one discipline. The two disciplines are both products of the same period, the late nineteenth century, when they were formed as the fruit of the rising positivist legal scholarship. They are, to be sure, opposite sides of the coin. Mainstream legal history was, from early on, a humble servant of positivism, whereas comparative law formed as an antithesis to it. Nevertheless, neither of the twin disciplines would exist as such were it not for the emergence of national legal positivism on both sides of the Atlantic. National legal histories developed as the dominant paradigm of the nineteenth century and for the most part of the twentieth. Legal historians provided an important slice of the nationalistic narrative, explaining how history had led national states to the particular situations in law they found themselves in. Comparative law started early in the nineteenth century as a response to practical legislative needs, as “comparative legislation.” Some of the internationally minded German scholars also reacted against the national emphasis of Savigny’s Historical School. Comparative legal scholarship acquired more academic overtones as the century wore on, and many scholars optimistically expected that comparative scholarship would unify and civilize the world’s legal orders. After World War II, mainstream comparative law had little hope left in its possibilities of civilizing the world. The discipline declined into a “country and western” style of scholarship. The largest obstacle in the way of merging the twin disciplines is the fact that they, as all scholarly disciplines, are also social communities. Most scholars still like to identify themselves as “comparatists” or “legal historians.” The new combined discipline would do away with outdated ways of doing scholarship in both mother disciplines. It would marginalize the kind of legal history that seems unconscious of the world outside national boundaries and of international contexts, and it would supplant the kind of comparative law that is made without reference to the historical paths that have led to the present situation. 

 Global Legal History, Legal Systemology, and the Genealogy of Law (Alessandro Somma)
Abstract:

Comparatists in the social sciences are supposed to analyze social phenomena from a static point of view, with no interest in their dynamic aspects. However, this is not true for comparative lawyers, since they are committed to analyzing legal change, which necessarily enhances aspects like the circulation of legal models as well as their transformation due to the variation of the space-time coordinates. The dynamic aspects are of such importance for comparatists that the building of legal families, reflecting a static approach to comparative law, is increasingly questioned in its foundations and capability to detect decisive similarities and differences between legal systems: the evolution within the common law–civil law divide and its connection with the ruling of the economic order. The building of legal families will not be removed from the comparative lawyer agenda, at least in recognition of its didactic function. However, comparative lawyers are increasingly aware of the ideological value of taxonomies and increasingly convinced about the necessity to replace them with genealogies.

 East, East, and West: Comparative Law and the Historical Processes of Legal Interaction in China and Japan (Kentaro Matsubara)
Abstract:

As Western notions of law formed the basis of a globally shared common legal language, the language of comparative law has become inevitably Western. In studying historical societies that did not share this language, analyses using this language will always risk anachronisms due to the inherent assumptions, be they the meanings given to particular terms, or the manner in which different areas of law are categorized and distinguished from each other. One way to avoid such anachronisms would be to attempt the formulation of a different concept of law that is neutral to Western and non-Western legal traditions. This, however, would move the analysis away from discussions in other areas of legal studies conducted in the aforementioned common legal language, which in turn would limit the significance comparative law might have for these discussions. In looking at the historical processes of legal modernization in China and Japan, this Article discusses how one might manage the risk of anachronism in writing a legal history of non-Western societies, while also retaining a link with a wider range of legal studies. After Part I considers some of the theoretical problems of studying Chinese and Japanese society as a project in comparative law, Part II will look at the debates on legal reform in China and Japan in the late nineteenth and early twentieth centuries. While these debates included serious discussions on incorporating traditional aspects of Chinese or Japanese society in the newly formed Western-style legal system, the discussions themselves were conducted in an essentially Westernized language, which identified the traditions of Japanese and Chinese as “customs,” a legal notion newly introduced in the course of modernization. While looking at certain traditional practices and institutions as “custom” might have been an anachronism, the extent and significance of this anachronism can be assessed through a study of the process of interaction whereby this viewpoint came to be adopted. Part III of this Article suggests an approach to studying the traditional Chinese property regime, also starting from a study of the historical process of interaction between Western colonial law and local society in China. Using an analysis of this interaction as a starting point, it discusses how relevant aspects of Chinese society and their interconnections might be identified, opening up possibilities for comparisons not limited to East–West comparisons, and it also contributes to a more general legal discussion on family, property, and state formation.

Due Process and Civil Procedure, or How to Do Codes with Theories (Carlos Petit)
Abstract:

Franco Cipriani’s historical research on the great authors of “scientific proceduralism” (Giuseppe Chiovenda, Francesco Carnelutti, and Piero Calamandrei) made it possible to elaborate a theory of the civil process: “guaranteeism.” The theory holds that the lawsuit is a legal relationship between private parties, and the judicial authority only acts in the trial as an impartial bystander. This is opposite the procedural tradition of the twentieth century that accentuates the legal–public nature of the process and therefore the autonomy and activity of the judge to come to a fair resolution. The wide acceptance of the Italian classic authors on civil procedure in Spain and Latin America explains the impact that Cipriani’s “revisionist” work had in several countries and the tension between guaranteeism and activism in their codified regulation of the trial. From that point of view, this Article analyzes the most recent codes of civil procedure, those of Colombia and Brazil. If historiography has led to theory, it is interesting to find out whether theory leads finally to legislation.

The Synesthesia of Values: How the Ideals of Modernist Design Predisposed and Shaped Fascist Legal and Political Thought (Daniel Damler)
Abstract:

In this Article, I will argue that aesthetic, epistemic, and moral (legal, political) values are correlated because of a common underlying mechanism. Value judgments are regulated via chronologically antecedent emotions. Their attribution to a certain normative category is an analytical achievement that only occurs in a second step. “Analogical” interferences are inevitable due to the processes involved being partly identical. Jurisprudence, too, continually operates with terms that have an underlying sensuous, aesthetic component and depend on concrete experiential knowledge. This lifeworld horizon and the attendant aesthetic preferences differ from society to society, sometimes considerably from state to state, despite otherwise very similar economic and social conditions. Using the example of Germany in the 1920s and 1930s, I will demonstrate how popular stylistic elements of the New Objectivity—the ideal of “visibility” and a technoid, spare, and simple design—inspired the critics of Western democracy, liberalism, and parliamentarianism. From the moralizing and dogmatically rigid perspective of German-style functionalism, violating the imperative of purposefulness is not only an aesthetic faux pas, but also an inexcusable moral failure. Carl Schmitt’s critique of parliamentarianism, with its focus on the supposedly functionless and empty ritual of the parliamentary speech, was just a variation and echo of this moral-aesthetic leitmotif.

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