JOURNAL: Comparative Legal History IX (2021), no. 1

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Our Society's journal Comparative Legal History (Taylor & Francis) published its first issue of 2021. Please note that members of our Society are entitled to receive a free hard copy.

Editorial (Agustín Parise & Matthew Dyson)
DOI 10.1080/2049677X.2021.1908929

Immemorial (and native) customs in early modernity: Europe and the Americas (Tamar Herzog)
DOI 10.1080/2049677X.2021.1908930

Abstract:

This text asks how a greater familiarity with European law would change our vision of colonial territories, most particularly, Latin America. Concentrating on the study of immemorial and native customs in both European and American territories, it argues that these customs were not necessarily ancient or authentic. Instead, they authorised making legal exceptions to the general rule in a legal universe that was dramatically different from our own. They sustained the existence and legitimacy of a local juridical sphere while also maintaining the importance of a common, cross-Christian, legal understanding. By showcasing what practitioners, jurists, theologians, and scholars have said about customs during the early modern period and since, the aim is not to criticise what had been done by others but to offer a useful framework that would allow us to meaningfully merge the multiplicity of voices historians have already recovered, as well as supply those who work on these issues with the necessary background.

Can a judge rely on his private knowledge? Early modern Lutherans and Catholics compared (Paolo Astorri)
DOI 10.1080/2049677X.2021.1908935

Abstract:

This article examines the opinions of Catholic and Lutheran authors on the question of whether a judge should decide a case according to his personal knowledge when that knowledge conflicts with the charges and evidence at the trial. The majority of the Catholics contended that the judge had to follow the evidence. They distinguished between the judge as a public functionary and as a private man. The judge could not use in a trial what he knew as a man. There were certain Lutherans whose opinions remained close to this position. However, a significant number argued that the distinction between the judge as a functionary and as a man lacked foundation. Divine law commanded the judge to avoid lies and not to kill an innocent. If the judge knew that someone was innocent and nonetheless condemned him by following the evidence at the trial, he committed a sin. To avoid giving an unjust sentence, the judge had to use the knowledge he had obtained privately.

Caught between nostalgia and modernisation: The history of criminal justice and punishments in Japan (Kiran Chaudhuri)

Abstract:

Building upon the literature review of crimes and punishments in Japan from the Middle Ages to modern times, this paper highlights the contradictory forces driving the evolution of criminal law and criminal justice. Individual versus State, human rights versus government powers – these are some of the struggles Japanese rulers and legal thinkers have been facing. After an initial period of isolation during the Tokugawa Era, the country's criminal justice system, although it embraced a comparative approach, has nevertheless developed by constantly switching between nostalgia for traditional values and demand for the acknowledgement of universal rights. By tracing the fragmented process that led to a modern criminal justice system, the present research shows the effect of legal transplants on national criminal policies and, in particular, on the struggle between the conservatives, who claim wider government powers in the name of traditional values, and the progressivists, who warn against the threat of human rights violations.

 Book reviews:

• Death penalty in late-medieval Catalonia. Evidence and significations by Flocel Sabaté, London, Routledge, 2019, 400 pp, $180 (hbk), ISBN 978-0367188634 (Rogerio R. Tostes)
• A short history of European law: the last two and a half millennia by Tamar Herzog, Cambridge, Massachusetts, Harvard University Press, 2018, VI + 289 pp, $18.95 (pbk), ISBN 978-0674237865 (Thomas Duve)
• Actes du congrès de Paris de 1900: théorie générale, méthode et enseignement du droit comparé Paris, Société de législation comparée, 2020, xxv + 454 pp., €59 (hbk), ISBN 978-2365170956 (Wim Decock)
• History and the law: a love story by Carolyn Steedman, Cambridge, Cambridge University Press, 2020, 285 pp, £74,99 (hbk), ISBN 978-1108486057 (Mia Korpiola)

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