JOURNAL: Comparative Legal History XI (2023), nr. 1

 

(image source: ESCLH)

Routledge published articles from the most recent issue of our Society's organ Comparative Legal History. Although the issue as such is not yet available, it has been signalled to our Blog Team that the articles are.

Editorial (Agustín Parise & Matthew Dyson)

What is wrong with the functionalist approach used by French scholars in studying ‘điển’? (Đoàn Thanh Hải &Đoàn Thị Phương Diệp)
(DOI 10.1080/2049677X.2023.2207381)

Abstract:

Điển was a practice in ancient Vietnamese society that had counterparts across the Sinosphere. In the first part of this article, we study provisions on điển in ancient Vietnamese codes, together with relevant background such as Vietnamese jurisprudence and counterparts of điển. Then, we study điển in contractual practice by deconstructing legal descriptions into social behaviours to understand điển in everyday ancient Vietnamese practice and life. We argue that while ancient Vietnamese legislators did not define what điển was and what điển purported to be or to do, there was a range of uses of điển in reality, deriving from dynamic social needs and creative bargaining practice. In the second part of the article, we study French research on điển, comprising work by French academics and French-educated Vietnamese scholars. We argue that their analyses are problematic because they tried to fit điển into French paradigms despite the divergence of practice and the rich social meanings of điển. In the third part of the article, we argue that the problems with French scholarship can be understood (and thus sympathised with) in light of the need to compare across jurisdictions, with functionalism sometimes being inevitable. We call on functionalism to be reflexive and integrative to better serve comparative legal history.

The invisible poor in Norwegian and Danish town laws c 1200–c 1350 (Miriam Jensen Tveit & Helle Vogt)
(DOI 10.1080/2049677X.2023.2207379)

Abstract:

The most vigorous period of urban law production in both Denmark and Norway failed to regulate urban poverty, in particular for those falling outside the groups that comprised the personae miserabiles, the deserving poor. A close reading of Danish and Norwegian town laws, in Latin and the vernacular respectively, provides an understanding of how poverty fitted into the social and legal system of the towns. A comparative approach reveals both how these regions embraced different strategies towards the urban poor, and how these strategies coincided with general European trends in different ways. This article argues that jurisdiction over the urban poor was not economically or administratively attractive, and thus neither the town nor the church wanted legal responsibility for them. Norwegian regulation followed a European pattern of combating urban poverty through legislation, whereas late twelfth-century Danish towns supported institutions to care for the poor.

From Indigenous private property to full dispossession – the peculiar case of Sápmi (Rauna Kuokkanen)
(DOI 10.1080/2049677X.2023.2207380) (OPEN ACCESS)

Abstract:

The concept of dispossession has become ubiquitous in contemporary critical theory, including analyses of settler colonialism and Indigenous scholarship. It suggests that in addition to being colonised, Indigenous peoples have been deprived of their lands and the territorial foundations of their societies. Critics, however, allege that theories and arguments of Indigenous dispossession are inconsistent, arguing that Indigenous peoples did not have conceptions of land as property or possession. The critics’ question is as follows: how can there be an act of dispossession if there was no prior possession or Indigenous concept of ownership? This article examines a case where there was both prior possession and a concept of ownership adopted by and extended to an Indigenous people, the Sámi, and upheld by the colonial court system. What can the Sámi case of individual (family) land ownership tell us about the concept of dispossession and Indigenous conceptions of ownership and property? The objective is to demonstrate how the concept of dispossession has different histories in different contexts, and how individual land ownership has not historically been alien to Indigenous peoples.

Book reviews:

• A legal history for Australia by Sarah McKibbin, Libby Connors and Marcus Harmes, Oxford, Hart, 2021, 350 pp., £32.99 (pbk), ISBN 978-1509939572 (by Philip Girard)
•  The role of theoretical debate in the evolution of national and international patent protection: from the French Revolution to the Paris Convention of 1883 by Louise J. Duncan, Leiden & Boston, Brill Nijhoff, 2021, 388 pp., $142 (hbk), ISBN: 978-9004469761 (by Oren Bracha)
• American legal education abroad–Critical histories edited by Susan Bartie and David Sandomierski, New York, NYU Press, 2021, 415 pp, $60.00 (hbk), ISBN 978-1479803583 (by Giorgio Resta)
• Early modern privacy: sources and approaches by Michaël Green, Lars Cyril Nørgaard, and Mette Birkedal Bruun, Leiden, Brill, 2021, 442 pp, $179 (hbk), ISBN 978-9004152915 (by Mary Trull)
• Kings as judges: power, justice, and the origins of parliaments by Deborah Boucoyannis, Cambridge, Cambridge University Press, 2021, 386 pp., £29.99 (hbk), ISBN 978-1107162792 (by Peter J. Aschenbrenner)
• Arsyad al-Banjari’s insights on parallel reasoning and dialectic in law: the development of Islamic argumentation theory in the 18th century in Southeast Asia by Muhammad Iqbal, Cham, Springer International Publishing, 2022, 250 pp., €99.99 (hbk), ISBN 978-3030916756 (by Muhammad Lutfi Hakim & Landy Trisna Abdurrahman)
• International law and the politics of history by Anne Orford, Cambridge, Cambridge University Press, 2021, 280 pp., $29.99 (pbk), ISBN 978-1108703628 (by Daimeon Shanks)
• Defeating impunity: Attempts at international justice in Europe since 1914 edited by Ornella Rovetta and Pieter Lagrou, New York, Berghahn Books, 2021, 249 pp., $135 (hbk), ISBN 978-1800732612 (by Michael S. Bryant)
• Book Review The School of Salamanca. A case of global knowledge production edited by Thomas Duve, José Luis Egío, and Christiane Birr, Leiden and Boston, Brill, 2020, XIII + 430 pp., €143.00 (hbk), ISBN 978-9004449732 (by Jan Hallebeek)

 Read everything on the journal's website.