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FROM THE EDITORIAL (David Schorr & Agustín Parise)
[...] As is appropriate for this spring season, Issue 1 of Volume 14 of Comparative Legal History is marked by the welcome arrival of several new developments.
We would first like to highlight a new feature in the journal – a review of a classic work of comparative legal history, written from the perspective of today’s scholarship. To kick off this new format, James Whitman reviews Montesquieu’s The Spirit of the Laws, a classic in the field if there ever was one. We plan for reviews of classics to be a recurring feature of the journal, and welcome suggestions from our readers for classic works that should be considered for review in our journal.
Another novelty is that we start off Issue 1 of Volume 14 with an invited essay, by comparative law scholar Ralf Michaels. The author gives us a breathtakingly wide-ranging and erudite appraisal of new literature on comparative law, examining the place of legal history in the field of comparative law, while at the same time demonstrating the importance of comparative law scholarship for comparative legal historians. We hope to return to this theme in the sixth session of the Dialogues in Comparative Legal History, to be held online later this year.
With the support of Taylor & Francis, we are also proud to inaugurate two technical features that we think will add to the journal. First, we will now publish contributions to the journal online on a rolling basis, without waiting for them to be collected into issues according to our regular publication schedule. Second, we are encouraging authors to include relevant images in their contributions. We welcome proposals for contributions that take advantage of the visual medium and for new formats are centred on it.
New sprouts ultimately rely on good roots, and Issue 1 of Volume 14 continues the journal’s tradition of presenting an assortment of articles involving a wide variety of legal traditions and their interactions. Henrik-Riko Held’s article shows how a local, vernacular legal culture and the learned ius commune interacted in surprising ways in the Venetian Empire; Hoàng Thảo Anh’s article looks at the private international law of the Chinese and Vietnamese Empires; Lukasz Korporowicz surveys the reception of William Blackstone in Polish legal literature; and Ann Mumford investigates what legal rejection – the refusal of a potential legal transplant – can teach us about the legal philosophies of judges and scholars.
Issue 1 of Volume 14 is enriched with 13 additional book reviews on an expansive range of topics, including James Sheehan’s review of two books on the history of sovereignty; Gary Jacobsohn’s comparative look at debates on ‘originalism’ in the USA; William Butler’s review of a Russian work on comparative legal history; and Michele Graziadei’s appreciation of Dirk Heirbaut’s comparative work on codification. All reviews in this issue demonstrate the continued vitality of comparative legal history, to which we are proud to contribute.
The Polish Blackstone: an examination of nineteenth-century Polish scholars’ interpretations of Blackstone and his Commentaries (Lukasz Jan Korporowicz) [OPEN ACCESS]
The principal goal of this article is to address the reception of William Blackstone's legal thought and the awareness of his contributions within the context of nineteenth-century Polish legal scholarship. Despite the considerable differences between English and Polish legal traditions, the limited proficiency in the English language within Poland, and the relatively gradual evolution of Polish legal thought, Blackstone's works were acknowledged by academic circles in Poland in the nineteenth century. Over time, this awareness manifested in direct engagement with certain aspects of Blackstone's perspectives. Nonetheless, the temporal disparity between Blackstone's period of influence and the evolution of legal scholarship in partitioned Poland significantly limited the practical opportunities for the integration and application of Blackstonian jurisprudence.
Ius commune, Venetian governance, and Croatian Glagolitic culture: testaments from the countryside of Šibenik in the early modern period (1637–1713) (Henrik-Riko Held)
In the article, I discuss the entanglement of ius commune and Croatian Glagolitic culture under the auspices of Venetian rule in the early modern period. I analyse 222 testaments written in the Croatian language and Glagolitic script between 1637 and 1713 by Glagolitic priests in the countryside of Šibenik, on the eastern Adriatic coast, then under Venetian rule. I address in particular the terminology employed, as well as the structure of the testaments. I compare them with models found elsewhere in Europe, as evidenced by relevant notarial formularies. Finally, I examine the issue of the validity of testaments composed by ostensibly unauthorised persons (parish priests).
Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts (Thảo Anh Hoàng)
This article examines one of the earliest codified conflict-of-laws rules in East Asia and its overlooked reception in Vietnam. While systematic codifications of conflict rules in Europe developed much later, the Tang Code of China (652 CE) had already incorporated a provision regulating disputes involving foreigners within its territory. This rule was subsequently received in the legal systems of several Sino-sphere countries, including Vietnam. Vietnam’s Lê Code, in force from the fifteenth to the eighteenth century, preserved this conflict rule even after its removal from later Chinese codes beginning in the thirteenth century. This renders the Lê Code the only known continuation of the Tang conflict-of-laws provision.Long mistranslated as a criminal clause concerning ‘minority ethnic groups’, the relevant provision in the Lê Code is re-evaluated here as a conflict-of-laws rule applicable to both civil and criminal matters. This reinterpretation is situated within the context of East Asian legal culture with a functional equivalence approach. The study shows that Vietnamese law should not be viewed only as a marginal recipient of Chinese legal influence, but rather as a key site where an early conflict-of-laws rule was preserved, adapted, and given historical significance within the development of conflict-of-laws regulations across different jurisdictions. The paper also offers a comparative analysis with other legal traditions of the same period as Tang law, including those of early medieval Europe and the Islamic world.
Re-enacting the judicial philosophy of Oliver Wendell Holmes, Jr.: Saunders v Vautier and Claflin v Claflin compared (Ann Mumford) [OPEN ACCESS]
Oliver Wendell Holmes Jr. sat on the Supreme Judicial Court of Massachusetts in 1889, when, in the case of Claflin v Claflin, he joined the decision that a trust may not be modified if the intention of the testator would be undermined. Claflin rejected Lord Cottenham’s reasoning in Saunders v Vautier that, under certain circumstances, beneficiaries may compel the termination of the trust and transfer the property to them. Claflin v Claflin and Saunders v Vautier are perhaps the two most famous cases in Anglo-American Equity. Through a detailed examination of manuscripts, this article offers a comparative expansion of the US and English histories, and particularly considers the role played by Holmes. Re-enactment theory offers the possibility of creating, or reliving, the intellectual process that led to Claflin, thus revealing a significant moment in the history of US federalism.
Comparative law today – tomes, themes, trends (Ralf Michaels) [Invited essay; OPEN ACCESS]
This essay surveys recent themes and trends in comparative law scholarship, with a particular eye towards the connections between comparative law and legal history. The author observes a significant movement towards encyclopaedisation, marked by a proliferation of handbooks and encyclopaedias that attempt to systematise knowledge, though these works often struggle with comprehensiveness and persistent Eurocentrism. While traditional treatises continue to show fealty to established functionalist models, there is an observable shift away from the historical dominance of private law towards holistic, post-doctrinal, and interdisciplinary approaches. A primary concern raised is the ‘turn to method’, where the discipline has become increasingly self-absorbed with methodological pluralism and theory, sometimes resulting in ‘method without comparison’. Furthermore, the survey highlights the vital emergence of decolonial and postcolonial scholarship originating from the Global South, facilitating South-South comparison and challenging the field's colonial and Eurocentric foundations. Finally, the author examines the uneasy relationship between comparative law and legal history, questioning whether the discipline can move beyond viewing legal systems as separate entities towards a more integrated world law approach.
Book Review
- Legal responses to mass migration: from the nineteenth century to World War II, edited by Luigi Nuzzo, Michele Pifferi, Giuseppe Speciale and Cristina Vano (Panikos Panayi)
- De l’esprit des lois by Montesquieu, edited by Benjamin Hoffmann (James Q. Whitman)
- Family and justice in the archives: historical perspectives on intimacy and the law, edited by Peter Gossage and Lisa Moore (Chiara Valsecchi)
- Memory and authority: the uses of history in constitutional interpretation, by Jack M. Balkin (Gary Jeffrey Jacobsohn)
- Shifting sovereignties: a global history of a concept in practice, by Moritz Mihatsch and Michael Mulligan and Sovereignty: European and global histories, 1400-1800, by Cornel Zwierlein and Daniel Lee (James J. Sheehan)
- Redefining codification: a comparative history of civil, commercial, and procedural codes, by Dirk Heirbaut (Michele Graziadei)
- Legal education in the western world: a cultural and comparative history, by Rogelio Pérez-Perdomo (Giulio Abbate)
- Punishment, labour and the legitimation of power, edited by Adam S Fagbore, Nabhojeet Sen and Katherine Roscoe (Marjorie Carvalho de Souza)
- Law and art in the 19th century. Power in images, edited by Giovanni Rossi and Pietro Schirò (Elisabetta Fusar Poli)
- Strafgesetzbücher der Zwischenkriegszeit, edited by Arnd Koch and Martin Löhnig (Milan Kuhli)
- Crime and civilization: the birth of criminology in the early nineteenth century, by Janne Kivivouri (Roberto Catello)
- The legal legacy of the reformation: Catholic and Protestant approaches to law, edited by John Duddington (Paolo Astorri)
- From masters of slaves to lords of lands: the transformation of ownership in the western world, by James Q Whitman (Rosa Congost)
- Сравнительная история зарубежного права. Учебник. Том I: Правовые традиции Древности и Средневековья [Comparative history of foreign law. Volume I: legal traditions of antiquity and the middle ages], by Dmitrii Iur'evich Poldinkov; Сравнительная история зарубежного права. Учебник. Том II: Современные правовые традиции [Comparative history of foreign law. Volume II: contemporary legal traditions], by Dmitrii Iur'evich Poldinkov (William E. Butler)
To read the articles, please click here. Online access is free for members of the European Society for Comparative Legal History.
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