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  • Series: Research Handbooks in Comparative Law series x
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Aniceto Masferrer, Kjell Å. Modéer and Olivier Moréteau

It would be wrong to think that the comparative approach to law started in the 19th century. In Antiquity, for example, Plato compared the Nomoi of the Greek city states, and Aristotle studied the different forms of state and their influence on the laws.

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Adolfo Giuliani

What is comparative legal history? This chapter argues that to understand this new field of legal-historical studies, we need first to clarify how legal historiography has changed over time. This is done according to two main ideas. First, the writing of legal history is deeply intertwined with an image of law that tells us what law is, how it is created and by whom. This is, in fact, the premise for writing legal history, as it determines the object of investigation. Second, the decades between 1930 and 1960 saw a profound turn in European legal science. Some legal scholars challenged the legacy received from the 19th century and launched an attack on the ‘formalism’ at the heart of its intellectual framework. Those path-breaking insights gave life to a wave of works self-styled as comparative legal history published in the period 1930–60. At their heart were some of the challenging ideas that have continued to fuel original legal-historical research in the last few decades (e.g. to place law in context, to think outside the doctrinal box, the dislike of abstract theorising) and which today are shared as an obvious truth. They are the fruit of the antiformalist turn of the period between1930 and 1960.

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Seán Patrick Donlan

The state of comparative legal history has improved considerably in recent years. But those self-identifying as comparative legal historians still too often reflect a bias towards isolated Eurocentric comparisons, an inattention to social setting and a failure to see law within its wider normative context. This chapter suggests that some of us should study the thick web of social regulation and dispute resolution, the relational entanglement of our laws and norms. Comparative legal history would benefit from this sensitivity and deep focus. Placing comparative legal history in normative perspective in this way need not require a new formal methodology, but it may be necessary to more actively engage with those working beyond the narrow traditional boundaries of our discipline. A dialogue with these scholars and an openness to new methods and models would be beneficial to all. In sum, comparative legal history ought to include the study of legal-normative entanglement, embrace research beyond the narrowly legal and draw inspiration from beyond history. To do so, we must cross temporal, geographical and disciplinary boundaries.

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Dag Michalsen

This chapter discusses important methodological perspectives in comparative legal history. There is no common understanding of the character and function of comparative legal history, but the starting point is to explore methodically the combination of legal history and comparative law. Legal historians ought to take into account the recent debates in comparative law when debating comparative qualities of legal history. Comparative legal history is not a discipline in its own right, but rather a research dimension that highlights methodological issues that are inherent in much of legal history as an academic discipline.

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Matthew Dyson

Whatever the direction of the research on comparative legal history is, it can be made easier by a handful of methodological steps drawn from both comparative law and legal history. This chapter discusses the boundaries, terminology and purpose of methodology and a collection of five methodological steps that can assist in doing comparative legal history, drawing on examples from a range of legal systems in the last 200 years.

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Jacques Vanderlinden

The chapter identifies four possibly ‘sinful’ uses of the word custom by lawyers: (1) the supposed original policies prevailing in Western European communities prior to the revival of Roman law or in overseas communities before colonialism; (2) a formal source of law inherited from Rome in Western Europe and developed from the 13th century onwards, also called ‘customary law’; (3) the part of the original policies of overseas communities incorporated in the colonial legal systems, also referred to as ‘customary law’; and (4) the remnants of original pre-colonial policies still existing in ‘colonial’ communities, which continue to function under colonial rule and the post-independence ‘new’ policies, functioning as autonomous, possibly clandestine tension-solving mechanisms in various social contexts. All are visited in the perspective of a radical pluralist. Based on field work in Africa and knowledge of colonial Acadia, the author characterizes custom (1) and (4) as ‘this is what we do’ or ‘have always done’ and everything we can write about it is conjectural or hypothetical. He suggests reviving the archaic sense of the substantive ‘do’, to designate tension-solving mechanisms resulting from the fact only, as they ‘naturally’ exist in the mind of members of societies where the existence of ‘law’ – in its strict meaning of state law – is non-existent. The statement that a remedy is a ‘do’ provides a justification for its enforcement in the same way as a norm, even if it is not yet provided for by any norm.

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Emily Kadens

This chapter argues that custom, unimpacted by learned law, does not function as formal law but rather as malleable community standards. When lawyers trained in the formal law of the ius commune turned their attention to custom, and tried to fit it into their educated understanding of law, they molded it into definitions and rules of evidence in the image of the learned laws. This changed custom from an inherently flexible system into a more rigid, lawlike one, and paved the way for the triumph of formal law over informal custom.

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Marie Seong-Hak Kim

This chapter sets forth the spread of law from a comparative perspective, with emphasis on customary law in Europe and East Asia. The concept of custom as a source of law played the role of important machinery in the process of adopting a new legal system from outside. The traditional view has been that custom was the universal origin of law, emerging spontaneously in social existence, but history has shown, from medieval France through Meiji Japan, that heightened attention to custom took place in the contexts of external stimulus of alien law and conscious state effort to unify legal sources and centralize the realm. Custom as an instrument for precipitating change saw a dramatic revival in colonial law in the late 19th and early 20th centuries. Diffusion of civil law through the medium of custom has a long and deep history.

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Aniceto Masferrer and Juan A. Obarrio

The chapter explains how in the Spanish territories, the ius commune, due to its imperium rationis, turned into the most appropriate means to supply the gaps and contradictions of the iura propia. Both scholarly works and legal practice shows the relevant role of the ius commune throughout Western history. Iura propria fell short in providing legal rules to be used by judges in adjudicating legal disputes, and judges resorted to the communis opinio doctorum, looking for the rules which both filled in the gaps of the ius proprium and conferred legal certainty to the system. However, the reception of the ius commune in civil law jurisdictions did not occur without resistance and obstacles. The chapter addresses these obstacles (the ambiguous attitude of the kings, reluctance to adopt the Roman-canonic procedure, the principle of literal interpretation of legal dispositions, etc), and describes how the status of the ius commune in various Spanish systems varied. Whereas some Spanish kingdoms never acknowledged explicitly the validity of ius commune as subsidiary (Castile, Aragon), in the other kingdoms (Catalonia, Valencia, Majorca, Navarre) the ius commune met similar resistance (as in Castile or Aragón), but eventually it was explicitly admitted either as subsidiary law (Valencia, Majorca, Navarre) or as an integrative part of the legal system (Catalonia). The chapter maintains that the resort to ius commune as subsidiary law sought to prevent the compulsory use of Royal legislation in the context of political absolutism and explains why Castile, a territory governed by absolutist monarchs, never took this step.

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Dolores Freda

The European legal tradition generated the cliché of a marked contrast between common law, assumed to be an oral and exclusively case law, and civil law, seen as a written and doctrinal law rationalized and formalized through codification. According to this view, common law would have developed, since the 12th century, in continuity with the past and the ancient customs of the country, through the stratification of judicial precedents; while civil law would have developed through the doctrinal interpretation and elaboration of the Roman-canon law texts by the doctores of the Continental universities. One consequence of the presumed dichotomy between the two ‘systems’ of common and civil law has been the juxtaposition between the English and Continental systems of legal education: while in England during the early modern period law students were educated in the Inns of Courts through an oral and practical training, on the Continent legal education, held by the universities, spread all over Europe, and had a much more theoretical and doctrinal character. The chapter challenges this assumption of such a marked contrast. Focusing on the characters of the lecturae and disputationes held at the Italian universities and the readings and moots practiced at the English Inns of Court, it stresses the existence of many similarities, showing how the traditional paradigm of the contraposition between common law and civil law cannot be applied tout court to legal education in Europe between the Middle Ages and the early modern period.