Comparative Legal History最新文献

{"title":"International law and the politics of history","authors":"Daimeon Shanks","doi":"10.1080/2049677X.2023.2207382","DOIUrl":"https://doi.org/10.1080/2049677X.2023.2207382","url":null,"abstract":"A proficient book review should begin with a pithy statement (better yet, an epigraph) that conveys to readers a general idea of the kind of review they are about to read and an economical summary of the debate in which the author is intervening, preferably all within the first paragraph. This mise-en-scène should then give way to a methodical march through the argument, giving enough of a précis that a graduate student may reasonably consider the book ‘read’, or for a professor to cite the author in support of this or that proposition. Only after this general summation will the reviewer engage with the work critically, sometimes as a major problematic, but more often taking the form of a minor methodological or empirical quibble, before dutifully concluding with a reiteration of why the book is important even if the reviewer has some qualms here or there. This is the general template of a book review, the substance of which readers may expect to fill a particular function. But this conventional form says nothing about the heterogeneity of the content one finds in reviews – while some are tediously formulaic, a few push academic discourse in fruitful directions. The best open important debates, sometimes with lofty rhetoric and theoretical discourse, more often in tones of pugnacious defiance and grievance-airing. But in assuming that a book review is such-andsuch because it conforms to such-and-such convention – as most readers do – is to ignore the diversity inherent to the genre, thereby foreclosing many avenues of productive engagement. Such is the problem with Anne Orford’s assessment of the state of historical-legal research in her recent philippic, International Law and the Politics of History, wherein she tends to conflate the substance of recent historical scholarship with its form. By reducing the field of professional history to a few essential features in the service of fulfilling a polemical function,","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"11 1","pages":"82 - 87"},"PeriodicalIF":1.2,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45304554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What is wrong with the functionalist approach used by French scholars in studying ‘điển’?","authors":"Đoàn Thanh Hải, Đoàn Thị Phương Diệp","doi":"10.1080/2049677X.2023.2207381","DOIUrl":"https://doi.org/10.1080/2049677X.2023.2207381","url":null,"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.","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"11 1","pages":"45 - 81"},"PeriodicalIF":1.2,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42572752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A legal history for Australia","authors":"P. Girard","doi":"10.1080/2049677x.2023.2207376","DOIUrl":"https://doi.org/10.1080/2049677x.2023.2207376","url":null,"abstract":"pitilessly with no end in sight, international legal jurists and government officials across the globe are calling for the trial of Russian offenders at the International Criminal Court and the convening of an international tribunal on the crime of aggression. In other words, in the most significant military conflict in Europe since the Second World War, the world is looking once again to the example of Nuremberg for inspiration. Its relevance to humanitarian law in our era could not be clearer. This book is, I think, at its best in its insistence on trimming the sails of our expectations to milder winds. Defeating the impunity of state actors has always been a tall order. It remains a tall order in Ukraine; the prospect of trying Vladimir Putin or members of his government for war crimes or the crime of aggression appears far-fetched. Still, that impunity has been and can still be defeated, as the authors demonstrate, provides realistic grounds for hope. So long as our sail catches the occasional breath of wind, we can move forward toward other latitudes of justice where evil is punished and the righteous prevail.","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"11 1","pages":"110 - 115"},"PeriodicalIF":1.2,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47837925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Kings as judges: power, justice, and the origins of parliaments","authors":"P. Aschenbrenner","doi":"10.1080/2049677X.2023.2207383","DOIUrl":"https://doi.org/10.1080/2049677X.2023.2207383","url":null,"abstract":"Was representative government in Western Europe the natural outcome of weak rulers? Were rulers forced to concede power to constituencies who bargained away revenue (taxes and loans to fund government operations) in return for participation in legislative assemblies? In her study Kings as Judges, Boucoyannis argues that strength at the centre is a better way to explain the growth of representative institutions. She concentrates her evidence on the centre’s capacity to deliver justice (28–36). Boucoyannis argues that the royal ambition to centralize power preceded the claims of ‘urban mercantile classes’ who sought to cash out the motto ‘no taxation without representation’, that is, to claim a role in national governance (8–9). In thirteenth-century England–an interval of ‘admittedly constant battle over consent’ to taxation (98-104)–barons refused the King’s demands for taxation in the 1240s, after having been ‘forced to grant “countless sums of money” to the King’ (99). But ‘no representatives were called’ at that time (99). ‘Conflict at the beginning and end of the thirteenth century was therefore similar: baronial opposition articulated around Magna Carta and, despite temporary set backs, and relentless conflict, an increasing relative advantage of the crown’ (101). Boucoyannis draws support from John Maddicott who has argued that ‘similarity of oppression’ (his phrase) brought ‘lords and knights together to counter the crown and to represent the community’ (100-01). ‘Initial state capacity’ to assert power (104), she argues, can be a significant factor in bringing about ‘polity-wide institutions’ (8-9). Relying on Joseph A Schumpeter’s 1918 essay ‘The Crisis of the Tax State’–which Boucoyannis calls the ‘canonical essay’ on this point (104)–a methodological point also comes into focus, one which","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"11 1","pages":"87 - 92"},"PeriodicalIF":1.2,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45328130","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The study of natural law in Coimbra, Seville, and Santiago de Chile (Eighteenth and nineteenth centuries)","authors":"Fernando Pérez Godoy, Carlos Fernando Teixeira Alves, Fernando Liendo Tagle","doi":"10.1080/2049677X.2022.2131524","DOIUrl":"https://doi.org/10.1080/2049677X.2022.2131524","url":null,"abstract":"This article seeks to establish a comparative analysis of the reforms to the study of natural law in Coimbra, Seville, and Santiago de Chile. The main goal is to find differences and similarities in the implementation of legal educational reforms in the Catholic legal culture at the end of the eighteenth century and the beginning of the nineteenth century. In this context, we argue that the introduction of the theory of modern natural law in these three areas can be understood as a transatlantic and supra-confessional process of intellectual communication, which is a phenomenon typical of the Catholic Enlightenment. Although we suggest that there was a common bond, we also propose that our cases must be understood in the local and circumstantial contexts in which particular needs prevailed. To historicise the differentiations and similarities, it is necessary to consider the roles of the Catholic legal tradition, the common heritage of the ius commune, the confessional fragmentation of Europe, the effects of the revolution of modern science, modernisation projects, and the Iberian-American revolutions. Comparative research in Seville, Coimbra, and Santiago de Chile makes it possible to explore the transnational history of natural law and the law of nations not only in the field of educational legal reforms but also in their political projections. Thus, we also examine the political-cultural dimension of the confrontation/cooperation of Protestant natural law with the bureaucratic challenges and institutional transformations of the Iberian monarchies at the end of the eighteenth century.","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"10 1","pages":"110 - 136"},"PeriodicalIF":1.2,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42172759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What is a colonial treaty? Questioning the visible and the invisible in European and non-European legal negotiations","authors":"S. Belmessous","doi":"10.1080/2049677X.2022.2131525","DOIUrl":"https://doi.org/10.1080/2049677X.2022.2131525","url":null,"abstract":"This article examines the use of the notion of ‘colonial treaties’ to describe the agreements that European states concluded with non-European polities from the late fifteenth century onwards. Given the absence of such a notion in international law treatises, the article first traces its genealogy before examining how it has influenced the scholarly understanding of legal negotiations between Europeans and non-Europeans. The article reflects, in particular, on the assumption that treaties signed with non-European polities were all ‘unequal treaties’ that revealed both the inequality of the political relations between Europeans and non-Europeans and that of their respective legal systems. Such an approach, it is argued, homogenises and simplifies the history of treaty relations between European and non-European polities. Finally, the article aims to remind us that the notions we use, often uncritically, have a history, and they are accompanied by presuppositions that influence the way we think about our subject of study and of which we need to be aware.","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"10 1","pages":"137 - 171"},"PeriodicalIF":1.2,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49423818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Imperial incarceration: detention without trial in the making of British Colonial Africa","authors":"S. Dorsett","doi":"10.1080/2049677X.2022.2131536","DOIUrl":"https://doi.org/10.1080/2049677X.2022.2131536","url":null,"abstract":"deeds and so on), it is only through comparison – with other documents, with other collections, with other dates – that analytical observations about structure and process become possible. To compare exemplars from manuals to examples from the archive is one thing; to engage in large-scale comparison across time and space is another. Yet such comparisons require archival access, linguistic adroitness and analytical acumen. For an individual scholar, these demands are limiting. When presented as a call for collaboration, they become liberating. Negotiating Mughal Law makes the case for expanding collaborative efforts by illustrating the depth, detail and complexity that working with a single family’s collection can add to collective understandings of law’s operations under varied imperial formations. For example, it is only by providing opportunities to see the full picture across regions and contexts that scholars will be able to communicate the multiple meanings of zamīndār to students of South Asian history. Imagine if scholars had access not just to a single family’s collection but to several families’ collections located not just in Mughal India but throughout Persianate Eurasia and the Islamicate Indian Ocean world. How might understandings of preand early modern law change as a result of having access to expanded data sets? How might these document collections change the way we talk about the history of European imperial expansion and its attendant cultural encounters? And how might we challenge the importance and centrality of the colonial archive that dominates these histories by making collections that have been transported, transplanted, uprooted and unmoored available to anyone with an internet connection, rather than relying on the scholarly mobility of a few privileged passport holders who can piece the collections together? These are the questions that Negotiating Mughal Law implores us to ask and invites us to consider as we think about the operation of law not only in terms of nations and empires but globally and comparatively as well.","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"10 1","pages":"227 - 230"},"PeriodicalIF":1.2,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47425132","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"To the uttermost parts of the earth: legal imagination and international power, 1300–1870","authors":"Lauren A. Benton","doi":"10.1080/2049677X.2022.2131528","DOIUrl":"https://doi.org/10.1080/2049677X.2022.2131528","url":null,"abstract":"Martti Koskenniemi’s sweeping book on European legal thought is the longawaited complement to his seminal study, The Gentle Civilizer of Nations. That book detailed the rise of international law as a profession in the last quarter of the nineteenth century. This book traces multiple strands of European discourse about the law of nations across the preceding half millennium. Koskenniemi analyses the efforts of European legal writers to define property and sovereignty in relation to the projection of power beyond Europe. As reflected in the title, Koskenniemi insists that this book is not about the history of international law but instead a study of ‘legal imagination’. He defines legal imagination as the work of ‘ambitious men, mostly in Europe’ as they deployed ‘the legal vocabularies available to them’ to describe ‘the expansion of authority beyond their domestic world’ (1). Rather than revealing the origins of later legal doctrine, the goal is to illuminate ‘a form of institutional action that takes place in the context of controversy through the authoritative use of language’ (8). Legal imagination, Koskenniemi goes on to assert, was deeply rooted in specific political and institutional environments. Commentary on law always aimed at persuasion, so we must understand the aims and stakes of ongoing political conflicts if we are to grasp the development of legal discourse. Koskenniemi adapts Levi-Strauss’s term ‘bricolage’ to describe the process by which legal writers drew on materials from ‘the domestic legal system’ and built on their ‘domestic legal training’ when characterizing the juridical order beyond Europe (2, 9). The emphasis on specific formative contexts leads Koskenniemi to organize the book mainly around geographically centred traditions of legal writing. The first section contains chapters about the nature of ius gentium in late-medieval France, Spain and Italian city-states, followed by a chapter on Hugo Grotius. The next three sections focus successively on legal thought in France and its Atlantic empire, Britain and the empire, and the German states. The Conclusion and Epilogue follow. Running through the book is the theme of law’s protection of property. In an original and persuasive discussion of scholasticism in Spain, Koskenniemi shows that concerns with property pervaded the writings of Spanish political","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"10 1","pages":"204 - 209"},"PeriodicalIF":1.2,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43947387","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Negotiating Mughal law: a family of landlords across three Indian empires","authors":"Elizabeth Lhost","doi":"10.1080/2049677X.2022.2131535","DOIUrl":"https://doi.org/10.1080/2049677X.2022.2131535","url":null,"abstract":"(218). Where such terms were preserved, Fletcher finds some interesting examples of enforcement, although he concludes that ‘[t]he main function of the regality court in relation to labour services was advertisement rather than the punishment of non-performing tenants’ (219). Given the tumultuous political history of the period, the fact that ‘the quasi military services of watching, warding, hosting, and hunting’ (221) are among the most notable duties on tenants is perhaps unsurprising. Fletcher’s conclusion, chapter nine, attempts to redeem heritable jurisdictions as being ‘a vibrant local legal culture’ (227) in contrast to their more damning popular image. Attendance at court enabled the social elite to have ‘an active role in a local legal, political, and economic jurisdiction’, while the courts also ‘offered legal protections for all members of rural society’ (227). Interestingly, both the court’s territorial limit and its competence speak to ‘a relaxed or pragmatic attitude to jurisdiction amongst landowners, far removed from the precision we often expect from the legal system’ (229). Potentially this also suggests that ‘the theoretical powers of jurisdiction holders mattered less in practice than the local circumstances which shaped procedures in each jurisdiction’ (230). Fletcher’s book concludes with the abolition of heritable jurisdictions in 1747, after which aspects of the regality court’s jurisdiction was absorbed by other local courts and office holders. Overall, Fletcher has in this book presented the results of a highly detailed study of the court records which adds to our understanding of both legal and social history. He often provides a more nuanced interpretation of jurisdictional questions than has previously been achieved, thereby increasing the subtlety of our understanding through careful case-study. However, as Fletcher himself identifies in several passages in the book, there appear to be important differences between regality courts across Scotland. His book therefore presents a powerful analysis of one regality court, against which the practice of other franchisal courts can be tested.","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"10 1","pages":"221 - 227"},"PeriodicalIF":1.2,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45610522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Justice and Society in the Highlands of Scotland: Strathspey and the Regality of Grant (c.1690–1758)","authors":"Adelyn L M Wilson","doi":"10.1080/2049677X.2022.2131533","DOIUrl":"https://doi.org/10.1080/2049677X.2022.2131533","url":null,"abstract":"isprudents. Cino might be particularly useful, given his unusual commentary on the Codex which wove together the canon, civil and customary law. Also, given that the very influential civilians Bartolus and Baldus de Ubaldis both taught in Pisa during the first half of the fourteenth century, some reflection on their views might have provided additional insights. Such attention to the ius commune would have heightened the already considerable comparative dimensions of the study. To be fair, Zanetti Domingues rightly notes that the influence, if any, of Roman law on the ‘penitential model’ is difficult to trace. She contends that the principle of reciprocity likely imitated the Old Testament lex talionis more than any contemporary civilian jurisprudence or practice (150–51). These concluding observations do not detract in the slightest from this reviewer’s appreciation of this excellent work. Legal historians will find this a valuable study. The same holds true for those who examine late medieval theology and society. Zanetti Domingues has provided a nuanced, detailed study of how a late medieval commune understood violence, punishment and spirituality in complex, interdependent ways. By selecting Siena, she has challenged a body of interpretation that has often relied on evidence from Bologna and Florence. No less significant is her argument, noted above, that Siena’s statutes do not reflect the trend towards greater severity in punishment. It would be useful to test this in the statutes from other communes that, like Siena, have not received the close attention given to Florence or Bologna. Future studies of the theory and practice of criminal justice in medieval cities should pay close attention to this work of Zanetti Domingues.","PeriodicalId":53815,"journal":{"name":"Comparative Legal History","volume":"10 1","pages":"217 - 221"},"PeriodicalIF":1.2,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48188298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}