Legal Traditions

‘Legal tradition’ is a term frequently used in legal history and comparative law. The increasing interest in global perspectives on law and history, the dialectics inherent in globalisation as such, as well as some tendencies of ‘de-’ and ‘re-tradionalisation’, often enhanced by law, have made legal traditions even more topical. But what does ‘legal tradition’ mean? In this article, I review some characteristic usages of the term by classical authors from both legal history and comparative law, like JH Merryman and Harold J Berman, with special emphasis on the work of Canadian comparative law scholar HP Glenn. Beyond its grounding in contemporary information theory and evidence of an impressive command of legal-historical scholarship, his concept of legal tradition as normative information bears analytical potential for legal historians and should be read as an invitation to dialogue between comparative law and comparative legal history.

“Authorship in Early Modern Jurisprudence. Paul Voet (1619-1667) on auctor and editor”

Paul Voet (1619-1669), law professor at the University of Utrecht, opened his most famous work, published in 1657, with an unusual discussion of the five different types of auctores of juridical books (juris libri)—a precious source for the history of authorship in the jurisprudence and in the early modern respublica litteraria in general. This essay discusses the key concepts for his understanding of auctor and auctoritas in the field of jurisprudence, as well as the motivations for this uncommon inquiry into the notion of authorship. Besides his personal reasons (the rumors about the illegitimate authorship of some of his works), the detailed taxonomy of legal auctores also helped him to build a cogent argument against the validity of canon law in the United Provinces. His aim was to redesign the history of legal tradition and to dispute the authority of certain canon law sources, such as Gratian’s Decretum.

Il volume si occupa della sfida che il buen vivir elaborato nel contesto andino lancia agli altri ordinamenti in tema di sostenibilità muovendo dall’idea del vivere in armonia con la comunità e con la natura, analizzando le principali sfaccettature che esso assume a livello costituzionale in Ecuador e Bolivia.

La prima parte del lavoro dà conto di alcuni profili che concorrono a delineare il sistema giuridico latinoamericano con particolare risalto al riconoscimento dell’autoctonia e ad altri aspetti agevolmente rintracciabili nell’area indagata e approfondisce il tema della costituzionalizzazione del buen vivir facendo leva sul concetto di tradizione giuridica contro-egemonica.

La seconda e la terza parte del volume indagano i contenuti degli assi cartesiani su cui fa perno il buen vivir, inquadrando i profili normativi sottesi alla fondazione di Stati autodefinitisi come plurinazionali e interculturali e le problematiche sottese al riconoscimento della personalità giuridica di Madre Terra e all’esercizio delle consulte preventive in materia ambientale.

Lo studio è teso a valutare le consonanze e le dissonanze fra Ecuador e Bolivia e a definire i caratteri della tradizione giuridica celata dietro l’aspirazione della società al perseguimento del buen vivir, identificandone i valori essenziali.

The paper, presented at the 32  Deutscher Rechtshistorikertag  shows how comparative law is an essential component of a variety of critical approaches  on the historiographical canon and of the (imagined) legal traditions that supports such a canon.

The adoption of a new Code of Civil Procedure in Quebec provides an opportune moment to consider the reasons for, and consequences of, a new direction in adjectival law. Moreover, it is an appropriate time to reflect on the influence of legal traditions on civil procedure, and the role played by such traditions in the legislative evolution and judicial interpretation of procedural law. This paper analyzes the current trends in civil procedure in Quebec, from both legislative and judicial standpoints, and seeks to relate these trends to tradition-based influences. Ultimately, this study demonstrates that Quebec’s procedural law has experienced great swings of the pendulum – originally inheriting continental civilian procedure from the French, gradually evolving towards a very common law/adversarial notion of procedure, and now reverting back in a civiliste direction.

This paper aims to analyze the constitutions of Ecuador (2008) and Bolivia (2009) highlithing the legal meaning of Buen vivir, the native peoples’ cosmovision which permeates these texts. The Introduction provides an overview of the native cosmovision, which implies an harmonic life of individuals, communities, and nature. Section II gives an explanation of the concept of subaltern cosmopolitan legality; in the counter-hegemonic globalization, the law is conceived in terms of revalutation of the chtonic tradition and of the extension of legal pluralism. In Section III, the meaning of traditions and the values of the counter-hegemonic legal tradition are illustrated. Section IV is devoted to the analysis of the positivization of the Andean cosmovision in the constitutions of Ecuador and Bolivia. Section V illustrates the characteristics of the new Plurinational States. An analysis is carried out with regard to the explanation of the rights conferred to the Mother  Earth in Section VI. The final Section is dedicated to the illustration of the results of the comparative analysis and to the potential diffusion of the counter-hegemonic legal tradition from Ecuador and Bolivia to other legal systems.

Some scholars have presented codification as a means to both nationalise and denationalise European legal traditions. This seems to be a paradox. On the one hand, the fact that laws needed to be approved by national parliaments and the ius commune – which was somehow regarded as a foreign law – ceased to be in force, gives evidence of how much codification contributed to the nationalisation of law. On the other hand, the fact that national parliaments enacted codes whose content had been highly influenced by foreign codes reveals that codification also contributed to the denationalisation of law. Different perspectives and arguments may lead to completely opposite outcomes. This debate has been particularly present in the Spanish scholarship. In the end, it seems that the view of codification as a means of denationalisation of law has prevailed, giving either a biased and partisan view of codification, or simplifying its richness. The consequences of such an approach have been notable in describing the codification of all legal branches, particularly in the civil law domain. After the Introduction (I), the paper will explore the Spanish historiography on this matter in a European context (II.1), paying particular attention to Belgium (II.2) and Romania (II.3). I will finish with some concluding considerations (III).

Seventeenth-century English jurist and legal historian John Selden integrated the three classic schools of jurisprudence -- natural law theory, legal positivism, and historical jurisprudence. He defined natural law as a set of fundamental legal principles commanded by God for the creation of a just legal order.  He defined positive laws as those rules and procedures created by a just legislature in accordance with both the principles of natural law and the needs of the particular community.  And he defined legal history as the account of each community’s legal tradition, which gave expression to natural law and provided limitations on the laws of any given sovereign, even the king himself.  Selden’s integrative jurisprudence offered a brilliant defense of the English common law tradition and a skillful interweaving of Jewish legal thought into the Western legal tradition.  Selden drew on a robust theology of God: God the creator, who set nature in order and motion in accordance with natural laws; God the law-giver who commands all human creatures to follow the principles of natural law and natural rights; God the judge who called his people to “establish courts of justice” for the protection of justice and mercy in each community; God the covenant-keeper who called his chosen people of Israel to follow the particular commands of the Torah; and God the intellectus agens who guides each good person to self-evident truths, and guides each great legal tradition, most notably the common law, to ever greater approximation of divine justice.

Sommario: 1. Il percorso del riconoscimento costituzionale dei diritti dei popoli autoctoni in Bolivia. 2. Lo Stato plurinazionale e interculturale. 3. Lo statuto costituzionale delle nazioni e dei popoli indigeni originari contadini. 4. La promozione della costumbre e della giustizia indigena. 5. La Ley de Deslinde Jurisdiccional. 6. La giustizia costituzionale interculturale. 7. Il ruolo del Tribunal Constitucional Plurinacional nell’edificazione dello Stato plurinazionale e interculturale.

This paper looks beyond the negative response to the reversal of Globalization. I highlight the intercultural clash between the values imposed through the uneven process of West-led Globalization and Islamic and (Confucian-)Socialist traditions in the Middle-East and East-Asia regions. Further alliance formation (example: Security Council P5 blocs on the situation in Syria) as a " symptom " of the 2 polarisation in a post-hegemonic multiplex system necessitates cultural diplomacy for better-coordinated collective action, and coherent mechanisms of prevention and prosecution for international terrorism, while carefully considering implications of the growing cyberspace in this issue. Reflecting on the future, I defend the possibility of creative fragmentation, illustrating it with South-South (specifically, China-Africa) cooperation in education, trade etc. Studying these phenomena holistically to harmonise the inevitable multidimensional fracturing to provide " good enough " global governance in a divided yet interdependent world is ultimately considered the goal of politics.

Are legal traditions incommensurable? Professor H. Patrick Glenn argued that the idea that legal traditions were not suitable for comparison was a result of the reification of cultures. This chapter discusses Glenn’s insights of tradition and commensurability by examining the variants of the concepts and practices of lineage property in historical Confucianism. In the Confucian sphere of influence, marked by the shared precept of ancestral worship and primacy of ritual obligation, legal developments concerning lineage organization and property converged and diverged, revealing the complexity in humanity’s efforts to respond to the various challenges it faced. This examination illustrates Glenn’s central idea that legal traditions of the world are not only comparable and translatable but also transplantable. Transformation and transmission of law in East Asia underscore the need to compare legal traditions, both within and without in all its independence and interdependence, and further to understand the past in its own terms in all the interconnectedness of autonomous dimensions of life at a given time.

n° 98, p. 159-178.
This article shows the importance of the early formation of British multiculturalism
as a crucial backdrop of the Hart-Devlin debate of the 1960s. Hart criticized Devlin’s “disintegration thesis” showing, correctly, that it fails sociologically. However, at important points, Devlin’s position does not fit easily with Hart's interpretation, but seems concerned with specific aspects of the British legal tradition. Contrary to other European cultures, liberty and tradition are not opposed in common law culture. British liberalism relies on certain legal standards, such as the “ordinary Englishman” and "the man in the Clapham omnibus", which he brings to the debate through the image of "the man in the jury box." Members of the judiciary around that time display uncertainty as to how such standards are to be managed in the context of mass immigration which marked the starting point of British multicultural society in the late 1950s. Rather than a straightforward confrontation between liberal and conservative camps as it is usually presented,  the Hart-Devlin debate reveals a surprising crisis in British legal culture. This, I argue, the protagnists of the debate would no doubt have had in mind. Devlin's position may no doubt fail. The reasons are not necessarily those we have looked to.

Please find attached and below our CfP for Development of Russian Law XII - Law, Tradition and Conservatism: Legal Responses to Neoliberal Governance 4-5 November 2019. Deadline for proposals is 15 May 2019.

More information and updates will be posted to the conference website as they become available:

https://www.helsinki.fi/en/conferences/development-of-russian-law-xii