Roaming Across the X and Y Axes: A Plea for Comparative Legal History, by Agustín Parise

Comparative legal history offers opportunities to roam across time and space. Travelling across the X (time) and Y (space) axes triggers enriching perspectives that help students, instructors, and researchers to better contextualize and–above all–understand the law. In addition, the inclusion of comparative legal historical exercises in the analysis of law may help to turn lawyers into jurists. As pointed by Abelardo Levaggi, jurists do not limit their studies to the current law as it is and naked of a scientific and social context.[1] The scientific requirement of knowing the causes and explanations of the law will be reached by means of revealing the historical and comparative evolution. Five reflections follow on the exploration of law across the X and Y axes.

First reflection. Comparative legal history is an autonomous discipline that explores the law across time and space. Different definitions have been offered for comparative legal history. For example, Heikki Pihlajamäki provided an explanation that understands that the “comparative legal historian would always position the research object in an international context.”[2] The US legal discourse also participated of the disciplinary discussions, since, for example, Charles Donahue proposed a challenging characterization for comparative legal history that “involves laying two legal systems side by side in all of their aspects.”[3] A hereby-proposed definition for comparative legal history understands the discipline as the study of external and/or internal aspects of law necessarily undertaken across different time periods and jurisdictions (spaces). A comparative legal historical study needs to comply with both requirements: a study of an aspect of the law in at least two different time periods and at least in two different jurisdictions.[4] Disciplinary autonomy requires that a definition of comparative legal history is not imposed.

Second reflection. Universities and research institutes are devoting a growing attention to comparative legal history, inviting for the exploration across time and space. Developments are currently being sensed in the classrooms, in the literature, and in academic circles. For example, the 2019 British Legal History Conference and the 2020 Annual Meeting of the American Society of Comparative Law had comparative legal history as their main theme. An approach in these forums, both by legal historians and comparatists, makes evident the proximity and natural cooperation between both building blocks. That is to say, the cooperation between legal history and comparative law. Further, the interaction of legal history and comparative law offers a unique dimension that requires instructors and researchers with strong international backgrounds, since it calls for the challenging of previous understandings in multiple societies and periods. A comparative legal historical approach may help to explore de-colonialist and non-Westernized conceptions of law and culture, for example.

Third reflection. Comparative legal historical studies are of special value for the understanding of the circulation of legal ideas and the flow of legal paradigms. The circulation of ideas can only be fully grasped by using a comparative legal historical approach, across the two axes. Circulation requires the addressing of a shift: it requires the study of how things were before and after the idea circulated. The change can be sensed fully only by looking at two time periods: ex ante and ex post. Crossing the X and Y axes provides a full (and unique) perspective on a specific aspect of the law. Comparative legal historians do not undertake pure legal history or pure comparative law. The product of their research experience, that benefits from the techniques and approaches used in both disciplines, is more than the mere addition of the two building blocks: it provides a means to understand the evolution of legal science across time and space. Comparisons in time and space–as mentioned by David Ibbetson–can help unveil why events took place and not only what events took place.[5] These bi-dimensional studies no longer belong exclusively to the domain of legal history or comparative law. Researchers who follow the comparative legal historical path can claim independence from the two building blocks.

Fourth reflection. Circulation of legal ideas is closely connected to legal transplantation. Comparative legal history and legal transplantation can indeed walk hand in hand. Comparative legal history–due to its design across the X and Y axes–may encounter at some point legal borrowings. Ignoring those borrowings may be detrimental for the output of comparative legal historians. It should be noted that the adoption of a foreign legal provision will make the recipient its new owner, and in turn, the recipient will make the borrowed provision new. When the original provision interacts with the ethos of the recipient society, the interaction results in a body of its own.[6] The borrowing of legal provisions is not new and has been around for thousands of years. More than 2,000 years ago, Plato explained that in order to make a new colony successful, the borrowing of legal provisions could be implemented. Comparative legal historical exercises reflect that the borrowing of legal provisions occurred with no geographical or temporal limitation. In those lines, James Gordley alerted that scholars should not assume that law consists of watertight compartments wherein each jurisdiction experienced its own events.[7] Scholars should acknowledge that current legal systems result from a blend of previous solutions. A watertight study of a legal institution or event would result in an obstacle to the development of comparative legal history and to a complete understanding of the law.

Fifth reflection. Comparative legal history may help to further develop legal science. It can also help solve conflicts in society and nurture dialogue between parties. This autonomous discipline should revisit uncontested dogmas and it should explore jurisdictions and time periods that require more attention in order to build more complete contexts. Expanding the scope of studies would be beneficial, offering a forum to test results in light of broader understandings, reaching a better contextualization of occurrences, and therefore identifying differences and drawing parallels. It is worth remembering that it is possible to learn from experiences in different times and spaces. Comparative legal history can ultimately become an instrument for change, inviting for dialogue between systems and actors. An increase in comparative legal historical exercises may ultimately result in the empowerment that is triggered when knowledge is acquired. Scholars must provide the information that nurtures critical thinking, hence facilitating dialogue. After all, critical thinking will help attain a better mutual understanding, to engage in dialogue, and to move on.

Posted by Agustin Parise (Secretary-General, International Association of Legal Science (UNESCO); Associate Professor, Faculty of Law, Maastricht University (The Netherlands). LLB, LLD, Universidad de Buenos Aires (Argentina); LLM, Louisiana State University (USA); PhD, Maastricht University).

Bibliography

  • Charles Donahue, Jr.; ‘Comparative Legal History in North America’. Tijdschrift voor Rechtsgeschiedenis 65, 1997, p. 1-17.
  • James Gordley; ‘Comparative Law and Legal History’, in: Mathias Reimann and Reinhard Zimmermann (Eds.); The Oxford Handbook of Comparative Law. Oxford: Oxford University Press, 2008, p. 754-773.
  • David Ibbetson; ‘The Challenges of Comparative Legal History’. Comparative Legal History 1:1, 2013, p. 1-11.
  • Abelardo Levaggi; Manual de Historia del Derecho Argentino (Castellano-Indiano/Nacional). 2nd edition, Volume I, Buenos Aires: Depalma, 1996.
  • Agustín Parise; ‘A Constant Give and Take: Tracing Legal Borrowings in the Louisiana Civil Law Experience’. Seton Hall Legislative Journal 35, 2010, p. 1-35.
  • Agustín Parise; Ownership Paradigms in American Civil Law Jurisdictions: Manifestations of the Shifts in the Legislation of Louisiana, Chile, and Argentina (16th-20th Centuries). Leiden: Brill Nijhoff, 2017.
  • Heikki Pihlajamäki; ‘Comparative Contexts in Legal History: Are We All Comparatists Now?’, in: Maurice Adams and Dirk Heirbaut (Eds.); The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke. Oxford and Portland: Hart Publishing, 2014, p. 121-132.

[1] Abelardo Levaggi; Manual de Historia del Derecho Argentino (Castellano-Indiano/Nacional). 2nd edition, Volume I, Buenos Aires: Depalma, 1996, p. 4.

[2] Heikki Pihlajamäki; ‘Comparative Contexts in Legal History: Are We All Comparatists Now?’, in: Maurice Adams and Dirk Heirbaut (Eds.); The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke. Oxford and Portland: Hart Publishing, 2014, pp. 129-130.

[3] Charles Donahue, Jr.; ‘Comparative Legal History in North America’. Tijdschrift voor Rechtsgeschiedenis 65, 1997, p. 11.

[4] Agustín Parise; Ownership Paradigms in American Civil Law Jurisdictions: Manifestations of the Shifts in the Legislation of Louisiana, Chile, and Argentina (16th-20th Centuries). Leiden: Brill Nijhoff, 2017, p. 31.

[5] David Ibbetson; ‘The Challenges of Comparative Legal History’. Comparative Legal History 1:1, 2013, p. 2.

[6] Agustín Parise; ‘A Constant Give and Take: Tracing Legal Borrowings in the Louisiana Civil Law Experience’. Seton Hall Legislative Journal 35, 2010, p. 2.

[7] James Gordley; ‘Comparative Law and Legal History’, in: Mathias Reimann and Reinhard Zimmermann (Eds.); The Oxford Handbook of Comparative Law. Oxford: Oxford University Press, 2008, p. 763.