What is comparative legal history

This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No 753427

I.   Summary of the context and overall objectives

A. What is the problem/issue being addressed?

The project aimed to explain the sharp rise in the period 1930-60 of a new methodological approach in legal-historical studies, self-styled by its promoters as Comparative Legal History. To this purpose I designed an explanatory model to bring to light the connections between legal history and the broader ambit of legal science. The main idea is that legal history develops within the main legal curriculum, and its subject-matter is not an abstract and timeless idea of law but is embedded in a set of historical determinants; it begins from broad premises that govern the current understanding about how institutions function (what constitutes law, how it is produced and by whom) and which function as a principle of selection in the making of legal history: in selecting data, investing them with meaning and designing the narrative.
Applying this model to a long-term perspective, the research was able to bring to light how legal historiography recurrently changed its focus. It showed how 19th century historiography, led by Savigny and his school, focused on legislation and texts; and how the 20th century turned that legacy upside down imagining a legal world whose protagoninst was the judge, and developed an uncompromising concern for language, best evidenced in Wittgenstein, Kelsen, Hart up to the Nouvelle Rhétorique and to ongoing linguistic concerns that have been animating large sectors of legal-historical research.
When we apply this model to the 21st century, we soon realise that the focus has shifted from language to the informational framework within which jurists operate.  The model therefore singled out three broad frameworks, each flowing into the following, whose basic features can be found in three major writings publised at the inception of the 19th, 20th and 21st centuries: Savigny’s Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft(1814), Kantorowicz’ Kampf um die Rechtswissenschaft(1906), and Glenn’s Legal traditions of the world(2002).

B.   Why is it important for society?

The project is motivated by a concern for the waning historical dimension of legal science. Legal history is marginalised in the legal curriculum and is today virtually absent from public discourse. This was not the case in the 20th century, when we find this discipline explaining the European intellectual tradition and giving a foundation to all major juristic projects, from the harmonisation of private law to the search for a legal unity. Today’s stronger lenses to understand reality are those of economics and social sciences. The project’s purpose in charting the history of legal history is to find the thread that links legal history to legal theory: if they are unlinked, then legal history disconnects from legal science, which is precisely what we are registering today, as this discipline is drifting outside the legal curriculum.
Secondly, the project aims to clarify the role of legal history in the growing information-based legal environments. Its supporters present information technology as the carrier of a disruptive phase which is leading to radical and sweeping changes that will be impacting on the legal field in an unprecedented way, pointing to digital justice, online dispute resolution, digital text-dissemination and new forms of legal education. This revolution, however, belongs to legal practice and has been barely noticed in academia. If so, at the heart of legal digitalization is a dramatic divide between law in action and law in books, but deepened to an unprecedented degree. The major risk is legal practice drifting away from its points of reference. Gone further than its conceptual and intellectual roots, it is entering a conceptually-uncharted territory, unable to justify its development. Legal science is a conceptual enterprise: it works by conceptual frameworks that impose a degree of order and make sense of the legal facts upon which actors operate. By entering a conceptually-uncharted territory this divide is creating a legal world which cannot justify its premises and so misunderstands the nature and consequences of its own evolution. An unbalanced and precarious legal phase is in the making and such risk is made deeper by the challenging blueprints for future developments in education and new dispute settlement practices. The present project aims to fill the conceptual gap produced by this divide.

C.   What are the overall objectives?

At the heart of the project is to recreate awareness for the historical dimension of legal science, which in turn requires to re-engineer the methodological apparatus and subject-matter of legal history. The main idea is that today’s information-dependent legal systems make legal scholars increasingly sensitive to the dynamics by which information is produced, managed and transmitted. They are more inclined to see legal systems as communities that organise, store, communicate and process information. At the same time this approach opens a cluster of questions to be tackled in a framework that benefits from a variety of approaches, from the broad theoretical-epistemic insights developed by the philosophy of information, to comparative law investigations on diffusion and reception, to the history of the book and of institutions.

II.   Work performed throughout the project and main results achieved

The research went through five steps:
(1) The work started by identifying the research question (“what is comparative legal history?”) as a question about change (“how this field come about?”). This premise required therefore to understand how the writing of legal history changes in time.
(2) To make this change perceptible, an explanatory model was set up. The main idea was that legal history requires a starting point. This is an image of law with which any style of writing is deeply intertwined, namely a set of broad assumptions that the scholars engaged in this field share about their subject-matter —the law —and answers some general questions about what is law, by whom it is created and how. They provide points of view, order experience, interpret facts and have the authority which is conferred upon them by scholarly consensus. Legal history cannot be written without such image, as it defines the law which is its object of study. Any historical narration needs a criterion to separate what is relevant from what is not. Without it, the historian simply would not know what to look for.
(3) To begin to understand the 19th century model, we needed first to turn to its fountain-head, the German jurist Friedrich Carl von Savigny (1779-1861): the writing of legal history has been guided until mid-20th century by a set of assumptions established by this influential figure. This discipline owes its foundations to this immensely influential scholar, who provided a model for the writing of legal history which became the paradigm that guided legal historiography in most European countries from the early-19th to mid-20th century. Moreover, because Savigny and his school were also the fathers of 19th century legal science,  to grasp the historiographical conceptions they developed it is the premise to understand continental legal science in general. Because of the cultural leadership exerted by Germany, the whole continental Europe was bewitched into this project, which we synthetised looking at three features:
(a) ‘textualism’: legal authority is expressed only in a final and conclusive codified text, the corollary being an attack on interpretation. If so, textualism had a role in the power game fought between legislators and judges: legislation requires faithful interpreters; (b) ‘purity’, to indicate the inclination to separate law from the context in which it operates and thus to conceptualise it as a pure entity. The main implication is that it must be defended against all possible contaminations by keeping away all forms of non-legal normativity, namely, by separating law from facts. This idea governed the construction of the systems of private law, based on a sharp distinction between private law and procedure; (c) ‘historicism’: the combination of historical explanation and systematic construction placed in a teleological temporal succession.
(4) The decades 1930-60 saw a profound turn in European legal science. Some legal scholars refused the hegemonic doctrines of legal science bequeathed from the 19th-century and launched an attack on the ‘formalism’ at the heart of its intellectual framework; choosing the protagonist of the legal system, they turned from the legislator to the judge who decides case by case. Their focus shifted from substantive law to procedure, from statutory law to case law, from abstractions to facts.
Beginning from another set of assumptions about ‘law’, they not merely turned upside down the legacy received from the 19th century but also placed legal history under a new light: the rise of comparative legal history must be put in this context. At the heart of their endeavours was a concern with language (Wittgenstein) which they considered as the chief problem in designing new juristic institutions (from Kantorowicz, Hart, Kelsen up to the Nouvelle Rhétorique).
They counteracted the 19th century paradigm in the three specific instances: (a) they turned to other modes of normativity that contradicted the exclusive concern with black-letter law (‘textualism’); (b) they launched an attack on a theory-centred approach to the law (‘purity’); (c) they turned away from an explanation of historical time in terms of cumulative development (‘historicism’)
(5) Our explanatory model was then applied to the 21st century, showing that the focus has shifted from language to the informational framework within which jurists operate. Today’s information-dependent legal systems make legal scholars increasingly sensitive to the dynamics by which information is produced, managed and transmitted. This specific argument (“Law as information” ) is in my research the point of departure for rethinking legal-historical studies in terms of plural legal traditions, according to a methodology which is both jurisdiction-free and opens the path to approaches that are free from state-based constraints. I presented this part of the research to some extra-European audiences (India, China and South Africa).

III.   Progress beyond the state of the art and expected potential impact

The whole research is an exercise in the history of legal history. This is a new field which looks both at the past, in order to bring to light the rationale that unites legal history to the broader ambit of legal science, and to the future, in order to figure out a place for legal-historical studies in the legal curriculum. In this sense, this project is addressed to the freshers made of digital natives who will be accessing the legal environment in the next few years. Unlike the jurists educated in the 20th century, they will not have experienced the traditional environment. But they could be reconnected to it through an historical explanation that broadens their information-based environment to a historical dimension.