Even within Europe, European legal history tends to neglect certain regions such as Scandinavia and Central and Eastern Europe. [7] English legal historian Andrew Lewis separates comparative legal history into “strong comparisons” and “weak comparisons.” Robust comparisons refer to legal registries or conclusions that a feature of a subsequent legal system is borrowed from an earlier system. Weak comparisons refer to heavy or structural factors that cause systems separated by time and geography to take on similar characteristics. [33] In addition, an anthropological knowledge of the societies of the legal systems studied is necessary to prevent a researcher who is only listening to one legal system from “seeing what [he] wants to see” in another legal system. [1] Researchers have variously suggested that comparative legal history is incomplete if it lacks a sociological dimension,[37] that “it is impossible to know what it is to think like an American or Italian lawyer unless this condition is experienced in the first person,”[31] and that a valid study of another legal culture requires immersion in [its] politics, historischer, ökonomischer und sprachr Kontext”. [38] It is important to note that the role of the law varies from one company to another. In England, for example, the constitutional principle of the rule of law preserves the position of law as a defence against the power of the state and the powerful. Conversely, in South Africa, apartheid was imposed “through routine and systematic trials of courts and bureaucrats.” [39] The journal Comparative Legal History is an official scientific forum of the European Society of Comparative Legal History. It was first published in 2013 and aims to provide a space for the development of comparative legal history. Based in Europe, it welcomes contributions that examine the law at different times and jurisdictions around the world.
Although it is not explicitly recognized as comparative legal history, the legal-historical comparison is present in a large number of works from antiquity to the Middle Ages. In Politics, published in the 4th century BC, Aristotle refers to constitutional law and the history of 158 Greek city-states to argue that the organization of a political community can lead its citizens to live a life of virtue. About five hundred years later, the church fathers left Tertullian (155 AD – 240 AD). Chr.) until Augustine of Hippo (354 AD – 430 AD) Comparisons between Jewish laws and customs and the texts of early Christianity. They used these comparisons to suggest that the Jewish failure to recognize Jesus as the Messiah nullified their claim to the biblical kingdom of God. [5] In the Middle Ages, with the rediscovery of Aristotle by English constitutionalists, the first continuous period of legal-historical constitutionalism emerged. Concerned about socio-political differences and competition, early modern English constitutionalists invested more in comparisons between civil law and common law. For example, in John Fortescue`s 15th-century book In Praise of the Laws of England, Fortescue distinguished between the “political and royal” kingship of England and the “unique royal” royalty of the French civil law tradition. Analyses of imperialism in African legal history often view colonial issues through the prism of European domination. For example, Africans often appear only as slaves and objects of European colonial orders. For example, the role of African notions of law and justice in the formation of colonial societies in Latin America is ignored. [9] Conversely, the history of law as an academic discipline initially focused exclusively on the legal history of nations.
There are different views on the causes and reasons for this. A striking example is the legal anthropologist Henry Maine, who took a comparative and historical approach to the legal systems of different cultures. Scholars of general national history such as Numa Denis Fustel de Coulanges, Édouard Lambert in France and Rafael Altamira in Spain have compared legal systems in the course of their historical work.