Comparative Legal History
Journal Data
| Type | JOURNAL |
|---|---|
| Publisher | Informa (GB) |
| ISSN | 2049-677X / 2049-6788 |
| Scopus | 21100790507 |
| Wikidata | Q56823466 |
| OpenAlex | S4210200824 |
| MAG | 4210200824 |
| Website | https://www.tandfonline.com/toc/rclh20/current |
| Total publications | 56 |
| Coverage period | 2015 - 2026 |
| Country | GB |
| Language | EN |
| Indexing | Scopus indexed |
| Cited by | 14 |
| Impact factor | 0.31 |
| SJR | 0.109 (Q3) |
| CiteScore | 0.7 |
| h-index | 3 |
| Female authorship share | 12.5% |
This journal focuses on comparative legal history, which can intersect with legal anthropology and social/cultural history. It falls within cognate humanities and social science fields with regular anthropological relevance
History · Law · American Constitutional Law and Politics · Chinese history and philosophy · Classical Studies and Legal History · Colonialism, slavery, and trade · Comparative and International Law Studies · Conflict of Laws and Jurisdiction · European and International Contract Law · European and International Law Studies
Re-enacting the judicial philosophy of Oliver Wendell Holmes, Jr
Oliver Wendell Holmes Jr. sat on the Supreme Judicial Court of Massachusetts in 1889, when, in the case of Claflin v Claflin, he joined the decision that a trust may not be modified if the intention of the testator would be undermined. Claflin rejected Lord Cottenham’s reasoning in Saunders v Vautier that, under certain circumstances, beneficiaries may compel the termination of the trust and transfer the property to them. Claflin v Claflin and Sa…
Comparative law today – tomes, themes, trends
This essay surveys recent themes and trends in comparative law scholarship, with a particular eye towards the connections between comparative law and legal history. The author observes a significant movement towards encyclopaedisation, marked by a proliferation of handbooks and encyclopaedias that attempt to systematise knowledge, though these works often struggle with comprehensiveness and persistent Eurocentrism. While traditional treatises con…
Early conflict-of-laws rules
This article examines one of the earliest codified conflict-of-laws rules in East Asia and its overlooked reception in Vietnam. While systematic codifications of conflict rules in Europe developed much later, the Tang Code of China (652 CE) had already incorporated a provision regulating disputes involving foreigners within its territory. This rule was subsequently received in the legal systems of several Sino-sphere countries, including Vietnam.…
Ius commune , Venetian governance, and Croatian Glagolitic culture
The Polish Blackstone
The principal goal of this article is to address the reception of William Blackstone's legal thought and the awareness of his contributions within the context of nineteenth-century Polish legal scholarship. Despite the considerable differences between English and Polish legal traditions, the limited proficiency in the English language within Poland, and the relatively gradual evolution of Polish legal thought, Blackstone's works were acknowledged…
Constitutional nationalism and remembered history
This article will argue that national history can further the project of constitutional self-government even in formerly authoritarian countries. Examining the former Soviet republics, it will describe how remembering forgotten or suppressed democratic constitutional ideas and arguments from national history can help support the project of constitutional self-government. This form of ‘constitutional nationalism’ counters arguments that constituti…
The Commercial Law for Bosnia and Herzegovina from 1883
The subject of this article is the Commercial Law for Bosnia and Herzegovina from 1883. This law represented a legal transplant of German commercial law. At the time of its adoption in 1883, the Commercial Law did not represent a mirror of society. However, archival sources point to the fact that the government did not actually aim to impose a law that reflected the socio-economic conditions or business and commercial practices in Bosnia and Herz…
Reasoning and reconciliation in twelfth-century Anglo-Norman legal writing
This article explores legal reasoning and reconciliation of sources in late twelfth-century legal writing, focusing on four Romano-canonical procedural treatises (‘Olim edebatur editio’, the ordo of Ricardus Anglicus, Actor et reus and the Ordo Bambergensis) and the English common law treatise known as Glanvill. Through a comparative lens, the study highlights how these works addressed conflicts between legal authorities while reflecting broader …
Early parliamentary dissolutions and judicial review
In this article, I explore some implications of judicial challenges to early dissolutions of national parliaments from a comparative perspective. I assess two cases where the constitutionality of the dissolution was upheld (Germany 1983 and 2005) and four where it was not (Czechia 2009, Nepal February 2021 and July 2021 and Pakistan 2022). The evidence suggests that judicial intervention in parliamentary dissolution disputes is often inferred rat…
Doctrinal change in Mālikī law
This article explores doctrinal change in Mālikī law. Using the example of the distinctly Mālikī doctrine of a wife’s right to judicial divorce based on harm (ḍarar), it explores how this rule became the basic position of the school by no later than the eighth/fourteenth century, when Khalīl b Isḥāq included it in his authoritative Restatement of Mālikī law. The earliest sources of Mālikī law from the second/eighth century used the law of battery…
Coverage of the Jewish people by legal solutions granting compensation related to population transfers in twentieth century Europe
While population transfers were an inseparable part of European policy in the twentieth century, providing compensation for immovable property left behind faced formidable legal, political and economic challenges. Compensation schemes frequently failed to be implemented or left claims of significant groups of migrants or their descendants unsettled, often for several decades. The Jewish minorities, present in most European countries for many cent…
Anglophone Africa, colonial legacy and the limits of legal transplantation
The legal systems in Anglophone Africa were colonially inherited from Britain. Even after achieving political independence in the 1990s, neocolonialism continues to be Africa’s Achilles heel in acquiring jurisprudential independence. African lawmakers and judges continue to transplant English statutes and case law wholesale without tailoring them to suit African life. A major consequence of this trend is that African law is pluralistic and vacill…
Historical development of judicial precedents in Vietnam
Judicial precedents have played an important role in both common law and civil law countries. Vietnam created a new judicial precedent system in 2015. However, precedents were used in Vietnamese legal proceedings long ago, yet the use of precedents in Vietnamese legal history has been understudied. The article seeks to provide a comprehensive survey of the use of precedents under the Nguyễn Dynasty (1802–1884), the French colonial legal system (1…
Three takes on comparative constitutional history
A review of The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World, by Linda Colley, New York, Liveright, 2021, 512 pp, $19.95 (pbk), ISBN 978-0871403162; Modern Constitutionalism: Origin and Manifestations. England – North America – France – Germany – Europe/European Union – Latin America, by Horst Dippel, Clark, Talbot Publishing, 2 vols, 2022, xxii + 546, x +547-1177 pp, $295.00 (hbk), ISBN 978-1616196769; T…
Comparative nomogenetics
John Henry Wigmore’s life experience as a Westerniser teaching Anglo-American Law in Japan from 1889 to 1892 is an example of legal orientalism. Engaging in the historical study of Japanese law despite diverging cultural paradigms between East and West paradoxically revealed striking similarities leading to the publication of the Materials for Study of Private Law in Old Japan in 1892. More than three decades after his return from Tokyo sparking …
Early modern comparative contract law
Contract law was one of the main subjects discussed in the early modern legal genre of differentiae iuris civilis et canonici (‘differences between civil and canon law’). Similar topics were covered in both late medieval and early modern differentiae – hence this genre offers a good opportunity for comparative historical research dedicated to selected topics of contract law (such as those discussed here: the actionability of bare agreements, stip…
Parallels and patterns in the Italian (1901) and Hungarian (1903) legislation on migration
The second half of the nineteenth century was an era of mass labour migration in Europe, when the Atlantic route became of paramount importance alongside intra-continental mobility. From the last third of the century Italy and Hungary were among the most important emigrating countries. By this time changes in the regulation of migration had begun to take place with the development of stronger state control, which affected mobility and the relatio…
Moral rights and the protection of classics
This article examines §51 of the Swedish Copyright Act 1960, generally known as ‘the protection of classics’ in relation to international discourses on copyright in the mid-twentieth century. The provision in §51 protects works of cultural significance by deceased authors and artists against reproductions that are considered offensive, even if the works are in the public domain. This article analyses the arguments and motives that led Swedish leg…
Revisiting the history of colonialism and international law in Indonesia
Power is exercised through truth claims, as seen in the case of Dutch colonialism in Indonesia. Gertrudes Johan Resink, a scholar of international law, successfully exposed the history of Dutch colonialism in Indonesia and demonstrated the pre-existence of international law before European expansion by considering the role of international law in Indonesia’s history. This article examines Resink’s legacy and the potential for elaborating further …
Why the rule of law? A historical perspective
Why do we expect law to bring about better and more just societies? Around the world, systems of accountability are weak and dictators find ways to avoid the constraints of both national and international laws. Yet we continue to call for better laws and for aggressors to be tried for war crimes. This article brings a historical approach to this puzzle, considering some of the earliest known laws, from Mesopotamia, Rome, the Hindu and Islamic wor…
The invisible poor in Norwegian and Danish town laws c 1200–c 1350
The most vigorous period of urban law production in both Denmark and Norway failed to regulate urban poverty, in particular for those falling outside the groups that comprised the personae miserabiles, the deserving poor. A close reading of Danish and Norwegian town laws, in Latin and the vernacular respectively, provides an understanding of how poverty fitted into the social and legal system of the towns. A comparative approach reveals both how …
Irish newspapers and the creation of the 1922 constitution of the Irish Free State
This article attempts to recover perceptions of the Constitution of the Irish Free State at the time of its creation through analysis of Irish newspapers published in 1922. The comparative analysis of contemporary perceptions is intended to serve as a counterweight to perceptions of this Constitution presented in scholarship written in the years after 1922 that have been heavily influenced by knowledge of subsequent events. This article includes …
Doctrinal circulations in criminal law 1764-1914
Although criminal law books were comparatively rare before the middle of the eighteenth century, Beccaria’s Dei delitti e delle pene (1764) triggered the development of an enormous literature devoted to penal issues (from philosophical foundations to debates related to prisons) in Europe until 1914. In one and a half centuries, more than 20,000 books were published on these issues, of which about half were published in German lands and the remain…
The unwanted citizens
This article examines the establishment of the legal framework that led to the destruction and elimination of Jewish communities in Croatia and Romania during World War II. It argues that both regimes, supported by domestic fascist ideologies, evolving antisemitism, and inspired by the Nazi regime, promulgated anti-Jewish legal norms to present and establish new political, ideological, and social values and categories to their citizens. This arti…
Citation networks in administrative law books from the civil law world (nineteenth century)
This paper analyses citations of doctrine in handbooks of administrative law published in the nineteenth century in the Civil Law World – that is, Europe and Latin America. I scanned through 81 books, finding c 25,000 citations to c 5000 different texts. I built a graph with all citations to find relations of proximity and distance between different books and national groups of books. I found that French lawyers were the most cited, but they lost…
Do you know the ninth commandment? Tensions of the oath in Dutch colonial Sri Lanka
Colonial agents often saw the value of improvising the corporal form of the oath for the smoother functioning of judicial bodies. In eighteenth-century Sri Lanka, the Dutch colonial government found that potential swearers were mostly nominal Christians who had few scruples about giving false oaths. This subtle resistance prompted the Dutch to make changes to accommodate local customs. Ultimately, the changes were of little use due to the mutual …
From sovereignty to modernity
The Colebrooke-Cameron Reforms (1831) have been characterised by David Scott (1995) as marking the transformation of colonial Sri Lanka from one kind of political rationality - that of mercantile sovereignty - to another - that of colonial governmentality. Whilst consonant with the view that the Commission marked a moment when the colonial administration moved away from a strategic reliance on Asokan or Buddhist forms of authority in the earliest…
The theory and practice of indigenous dispossession in the late nineteenth century
The dispossession of indigenous peoples is one of the central issues of the post-colonial world. The purpose of this article is to explore the Saami dispossession in the nineteenth century in the far North of Europe through a comparative approach. By comparing the theory and practice of the Saami dispossession with examples from Oceania, North America and Africa, this article analyses the role of legal and anthropological doctrines in the process…
The usurpation of legal roles by Suriname’s Governing Council, 1669–1816
Suriname was one of the most emblematic slave societies of the Atlantic world and saw a court system in which a Governing Council functioned simultaneously as political council to the governor, as a criminal court and also elected the Civil Court. Studies of the practice of the Governing Council have been limited to a small number of spectacularly brutal cases canonised by abolitionist campaigners. This article reconstructs how various forums for…
The concept of military occupation in the era of the French Revolutionary and Napoleonic Wars
This article accounts for the existence of a clear concept of military occupation, albeit inconsistently used, in the era of the French Revolutionary and Napoleonic wars. It sets out the factors favouring such clarity and those militating against it. It argues that accounts of the concept of military occupation in terms of the principle of national self-determination and the French revolutionary renunciation of the right to conquest are insuffici…
The theory and practice of indigenous dispossession in the late nineteenth century
The dispossession of indigenous peoples is one of the central issues of the post-colonial world. The purpose of this article is to explore the Saami dispossession in the nineteenth century in the far North of Europe through a comparative approach. By comparing the theory and practice of the Saami dispossession with examples from Oceania, North America and Africa, this article analyses the role of legal and anthropological doctrines in the process…
Rethinking modern European intellectual history
In 1861, English jurist Henry Maine published his grand œuvre, a book called Ancient Law. In it, he set out to trace the development of what he called ‘progressive’ societies from pre-modern to mod
Jacques Cujas (1522–1590)
status: Published
Inheritance from Uncle Sam
The Israeli Succession Bill was the first civil law to be written in the young State of Israel. With the help of extensive archival research, in Israel and the United States, this article follows one of the factors in the formulation of the bill. This is the project for assisting Israeli law established at the beginning of the 1950s at Harvard Law School. Study of the archives showed how deep the involvement of the project workers, and of leading…
The beginnings of Islamic law
In this bold and ambitious book, Lena Salaymeh – a colleague of this reviewer – discusses the way in which the historiography of Islamic law should be done. The aim of the book is to suggest a new ...
The usurpation of legal roles by Suriname’s Governing Council, 1669–1816
Suriname was one of the most emblematic slave societies of the Atlantic world and saw a court system in which a Governing Council functioned simultaneously as political council to the governor, as a criminal court and also elected the Civil Court. Studies of the practice of the Governing Council have been limited to a small number of spectacularly brutal cases canonised by abolitionist campaigners. This article reconstructs how various forums for…
The Church of England and divorce in the twentieth century
In the book under review, Holmes provides a fine analysis of the history of divorce from the perspective of the Church of England in the twentieth century. The book not only considers the influence
From sovereignty to modernity
The Colebrooke-Cameron Reforms (1831) have been characterised by David Scott (1995) as marking the transformation of colonial Sri Lanka from one kind of political rationality - that of mercantile sovereignty - to another - that of colonial governmentality. Whilst consonant with the view that the Commission marked a moment when the colonial administration moved away from a strategic reliance on Asokan or Buddhist forms of authority in the earliest…
Custom as a source of law in European and East Asian legal history
This chapter sets forth the spread of law from a comparative perspective, with emphasis on customary law in Europe and East Asia. The concept of custom as a source of law played the role of important machinery in the process of adopting a new legal system from outside. The traditional view has been that custom was the universal origin of law, emerging spontaneously in social existence, but history has shown, from medieval France through Meiji Jap…
Do you know the ninth commandment? Tensions of the oath in Dutch colonial Sri Lanka
Colonial agents often saw the value of improvising the corporal form of the oath for the smoother functioning of judicial bodies. In eighteenth-century Sri Lanka, the Dutch colonial government found that potential swearers were mostly nominal Christians who had few scruples about giving false oaths. This subtle resistance prompted the Dutch to make changes to accommodate local customs. Ultimately, the changes were of little use due to the mutual …
Roman law in Ethiopia
This study tracks the ancient Ethiopian Fetḥa Nagaśt (‘Law of the Kings’) to its origins, which date back to compilations of Roman-Byzantine law from the fifth to the ninth centuries, first translated from Greek into Arabic by Coptic Christian jurists in Egypt in the twelfth and thirteenth centuries and into the classical Ethiopic language (Ge’ez) in the mid-seventeenth century. The transfer of this Eastern Roman torso of law to the radically dif…
What is global legal history
Legal history, as developed in nineteenth-century continental Europe, has a national tradition, but also a transnational past. During the last two decades, however, a new field of global legal history has emerged, not least as a response to Eurocentrism, methodological nationalism and the current reality of transnational and global law. In this article, I map some historiographic traditions of transnational legal history and the emerging field of…
From Fukoku Kyohei to Fu-Guo-Qiang-Bing
Japan’s Meiji Restoration was a modernisation reform Imperial China aimed to transplant. However, China failed in applying Japan’s (Meiji) constitutionalism of Fukoku Kyohei and the institution thereof. This article examines the then social-political grounds of both China and Japan through a comparative approach to explore why China floundered whilst Japan succeeded from the perspective of institutes of constitution. The conclusion of this articl…
Insuring vs. investing in litigation
Coherent privaatrecht
States and non-state actors in hegemonic and counter-hegemonic narratives in international law
The historical background of Nigeria as a state and how state and non-state actors within its domain influence the nation's domestic and international activities demonstrate the conflict and complexity between dominant ideologies and resistance between competing actors in Nigeria. Such struggles arose following the imposition of colonial rule and subsequent introduction of the English legal system, which unsettled existing indigenous systems that…
Can a judge rely on his private knowledge? Early modern Lutherans and Catholics compared
This article examines the opinions of Catholic and Lutheran authors on the question of whether a judge should decide a case according to his personal knowledge when that knowledge conflicts with the charges and evidence at the trial. The majority of the Catholics contended that the judge had to follow the evidence. They distinguished between the judge as a public functionary and as a private man. The judge could not use in a trial what he knew as…
Caught between nostalgia and modernisation
Building upon the literature review of crimes and punishments in Japan from the Middle Ages to modern times, this paper highlights the contradictory forces driving the evolution of criminal law and criminal justice. Individual versus State, human rights versus government powers – these are some of the struggles Japanese rulers and legal thinkers have been facing. By tracing the fragmented process that led to a modern criminal justice system, the …
Global legal biography
This article aims to contribute to the growing body of scholarship on legal biography. In Britain and the United States, a long standing tradition is to focus on the lives of judges. Existing studies focus on a subject’s early life and background, showing that this experience had an impact on legal ideas and law-making. Yet, there is now a recent resurgence in interest in legal biography that focusses on legal figures elsewhere in the world. The …
Immemorial (and native) customs in early modernity
This text asks how a greater familiarity with European law would change our vision of colonial territories, most particularly, Latin America. Concentrating on the study of immemorial and native customs in both European and American territories, it argues that these customs were not necessarily ancient or authentic. Instead, they authorised making legal exceptions to the general rule in a legal universe that was dramatically different from our own…
An enlightened shadow? Elements of the intellectual climate at the time of the codification of the Criminal Law of Malta
The Criminal Law of Malta was codified in 1854 under British rule. Prior to that, Maltese criminal law was subject to regulation by the Municipal Code of 1784, promulgated by the government of the Knights of St John. In both instances, the Maltese themselves were active in the creation of the legal text, and in both cases, they explicitly referred to the Maltese nation and to law and its notional relationship with the nation and that relationship…
The defence of Venetian dominion over the Adriatic Sea
During the Middle Ages, the Republic of Venice gradually gained control over the Adriatic Sea. Leading medieval jurists argued in favour of Venetian maritime jurisdiction based on Roman law principles and geopolitical realities. However, starting from the end of the fifteenth century, new developments, such as oceangoing navigation, challenged the foundations of the Serenissima’s wealth and power. The 1610s represented a particularly critical con…
The law of waste and the law of dilapidations
This article compares the origins and later development of two related remedies – one from the canon law, the other from the English common law. Neither has attracted the sustained attention of legal historians, but both played a part in the growth of English law. Although the evidence is insufficient to show that the relationship between the two was that of a ‘legal transplant’, it does produce both significant parallels and differences between …
Coke’s Prohibitions del Roy in a European perspective
Edward Coke’s Prohibitions del Roy (1608) at first sight seems a typically English discourse: a common law judge arguing for the independence of the common law courts from his king and from the conciliar courts and civil law jurists. A closer look from a European position reveals another picture, however. Compared with discussions by his (near) contemporaries Fernando Vázquez de Menchaca, Jean Bodin, and Hugo de Groot, it turns out that Coke’s pl…
What is a colonial treaty? Questioning the visible and the invisible in European and non-European legal negotiations
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 …