scholarly journals Como a história da escravidão pode ajudar a formar uma teoria brasileira do direito? | How can the history of slavery inform a Brazilian theory of law?

2021 ◽  
Vol 3 (1) ◽  
pp. 272-291
Author(s):  
Paulo Henrique Rodrigues Pereira
Keyword(s):  
19Th Century ◽  
Legal System ◽  
Legal History ◽  
Liberal Tradition ◽  
National Legal System ◽  
History Of ◽  
Theory Of Law

ResumoO direito brasileiro foi articulado em torno das categorias clássicas do liberalismo europeu. Para além do debate da compatibilidade entre liberalismo e escravidão, esse artigo pretende demonstrar como a necessidade de preservar uma escravidão semilegal constituiu institucionalidades que fizeram com que o direito brasileiro operasse problematicamente sob o registro da tradição liberal, mesmo em relação aos seus cidadãos livres. Isso não foi um “erro” do direito, uma falha, mas foi antes uma ação inteligível dos arquitetos das formas e modos de funcionamento da juridicidade nacional. Nesse sentido, esse artigo pretende apontar para a necessidade de construção de uma teoria brasileira do direito que dê conta de compreender as particularidades de um sistema jurídico profundamente afetado pelo escravismo do século XIX.Palavras-chave: História do Direito. Teoria do Direito Brasileiro. Direito da Escravidão. AbstractBrazilian Law was crafted around the classical categories of European liberalism. Beyond the debate regarding the compatibility between liberalism and slavery, this paper intends to show how the need to preserve a semi-legal slavery system created illegalities that highlighted the contradictions between Brazilian Law and the liberal tradition. The resulting tensions also created consequences for free citizens, which are the focus of this paper. It demonstrates that these consequences were not mere legal defeasibility, but rather an intelligible action shaping the national legal system. The article advocates for the necessity to build a Brazilian theory of Law that takes these aspects into consideration, accounting for the systematic impact of 19th-century slavery on the idea of legality in Brazil.Keywords: Legal History. Brazilian Theory of Law. Slavery Law.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

scholarly journals A Legal History of the New Zealand Jury Service - Introduction, Evolution, and Equality?

1999 ◽  
Vol 29 (2) ◽  
pp. 283
Author(s):  
Michèle Powles
Keyword(s):  
Nineteenth Century ◽  
New Zealand ◽  
Legal System ◽  
Legal History ◽  
Race And Gender ◽  
Jury Service ◽  
History Of ◽  
Jury System ◽  
And Gender ◽  
Service Introduction

This article traces the development of the New Zealand jury system. Most noteworthy in thisdevelopment has been the lack of controversy the system has created. At the end of the nineteenth century, however, the pursuit of equality in the legal system generally led to debate and reform of juries in relation to representation, race and gender.

Creating Order in the Wilderness: Transplanting the English Law to Rupert's Land, 1835–51

1999 ◽  
Vol 17 (2) ◽  
pp. 209-246 ◽  
Author(s):  
H. Robert Baker
Keyword(s):  
Legal System ◽  
Legal History ◽  
Legal Culture ◽  
The United States ◽  
Major Theme ◽  
Law And Order ◽  
Complex Picture ◽  
History Of ◽  
Cultural Component ◽  
Colonial Settlement

The legal history of the western Canadian frontier has received renewed attention in recent years. Much of the work readdresses the question of “law and order,” challenging older assumptions about Canada's orderly frontier culture—orderly particularly in contrast to the United States’ violent settlement of the west. At issue is not just a revision of whether violence occurred on the Canadian frontier but a fundamental reinterpretation of what the concepts of “law” and “order” had really meant. Indeed, conflict between legal cultures has become a major theme as historians attempt to rewrite the history of the Canadian west. They understand that this conflict—whether violent or not—shaped the formation of Canada's legal culture before 1870. Methodological prescriptions for writing this type of history have emphasized the need for historians to widen their base of sources, particularly to exploit “nonlegal” sources (such as diaries, journals, and letters), and to consider the workings of what Lawrence Friedman has called the “cultural” component of a legal system: what suits were brought to court, what notions came into play there, what expectations people brought with them. Important studies on the colonial settlement of British Columbia in the nineteenth century have focused on the relationships between the Hudson's Bay Company, colonists, and Natives to demonstrate that conflict over resources and competing definitions of liberalism and law often shaped legal discourse. These rich accounts have, among other things, called into question the idea of an orderly, peaceful Canadian frontier. They have also provided a much more complex picture of the interactions between Native and European, and the uses of law and the legal system by settlers, Company men, and Aboriginals.

scholarly journals Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law

2017 ◽  
Vol 20 ◽  
pp. 1 ◽  
Author(s):  
Chuma Himonga ◽  
Fatimata Diallo
Keyword(s):  
Special Reference ◽  
South African ◽  
Legal System ◽  
Legal History ◽  
Legal Education ◽  
Customary Law ◽  
The Status ◽  
History Of ◽  
The Concept Of Law ◽  
Interdisciplinary Study

The student protests in South African Universities, which started in 2015, demanded the decolonisation of certain aspects of higher education. While the primary demand is free education, issues of the curriculum and transformation connected with the country's history of colonialism and apartheid have also surfaced. In the field of law, demands for curriculum change are accompanied by the broad issue of the decolonisation of law, translating into questions of legal history, the concept of law, the role of law in African societies, the status of indigenous systems of law in the post-independent/apartheid legal system, and how law is taught in law schools.This paper examines the idea of the decolonisation of law in relation to the teaching of law in African states previously under the influence of English or Roman-Dutch colonial/apartheid legal history. The teaching of law is with special reference to the system of law that governs the majority of people in Africa in private law and aspects of governance – living customary law. The paper examines the design of legal education with respect to three elements that are essential to the decolonisation of law and legal education. The elements under review are the inclusion of living customary law in legal education, a shift in the legal theoretical paradigm within which law is taught, and the interdisciplinary study of law. Thus, the paper links the decolonisation of law to how law is taught, with special reference to living customary law. In discussing these elements, the paper draws examples from the South African legal system, because it has the most advanced jurisprudential conceptualisation of customary law on the African Continent.

Tracing the History of the Legal System in India

2019 ◽  
pp. 1-22
Author(s):  
Mahendra Pal Singh ◽  
Niraj Kumar
Keyword(s):  
Legal System ◽  
Legal History ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
Medieval Period ◽  
British Raj ◽  
Legal Traditions ◽  
History Of ◽  
The Law

Examination of Indian legal history illustrates the presence of multiple legal orders that coexisted in India through the ages. Moreover, certain ‘modern’ conceptions of law were present in similar forms in India before the medieval period, contrary to Western assumptions. Largely ignoring these legal traditions, the British attempted to re-give law and legal systems to the Indians. This was part of the larger project of ideologically justifying the presence of the British Raj in India. The British used India’s extant legal diversity to argue for the lack of a dominant legal tradition, leading to the introduction of British common law as the law of the land.

The Survival of the Traditional Tswana Courts in the National Legal System of Botswana

1972 ◽  
Vol 16 (2) ◽  
pp. 103-129 ◽  
Author(s):  
Simon Roberts
Keyword(s):  
Legal System ◽  
Dispute Settlement ◽  
Good Deal ◽  
Early Years ◽  
Colonial Power ◽  
Legislative History ◽  
National Legal System ◽  
History Of ◽  
Almost All ◽  
Made In

In almost all the former British African territories the colonial power tried to make use of the traditional dispute settlement agencies which it found on arrival. The history of these efforts is familiar, following a generally similar course in most territories. The arrangements made in the early years were haphazard; a good deal of formalization took place around 1930; more profound changes were initiated in the early 1960's and have continued since. But the familiar legislative history yields little information about what has been happening on the ground. We know very little of the way in which the traditional agencies drawn into the official system actually reacted towards this process of incorporation. Leaving aside what the statute may have said, have they remained the agencies to which Africans actually resorted for the settlement of their disputes? Has the type of business coming before them changed? Similarly we know little about those agencies, typically at the lower levels, which did not undergo incorporation. Have they continued to function, or have they simply died away?

scholarly journals MANIFESTATION OF SHARIA REGIONAL REGULATIONS IN MANAGING SOCIAL MORALITY

2021 ◽  
Vol 20 (2) ◽  
pp. 189
Author(s):  
Muhammad Sabir ◽  
Nazaruddin Nazaruddin
Keyword(s):  
Legal System ◽  
Great Contribution ◽  
Social Morality ◽  
Regional Autonomy ◽  
National Legal System ◽  
History Of ◽  
Qualitative Descriptive ◽  
Important Position ◽  
And Behavior

This study discuss about the manifestations of shariah perda in managing of sosial morality. The type of this research is a qualitative descriptive using the sociological, historical and normative juridical approaches. The results of this study suggest that the sharia regional regulations are established based on the Koran and hadith. In the history of its formation, it is inseparable from the formation of national law by observing the three periods of its formation, especially regarding regional autonomy. It is also necessary to understand that if you look at the position of regional regulations, especially sharia regulations by looking at the legal system in force in this country, it can be understood that Islamic sharia has an important position in the formation of law in Indonesia. This regulation aim of safeguarding and protecting the dignity of the community. Although there is opposition and rejection of it, this rule is in accordance with the national legal system and makes a great contribution to managing people's lives. Because one of the functions of law is to regulate or control the actions and behavior of the community so as not to do actions that are detrimental to themselves and to the surrounding community.

The Conservation in Lyon and the Long Tradition of Coutume and Usage

2019 ◽  
Vol 80 ◽  
pp. 405-419
Author(s):  
Cornelis M. in ’t Veld
Keyword(s):  
Early Modern ◽  
19Th Century ◽  
Legal History ◽  
17Th Century ◽  
The Other ◽  
Customary Law ◽  
Late 19Th Century ◽  
Other Hand ◽  
History Of ◽  
Law Merchant

In this contribution I am tracing the legal history of the concepts coutume and usage back from today’s international mercantile law to the Tribunal de la Conservation in early modern Lyon. From the late 19th century some theorists were regarding usage as normative when it could be derived from the consensus between contracting parties. We find this conception of usage, for example, in the CISG. On the other hand, the more romantical strain of theorists on the law merchant was stressing that customary law was normative regardless of the possibility to derive it from the parties’ agreements. In early modern Lyon merchants were invoking usages (and to a lesser extent also coutumes) at the Conservation frequently. Because of the juridification of this tribunal in the late 17th century, we expected that the use of the words coutume and usage was in line with the doctrinal conceptions of their days (according to which coutume was a form of written normative customary law and usage was a non-written normative customary law). This, however, was not always the case: sometimes the judges of the Conservation were using the words in a rather loose sense.

A Legal History of Mississippi

2019 ◽  
Author(s):  
Joseph A. Ranney
Keyword(s):  
Civil Rights ◽  
Legal System ◽  
Legal History ◽  
Jim Crow ◽  
Early Years ◽  
Andrew Jackson ◽  
Early Nineteenth Century ◽  
Legal Response ◽  
The Great Depression ◽  
History Of

Sixty years ago, one historian described state legal history as a “wasteland,” a neglected but vitally important part of American history. Legal histories of individual states are now beginning to appear. With this book, Mississippi joins their ranks. The book describes the evolution of Mississippi’s legal system and analyses the changes in that system during the state’s first 200 years. The book examines the interaction of law and society during six key periods of change: (1) Mississippi’s colonial and territorial eras and early years of statehood, when the foundations for its legal system were laid; (2) the evolution of Mississippi slavery and slave law during the early nineteenth century; (3) the state’s role as a leader of legal reform during the age of Andrew Jackson; (4) the unfolding of the Mississippi’s legal response to emancipation and wartime economic devastation during the Reconstruction and early Jim Crow eras; (5) Mississippi’s legal evolution during the Progressive Era and its response to the crisis of the Great Depression; and (6) the state’s legal response to the civil rights and cultural revolutions that have unfolded since 1950.

Legal History as Doctrinal History

2018 ◽  
Author(s):  
Joshua Getzler
Keyword(s):  
Legal System ◽  
Legal History ◽  
Common Law ◽  
Historical Scholarship ◽  
History Of ◽  
Political Conditions ◽  
The Common ◽  
History Of Doctrine

This chapter investigates the idea of doctrine as a focus of historical scholarship, asking how the doctrinal mentality arose, and how historical approaches to doctrine emerged strongly in both common-law and civilian or Romanistic legal cultures. It first defines the meaning of ‘doctrine’, and sets out a guiding thesis. It argues that an important dimension of doctrine is communication; and jurists become fascinated by the history of doctrine when social and political conditions necessitate an expansion or transfer of the legal system, with concomitant transfers of doctrinal thought. The chapter then traces the development of doctrinal history from Gaius to the common law tradition.

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