Law in Theory, Law in Practice

2019 ◽  
Vol 45 (1) ◽  
pp. 28-49
Author(s):  
Danna Agmon
Keyword(s):  
Early Modern ◽  
South India ◽  
Comparative Law ◽  
Historical Ethnography ◽  
Legal Scholarship ◽  
Intellectual Networks ◽  
Indian Law

Letters written by early modern missionaries played an important role in the development of global intellectual networks and inquiry into religion, language, cartography, and science. But the historical ethnography of law has not recognized the role that Jesuits played in creating the field of comparative law. This article examines the writings on law in India by the French Jesuit Jean-Venant Bouchet, who was an important source for Enlightenment philosophes and later Orientalists. It considers Bouchet’s systemic accounts of Indian law alongside his more ethnographic description of his legal encounters in South India, and argues that the practice of conversion and experiences in local legal fora determined and shaped Bouchet’s interpretation of Indian law. In other words, legal scholarship was produced in spiritual, religious, and political contexts, and cannot be abstracted from them.

Taḥqīq vs. Taqlīd in the Renaissances of Western Early Modernity

2018 ◽  
Vol 3 (1-2) ◽  
pp. 193-249 ◽  
Author(s):  
Matthew Melvin-Koushki
Keyword(s):  
Early Modern ◽  
Intellectual History ◽  
South India ◽  
Analytical Framework ◽  
Western Civilization ◽  
Early Modernity ◽  
Existential Crisis ◽  
History Of ◽  
European Renaissance ◽  
New Framework

Abstract This essay reviews a major new study of European Renaissance Arabist-humanist philology as it was actually practiced, humanist neoclassicizing anti-Arabism notwithstanding. While definitive and philologically magisterial, that study nevertheless falls prey structurally and conceptually to the very eurocentrism whose ideological-textual genesis it chronicles. Situating it within the comparative global early modern philologies framework that has now been proposed in the volume World Philology and the present journal is a necessary remedy—but only a partial one; for that framework too still obscures the multiplicity of specifically genetically Western early modernities, thus hobbling comparative history of philology. I therefore propose a new framework appropriate to the study of Greco-Arabo-Persian and Greco-Arabo-Latin as the two parallel and equally powerful philosophical-philological trajectories that together defined early modern Western—i.e., Hellenic-Abrahamic, Islamo-Judeo-Christian, west of South India—intellectual history: taḥqīq vs. taqlīd, progressivism vs. declinism. But a broadened and more balanced analytical framework alone cannot save philology, much less Western civilization, from the throes of its current existential crisis: for we philologists of the Euro-American academy are fevered too by the cosmological ill that is reflexive scientistic materialism. As antidote, I prescribe a progressivist, postmodern return to early modern Western deconstructive-reconstructive cosmic philology as prerequisite for the discipline’s survival, and perhaps even triumph, in the teeth of totalitarian colonialist-capitalist modernity.

France

2013 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
Legal System ◽  
Comparative Law ◽  
Theory And Practice ◽  
Legal Scholarship ◽  
French Theory

Assessing French theory and practice of the use of comparative arguments by courts, in particular by the three French highest courts, the Conseil constitutionnel, the Cour de cassation, and the Conseil d´Etat, the chapter suggests that in spite of not being visible on the surface, there is comparative exchange going on. For reasons peculiar to the legal and judicial tradition, such an exchange does, however, take on particular form. First, it is not openly displayed. Comparative reasoning in courts is primarily used as a tool of internal debates, not as an instrument for external justification. Secondly, because of the historical constitutional balance within the legal system, comparative law has traditionally been seen as a matter for the legislator and legal scholarship, not for the courts.

scholarly journals Universalismo y particularismo en el Tribunal Constitucional. Sobre su uso (y abuso) de los precedentes extranjeros

2018 ◽  
pp. 530
Author(s):  
Ángel Aday Jiménez Alemán
Keyword(s):  
Theoretical Analysis ◽  
Comparative Law ◽  
Constitutional Court ◽  
Legal Scholarship ◽  
Accepted Practice

El siguiente trabajo ofrece elementos con los que analizar una práctica pacíficamente aceptada de nuestro Tribunal Constitucional, escasamente aborda por la doctrina española, pero no por ello menos contradictoria: El uso de Derecho comparado, y, específicamente, de precedentes extranjeros. Se realiza un análisis sistemático tanto empírico como teórico de las resoluciones en las que ha sido utilizado como parte de los fundamentos jurídicos.This paper provides elements to analyse the peacefully accepted practice of using comparative law by the Spanish Constitutional Court. This paper is focus on the use of foreign precedents. It is a contradictory practice although still not explored by the Spanish legal scholarship. In this sense, this paper contributes with a systematic empirical and theoretical analysis of the Spanish Court’s decisions where foreign precedents are referenced at the legal groundings

Comparative Legal Scholarship as Ordinary Legal Scholarship

2013 ◽  
pp. 1-33 ◽  
Author(s):  
Stephen A. Smith
Keyword(s):  
Subject Matter ◽  
Academic Discipline ◽  
Comparative Law ◽  
Legal Scholarship

This essay argues that comparative law is not and never will be a distinctive academic discipline. Various counter-arguments based on the alleged distinctiveness of comparative law’s (1) subject-matter, (2) methodology, (3) challenges, and (4) aims are identified and rejected. The essay concludes by arguing that comparative scholars should embrace the ordinariness of their scholarship. To the extent that comparative law is associated with a particular subject-matter, method, challenge, or aim its value will always be a matter for debate. By contrast, if comparative scholarship is just ordinary scholarship with more data (as I argue), its value is undeniable.

Sources Of Law and Legal Method in Comparative Law

2019 ◽  
pp. 875-901
Author(s):  
Stefan Vogenauer
Keyword(s):  
Comparative Study ◽  
Comparative Studies ◽  
Methodological Approach ◽  
Comparative Law ◽  
Legal Scholarship ◽  
Fourth Section ◽  
The Third ◽  
Legal Method ◽  
P Sources

Sources of law serve to separate the province of law from the realm of non-law. Only propositions that are derived from a valid source of law are genuinely legal propositions. This article outlines the role of sources of law and legal method in the study of comparative law. The second section explains why these topics have been central to comparative legal scholarship from its very beginnings. The third section attempts to clarify their ambit for the purposes of comparative study, and identifies the pitfalls lurking for the comparative lawyer who wants to determine another system’s sources of law and the methodological approach prevailing there. The fourth section gives an overview of the most important comparative studies specifically dedicated to these matters. The fifth section maps out some areas which merit further research.

Penumbral Visions: Making Polities in Early Modern South India

2002 ◽  
Vol 33 (3) ◽  
pp. 908
Author(s):  
Savia Viegas ◽  
Subrahmanyam Sanjay
Keyword(s):  
Early Modern ◽  
South India

Scandinavian Law in the Early Modern Period

2018 ◽  
Author(s):  
Heikki Pihlajamäki
Keyword(s):  
Early Modern ◽  
Fifteenth Century ◽  
Early Modern Period ◽  
Legal Scholarship ◽  
Royal Power ◽  
Legal Professionals ◽  
Ius Commune ◽  
High Courts ◽  
Legal Questions ◽  
Foreign Universities

In the sixteenth and seventeenth centuries, the connection of Scandinavian to continental law increased. The reception of learned ius commune had advanced to Germany during the fifteenth century, and it was only logical that the learned legal scholarship now reached Scandinavia. Influences spread to Scandinavia through two principal channels. The centralized royal power in Denmark and Sweden needed learned legal experts to deal with their European counterparts. The Scandinavian royal chanceries therefore hired German, or sometimes Dutch, legal professionals to represent them in diplomatic negotiations and to counsel them in legal questions. The number of Swedes and Danes studying in foreign universities rose, and domestic universities were founded as well. The establishment of the high courts in the sixteenth and seventeenth centuries caused, if not an influx of ius commune into the legal practice, at least an increasing influence of common European legal scholarship.

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