Europäische rechtsgeschichte, immer noch ein projekt

The article describes the state of European Legal History as a discipline such as it has developed since the end of the Second World War. Major determinants were the Europe – euphoria of the Fiftieth, subsequently the gradual coalescence of the European Union, and eventually the return of the East – and South-East-European Nations to the free world. Yet”European Legal History“ as a well-defined discipline still is but a project. Perspectives of the future could be the following : To overcome nationalistic views when investigating pre-nationalistic periods of time, furthermore to join together sub-disciplines that define themselves by their respective sources (Roman Law, Canon Law, ius patrium), finally to extend the traditional legal history beyond civil law to the entire territory of law including non-state systems of norms. The aim should be twofold : To work out the particularities as well as the divergences of individual legal cultures in Europe, and to attempt at relating European and non-European legal cultures by means of historical comparison.

Jiří Rajmund Tretera, Záboj Horák: Právní dějiny církví. Synagoga a církve v průběhu dějin [Legal History of Churches, Synagogue and Churches yesterday and today]. Praha: Leges, 2019, 288 pp.

Jiří Rajmund Tretera, Záboj Horák: Právní dějiny církví. Synagoga a církvev průběhu dějin [Legal History of Churches, Synagogue and Churches yesterday and today]. Praha: Leges, 2019, 288 pp.

Bad Queers: LGBTQ People and the Carceral State in Modern America

The war on sex offenders was an American campaign against sex crime that began in the 1930s and is still ongoing. In this review essay, I argue that the architects and opponents of that war engaged in political struggles that—especially during the pivotal era of the long 1970s—produced, criminalized, and hierarchized multiple new categories of “good” and “bad” LGBTQ legal subjects. In making this argument, my aim is to bring the field of LGBTQ political and legal history—especially the work of George Chauncey ([1994] 2019) and Margot Canaday (2009)—into closer conversation with scholarship by queer theorists who are not historians—especially Gayle Rubin ([1984] 2011a) and Michael Warner (1999)—about the stigmatization of non-normative gender and sexual practices. While historians have examined the policing of multiple queer behaviors in the early twentieth century, their examinations of the post-1945 period have been concerned primarily with the consolidation of a starker social and legal binary between homo- and heterosexuality. As their narratives get closer to the present, the most stigmatized “bad” queers become more and more tangential. At least in part, this has been because historians have been under the same pressure as LGBTQ activists to distance LGBTQ identity from the stigma of sexual “deviance”—especially sex that violated age-of-consent statutes—in order to promote the political project of LGBTQ rights. Placing bad queers at the center of LGBTQ political and legal history diversifies who counts as a subject of this history and reveals an even bigger carceral state that governed them.

Identifying ‘Illat through Munasabah in Islamic Law: A Perspective of Imam Al-Ghazali

This study discusses the way in determining ‘illat through the munasabah method proposed by Imam al-Ghazali in the perspective of Islamic law. The study focuses on two main problems: the identification of ‘illat through munasabah and the legal formulation to utilize hikmat to obtain ‘illat according to al-Ghazali. This normative legal research used a legal history approach as an analytical tool to examine the Islamic scholars’ thoughts on concepts, theories and ways of doing istinbath. The study concluded that according to al-Ghazali there are three kinds of munasabah in determining ‘illat, consisting of munasib mu’atstsir, munasab mula’im, and munasib gharib. In munasib mu’atstsir, there is no issue found in seeking ‘illat because the ‘illat is understood directly from the nash or ijma’. Therefore, munasabah is no longer needed in the determining ‘illat. Here, the munasabah method focuses on munasib mula’im and munasib gharib in identifying ‘illat. Munasib mula’im seeks for the genus ‘illat, an ‘illat drawn from every event that has been predetermined by the nash, by examining the same hikmah in each of the events. Such hikmah is then used as the genus ‘illat which will later be applied as qiyas for other events that have been legally stipulated by the nash. On the other hand, munasib gharib seeks for the species ‘illat, an ‘illat obtained from an event that has been predetermined by the nash, with no comparison found in other events. ‘Illat determined from munasib gharib is also hikmah, having no concrete nature. In the perspective of legal history, this method of seeking ‘illat is inseparable from kalam and philosophy as was the development of the Islamic sciences at the time. As such, this had also affected al-Ghazali’s mastery in Islamic law as well as in other Islamic disciplines.