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What is comparative legal history? Legal historiography and the revolt against formalism, 1930-60

Periodic Reporting for period 1 - CLH (What is comparative legal history? Legal historiography and the revolt against formalism, 1930-60)

Reporting period: 2017-09-21 to 2019-09-20

A. What is the problem/issue being addressed?

The project aimed to explain the sharp rise in the period 1930-60 of a new methodological approach in legal-historical studies, self-styled by its promoters as Comparative Legal History. To this purpose I set up an explanatory model designed to bring to light the connections between legal history and the broader ambit of legal science. The main idea is that legal history develops within the main legal curriculum, and its subject-matter is not an abstract and timeless idea of law but is embedded in a set of historical determinants. It begins from broad premises about how institutions function (what constitutes law, how it is produced and by whom) which govern the making of legal history in selecting data, investing them with meaning and designing the narrative.

Applying this model to a long-term perspective, the research was able to bring to light how legal historiography recurrently changed its focus. It showed how 19th century historiography, led by Savigny and his school, focused on legislation and texts; and how the 20th century turned that legacy upside down imagining a legal world whose protagonist was the judge, and developed an uncompromising concern for language (Wittgenstein) then developed by Kantorowicz, Kelsen, Hart up to the Nouvelle Rhétorique and to the linguistic concerns that have been animating legal-historical research.

When we apply this model to the 21st century, we soon realise that the focus has shifted from language to the informational framework within which jurists operate.

B. Why is it important for society?

The project is motivated by a concern for the waning historical dimension of legal science. Legal history is marginalised in the legal curriculum and is today virtually absent from public discourse. This was not the case in the 20th century, when we find this discipline explaining the European intellectual tradition and giving a foundation to all major juristic projects, from the harmonisation of private law to the search for a legal unity. Today’s stronger lenses to understand reality are those of economics and social sciences. The project’s purpose in charting the history of legal history is to find the thread that links legal history to legal theory: if they are unlinked, then legal history disconnects from legal science, which is precisely what we are registering today, as this discipline is drifting outside the legal curriculum.

Secondly, the project aims to clarify the role of legal history in the growing information-based legal environments. While information technology is usually presented as a disruptive phase which is leading to radical and sweeping changes that will be impacting on the legal field in an unprecedented way, this revolution, however, belongs to legal practice and has been barely noticed in academia. If so, at the heart of legal digitalization is a dramatic divide between law in action and law in books, but deepened to an unprecedented degree. The major risk is that legal practice is entering a conceptually-uncharted territory, unable to justify its development. This divide is thus creating a legal world which cannot justify its premises. The present project aims to fill the conceptual gap produced by this divide.

C. What are the overall objectives?

At the heart of the project is the historical dimension of legal science, which in turn requires to re-engineer the methodological apparatus of legal history. The main idea is that today’s information-dependent legal systems make legal scholars increasingly sensitive to the dynamics by which information is produced, managed and transmitted. They are more inclined to see legal systems as communities that organise, store, communicate and process information.
The research progressed through five steps:

(1) The first step was to identify the research question (“what is comparative legal history?”) as a question about change (“how this field come about?”).

(2) To make this change perceptible, an explanatory model was set up. The main idea was that legal history requires a starting point. This is an image of law with which any style of writing is deeply intertwined, namely a set of broad assumptions that the scholars engaged in this field share about their subject-matter —the law —and answers some general questions about what is law, by whom it is created and how.

(3) To begin to understand the 19th century model, we needed first to turn to its fountain-head, the German jurist F. v. Savigny. This discipline owes its foundations to this immensely influential scholar, who provided a model for the writing of legal history which became the paradigm that guided legal historiography in most European countries from the early-19th to mid-20th century. Because of the cultural leadership exerted by Germany, the whole continental Europe was bewitched into this project, which we synthetised looking at three features:

(a) ‘textualism’: legal authority is expressed only in a final and conclusive codified text; (b) ‘purity’, to indicate the inclination to separate law from the context in which it operates and thus to conceptualise it as a pure entity. (c) ‘historicism’: the combination of historical explanation and systematic construction placed in a teleological temporal succession.

(4) The decades 1930-60 saw a profound turn in European legal science. Some legal scholars refused the hegemonic doctrines of legal science bequeathed from the 19th-century and launched an attack on the ‘formalism’ at the heart of its intellectual framework; choosing the protagonist of the legal system, they turned from the legislator to the judge who decides case by case.

They overturned the 19th century paradigm: (a) they turned to other modes of normativity that contradicted the exclusive concern with black-letter law (‘textualism’); (b) they launched an attack on a theory-centred approach to the law (‘purity’); (c) they turned away from an explanation of historical time in terms of cumulative development (‘historicism’)

(5) Our explanatory model was then applied to the 21st century, showing that the focus has shifted from language to the informational framework within which jurists operate. Today’s information-dependent legal systems make legal scholars increasingly sensitive to the dynamics by which information is produced, managed and transmitted. This is the point of departure for rethinking legal-historical studies in terms of plural legal traditions, according to a methodology which is both jurisdiction-free and opens the path to approaches that are free from state-based constraints. I presented this part of the research to some extra-European audiences (India, China and South Africa).
The whole research is an exercise in the history of legal history. This is a new field which looks both at the past, in order to bring to light the rationale that unites legal history to the broader ambit of legal science, and to the future, in order to figure out a place for legal-historical studies in the legal curriculum. In this sense, this project is addressed to the freshers made of digital natives who will be accessing the legal environment in the next few years. Unlike the jurists educated in the 20th century, they will not have experienced the traditional environment. But they could be reconnected to it through an historical explanation that broadens their information-based environment to a historical dimension.