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Comparative Legal History
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Comparative Legal History

9781781955215 Edward Elgar Publishing
Edited by Olivier Moréteau, Louisiana State University, US, Aniceto Masferrer, University of Valencia, Spain and Kjell A. Modéer, University of Lund, Sweden
Publication Date: 2019 ISBN: 978 1 78195 521 5 Extent: 512 pp
The specially commissioned papers in this book lay a solid theoretical foundation for comparative legal history as a distinct academic discipline. While facilitating a much needed dialogue between comparatists and legal historians, this research handbook examines methodologies in this emerging field and reconsiders legal concepts and institutions like custom, civil procedure, and codification from a comparative legal history perspective.

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Is comparative legal history an emerging discipline or a much-needed dialogue between two academic subjects? This research handbook presents the field in a uniquely holistic way, and illustrates how comparative law and legal history are inextricably related.

Cementing a solid theoretical grounding for the discipline, legal historians and comparatists place this subject at the forefront of legal science. Comprehensive in coverage, this handbook collates theory and method for comparative legal history, as well as discussing international legal sources and judicial and civil institutions. Particular attention is paid to custom and codification, contracts, civil procedure and ownership. By assessing the evolution of law across European, Asian, African and American environments from the pre-modern era to the nineteenth century, the chapters provide stimulating and enlightening cases of legal history through a comparative lens.

A centrepiece for this field of scholarship, this research handbook will be an essential resource for scholars interested in comparative law, legal theory and legal history, from both legal and social science backgrounds.
Contributors
Contributors: S.P. Donlan, S. Drescher, M. Dyson, P. Finkelman, D. Freda, A. Giuliani, J.-L. Halpérin, D. Heirbaut, E. Kadens, M.S.-H. Kim, A. Masferrer, D. Michalsen, K.Å. Modéer, O. Moréteau, J.A. Obarrio, A. Parise, H. Pihlajamäki, W. Swain, A. Taitslin, C.H. van Rhee, J. Vanderlinden
Contents
Contents:

List of contributors

Acknowledgments

The emergence of comparative legal history
Aniceto Masferrer, Kjell Å. Modéer and Olivier Moréteau

PART I Theory and Methods
1. What is comparative legal history? Legal historiography and the revolt against formalism, 1930-60
Adolfo Giuliani

2. Comparative? Legal? History? Crossing Boundaries
Sean Patrick Donlan

3. Methodological perspectives in comparative legal history: an analytical approach
Dag Michalsen

4. Comparative legal history: methodology for morphology
Matthew Dyson

PART II LEGAL SOURCES
5. Here, there, everywhere or... nowhere? Some comparative and historical afterthoughts about custom as a source of law
Jacques Vanderlinden

6. Convergence and the colonization of custom in pre-modern Europe
Emily Kadens

7. Custom as a source of law in European and East Asian legal history
Marie Seong-Hak Kim

8. The ius commune as the ‘ratio scripta’ in the civil law tradition: a comparative approach to the Spanish case
Aniceto Masferrer and Juan A. Obarrio

9. Legal education in England and continental Europe between the middle ages and the early-modern period: a comparison
Dolores Freda

PART III LEGAL INSTITUTIONS
10. The triumph of judicial review: the evolution of post-revolutionary legal thought
Jean-Louis Halpérin

11. Killing the vampire of human culture: Slavery as a problem in international law
Paul Finkelman and Seymour Drescher

12. Continental European superior courts and procedure in civil actions (11th-19th centuries)
C.H. (Remco) van Rhee

13. The genesis of concepts of possession and ownership in the civilian tradition and at common law: how did common law manage without a concept of ownership? Why Roman law did not
Anna Taitslin

14. The common law and the Code civil: the curious case of the law of contract
Warren Swain

15. When the wind turned from South to West: the transition of Scandinavian legal cultures 1945–2000, a comparative sketch
Kjell Å. Modéer

PART IV CODIFICATION
16. Unification and codification in today’s European private law and nineteenth-century Germany: the challenges and opportunities of comparing historical and ongoing events
Dirk Heirbaut

17. Owning the conceptualization of ownership in American civil law jurisdictions and the origins of nineteenth-century code provisions
Agustín Parise

18. Why was private law not codified in Sweden and Finland?
Heikki Pihlajamäki

Index

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