A PREQUEL TOLAW AND REVOLUTION: A LONG LOST MANUSCRIPT OF HAROLD J. BERMAN COMES TO LIGHT

2014 ◽  
Vol 29 (1) ◽  
pp. 142-169
Author(s):  
John Witte ◽  
Christopher J. Manzer
Keyword(s):  
Legal History ◽  
Good Deal ◽  
Legal Tradition ◽  
Legal Studies ◽  
Legal Thought ◽  
Comparative Methodology ◽  
Early Text ◽  
Legal Positivist

AbstractThe late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumentalLaw and Revolutionseries on the Western legal tradition. Berman wrote a short book,Law and Language, in the early 1960s, but it was not published until 2013. In this early text, he adumbrated many of the main themes of his later work, includingLaw and Revolution.He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the intense legal positivist era during which he was writing. This essay contextualizes Berman'sLaw and Languagewithin the development of his own legal thought and in the evolution of interdisciplinary legal studies. It focuses particularly on the themes of law and religion, law and history, and law and communication that dominated Berman's writing until his death in 2007.

scholarly journals The Idea of Determinacy of the Supreme Government by Electoral Technologies in the European Medieval State Legal Tradition

2021 ◽  
Vol 2 ◽  
pp. 61-68
Author(s):  
Viktor A. Kovalev ◽  
◽  
Konstantin E. Krylov ◽  
Keyword(s):  
Middle Ages ◽  
Main Theme ◽  
Legal Tradition ◽  
The Core ◽  
Legal Thought ◽  
Legal Concepts ◽  
Modern Era ◽  
The Middle Ages

The main theme of the article is investigation of the electoral culture in the European political and legal thought. Authors argue the ancient sources of this tradition tracing it from the three sources — Roman, German and Christian political thoughts. During the Middle Ages European legal concepts of the supreme power’s nature oscillated between hereditary and election as a foundation of the supreme power. Only on the edge of the Middle Ages and the Modern Era monarchy became strait hereditary. The idea of election did not disappear, remains the core ingridient of the image of power’s legitimacy.

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.

WOMEN, GENDER, AND ISLAM IN AFRICA AND BEYOND

2014 ◽  
Vol 29 (1) ◽  
pp. 170-175
Author(s):  
Sarah Eltantawi
Keyword(s):  
Legal History ◽  
Islamic Law ◽  
Gender Justice ◽  
Legal Studies ◽  
Ethnographic Data ◽  
Historically Situated

Scholars of Islamic law, gender, and Africa will be pleased with the arrival of two important new volumes that are bold in their bringing together of ethnographic data with legal history and analysis. Margot Badran's Gender and Islam in Africa: Rights, Sexuality, and Law, and Christina Jones-Pauly and Abir Dajanfi Tuqan's Women under Islam: Gender Justice and the Politics of Islamic Law collectively advance a movement in Islamic legal studies that focuses on interdisciplinary explorations into the ways particular constructions of Islamic law are foregrounded and reified in accordance with the existential impulses and demands of a particular society at a particular time, what we might call the “hermeneutic of experience.” I would argue that gender functions as the category that most regularly exposes the limitations of various historically situated concepts of orthodoxy, and these books bear out this claim.

Custom in Late Medieval France

2021 ◽  
pp. 29-63
Author(s):  
Marie Seong-Hak Kim
Keyword(s):  
Legal History ◽  
Political Power ◽  
Common Law ◽  
Roman Law ◽  
Legal Tradition ◽  
National History ◽  
Late Medieval ◽  
Dynamic Movement ◽  
Medieval France ◽  
The Relationship

The idea of the dynamic movement of law—diffusion of legal institutions, rules, and culture—is deeply embedded in European legal history since antiquity. All the while, a potent spirit of local custom has sustained national history, forming an equally integral part of Europe’s legal tradition. This chapter examines the sources of law in late medieval France and the doctrine of custom. It also discusses the growth of royal justice and the relationship between private law and political power. An overview of major historiographical debates concerning the theory and nature of custom sheds light on the question as to whether the notion of common law (droit commun) emerged autonomously in France or only after custom was written down on the model of Roman law as jus commune.

Conclusion

2021 ◽  
pp. 243-246
Author(s):  
Marie Seong-Hak Kim
Keyword(s):  
Early Modern ◽  
Legal History ◽  
Legal Tradition ◽  
Early Modern France ◽  
Royal Authority ◽  
Modern Times ◽  
Legal Reforms ◽  
Modern France ◽  
Legislative Agenda ◽  
Judicial Economy

Legal reforms in early modern France marked a confluence of the crown’s judicial and legislative agenda, aimed at achieving what can be called in modern times judicial economy. They attested to the old-fashioned idea that the law, reinforced by royal authority, afforded better protection for the less-than-mighty subjects. Success in making the kingdom’s laws more systematic and equitable vindicates an important aspect of the meaning that historians and theorists have attached to the idea of a monarchie absolue. Early modern legal history has shown that a robust expression of sovereignty was intrinsically tied with the control of the sources of law. The historical forces behind the French law, long in the making, shed critical light on European legal tradition and jus commune.

Droit islamique et droits de l’homme: Les controverses doctrinales en islam sunnite et shi’ite depuis la Déclaration universelle de 1948

2019 ◽  
Vol 59 (2) ◽  
pp. 127-170
Author(s):  
Constance Arminjon
Keyword(s):  
Human Rights ◽  
Universal Declaration ◽  
Comparative Perspective ◽  
Legal Systems ◽  
Legal Tradition ◽  
Legal Thought

AbstractIn a comparative perspective, this article analyses the doctrinal debates that arose in Sunni and Shi’ite Islam after the adoption of the Universal Declaration of Human Rights in 1948. During a couple of decades this text hardly brought about any response in Islam. From the 1980s onwards, an increasing number of prominent thinkers started confronting their legal tradition to that from which human rights derive. While comparing both legal systems, they contribute to major and contrasting developments in contemporary Islamic legal thought.

4. Modern legal positivism

2020 ◽  
pp. 97-141
Author(s):  
Raymond Wacks
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Good Deal ◽  
Legal Positivism ◽  
Hans Kelsen ◽  
Joseph Raz ◽  
Legal Positivist ◽  
Linguistic Philosophy

This chapter explores the works of some of the leading exponents of contemporary legal positivism: H. L. A. Hart, Hans Kelsen, Joseph Raz, Jules Coleman, Scott Shapiro, and others. Hart staked out the borders of modern legal theory by applying the techniques of analytical (and especially linguistic) philosophy to the study of law. Kelsen may be the least understood and most misrepresented of all legal theorists. To the extent that he insisted on the separation of law and morals, what ‘is’ (sein) and what ‘ought to be’ (sollen), Kelsen may legitimately be characterized as a legal positivist, but he is a good deal more. Raz argues that the identity and existence of a legal system may be tested by reference to three elements: efficacy, institutional character, and sources. Thus, law is autonomous: we can identify its content without recourse to morality.

Critical legal studies

2018 ◽  
Author(s):  
Emilios Christodoulidis ◽  
Johan van der Walt
Keyword(s):  
Political Economy ◽  
Legal Theory ◽  
The State ◽  
The Other ◽  
The Political ◽  
Legal Tradition ◽  
Social Production ◽  
Legal Studies ◽  
Critical Legal Theory ◽  
The One

This chapter traces the tradition of critical theory in Europe in the way it has informed and framed legal thought. A key, and distinctive, element of this legal tradition is that it characteristically connects to the state as constitutive reference; in other words it understands the institution of law as that which organizes and mediates the relation of the state to civil society. The other constitutive reference is political economy, a reference that typically grounds this tradition of thinking about the law in the materiality of the practices of social production and reproduction. It is in these connections, of the institution of law to the domains of the state and of the political economy, that critical legal theory locates the function of law, and the emancipatory potentially it affords on the one hand, and the obstacles to emancipation it imposes, on the other.

Is it the Right Revolution? On Tushnet's The Rights Revolution in The Twentieth Century

2009 ◽  
Vol 42 (3) ◽  
pp. 483-494 ◽  
Author(s):  
Rivka Weill
Keyword(s):  
Twentieth Century ◽  
Constitutional Law ◽  
Legal History ◽  
Legal Theory ◽  
Recent Book ◽  
Legal Studies ◽  
Comparative Constitutional Law ◽  
The Right ◽  
Law Professors ◽  
Alon Harel

This is yet another manuscript by one of the most interesting and prolific American constitutional law professors that the Critical Legal Studies movement has produced. Mark Tushnet has written extensively and influentially in the fields of both American and comparative constitutional law. He is a known expert on twentieth century American legal history, bringing this expertise to bear in writing his ambitious and most recent book, The Rights Revolution in the Twentieth Century.This review of an early draft of the book will consist of three parts. The first portrays Tushnet's descriptive enterprise in a nutshell. The second discusses the historical dimensions of Tushnet's work. The last evaluates its contribution to legal theory along the lines suggested by Alon Harel.

Law and Philosophy: The Contribution of Mr. Roy Stone

1968 ◽  
Vol 26 (1) ◽  
pp. 131-140
Author(s):  
T. B. Hadden
Keyword(s):  
Recent Trend ◽  
Good Deal ◽  
Legal Studies ◽  
The Social ◽  
Total Failure ◽  
Important Means ◽  
The Subject ◽  
The Law ◽  
Integrated Study

The recent trend towards the socialisation of legal studies has not unnaturally caused a good deal of confusion and disagreement on the role of jurisprudence. However, since the law is centred on dispute and argument, there can be little real objection to the extension of the process to the philosophy of law. Still it would be difficult to devise a less immediately appealing way of re-establishing and reviving the subject of jurisprudence than another dose of the schools, or another tendentious review of contemporary exponents. My excuses for doing just that are not even particularly novel—an appreciation of the importance of the pressures towards an empirical approach to law and legal studies, and the usual desire to get some of the more distracting flies safely corked back again into their bottles. However, the total failure of the recent Cambridge Committee on the Organisation of the Social Sciences to produce even the outline of an overall structure for the integrated study of the law as an important means of social control does at least provide a suitable opportunity for the re-examination of the role of jurisprudence.

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