Comparative Modern Legal History
HISTORY – comprises descriptions and explanations of change over time. This focus of study is an external approach to the study of law; the approach, therefore, is shaped by contextual knowledge. What makes it possible for an event to be as it is? How do we understand the relationship of people, events, and ideas, in the context of other people, events, and ideas?
· How do we think about empiricism in history?
· How do we explain (or make theories about) history?
· What are the trends or issues that historians have considered?
· How have particular historians have understood the role of law in society? Does the law function as an autonomous or semi-autonomous entity? Does the law function instrumentally, as a tool to achieve social ends? Does no relationship exist between law and social change?
We carry our prejudices/pre-understandings of the words: “comparative”, “modern”, “legal”, and “history”.
What is modernity?
MODERNITY appears to be a condition, while modernism may denote a position. The word ancient opposes the word modern. The concept of progress – more recent is “better” as opposed to reverence to the past – distinguishes ancient from modern. The past is somewhat defective. The importance of scientific and technological advancement has displaced the importance of religious ideas. Modernity is characterized by specialization – where experts occupy and function in different domains of knowledge. Perhaps the law is becoming fragmented as well; that is, it is separated from ethics, economics, and religion.
It is difficult to locate modernity at a fixed point in time. The readings debate the beginning of modernity.
Is history a science? Does history, like science, involve both a theoretical aspect and a practical aspect? For example, the common law relies on its history to function in the present (i.e. function of precedent in common law adjudication). We might have a productive tension between description or understanding and explanation. Explanation, as trigger-cause, is closer to a scientific inquiry, while description, appears closer to a study of the humanities.
POSITIVISM has roots in both the study of law and the study of social science. To pose, to put, or to place, and therefore, positive law is about law that is placed or made (like a statute, from statue). The essence of law is to be laid down. In social scientific positivism, one of the tensions is that of fact versus value. Positivism is about facts (objectivity, as opposed to values, which are subjective).
Positivism, in social science, is about the search for the conditions that produce a result. As positivists, social scientists alienate themselves from action (internal) and focus on behaviour (which is mor
f concepts and terms that are part of the discussion of the law.
SUBJECTIVE – to be thrown under (like “subjection”); OBJECTIVE – to be thrown against (like “objection”). The use of the words subjective and objective have changed over time such that their meanings shifted to become what they mean today.
When we combine the concept of positivist and modernity, we do not let the object of inspection to shape our process of inspection. This represents the importance of method.
See Hannah Arendt for more information. The word “action” goes along with the word description, as opposed to “behaviour” which presupposes explanation. Do we choose scientific or humanities language? Perhaps, a modern approach is a more distant one, with the focus on explanation.
 HLA Hart moves the study of legal positivism away from “law as command” toward “law as fact”. However, a state can use law as an instrument to “command” change in a society; see development of colonial empires. This is more compatible when the law is outside who the subjects of the law are. Export of the law seems more justifiable and explainable.