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

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

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.

Data: CORDIS, © European Union