Comparative legal history is the study of law in two or more different places or at different times. As a discipline, it emerged between 1930 and 1960 in response to legal formalism, and builds on scattered uses of legal-historical comparison since antiquity. It uses the techniques of legal history and comparative law.
Definition and scope Broadly, comparative legal history is "the study of related or parallel legal phenomena in two or more different places or at different times." Examples include continental forms of legal history such as European, South Asian or African legal histories, as well as comparative forms such as Chinese-European and Korean-European comparative legal history.
However, the precise scope of the subject is a matter of debate. It has been variously defined as "simply the opposite of purely national legal history", "the comparison of individuals, ideas and institutions from two or more legal traditions", the "study of related or parallel phenomena in two or more different places or at different times," the description and comparison of "the historical development of different legal traditions", with the objective of enabling "conclusions from the observed similarities and differences to enhance our understanding of the respective systems," and the observation of similarity or difference across time. Some scholars choose not to define it altogether, believing that rigid definitions will exclude meaningful research.
The discipline has definitional challenges. Comparative legal history cannot be easily distinguished from historically-informed comparative law. The words "comparison", "law" and "history", are difficult to define precisely, and combining them introduces further uncertainty about the scope of the intellectual inquiry in comparative legal history.
Relationship with national legal histories
Some scholars see comparative legal history as a movement arising in response to 19th-century legal formalism. This view defines the subject as "simply the opposite of purely national legal history".
Other scholars see intrinsic links between comparative law and legal history, both being forms of comparison (one across space and the other across time). This view privileges comparative legal history as the ideal comparative approach to law, and holds that national legal history is an incomplete or failed attempt at comparative law. Writing in the late 19th century, the English legal historian Frederic William Maitland separated legal history into national and comparative legal histories. He believed that there was too vast a range of material in manuscript and edited form, and that legal historians should concentrate on national legal histories, and then move on to comparative legal history.
Some countries have historically been so closely linked with others that analysing their national legal histories necessitates a pluralistic, comparative approach. An example is the legal histories of former colonies, which involve the study both of Western laws and of indigenous laws and norms. The Australian legal historian Bruce Kercher opined that this orientation towards "external legal history" led to colonial historians in countries like Canada, Australia and New Zealand engaging with other disciplines more often than European legal historians. In the nascent field of Indian legal history, scholars have called for legal history to be situated within a broader South Asian legal history, accounting for links such as a shared colonial past, religion, environmental history, and spatiality.
History Legal-historical comparison in antiquity to the early modern period
Although not explicitly recognised as comparative legal history, legal-historical comparison is present in a wide range of works from antiquity to the middle ages. In Politics, published in the 4th century BC, Aristotle references the constitutional law and history of 158 Greek city-states to argue that the organisation of a political community can lead its citizens to live lives of virtue. About five hundred years later, Church Fathers from Tertullian (155 AD – 240 AD) to Augustine of Hippo (354 AD – 430 AD) made comparisons between Jewish laws and customs, and texts from early Christianity. They used these comparisons to suggest that the Jewish failure to recognise Jesus as messiah nullified their claim to the biblical Kingdom of God. In the middle ages, the first continuous period of legal-historical constitutionalism came about with the rediscovery of Aristotle by English constitutionalists. Concerned by socio-political differences and competition, early modern English constitutionalists became more invested in civil law-common law comparisons. For instance, in John Fortescue's 15th century book In Praise of the Laws of England, Fortescue distinguished between England's "political and royal" kingship and the French civil law tradition's "only royal" kingship.
In the 16th century, comparative legal history was a methodological tool of the French humanists. Theorists such as Eguinaire Baron, François Baudouin, and François Hotman all compared the laws and customs as an element of their scholarship. Similarly, in Jean Bodin's Methodus ad Facilem Historiarum Cognitionem (1566), the comparative method was championed as "the only way to arrange the laws and govern the state is to collect all the laws of all or the most famous commonwealths, to compare them and derive the best variety." Following the humanists, the natural law school set their theories in a broadly comparative framework. Scholars such as Francis Bacon, Hugo Grotius, Gottfried Leibniz, and Samuel Pufendorf all drew upon foreign legal resources in the process of elaborating their theories. Whether this is to be treated as a true exercise in comparative legal history is controversial. One view is that their use of historical legal material was solely for the purposes of deducing their broader theories of law and justice, rather than being an end in itself. Other political theorists in the Enlightenment period, such as Giambattista Vico and Montesquieu, also carried out comparative legal history for illustrative purposes.
Early-modern to present
Comparative legal history methodology was practiced by a variety of specialised researchers in the 19th century. A prominent example is the legal anthropologist Henry Maine, who adopted a comparative and historical approach to legal systems of diverse cultures. Scholars of general national history, such as Numa Denis Fustel de Coulanges, Édouard Lambert in France, and Rafael Altamira in Spain all compared legal systems in the course of their historical work. There were also strands of historical legal comparison in works of the well-known sociologists, such as Max Weber; Émile Durkheim; Marcel Mauss; and Henri Lévy-Bruhl.
Conversely, legal history as an academic discipline initially focused exclusively on the legal histories of nations. There are differing views as to the causes and rationales for this. One is that this was a product of political rather than legal or scientific purposes. On similar lines, Giuliani argues that the fixation on national history was a lasting influence from the approach of the German legal historian Friedrich Carl von Savigny who identified nationally idiosyncratic Volksgeist as the source of law. Schmidt suggests that Savigny had "little interest in foreign law", an approach which then continued in the influential Germanic legal history departments. Another view is it was too difficult to make comparisons between legal systems without first having studied national legal histories, and that comparison was relegated to the future, for when national legal history had been more comprehensively studied. For Maitland, the late 19th and early 20th century were a period of national legal scholarship, and cosmopolitan tendencies could "wait their turn".
Modern history As a consequence of legal history's narrow focus, comparative legal history as a distinct discipline remained fragmented into the 20th century. Providing a survey in 1997, Donahue summed up the state of the field: "[a]s I understand the term, comparative legal history hardly exists any place in the western world today". Nonetheless, examples of explicit historical comparative work from this period still exist. Two early usages of the term 'comparative legal history' can be found in articles from 1927 the 1960s and the term was increasingly used in the 1970s by scholars like Bernard S. Jackson, Pál Horváth, and Pierre Legrende. Additionally, there are two comparative legal journals from this period, 'Comparative Studies in Continental and Anglo-American Legal History' (1985–present), and 'Recueils de la Société Jean Bodin pour l'histoire comparative des institutions' (1936–2000), albeit they have been criticised for carrying out little meaningful comparison. Whilst not seen distinctly as comparative legal history, a historical approach was also developing within the emerging discipline of comparative law. Giuliani argues that comparativists such as John Dawson, Gino Gorla, and Robert Miller were beginning to take a more historical approach as a consequence of a wider rejection of legal formalism in the 20th century. Their position is reflected in the contemporary work of influential comparativist Rodolfo Sacco who argues "the comparative perspective is historical par excellence". Masferrer et al suggest that legal historians in the 1990s were also increasingly taking a comparative approach, though emphasise that use of the term 'comparative legal history' as an independent term remained rare.
The first two decades of the 21st century have involved a re-emergence and crystallisation of the study of comparative legal history. In 2009, the European Society for Comparative Legal History (ESCLH) was formed, and in 2013 it was followed by the European Journal of Comparative Legal History. The ESCLH has carried out six biennial conferences as of 2020 and hosts a variety of prizes and competitions for comparative legal historical research. The Max Planck Institute of European Legal History has also established a department for Comparative Legal History which carries out research into "European and comparative dimensions of legal history." Outside of Europe, the title of the 2020 American Society for Comparative Law conference was "Comparative Legal History", and studies of colonial history have increasingly involved legal-historical comparison. In present day, it has also received judicial recognition.
Uses of comparative legal history One school of thought believes that comparative law and legal history are both incomplete forms of a comparative approach to legal study. This encompasses the view that comparison is essential to legal history, and that historical context is essential to comparison.