Historical Jurisprudence and Learned Law: 1865–1900

On December 6, 2023, the XIII International Congress of Comparative Law “Modern Comparative Law: Traditions, Innovations, Prospects” was held at the Institute of Legislation and Comparative Law under the Government of the Russian Federation. The dominant theme of the Congress was the Russian tradition of comparative law, the Institute’s contribution to the development of comparative law, current methodological problems, and the impact of digitalization on the subject and content of ongoing research. The Congress was attended by a record number of participants in recent years — more than 700 people. During the plenary session and the round tables, the participants discussed issues of comparative methodology in historical and legal studies, comparative jurisprudence in the system of comparative legal studies, constitutional values in the context of comparative jurisprudence, judicial power in the system of modern statehood, the international legal principle of sovereign equality of states, etc.

Roscoe Pound remains a particularly enigmatic character in the history of American On the one hand, he is the muchbeloved young lion whose early and enthusiastic support of sociological jurisprudence marked the death-knell of Nineteenth Century formalism or mechanical jurisprudence. On the other hand, he is the stubborn and authoritarian old dean of the Harvard Law School whose sour reception of, and even hostility towards, legal realism represented an oddly reactionary resistance to the logical development of his own early work. What is largely forgotten, however, is the seminal role that Pound played in the history of American comparative law. Despite his stunningly long and prominent academic career, and despite the centrality of comparative law to his teaching and scholarly agendas, Roscoe Pound's direct impact on contemporary American comparative law can best be described as non-existent. Pound taught law for over fifty years, served as Dean of the Harvard Law School for over twenty, and was still actively publishing until I960.1 From the very beginning of his academic career, Pound was deeply interested in, taught, researched, and wrote about comparative law. His initial teaching load at the law school of the University of Nebraska in 1899, for example, consisted of courses in Analytical Jurisprudence, Historical Jurisprudence, Roman Law, Comparative Law, and History of English Law.2 In the 1950's, near the end of his career, he even served seven years as the President of the Academie Internationale de Droit Compare.3 Nonetheless, Roscoe Pound has been all but forgotten by contemporary American comparativists, qualifying him perhaps as American comparative law's most famous unknown practitioner.

T. Y. Khabrieva's speech at the opening of the XIII International Congress of Comparative Law "Modern Comparative Law: Traditions, innovations, prospects".

On November 20, 2025, the Institute of Legislation and Comparative Law under the Government of the Russian Federation held the XV International Congress of Comparative Law “Fragmentation of Law and Challenges of Overcoming It”. The review highlights the welcoming remarks and reports of the participants of the plenary session — leading representatives of Russian legal science, heads of state corporations and government authorities: T. Y. Khabrieva, A. A. Klishas, I. I. Rogov, A. Ya. Kapustin, Mo Jihong, A. Kh. Saidov, V. N. Rusinova, S. A. Belov et al. The key ideas and approaches expressed during the discussions at the тематические round tables are outlined: “New Legislative Trends”; “Comparative Law as a Tool for Overcoming the Fragmentation of Law”; “Judicial Constitutionalism: The Doctrine and Practice of Overcoming Legal Gaps, Fragmentation of the Rule of Law”; “Constitutional Identity and Legal Fragmentation: Challenges to the Legal System”; “Fragmentation of Financial Law as a Mirror Reflection of Public Finance in the Comparative Legal Dimension”; “Fragmentation of Environmental, Natural Resource, Land, and Agrarian Law: Causes, Consequences, and Ways to Overcome”; “Fragmentation in Labor Law and Social Security Law as a Result of Legislative Changes”; “Fragmentation of Private Law: Problems and Solutions”; “Overcoming Fragmentation of Criminal Law Regulation: Law, Doctrine, Practice”; “Self‑Determination in Modern International Law: In Search of Relevant Meanings”; “Fragmentation as a Trend in the Development of the Legal Space: From Historical Retrospect to Modern Theoretical Constructions”; “Fragmentation of Information Technology Regulation and Information Protection in National and International Law: A Search for Approaches to Harmonization and Unification”; “Expansion of Artificial Intelligence in Law: Risks to the Consistency of Legal Regulation”; “Priority National Projects as Institutions That Determine the Dynamics and Differentiation of Areas of Administrative Law Regulation: Current Problems of Consistency and Ensuring the Unity of Administrative Legislation”; “80th Anniversary of the International Military Tribunal: Lessons from Nuremberg and Tokyo”; “Law in the Digital Age: Strategies and Mechanisms for Overcoming the Fragmentation of Law”; “Governed Fragmentation of Law”; “Reintegration of Historical Territories of Russia in the Context of Modern Problems of Fragmentation of Law”.

The legal practitioner may well be excused if his approach to comparative law resembles somewhat that of the defence lawyer putting forward the “rolled-up” plea in an action for defamation. Having questioned the very existence of comparative law, he cannot be blamed for covering his retreat by asserting that even if it does exist, it has, for him and his clients at least, no obvious value or significance. Should he refer to the writings of some of the leading acknowledged authorities in the field, he may find that his doubts, far from being lessened, are confirmed and strengthened. What must he feel, for example, when informed by Sir Frederick Pollock, participating in the first International Congress of Comparative Law at Paris in 1900, that “le droit comparé n'est pas une science propre, mais qu'il n'est que l'introduction de la méthode comparée dans le droit.” Should he prefer a more modern exposition, he may refer to Gutteridge writing some fifty years later. The methodological, as distinct from the juridical, character of the subject will appear to be confirmed. “‘Comparative Law’ denotes a method of study and research and not a distinct branch or department of the law. If by ‘law’ we mean a body of rules, it is obvious that there can be no such thing as ‘comparative’ law…[that is to say] any independent rules for the regulation of human relationships or transaction. …[C]omparative law is merely a convenient label attached to a particular method of study and research.”The international lawyer, too, who adopts some such definition of his field as “that system of laws and regulations which those who operate on the international scene recognize as being necessary for their orderly conduct”, is likely to adopt a similar view, for he is unable to find any system of rules and regulations to which he can apply the term comparative law.

On 1—2 of December 2015 the Institute of Legislation and Comparative Law jointly with the European Commission for Democracy through Law (Venice Commission of Council of Europe) held V International Congress of Comparative Law “Constitutional reforms in the XXI century: new horizons”. The task of international congress was to summarize existing experience of constitutional changes in the modern world, to reveal basic trends of current constitutional reforms, and to develop ways of their further progress. The Congress featured plenary meeting as well as sections (“Main trends of constitutional development in the modern world: general and special; Constitutional reforms: vectors of democratic development”; “Constitutional reforms: changes in the private sphere”) and round tables (“The role of the Council of Europe in constitutional reforms”; “Constitutional reforms in Asian-Pacific region: comparative legal analysis”; “Constitutional models in Latin America”; “Social and labor rights of citizens as a factor of constitutional stability and economic growth”. The review of scientific work of the V International Congress of Comparative Law is followed by presentation of recommendations, adopted as a result of its work.

The confrontation initiated by Western countries that began almost immediately after the end of World War II contributed to the division of the world. The collapse of the USSR, a global competitor to Western countries, ultimately led to the disruption of core international agreements that defined the principles of world order after World II. This, in turn, deprived modern international law of a unified core, turning it into a fragmented collection of rules. An example is the rules of international trade formulated in the GATT/WTO treaties. Tariff wars and the imposition of unilateral sanctions are destroying the international economic order. The attempts to minimize the role of the state by introducing the idea of limiting jurisdictional immunity and the transfer of certain public functions to non‑governmental organizations have contributed to the destabilization of the global legal order. Against this backdrop, associations of states, which have formed not only national legal orders but also systems of regional cooperation, are beginning to play an increasingly active role in international relations. This article, based on the authors’ presentations at the XV International Congress of Comparative Law, “Fragmentation of Law and the Challenges of Overcoming It” (the Institute of Legislation and Comparative Law under the Government of the Russian Federation, November 19–20, 2025), analyzes the traditions of Latin American countries, former British Empire states, and African states. The authors note that in these countries, the role of the state is not only unquestioned but, on the contrary, is viewed as a driving force for progress and prosperity. A comparative study of the legal systems of new states contributes to overcoming the fragmentation of modern law.

“Comparative Law is en vogue”, claimed Ralf Michaels almost twenty years ago, referring to the conference that took place in New Orleans in 2000 to celebrate the centenary of the first International Congress of Comparative Law. Now, two decades later, the same can be said with regard to Chile: as evidenced by the recent creation of the Chilean Network of Comparative Law, in our country, Comparative Law as a discipline has finally achieved sufficient maturity and critical mass that it may now take on an organized and institutional form.

Comparative Law and Humanism Get access Hessel E. Yntema Hessel E. Yntema 1Hessel E. Yntema is a member of the Board of Editors. This reproduces in substance the presidential address at the inaugural session of the Fifth International Congress of Comparative Law, held at Brussels under the auspices of the International Academy of Comparative Law, on August 4, 1958 Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 7, Issue 4, Autumn 1958, Pages 493–499, https://doi.org/10.2307/837261 Published: 01 October 1958

Reviewed by: Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand by Susanne Jenks, Jonathon Rose, and Christopher Whittick Jason Taliadoros Jenks, Susanne, Jonathon Rose, and Christopher Whittick , eds, Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand (Medieval Law and its Practice, 13), Leiden, Brill, 2002; hardback; pp. xxii, 416; 1 colour plate, 3 b/w illustrations; R.R.P. €164.00; ISBN 9789004212480. This volume is both a worthy tribute to the person it honours, Professor Paul Brand, formerly of All Souls, Oxford, and recently visiting Professor in the University of Michigan Law School, and a significant contribution in its own right to the areas of research made possible by Brand's scholarship. As the Encomium by Barbara Harvey indicates, Brand's area of interest was the 'long' thirteenth century from the limit of legal memory in 1189 to the death of Edward I in 1307. In particular, Brand is perhaps best known for his 'authoritative account of the development of the legal profession' (p. xii) in England and the origins of the common law in the era of Henry II. His scholarship is characterised by its use of unpublished and manuscript material, evidenced in his role as editor of four volumes of the Law Reports for the Selden Society. A series of chapters add nuance and complexity to Brand's account of the early legal profession. Sandra Raban's study reveals more information about the individuals and institutions that retained lawyers during the reign of Edward I (1272-1307), shifting the traditional focus (adopted by Brand) away 'from the vantage point of the lawyers themselves' (p. 201). Charles Donahue, Jr applies Brand's definition of what constitutes a 'profession' to the fourteenth century and concludes that the plural term 'professions' is more apposite to describe each of the variegated groups that constituted the common lawyers and canon lawyers who plied their business in that time. David Crook's chapter focuses on a senior justice of the bench from the mid-thirteenth-century, Robert of Lexington: his lack of legal training and longevity at the bench suggest a counterpoint to Brand's depiction of a professionally trained profession. Several papers add detail to the 'Angevin legal revolution' that gave rise to the common law in the twelfth and thirteenth centuries (p. 51), a phenomenon for which Brand has proffered compelling evidence starting with his 1990 article 'Multis Vigiliis Excogitatem et Inventam' in the Haskins Society Journal. John Hudson's study suggests that the infamous clause 3 of the Constitutions of Clarendon (1164), dealing with criminous clerks, not only formed a platform for dispute between the King and his famous archbishop, Thomas Becket, but was also a central part of Henry II's legal reforms that sought to channel legal business into the King's court, via the chief justiciar. This subtlety is missing from Brand's account. In a different vein, Sarah Tullis takes the Glanvill treatise, 'the first detailed exposition of the English common law' (p. 327), and traces its afterlife in early modern [End Page 202] England and colonial America as a vehicle for political polemics. In typically iconoclastic yet rigorous manner, Paul Hyams tackles the reasons for the 'technical discourse' (p. 21) that characterised the common law in its origins (and remains today), tracing linguistic depictions of land tenure (the 'fief ') from its origins in 1066 as personal bonds to 1230 when it came to represent what we now understand as 'ownership'. Running through several chapters in this collection is a theme that the 'learned law' (Roman and canon law) played a part in the development of the early common law - a contribution hinted at in Brand's work. Bruce O'Brien points to the continuing use of 'conquest-era' legal texts in the second half of the twelfth century and beyond, as exemplified in the Holkham lawbook, a legal encyclopaedia containing material from both Roman law and Saxon codes. David Ibbetson and Richard Helmholz also emphasise the possible influence of Roman and canon law on particular English common law writs, in their studies of the historical development of annuities and rights of re-entry...

British Legal Papers Presented to the Fifth International Congress of Comparative Law, Palace of Justice, Brussels, 4TH–9TH August, 1958 Get access British Legal Papers Presented to the Fifth International Congress of Comparative Law, Palace of Justice, Brussels, 4TH–9TH August, 1958. Ed. by A. K. R. Kiralfy. With an Obituary Notice of the late Professor R. W. Lee by F. H. Lawson. London, Stevens; New York, Oceana Publications, 1959. ix+389 pp. 63s. F. Honig F. Honig Search for other works by this author on: Oxford Academic Google Scholar International Affairs, Volume 35, Issue 4, October 1959, Page 471, https://doi.org/10.2307/2609151 Published: 01 October 1959

Legal monism is the view that necessarily one, and only one, legal system exists. The legal norms of all past, present, and possible communities exist only within in an overarching legal system, which does not itself depend upon any community for its existence. Current legal philosophers — including those who might be described as natural law theorists — reject legal monism. They are legal pluralists, who believe that a multiplicity of discrete legal systems is possible (indeed actual). Although philosophers of law are pluralists, it is difficult to determine jurists’ views on the matter, for monism and pluralism are both compatible with most judgments that they make. Only in a few narrow areas do monistic and pluralistic judgments about the law diverge. One such area is the conflict of laws (or, as those outside the United States would call it, private international law) — in particular, judgments concerning what I will call rules of authorization, which distribute lawmaking power among the officials of various jurisdictions. Rules of authorization include rules determining when a court has personal jurisdiction and when a legislature has legislative jurisdiction — the power to extend its laws to a matter. In this essay, I argue that a commitment to legal monism is evident in American jurists’ views on rules of authorization in the nineteenth and early twentieth centuries. I offer as examples Justice Story, Joseph Henry Beale, and Justice Field. What is more, the subsequent choice-of-law revolution did not reject monism. What it rejected was a conception of rules of legislative jurisdiction as dividing lawmaking power into exclusive spheres. Such rules were now understood as giving the lawmakers of a number of jurisdictions concurrent lawmaking power. Whether these rules were understood monistically or not was left open. Indeed, it is possible that current jurists, if forced to take a stand between a monistic and a pluralistic understanding of rules of authorization, would choose monism.

America again re-engaged in foreign legal reform after 1945 in Germany, Japan, and Korea, dependent upon the social, political, economic, and military situation. During the 1950s, the communist Cold War ideological threat to capitalism and liberal democracy pushed the United States to demonstrate its ability to foster economic and social progress among its allies and non-aligned nations. Comparatists in the ABA and the newly formed American Association for the Comparative Study of Law devoted substantial effort to international unification of commercial and trade law and later law projects to promote modernization among developing countries, such as agrarian reform, judicial independence, and active instruction in legal education. By the 1970s, unsatisfactory results for most of these action programs shifted concern to scholarly inquiry about the relationship between law and social change. Furthermore, comparative lawyers began to take a greater interest in the amorphous concepts of rule of law and human rights. The postwar period marked a steady rise in comparative law academic quality, stimulated by the AACSL, its meetings, journal, and participation in international congresses. Comparatists developed expertise in subfields, namely, unification of law, private international law, and comparative legal sociology. Law schools saw more comparative law courses and coursebooks; some specialized in Soviet, Japanese, or Latin American law, or in fields such as comparative constitutional law or European Community law. Comparative law journals proliferated, as did degree programs for foreign students. By 1990, the AACSL had instituted a democratic system of election, which put it on a path toward further growth.

Modern comparative lawyers tend to date the foundation of their discipline to the nineteenth century and to the promulgation of the great European codes. This article claims that one could make an argument that comparative law is to be found in the ancient world, that despite the multiplicity of legal sources it is not often found in the early or high middle ages, that there are hints of it in the commentators of the later middle ages, that in a very real sense it can be found in the ideas of the French legal thinkers of the sixteenth century, and that one can trace a relatively clean line from the sixteenth century to whatever nineteenth-century authors one chooses to focus on as the founders of the discipline that produced the First International Congress of Comparative Law in 1900.

The Institute of legislation and comparative law under the Government of the Russian Federation, as the organizer of The international Congress of comparative law in partnership with the European Commission for democracy through law (the Venice Commission of the Council of Europe), seeks to attract representatives of various legal systems, schools, and generations to cooperate. It is as a result of such cooperation that it is possible to get the most adequate picture of the modern legal world. The topic of the IX Congress was chosen as the problem of value orientations in various branches of law, since in the field of comparative legal research it is often the starting point of scientific research. The purpose of this publication is to enrich the methodology of comparative legal research, fill in theoretical developments and help in the implementation of practical tasks of jurisprudence, which are set by modern society. The materials of the collection convincingly show the importance of socially significant values for increasing the effectiveness of legal regulation in various areas of public and state life. For practicing lawyers, employees of public authorities, representatives of the scientific community, teachers, students and postgraduates of law schools and faculties, as well as for anyone interested in the value sources of law and legislation.