Is it Time for Non-Euro-American Legal History?

Abstract

Legal history has been predominantly Euro-American for far too long. A quick glance at the programs of the annual meetings of the American Society for Legal History, British Legal History Conference, and the Biennial Conference of the European Society for Comparative Legal History confirms this. For example, the number of ASLH panels devoted to US constitutional law—even to First Amendment alone—is generally greater than the number of panels on the legal history of non-common law and non-civil law traditions. Legal history is more tilted towards Euro-America than most other sub-disciplines of history. And one can understand why. Civil law jurists traditionally looked back to old texts that require interpretation and provide the scholarly inspiration for the formation of new codes and national laws. Common law lawyers looked to the past for relevant precedents, ancient constitutions, and the effect of ancient forms of action on current law. Beginning in the middle of the 20th century, historically-oriented legal historians revolted against lawyerly legal history. But their historically motivated challenge was restricted to the same spatial grounds. They had to stick to Euro-American legal history in order to have adversaries, ie the previous generation's lawyerly legal historians, and to be relevant to legal discourse. And, moreover, legal discourse tended to be parochial and localized in the era of the nation-state and positivist national law. One field that reaches beyond Europe is the legal transplants literature. The civil law version traces the transplantation of Roman law throughout Europe and in the European empires, as well as the imposition of the modern French and German codes in their colonies and their voluntary adoption by independent states. The common law version of legal transplants literature investigates the transport of the common law by English settlers and governors to North America, India, Australia, and Africa. Post-colonial …