Seong-Hak Kim on Legal Pluralism That Wasn't: State and the Plurality of Law in Late Medieval and Early Modern Europe

Marie Seong-Hak Kim, Käte Hamburger Kolleg "Einheit und Vielfalt im Recht", has published Legal Pluralism That Wasn't: State and the Plurality of Law in Late Medieval and Early Modern Europe. Legaal Hre is the abstract,

Legal pluralism has seemingly become a new orthodoxy. Its core proposition is that law has no privileged relationship with the state. Students of legal history have reason for paying attention, as legal pluralism, a corollary of colonialism, has come to project back onto European history its cultural and social-scientific paradigm and arrogate to itself the role of explaining the evolution of normative orders in the continent's past. This article argues that applying to European history a theory premised on a contest between legal monism and pluralism brings more confusion than clarity. The difference between historically grounded legal pluralism and the contemporary theory of legal pluralism revolves around the question of whether multiple legal orders existed as part of state law or state law was merely one among many legal orders. In late medieval and early modern Europe, law was foremost equated with jurisdictional power, that is, authority to rule. Various kinds of laws, including custom, Roman law, church law, and legislation, operated in a plurality of practices within the state-centered hierarchy, and it was on this framework of state law pluralism that the European countries, while remaining under the doctrinal unity of the jus commune, each followed a discrete path of legal development shaped by political and institutional changes. The history of Europe provides little support for the theory that an imposed Romanitas or state sovereignty displaced and distorted good old customary law. Modern legal pluralist views may be in need of reconsideration not just in light of what was happening in late medieval and early modern Europe but also in terms of how Europe's ideas of legal order spread to the colonies in the late nineteenth century. Recent debates on legal pluralism serve as a reminder that history is distinct from an anemic version of the more theoretical social sciences. Still, the binary of unity and plurality in law can offer an unaccustomed yet useful direction in approaching the legal past.

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Giuliani on F. Calasso's Idea of the Ius Commune: Legal Historians and the Romanist Tradition, 1930-60

Adolfo Giuliani, InfoLaw Research Project; Max Planck Institute for Legal History and Legal Theory, is publishing F. Calasso's idea of the ius commune: Legal historians and the Romanist tradition, 1930-60 in Journal Clio & Themis (June 2024). Here is the abstract.

On 16th January 1933 the young Francesco Calasso (1904-1965) delivered a prolusion on a subject that was to take the new generation of legal historians by storm: "The concept of the ius commune." His prolusion not only changed the image of the legal past but also gave a new impetus to legal history placing it at the heart of legal science. Today we need to go back in time and look closely at what he said, because the ius commune, which in the following decades became a major key to understanding the legal past, is now unclear. Outline: I. 1933: Rethinking the ius commune II. The historical problem of the ius commune III. The Romanist tradition IV. The ius commune as explained in the year 1573 V. Calasso's methodological project VI. Conclusion: Romanists Vs legal historians I. 1933: Rethinking the ius commune.

Download the article from SSRN at the link.