What is Comparative Legal History? Legal Historiography and the Revolt Against Formalism, 1930-60
Giuliani, A. (2019). "What is comparative legal history? Legal historiography and the revolt against formalism, 1930–60." in A Masferrer, KÅ Modéer, and O Moréteau (eds), Comparative legal history (Research Handbooks in Comparative Law series, E. Elgar Publishing, Cheltenham, UK, 2019), pp. 30-77.
48 Pages Posted: 13 Oct 2016 Last revised: 2 Jul 2019
Date Written: March 15, 2018
What is comparative legal history? This essay argues that to understand this new field of legal-historical studies, we need first to clarify how legal historiography has changed over time. To this purpose, this essay begins from two main ideas.
First, the writing of legal history is deeply intertwined with an image of law that tells us what law is, how it is created and by whom. This is, in fact, the premise for writing legal history, as it determines the object of investigation. Second, the decades between 1930 and 1960 saw a profound turn in European legal science. Some legal scholars challenged the legacy received from the 19th century and launched an attack on the ‘formalism’ at the heart of its intellectual framework.
Those path-breaking insights gave life to a wave of works self-styled as comparative legal history published in the period 1930–60. At their heart were some of the challenging ideas that have continued to fuel original legal-historical research in the last few decades (e.g. to place law in context, to think outside the doctrinal box, the dislike of abstract theorising) and which today are shared as an obvious truth. They are the fruit of the antiformalist turn of between1930 and 1960.
Keywords: comparative legal history, antiformalism, German historical school, interpretation, textualism, judge and historian
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