A Response to Professors Gianmaria Ajani and Vivian Curran
[Editor’s note: this is the final of three posts, parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]
We are indebted to the organizer of this online symposium, Professor Ioanna Tourkochoriti, whose leadership in revamping the ASCL blog has reinvigorated intellectual exchanges in comparative law. Her initiative is a timely reminder that engaging with comparative legal ideas requires not only scholarly rigor but also willingness to participate in more open, informal dialogue—particularly with two eminent scholars of the discipline, whose generous commentaries we are honored to receive.
We are grateful to Professor Gianmaria Ajani for his thoughtful reading of our book Comparative Law: Introduction to a Critical Practice. His reflections resonate deeply with the book’s core ambitions—especially our aim to move beyond the methodological constraints of traditional or mainstream comparative law teaching and to open new pedagogical spaces for critical, context-sensitive and politically engaged inquiries in a discipline that has long shaped, and been shaped by, the many trajectories and resistances of globalization.
Professor Ajani is absolutely right to foreground the pedagogical dilemmas that continue to confront those of us teaching comparative law: the balance between theory and practice, the tension between the “West and the Rest,” and the risk of overwhelming students with the sheer vastness of the field when asked to engage with “foreign law.” His recognition that our book attempts to tame these tensions—not by resolving them definitively, but by offering a usable toolkit that draws both from mainstream and critical approaches through what we call a critical practice—is especially appreciated.
We were particularly struck by his suggestion that our work serves as an “antidote from the vertigo of everything.” That sense of vertigo captures exactly the kind of paralysis that can arise when legal comparison is tasked with covering an endless list of topics and jurisdictions, often accompanied by the seemly innocent mantra—or false modesty?—that comparative law is “only a method.” We share our colleague’s conviction that what students need are intellectual tools that not only help them engage with diverse legal systems, but also enable them to move between doctrinal fields and normative commitments. Legal comparison, as we see it, is both a scholarly craft and a practical orientation toward the world—one that involves taking critical distance from familiar legal categories and using self-reflection as a means to understand the “foreign,” whether that be legal cultures, institutions, doctrines, or arguments. In doing so, students are invited to look back at their own legal traditions and appreciate the value of difference.
Professor Ajani’s attention to our treatment of legal transfers, property, contract, tort law, and constitutionalism goes to the heart of what we intended with this workbook. As he notes, our method does not rest on promoting best practices or pursuing harmonization. Rather, it invites students and practitioners to grapple with real-world problems—such as wrongful birth, the recognition of same-sex marriage, or the contested meaning of veiling in public spaces. These are not merely illustrative examples. They bring to the surface complex legal and policy arguments, distributive consequences, and the roles of diverse legal and social actors. They reveal how legal doctrines are embedded within political economies, social hierarchies, and cultural narratives—layers that a critical comparative practice must engage with to be meaningful.
Finally, we welcome his concluding observation that the book “opens classroom windows to let in some fresh air.” If our work helps dislodge the mannerisms that have too often dominated the teaching to comparative legal methods and theories—and instead encourages students to see laws as a dynamic, contested field in which they are in the driver’s seat, with tremendous agency—then we have accomplished what we set out to do.
We are equally grateful to Professor Vivian Curran for her generous and insightful commentary. Her reading brings into focus the dual ambition of the book: to offer an intellectually rigorous intervention for scholars and a practical toolkit for students, advocates and legal practitioners. We particularly value her recognition that we do not merely critique comparative law from a distance but seek to enact a different kind of comparative practice—one that engages in a dialogue with orthodox or mainstream approaches while remaining attentive to the socio-political, historical, material and linguistic contexts that shape legal meaning and law’s worldmaking.
We very much appreciate Professor Curran’s recognition that our book is “both nuanced enough to be of interest to scholars, and basic enough to be used as a teaching tool in the classroom,” as well as her emphasis on our treatment of language, legal globalization, and African land regimes. These themes reflect our commitment to expanding the scope of comparative law beyond its conventional terrain and, in particularly to including perspectives often relegated to what is referred to as law’s periphery. Her point about “Globalization IKEA-style” aptly captures the flattening tendencies we hoped to call into question by situating comparison in lived practices and uneven geographies.
We are also grateful for her remarks on our treatment of contract law in the context of global supply chains and the erosion of contractual autonomy—a theme that, as she notes, bridges doctrinal analysis with the political economy and connects with our discussion of legal standardization in the analysis of legal transfer.
By the same token, we welcome Professor Curran’s focus on Comparing legal histories, the final chapter, where we examine how different nations accept legal sources and rules of evidence, using the concrete example of a case in which Canadian courts dealt with territorial claims of two hereditary Indigenous chiefs. The layered narrative we present there is intended to foreground a critical reading of the rule of law— one in which, after the exhaustion of the legal remedies, a song or a dance may ultimately be accepted as valid evidence.
We welcome Professor Curran’s critical observations as a vital and necessary part of the comparative conversation—one that must include the comparatist herself: her position, perspective and selectivity in choosing materials—in the symbolic comparative space. We appreciate her suggestion to engage more directly with behavioral law and economics in the discussion of contract law, her reminder of the nuanced precedent-based nature of common law regimes as well as her critique of the veiling chapter’s interpretive framing – offered to inspire a reading, both in the classroom and in the scholar’s study, that takes the workbook at its word. Her comments enrich the dialogue we hoped the book would spark: an exchange that does not end with our text but moves through it and beyond it.
If, as Professor Curran notes, our juxtaposition of the comparative mainstream canon with a critical, practice-oriented approach makes the book valuable to both students and scholars, then we are encouraged that our intervention contributes to a broader rethinking—of what comparative law is and what it can do. Ultimately, we see Comparative Law: Introduction to a Critical Practice not as a conclusion, but as an invitation: to reimagine what legal comparisons can accomplish in shaping a more equitable society—and to ask who gets to participate in that project, both within the law and beyond it.
Remarks on Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice
[Editor’s note: this is the second of three posts, parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]
This welcome contribution to comparative law literature is both nuanced enough to be of interest to scholars, and basic enough to be used as a teaching tool in the classroom. The authors critique comparative law practice as they proceed to conduct it on their own, both by introducing their recommended socio-political-legal analysis and then by applying it to concrete problems which students are asked to solve.
The political and cultural underpinnings of comparative law are never far from the authors’ analysis as they seek to situate the act of comparison in its time and place. They also emphasize the importance of historical context as well as of language, recalling the inextricable links between language, text and culture in law. The book extends concepts such as the above which have been part of the comparative canon for some decades by placing them in a contemporary setting: e.g., “Globalization IKEA-style,” and by devoting space to often neglected areas of the world such as African systems of land registry.
After comparing contract law in the United States, France and Germany, and exploring traditional comparative law theories of convergence and divergence, the authors suggest another kind of convergence by positing that today’s standardization of contracts and global supply chains across systems call all individual contractual choice and autonomy into question.
The book is so rich that omissions are inevitable. The authors’ critique of law and economics when discussing contract law might have mentioned the field of behavioral law and economics, which today has modified the field. One might also disagree with the authors’ take on tort law where they emphasize that civilian tort law is principle-based by being founded on the French Civil Code, while common-law tort law, being writ-based, is founded on many causes of action. One might, however, see the salient feature of common-law tort law as being the least statute-based area of the common law, and, in that sense, as the most precedent-based. The latter may seem a more important trait as one considers the civil- common-law tort law divide.
The authors’ contemporary comparative law example of constitutional law deals with Islamic veiling. Four cases are set forth, one from England, one from the U.S., one from the European Court of Human Rights, and one from Kenya, each setting forth different reasoning. Each of these cases presents very interesting room for analysis and contrast. Some of the authors’ conclusions do not appear to be substantiated by the evidence they provide, however, although many of their comments are insightful.
In the final chapter, Comparing legal histories, the authors examine what nations accept as being legal sources. They offer as a concrete problem a case in which Canada dealt with territorial claims of two hereditary indigenous chiefs. In this case, a performance such as a song or a dance was accepted as valid evidence.
Throughout this erudite book, the authors have juxtaposed comparative law’s canon with their own original critique. They have offered considerable theory in a work that will be of interest to comparative law scholars just as much as it will be of use to students.
A reading of Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice, Elgar, 2024
[Editor’s note: this is the first of three posts parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]
“The classroom remains the most radical space of possibility in the academy”(Bell Hooks, Teaching to Trasgress, 1994, quoted by the authors, at p. 1).
“The purpose of this book was to write a different kind of textbook on comparative law” (The authors, at p. 206).
These two statements provide the opening and the closing of an absorbing and inspiring book, authored by Fernanda Nicola and Günter Frankenberg. And there is no spoiling in saying that the declared purpose was accomplished.
Teaching comparative law is not an easy undertaking: too wide is the series of possible options when we prepare the syllabus. What does really count for law students ? How shall we attract their attention on a matter that can be perceived as too abstract, too theoretical, possibly too apart from the practice of domestic law in courts ? How significantly can we ask our students to be familiar with historical, geographical, economic notions, that represent the thorough-bass of most comparative law courses ? An endless list of preliminary options: where to set the focus, between private and public law ? How to balance the West and the Rest? The formal and the informal? How much time (perhaps no time at all) should be spent in exposing students to the phantasmagoria of uses and misuses, discipline or method, exoticizing or deconstructing the foreign element, and so forth ?
No doubt, all these interrogations bother the teaching of comparative law as a general discipline, and the making of a textbook. They must be tamed, to contain publishing costs, as well as teaching constraints. It would be then unfair to blame the authors for (unavoidable) omissions. What counts is whether choices made by Nicola and Frankenberg – inclusions and omissions considered- give the readers a useful, understandable, and manageable introduction to the comparative law as a (critical) discipline. Something that could provide those approaching the subject, be they students, or newcomers, with an antidote from the “vertigo of everything” that could discourage any advancement in comparative law studies.
A dense and intense introductory Chapter (pp. 1-23) shows the gift of the authors in synthesizing complexity, and guiding readers through an immense literature on “How to compare, and Whatto compare”.
Sewing together most questions listed above, Nicola and Frankenberg have elaborated an approach of their own, focused on “real-life problems taken from the application of law”, to show how interpreters can move from a mainstream to a critical approach, and from a formalist to a non-positivist understanding of law that reads legal theories in the prism of policies, while evincing the social, cultural, and economic fabrics of judicial implementation. Once the set of comparative law methods and theories has been exposed, “all are invited to work” with a toolkit that can be arranged and applied to produce a comparative practice “that helps understand the plurality of legal cultures and their laws, and therefore deserves to be called critical” (at p. 23). An invitation that could be better appreciated when reading Chapter 1 together with Chapter 9 of the book (Comparing Legal Histories, pp. 183-205).
What has been defined as “Dynamic Comparative Law”, namely the study of laws, theories, cases, institutions patterns in their traveling is the focus of Chapter 2 (Comparing Legal Transfers pp. 24-46). Here, authors have set the stage of a drama called Legal Globalization, with all his characterizations: the transformation of laws and legal patterns into commodities, the emphasis on the role of experts, the role of chance and prestige in the offer and demand of legal models, the unexpected side-effects of hectic legal reforms. Looking back to the golden years of globalization we can, today, clearly recognize that comparative law as a discipline, and comparative lawyers as experts, failed to have a role in the worldwide market of legal reforms. The practice has privileged time-efficiency over the fine-tuning of context-based comparative law methodology; governmental agenda were driven by geo-politics, rather than by cultural affiliations. In spite of a story that proved to be a mortification for the “ubris” of the discipline, Nicola and Frankenberg advance a constructive reading: “comparing legal transfers could be an antidote against a too narrow (…) focus, against epistemic narrowmindedness and provincializing comparative law” (at p. 46).
“What does private property imply ?”. The formidable tangle of economic, political, legal and cultural models that depict property laws worldwide is at the center of Chapter 3 (pp. 47-69). Here, the talent of a comparative law teacher in classroom will be severely tested, as students are required to handle a complex scenario, populated by land reforms, public and private law regulations, formal taxonomies and practices of collective use, alternatives to private property and varieties of its social function. It is not by chance, after all, that “conventional textbooks of comparative law -as the authors do note- tend to focus on contracts and torts, and they often neglect property law” (p. 49). The density of issues simply hinted at, or more broadly described, in about 20 pages could justify by itself a “Comparative property law” course, open to necessary contaminations based on socio-economic approaches to property.
Unlike Chapter 3, the following one (pp. 70-97) deals with a topic, Comparing Contract Laws, that has received an overwhelming attention in comparative law conventional scholarship.
Keeping in the backgound a classical problem in contracts, specific performance, Nicola and Frankenberg portray the approach applied by mainstream scholarship (Zweigert and Kötz, Gordley): the common law/civil law dichotomy and its functional equivalence, projects in harmonixation, and the cultural meaning(s) of private autonomy. A sketched mention to Law and Economics theories of efficient breach and to Feminist and Critical Race theories of contract law enriches the picture. A tale that a class of normally equipped law students should be able to understand without too much effort, while applying the provided toolkit to the specific performance cases exposed (Mary Clark, 1821, and Anna Netrebko, 2023).
The second part of the book (pp. 98-182) shows a growing relevance for the non-legal layers (mainly, politics, ethics, and culture); it could not be otherwise, as the authors choose to hinge Chapter 5 (Comparing Tort Laws) on the matter of wrongful birth and life. The law of torts, that traditional comparative law scholarship had often used as a “gym” to train students in the play of combining leading cases, diverging opinions, laws and policies, proves again to be a fertile field for the participatory exercise Nicola and Frankenberg are calling the students to be engaged into.
On a similar note, Chapter 6 (pp. 119-140) adopts as a main theme for Comparative Family Laws the recognition of same-sex marriage. All possible legal and non-legal layers are, evidently, involved, and students are invited to delve into the “varying stances taken by courts, legislatures, and advocates regarding the legalization or resistance to same-sex marriage” (p. 139).
Finally, Comparing Constitutions (Chapter 8, pp. 161-182) gives the chance to confront a “conventional” comparative constitutional law, marked by a narrative of similarity and convergence, with the constitutional jurisprudence of wearing veil in public spaces.
As said, the commitment to offer a “different kind of textbook” has been respected.
Some comparative law teachers in Europe share the desire to get rid of a kind of mannerism in the discipline. They have a good chance now, as to open classroom windows to let in some fresh air is the worth of this book.
The Curious, Consequential History of “Cruel and Unusual Punishments”
Article 5 of the Universal Declaration of Human Rights (1948) reads: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” That prohibition is repeated in Article 7 of the International Covenant on Civil and Political Rights (1966), with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) also barring torture—defined in Article 1 as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” whether to punish or coerce a confession—and, as Article 16 states, “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” The “roots” of the right to be free from torture and cruel, inhuman and degrading treatment or punishment, Professor M. Cherif Bassiouni wrote in the Duke Journal of Comparative & International Law in 1993, “are found in the prohibition against ‘cruel and unusual punishments’ in the English Bill of Rights” and in the equivalently worded “Eighth Amendment of the United States Constitution.”
The Universal Declaration of Human Rights (UDHR), as well as the widely ratified International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT), laid the foundation for the prohibitions against torture and cruel, inhuman and degrading treatment (CIDT) to be recognized as peremptory, or jus cogens, norms of international law. In ratifying the ICCPR and the CAT, however, the United States filed reservations to both of those U.N. instruments, asserting that the treaty prohibitions meant “cruel and unusual punishments” as defined by the Eighth Amendment. “[W]hen the United States became one of the original signing nations” of the UDHR, law professor Jonathan Simon writes in Mass Incarceration on Trial (2014) of the international prohibition against CIDT, “legal experts on both sides of the Atlantic assumed that these words meant largely the same thing as the Eighth Amendment’s ban on ‘cruel and unusual punishment’.” The Eighth Amendment (1791) prohibition of “cruel and unusual punishments”—like the ICCPR and the CAT, a consequential milestone in the history of human rights—was derived from identical bars in the English Bill of Rights (1689) and the Virginia Declaration of Rights (1776), thus sparking considerable interest among jurists and scholars as to the origins of that somewhat peculiar phraseology.
In America’s founding era, revolutionaries such as Patrick Henry and George Mason saw the bar on “cruel and unusual punishments” as prohibiting torture, although torture was then largely understood by lawmakers to refer to then-prevailing inquisitorial methods of judicial torture in continental Europe (think Spanish Inquisition). One member of Congress, Representative Samuel Livermore of New Hampshire, said the Eighth Amendment’s language “seems to express a great deal of humanity” but thought the provision unnecessary, offering this observation: “No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?” Another legislator at the First Congress, Representative William Loughton Smith of South Carolina, “objected to the words ‘nor cruel and unusual punishments’” because he viewed their “import” as being “too indefinite.” In spite of those objections, the historical record shows that the Eighth Amendment’s text was “agreed to by a substantial majority.” In that era, America’s founders embraced the maxim of Montesquieu that any punishment that goes beyond necessity is “tyrannical,” and they also greatly admired Cesare Beccaria’s On Crimes and Punishments, which further promoted that maxim. Beccaria’s book was the first published text of the Enlightenment to make a fulsome argument against capital punishment, even for the crime of murder.
In the late nineteenth century, when death sentences were still widely used, the U.S. Supreme Court—ironically, in two decisions that approved executions by firing squad and electrocution—expressly held that the Eighth Amendment forbids torture. Today, the Supreme Court continues to allow executions in spite of the Eighth Amendment’s prohibition of cruel and unusual punishments, even though it simultaneously renounces torture and even though America’s condemned inmates now spend, on average, more than twenty years on death row before their execution (or commutation or exoneration, as the case may be). Torture was once seen as operating principally upon the body, with those accused of crimes subjected to water torture or the rack to secure confessions. The law’s prohibition of torture, however, is now understood to bar both physical and psychological forms of torture, with the Third Geneva Convention (1949)—adopted shortly after the UDHR—expressly prohibiting “physical or mental torture” of prisoners of war. After the adoption of the non-binding Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975), the binding CAT thereafter broadly—indeed, absolutely—prohibited torture, “whether physical or mental” in nature. Under the law, no public emergency—not even war, or threat of war—can be used to justify torture, and countries are barred from deporting or extraditing people to countries where they would be subject to torture.
The U.S. Supreme Court and legal scholars have long identified the English Declaration of Rights, codified as the English Bill of Rights (1689), as the first usage of the “cruel and unusual punishments” terminology. The English Declaration of Rights recited that, in King James II’s reign, “illegal and cruel punishments” had been “inflicted,” with its tenth clause then declaring in hortatory fashion: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions against excessive bail and excessive fines and the final phrase—“nor cruel and unusual punishments inflicted”—were later incorporated into various American state constitutions and the U.S. Constitution’s Eighth Amendment. George Mason was the principal drafter of Virginia’s Declaration of Rights, with James Madison—his fellow Virginian and a slaveholder—incorporating the bar on “cruel and unusual punishments” into the U.S. Bill of Rights. In 1969, one legal scholar, Anthony Granucci, described the wording of the equivalent English bar on “cruel and unusual punishments” as the product of “chance and sloppy draftsmanship.” The Eighth Amendment famously reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
It turns out that the U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the “cruel and unusual punishments” language, with Justice Thurgood Marshall, relying on Anthony Granucci’s scholarship, once observing that the use of “unusual” in the English Declaration of Rights “appears to be inadvertent.” In a new piece of scholarship forthcoming in the British Journal of American Legal Studies titled “Lost and Found: The Forgotten Origins of the ‘Cruel and Unusual Punishments’ Prohibition,” I debunk the conventional account of the origins of the “cruel and unusual punishments” phraseology—spelled “cruell and unusuall punishments” in some early English sources. The standard account of how that terminology first emerged during England’s Revolution of 1688–1689, popularly known as the “Glorious Revolution,” is woefully incomplete because it fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology.
These prior usages stretch back as far as the early 1600s, during the reign of King James I. The Generall History of the Magnificent State of Venice (1612), published in London, contains a reference to “A cruell and unusuall punishment” in its index and marginalia. That reference describes live burials of priests, their heads pointed downwards, between the two massive columns in Venice next to the Doge’s Palace and near St. Mark’s Basilica. Written by Thomas de Fougasses of Avignon in France, that Venetian history was originally published in French in 1608 before being translated into English. Abuses Stript, and Whipt (1613), the satire of the English courtier and poet George Wither (1588–1667), also describes the “brazen bull” of the tyrant Phalaris—a hollow metal bull heated by fire to kill anyone placed inside—as “That cruel’st and unusual’st punishment.” That passage from Abuses Stript, and Whipt was later reprinted in Juvenilia (1622), a collection of George Wither’s poetry, with Wither later fighting on the side of Parliament during the English Civil War. Such references show that the prohibition on cruel and unusual punishments—seen as an “ancient” common law right by the time of its codification in the English Bill of Rights—was anchored in early seventeenth-century linguistic usages.
After its first written appearances in the early 1610s, the “cruel and unusual punishments” terminology subsequently appeared in two Irish-Catholic Ulster Remonstrances (1642). The Ulster Remonstrances were written not long after—and, in the relevant passages, bear striking resemblance to—a clause of the Grand Remonstrance (1641). A 204-paragragh recitation of grievances presented to King Charles I, a believer in the “divine right of kings,” the Grand Remonstrance was ushered through a rebellious English Parliament by John Pym, an MP, shortly before the outbreak of the English Civil War. That Civil War culminated in Charles I’s execution in 1649 and Oliver Cromwell’s rise to power as the Lord Protector of the Commonwealth of England, Scotland and Ireland. Among other things, the Grand Remonstrance complained that “[t]he Court of Star Chamber hath abounded in extravagant censures” and that “His Majesty’s subjects have been oppressed by grievous fines, imprisonments, stigmatisings, mutilations, whippings, pillories, gags, confinements, banishments.” The 1642 Ulster Remonstrances, setting forth the causes that led to an Irish rising that began in October 1641 and lasted into the following year, similarly complained about the imposition of “heavy fines, mulcts, and censures of pillory, stigmatizings, and other like cruel and unusual punishments.”
These remonstrances did not come out of nowhere. In the 1630s, England’s prerogative Court of Star Chamber—controlled by Charles I and his Privy Council, including the king’s chief religious advisor, Archbishop of Canterbury William Laud—had ordered prominent Puritans, such as lawyer William Prynne, clergyman Henry Burton, and physician John Bastwick, to be horrendously punished. They were each imprisoned, whipped, pilloried, and had their ears cut off. While a Scottish doctor, Alexander Leighton, had “SS” branded on his cheeks for “Sower of Sedition” after suffering similar punishments in the 1630s, William Prynne—a polemicist and Archbishop Laud’s archenemy—was branded with the letters “S.L.” for seditious libeler.” An Irish equivalent of England’s Court of Star Chamber—the Court of Castle Chamber, also controlled by Charles I loyalists—similarly operated in Dublin and meted out, or threatened to inflict, like punishments. Ultimately, the Court of Star Chamber was abolished in 1641 along with its ecclesiastical equivalent, the Court of High Commission. The use of the pillory, whipping, and branding—once common punishments in England and colonial and early America—were eventually abandoned, too, with the U.S. Court of Appeals for the Eighth Circuit—in an opinion written by future U.S. Supreme Court Justice Harry Blackmun—ruling in Jackson v. Bishop (1968) that the lashing of Arkansas prisoners constituted an unlawful “cruel and unusual punishment.”
Because the cruel and unusual punishments terminology appears in multiple places before the English Declaration of Rights, the use of that phraseology in that document—and as codified in the English Bill of Rights—was plainly neither inadvertent nor the product of sloppy drafting. While it is now clear that the cruel and unusual punishments terminology first emerged to describe hideous methods of execution, like live burials and burning to death in the brazen bull, it is also clear that, by the 1640s, that terminology also referred to a whole host of non-lethal corporal punishments, including the pillory and stigmatizings (or branding of the skin). While Saudi Arabia, in 2011, sentenced six men to have their right hands and left feet amputated as punishment for “highway robbery,” such barbaric and bizarre punishments—from the “ducking” of “scolds,” to the use of public whipping posts, to offenders being put in the pillory and having rotten eggs thrown at them—have long been jettisoned by Western societies.
The cruel and unusual punishments phrase may have begun its life in curious and now-obscure sources—in a book’s index and marginalia, in a satire, and in written protests (or remonstrances). However, that centuries-old history or this legal historian’s quest to answer an imagined Trivial Pursuit question about the first usages of the cruel and unusual punishments verbiage should not obscure—and, in fact, only casts a darker shadow on—the continued use in the twenty-first century by a dwindling number of countries of corporal punishments and state-sanctioned executions. In December 2024, 130 countries at the United Nations called for a global moratorium on executions, and the United States (sadly, not among them) now stands—as documented by Amnesty International—in the company of China, Iraq, Iran, Saudi Arabia, Somalia, and North Korea in using executions. In The Death Penalty’s Denial of Fundamental Human Rights: International Law, State Practice, and the Emerging Abolitionist Norm (2023), published by Cambridge University Press, I argue that death sentences, like mock executions (already classified as acts of psychological torture under international law), must be strictly prohibited as torture because they constitute credible death threats that inflict severe pain and suffering. With non-lethal corporal punishments and mock executions already barred by law in Western societies, capital punishment must be abolished, too, and—like the pillory, the ducking stool, ear cropping, and the lash—relegated forever to the history books.
Extraterritoriality in Comparative Perspective
Extraterritoriality is often understood as an exceptional, sometimes even illegitimate, form of state lawmaking—yet it is pervasive in contemporary practice. Countries around the world rely on extraterritorial regulation to protect local markets, in areas including competition law and data privacy. It is also recognized as a useful strategy to promote international human rights, and to address shared challenges as diverse as transnational crime, tax base erosion, and climate change. The normalization of extraterritoriality as a legal technique, however, has by no means resolved longstanding debates about its place in the international legal order.
In its famous “Lotus” judgment of 1927, the Permanent Court of International Justice rejected the proposition that international law prohibits states from “extend[ing] the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory.” Over the course of the past century, states have engaged in extraterritorial practices in an ever-increasing range of domains. These practices challenge foundational principles of international law—and provide a valuable lens for critical exploration of power and legitimacy in the international order.
Much of the vast scholarly literature on extraterritoriality approaches the topic from the outside in, assessing the extraterritorial projection of state law from the perspective of international law and the constraints it places on state authority. The goal of this project is to approach the topic from the inside out. Containing in-depth studies of fifteen legal systems, this volume provides a critical comparative perspective on those debates. The authors investigate the geographic scope that states claim for their own laws, and the mechanisms by which states translate and locally implement principles of international jurisdictional law.
Intergenerational Continuity: Can Love and Care Be Mandated by Law?
[Editor’s note: This is the fourth of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]
The article “The Family of the City, the family of the country” by Shelly Kreiczer-Levy and Baoshi Wang deals with intergenerational family relationships and the way the state influences and shapes them. One of the important factors underlying these relationships is the interest in continuity. This interest has been established as a significant factor in inheritance law in several important articles written by Shelly Kreiczer-Levy. This interest in continuity comprises two aspects:
The first aspect is reflected at the end of a person’s life, which is the moment when the vision of the person’s continuity is manifested and established as the individual drafts their will. The second aspect of continuity addresses the descendants, who are the other side of the connection, and their need for roots. The two aspects are intertwined, so that part of the elderly person’s interest in continuity is that their descendants will have roots, and part of the descendants’ interest in roots is that they will continue them. Through the perspective of the principle of continuity, Kreiczer-Levy provides an innovative and important lens through which she views many other principles, such as testamentary freedom and doctrines of undue influence in Anglo-American law.
Building on Kreiczer-Levy’s work and influenced by her articles, I have explored the role of continuity in additional cases. I suggested that the doctrine of undue influence, known in inheritance law, should be interpreted as focusing on protecting the deceased’s familial and intergenerational connections. Consequently, I identified cases where an individual isolates the elderly from their family and severs their connections, which I termed “elder familial alienation,” and argued that this doctrine should apply to such cases. However, contrary to inheritance law, which focuses on the period after a person’s death, I argued that the interest in continuity is realized through intergenerational relationships during a person’s life, not just after death. Accordingly, I proposed that the law should expand its view beyond inheritance law and apply the doctrines of undue influence and elderly alienation not only after a person’s death but also during their lifetime. Therefore, in cases where a person’s intergenerational connections, especially those of the elderly, are under threat, I believed the law should provide remedies during the person’s life aimed at protecting their connections, rather than merely invalidating their will after death. Subsequently, I argued that there is a need to recognize the elderly person’s right to intergenerational connections, based on their interests in welfare, autonomy, and the interest in continuity.
An analysis of the elderly person’s right to intergenerational connections through Hohfeldian analysis may establish obligations in several dimensions: both public and private. In each dimension, there are obligations derived from both the positive and negative sides of the right. In the negative dimension of public law, the right imposes a duty on the state not to interfere with or harm intergenerational connections. This became particularly relevant in many countries during the COVID-19 pandemic, when the isolation of the elderly in state institutions was a major issue. The positive side of the right imposes a duty on the state to support and facilitate these connections, which can be reflected in measures to promote and encourage such relationships. In the negative dimension of private law, the right creates an obligation on third parties not to damage the elderly person’s connections. For instance, in cases of elder familial alienation, it could be important to prohibit individuals from isolating the elderly and severing their intergenerational ties. But what about the positive dimension of private law? Is there an obligation for descendants to maintain a relationship with the elderly?
In most legal systems, it is commonly believed that relationships cannot be imposed on people, nor can emotions such as love be compelled, and thus neither can personal relationships nor care. This is true for both general and familial relationships.
However, in this article, the authors, Shelly Kreiczer-Levy and Baoshi Wang open our eyes to issues of family in general and intergenerational relationships in particular. This article spans three countries—China, Israel, and the United States—and through examples from these countries, it presents the innovative argument that geographical areas influence relationship systems, personal connections, and care practices. The authors demonstrate that there is more than one way to think about intergenerational obligations and that these obligations are a matter of geography. Geography can be reflected in differences between countries and even within countries between families living in urban and those living in rural areas.
One surprising example in the article is that in China, there is a legal obligation to visit, care for, and respect the elderly. This obligation is enforced through various means, including criminal penalties. This obligation, which was “missing” from the positive Hohfeldian analysis of the right to intergenerational connections, arose from the state’s need to address the issue of young people moving to cities while the elderly remain in rural areas without adequate care. This raises intriguing questions about whether such a legal requirement is effectively implemented or if it represents an impractical and unrealistic demand. Thus, while in Western societies the duty to maintain relationships and care for the elderly might be seen as merely moral but not legally enforceable, in China it has become a legal obligation that can be enforced. This practice challenges fundamental norms in Western society that argue care, relationships, and love cannot be imposed, and demonstrates that, at least in China, the Hohfeldian analysis of the right to intergenerational connections can be fully realized.
The State and Urban Families, The State and Rural Families.
[Editor’s note: This is the third of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]
In their fascinating article “The Family of the City; The Family of the Country” Shelly Kreiczer-Levy and Baoshi Wang explore the connection between family, geographical space and the state. They argue that the family (particularly caring responsibilities and practices) is shaped differently in urban and rural areas, and that the state plays an important role in creating, maintaining, reacting to or even causing these dissimilarities between city and country families.
The article examines three case studies: Chinese urbanization process, family farms in Israel, and abortions regulations in the United States. Each of these examples addresses different geographical areas and distinct aspects of family formation; however, grouped together they provide an overview of various spatial aspects of family formation, and different state strategies shaping the intersection of geographical location and familial roles.
The Article beautifully demonstrates two categories of state involvement in the family. The first category is disparate treatment of urban and rural families; the second category is spatially blind policies. In the first category, the state distinguishes between families based on their geographical location, thereby influencing caring responsibilities and practices. In the second category, the state applies a uniform rule to all families, but this rule has a disparate impact on city and rural families. At first glance, these categories seem to be opposites (similar v. dissimilar treatment) or at least two distinct strategies yielding different outcomes (considering or ignoring the difference between families in rural areas and city). Yet, in both categories the state plays a role in differently shaping the family. Therefore, one important contribution of this article is its demonstration that the state is not neutral. Whether using either category, the state intervenes and shapes families.
The notion that the family is not entirely a private institution and that the state plays a role in its formation is not new. The state heavily regulates many aspects of family life, such as through marriage and divorce laws, and laws governing parent-child relations. Furthermore, the employment market (which is regulated by labor law) also shapes families, particularly familial roles. However, the article enriches family law scholarship by highlighting the spatial aspect of family formation through state actions. As the article shows, even when caregiving is conducted by family members within the privacy of the family home (rather than in state institutions), it is not free from state influence. Whether directly or indirectly, through equal or disparate treatment, the state influences familial relations in both cities and rural areas. Does the state amplify or perpetuate exiting differences between families in urban and country areas? Or does the state constitute these differences? How do different families respond to state regulations? The article brilliantly sets the stage for this discussion, and these questions require further research that contextually analyzes different families in cities and rural settings. The article makes another important contribution by laying the groundwork for policy considerations regarding state regulations. The discussion of COVID-19 regulations demonstrates that the state must consider how regulations will impact different families in various spatial areas. The question, therefore, is not whether the state should treat city families and rural families the same or differently, but rather how state regulations impact different families. In other words, the question is what policy will best serve the needs and interests of different families. For example, what is the best policy during the COVID-19 pandemic that would both enable care for vulnerable family members and at the same time safeguard their health? How would such regulations influence family formation? Would they support or hinder caregiving for family members? There is no single answer that applies to all families, and context – including geographic context – must be considered. Therefore, the article emphasizes the importance of a bottom-up approach to studying the impact of state regulations on family formation in different spatial contexts. State responsibility requires that the state fosters the best family care, whether in urban or country areas (and provide state care when family care is unavailable). Any future scholarship, state policy or regulation should build upon the impressive groundwork laid by the article.
Adding a Conceptual Framework to Rural Family Law
[Editor’s note: This is the second of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]
The Family of the City, the Family of the Country by Shelly Kreiczer-Levy & Baoshi Wang makes an important and unique contribution to the field of Family Law. The rural family has long been ignored in most legal scholarship. While a few academics (myself included) have written about discrete topics concerning the rural family, prior to this article no one had tried to write a conceptual piece about rurality and Family Law. Instead, prior work on the rural family has focused only on one legal issue in one jurisdiction. Think articles focused on abortion rights, child custody disputes, or family inheritance policies. The Family of the City, the Family of the Country takes note of these prior articles and the larger body of literature about rural-urban difference in the law, but then builds on that work.
What The Family of the City, the Family of the Country adds is a conceptual framework. The authors start by describing the scope of their project: that they present “different types of state involvement in the bifurcation of familial practices of care across geographical distinctions.” It is their look at these “different types of state involvement” in a comparative law context that makes the paper so ambitious. It also means they can offer a more conceptual framework to understand how governments treat families in rural versus urban areas.
But let me back up to a core piece of knowledge in Family Law that underlies the theories presented in this paper: the government is involved in forming and shaping families. In our individual lives, many of us like to think that we make our choices about our family relationships and structures without influence by the government. As a Family Law professor, one of the first and biggest points I make is that the laws surrounding family influence how individuals live their lives. The best scholarship showing this government influence on the family is probably “Public Vows,” Nancy Cott’s book on marriage. Kreiczer-Levy & Wang build on this basic understanding of Family Law by expanding the analysis: it is not just that the government influences family (this is well-established), but that the government influences family in different ways in urban versus rural spaces (this is their contribution).
To show this rural/urban difference, Kreiczer-Levy & Wang present three case studies covering intergenerational care in China, family farms in Israel, and abortion access in the United States. The case studies are ambitious—they cover three areas of law in three different countries. The heavy lift is to make sense of such different case studies and to present a way to understand all three. To do this, they have to make an important observation about how rural/urban differences in Family Law are created. They categorize how these differences come about, noting that sometimes governments will engage in “differential treatment” by creating explicit laws treating urban and rural spaces differently, but sometimes governments will create “spatially blind policies” that look the same but apply differently in rural and urban spaces. This categorization—of “differential treatment” versus “spatially blind policies”—is probably the biggest takeaway the article produces because it allows future legal scholarship to build on how rural/urban differences in Family Law originate.
In order to present their theory of categorization, the authors have to successfully engage with two separate bodies of scholarship. The first is scholarship in Family Law about the government treatment of families. The second is scholarship from law and rurality scholars that looks at rural/urban differences or place-based policies. They manage to draw on both of these bodies of scholarship and make sense of them both. In the coming years, I hope there is future work done at the intersection of rural/urban difference and Family Law. That future work will be able to rely on The Family of the City, the Family of the Country as a conceptual starting point.
The Spatial Family, Summarising The Family of the City, The Family of the Country
[Editor’s note: This is the first of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]
Baoshi Wang and I met when we were both visiting The Vulnerability and Human Condition Initiative at Emory as visiting scholars under the guidance and supervision of Prof. Martha Fineman. We were talking about our home country, lives, families, and local laws as we came across a mutual interest: family law and care. I asked Baoshi about a new law that was passed in China at the time and made headlines in the news. According to the law, it is the duty of adult children to visit, care and respect their elderly parents, and a failure to meet this duty can result in criminal sanctions. I was both puzzled and intrigued by the law, as a scholar who has devoted time and thought to intergenerational relations in the context of inheritance law and multigenerational cohabitation. I was puzzled because in Western jurisdictions intergenerational commitments are for the most part considered moral duties, rather than legally binding obligations.
Baoshi explained the background of this law, having its roots in a rapid urbanization process, designed and supported by state. He also explained the gaps in social security between urban and rural areas, making rural elders reliant on their children for care and support. Urbanization and social security gaps were state policy that had unintended consequences. As young people move to the city to find their livelihood, it became harder for them to visit and care for their parents. The obligation to visit one’s parent came to fix the fragmentation of the multigenerational household. Our conversation made me think about how care in the family can be dependent on spatial categories. Where you live matters for the purpose of your familial duties. I told Baoshi about an example from Israel. Family farms on state owned land are subject to a complex inheritance law regime that mandates only one heir can inherit the farm. The chosen heir is considered “the continuing son/daughter” and is customarily assigned with a duty to care for their parents in their old age. Inheritance rules thus create a divide between care expectations and practices in the city, where care is shared among all children, and care in family farms, where care is the duty of only one child.
Thinking of these two very different cases together revealed the importance of state involvement in shaping familial commitments that differ across spatial lines. The state, we argue “constitutes and supports different familial practices in urban and rural areas.”
In the two examples of our home countries, we identify differential treatment by state laws and policies that distinguish between rural and urban areas, resulting in a family for the city and a family for the country. This gap in care practices is not necessarily planned or desired by the state, but can be an unexpected, indirect consequence of its policies or rules.
The differing practices are not always the result of differential treatment. In our third case study, we discuss abortion law in the US (the article was written before Dobbs). In the 2010s, TRAP (targeted regulations of abortion providers) laws were enacted to require providers to have admitting privileges at hospitals nearby. In addition, providers must meet the requirements of an ambulatory surgical center. These laws caused many abortion centers to close. Although the laws were enforced in both rural and urban areas, they had a disproportionate effect on women living in rural areas. The case thus serves as an example of what we call “spatially blind” policies and laws. Unlike differential treatment laws and policies, spatially blind laws “are similarly applied in different geographical areas” but “ignore gaps in access to medical or social services.” The result is different practices of care in the family.
The article continues with an analysis of state actions that react to the differing practices of care with an attempt to rectify the gaps resulted by its policies. In China, it was the duty to visit, care and respect one’s elderly parents. In Israel, it was a moderate amendment to the law. In both the Chinese and Israeli case, these gaps in care were an unintended result, a byproduct of the state oversight of the potential outcome of its policies. The article can therefore serve to alert states to this potential implication of spatial policies.
Even though the article started with a conversation about the practices of care in our respective countries, it did not end there. The laws and policies depicted in the three case studies are not necessarily unique, one may find other stories that support the same conclusion. We use these cases in a bottom-up approach to analyze various forms of state involvement that lead to a bifurcation of practices of care across geographical categories. Our goal was to contribute to the developing notion of the spatial family. The idea started under guidance of Martha Fineman, and we are grateful for her inspiring work, and in particular her work on the role of the state in shaping the practices of care.
The Accusatorial/Inquisitorial Divide and the Interplay of Nationalism and Universalism: A Response to Readers
[Editor’s note: This is the final of four posts for a mini symposium on Amalia Kessler’s article “Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 296–327, https://doi.org/10.1093/ajcl/avad022]
My deepest thanks to Jean-Louis Halpérin, Máximo Langer, and David Rabban for their thoughtful reflections on my article. I cannot do justice here to all their rich questions, but it’s a pleasure to begin thinking about these.
The nineteenth-century rise of the accusatorial/inquisitorial divide was a transnational (and to a limited extent, transatlantic) phenomenon. Given space constraints, I chose to focus on developments in France, a country whose revolution and later wars of conquest played an important role in shaping these transnational debates. The danger of this choice is unintentionally to imply a centrality to French developments. Both Halpérin and Langer correctly state that the French experience must be contextualized with a broader frame. Halpérin notes that, as compared with Carmignani and especially Mittermaier, Ortolan and Hélie were relative unknowns, much more influential in France than elsewhere. And Langer observes that the nineteenth-century construction of the comparative accusatorial/inquisitorial divide was in fact “a gradual process,” dating back to eighteenth-century efforts to distinguish between English and continental modes of criminal procedure.
These are important points, and it would be wonderful to see further research exploring these themes, including Langer’s exciting forthcoming book. That said, as Halpérin comments, there was a distinctive national valence to how the universal categories of accusatorial and inquisitorial were deployed. There is therefore much to be learned from mapping out (and ultimately comparing) these distinctive national pathways. My hope is that my article can contribute to this broader, collective project. So too, while the nineteenth-century emergence of an accusatorial/inquisitorial framework was rooted in earlier developments, it is important to explore what precisely was unique about the new framework. Indeed, the very fact that nineteenth-century jurists felt compelled to create this new framework indicates that they believed it served purposes that an older approach did not.
Langer suggests that, from the perspective of jurists like Ortolan and Hélie, one virtue of the new framework was that it facilitated French nationalism. In contrast to an earlier distinction between English and continental models of procedure, which tended to valorize the former, the new accusatorial/inquisitorial framework (and the concomitant conception of the French system as mixed) made it possible to identify the French model as superior. As I discuss elsewhere, Mittermaier pursued much the same nationalist project in Germany—one deeply connected to his Germanist vision of liberal nation-building. He thus insisted that, while England had come closest to adopting a pure model of accusatorial procedure, such procedure could be found in many different times and places (in the West), including not least, in medieval Germany prior to the reception of Roman law. (Kessler, “The American Importation of the Accusatorial/Inquisitorial Divide: Francis Lieber’s Failed Transplant and Its Early Twentieth-Century Resurgence, in The Learned and Lived Law: Essays in Honor of Charles Donahue (forthcoming, Brill’s Legal History Library, 2025).) But the power of the accusatorial/inquisitorial framework—for not only analytical, but also political purposes—was that it couched such nationalism in the language of universalism. It suggested, in other words, that it was mere happenstance that comparative analysis pointed to the superiority of the jurist’s own nation, presenting such superiority as an outgrowth of the particular juncture at which the nation found itself at that moment in the universal, historicist process of national unfolding.
The complex (and seemingly contradictory) interrelation of nationalism and universalism facilitated by the accusatorial/inquisitorial framework is also evident in the ways that nineteenth-century jurists built this framework. As Halpérin notes, these “comparative pioneers” engaged extensively with one another, developing shared ideas and categories, even while deploying these toward nationalist ends. If we are to explain this phenomenon, important weight must be given to the historicist nature of their analysis. The tension between the universal and the national was inherent in the model of history that these men adopted in that the embrace of certain purportedly universal historical laws made it possible to compare different nations according to their stage of evolutionary development.
If this effort to meld nationalism and universalism seems to us today to be at best muddleheaded, or at worst a fig leaf for imperialist ambitions, it is worth considering how much has changed. Prevalent functionalist approaches to comparative law presume that societies (at least those at a roughly similar developmental stage) have common needs to which the law must respond. In this respect, functionalism would appear to stand in for discredited stadial accounts of history. And to the extent that the identified social needs happen to be consistent with the interests of the powerful, the imperialist valence persists. It is perhaps in this context that we should consider Langer’s important observation that a key part of the enduring appeal of the accusatorial/inquisitorial framework today is that accusatorialism has inspired significant procedural and judicial reforms, including especially in Latin America. A substantial literature debates the reasons for the Latin American embrace of accusatorial procedure, with many suggesting that the ostensibly universal category of accusatorialism has been deployed in service of a soft imperialism, enabling interests in the Global North to pursue their own agenda in the Global South. Langer himself has done important work countering this perspective and highlighting the role played by Latin American lawyers and activists in pressing for accusatorial reforms. (Langer, “Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery,” American Journal of Comparative Law 55 (2007): 617-76.) But whatever the underlying motivations behind the reforms, they have, as Langer notes, proven disappointing to many, failing to deliver the hoped-for political, efficiency, and other benefits. While there are many reasons for such disappointment, one factor is likely the mismatch between ostensibly universal categories and more particular, national interests and agendas.
This mismatch between the national and the universal is also evident in Halpérin’s powerful observation that, strangely, Ortolan and Hélie did not focus attention on what would seem today to be key distinguishing features of French criminal procedure—namely, the creation of the public prosecutor and the role assigned to the private complainant. This choice to ignore the law in action cannot be attributed to these scholars’ distance from legal practice, since both practiced law for years, and Hélie became a judge, rather than an academic. Were they so in thrall to German legal scholarship and a universalizing conception of legal-historical development that they were unable to depart significantly from Mittermaier’s model? Perhaps—but before reaching this conclusion, I would like to know more than I currently do about contemporary French debates regarding the public prosecutor and the role assigned private complainants. It might well be the case, in other words, that Ortolan and Hélie’s silence was in itself a statement about the national legal and political context.
Rabban situates my account of the emergence of the comparative accusatorial/inquisitorial framework in France against his own fascinating research into how nineteenth-century American jurists viewed the relationship between law and history. He asks about possible parallels between French and American approaches to legal history in this period, as well as the extent to which French scholars engaged with “colleagues abroad.” A full response to these questions would require a book comparable to Rabban’s own, which to my knowledge, has yet to be written. (Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (Cambridge: Cambridge University Press, 2012.) Halpérin and his co-author, Frédéric Audren, touch at times on nineteenth-century French jurists’ uses of history in La culture juridique française: Entre mythes et réalités, XIXe-XXe siècles (Paris: CNRS Éditions, 2013). And Donald R. Kelley’s Historians and the Law in Postrevolutionary France (Princeton: Princeton University Press, 1994) explores the interrelation of nineteenth-century French lawyers and historians. But neither of these excellent books provides a systematic account of how French jurists in the period understood historical change. That said, my sense is that there were in fact many parallels between the ways that nineteenth-century American and French lawyers conceived of law’s history. Like their American counterparts, French jurists were profoundly influenced by the German Historical School and viewed themselves as engaged in a broader transnational conversation. The French journal Thémis, established in 1819, was modeled on Savigny’s Zeitschrift and served as a vehicle for importing German legal-historical scholarship. Moreover, it covered the latest scholarly developments across Europe, including those in England.
Borrowing from Germany, French legal scholars, like American ones, studied their nation’s native Germanic inheritance, looking to medieval traditions of local communal governance as the origin point for modern liberty. In so doing, they too sometimes used the language of “Teutonic germs.” As Ortolan himself observes, “[t]he establishment of communes was the germ [germe] of medieval constitutions,” and it is “a great and curious spectacle to see these germs . . . spread, develop, grow and cover the face of Europe with free cities . . .” (Ortolan, Cours de Legislation pénale comparée: Introduction historique, histoire du droit criminel en europe depuis le XVIIIe siècle jusqu’à ce jour; analyses du cours de 1839–40 (G. Narjot ed., Paris, Joubert 1841), 64.) That said, many French scholars, like their German contemporaries—and unlike American ones—also devoted themselves extensively to the study of Roman law and its enduring influence. Moreover, aspects of the Germanist/Romanist debate that shaped so much German scholarship were also evident in the contemporary French literature.
One of the most important contributions of Rabban’s research is to show that nineteenth-century American jurists were considerably more varied and nuanced in their historical study of the law than we have assumed. He demonstrates that, while many jurists adopted a progressive, evolutionary view of legal change, some resisted the notion that legal progress culminates in “perfection” and insisted instead on historical “contingency.” As noted, the extent to which this is true of nineteenth-century French jurists has yet to be determined in any comprehensive way. But here too, I suspect that the parallels hold. For example, as Kelley details, the Germanist jurist, Eugène Lerminier was a vehement critic of Savigny’s historicism, urging that it encouraged a dangerous conservativism by falsely assuming that the law necessarily evolves toward perfection. (Kelley, 115.) Ultimately, however, as with the comparative questions raised by Halpérin and Langer concerning the accusatorial/inquisitorial divide, so too Rabban’s comparative questions concerning nineteenth-century transnational legal-historical thought call for considerably more research. I eagerly await further interventions in these important domains.
