This chapter examines the history of the Islamic legal tradition. The notion of written law was firmly implanted in the world by the time of Muhammad. However, written law had not entirely displaced chthonic law in Arabia, so the law to which many of the people of Muhammad had been loyal was a particular variant of that cosmos-loyal ethic that simply tells people of their way to live. Islamic law represents a highly developed and complex legal tradition. There is an ongoing necessity of justification of Muhammad's revelation as source of law, given the weight of social practice it must support.
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This chapter examines the history of the Confucian legal tradition. The Confucian legal tradition is similar to that of the west (in its secularity) and to legal traditions which are religiously inspired (in its rejection in principle of formal structures and sanctions). However, it is precisely because of this combination that is also remains profoundly different from them. The Confucian legal tradition is law which is secular in origin, yet greatly limited, in its formal version, in its reach and effect.
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This chapter examines the history of the Hindu legal tradition. Vedic law lived in close association with many, particular chthonic traditions, never purporting to abrogate them, and the importance of local tradition is an ongoing theme in Hindu thought. People remained governed by their old law until such time as they came to see the new Vedic law more as their law than the old one. Neither law remained the same in this process, and people came to be identifiable as Hindu as they came to subscribe to modified Vedic law. If they did not, they remained a distinct community.
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J. E. Penner and E. Melissaris
This chapter provides an overview of the four parts of the book. Part I covers the theories of the nature of law. Part II considers particular philosophical issues in law. Part III explores the intellectual foundations of the liberal social contract tradition in political and legal philosophy. Part IV turns to radically different ways of viewing society, politics, the state, and law.
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The legal traditions of the world contain large amounts of information relating to human conduct as well as a large amount of theory, or at least second-order information, about themselves and the relations which each of them have with other traditions. This chapter discusses the multiplicity of traditions, normativity in legal traditions, and sustaining diversity in law.
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This chapter examines the history of the common law tradition. The best explanation for the existence of a common law tradition is the historical accident, or chance, of the military conquest of England by the Normans. As a result of this historical accident, the first discernible state came into being in Europe, with defined boundaries and a central government.
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This chapter examines the history of the civil law tradition. The role of civil law first expanded in Rome. From a time of very rigid and formalistic procedures in the early empire, with essentially only chthonic law to be applied, the civil law grew, both substantively and procedurally, until it became substantively adequate to deal with an entire range of societal problems. From the time of its rediscovery, Roman law continued to expand, from its established positions in universities and in central political authority.
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This chapter examines the history of the chthonic legal tradition. Chthonic law is inextricably interwoven with all the beliefs of chthonic and indigenous peoples and is inevitably, and profoundly, infused with all those other beliefs. Chthonic law cannot be understood without understanding other things. There is no separation of law and morals, no separation of law and anything else.
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This chapter examines the history of the talmudic legal tradition. Talmudic law is rooted in the word of God as revealed to Moses, now found in the first five books of the Hebrew Bible (constituting the Pentateuch — Genesis, Exodus, Leviticus, Numbers, and Deuteronomy). These first five books of what the Christian world knows as the Old Testament constitute the Torah.
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This chapter, which discusses the development of historical and anthropological jurisprudence, first identifies the characteristics that distinguish the Western legal tradition from other systems. It then discusses the German Romantic Movement, which found its most powerful spokesman in jurist, Friedrich Karl von Savigny; its foremost champion in England was Sir Henry Maine. Maine exercised a significant influence over what has come to be called anthropological jurisprudence or legal anthropology, an approach to law that developed in the twentieth century and which was recognized as essential to an understanding of law by the American realist judge Oliver Wendell Holmes Jr.
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The term European ius commune (in its historical sense) signifies that, from the fourteenth to the start of the sixteenth centuries, most of Europe shared a common legal tradition. Many local and regional variations on the law existed, but the terminology, concepts, and structure provided by elements of Roman law provided a common framework. This chapter traces how Justinian’s codification came to influence the modern world. The influence of Roman law in the modern world is immense: it constitutes the historical and conceptual basis of many legal systems throughout the world. Its impact has not been confined to those countries in Western Europe that historically formed part of the Roman Empire. Wherever Europeans went, they normally took their law (usually based to some extent on the principles of Roman law) with them.
Book
This book offers a major new means of conceptualizing law and legal relations across the world. National laws are placed in the broader context of major legal traditions, those of chthonic (or indigenous) law, talmudic law, civil law, Islamic law, common law, Hindu law, and Confucian law. Each tradition is examined in terms of its institutions and substantive law, its founding concepts and methods, its attitude towards the concept of change, and its teaching on relations with other traditions and peoples. Legal traditions are explained in terms of multivalent and non-conflictual forms of logic and thought.
