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Chapter

This chapter explores the possibility of a theory of tradition. It argues that that such as theory should not be thought of as a present, or perhaps even future, construction, but rather as a present device, or method, for thinking multiple traditions. It is a method for expanding knowledge and understanding, involving movement from within one tradition to within another, using all of the teaching of both (or all) of the traditions to facilitate this process. The discussions then turn to how traditions differ in their appreciation of time; tradition as information; the process of massaging a tradition; and tradition and corruption.

Chapter

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.

Chapter

This chapter begins with a discussion of the importance of tradition in understanding social identity. It then turns to concept of an epistemic community; tradition as a universalizing force; and the state and the new diasporas. Various forms of states rely on their own authority as paramount over all others and on the primacy of secular constitutional law and national forms of identity. However, they are also experiencing the same internal problems — the problems of the new diasporas.

Chapter

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.

Chapter

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.

Chapter

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.

Chapter

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.

Chapter

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.

Chapter

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.

Chapter

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.

Chapter

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.

Chapter

2. Constitutional Nature  

A Federation of States

This chapter discusses the nature of the European Union, presenting two opposing ‘federal’ traditions that have been competing with each other over the past 200 years. It begins by introducing the US federal tradition, which has historically understood a Union of States as a third form of political organization between international and national law. The chapter then moves to the newer German federal tradition. Insisting on the indivisibility of sovereignty, this second tradition ultimately led to the following conceptual distinction: a ‘Union of States’ is either an international organization—like the United Nations—or a nation State—like Germany or the United Kingdom. Finally, the chapter applies both theories to the European Union. From the perspective of the older US tradition, the European Union can be seen as a Federation of States. The German tradition, by contrast, reduces it to a (special) international organization. Which is the better theory here? If legal theories are meant to explain legal practice, one sees that the second theory—insisting on the idea of State sovereignty—runs into serious explanatory difficulties and should consequently be discarded. The European Union is indeed best understood as a ‘Federation of States’.

Chapter

2. Constitutional Nature  

A Federation of States

This chapter discusses the nature of the European Union, presenting two—opposing—‘federal’ traditions that have been competing with each other over the past 200 years. It begins by introducing the US federal tradition, which has historically understood a Union of States as a third form of political organization between international and national law. The chapter then moves to the newer German federal tradition. Insisting on the indivisibility of sovereignty, this second tradition ultimately led to the following conceptual distinction: a ‘Union of States’ is either an international organization—like the United Nations—or a nation State—like Germany or the United Kingdom. Finally, the chapter applies both theories to the European Union. From the perspective of the older US tradition, the European Union can be seen as a Federation of States. The German tradition, by contrast, reduces it to a (special) international organization. Which is the better theory here? If legal theories are meant to explain legal practice, one sees that the second theory—insisting on the idea of State sovereignty—runs into serious explanatory difficulties and should consequently be discarded. The European Union is indeed best understood as a ‘Federation of States’.

Chapter

The chapter outlines the development of modern police institutions around the world from the eighteenth century until the early twentieth. The discussion unfolds under five headings. The first is policing in Europe prior to the French Revolution and in the wake of the Napoleonic Empire. Next the evolution of the police under the common law in England up to the early nineteenth century is discussed. The third heading concerns the independent evolution of policing in the USA from independence to the First World War. European colonial and imperial police are the fourth consideration. Lastly, efforts to build modern police institutions in Iran, Japan, China, and Russia are considered. The chapter discusses a number of recognizable models for thinking about the politics of the police. It also considers contemporary concerns about the relationship between democratic and totalitarian policing, high and low policing, between police force and service.

Chapter

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.

Chapter

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.

Chapter

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 the 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.

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.

Chapter

Chapter 3 examines the principles relating to the presentation of evidence in court. It first discusses the adversarial tradition upon which the English trial process is based. It then distinguishes between the principles governing the questioning of one’s own witness (which occurs in examination-in-chief and re-examination) and those governing the questioning of another party’s witness (which occurs in cross-examination). It shows that, in criminal proceedings, provisions in the Criminal Justice Act 2003 now deal with two particular matters that may arise in the course of questioning one’s own witness—the extent to which refreshing memory is permitted, and the extent to which a previous consistent statement is admissible in evidence. The chapter also considers other issues, including the judicial approach to ‘no case to answer’ submissions in criminal trials, and the extent to which the claimant or prosecution may adduce further evidence after closing its case.

Chapter

Chapter 3 examines the principles relating to the presentation of evidence in court. It first discusses the adversarial tradition upon which the English trial process is based. It then distinguishes between the principles governing the questioning of one’s own witness (which occurs in examination-in-chief and re-examination) and those governing the questioning of another party’s witness (which occurs in cross-examination). It shows that, in criminal proceedings, provisions in the Criminal Justice Act 2003 now deal with two particular matters that may arise in the course of questioning one’s own witness—the extent to which refreshing memory is permitted, and the extent to which a previous consistent statement is admissible in evidence. The chapter also considers other issues, including the judicial approach to ‘no case to answer’ submissions in criminal trials, and the extent to which the claimant or prosecution may adduce further evidence after closing its case.