Jean-Louis Halpérin

The Concept of Law: A Western Transplant?

The argument of this Article is based on positivist postulates (principally from Hart) defining law as the union of primary rules (social norms) and secondary rules (of recognition, change and adjudication). Taking the presence of rules of change to be decisive for the appearance of legal orders, the author first looks for their origins in the Western world. Romans were the first, in the Western world, to develop a legal system with a clear rule of change, the possibility of a new statute abrogating an old one. This Western concept of law has been exported by Western colonialism to America, Asia (especially India), and Africa, transforming social (and customary) rules into laws thanks to the use of a Roman frame. While Jewish, Chinese and Islamic legal systems also fit this definition, their rules of change were not identical to the Roman ones (because of their stress on interpretation rather than direct change). However, these other systems were not as successful as Roman law, which was linked historically with imperialism and colonialism.

The Circulation of Legal Phenomena: Past Lessons and Recent Issues

Specialists in comparative law are studying for a long time what is called ‘legal transplants’, what means the circulation of legal phenomena from one space to another. The debates remain open about the characters of these circulations, especially in a globalized world. This contribution proposes to distinguish the transfer of legal statements (1), the diffusion of legal ideas (2) and the worldwide acculturation of legal theories (3) in order to understand what are the features and the range of these circulations. It is the matter of recognizing the possibility of these circulations, their strong impacts during the nineteenth and the twentieth centuries, their transformations and their limits in the today world.

Codification and Law Reporting: A Revolution Through Systematisation?

With the development of comprehensive codifications in civil law countries, since the eighteenth century, it seems easy to identify a legal revolution. However, one has to be rigorous in the distinction between consolidated laws and codified ones, the Napoleonic codification being the ideal-type of this second scheme. The French situation is also the one of a parallel development of a published and rationalized case law, which has accompanied the process of implementing the codification. For this reason, the opposition with common law countries has to be nuanced. In Great Britain and in the United States, the nineteenth century was also the time for consolidating and systematizing precedents. In common law countries, as in civil law countries, the reform of the legal profession was developed “from above” to adapt the legal field to this new configuration. In one or two generations, it was another legal revolution.

International or Global Law: An Unachieved Revolution?

This chapter is devoted to the issue of a purported triumph of international (or transnational) law that could have created, in the recent decades, a legal revolution minimising the role of domestic legal orders. This question cannot be separated from the historical perspective about what is “international law” (as a coherent and independent legal order) and at what time the first kind of international law has appeared. As a set of positive rules, international law has no far origins (in the Antiquity, Middle Ages and early Modern Times), but is the product of processes beginning during the nineteenth century and leading to partial achievements after 1945. After some attempts to measure the impact of international law, the approach concerning international lawyers and international fora shows that the international legal field has not replaced domestic legal orders.

Modern Constitutionalism: A Chain of Revolutions Always in Progress

The writing up of constitutions during the American and the French revolutions is a complex phenomenon when one considers their legal impact. At first glance, constitutions have quickly been considered as legal (and fundamental) norms in America, whereas they remain only political mechanisms in France. This chapter considers the early development of American constitutionalism and judicial review compared with the difficult (but non un-existent) process for implementing constitutional law in Europe (from France, then from Austria according the model of a Constitutional Court). The “constitutional” revolution can also be associated with the emergence of specialized jurists and, more recently, of a “human rights” forum. The constitutional revolution has thus two characters that are distinct from the previous revolutions: it has known different stages from the eighteenth century and various successes according the concerned countries.

Federative Law: A Fettered Revolution?

In order to determine if there has been a legal revolution in the European Union, this chapter proposes a comparison with two other “federative” processes, the ones of Switzerland and of the United States. Despite many differences between the three situations, the common aim for the development of these legal structures is the primacy of a supra-statal law associated with the action of a common jurisdiction. This kind of legal revolution has been fettered in the past as well in the United States (from the eighteenth century to the Civil War) as in Switzerland (during the nineteenth century). The obstacles are even more important for the European Union at the beginning of the twenty-first century, the European organs having to take account of the traditional force of old States. The situation of European lawyers (some of them being more and more specialized in European law and independent from States) and of the network constituted by European courts makes this revolution difficult to be overruled.

What is Revolutionary in the Legal Construction of Modern States

If one agrees to see the beginning of Modern States in Europe during the sixteenth and the seventeenth centuries, the issue of the legal criteria for identifying such a revolution is more controversial. What are the differences between a city, an Empire, a decentralized pre-modern State and a modern State? This chapter focuses on the sea change in the use of legal sources (notably the growth of statutory norms) and on the rulers’ policy for reforming legal professions. The origins of the so-called “hierarchy of norms” are also questioned, in the context of great European kingdoms and colonial powers. The conclusion is in favour of these criteria for identifying a true legal revolution achieved in Modern States since the seventeenth century, first in Europe, then (until today) in the whole of the world.

Law Codification in East Asia Today: Japanese and Indian Examples

From a comparative point of view, the Asiatic continent seems, prima facie, to illustrate the decline of the innovative force of the law codification process: contrary to Europe or to America (Quebec, Brazil which have adopted new civil codes in 1991–1994 and 2002–2003, Argentina where drafts of Civil code have been recently elaborated and discussed, with a vote of the Congress expected for March, 2013), Asia does not offer many recent examples of new promulgated codes, as if this “global way” of changing law (and the perception of law among peoples) were now an exhausted technique, belonging to a remote past, the one of massive legal transplants from the Western World, that would be finished in a over-dynamic East Asia. However, there are some exceptions: the new Cambodian Code of Civil Procedure (2006–2007) and Civil Code (promulgated on 2007, in force since December 2011), which are also interesting examples of a legal cooperation between Cambodia and Japan; the Vietnam Civil Code promulgated in 1995 and amended in 2005 whose writing has been made with the advice of a French expert, the judge Pierre Bezard. Enlarging the comparison from a strict definition of East Asia to a larger area, including Southern East Asia, I would like to focus on some questions relating to old and new codes, to reform and revision processes, such questions being common to Eastern and Western legal systems.

Lex posterior derogat priori, lex specialis derogat generali Jalons pour une histoire des conflits de normes centrée sur ces deux solutions concurrentes

Lex posterior derogat priori, lex specialis derogat generali, Guidelines for a history of conflicting norms with a focus on these two competing solutions. – The two Latin maxims, Lex posterior derogat priori and Lex specialis derogat generali, sometimes presented as evidentially logical, have a complex history and a delicate relationship (whereas the latter can contradict the former). They take their origins in the Digest, but in rather paradoxical forms: Lex posterior is coming from a text written in Greek by Modestinus, lex generalis is induced from a general regula exposed by Papinianus. How have these two ways of resolving the problem of conflicting norms emerged in Roman law? How have they been quoted and explained in canon and in civil law during the Middle Ages? How have they been used by sovereigns and in which scope do they serve the foundations of modern States? This paper tries to answer these questions by analyzing texts where the two maxims are mentioned and proposes to treat this subject as a significant chapter of the history of the sources of law.

Montesquieu : lectures croisées en histoire et théorie du droit

Les historiens du droit peuvent participer a l’inepuisable relecture des œuvres de Montesquieu en montrant a la fois l’actualite de ses textes dans le double contexte de l’histoire des idees juridiques et des institutions dans la France du xviiie siecle et l’usage qui en a ete fait (ou peut en etre fait) dans des situations historiques plus contemporaines (de la Revolution americaine jusqu’aux questions liees a l’actuelle mondialisation du droit). Pour « recontextualiser » Montesquieu dans son environnement intellectuel et politique (I), nous avons fait le choix de deux questions : Montesquieu etait-il un theoricien du droit naturel ou un analyste des seules lois positives ? Comment pouvait-il concilier la presentation d’une puissance de juger « invisible et nulle » avec le modele anglais et avec ses prejuges d’ancien parlementaire francais ? Pour « rebondir » sur des lectures plus contemporaines (II), nous nous sommes tourne vers l’interpretation donnee par les Federalist Papers a la notion de « pouvoir judiciaire » et vers les remarques etonnantes de Montesquieu sur l’inceste considerees a la lumiere des debats sur les « universaux » du droit.