Heikki Pihlajamäki, ‘Private Law Codification, Modernization and Nationalism: A View from Critical Legal History’

Abstract:
Private law codification is not as indispensable to continental legal culture as standard legal histories would have us believe. Law was modernizing roughly at the same time, and in the same way, in Western countries that did not codify private law, including the common law world and Scandinavia. This suggests a connection between the legal history of regions with and without codification; in this exercise in critical legal history, I argue that the engine driving the modernization of Western law has been legal scholarship, not legislators and their codes. Moreover, the idea of a European civil code may struggle today at least partly because the civil code never had the monopoly over European legal development standard legal histories have assigned to it. The article thus illustrates the relationship between comparative legal history and critical legal history; critical legal history may not be comparative by definition, but it almost always is comparative in fact, at least in the broad sense of comparative legal history exemplified here.

Heikki Pihlajamäki, Private Law Codification, Modernization and Nationalism: A View from Critical Legal History. Critical Analysis of Law Vol 2, No 1 (2015).

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