Legal theory in historical and comparative perspective

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium, the third paper is being delivered Dr Seán Patrick Donlan (UL | Comparative Law Blog | ESCLH | ISCL | Juris Diversitas) on “The drunkenness of things being various”: legal theory in historical and comparative perspective.

The title quote is from “Snow” by Louis McNeice, and the key word is “various”. His background is a jurist from a mixed jurisdiction working with the comparative method, and his text is was replete with variety, in his sources, in his language, and in his theoretical perspective. Donlon began with the assertion that anglophone legal theory frequently lacks historical and comparative perspective, and his paper represents one strand of theory providing that perspective. He explores the historical ‘hybridity’ (rather than ‘pluralism’) and ‘diffusion’ of Western law, that is, the mixtures and movements of law and non-state norms. His argument is that the historical and comparative fact of hybridity – the diverse instantiation of law historically and, more often, comparatively – forces a major re-evaluation of the goals of legal theory. He began with a tour de theatre of comparative legal history and comparative modern legal systems, and moved to an analysis of the theoretical and normative underpinnings of this diversity. He looked at metaphors provided by Watson (transplant), Örücü (blogged here) (transmigration), Monateri (contamination), Garziadei (reception) Teubner (irritant), and Twining (diffusion). From his conclusion:

The observation that both past and present laws are hybrids has profound implications. Most obviously, it undermines the conjoined ideas of legal nationalism, positivism, and monism spawned by nineteenth-century shifts in Western social and intellectual history. The ‘state’ has been historically, and in much of the world remains, only the most obvious and formalised creator of norms. It had, and increasing has, competitors. Both legal and social norms have composite origins and move in complex channels. The dissection of plural and dynamic traditions into discrete, closed legal families or systems is undermined. The Western past may tell us much about the global present. The historical and comparative fact of hybridity also forces a major re-evaluation of the goals of legal theory, though there is much to do to understand the mixtures and movements of our modern legalities. Such an understanding will prepare us for the new – and old – challenges ahead.