University:
University College London
Course:
LAWS0034 | Conflict of Laws
Academic year:

2024
Views:

154

Pages:

3
Author:

N. Betz

Speaking About Codifications: Some Remarks From The Perspective Of Global Legal History Presented by: Thomas Duve (Max Planck Institute for Legal History and Legal Theory) Overview 1. Introduction 2. Codification history from a global historical perspective 3. Some interpretations 4. Production of normative knowledge through cultural translation 5. Conclusion Introduction - Project of the Civil Code of the Great Qing Dynasty 1911 - "Complex game of continuity and discontinuity" - "Socialism with Chinese characteristics” - "Public order and good customs” - "Customs as a source of law” - "Catch-all principles...living, at least partially, a life of their own within the context of local legal mentality and local legal processes"  Timoteo, Marina (2018), China Codifies. The first book of the Civil Code between western Models to Chinese Characteristics, Opinion Juris in computation, 1:1, p. 23-44. Codification History From A Global Historical Perspective  „Hybridity" the standard case of legal history  19th and 20th century an age of globalization of law and legal thought Western legal imperialism  Codifications as a fruit of nationalization" and „denationalization" of law  Intense collection and translation of law books, codes and constitutions Bureau for Legal Reform 1902; Bureau for Constitutional Compilation 1905.  The Essence of European and American Politics; Paul Posener, Die Staatsverfassungen des Erdballs, etc.  Translation according to power structures, cultural preferences, language channels  Not only imposition, but also transformation according to the needs and the mindset Some Interpretations Legal transplants, legal transfer, circulation of ideas, reception: 1. Problem 1: essentialist drift 2. Problem 2: Eurocentric/western-centric drift; „modernization" theory (transplant) 3. Problem 3: underestimations of the creativity of the adaptation 4. Problem 4: no „concepts", lack of connection to professional expertise Source: Graziadei, Michele (2019), Comparative Law, Transplants, and receptions, in: The Oxford handbook of Comparative Law, ed. by Reimann/Zimmermann, 2nd ed (online) Production Of Normative Knowledge Through Cultural Translation  „Knowledge": discourses, principles, norms, rules and practices - a "cultural competence"  "Normative" knowledge: not only "state" law, but all social norms  "Translation": not only "lingual" translation, but "cultural" translation  Advantage 1: connect our analysis with professional expertise (translation studies) Advantage 2: avoids essentialism, because it puts ourselves in the position of those  who select from the huge offer of normative knowledge available  Advantage 3: obliges us take into consideration virtually all circumstances of the act of "cultural translation"  Advantage 4: raises awareness for translation being a performative practice  Advantage 5: helps us to understand "westernization" or modernization as a decantated or even distributed process of knowledge production Conclusion - Goal is to understand the "hidden dimension of latent ideas in the interpreters' legal