Adolfo Giuliani

The connection between law and music is intuitive, but difficult to explain.

The argument offered by this paper is that music supplies a set of images that law, given its limited lexicon, lacks. Music, in this view, is a cognitive metaphor which allows legal science to use one conceptual domain (music) to reason about another (law).

This was the case in 16th century discussions of judicial equity in France. The distrust of judicial discretion pushed to the currency of powerful images of decision-making expressed in musical-mathematical terms.

This chapter shows how Harold J. Berman’s idea of a Western legal tradition (WLT) arises from his 1950 book Justice in Russia and that the idea is a mirror-image of another projection: the legal tradition of Soviet Russia. The WLT grew from another legacy received from the Cold War era: human rights history.

The chapter shows the philosophical premise upon which his historical project is based, to be found in his university mentor Eugen Rosenstock-Huessy. It demonstrates that the question of human rights history is the main building block of the WLT and the idea of the ‘Eastern tradition’ without human rights served as a convenient context. Berman’s Justice in Russia: An Interpretation of Soviet Law was written to offer a key to make sense of Soviet Russia. During the Iron Curtain era, Soviet Russia was beyond the reach of Westerners: mysterious, distant as an ancient civilisation, and felt to be in dramatic opposition to the West.

The full text is available from SSRN: https://ssrn.com/abstract=3634620

Giuliani, A. (2019). "What is comparative legal history? Legal historiography and the revolt against formalism, 1930–60",  in A Masferrer, KÅ Modéer, and O Moréteau (eds), Comparative legal history (Research Handbooks in Comparative Law series, E. Elgar Publishing, Cheltenham, UK, 2019), pp. 30-77

What is comparative legal history? This essay argues that to understand this new field of legal-historical studies, we need first to clarify how legal historiography has changed over time. To this purpose, this essay begins from two main ideas.

First, the writing of legal history is deeply intertwined with an image of law that tells us what law is, how it is created and by whom. This is, in fact, the premise for writing legal history, as it determines the object of investigation. Second, the decades between 1930 and 1960 saw a profound turn in European legal science. Some legal scholars challenged the legacy received from the 19th century and launched an attack on the ‘formalism’ at the heart of its intellectual framework.

Those path-breaking insights gave life to a wave of works self-styled as comparative legal history published in the period 1930–60. At their heart were some of the challenging ideas that have continued to fuel original legal-historical research in the last few decades (e.g. to place law in context, to think outside the doctrinal box, the dislike of abstract theorising) and which today are shared as an obvious truth. They are the fruit of the antiformalist turn of between1930 and 1960.

The full text is available from SSRN: https://ssrn.com/abstract=2849438

What is "Bartolism"? The historical analysis offered by this paper shows how this term originated in the early 19th-century legal science in an atmosphere radically hostile to the Ancient Régime that saw the establishment of legal history as an academic discipline unidirectionally focused on the rise of the nation state and codifications.

The period 1580-1620 saw the publication of a wave of treatises on judicial proof and presumption. They contributed not only to a deep reformulation of judicial fact-finding but their influence extended to the formation of some high-level legal theory ideas.

Those works were the carriers of a new vision of judicial procedure, which has come to be embodied in a number of fundamental ideas, such as (i) the separation between law and fact, (ii) the judge’s subjection to principles of reasoning, and (iii) the centrality of will as an autonomous source of contractual obligation.

The aim of this essay is to sketch the contribution made by such treatises to the genesis of those three ideas.

The full text is available at
https://ssrn.com/abstract=2781229

Why did moral theology become such an important source of legal principles in the late 16th century? This paper argues that to begin to understand the pervasive moral transformation of those decades we need first to consider the ways by which those jurists confidently rewrote the boundaries between canon law, civil law and moral theology.

This paper looks at the three jurists — a civilian, a canonist and a theologian — who shared the intellectual atmosphere of the university of Perugia between 16th and 17th century: Giovan Paolo Lancellotti, Paolo Comitoli and Benincasio Benincasa.

Note: The downloadable document is in Italian.

The full-text is available at
https://ssrn.com/abstract=2845869