The Concept of Law: A Western Transplant?
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Jean-Louis Halpérin
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.
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Article
- Introduction
- The Concept of Law: A Western Transplant?
- Transplantation and Mutation in Anglo-American Trust Law
- Transplants and Timing: Passages in the Creation of an Anglo-American Law of Slavery
- Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication
- The Invention of Legal Primitivism
- Race, Marriage, and Sovereignty in the New World Order
- Constitutional Transplants
- Some Reflections on the Transplantation of British Company Law in Post-Ottoman Palestine
- Jefferson Goes East: The American Origins of the Israeli Declaration of Independence
- Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling
- American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?
- Foreign Law Between "Grand Hazard" and Great Irritation: The Bulgarian Experience After 1878
- Legal Transplants and the Frontiers of Legal Knowledge
- Western Legal Imperialism: Thinking About the Deep Historical Roots
Articles in the same Issue
- Article
- Introduction
- The Concept of Law: A Western Transplant?
- Transplantation and Mutation in Anglo-American Trust Law
- Transplants and Timing: Passages in the Creation of an Anglo-American Law of Slavery
- Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication
- The Invention of Legal Primitivism
- Race, Marriage, and Sovereignty in the New World Order
- Constitutional Transplants
- Some Reflections on the Transplantation of British Company Law in Post-Ottoman Palestine
- Jefferson Goes East: The American Origins of the Israeli Declaration of Independence
- Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling
- American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?
- Foreign Law Between "Grand Hazard" and Great Irritation: The Bulgarian Experience After 1878
- Legal Transplants and the Frontiers of Legal Knowledge
- Western Legal Imperialism: Thinking About the Deep Historical Roots
