The old law was very popular in Victorian times. His attribution of the continuous, impersonal laws of nature to legal development corresponded well to the great social and technological changes undertaken by Britain. [1] Although Maine`s work was probably completed before the release of The Origin of Species,[7] it corresponded to the fashion of Darwinian thought. Despite its influence, ancient law was criticized soon after its publication for the inaccuracy of its historical material and anthropological commentaries. [2] The legal and economic movement has been treated by some scholars as a continuation of earlier theories of rightward development. [2] Developed in the mid-20th century, legal and economic theorists attempt to apply methods of economic analysis to law. [32] Elliott argues that the legal and economic movement claims to have solved the mystery of why some legal rules survive and develop, while others are rejected by classical economics. For example, Clark used “cost reduction” to explain the strength behind the legal evolution of the law. [33] Early influential jurists and economists to pursue this approach include Richard Posner,[34] Paul Rubin,[35] and George L. Priest. [36] This year marks the 150th anniversary of the founding of West Publishing Company, the predecessor of Thomson Reuters Legal. The mission that this company began so long ago is alive and well at Thomson Reuters today. What began as innovations in legal analysis methods and publication ingenuity is now complemented by significant investments in innovative computer technology.
In Canada, therefore, the coexistence of two legal traditions at the national level is characterized in two ways: sometimes they influence each other, sometimes they interact. The dominant theoretician of the German historical school, who developed an approach to legal development, was Friedrich Karl von Savigny. Savigny combines Montesquieu`s theory of social mind; Edmund Burke`s theory of political conservatism; Herder`s concept of the nation as a cultural entity, individualized by its language and literature; and a historical approach. [18] The result was a theory that linked the development of law to the particular character of a nation at a given time. Savigny argued that “in the earliest times to which authentic history extends, the law has already acquired a fixed character proper to the people, such as its language, customs and constitution.” [19] His famous pamphlet “At the Call of Our Time for Legislation and Jurisprudence” used an organic metaphor to suggest that law grows and withers cyclically with the growth and decadence of society, using Rome law as a paradigm. Savigny`s theory also served a political purpose by opposing attempts at legal codification and giving supreme authority to jurists who would be responsible for the development of the legal system. [20] [21] He also indicated that there was a development in legislative practice. First, companies use legal fiction to obfuscate legislation. They then move on to a wide margin of discretion in the form of justice and eventually reach the modern period, explicit legislation in the form of legislation.
Maine also adopted a theory of “progressive development,” which assumed that contemporary “noble” or “progressive” nations were approaching the apotheosis of Roman law jurisprudence. To demonstrate this, he pursued a comparative historical approach that focused mainly on Indo-European comparisons, coupled with a geological scientific metaphor: the Roman legal system is the oldest legal system in the world, except for part of the religious legal system. It is the basis of the civil legal system and of the civilization and cultural development of continental Europe. Later, it developed into the customary law of Europe, which flourished with the initiation of European universities with the Renaissance and the modern legal reform of the civil legal system, it was expanded worldwide due to military-strategic relations, colonization and mutual friendship with different countries of the world. Recently, almost all continental European countries, with the exception of the United Kingdom, are members of the European Union. It is a flourishing civil law system from the point of view of supranational and international law. Nevertheless, France is the homeland of the civil law system. Even Japan received a civil legal system in the Meiji period. Later, American scholars were influenced by Maine`s evolutionary view and applied it to the doctrinal development of law. [2] A notable early example is John Henry Wigmore, who proposed a “global model of legal evolution.” [8] According to Wigmore, Maine and other earlier authors were wrong to assume that societies progressed mechanically through the same stages. Instead, legal evolution was more akin to the movement of the planets, with various social and political forces creating temporary tensions and balances.
Holmes was followed by Corbin, who took a similar view of legal development based on survival of the fittest. [30] Legal development theories use a wide range of methodological instruments. The German historical school was characterized by the use of strict historical methodology, which paid great attention to primary sources and manuscripts. Similarly, anthropological studies are such as the surveys of Native Americans that evolutionary theorists use to infer the evolution of rules from primitive societies to modern market societies. The evolutionary theorist could also rely on universal moral laws or general sociological assumptions to explain a natural tendency in legal development. A recurring theme is the frequent use of scientific metaphors. Maine drew on scientific theories of geology and perhaps Darwinism in his work “Ancient Law,”[7] while John Henry Wigmore argued that legal evolution was more akin to the complex interaction between planets. [8] Similarly, legal memetics relies heavily on biology and, as a subset of memetics, relies on analogies between genes, evolutionary pressures, and the cultural transmission of ideas. [5] Other theories are rooted in sociobiology and attempt to generalize from supposedly universal characteristics of humanity or even living beings as a whole,[9] to explain the evolution of legal rules, institutions, and ideas. It could therefore be said that the development of coexisting legal systems is characterized by relationships of influence, integration and interaction. Let me talk briefly about influence and integration, and then interactions.
One of the most recent developments in legal development has been the application of memetics to law. Memetics provides a model for the cultural transmission of information using a genetic metaphor related to gene movement and alteration. As Simon Deakin notes, memetics assumes that “patterns of cultural evolution are closely analogous to those occurring in the natural world due to the interaction between genes, organisms, and environments.” [5] Deakin provides a theory of legal memetics based on three theses. First, legal changes are cumulative and successive changes can lead to “complex and multifunctional legal institutions.” .