The freedman Gregorio Cosme Osorio’s extant letters from Madrid in 1795 are the focus of Chapter 6. They provide a direct perspective of a cobrero leader’s legal culture, his views on the case, and his activities as liaison between Madrid and El Cobre (including an alleged meeting with the king). Cosme’s missives from the royal court, which high colonial officials considered subversive, critiqued politics of the law in the colony and kept the cobreros abreast of the imperial edicts issued in Madrid in their favor which colonial authorities ignored. His liaison role during fifteen years was crucial to keep the case alive in the royal court.

Chapter 1 introduces students to the various approaches used to pursue comparative legal studies. It especially presents the orthodox “legal families“ approach to macro-comparative law. The chapter then considers several critiques of that tradition. H. Patrick Glenn challenges the concept of “legal families“ and suggests a “legal traditions” framework to replace it. The chapter then presents the social-contextual approach to comparative law as promoted by Legrand. Finally, the chapter urges students to recognize the ethical implications of comparative law through Frankenberg’s concepts of “distancing” and “differencing.”

The debate about legal convergence and divergence has played a prominent role in many areas of law including company law. Although the rules of company law are largely country-specific, certain good governance principles are recognised throughout the EU and many modern jurisdictions around the globe. One of these norms is the equal treatment of shareholders in corporate governance. Shareholder rights usually develop mainly as a means of protection granted to shareholders against management (or controlling shareholders). In terms of comparative law, dissimilarities in shareholder protection may be because of differences in substantive law, but in the case of Turkey variations in the patterns of legal culture and institutional development are seen as the main sources of divergence.

The misconception of culture is responsible for many difficulties in comparative law. This chapter suggests that a general concept of culture is inevitably distorting or empty, and that any meaningful talk of culture can only take place upon microscopic elements. Cultural elements are different in their relevance to the constitution of the problem of life and accordingly the problem of law; the enquiries into the cultural impacts upon law must be based upon the relevance of a particular element to a particular law. The insider’s view to apprehend culture is a fallacy; the outsider’s view is the only way possible to know a culture. Taking culture as a purely subjective construction is another common misconception while the objectivity of cultural elements is essential for the proper understanding of culture and the methodological improvement of comparative law.

This chapter examines the imaginative choices, and the implications of these choices, that John Manningham made as he created a record of his daily life, what we now call his Diary, relating these choices to the urban metaphysical style that I have traced in the previous chapters. Manninghams collection of notes as a whole does imply that he rejected a more pragmatic or moralistic approach to his recordkeeping, a rejection in line with Nashes turn away from humanist utility and towards contention and wit. In addition, once we view Manningham’s diary as a reordering of experience, we can identify within the selection and sequence of entries a particular orientation to the world, a processing of urban reality that aligns with the recreation of reality in the writings of his Inns peers. Not only might we see a rejection of humanist models of reading and writing in the diary, we can also clearly see Manningham embracing a skeptical, witty, and contentious style of being in the world. It is a style that is highly performative, just as Nashe’s prose and the Inns satires are; it is also a style that signals an awareness of the heterogeneity and fragmentary nature of urban experience.

Legal pluralism studies of Asian law and society are of three types. Some law and society scholars rely on the concept of legal pluralism to theorize official law in relation to various other legal orders operating in the same space. Legal pluralism provides them with a means to describe each of the multiple systems of law and to consider the ways in which they interact with one another. Other law and society scholars, adopting a more state-centric perspective, have studied how different Asian governments address the plurality of legal orders familiar to different population groups or different sectors of social life—such as the family, land, and property; labor and employment; or religious affairs. They show how Asian states—colonial and postcolonial—use legal pluralism to legitimate and extend their power over Asia’s diverse peoples. For a third group of law and society scholars, legal pluralism provides a framework for their “bottom up” research on law in everyday life. They show how individuals pick and choose among various legal orders as they deal with disputes, family matters, economic and social exchanges, claims to land and water, and other matters.

Legal consciousness refers to the ways in which people think and act in relation to law, including situations in which they view law as relevant and useful and those in which they reject law or never consider it at all. Some of the earliest law and society research in Asia—in Japan, Korea, and Indonesia, for example—attempted to explore the phenomenon of legal consciousness at the national level. Typically, such research depicted Asians as law-averse and non-litigious, but subsequently those characterizations were challenged and revised by scholars who proposed more complex explanations for the infrequency of litigation in some Asian societies. The readings in this chapter follow the evolution in legal consciousness research, from efforts to identify national traits to studies that examine the interaction of globalization and customary practices to produce unique forms of consciousness within different social groupings. The readings also explore the ways in which official definitions of rights are refracted through the lens of legal consciousness. The chapter concludes with a look at recent law and society studies that take a less individualistic approach to rights and emphasize instead the relational dimensions of legal consciousness.

Chapter 8 concludes the book by reviewing its arguments and conclusions, identifying weaknesses in the methods used, and proposing ways in which these might be addressed and the research developed further, for example by involving participants in other countries. The chapter importantly notes that uncertainty and contestation remain marginal problems in the jus ad bellum, as in most areas of international law. In most cases, the requirements of international law governing resort to military force are clear and uncontested. There are many reasons to believe that the contemporary jus ad bellum has contributed to global peace and stability. This book’s examination of legal and factual uncertainty and extra-legal intuitions seeks to support and assist lawyers and states in their mission to uphold and apply this crucial area of international law, not to encourage lawyers or states to undermine or abandon it.

Legal unification is often said to be necessary for trans-border commerce: Europe is an optimal market, facilitated through the institution of the European Union. Alternatively, legal unification in Europe is linked to an idea of a European cultural identity. Behind these two justifications are two ideas about what Europe is. Can the same be said about Asia? In this chapter, Michaels connects discussions about an Asian identity with four concepts of Asia. The first concept is a European idea of Asia and Asian law, which defines a presumably homogeneous Asia on the basis of its level of difference from Europe. Of next three concepts, two of them explicitly invoke leadership of one country: China or Japan. Finally, the idea of Asian values attempts to avoid leadership by any one country in favour of a truly Asian identity. The three chapters cannot avoid the central problems of the European projection: they are all defined by their relation to the West. Michaels closes with an alternative concept of Asia “as method” to overcome these two shortcomings and may offer a more promising path towards an idea of Asian law.

The Prologue introduces the fundamental concepts of the book (antislavery, abolition, judicial forum), and Colombia’s ambiguous manumission law of 1821. Colombian leaders embraced a politics of antislavery by criticizing the Atlantic slave system and Spanish colonialism as a form of political slavery, but their efforts to speed the coming of a world with no slavery were lukewarm. They took the gradual emancipation approach, leaving most slaves in captivity, upholding the property rights of masters, and offering no citizenship to slaves and most former slaves. By contrast, some slaves and a few magistrates developed radical antislavery positions, calling for the unconditional end of slavery. However, antislavery and anti-Spanish politics had overlapping legal origins and tensions that emerged in the political exchanges and debates that transpired during litigation. In this judicial forum – a space of antislavery and abolition in a society with no freedom of the press or association – many slaves articulated their vision of a peaceful and complete end of slavery. They hoped to become law-abiding, God-fearing vassals of the king and, later on, citizens of the early republics.

This chapter argues that the relationship between tradition and change can be illuminated through a better understanding of how tradition is (re)produced. How do traditions emerge, how do appeals to tradition serve to justify decisions, and, in what ways does justifying a choice in terms of tradition exercises a constraint over the kind of decision that can be made? The first part of the chapter discusses Patrick Glenn's approach to these questions, as seen, for example, in his claim that tradition is 'massaged', always entails change, and cannot control its own boundaries. It then goes on to put his ideas to the test by examining a controversial Rabbinical innovation recorded in the Talmud; Hillel's introduction of the 'Prozbul' so as to secure loans that would otherwise have been cancelled each sabbatical year. A meta-analysis of how this institution has since been categorized by those within and outside the Talmudic tradition suggests that successful innovation depends on the ability of interpreters to convince the relevant audience(s) that it embodies the best efforts to continue the tradition. It concludes that anachronism may be the price we need to pay if fidelity to tradition is to be more than antiquarianism.

Chapter 2 examines questions of governance in colonial contexts. It considers how conceptions about governance of corporations bear similarities to approaches to colonial governance by colonial powers. The thin European staffing that is typical during colonialism, emphasis on reducing costs and covering colonial costs with local taxes, and focus on extraction draw attention to ways in which colonial corporate governance reflected decision-making and investment choices more appropriate for short-term corporate decision-making than long term decisions about entire societies that might impact millions of people. The internal construction of colonial governance and the often- problematic bifurcation between English law and customary law in British colonial contexts is also explored.

This chapter situates the study within the literature on proportionality and comparative law. Contrary to the dominant universalising rhetoric, I propose to take the differences in the application of proportionality seriously. To do so, I develop a comparative law approach that places these differences within a broader legal cultural context in which they make sense. At the same time, the approach proposed here does not deny the possibility for cross-system influence and convergence, especially in the context of European integration. The comparison of the local meanings of proportionality, I argue, gives valuable information about the legal culture in which proportionality operates and about the mindset of the lawyers who use it.