Chapters Three concludes the study of this political and constitutional transition by exploring the most important legal reform of this time: the Indian Penal Code (1860). Codification represented a highly political exercise that established the terms of the relationship between the subject and sovereign in India, while also further entrenching ideas of colonial difference into the everyday administration of criminal justice. In this chapter, I first examine how the crisis of 1857 shaped the final design of the IPC. I then pay close attention to the figure of the judge and the institution of the jury. I argue that colonial ideas of caste, culture, race, and gender informed the distribution of discretionary authority across the code in ways that would prove consequential for the administration of colonial justice.

This chapter concerns an 1892 texbook on Egyptian criminal law by Muḥammad Ra’fat (d. ?), al-Durra al-Yatīma fi Arkān al-Jarīma. Exactly a decade before its publication, Egypt’s national (or native) legal system, as well as the political and moral philosophy underlying it, experienced important - both conspicuous and subtle - transformations whose character is much debated today. Ra’fat taught jurisprudence in the French section of the Khedival School of Law and his textbook was read by law students in late Ottoman (khedival) Egypt who were taught to understand the laws that govern their own society as commands of law (sing. qānūn) embodied in discrete articles of various applied legal codes. In this period, the Sharīʿa and the various rules of fiqh encompassed within the various Islamic schools of law (madhāhib) no longer explicitly governed Egypt’s criminal justice.

This chapter explores the Saudi judge and legal scholar Ibn Khunyan’s (b. 1376/1956) al-Kāshif fī Sharḥ Niẓām al-Murāfaʿāt al-Sharʿiyya al-Saʿūdī. This work focuses on the Saudi Code of Sharīʿa Procedure and follows the format of a European-style legal commentary, commenting on all 276 articles of the Code with reference to Islamic jurisprudence (fiqh). The section excerpted here discusses the first article of the Code of Sharīʿa Procedure (niẓām al-murāfaʿāt al-sharʿiyya), which stipulates the sources of the law applicable in Saudi courts. In addition to his explanation, Ibn Khunayn uses the commentary on the first article of the code as an opportunity to give an overview over the workings of the Saudi judiciary.

Chapter 4 is the first of three chapters laying a basic foundation in German law and politics. The chapter focuses on German legal history, including a deep history dating from the Roman encounters with the German barbarians up to the codification movement in the nineteenth century. The deep history shows how Germanic customary law, Roman Law, and Canon Law mixed to form modern German law. The chapter then shows how the process of development proceeded differently for private law (leading to the great codification of private law) and public law (with a tumultuous process of constitutionalization).

By way of conclusion, this chapter seeks to provide an overall assessment of what draws the Court and the Commission together, and of the impact that their “special relationship” has produced. In pulling the threads together, it explains that the interaction between the two organs has turned out differently to that which was originally envisaged, and that the great weight accorded by each of them to the work of the other has challenged the exclusive basis of State consent for international law’s validity. In a legal system that remains heavily dependent on unwritten rules of customary international law that require authoritative determination, the ultimate result has been that the Court and the Commission together assume a public order role not foreseen for either of them by their founders.

This chapter provides a detailed account of the impact that the Commission’s work has had in shaping the Court’s case-law. In addition to surveying and classifying all those instances in which the Court has to date been ready to refer expressly to the Commission’s output, the chapter demonstrates that reliance on the Commission’s work has often been more implicit. The question is then posed as to the basis for such recourse and the advantage afforded by it.

This chapter sets the scene for an appreciation of the contemporary relationship between the Court and the Commission by tracing its roots in the broader ideal of the pacific settlement of disputes and the rule of law in international affairs. Taking stock of developments dating back to the nineteenth century, it illustrates that the long-standing movements for an international court and for an international code were not unrelated, and that a certain vision did exist for the way in which their present institutional manifestations were to interact. That original vision, which has been lost in time, has thus far attracted less attention from commentators than its importance requires.

This introductory chapter explains the scope and purpose of the present study; the methodology pursued; and the structure of argument presented in subsequent chapters.

This chapter addresses in detail those rare occasions in which the Court and the Commission have adopted differing positions on the legal questions before them. In exploring both the potential for such disagreements and how they have been handled, the chapter shows that these instances attest to the strength of the inter-institutional relationship rather than undermine it. It also points out, however, that harmony comes at a cost.

This chapter addresses the relationship between the Court and the Commission beyond the printed page. By focusing attention on the movement of members from one institution to the other, and to the customary exchanges in Geneva between the members of both the UN organs, it reveals the extent and contribution of the more subtle ties that bind the Court and the Commission.

This chapter examines the unparalleled influence that the Court’s decisions have had on the Commission’s codification and progressive development of areas of the law under its consideration. It illustrates not only the great extent to which many of the Commission’s propositions have borrowed their authority from the pronouncements of the Court, but also the significant impact of the latter on the Commission’s choices concerning terminology and programme of work. The chapter further demonstrates the Commission’s conscious efforts to support the Court’s cause more broadly, including by encouraging the expansion of the Court’s jurisdiction and by promoting the doctrine of the sources of international law enshrined in its Statute.

This chapter frames the interpretive regime of modern international law as a historical contingency and aims to trace its genealogy through an analysis of the codification process that led to the current regime. The contingency of the rules of treaty interpretation is hardly recognized in the official discourse. Treated as a matter of common sense or trans-historical customary international law, the rules of treaty interpretation set forth in the Vienna Convention on the Law of Treaties have for instance been applied to the interpretation of treaties dating back to the nineteenth century and a whole range of treaties concluded in the twentieth century before the entry into force of the Vienna Convention. There is, however, ample evidence that the interpretive approach of the Vienna Convention has by no means prevailed throughout the history of international law. This chapter identifies a series of factors ranging from the intellectual history of the discipline of international law and the contingencies of the codification process, to the political circumstances of the Cold War era and the rise of permanent international tribunals that can account for the normative outcome of the Vienna Convention regime.

There can be little doubt that foreign law has influenced the development of South American private law and that this continues to be the case nowadays. However, this chapter shows that even from the earliest stages of their historical development, these states did not merely copy legal solutions created elsewhere when receiving foreign influences. We adopt a historical perspective and a broad notion of legal transplants to expose foreign law’s influence over the shaping of South American private law and critically evaluate some dominant narratives. First, we analyse the various ways they have influenced the drafters of South American Civil Codes throughout the different waves of codification, as well as the strategies adopted. Afterwards, the inquiry moves to some particular subjects of South American contract law and traces various key shifts that occurred when shaping a liberalisation which, during the nineteenth century, went further than the contemporary European legislation: for instance, taking inspiration from Bentham. After that, we show an inverse movement during the last decades of the twentieth century, directed towards developing a more social conception of contract law, inspired mostly by the German and Italian Civil Codes, though not followed by all jurisdictions. It is concluded that although different European legal systems have informed South American private law, the result is an original blend that is a product of both the creative character of the solutions and the inspiration taken from sources not usually adopted elsewhere in the field of legal transplants.

This chapter develops along three lines. First, following a historical approach, it describes the birth and development of the civil law tradition – from the rediscovery of Roman law in the High Middle Ages to the enactment of the German Civil Code. The second part presents two cases where the civil law model has been transplanted outside of Europe: Latin America and Japan. The final part offers a critical outlook on what the civil law tradition means today.

In all human societies, whether primitive or advanced, there have been legal norms rejecting the use of force. Norms have emerged from custom. Written law may have resulted from the codification and development of customary rules. This happened in Sweden around 1200 A.D. when a central power succeeded in wielding control and secured the unification and development of regional norms into common rules that became binding on all. Over time majority decisions became the established mode of rules adoption. In the international community, no central power has attained control and there has been no legislature adopting rules binding on all states. At Westphalia, in 1648, after the thirty years war, and in Vienna, in 1815, after the Napoleonic wars, the great powers victors felt a responsibility to design a peaceful order. However, it was only through the joint adoption of the Covenant of the League of Nations and the Charter of the UN that the states of the world agreed on binding themselves under legal norms prohibiting the use of interstate use of force.

It is often said that while the West recognized the rule of law, China did not. Many scholars believe that Chinese courts applied Confucian norms of conduct that were expressed, not as rules, but as moral principles. Chinese magistrates, however, decided cases according to known rules. These rules concerned, not standards of conduct, but with the punishment appropriate in various cases of wrongdoing. A great deal of energy and intellectual sophistication went into determining how severely one offense should be punished compared with another. This concern went back to the first, and anti-Confucian dynasty, the Qin. It explains why the rule of law in China differed from the rule of law in the West, and why, although it was compatible with Confucianism, it was not an expression of Confucian moral principles.

To better understand the actual role of the law within the PRC, Western observers employed, over time, different filters: Chinese traditions, Confucianism, observance of Soviet patterns, independent Marxist-Maoism, legal transplants from the West, and so forth. This paper aims to investigate the role played by some Soviet legal theories in the making of Chinese civil law. In particular, it recalls the tension between Formalism and Anti-formalism in the making of a Civil law with Chinese characteristics, from the times of encumbering Soviet models to the most recent era of (re)codification.