Cultures of judgement
Entangled judicial practice in 19th century Germany, France and Japan
Courts follow certain rules in their decision-making. Most of these rules are not based on written law, but rather on informal norms. Judges learn how to deal with cases and how to produce decisions by imitation and repetition during their practical training rather than by reading treaties on legal methodology. These informal norms become part of their habitus—more an art (in the Durkheimian sense) than strict methodological rules. To what extent does the law itself shape these norms? To what extent are they the result of tradition and culture?
The research project approaches this question by observing what happens to these norms when law is translated into a different cultural context. For this, it will focus on three countries, whose legal histories were highly entangled in the late 19th century: Germany, France and Japan. All three countries faced the challenges of modernity and initiated reforms in order to shape a legal practice that would meet the requirements of the era. However, while Germany and France only initiated gradual reforms, for Japan modernity meant a radical break with the former legal order. Forced to open the ports in 1853 and subsequently to sign the so-called ‘unequal treaties’ with the Western powers, Japan decided to rebuild its legal system strictly on the model of European law. Within a period of approximately three decades, French and German legal thinking became more and more amalgamized in the new Japanese legal order, and gradually the country was emancipated from its European consultants.
This constellation raises some interesting questions. On the one hand, there are the European actors and their legal cultures: French and German judgements differ considerably in their style and structure. Does the underlying legal practice—shaped by education, recruiting and on-the-job-training—differ to an equal extent? On the other hand, there is the Japanese context: how did Japanese jurists envision the French and German legal practices, respectively? How did they perceive the underlying informal norms, and how did they translate them to their context? Of what importance was the adoption of these informal norms for creating a well-functioning legal system?
At a methodological level, the project aims at developing a practice-based approach to the history of legal methodology, which has up till now mostly been discussed in terms of mere intellectual history. At the same time, it examines the possibilities of writing a comparative legal history of the three countries that pays carefully attention to the fact that their developments were highly entangled. Recent debates in cultural and translation studies will be taken up, and the changes in the patterns of thinking, self-perceptions and semantics, emerging out of the encounter with the other culture, will be analysed. In doing so, the project will make visible not just how, but also to what extent the transformation of institutional conditions (legal culture) and the transformation of patterns of practising law (methods) were interdependent.