Comparative Legal History
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Comparative Legal History

Edited by Olivier Moréteau, Aniceto Masferrer and Kjell A. Modéer

The specially commissioned papers in this book lay a solid theoretical foundation for comparative legal history as a distinct academic discipline. While facilitating a much needed dialogue between comparatists and legal historians, this research handbook examines methodologies in this emerging field and reconsiders legal concepts and institutions like custom, civil procedure, and codification from a comparative legal history perspective.
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Chapter 7: Custom as a source of law in European and East Asian legal history

Marie Seong-Hak Kim

Abstract

This chapter sets forth the spread of law from a comparative perspective, with emphasis on customary law in Europe and East Asia. The concept of custom as a source of law played the role of important machinery in the process of adopting a new legal system from outside. The traditional view has been that custom was the universal origin of law, emerging spontaneously in social existence, but history has shown, from medieval France through Meiji Japan, that heightened attention to custom took place in the contexts of external stimulus of alien law and conscious state effort to unify legal sources and centralize the realm. Custom as an instrument for precipitating change saw a dramatic revival in colonial law in the late 19th and early 20th centuries. Diffusion of civil law through the medium of custom has a long and deep history.

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