Aryaman Dubey, BML Munjal University
I am going to review the article named as The Concept of Law: A Western Transplant written by Jean-Louis Halpe ́rin and explain the article and provide my perspective and critique on it.
The thesis of this article is based on positivist postulates and assertions, primarily from Hart, which define law as the union of primary rules (social standards) and secondary rules (of recognition, change, application and adjudication).
The author first searches for the origins of legal orders in the Western world because he believes the existence of rules of change to be crucial for their emergence. Roman law was the first in the Western world to establish a clear rule of change, which allowed for the chance of a new statute repealing an older one through the application of a Roman framework, this Western conception of law has been exported by Western colonialism to America, Asia (especially India), and Africa, turning societal (and customary) norms into laws.
Although Jewish, Chinese, and Islamic law systems met this definition as well, they did not have the same rules of change as the Roman ones.
This is due to because of their stress on interpretation rather than direct change.
These other systems, though, did not achieve the same level of success as Roman law, which had traditionally been associated with imperialism and colonialism.
INTRODUCTION
The concept of legal transplants or grafts, proposed by Alan Watson, has received both praise and criticism due to its complexity. The argument made in this article is that the Western conception of law, as described by Kelsen and Hart, has become the focal point of the globalization of law, a process that dates back to the development of Roman law.
This theoretical hypothesis, which is motivated by recent developments in historical studies of legal colonialism but is supported by empirical data rather than a case study, challenges the widely held belief that different legal families or legal traditions have evolved distinct legal systems in various parts of the world.
It concentrates on Roman law and Western legal philosophy without passing judgment on this "imperialism" in a positive or negative way. It acknowledges exceptions and, of course, needs to be nuanced as a controversial / debated or bold hypothesis.
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