The final chapter brings us back to the contemporary political dilemmas we face today and discusses how the recovery of premodern conceptions of the nation helps us think through the challenge of national pluralism and resurging nationalist sentiment. It encourages openness to some virtues of empire as a multinational form of politics, considers the merits of a pluralistic political order, and suggests new avenues for cultivating democratic solidarity in diverse polities. In particular, the chapter engages with liberal multiculturalist arguments to illustrate the advantages of medieval approaches to national diversity. In place of self-government rights, the book suggests legal pluralism and policies of recognitions as more fruitful arrangements for multinational polities. Moreover, the chapter applies the insights of the study to the European Union and the United States, respectively. It concludes by responding to a number of liberal nationalist concerns, especially the need for pre-political partnership to undergird democratic politics.

Chapter 3 begins the conceptual history of the nation where our current vocabulary originates, in classical Greece and Rome. It examines the conception of cultural-linguistic communities in the context of the two principal alternatives to the nation-state – city-state and empire. The chapter moves from Greek conceptions of ethnicity as depicted in Herodotus’ Histories to Cicero’s reflections on the relationship between national and political communities in the Roman Empire and concludes with an examination of the idea of the nation in the Vulgate, the late fourth-century translation of the Bible. The analysis shows that ethnos, gens, and natio referred to communities defined by descent, language, and geographical homeland but were not understood in a political sense. Moreover, Roman thinkers were not only acutely aware of the twofold loyalties to nation and polity; they also sought practical arrangements for accommodating diverse national groups within a single political order. The chapter discusses Roman ideas on citizenship, administrative subsidiarity, and legal pluralism.

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.”

Chapter 13 is a closing epilogue that summarizes the book’s thesis, namely, that the German legal system is the site of encounters amongst a variety of legal traditions. To animate and illustrate that argument a final time, an article discussing the Common Law and Civil Law characteristics of German constitutional law is presented for discussion.

Chapter 3 challenges the tradition in comparative legal studies, which treats Germany exclusively as a representative of the Civil Law family. Through excerpts of leading German legal theorists of the twentieth century, the chapter demonstrates that there has always been resistance to the Civil Law orthodoxy in the German legal culture. This includes a survey of the Free Law Movement (Kantorowicz), the Pure Theory of Law (Kelsen), and the Radbruch Formula (Radbruch). The chapter concludes with a discussion of the Federal Constitutional Court’s Lüth Case, in which the Court announced the Basic Law’s “objective order of values.”

This chapter recapitulates the dual institutional framework and the empirical findings of this book. It then discusses how the findings contribute to ongoing policy and theoretical debates.

Comparing ancient societies allows us to observe the variety of relationships that prevailed between states — in different forms and at different scales — and their complex legal environments. This chapter explores five dimensions of this relationship. First, we examine the capacity of law to shape state power. While constitutional law, strictly speaking, was comparatively rare in the ancient world, we can yet observe various ways in which law, law-like practices and other cultural norms operated collectively to both empower and constrain the state. The second and third parts of the chapter look at the inverse relationship: state power over law and legal practice in the form of legislative powers and jurisdiction, respectively. In the fourth part, we turn from ideational aspects of state law to the structure of state legal systems themselves, particularly in the context of private or non-state legal practices. Here we focus on those domains of law in which the state was most intimately engaged, what was left to non-state actors and the engagements between both across a sometimes indistinct boundary. The final part of the chapter explores the role of law in legitimizing state power.

Chapter 5 argues that an alternative ontological basis, derived from non-Western ontologies, is both possible and urgent for renewing sustainable development. It analyses how the voice of the Global South; particularly Africa, can improve the discourse on sustainable development by evolving a view on the importance of customary law, ethics, and Indigenous norms as law. It echoes the idea of ‘ecology of knowledges’ and the legal value of reviving non-Western epistemologies for sustainable development. The spotlighting of ethics, customary norms, and other forms of local and Indigenous knowledge as legal norms has been done before. However, in this book, I extend the discussion even further and do so through a comparative analysis with other bodies of legal ideas and normativity like transnational law, legal pluralism, and social construction as law in themselves. In this process, I give these ideas a unique twist for the purposes of the overall critical perspective of this project by demonstrating their usefulness for foregrounding customary law or Indigenous knowledge as law. The discussion refracts the idea of reimagining sustainable development praxis through the lens of oft-neglected African legal cosmologies, and how such experiences can provide helpful signposts in Africa and elsewhere.

This chapter re-inserts the (rethought) concept of territory into the legal-theoretical framework, offering a look at how this concept can be realised and might differently operationalise concepts such as sovereignty and jurisdiction. Taking the concept of sovereignty first, the chapter operationalises this concept as a bundle of legal rights, duties, etc. informed by legal realist methods and social constructivism. The chapter then turns to the concept of jurisdiction, problematising the ‘boundaries’ of and reterritorialising extraterritorial jurisdiction. The chapter offers an alternative to the ‘ownership’ and ‘exclusive’ model of legal rights, which otherwise has at its core a reified and flat territory. The final part explores actorhood, demonstrating how the spaces of international organisations can be understood as their territories. Taking as its starting point the possibility of territorial pluralism, multiplicity, and continuous (re)production, the chapter ends with an account of territories proliferating rather than diminishing. Taking the idea of reterritorialising seriously, it proposes a legal account of the relationship between actors and their spaces.

This chapter examines the ways in which the sovereign, monocultural, and monist state that was dominant in Latin America starting in the nineteenth century has mutated over the last thirty-six years. It begins by offering a description of the initially dominant model and then introduces the multicultural liberal and radical intercultural models that replaced it by politically and legally recognizing the cultural diversity that characterizes Latin American societies. The chapter then explores the discursive and practical challenges generated by illegal normative systems (such as those managed by guerilla or paramilitary groups, or criminal organizations), and by extralegal normative system (such as the regulation of private property in peripheral urban neighborhoods) which compete with the sovereignty of states and official law. The constitutional bloc, the Inter-American Human Rights System, and bilateral or multilateral treaties signed by Latin American states further pluralize legal creation and weaken the concept of absolute state sovereignty. This chapter characterizes these developments as instances of either weak or strong legal pluralism.

Humanity and civility were established as new leading principles of international law during the last decades of the nineteenth century. But the restriction of war itself was a battlefield. Some authors conceptualised the restrictions on warfare explicitly as of a social custom quality or as ‘chivalric practices’ of ‘moral value only’. Probably the most fundamental attack on international law’s limits came from the idea of ‘military necessity’. It was limiting law’s limitations. And in its most radical variant, it was evoked not only in those cases which explicitly referred to it but in any regulation of warfare. This was a specific, particularly militaristic understanding of ‘necessity’, and its effect was unleashing: the laws of war would lose their binding force. Necessity could revocate any ties, be they moral or legal. Pre-1914 international law was in some areas pretty far away from humanisation, universalism, and also from positivism. It was relativising and legitimating excessive violence.

This chapter introduces a self-development theory of the nonprofit sector, informed by alternative development and basic-needs theory. The theory presented in this chapter suggests that nonprofit law plays a role in creating a legal framework that allows people to participate in the improvement of their own lives and communities through self-development. With a nonprofit-friendly legal environment in place, individuals have greater economic incentive to work within their own communities to create organizations that help individuals, families, and communities to meet their own needs. This paradigm stands in contrast to views of nonprofit organizations as facilitators of rescuing behavior, in which one group of people seeks to uplift another. Based on cases in Nigeria and South Africa, this paper describes the role and importance of nonprofits in facilitating the development of individuals, institutions, and communities from within.

States in sub-Saharan Africa struggle to manage the multiple legal orders bequeathed by European colonialism. This struggle is partly attributable to poor consideration of indigenous African values by policymakers. Values are useful because they distinguish social habits from the sense of obligation that gives law its normative character. Since the foundational values of indigenous laws reflect the welfare-oriented origins of indigenous laws, they illumine how Africans adjust to modern conditions, as well as the adaptive character of legal pluralism in Africa. However, not much is known about these values in the courts, in contradiction with the prominence that jurists accord to constitutional values. This chapter compares how African legal frameworks reflect the values of indigenous laws in Kenya, Nigeria, Somaliland, and South Africa. It finds that judges and legislators adopt jurispathic approaches to the regulation of indigenous laws, and suggests that reliance on the values of indigenous laws could promote their harmonisation with statutory laws.

As law is largely a country-specific discipline, formal African legal systems differ from one country to another. The commonly shared feature, however, is that of deep legal pluralism, which produces a multiplicity of normative orders in each society. National legal systems are influenced by colonial history and underpinned by customary law, resulting in a multi-layered legal environment overall. This chapter highlights the influence of traditional usages as a distinct but integral source of business law within pluralist African legal systems. The ‘survival’ of customary arbitration, for instance, clearly indicates the value which local communities attach to familiar transactional and dispute resolution frameworks which more suitably accommodate their voices. This singular feature underscores the importance of an exploratory and inclusive approach to identifying other elements of pluralism in the field of business law in Africa. These include the widening reach of regional law, the huge scale of informal cross-border trade, differing legal frameworks for formal cross-border trade facilitation and the monumental growth of China’s investments in Africa, all of which constitute substantive research areas in themselves in the study of the pertinent subject of legal pluralism in commerce in Africa.

The discussion concludes by reviewing paradigmatic socio-political logics of hybrid sovereign, disciplinary, and biopower within colonial theatres of criminal accusation, as revealed by the preceding analyses of archived Albertan texts. It traces a ‘coloniality’ within accusatory performances framed by racialized, patriarchal, and marginalizing criminal justice institutions (Maldonado-Torres 2007). In composite, the chapters point to several key social and political foundations through which accusations of crime provided conditions for colonial criminalization to emerge. It is significant that such accusations and the law that they sustained were from the outset placed in the service of dispossessing social, political, and economic ambitions. The book concludes by reflecting on two legacy bequests of colonial accusation that might be used to think in ways that exceed the socio-political horizons that contour today’s vast, unequal, and repressive criminal justice systems.