Comparing legal histories

This comprehensive chapter explores the theory and practice of legal histories, shedding light on orthodox and critical approaches to comparative law. It begins by discussing orthodox comparisons, the role of functionalism and law’s autonomy, and the lack of preferential attention given to minor or non-Western legal histories in the comparative studies of doctrinal disciplines. A critical approach compares legal histories considering epistemological elements, historical modalities, context and culture, legal narratives, and ideologies. The chapter discusses the impact of diverging legal histories through a practical problem presented by a Canadian trial court and a court of appeals, which ultimately denied the admissibility of indigenous oral histories when adjudicating a title claim for land in British Columbia. In this way, following the Canadian Supreme Court, critical practice considers the problems of translating conflicting claims and deconstructs incommensurability as the hegemony of modern legal structures and dictates of power.