Somos on George Ticknor's Progress of Politicks (1816): An American Reception of German Comparative Constitutional Thought @msomos

Mark Somos, Harvard University, Edmond J. Safra Center for Ethics, Harvard Law School, has published George Ticknor’s Progress of Politicks (1816): An American Reception of German Comparative Constitutional Thought as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-20. Here is the abstract.

George Ticknor (1791-1871) was a famous American educator, reformer, and public intellectual. After a brief legal career he moved to Germany to obtain the best possible education in the humanities, and take his knowledge and ideas for educational reform back to the young United States with him. His unpublished notebooks reveal that like many of his peers, such as John Quincy Adams, George Bancroft, or Edward Everett, Ticknor was also fascinated by German constitutional theory and history, their connection to politics and human geography, and the forerunners of German legal science. Throughout his life, Ticknor revised his notes and drew on them in his teaching. Progress of Politicks, one of the notebooks, is transcribed and edited here to offer new insights into German and American mutual perceptions, self-perceptions and exchange, legal education, and the origins of legal science in both Germany and the United States.

Download the article from SSRN at the link.

Habermas on the Making of the German Legal System: A New Book from Cambridge University Press

Rebekka Habermas, Georg-Augst-Universitaet, Goettingen, has published Thieves in Court: The Making of the German Legal System in the Nineteenth Century (Cambridge University Press, 2016) (Publications of the German Historical Institute). Here from the publisher's website is a description of the contents.

From the seemingly insignificant theft of some bread and a dozen apples in nineteenth century rural Germany, to the high courts and modern-day property laws, this English-language translation of Habermas' Diebe vor Gericht explores how everyday incidents of petty stealing and the ordinary people involved in these cases came to shape the current legal system. Habermas draws from an unusual cache of archival documents of theft cases, tracing the evolution and practice of the legal system of Germany through the nineteenth century. This close reading, relying on approaches of legal anthropology, challenges long-standing narratives of legal development, state building, and modern notions of the rule of law. Ideal for legal historians and scholars of modern German and nineteenth-century European history, this innovative volume steps outside the classic narratives of legal history and gives an insight into the interconnectedness of social, legal and criminal history.

Proposes a new understanding of legal systems providing readers an alternative to classic narratives of legal development, state building, and modern notions of the rule of law

Offers a transdisciplinary approach by combining legal, criminal, and media history, and history of knowledge

The focus on case-studies in nineteenth-century rural Germany gives an innovative insight into how ordinary people and events influence large scale legal structures

German Constitutionalism

Michaela Hailbronner, Institute for Comparative and International Law in Africa, is publishing Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, November 2015). Here is the abstract.

German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive conception of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in one of two ways: as a story of change in reaction to National Socialism, or as the continuation of an older nineteenth-century line of constitutional thought that emphasizes the function of constitutional law as a constraint on state power. But while both narratives account for some important features, their explanatory value is ultimately overrated. This book adopts a broader comparative perspective to understand the rise of the German Constitutional Court. It interprets the particular features of German constitutional jurisprudence and the Court's strength as a reconciliation of two different legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaska, building on Max Weber, as opposed to a more co-ordinate understanding of legal authority such as prevails in the United States, and secondly, the turn towards a transformative understanding of constitutionalism, as it is today most often associated with countries such as South Africa and India. Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German constitutionalism has harmonized the frequently conflicting demands of these two legal paradigms, resulting in a distinctive type of constitutional reasoning, at once open, pragmatic, formalist, and technical, which this book labels Value Formalism. Value Formalism, however, also comes with serious drawbacks, such as a lack of institutional self-reflection in the Court's jurisprudence and a closure of constitutional discourse to laymen, whom it excludes from the realm of legitimate interpreters.