Jens Meierhenrich on the Remnants of the Rechtstaat (OUP, 2018) @OUPAcademic

New from Oxford University Press: Jens Meierhenrich, London School of Economics and Political Science, The Remnants of the Rechtsstaat (2018). Here from the publisher's website is a description of the book's contents.

This book is an intellectual history of Ernst Fraenkel's The Dual State (1941, reissued 2017), one of the most erudite books on the theory of dictatorship ever written. Fraenkel's was the first comprehensive analysis of the rise and nature of Nazism, and the only such analysis written from within Hitler's Germany. His sophisticated-not to mention courageous-analysis amounted to an ethnography of Nazi law. As a result of its clandestine origins, The Dual State has been hailed as the ultimate piece of intellectual resistance to the Nazi regime. In this book, Jens Meierhenrich revives Fraenkel's innovative concept of "the dual state," restoring it to its rightful place in the annals of public law scholarship. Blending insights from legal theory and legal history, he tells in an accessible manner the remarkable gestation of Fraenkel's ethnography of law from inside the belly of the behemoth. In addition to questioning the conventional wisdom about the law of the Third Reich, Meierhenrich explores the legal origins of dictatorship elsewhere, then and now. The book sets the parameters for a theory of the "authoritarian rule of law," a cutting edge topic in law and society scholarship with immediate policy implications.

 

Likhovski on the Intellectual History of Law @TelAvivUni

Assaf Likhovski, Tel Aviv University School of Law, is publishing The Intellectual History of Law in The Oxford Handbook of Historical Legal Research (Markus Dubber and Christopher Tomlins, eds., Oxford University Press.,--). Here is the abstract.

This chapter identifies some recent trends in historiography generally, and in the study of intellectual history. The chapter discusses the relevance of these trends to the study of the intellectual history of law, referring to relevant legal history works reflecting these trends, noting existing lacunas, and proposing future directions of development of the study of the intellectual history of law.

Download the essay from SSRN at the link.

Brophy on The Jurisprudence of Slavery, Freedom, and Union at Washington College, 1831-1861

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, has published The Jurisprudence of Slavery, Freedom, and Union at Washington College, 1831-1861. Here is the abstract.

In the thirty years leading into Civil War faculty and students at Washington College and the Virginia Military Institute discussed ideas about adherence to Union, the legal justification of slavery, slaves’ claims to freedom, and jurisprudence. Their discussion of jurisprudence included the need for adherence to law, and the roles of morality, sentiment, and utility in law. This article draws upon public addresses, like graduation speeches, at Washington College and VMI, to recover the sophisticated legal ideas in circulation in Lexington. Washington College was a place of Whig values of Union, adherence to law, and concern for utility. Speakers supported common Whig ideas, including the need for republican government to check excesses of democracy and a focus on the ways that a well-ordered society and respect for property and Christianity led to moral and economic progress. It also moved from a place where faculty held Enlightenment ideas about freedom – even if circumscribed by economic reality – to a place where slavery was embraced, partly because it was part of the Constitution. By contrast, at the Virginia Military Institute, pro-slavery and pro-secession ideas were more prevalent. The constitutional visions at moderate Washington College and pro-secession institutions at more radical places, like the University of Virginia, William and Mary, and the College of Charleston, reflected the wide range of Southern ideas about Union, slavery, utility, sentiment, Republicanism, and constitutionalism. Those ideas framed the Southern response to political changes, as Southerners discussed the mandates of jurisprudence and the Constitution in the years leading into War.

Download the article from SSRN at the link.

Fenster on Legal Intellectual History

Mark Fenster, University of Florida College of Law, has published Mr. Peabody's Improbable Legal Intellectual History at 64 Buffalo Law Review 101 (2016). Here is the abstract.

Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners. Viewing an appellate decision, legislative enactment, or academic debate, the legal academic must travel back in time to set matters straight, redeeming the past to make certain that the future avoids its confused and unfortunate fate. Intellectual historians trail behind the legal academy’s heavy-breathing and magnificent use of the past, cleaning up its waste by providing context, complicating narratives, and replacing bright trumpet horns with muted tones, vivid colors with shades of gray. Well after the parade has dispersed and marchers have moved on, and often before the next “Big Issue” causes the celebrants to line back up, intellectual history can bring complexity and context back in to the frame. I illustrate this dynamic first by describing the use of legal realism in Brian Tamanaha’s recent monograph on what he describes as the formalist-realist divide in legal theories about judging and about legal doctrine, and in the debate over that divide. In Part II, I describe a relatively minor figure in the pantheon of legal realists (as that pantheon currently exists), Thurman Arnold, and his realist critique of the criminal law and procedure.

Download the article from SSRN at the link.

Trying Too Hard To Understand the Constitution?

John F. Muller, Yale Law School, has published The Common Law Culture and the Enlightenment Ideal. Here is the abstract.

In this Article, I argue that some truths about our constitutional system are best left misunderstood. I make this argument by defending a self-deception at the core of our collective self-understanding. We often speak as if our constitutional system rests on an uncompromising inquiry into constitutional meaning. I contest the descriptive accuracy of this conventional wisdom yet defend the normative value of its perpetuation. The notion that we uncompromisingly pursue true constitutional meaning, I argue, derives from a deep constitutional commitment to Enlightenment thought. This notion, however, ignores a comparably deep constitutional commitment to the common law tradition, which privileges some considerations ahead of true constitutional meaning. Although we pay fealty to Enlightenment, we follow a contradictory path informed by both the Enlightenment ideal and the common law culture. This contradictory state of affairs and the misunderstanding upon which it rests, I argue, perpetuate a redemptive vision of our constitutional system vital to its preservation.

Download the paper from SSRN at the link.