A blog about law, the humanities, and popular culture
From Peter Schneck, Director, OSI (Osnabrueck Summer Institute)
Announcing the 2026
International Osnabrueck Summer Institute on the Cultural Study of
the Law:
"Law in Transit - Moving Subjects,
Universal Rights, and the Contingencies of Recognition"
University of Osnabrueck, Germany
July 18-26, 2026
For more information, follow this link.
This paper situates the Carl Schmitt-Hans Kelsen dispute on constitutional guardianship within the now-standard categories of political and legal constitutionalism. It examines the conflict between political and legal understandings of the constitution and of constitutional adjudication, alongside divergent conceptions of democracy that strain this institution (notably, the countermajoritarian difficulty). It begins with a close reconstruction of the Weimar-era debate-its legal and political details-covering competing views of adjudication, the constitution as a set of norms or a political decision, and alternative models of guarantees. Through comparative analysis, the paper then traces lines of continuity and discontinuity between those positions and contemporary discussions of constitutional guardianship within debates over legal versus political constitutionalism. What emerges is the enduring persistence of theoretical alternatives that deeply structure the idea of constitutional guardianship in a democratic system. At the same time, we find differences in interpretation and in proposals for legal politics concerning substantive versus procedural conceptions of the constitution, as well as divergent understandings of democratic conflict and pluralism and their implications for constitutional stability. The paper concludes by showing how certain theoretical contradictions at the heart of constitutional guardianship resist easy resolution and must be inhabited, rather than definitively overcome.Download the paper from SSRN at the link.
Can a Wall Street tycoon be a pirate? Can a judge?Download the essay from SSRN at the link.
The Rousseau-Portalis Doctrine is the idea that war is a relationship between states rather than individuals and, accordingly, military operations must be conducted exclusively against the enemy forces and not against civilians who do not take an active part in hostilities. Grounded in Grotian thought but enhanced and refined by Enlightenment thinkers, this revolutionary idea has had a significant impact on the law of war over the past two centuries. The doctrine is understood today as a salient component in the undergirding framework of the law of war. This is a two-part series illustrating the impact of French legal thought on the formation of the law of war with a specific focus on the Rousseau-Portalis Doctrine. The first part provides a brief background on Jean-Jacques Rousseau and Jean-Étienne-Marie Portalis, their views on the law of nations, and their ideas that form the substance of the Rousseau-Portalis Doctrine. The second part traces the evolution of that doctrine and discusses its impact on the law of war.Download the article from SSRN at the link.
Posts
