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 His unpublished notebooks reveal that like many of his peers, such as John Quincy Adams, George Bancroft, or Edward Everett, Ticknor was also fascinated by German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.

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Tugendhat on Slavery and Comparative Law in Eighteenth Century England @LawLeicester

Michael Tugendhat, Leicester Law School, has published Slavery and Comparative Law in Eighteenth Century England as University of Leicester School of Law Research Paper No. 17-08. Here is the abstract.

This paper addresses the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.

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Miller on Native American Constitutions and Their Influence on the United States Constitution

Robert J. Miller, Arizona State University College of Law, has published American Indian Constitutions and Their Influence on the United States Constitution in volume 159 of the Proceedings of the American Philosophical Society (March 2015). Here is the abstract.

This paper analyzes modern-day American Indian constitutionalism. It describes the development of written constitutions by Indian nations and primarily focuses on constitutions developed since 1934 under the auspices of the federal Indian Reorganization Act. This paper also briefly examines the evidence that American Indian political philosophies, and traditional tribal governmental structures and ideas, influenced many of the Founding Fathers and the drafting of the United States Constitution.

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Eight Hundred Years of Magna Carta

Thomas J. McSweeney, William & Mary Law School, has published Magna Carta, Civil Law, and Canon Law in Magna Carta and the Rule of Law (Daniel Magraw et al., eds.; 2014). Here is the abstract.

With the 800th anniversary of Magna Carta approaching, interest has been piqued in the charter, which influenced the development of the common law in its early stages. One debate surrounding the charter is the degree to which Roman and canon law influenced the text. This debate has important implications for the identity of the common law. We tend to think of common law as an English institution, very different from those continental civil-law systems that trace their ancestry back to medieval Roman and canon law. If Roman and canon law influenced the charter, it could serve as evidence that the early common law was not so insular in its outlook as we have thought, and that it really should be placed in a broader European context.

Roman and canon law — collectively called the ius commune in the Middle Ages — certainly made their mark on Magna Carta, but this paper argues that the elements of the ius commune that found their way into Magna Carta were inserted not to influence the early development of the common law, as many scholars have assumed, but rather because ius commune, and more particularly canon law, was a political language that appealed to various important constituencies in England and abroad. Appeals to canon law in Magna Carta were more likely placed there to elicit support from the papacy than to reform English law. This paper places Magna Carta in the longer context of the Church reform movement and its instantiation in England — the Becket dispute — and argues that Magna Carta’s ius commune-influenced provisions were attempts by English actors to give universal significance to their local disputes.

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The Constitutional Era in the Western Hemisphere

Matthew C. Mirow, Florida International University College of Law, has published The Age of Constitutions in the Americas at 32 Law & History Review 229 (2014). Here is the abstract. 

This essay discusses essential elements of the Age of Constitutions in the Americas. These elements are the United States Constitution and state constitutions, English constitutional practices, the French Revolution and the republic constitutions, the Cortes of Cadiz and the Spanish Constitution of 1812, and Haitian independence and the constitutions of the early republic.
Note: This is an Author’s Original version of a full article that appears in Law and History Review published by Cambridge University Press.

Download the text from SSRN at the link. 

The Independent Judiciary: South Africa Today and England in the Seventeenth Century

David Hulme, University KwaZulu-Natal, and Stephen Allister Pete, University of KwaZulu-Natal, School of Law, have published Vox Populi? Vox Humbug! – Rising Tension between the South African Executive and Judiciary Considered in Historical Context – Part One, in volume 15 of Potchefstroom Electronic Law Journal (2012). Here is the abstract.

This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary.
Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly in young democracies in which democratic institutions are yet to be properly consolidated.
Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more in-depth comparison in Part Two.

Download the article from SSRN at the link. 

Scotland's Judiciary and the Development of Article III

James E. Pfander and Daniel D. Birk, Northwestern University School of Law, have published Article III and the Scottish Enlightenment, which is forthcoming in the Harvard Law Review. Here is the abstract.

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.

This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.

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The Development of Western Constitutional Ideas

Jean LeClair, Université de Montréal Faculty of Law, has published L'Avènement Du Constitutionnalisme En Occident: Fondements Philosophiques Et Contingence Historique (The Advent of Western Constitutionalism: Philosophical Foundations and Historical Contingency) in volume 41 of the Revue de droit de l'Université de Sherbrooke (2011). Here is the abstract.

Pour le bénéfice des non-initiés aux arcanes du droit constitutionnel occidental, l’auteur, après avoir brièvement décrit les notions de droit constitutionnel et de constitutionnalisme, s’attarde à retracer les idées-force qui, en Occident, ont rendu possible l’avènement de ces notions. Par la suite, il examine la trajectoire historique empruntée plus spécifiquement par les constitutionnalismes anglais, français et américain. L’auteur cherche ainsi à démontrer que, malgré la contingence historique du constitutionnalisme canadien, les principes philosophiques qui en sont à la source tirent leur origine de ce qu’on pourrait appeler un « patrimoine intellectuel occidental.

For the benefit of those unacquainted with the arcane features of Western Constitutional law, the writer, after briefly describing the notions of “constitutional law” and “constitutionalism”, seeks to set out the fundamental ideas which have enabled these notions to develop in the Western World. He then examines the historical trajectory of British, French and American constitutionalism. In so doing, the author seeks to underline that, notwithstanding the historical contingency of Canadian constitutionalism, the philosophical ideas upon which it is grounded may be described as originating from a “Western intellectual patrimony.”

Download the article from SSRN at the link. (NB: Text is in French).

The Constitution of Cadiz

Matthew C. Mirow, Florida International University College of Law, has published Codification and the Constitution of Cádiz in Estudios Jurídicos en Homenaje al Profesor Alejandro Guzmán Brito (Patrício-Ignacio Carajal and Massimo Miglietta, eds.; Edizioni dell’Orso, 2012).

This study seeks to explore the private law side of the Constitution of Cádiz, in particular its use and reference to the legal revolution of codification that was well underway by 1812. By engaging questions of codification and private law, this study explores the relationship between private law and public law at a transformative moment in both areas. In public law, unwritten, ancient constitutions were just beginning to be replaced by written constitutions attempting to limit government and to define individual rights. In private law, centuries of the ius commune tradition were being reorganized and shaped into codes. Thus, an examination of the idea and place of codification in the Constitution of Cádiz should reveal clues about these important changes.

First, this study discusses the placement of Article 258, the constitutional article referring to codes, within the text of the Constitution itself. It then addresses other aspects of the Constitution that point towards codification as a logical outgrowth of the political and legal transformations contemplated by the Constitution. The third topic addressed here is the way Article 258 came into the Constitution through the reports of the debates in the Cortes and what these statements reveal about the perception of codes at the Cortes. This study ends with some concluding comments about the place of the Constitution of Cádiz in the history of Latin American codification.

Download the text from SSRN at the link.