Ferguson on The Ciceronian Origins of American Law and Constitutionalism @jackferguson100 @HarvardJLPP @NDLaw

Jack Ferguson, Notre Dame Law School, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy. Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Grajzl and Murrell on A Macroscope of English Print Culture, 1530-1700, Applied to the Coevolution of Ideas on Religion, Science, and Institutions @CESifoNetwork

Peter Grajzl, Washington and Lee University, Department of Economics; CESifo, and Peter Murrell, Department of Economics, have published A Macroscope of English Print Culture, 1530-1700, Applied to the Coevolution of Ideas on Religion, Science, and Institutions. Here is the abstract.

We combine unsupervised machine-learning and econometric methods to examine cultural change in 16th- and 17th-century England. A machine-learning digest synthesizes the content of 57,863 texts comprising 83 million words into 110 topics. The topics include the expected, such as Natural Philosophy, and the unexpected, such as Baconian Theology. Using the data generated via machine-learning we then study facets of England's cultural history. Timelines suggest that religious and political discourse gradually became more scholarly over time and economic topics more prominent. The epistemology associated with Bacon was present in theological debates already in the 16th century. Estimating a VAR, we explore the coevolution of ideas on religion, science, and institutions. Innovations in religious ideas induced strong responses in the other two domains. Revolutions did not spur debates on institutions nor did the founding of the Royal Society markedly elevate attention to science.

Download the article from SSRN at the link.

Gerber on The Intellectual History of European Laws About Religious Toleration Prior to the Planting of English America

Scott D. Gerber, Ohio Northern University College of Law, is publishing The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America in GLossae: European Journal of Legal History (2021). Here is the abstract.

Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.

Download the article from SSRN at the link.

Altwicker on Justice Beyond Borders: Extraterritorial Obligations from Thucydides to Grotius

Tilmann Altwicker, University of Zurich, is publishing Justice Beyond Borders – Extraterritorial Obligations from Thucydides to Grotius in Rechtsphilosophie - Zeitschrift für die Grundlagen des Rechts (RphZ). Here is the abstract.

The article traces the problem of extraterritorial obligations in the early history of ideas, spanning from Thucydides to Grotius. Extraterritorial obligations are defined here as moral obligations of a legitimate authority to perform or not to perform an act vis-à-vis individuals who are not its subjects. The article shows that arguments about justice beyond the border rely on transnational conceptions of the common good. In the early history of ideas concerning extraterritorial obligations, the following questions were central: Can there be a transnational meaning of moral concepts? Are extraterritorial obligations merely negative obligations? Is the extraterritorial pursuit of state interests limited by higher-ranking principles? Under which circumstances is the extraterritorial use of force permitted in order to protect individuals?

Download the article from SSRN at the link.

Ristroph on An Intellectual History of Mass Incarceration @brooklynlaw

Alice Ristroph, Brooklyn Law School, has published An Intellectual History of Mass Incarceration at 60 Boston College Law Review 1949 (2019). Here is the abstract.

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little. This Article asks, as Americans built the carceral state, what were we thinking? The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century. In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects. For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing. This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law. The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents.

Download the article from SSRN at the link.

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.