Heinze on Sovereign Authority in Shakespearean Political Drama

Eric Heinze, Queen Mary University of London, School of Law, is publishing Foundations of Sovereign Authority: The Example of Shakespearean Political Drama in Shakespeare and Authority (K. Halsey and A. Vine, eds., Palgrave, 2016-17). Here is the abstract.

As post-Renaissance Europe creates modern concepts of statehood and sovereignty, figures like Bodin, Grotius, and Hobbes undertake ‘constructive’, system-building theories of sovereign authority. Dramatists, in the meantime, are de-constructing sovereignty by unsettling the divergent bases of authority and legitimacy claimed for it. Concepts like ‘rule of law’, ‘popular consent’, or ‘natural law’ often serve to characterise rival legitimacy claims, but such concepts’ scope and interrelationships can be vague. This essay proposes a vocabulary and topology of legal and political authority within early modern drama. Two core categories — ‘right’ and ‘duty’ — are introduced to analyse legitimacy claims more precisely. Those, in turn, attach to twin normative claims, identified as legal ‘transcendence’ and legal ‘positivity’. Hence four basic types of legitimacy claims, each constantly defining itself in contrast to the others: ‘transcendent right’, ‘transcendent duty’, ‘positive right’, and ‘positive duty’. As those exercising or seeking power manoeuvre through their various legitimacy claims, they enact the scope and limits of the claims themselves, pointing us towards ‘deconstructive’ theories of sovereign authority.

Download the essay from SSRN at the link.

Early Modern Ideas of Legal Pluralism

Richard J. Ross, University of Illinois College of Law & University of Illinois, Urbana-Champaign Department of History, and Philip J. Stern, Duke University Department of History, have published Reconstructing Early Modern Notions of Legal Pluralism in Legal Pluralism and Empires, 1500-1850 109-141 (Lauren Benton and Richard J. Ross, eds.; New York: New York University Press, 2013).

Legal pluralism occurs when two or more legal orders exert control within a given territory or over a particular social group and yet are not part of a single hierarchical “system” under a coordinating authority. Most historical scholarship on legal pluralism concentrates on its shifting structures in local contexts and on its political and economic implications. By contrast, our essay probes historical actors’ uses of political and religious thought to justify or undermine plural legal regimes in the late sixteenth through early eighteenth centuries. Historians of early modern political thought preoccupied with the rise of the modern state have lavished attention on ‘centralizing’ discourses, particularly theorists such as Bodin, Hobbes, and Pufendorf represented as champions of sovereignty. Against this tendency, we emphasize how ideological support for plural legal orders could be found in a wide range of intellectual projects. These ranged from debates over the right of resistance and the divine right of rulers, through historical work on the ancient Jewish commonwealth and theological disputes over which precepts “bound conscience,” and finally to writings on political economy and the place of family.

Social scientific and jurisprudential work on legal pluralism has focused a set of canonical problems. Should we focus on jurisdictional or normative accounts of pluralism? How can we distinguish the “legal” from the “non-legal,” a dispute that centers on whether to include in pluralist models the norms of families and civil society organizations? How can we model the complex dialectic relation of state and nonstate systems of order? To the extent that this work relies on a historical account spanning the sixteenth through eighteenth centuries, it assumes that a once rich medieval legal pluralism withered as European statebuilding consolidated crown control of law with the ideological support of theories of sovereignty. The intellectual foundation for — if not the practice of — legal centralism arose in this period. The frequent invocation of Bodin, Suarez, Grotius, Hobbes, and Pufendorf as the founding theorists of sovereignty and legal centralism creates the impression that pluralistic thinking was impoverished or on the wane. The central ambition of our article is to provide an alternative historical genealogy for legal scholars of pluralism. Workaday legal pluralism did not struggle against a predominantly hostile intellectual climate. Many discourses supported pluralism. And the most emphatic theorists of a powerful singular sovereign were often responding to intellectual projects that valorized pluralism.

Download the essay from SSRN at the link.