de Almeida Ribeiro on liberal legalism

Gonçalo de Almeida Ribeiro (Universidade Católica Portuguesa and Judge of the Constitutional Court of Portugal) published The Decline of Private Law: A Philosophical History of Liberal Legalism with Hart Publishing in 2019. From the press: 

This book is a large-scale historical reconstruction of liberal legalism, from its inception in the mid-nineteenth century, the moment in which the jurists forged the alliance between political liberalism and legal expertise embodied in classical private law doctrine, to the contemporary anxiety about the possibility of both a liberal solution to the problem of political justification and of law as a respectable form of expert knowledge. Each stage in the history is a moment of synthesis between a substantive and a methodological idea. The former is the liberal political theory of the period, purporting to provide a solution to the problem of political justification. The latter is a conception of legal method or science, supposedly vindicating the access of the expert to the political choices embodied in the law. Thus, each moment in the history of liberal legalism integrates a political theory with a jurisprudential conception. Although it reaches the unsettling conclusion that liberal legalism has largely failed by its own standards, the book urges us to avoid quietism, scepticism or cynicism, in the hope that a deeper understanding of the fragility of our values and institutions inspires a more thoughtful, broadminded and nurtured citizenship.

Table of Contents after the jump:

"The Public's Law" Symposium: Emerson Responds

 [This is the third of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  The series begins here, with my summary of the book and continues with Noah Rosenblum's comment.  What follows is the response of Blake Emerson, Assistant Professor of Law at UCLA.  DRE.]

It is an honor to have the opportunity to continue discussing The Public’s Law here on the Legal History Blog. The author-meets-readers panel that Dan Ernst, Anne Kornhauser, Noah Rosenblum, and I participated in at the American Society for Legal History Conference was a great occasion to discuss the book with scholars whose work and insights shaped the argument. Here I’d like to continue that conversation, focusing on a few key issues: the motivation for the book, the role of Hegelian ideas in American Progressivism, and the promise of studying legal history from a normative perspective.

"The Public's Law" Symposium: Rosenblum Comments

[This is the second of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  My summary of the book on that occasion is here.  Below is a slight revision of the comment Noah A. Rosenblum delivered at session.  Mr. Rosenblum is a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law.  DRE.]

Blake Emerson's The Public's Law is a significant intervention that deserves the attention of legal historians in particular.  It was born as a dissertation in political theory.  But we should not hold that against it.  Except for its last chapter, the work is completely given over to history.  Although framed as a normative argument of historical recovery, it intervenes in two important historical debates of special interest to our community.  First, The Public's Law suggests a new dimension to the world of "Atlantic Crossings" in the late 19th and early 20th century that intellectual historians like James Kloppenberg and Dan Rodgers helped frame nearly 30 years ago.  And second, it contributes to ongoing conversations about how we understand the nature and development of the administrative state-and so speaks to both political historians interested in the history of the Progressive Era, the New Deal, and the Civil Rights years, and legal historians writing the new history of administration and administrative constitutionalism.  I'll have more to say about these historiographical interventions later.  For now, I just want to hammer on this book's relevance for legal history.  The Public's Law is more explicit about its normativity than most historians like.  And, because of the disciplinary divisions of the academy, it comes dressed up as a book that's more for philosophers or lawyers.  But it is decidedly a book that intellectual, political, and legal historians will have to grapple with.

I'd like to focus this contribution on three specific arguments advanced in The Public's Law.  Ernst's post has already explained how Emerson traces the way German Hegelianism worked its ways into the thought of leading Progressive reformers, and, through them, into some of the basic structures of American government.  I want to zero-in on three moments in this progression, and highlight how the argument advanced in The Public's Law challenges our received understandings: (1) first, its account of the meaning and ramifications of Hegelianism, (2) second, its description of the legacy of the Hegelian reception in the United States, and (3) third, its reading of the New Deal and the Civil Rights reforms.

Emerson's "The Public's Law": An LHB Symposium

[The annual meeting of the American Society for Legal History last November included an author-meets-readers session on Blake Emerson’s The Public’s Law: Origins and Architecture of Progressive Democracy (Oxford University Press, 2019).  At it, I summarized the book.  Anne Kornhauser, Associate Professor in the History Department of the City College of New York and Associate Professor of History at the CUNY Graduate Center; and Noah Rosenblum, a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law, provided comments, to which Emerson, Assistant Professor of Law at UCLA, responded.

[We will link to Kornhauser's revised and extended comment when it appears in the New Rambler Review.  This post is my summary of the book.  Rosenblum's comment and Emerson's response will appear in future posts.  DRE]

In Thinking Like Your Editor (2002), Susan Rabiner and Alfred Fortunato suggested a strategy for injecting narrative tension into serious nonfiction.  An author begins by describing some problem that has been bugging her and then explains that the book represents her search for an answer.  If the author does  that much properly, the reader will think, “You know, now that she mentions it, that problem has been bothering me, too.  I’m not exactly sure where her search would take me, but she seems to be a smart cookie who'll have interesting things to say along the way.  I’ll tag along and see whether she finds her answer.”  Narrative tension, then, is provided by the author’s search for an answer.

Emerson’s problem, speaking generally, is the political legitimacy of the administrative state in a democratic United States. The book resulting from his search for an answer has an introduction, a conclusion, and four chapters.  He uses three methodologies: (1) intellectual history (in Chapters 1 and 2); (2) institutional history (in Chapter 3); and (3) what Emerson calls “normative reconstruction” (in Chapter 4).  The answer he arrives at is a kind of bureaucracy that brings the people into the state, new forms of deliberative democratic control within administration itself."  The deliberation is not so much “formally equal, contracting persons” as “relational beings whose identities, interests, and values are formed in joint discourse and action.”  It is a relational state based on the belief that “the conditions of freedom” require that people actively determined the principles and policies by which they were bound.  The result is “the public’s law.”

Weekend Roundup

• Head over the to 2019 Annual Meeting Recap for images from the recently completed gathering in Boston!

• The Smithsonian’s “Ten Best History Books of 2019" include Sarah Milov’s The Cigarette: A Political History and Sara Seo’s Policing the Open Road: How Cars Transformed American Freedom.

• Available online from AJLH and Oxford Journals: A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement, by Juhana Salojärvi.

•  Mishal Khan has posted this on race and slavery in India's legal history, over at openDemocracy.

•  ICYMI: "National Theatre to tackle Scotland's 'often unspoken' slave trade history" (The Scotsman).  The history of the York County (PA) bar celebrated. 

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Emerson's "The Public Law"

Blake Emerson, UCLA Law School, has published The Public's Law: Origins and Architecture of Progressive Democracy (Oxford University Press):

The Public's Law is a theory and history of democracy in the American administrative state. The book describes how American Progressive thinkers - such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson - developed a democratic understanding of the state from their study of Hegelian political thought.

G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom. This normative account of the state distinguished his view from later German theorists, such as Max Weber, who adopted a technocratic conception of bureaucracy, and others, such as Carl Schmitt, who prioritized the will of the chief executive. The Progressives embraced Hegel's view of the connection between bureaucracy and freedom, but sought to democratize his concept of the state. They agreed that welfare services, economic regulation, and official discretion were needed to guarantee conditions for self-determination. But they stressed that the people should participate deeply in administrative policymaking. This Progressive ideal influenced administrative programs during the New Deal. It also sheds light on interventions in the War on Poverty and the Second Reconstruction, as well as on the Administrative Procedure Act of 1946.

The book develops a normative theory of the state on the basis of this intellectual and institutional history, with implications for deliberative democratic theory, constitutional theory, and administrative law. On this view, the administrative state should provide regulation and social services through deliberative procedures, rather than hinge its legitimacy on presidential authority or economistic reasoning.

Lesaffer on Roman and International Law

Randall Lesaffer, Tilburg Law School and KU Leuven Faculty of Law, has posted Roman Law and the Intellectual History of International Law, which appeared in the Oxford Handbook of the Theory of International Law, edited by Anne Orford and Florian Hoffmann (2016), 38-58:

The pivotal role of Roman law is well established in the historiography of the civil law tradition. Compared to this, its role in the intellectual history of international law is a marginal subject. This paper maps the place and role in the intellectual development of international law from Antiquity to the present.

Banerjee on Sanskritic Equivalents of Law

Last June, the conference Law, Empire, and Global Intellectual History was held at Heidelberg University. The journal Modern Intellectual History has since accepted some papers presented there for a special forum of the same name.  One is now available on-line: Sovereignty as a Motor of Global Conceptual Travel: Sanskritic Equivalents of "Law" in Bengali Discursive Production, by Milinda Banerjee, Assistant Professor in Presidency University, Kolkata, India, and Research Fellow at Ludwig-Maximilians-Universitaet Munich.

de la Rasilla del Moral on Vitoria & international law in Spain

Ignacio de la Rasilla del Moral, Brunel University London, has published In the Shadow of Vitoria: A History of International Law in Spain (1770-1953) with Brill. From the press:

In the Shadow of Vitoria: A History of International Law in Spain (1770-1953) offers the first comprehensive treatment of the intellectual evolution of international law in Spain from the late 18th century to the aftermath of the Spanish Civil War. Ignacio de la Rasilla del Moral recounts the history of the two ‘renaissances’ of Francisco de Vitoria and the Spanish Classics of International Law and contextualizes the ideological glorification of the Salamanca School by Franco’s international lawyers. Historical excursuses on the intellectual evolution of international law in the US and the UK complement the neglected history of international law in Spain from the first empire in history on which the  sun never set to a diminished and fascistized national-Catholicist state.

Table of Contents after the jump.

Meierhenrich, "The Remnants of the Rechtsstaat: An Ethnography of Nazi Law"

New from Oxford University Press: The Remnants of the Rechtsstaat: An Ethnography of Nazi Law (March 2018), by Jens Meierhenrich (London School of Economics). A description from the Press:

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.

A few blurbs:

"As early as 1938, Ernst Fraenkel, a German labor lawyer and social democrat chased out of Germany because of his Jewish origin attempted an analysis of Nazi law. He argued that law and lawlessness existed side-by-side, and deviously complemented one another. Meierhenrich has carefully and admirably excavated this intellectual achievement, and reimagined Fraenkels dual state for the twenty-first century. This is a terrific book and of immediate relevance for understanding the present: dual states are everywhere." - Michael Stolleis 

"One would have hoped that in our own time a rigorous analysis of Nazi law would serve only antiquarian purposes. However, Jens Meierhenrich's magnificent The Remnants of the Rechtsstaat serves as a painful reminder that this is unfortunately not the case. In this brilliant and meticulous reevaluation of Ernst Fraenkel's interrogation of the workings of the Third Reich's legal system, Meierhenrich revives the idea that authoritarian regimes are not in fact lawless entities, but in fact states that deploy legalism in both cynical and systematic ways. In an era when hybrid regimes, which combine both dictatorial and liberal elements, proliferate throughout the world - in Europe and North America, as well The Remnants of the Rechtsstaat is an indispensable read." - John P. McCormick

More information is available here.

Kimmel on conversion in early modern Spain

Out with the University of Chicago Press' Law and Society series, we missed this one when it appeared in 2015. Seth Kimmel (Columbia University) has published Parables of Coercion: Conversion and Knowledge at the end of Islamic Spain. The book was awarded the American Comparative Literature Association's Harry Levin Award in 2017. From the press:

In the sixteenth and seventeenth centuries, competing scholarly communities sought to define a Spain that was, at least officially, entirely Christian, even if many suspected that newer converts from Islam and Judaism were Christian in name only. Unlike previous books on conversion in early modern Spain, however, Parables of Coercion focuses not on the experience of the converts themselves, but rather on how questions surrounding conversion drove religious reform and scholarly innovation.

In its careful examination of how Spanish authors transformed the history of scholarship through debate about forced religious conversion, Parables of Coercion makes us rethink what we mean by tolerance and intolerance, and shows that debates about forced conversion and assimilation were also disputes over the methods and practices that demarcated one scholarly discipline from another.

 Praise for the book:

"In Parables of Coercion Kimmel succeeds wonderfully in excavating the intersection of early modern Spanish socioreligious and intellectual history and in deciphering its various discourses....Kimmel further uncovers the dialectical relationship between socioreligious discord and innovative cultural production by religious intellectuals in seventeenth-century Spain, and in the process he manages brilliantly to render meaningless the conventional, simplistic characterization of early modern Spain as a purely intolerant society. It was far more complicated during the sixteenth century afterlife of Islamic Spain than historiographical orthodoxy suggests." -Modern Philology

"Ranging across canon law, sacred philology, and history in sixteenth- and early seventeenth-century Spain, Seth Kimmel aims to demonstrate how the phenomenon of Muslim converts to Christianity was entertained by experts in those disciplines, as well as the ways in which the Morisco question affected the disciplines themselves." -Renaissance Quarterly

"Kimmel has written a fascinating study of the learned cultures built out of a century of Spanish Christian intolerance toward Islam, beginning with the coerced conversion of Spain's Muslims to Christianity in the early sixteenth century, to the expulsion of the Moriscos (as the converts and their descendants were called) in the early seventeenth. He shows us how the evolving  'Morisco question' animated the emergence of disciplines such as philology, history, theology, political theory, and economics. In the process, he provides us with an alternate and disquieting history of our own scholarly, political, and religious practices." -David Nirenberg

Further information is available here.