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.”

Carrai's "Soveriegnty in China

Maria Adele Carrai, Katholieke Universiteit Leuven, Belgium, has recently published Sovereignty in China: A Genealogy of a Concept since 1840, with Cambridge University Press:

This book provides a comprehensive history of the emergence and the formation of the concept of sovereignty in China from the year 1840 to the present. It contributes to broadening the history of modern China by looking at the way the notion of sovereignty was gradually articulated by key Chinese intellectuals, diplomats and political figures in the unfolding of the history of international law in China, rehabilitates Chinese agency, and shows how China challenged Western Eurocentric assumptions about the progress of international law. It puts the history of international law in a global perspective, interrogating the widely-held belief of international law as universal order and exploring the ways in which its history is closely anchored to a European experience that fails to take into account how the encounter with other non-European realities has influenced its formation.

Here are some endorsements:

'The Confucian admonition that one needs to study the past to understand the present is especially apt when it comes to China and sovereignty. Fortunately, Dr Maria Adele Carrai’s new book provides a superb genealogy of Chinese approaches to sovereignty over time, from historic times to the present, that will be a key departure point on this important topic for years to come.'

William P. Alford - Jerome A. and Joan L. Cohen Professor of East Asian Legal Studies and Director of East Asian Legal Studies, Harvard University, Massachusetts

'Carrai’s innovative conceptual history of ‘sovereignty’ in China explores the changing meanings of international law and its structures of authority and legitimacy through three periods of dramatic Chinese political transition. This is a study not only of Chinese reception and adaptation. It provides a foundation for scrutiny of China’s active participation in shaping our present international legal order.'

Madeleine Zelin - Dean Lung Professor of Chinese Studies, Columbia University, New York

'This is a stimulating, learned, and readable analysis of the many uses the malleable concept of ‘sovereignty’ has served in China’s relations with the world for almost two centuries. It offers invaluable assistance for parsing the rhetoric of both Xi Jinping and Donald Trump in the current East-West contest for domination.'

Jerome A. Cohen - Faculty Director of US-Asia Law Institute, New York University

'This study provides a much-needed concise history of the genealogy of sovereignty as a central concept of modern international law and politics in the context of Chinese transformation and Sino-foreign encounters since the mid nineteenth century. Its nuanced analysis of Chinese specificity and agency in shaping international legal and political history will be of great interest to scholars of China, comparative politics, and international history.'

Li Chen - University of Toronto

'Sovereignty occupies the conceptual heart of the Chinese Communist Party’s bid to claim for China its rightful place in the world and to justify its international policies. By showing how this concept emerged and what it means today, Carrai sets out the rhetorical terrain across which those who wish to enter into conversation with official China will have to make their way.'

Timothy Brook - Republic of China Chair, Department of History, University of British Columbia

–Dan Ernst

Weekend Roundup

• After the story broke about NPR's failure to cite historian Sarah Milov in a segment on her work, journalist Caroline Kitchener at The Lily followed up: "It’s not just Sarah Milov. Female academics aren’t credited in media ‘all the time.’" The follow-up article includes quotes from Women Also Know History co-founder Emily Prifogle (University of Michigan) and others.

• Robin Lindley’s HNN interview of Robin Chapman Stacey, University of Washington, the author, most recently, of Law and the Imagination in Medieval Wales, is here.

• From our friends at the Max Planck Institute for European History, a post on the British Legal History Conference 2019.

• David A. Reidy, University of Tennessee, has posted a draft chapter from his forthcoming intellectual biography, John Rawls: Envisioning Democracy.  It covers "Rawls's years at Cornell University from 1953-1958 and the gestation of the first (quite incomplete and underdeveloped) expression of justice as fairness in 1958."

• A recent Economist article took a swipe at historians, claiming that they "remain isolated in their professional cocoons, spending more time fiddling with their footnotes than bringing the past to light for a broader audience." Historians beg to differ here.

• And speaking of broader audiences: read or listen to this interview with Kalyani Ramnath, Harvard in The Polis Project's Suddenly Stateless series, exploring India's controversial National Register of Citizens and the people fighting to be recognized by it. 

• Just out online from Law and History Review and Cambridge Core is Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903-58, by Rabiat Akande, an SJD candidate at the Harvard Law School.

• From an email to John Q. Barrett 's listserv, we learn that Attorney General William Barr has reclaimed the official Department of Justice portrait of Robert H. Jackson.  Not the most outrageous association with a historical figure we can think of.  DRE

• ICYMI: Farah Peterson, University of Virginia Law, on Black Lives and the Boston Massacre in The American Scholar.  Also, Flos Greig, Australia’s first female lawyer.

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