Curran on the Declaration of Independence and the Declaration of the Rights of Man

 Vivian Grosswald Curran, University of Pittsburgh School of Law, has posted Disentangling the U.S. Declaration of Independence and the French Declaration of the Rights of Man and Citizen, which is forthcoming in the Duke Journal of Comparative and International Law:

Le Barbier's Declaration (wiki)

The American Declaration of Independence and Revolution are linked to the French Declaration of the Rights of Man and Citizen and its Revolution through the mutual, strong influences of the Enlightenment philosophes whom both the American Founding Fathers and the French revolutionaries read. They also were linked through acquaintance and ongoing communication, with the American Declaration serving as a model for the first, but not final, draft of the French one. Both Declarations and Revolutions were to follow divergent paths through time, however, a cause for great concern in nineteenth-century France when intellectuals such as Laboulaye, Tocqueville and Taine, fearful for France’s future in yet another new régime, looked to America’s foundational documents and governmental system to uncover the secrets of America’s stability and of France’s failure to safeguard the principles of 1789. This article proposes that the answers were far less to be found in the U.S. documents or bicameral legislative structure than in a comparative, contextual examination of the two societies, their populations and their political histories. Those were the differences which led France to sink into a Reign of Terror within a few years of its Revolution and to proceed to seesaw among various forms of government thereafter, while the United States was able to enjoy a single Constitution and general political stability.  The aims of each Revolution differed, as did the consequences of those differences, including how each nation perceived and dealt with freedom of religion, the abolition of slavery and the struggle for women’s equality. In France, the Revolution was intended to achieve a total rupture with the past, but France unwittingly fell prey to its past, as the absolutist tradition of the monarchy permeated its ranks in new ways, transforming egalitarianism into repression. In America, the colonists’ chief complaint had been their lack of representation in the British Parliament, not a wish to change a constitutional form of government which allowed for freedom of representation and had a king who bowed to the will of Parliament. After the American Revolution, the French looked to the new country overseas, often both idealizing and distorting it, with a view to how it could be a model for a new France.  The two nations had a common point of departure in the literature of the philosophes which had deeply inspired and captured the imagination of the American Founding Fathers and the French revolutionary thinkers alike. Even a written text, however, is interpretive, such that the texts themselves were a function of what they meant to their readers. Some have thought that the Founding Fathers understood Montesquieu’s intentions better than the French. This article hopes to illuminate twists and turns from a shared point of departure, and to address ongoing debates concerning their nature.  

--Dan Ernst 

Li's "Translating Weimar"

[We have the following announcement from our friends at the Max Planck Institute for Legal History and Legal Theory of a new open access publication in its series, Global Perspectives on Legal History.  DRE]

Fupeng Li, Translating Weimar: The Cultural Translation of the Weimar Constitution in China (1919-1949).  Global Perspectives on Legal History. Vol. 28

How can a constitution imagine social revolution? This book answers this question by placing social rights at the center of the Weimar Constitution's long journey to China. It tells a global legal history of how jurists and legislators used constitutional language to conceptualize 20th-century projects of social transformation.

Moving between Germany and China, the book follows the Weimarer Reichsverfassung as it was read, translated, and rewritten by Chinese actors. Rather than treating the Weimar Constitution's influence as a simple "reception" of foreign ideas, it reconstructs how Chinese jurists used debates on labor, welfare, and economic order to rethink what a social constitution could be - and what kind of social revolution it might legitimately guide.

At the core of the analysis lies a structural shift: from the Weimar Constitution's rights-based model of social order to the policy-oriented constitutionalism that came to characterize modern China. Drawing on multilingual archives and constitutional drafts, the study traces how the Weimar Constitution's catalog of fundamental social rights was progressively reframed as Fundamental National Policies, transforming social rights into state programs, planning targets, and ideological commitments.

Organized around the triad of space, time, and tradition, the book maps the routes by which German Staatsrechtslehre and the Weimar Constitution's concept of social rights entered Chinese debates, shows how they were positioned within changing temporal narratives of crisis and revolution, and examines how they were negotiated in the encounter with Confucian statecraft, revolutionary nationalism, and socialist planning. In doing so, it offers a new framework for understanding how constitutions mediate social revolution through the cultural translation of rights into policies.

The book will interest scholars and students of constitutional law, global legal history, and modern Chinese history who seek to understand how social rights traveled across borders - and how, in the process, they quietly remade the meaning of both "constitution" and "revolution" in the 20th century.

Stenlund on Sweden, Rule-of-Law Talk, and the US Right

On Tuesday, April 28, 15:00-16:30, Helsinki time, which is seven hours ahead of EDT, Karolina Stenlund, a lecturer at the Faculty of Law at the University of Helsinki, the holder of a doctoral degree in law, and a former visiting doctoral researcher at Harvard Law School, will present in the Helsinki Legal History Series seminar:

My presentation for HLHS will be on an article that examines the uneasy relationship between the rule of law and democratic backsliding through a legal-historical case study of Sweden. Challenging the conventional assumption that legality and the rule of law inherently safeguard democracy, the article traces how early rule-of-law discourse and rights-based litigation in Sweden emerged not from left-wing civil rights activism but from a right-libertarian legal movement inspired by U.S. public-interest law firms. Through an analysis of the landmark 2006 "Uppsala case" and the intellectual and strategic foundations behind it, the article shows how concepts such as equality and the rule of law were mobilized to expand judicial power and reshape the balance between courts and the political branches. By situating these developments within Sweden's unique political and constitutional history, the article highlights how legal strategies aimed at strengthening individual rights can simultaneously redistribute political power in ways that complicate dominant narratives of democratic resilience. The piece forms part of an ongoing research project and should be read as work in progress.

Online attendance (listen-only) here.

--Dan Ernst

Kennedy on Derrida and the Crits

Duncan Kennedy, Harvard Law School, has posted The reception of Jacques Derrida in American Critical Legal Studies: 

This article describes in some detail the way in which critical legal scholars in the 1980s read, appropriated and then used versions of some of Jacques Derrida’s ideas, particularly the idea of deconstruction. They first of all understood deconstruction as a procedure close in many ways to the sociological jurists’ and legal realists’ critiques of the conceptual apparatus of classical legal thought. They debated and disagreed about the implications of the resulting Franco-American amalgam and applied different versions of it to contemporary debates about legal reasoning and doctrinal indeterminacy, and then extended them to debates about gender, “identity” and law and economics. The article ends with my own existentialist decisionist reading, from within these debates, of some canonical Derridean aphoristic slogans.  

--Dan Ernst 

Dinkel on Transnational Inheritances from the US

Also new online from Law and History Review: “The Rich Uncle from America”: Transnational Inheritance Transfers between the United States, Germany, and Russia, 1840s–1980s, by Jürgen Norbert Dinkel, University of Leipzig:

This article examines cross-border inheritance transfers between the United States, Germany, and Russia between the 1840s and the late 1980s. These transfers were not only characterized by private considerations and kinship networks but were also strongly intertwined with national and international political developments. This article argues that the history of transnational inheritance transfers since the 19th century can be subdivided into three distinct periods. The first period, from the mid-19th century to 1914, witnessed the gradual development and expansion of professional networks and legal agreements designed to facilitate cross-border estate transfers. By contrast, the second period, from World War I and the October Revolution of 1917 through the late 1960s, was a time of unprecedented global disruption. Unlike the half-century before World War I, governments and probate courts complicated, delayed, and prevented inheritance transfers across state borders due to military and ideological conflicts. During the third period, beginning in the 1960s, governments, international organizations, lawyers, and families resumed efforts to create structures that would legally protect and enable cross-border estate transfers in an increasingly globalized world.

--Dan Ernst

Kroncke on American Legal Education and Chinese Law Reform

Jedidiah J. Kroncke, University of Hong Kong Faculty of Law, has posted Model, System, or Node? Understanding Legal Education Reform in Twentieth-century China and Beyond:

This chapter examines the complex influence and impact of American legal education models in China's 20th-century legal reforms. It argues that while American legal ideas were widely discussed and promoted, their actual influence on China's legal education system was limited. A conceptual framework is introduced which distinguishes between a country's system of legal education, its ideal model of a law school, and episodic nodes for integrating elite domestic and international legal capital. The analysis reveals that American legal education, particularly the "Harvard model," was often presented as an ideal for reform in China. However, it primarily functioned as a model for elite, non-replicable nodes. Ultimately, this chapter challenges claims of significant American influence. It also highlights the importance of understanding the contested nature of legal education reform within China's specific historical and political context.

--Dan Ernst 

Dworniczak et al. on Legal Transplants

Dominik Dworniczak, Dorota Nowacka, Carolina Paulesu, Mathias Siems, and Onur Ucarer have posted The Notion of Legal Transplants Beyond the Anglosphere: Decentring the Debate:

Legal transplants are key to understanding the evolution of law in a global context. Current debates on this topic focus predominantly on publications in English. By contrast, this article explores how scholars in French, German, Italian, Polish, Spanish and Turkish language publications have discussed the idea of legal transplants. It identifies alternative terms used in these languages and examines how debates on legal transplants vary across different countries, considering historical, doctrinal, theoretical and critical perspectives. The analysis reveals that each country's legal history results in diverse approaches to legal transplants, in particular each country's role as a donor or recipient. While acknowledging some influence of Anglophone scholarship, this research thus emphasises home-grown discussions predating this literature and highlights the absence of a fully integrated transnational legal discourse. Moreover, the article advocates for a normative shift towards a more critical and cosmopolitan evaluation of legal transplants, also paying closer attention to their design ex-ante.

--Dan Ernst

Stern on the English Roots of Notice-and-Comment Rulemaking

Just out in the Yale Law Journal: The Lost English Roots of Notice-and-Comment Rulemaking, by Rephael G. Stern, who currently is the Raoul Berger-Mark DeWolfe Howe Fellow in Legal History at the Harvard Law School and will be joining the Boston University law faculty this summer.  Here is the abstract:

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking.

These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth

centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework.

While they transplanted the “notice” and “comment” dimensions of English procedure, the Americans ultimately decided not to import a legislative veto, which was a critical part of rulemaking procedures in England.

By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes an initial step toward recovering a largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure’s supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure.

--Dan Ernst

Brown on Sieyès’s Constitutional Jury and the Pennsylvania Council of Censors

This is gated but extremely interesting.  Angus Harwood Brown has published Sieyès’s Constitutional Jury, the Pennsylvania Council of Censors, and the Debate on the Conservative Power in the French Revolution in the Journal of the History of Ideas 85 (July 2024): 479-508:

Emmanuel Joseph Sieyès (wiki)

Emmanuel-Joseph Sieyès’s 1795 proposal for a Constitutional Jury is usually portrayed as the first proposal for an institution to control the constitutionality of laws, and thus the ancestor of the modern constitutional court. Challenging this view, this article resituates the Constitutional Jury in a broader transatlantic tradition concerned with creating a conservative power, a non-judicial and explicitly political constitutional guardian, and demonstrates the influence of the 1776 Pennsylvania Council of Censors on Sieyès’s Constitutional Jury. Drawing upon the insights provided by this tradition, it then reevaluates the history of constitutionalism and the contemporary crisis of constitutional guardianship.

--Dan Ernst

Ruskola on Montesquieu and "Oriental Despotism"

Teemu Ruskola, University of Pennsylvania Carey Law School, has posted Oriental Despotism Inside Out: On the Global Travels of Montesquieu’s De l’esprit des lois:

Baron de Montesquieu (NYPL)

This speculative essay analyzes Montesquieu’s comparative method in his De l’esprit des lois (1748) and its contemporary legacies. It takes as its focus his theory of Oriental despotism. The first half of the paper focuses on two aspects of his method. First, Montesquieu’s empirical approach to political theory marks him apart from his humanist predecessors. Turning away from natural law and a search for universal principles, he instead attends to nature itself in order to understand the diversity of social and legal phenomena. Second, I comment briefly on Montesquieu’s reworking of Europe’s metageographic status. I analyze him as a key figure in replacing an essentially religious distinction between the Christian world and a heathen Orient with a more plural world divided into continents marked by cultural and political differences.

In the second half of the paper I turn to Montesquieu’s use of China as a paradigmatic instance of “Oriental despotism.” Paradoxically, Montesquieu develops his idea of despotism as a critique of French absolutism while projecting its prototype into the Orient, China in particular. In the final analysis, however, Montesquieu himself is forced to admit that in several key respects China does not fit the category it supposedly exemplifies. Yet despite its flawed empirical foundation, over time Oriental despotism mutates from a theory of politics into a theory of scientific racism with global implications. I conclude by examining the geopolitical implications of Montesquieu’s analysis with respect to the discourse of Chinese authoritarianism today.

--Dan Ernst

Kroncke on the Lost Era of US-China Constitutional Engagement

On March 29, 2024, from 12:20 pm - 1:20 pm, Jedidiah Kroncke, Associate Professor of Law, University of Hong Kong, will present the paper Thomas Jefferson, Carsun Chang and A Lost Era of U.S.-China Constitutional Engagement in 308 Morgan Meeting Room of Austin Hall, at the Harvard Law School.

Professor Kroncke’s study recovers a lost era of Sino-American constitutional imagination surrounding the drafting of the 1946 Republic of China Constitution. It examines the transnational dynamics that led the Constitution’s initial drafter, Carsun Chang, to travel to the U.S. in 1945 to ostensibly study the ideas of Thomas Jefferson then ascendant in New Deal constitutional rhetoric.

This study recontextualizes Chang’s life as one of China’s new generation of cosmopolitan intellectuals moving between its contentious post-dynastic politics and the institutions of the post-World War II international legal order. Chang’s invitation by the Roosevelt Administration involved many little known but determinative turns, including the role of a subset of Truman Administration officials actively enamored with Jefferson’s own study of Confucianism.

Transnationalizing our understanding of the 1946 Constitution helps reveal how the geopolitics of the Chinese Civil War intersected with the presumed projection of American constitutional values increasingly embedded in American internationalism. The fallout from the drafting process also illuminates the transition of America from a global symbol of constitutional revolution to a symbol of global racial empire. Recapturing this era has implications for originalist-styled constitutional arguments made in contemporary Taiwan, as well as evaluating the international dimensions of Jefferson’s deeply problematic domestic legacy.

A boxed lunch will be provided.  East Asian Legal Studies is sponsoring the event.

--Dan Ernst

MPI-TAU Transnational Legal History Workshop

[We have the schedule for the Transnational Legal History Workshop, sponsored by the Max Planck Institute and Tel Aviv University.  DRE]

The Berg Foundation Institute for Law and History at The Buchmann Faculty of Law, Tel Aviv University, and the Max-Planck-Institute for Legal History and Legal Theory will continue the joint MPI-TAU Transnational Legal History Workshop in the Fall Semester 2023/2024.

The workshop will meet from 19:00-20:30 (Frankfurt time) and 20:00-21:30 (Tel Aviv time). This year's organizers and moderators are Leora Bilsky (TAU), Thomas Duve (MPI), Rachel Friedman (TAU), David Schorr (TAU), and Stefan Vogenauer (MPI).

Sessions will be conducted on Zoom and will be based on pre-circulated papers. The papers will be sent to each participant one week in advance.

Registration for participation is required: mpitauwkshp@gmail.com

6 December                Assaf Likhovski (TAU)

Studying Ancient Constitutional Law in Colonial India and Mandatory Palestine

13 December              Jan-Henrik Meyer (MPILHLT)

European Community Environmental Law in the 1970s: Combatting Water Pollution

20 December              Noga Morag-Levine (Michigan State University)

England’s Missing Boards of Health: The Medieval Beginnings of an Anglo-Continental Divergence

10 January                  Alon Jasper (TAU)

Transforming a Polity into an Economy: The Five Nations and the Railroads, 1855-1894

17 January                  Raquel Sirotti (MPILHLT)

State-like powers? Charter Companies and the production of knowledge of normativity in Mozambique (1891-1942)

24 January                  Egas Moniz Bandeira (FAU)

Changing Legal Professions in China, Japan, and the Ottoman Empire in the long 19th century: Towards a Historical Comparison

31 January                  Aparna Balachandran (Delhi University)

Religion, Law and Urban Governance: Subaltern Christians as Legal Subjects in Early Colonial South India

7 February                  Cristiano Paixão (University of Brasília)

Transnational legal mobilization: repressive structures and networks of resistance in S. American dictatorships (1964-1988)

14 February                Julia Moses (University of Sheffield)

Harmonizing the Family? International Law, Cultural Norms and Marriage at the Turn of the Twentieth Century

21 February                Sarina Kuersteiner (Union College)

Whatever God Gives: Arabic and Judaeo-Arabic Rizq and Latin Resicum in Commercial Vocabulary, 1154-1164 CE

Rabban on Jhering and American Legal Thought

David Rabban, University of Texas at Austin School of Law, has published "Jhering’s Influence on American Legal Thought” in the collection, Jhering Global: Internationales Symposium Zum 200. Geburtstag Rudolf Von Jherings (1818-1892), which was the product of this conference.  From Professor Rabban's introduction:

Rudolph von Jhering has influenced American legal thought since the late nineteenth century, though the nature of his influence has varied over time. In this essay, I proceed chronologically. I begin with the late nineteenth-century American legal scholars who admired Jhering as part of the great tradition of German legal scholarship they viewed as a model for their own. Like American scholars in numerous disciplines during this period, many of them had studied as postgraduates in Germany. Jhering himself declared in an 1881 letter to his German colleague, Oskar von Bülow: “my writings are widely read even in the United States, and a review of my book, The Ends of Law, is the most brilliant which has ever appeared about any of my works.”1 I then address Jhering’s substantial influence on Oliver Wendell Holmes, Jr. and Roscoe Pound, two of the most important figures in the history of American legal thought. I focus on Holmes’s famous book, The Common Law, published in 1881, and Pound’s development of “sociological jurisprudence” in the decade before World War I. Jhering also influenced both adherents and critics of the “legal realism” that emerged in the 1920s and 1930s, which many perceive as an extension of sociological jurisprudence. Scholars in the United States often applied to American law their understanding of Jhering’s position that the prevailing overemphasis on deductive logic and abstract legal theory should be replaced by a social theory of law consciously designed to promote the present public interest. They relied on Jhering as well in analyzing technical legal doctrine, as I point out in discussing classic articles on contract law by Lon Fuller in the 1930s and Friedrich Kessler in the 1960s. Kessler emigrated to the United States as a refugee from Nazi Germany in the 1930s after receiving his legal education in Germany.

–Dan Ernst

Deardorff's "Tale of Two Granadas"

Max Deardorff, University of Florida, has published A Tale of Two Granadas: Custom, Community, and Citizenship in the Spanish Empire, 1568–1668 (Cambridge University Press, 2023):

This book offers a wide-ranging analysis of transforming conceptions of citizenship in the Spanish monarchy as it became a global empire. Side-by-side case studies of old Granada (southern Spain, core settlement of Spain's last independent Islamic polity) and colonial New Kingdom of Granada (modern Colombia) show that Spanish ecclesiastics' involvement in the Council of Trent (1545-1563) went hand-in-hand with the monarchy's thinking about the structure and cohesion of its empire. With fine-grained archival work, the book shows how two subject communities -- Andalusi "moriscos" of old Granada and indigenous Muiscas of the New Kingdom of Granada -- weathered a century of political and social change that followed. At stake were the question of the terms of colonial indigenous integration into the monarchy’s social structures and the looming threat of disenfranchisement faced by Granada’s “moriscos.” A Tale of Two Granadas makes the case that even more than 1492, the year that completely reshaped the monarchy was 1568. That year was both the beginning of the famed Rebellion of the Alpujarras in southern Spain, and the year when the famous Junta Magna met in  Madrid to lay out grand new plans for the administration of the monarchy's colonies overseas.

Here is an endorsement:

‘In this lucidly written book, Max Deardorff explores what citizenship meant for those social actors in the early modern Spanish territories who faced degrees of exclusion due to their ethnicity and proximity to orthodox Christianity. Meticulously researched and engagingly written, Deardorff brings together the Iberian Atlantic by looking at lesser-studied regions and the people inhabiting their margins, and also, at the Spanish powerholders who moved across the two jurisdictions.’

Joanne Rappaport - Georgetown University

--Dan Ernst

Havasy on 19th-Century European Thought on Administrative Law

Christopher Havasy, Penn State Dickinson Law, has posted Radical Administrative Law, which is forthcoming in the Vanderbilt Law Review:

The administrative state is under attack as judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that they have a point to scrutinize the massive powers that agencies hold over citizens. However, their solution to augment the powers of Congress or the President over agencies to instill indirect democratic accountability is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.

This Article excavates 19th-century European intellectual history following the rise of the modern administrative state as inspiration to illuminate how agencies can improve their democratic credentials to justify agency powers over the citizenry. While such thinkers might seem far afield of current public law discussions, this unlikely group of 19th-century legal and political theorists has already extensively theorized contemporary concerns about agencies coercing citizens without proper democratic accountability. These theorists, whom I call administrative “radicals,” presented a much more radical conception of the role of agencies in governance than contemporary critics. Instead of stripping agencies of their powers, the radicals had a much bolder proposal – democratizing the administrative state so the citizenry could instill direct democratic accountability over the agencies that coerced them. Importantly, the radicals influenced the first generation of American administrative law scholars, who looked to these radicals to figure out how to democratize the nascent American administrative state.

The radical tradition inspires us to transform the relationship between agencies and the citizenry and rethink how agencies fit within the separation of powers and administrative law. Instead of viewing agencies as stuck in the middle of a perpetual tug-of-war between Congress and the President, the radical tradition encourages us to focus on agencies themselves by shaping the relationships between agencies and the citizenry to instill direct democratic accountability. Under this radical separation-of-powers framework, the people serve as the common source of accountability for Congress, the President, and the administrative state. In doing so, embracing radical administrative law mitigates the concerns that give rise to reviving the nondelegation doctrine, eliminating removal protections, and expanding the major questions doctrine. The radical tradition also reinvigorates discussions of political equality in administrative law and suggests a reduced judicial role to police the substance of agency decisions. 

--Dan Ernst

Schmidt on Legal Realism, Free Law, and Hermann Kantorowicz

Katharina Isabel Schmidt’s article How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927–34, is now available open access from  Law and History Review.  Highly recommended!

Hermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.

–Dan Ernst

Rechtsgeschichte – Legal History 30

[We have the following announcement.  DRE]

Rechtsgeschichte – Legal History issue 30 published

Now in its 20th year of publication, the latest issue of Rechtsgeschichte – Legal History (Journal of the Max Planck Institute for Legal History and Legal Theory) once again brings together outstanding research contributions on legal historical topics as well as a considerable number of wide-ranging reviews.

This year’s Research section begins with Elizabeth Papp Kamali’s study on the consequences of the excessive consumption of alcohol in medieval English criminal law. Jan Schröder offers a close analysis of the sources to investigate the meaning of words in early modern legal and linguistic theories. The editors of the four-volume Handbuch zur Geschichte der Konfliktlösung in Europa – Handbook on the History of Conflict Resolution in Europe (Peter Collin, Wim Decock, Nadine Grotkamp,David von Mayenburg, Anna Seelentag) explain the conceptualisation underlying this standard reference work (published in 2021), and provide a brief overview of some of the overall patterns and findings emerging from this major project.

The Focus sections cover two fields of modern legal history from an international perspective. Karl Härter and Valeria Vegh Weis provide a substantial introduction to the topics discussed in the Focus on Transnational Criminal Law in Transatlantic Perspective (1870–1945), which comprises contributions by three authors (Elizabeth Gómez Alcorta, Nicolás Duffau, Paul Knepper) who particularly explore Latin American dimensions. The second Focus is dedicated to the complex field of labour law history and includes studies from both German and British researchers (Gerd Bender, Rebecca Zahn, Thorsten Keiser, Martin Otto, Johanna Wolf, Tim-Niklas Vesper, Benjamin Spendrin, Matthias Ebbertz).

As always, the reviews in this edition cover a broad spectrum of regions and epochs, ranging from the cuneiform transmission of the Codex Hammurabi to a three-volume history of Chinese legal culture and the European banking union – and for the first time also includes reviews of digital source editions. Finally, two Marginalia on the visualisation of law conclude this volume – and they could not be more different: Erk Volkmar Heyen’s contribution investigates the figuration of iustitia in the context of the political aspects of Marian devotion in the early 16th century. Daniel Damler, on the other hand, takes the reader into the dark canyons of Batman’s hometown Gotham City. This last contribution also inspired this year’s atmospheric picture series of black-and-white photographs of New York City by Otto Danwerth.

Rechtsgeschichte – Legal History 30 is now available in print from the publisher Vittorio Klostermann and online in Open Access via the journal's website.

American Legal Education Abroad: Critical Histories

Here is a fuller description, including the TOC, of the previously noted essay collection, American Legal Education Abroad: Critical Histories, edited by Susan Bartie and David Sandomierski (New York University Press:

The second half of the twentieth century witnessed the export of American power-both hard and soft-throughout the world. What role did US cultural and economic imperialism play in legal education? American Legal Education Abroad offers an unprecedented and surprising picture of the history of legal education in thirteen countries beyond the United States. Each study in this book represents a critical history of the Americanization of legal education, re-examining prevailing narratives of exportation, transplantation, and imperialism. Collectively, these studies challenge the conventional wisdom that American ideas and practices have dominated globally. American Legal Education Abroad begins with a foundational history by leading Harvard Law School historian Bruce Kimball, who explains the factors that created a transportable American legal model, and the book concludes with reflections from Susan Carle and Bob Gordon, whose observations on recent disruptions within US law schools suggest that their influence within the global order of legal education may soon fall into further decline.

This book should be considered an invaluable resource for anyone in the fields of law, legal history, socio-legal studies, law and society, legal education, comparative law, colonial and postcolonial legal studies, globalisation and law, and intellectual and cultural history.

Table of Contents

Introduction  

Part 1: Foundation Stories

1. The Proliferation and Transformation of Harvard's Case Method in the United States, 1870s-1990s. Bruce A. Kimball

2. How America Did (and Didn't) Influence English Legal Education, circa 1870-1965. David Sugarman

Part 2: Americanization-Critical Histories

3. American Influences, Canadian Realities: How "American" Is Canadian Legal Education? Philip Girard

4. Functionalism, Legal Process, and the Transformation (and Subordination) of Australian Law Schools. Susan Bartie

5. Conservatives, Nationalists, and American Romantics Debating Legal Education in Kwame Nkrumah's Ghana. John Harrington and Ambreena Manji

6. Transplantation and Domestication of American Models of Legal Education in Nigeria. J. Jarpa Dawuni and Rebecca Emiene Badejogbin

7. Model, System, or Node? Understanding Legal Education Reform in Twentieth-century China and Beyond. Jedidiah J. Kroncke

8. Transplants in Estonian Legal Education: Influences from the US Legal System. Irene Kull, Merike Ristikivi, and Aleksei Kelli

9. "The Turn to the West": American Legal Education and Educational     Reforms in the Swedish Welfare State, 1950-2000. Kjell Å Modéer

10. The American Case Method and New Japanese Legal Education. Yoshiharu Matsuura

11. Legal Education in France Turns Its Attention to the Harvard Model. Jean-Louis Halpérin

12. American Moment(s): When, How, and Why Did Israeli Law Faculties Come to Resemble Elite US Law Schools? Pnina Lahav

13. Catalytic Agents? Lon Fuller, James Milner, and the Lawyer as Social Architect, 1950-1969. David Sandomierski

14. Legal Teaching and the Reconceptualizing of the State: Global Law and New Legal Education Loci. José Garcez Ghirardi

15. Socratic Method, Philippine-style: To Unhave or Uphold? Emily Sanchez Salcedo

Part 3: US Perspectives

16. Rethinking Assumptions about the Global Influence of US Legal Education. Susan D. Carle

17. The Harvard Models in Their Native Habitat and Abroad: Reflections. Robert W. Gordon

The Contributors

Rebecca Emiene Badejogbin, Director of Academics, Council of Legal Education, Nigerian Law School.

Susan Bartie, Senior Lecturer in Law, University of Tasmania.

Susan D. Carle, Professor of Law, American University Washington College of Law.

J. Jarpa Dawuni, Associate Professor of Political Science, Howard University, Washington, DC, and Executive Director, Institute for African Women in Law.

José Garcez Ghirardi, Associate Professor, FGV SP Law School, Brazil.

Philip Girard, Professor, Osgoode Hall Law School, Toronto.

Robert W. Gordon, Professor of Law, Stanford University, and Chancellor Kent Professor of Law & Legal History, Emeritus, at Yale University.

Jean-Louis Halpérin, Professor (exceptional class), École Normale Supérieure, Paris and Director of the Unité mixte de recherche 7074-Centre for Legal Theory and Analysis (CNRS-University Paris X-ENS and EHESS).

John Harrington, Professor of Global Health Law and Director of the Centre for Law and Global Justice, Cardiff University and Director of the ESRC Doctoral Training Programme in Wales.

Aleksei Kelli, Professor of Intellectual Property Law, Faculty of Law, University of Tartu, Estonia.

Bruce A. Kimball, Professor in Philosophy and History of Education, The Ohio State University.

Jedidiah J. Kroncke, Associate Professor of Law, University of Hong Kong.

Irene Kul, Professor of Civil Law and Head of the Department of the Civil Law, University of Tartu, Estonia.  

Pnina Lahav, Professor, Boston University School of Law.

Ambreena Manji, Professor of Land Law and Development, Cardiff University.

Yoshiharu Matsuura, Professor Emeritus and Designated Professor for a special graduate program, Nagoya University Graduate School of Law.

Kjell Å Modéer, Professor Emeritus of Legal History, Lund University, Sweden.

Merike Ristikivi, Associate Professor of Legal History in the Faculty of Law, University of Tartu, Estonia.

Emily Sanchez Salcedo, Teacher, Commercial Law Department, De La Salle University in the Philippines.

David Sandomierski, Assistant Professor, Faculty of Law, Western University in London, Ontario.

David Sugarman, Professor Emeritus of Law, Lancaster University Law School; Senior Associate Research Fellow, Institute of Advanced Legal Studies, University of London; and Senior Associate, Centre for Socio-Legal Studies, University of Oxford.  

American Legal Education Abroad

NYU Press has published American Legal Education Abroad: Critical Histories, edited by Susan Bartie and David Sandomierski.  

The second half of the twentieth century witnessed the export of American power—both hard and soft—throughout the world. What role did US cultural and economic imperialism play in legal education? American Legal Education Abroad offers an unprecedented and surprising picture of the history of legal education in fourteen countries beyond the United States.

Each study in this book represents a critical history of the Americanization of legal education, reexamining prevailing narratives of exportation, transplantation, and imperialism. Collectively, these studies challenge the conventional wisdom that American ideas and practices have dominated globally. Editors Susan Bartie and David Sandomierski and their contributors suggest that to understand legal education and to respond thoughtfully to the mounting present-day challenges, it is essential to look beyond a particular region and consider not only the ideas behind legal education but also the broader historical, political, and cultural factors that have shaped them.

American Legal Education Abroad begins with an important foundational history by leading Harvard Law School historian Bruce Kimball, who explains the factors that created a transportable American legal model, and the book concludes with reflections from two prominent American law professors, Susan Carle and Bob Gordon, whose observations on recent disruptions within US law schools suggest that their influence within the global order of legal education may soon fall into further decline. This book should be considered an invaluable resource for anyone in the field of law.

An endorsement:

This fascinating collection of essays by eminent legal scholars and historians examines the global influence of American legal education. The essays are by no means formulaic, as the impact of American legal education is considered in the light of each country’s varied historical and political context, whether it be decolonization in Nigeria or post-Soviet experience in Estonia. The essays also eschew the simplistic and one-dimensional view that American legal education was accepted without question, as there was actual resistance on the part of France, for example, and Japan regarded it as irrelevant." ~Margaret Thornton, Professor of Law Emerita, The Australian National University

–Dan Ernst

A Transnational Legal History Workshop

 [We have the following announcement.  DRE]

The current pandemic has encouraged many to experiment with new formats for research and teaching. In our own contribution to the trend, the Max Planck Institute for Legal History and Legal Theory and the Faculty of Law at Tel Aviv University, in cooperation with the Faculty of Law at Goethe-Universität Frankfurt, will be hosting an online Transnational Legal History Workshop this coming semester.

Participants will discuss pre-circulated legal history papers that go beyond national framings, with authors hailing from institutions around the world. A sample of authors and topics:

• James Whitman, "From Masters of Slaves to Lords of Lands: Imagining Ownership in the Western World"
  

• Doreen Lustig, "Towards a Grassroots History of International Law"
  

• Tamara Morsel-Eisenberg, "Rabbinic Responsa and Legal Communication"
  

• Paul du Plessis, "The Limits of Legal History"
  

• Elisabetta Fiocchi, "Transnational Entanglements in Land Law and Land Registration in the 19th Century"
  

• Heikki Pihlajamäki, "Transnational Elements in Colonial Laws: Spain, Portugal and the Netherlands"
  

The workshop will meet online Tuesdays at 7 pm Frankfurt time from mid-October to mid-January (with a break for Christmas/New Years).

Participation in the workshop is open to all interested scholars, junior and senior alike. Students may be able to receive academic credit through Tel Aviv University.

For more information and to register participation, please contact mpitauwkshp@gmail.com.

Thomas Duve (MPI & Goethe)
David Schorr (TAU)
Stefan Vogenauer (MPI & Goethe)