Academic literature on the topic 'History of the constitutional legal scholarship'
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Journal articles on the topic "History of the constitutional legal scholarship"
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Hinghofer-Szalkay, Stephan G. "Empirical Legal Studies, Comparative Constitutional Law and Legal Doctrine: Bridging the Gaps." Review of Central and East European Law 43, no. 4 (November 17, 2018): 383–410. http://dx.doi.org/10.1163/15730352-04304002.
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This article looks into the viability of approaches to engaging in empirical comparative constitutional legal analysis. Quantifying the words contained in constitutions, while by no means irrelevant, can only be an element in this. Their actual importance according to case law and other empirical data highlights the need for caution in drawing far-ranging comparative conclusions from such quantifications for constitutional legal systems. It is argued that the key phenomenon driving these systems can be found elsewhere: In the paradigmatic concepts of a particular system of legal scholarship, other epistemic communities, or society at large. However, while this phenomenon can be empirically studied, any meaningful study necessitates intimate knowledge of legal scholarship as the meaning of communicative symbols involved can strongly diverge from the paradigmatic concepts of (other) social sciences. Central and East European (cee) constitutional legal systems can be of special interest in this regard due to both close similarities and considerable variations of both positive law and the paradigms of legal scholarship and political thought. Ultimately, an empirical analysis requires a holistic and systematic approach to understanding constitutional systems, including positive law and the paradigms driving it analyzed with quantitative as well as qualitative tools. Otherwise, the push for empirical comparative constitutional legal research may thwart its goal of accurately depicting the observable world, and, in the case of quantitative analyses, can run counter to the goal pursued.
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Kalman, Laura. "In Defense of Progressive Legal Historiography." Law and History Review 36, no. 4 (November 2018): 1021–88. http://dx.doi.org/10.1017/s0738248018000421.
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This article surveys the debate between “progressives” and “revisionists” about the Constitution and constitutional interpretation during the late nineteenth and early twentieth centuries. Contemporary revisionist scholarship assumes that its victory over progressive scholarship is complete. The article suggests otherwise. First, it summarizes the revisionists’ achievements. Second, in an attempt to improve the quality of the debate, it maintains that “revisionist” and “progressive” legal historians undermine their cases by using words like “progressive,” “Gilded Age,” and “Jacksonian,” and that “revisionist” is not an enlightening term, either. Third, it contends that revisionists have made straw men out of the progressives, whose diversity and contributions they ignore, and that they have shown a lack of empathy for the circumstances facing the progressives. At considerable risk, progressives called attention to the relevance of political calculation, economic self-interest, and biography to understanding the Constitution, constitutional interpretation, and judicial power. The article also observes that revisionists have not yet won the day and that there are still “progressive” holdouts in the legal academy and history departments. Finally, it argues that like the work of “revisionists,” the scholarship of the “progressives”—particularly if we rechristen both—still has something to teach us and that it is time to abandon the familiar dialectic of thesis and antithesis and turn to synthesis.
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Desierto, Diane A. "Treaties in the Philippine Constitutional System." ICL Journal 16, no. 1 (February 28, 2022): 27–134. http://dx.doi.org/10.1515/icl-2021-0035.
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Abstract International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal basis to hold Philippine government leaders to account under the vastly expanded judicial review doctrine in the 1987 Philippine Constitution. This active individual and group resort to adjudication and legislation could explain why international law has flourished under the postcolonial and post-dictatorship 1987 Philippine Constitution. This comprehensive jurisprudential, statutory, and constitutional analysis aims to show how, and to what degree, Philippine legal culture and history reflect a continuing deep engagement with international law, in ways that are certainly unique to the Philippines’ evolving political ideologies, colonial and postcolonial history, treatment, and implementation of international treaties within the Philippine constitutional system. Most importantly, the absence of explicit methodology for the breadth of constitutional interpretation of the Incorporation Clause under the 1987 Philippine Constitution warrants normative rethinking, so as not to uniformly open the floodgates to hard international law sources (eg treaties, customs, general principles) as well as softer international instruments lacking the requisite State consent to the binding quality of such sources within the Philippine legal system. To this end, I make three proposals on how the Philippine Supreme Court could define an explicit methodology for use and interpretation of the Incorporation Clause, transparently refer to other foreign and international sources, and openly reassess its ideological bases for recognition of international law in the Philippine constitutional system, as part of the Court’s distinct judicial function.
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Ragazzoni, David. "Parties, Democracy, and the Ideal of Anti-factionalism: Past Anxieties and Present Challenges." Ethics & International Affairs 36, no. 4 (2022): 475–85. http://dx.doi.org/10.1017/s089267942200051x.
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AbstractThis essay weaves together the history of political and legal thought, contemporary democratic theory, and recent debates in legal scholarship to examine the ambivalent relationship between political parties and democracy. Celebrated as a structural necessity for the mechanics of democratic government, political parties are also handled with suspicion for their hybrid nature—neither entirely public nor completely private—and for their always-possible regression into factions. Anti-factionalism, I show, has been a powerful ideal driving constitutional imagination and practice over the centuries, from antiquity (with its emphasis on parts and its horror over factions), to the age of democratic revolutions (with its signature anxieties about divisions), up through the present. However, this long historical process has not extinguished the long-lived concern with the nature and implications of party spirit, nor has it made party democracy completely safe from revamped forms of factionalism. Two manifestations of factional politics stand out in the contemporary political landscape: authoritarian regime changes and populist constitutionalism. While the former is easy to diagnose but hard to prevent, the latter exemplifies a torsion of the constitutional and democratic imagination from within. Despite their differences, both scenarios remind us that constitutions need to envision mechanisms to prevent parties from undermining the liberal democratic order they have been designed to serve. At the same time, they call for renewed attention to the study of parties in the domains of democratic theory and constitutional scholarship.
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Leib, Ethan J. "Three Modalities of (Originalist) Fiduciary Constitutionalism." American Journal of Legal History 63, no. 3 (September 1, 2023): 183–95. http://dx.doi.org/10.1093/ajlh/njad004.
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Abstract There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled ‘fiduciary constitutionalism’. Some have wanted to strangle this work in its cradle, offering an argument pitched ‘against fiduciary constitutionalism’, full stop. But because there are enough different modalities of fiduciary constitutionalism—and particularly originalist varieties of it at the center of recent critiques—it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This article develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.
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JOH, DONG EUN. "Constituent Power: A Concept in Renewal." Korean Constitutional Law Association 29, no. 2 (June 30, 2023): 35–90. http://dx.doi.org/10.35901/kjcl.2023.29.2.35.
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The concept of constituent power is often invoked in jurisprudence and literature to account for the origin and supremacy of the constitution, the limits of constitutional amendment, and the basis of constitutional interpretation. Nevertheless, the concept of constituent power has been under criticism for quite some time, and there remains today some full-fledged arguments to dispense with it as a mythical concept, unnecessary or harmful. In order to answer the question of whether the concept of constituent power has meaning and value on the horizon of constitutional law scholarship today, it might be useful to confront these contemporary criticisms alongside a consideration of the history of the concept. A noteworthy point in the historical examination of the concept of constitutional power is the fact that Sieyès tried to distance the concept of constituent power from that of sovereignty. While Sieyès proposed ‘pouvoir constituant’ as a concept that expresses the ‘the political authority of the people’, he rejected the idea of sovereignty as a “monastic” and “colossal” that cannot give adequate explanatory function of modern form of political legitimacy. Carl Schmitt, on the other hand, who inherited the concept of constituent power from Sieyès but closely linked it to the concept of sovereignty, used the unmediated delegation of constituent power as a basis for justifying a transitional sovereign dictatorship that suspended all separation of powers. Contemporary critiques of the concept of constituent power take several forms. A positivist version suggests that the concept of constituent power as a immediate presence without representation, “das formlos Formende” is itself inconceivable. In addition, the concept reduces the question of validity and legitimacy of the legal order to the question of “who” created the constitution, while the circumstances regarding the enactment of a legal norm cannot be an independent, determinative basis for the obligation to obey the law. A normativist version argues that the concept of constituent power fails to explain coherently the problem of law's authority for it locates the source of law's authority outside the legal order. But as emphasized by Fuller and Dworkin, the authority of law is better explained by the internal morality of the legal order and this renders the concept of constituent power unnecessary. The former view contends that constitutions can only be justified in terms of their conformity to extralegal moral and practical considerations, and thus a concept of constituent power that centers on the question of “who” made them loses its importance. The latter view argues that constitutions can be justified through internal morality of the law itself, and thus the question of constitutional authority that locates the source of their authority outside the legal order is not raised in the first place. The view that the constituent power is “das formlos Formende”, the presence of the people without representation, however, may be just one interpretation of constituent power, but not the only one. Rather, Sieyès' concept which emphasizes the limited powers of the extraordinary representative in constitution-making, seems to be closely linked to considerations on the process of representation. In addition, understanding constitution-making power as extra-legal authority without any normative dimension or ‘plenitudo potestatis’, free of any legal constraints seems to be a distinctively Schmittian interpretation. It should not be overlooked that the concept of the constitution that the critiques presuppose underscores the meaning of positive ‘written’ constitution as a product of actual political processes. However, it is necessary to consider in a serious manner the problem of mystification and possible misuse of the concept of constitutional power that these criticisms highlight.
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Baker, G. Blaine. "The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire." Law and History Review 3, no. 2 (1985): 219–92. http://dx.doi.org/10.2307/743630.
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Theavailabilityof the literature of the law, an aspect of legal culture rarely considered in twentieth century Canadian commentary on the ‘reception’ of imperial laws, must have had a great deal to do with the way that sources of law informed and reflected the developing jural values, doctrine, and methodology of the British North American provinces. Yet locally-prevalent versions of legal positivism, which find expression in formalistic, contemporary constitutional scholarship on transferral issues, have tended to suppress or render irrelevant inquiries into the way that such intellectual forces as law books actually affected the development of the legal culture of Upper Canada/Ontario.
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Bilder, Mary Sarah. "James Madison, Law Student and Demi-Lawyer." Law and History Review 28, no. 2 (May 2010): 389–449. http://dx.doi.org/10.1017/s0738248010000052.
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We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders—John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson—law has been seen as largely irrelevant to Madison's intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison's significant grasp of law and his striking curiosity about the problem of language. Madison's interest in interpretation is certainly not news to scholars. These notes, however, help to establish that this interest predated the Constitution and that his interest in constitutional interpretation was an application of a larger interest in language. Moreover, Madison thought about the problem of legal interpretation as a student of law, never from the secure status of lawyer. Over his lifetime, he advocated a variety of institutional approaches to constitutional interpretation, and this comfort with nonjudicial interpreters, along with a peculiar ambivalence about the proper location of constitutional interpretation, may owe a great deal to his self-perception as a law student but never a lawyer.
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Sterett, Susan. "Constitutionalism and Social Spending: Pennsylvania's Old Age Pensions in the 1920s." Studies in American Political Development 4 (1990): 230–47. http://dx.doi.org/10.1017/s0898588x00000936.
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Rather than studying only what appellate courts do, scholars of law and society have been pointing out that the interpretation of law is an enterprise many engage in—e.g., lawyers, administrative officials, and the lay public, as well as courts. Recent scholarship has broadened the analysis of constitutional law in a way that is not Supreme Court centered. Scholars have focused on constitutionalism as the idea that words written down limit and shape political practice. For example, Michael Kammen's work shows the continuing and repetitive celebrations of the Constitution in American life, celebrations that have taken the federal constitution as “a machine that would go of itself” and as a sacred text, often forgetting how much it has been remade through reinterpretation. This focus on constitutionalism rather than on appellate court decisions leads to a broader understanding of constitutions in a polity, so that scholars analyze rights claims in addition to examining the rights that courts have said people have. This effort emphasizes the meaningful elements of law, since the definition of constitutionalism focuses on what people think they should do, or on what they have a right to do. It leads to scholarship that points out the penetration of legal language, particularly claims of rights, into American culture. With this approach, one reason to analyze elite statements of law is that they state rights in ways that become part of general political consciousness.
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Newman, Dwight, and Lorelle Binnion. "The Exclusion of Property Rights from the Charter: Correcting the Historical Record." Alberta Law Review 52, no. 3 (June 12, 2015): 543. http://dx.doi.org/10.29173/alr23.
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Canada’s Constitution has been described as an outlier among the liberal constitutions of the world because it lacks a property rights provision. The history of how property rights came to be excluded has received relatively limited consideration. This article seeks to correct the historical record by utilizing forms of analysis within legal scholarship.
Dissertations / Theses on the topic "History of the constitutional legal scholarship"
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Lainé, Julien. "Empirisme et conceptualisme en droit constitutionnel." Electronic Thesis or Diss., Lille 2, 2011. http://www.theses.fr/2011LIL20014.
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Connu en droit administratif, le thème de l’empirisme et du conceptualisme interroge la possibilité pour la doctrine, d’induire de la jurisprudence des catégories plus générales et abstraites, facilitant la connaissance d’une discipline essentiellement jurisprudentielle. L’idée de confronter cette problématique au droit constitutionnel est d’abord liée aux mutations de la discipline depuis la création du Conseil constitutionnel en 1958. Précisément, le développement de la jurisprudence constitutionnelle pouvait laisser présumer une facette empirique en droit constitutionnel, susceptible d’interroger la nécessité pour la doctrine, de procéder a posteriori à une mise en ordre synthétique des décisions du Conseil constitutionnel. En réalité, l’alternance entre l’empirisme et le conceptualisme en droit constitutionnel dépasse le seul rapport de la doctrine et la jurisprudence. La présente étude s’efforce alors de saisir dans tous les stades de la discipline, et quelles que soient les sources, le travail de systématisation du droit. Néanmoins, il ne s’agit pas de se contenter de suivre, conformément à une démarche chronologique, l’évolution de la pensée en droit constitutionnel, mais de procéder à l’identification de périodes. Le conceptualisme ancien, hérité des premiers manuels de droit constitutionnel à la fin du XIXe siècle, a permis d’élaborer les grands principes du droit constitutionnel français. Partant, l’évolution des méthodes doctrinales tout au long du XXe et au début du XXIe siècle, en lien avec l’évolution du droit lui-même, soumet ces principes à des démarches plus empiriques. Il s’agit d’abord, d’un premier courant doctrinal apparu à la suite de la Seconde Guerre mondiale, qualifié dans le cadre de la présente étude de « empirisme politique », puis, aux alentours des années 1970, d’un second courant, défendant un « empirisme juridique ». Enfin et cette dernière période demeure en cours, le développement de la jurisprudence du Conseil constitutionnel, caractérisée par son empirisme, ouvre la voie à un « empirisme jurisprudentiel », dont les enjeux sont plus largement abordés dans la présente étudeThe issue of empiricism and conceptualism has been studied in administrative law. It refers to the possibility for academics to infer general and abstract categories from case law. Such reasoning by induction aims to facilitate the knowledge of administrative law, which essentially consists of case law. Studying this issue in constitutional law is justified by the changes which have occurred in the discipline since the birth of the Conseil Constitutionnel in 1958. Specifically, the development of constitutional case law has led to the assumption that constitutional law has a more empirical dimension and that new relations are being established between academics and judges. In practice, the alternation between empiricism and conceptualism in constitutional law goes beyond the relation between legal scholars and case law. Thus, this study attempts to capture the systematization of law in all stages of the discipline and whatever the sources. The analysis is not only following the changes in the mode of thinking concerning constitutional law by respecting a chronological sequence, it also aims at identifying periods. The conceptualism of the past, inherited from the first treatises on constitutional law at the end of the nineteenth century, has developed the main principles of French constitutional law. Since then, the evolution of doctrinal methods, throughout the twentieth and the early twenty-first century, in conjunction with the development of law itself, subjects these principles to more empirical approaches, bringing them closer to the reality of constitutional law. More precisely, three empirical periods can be identified. The first period emerged after World War II and is described as “political empiricism” in this study. The second time appeared in the 1970’s and advocates a “legal empiricism”. Finally, the development of the jurisprudence of the Conseil constitutionnel opens the way for “case law empiricism”, widely discussed in this analysis
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Lainé, Julien. "Empirisme et conceptualisme en droit constitutionnel." Thesis, Lille 2, 2011. http://www.theses.fr/2011LIL20014/document.
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Connu en droit administratif, le thème de l’empirisme et du conceptualisme interroge la possibilité pour la doctrine, d’induire de la jurisprudence des catégories plus générales et abstraites, facilitant la connaissance d’une discipline essentiellement jurisprudentielle. L’idée de confronter cette problématique au droit constitutionnel est d’abord liée aux mutations de la discipline depuis la création du Conseil constitutionnel en 1958. Précisément, le développement de la jurisprudence constitutionnelle pouvait laisser présumer une facette empirique en droit constitutionnel, susceptible d’interroger la nécessité pour la doctrine, de procéder a posteriori à une mise en ordre synthétique des décisions du Conseil constitutionnel. En réalité, l’alternance entre l’empirisme et le conceptualisme en droit constitutionnel dépasse le seul rapport de la doctrine et la jurisprudence. La présente étude s’efforce alors de saisir dans tous les stades de la discipline, et quelles que soient les sources, le travail de systématisation du droit. Néanmoins, il ne s’agit pas de se contenter de suivre, conformément à une démarche chronologique, l’évolution de la pensée en droit constitutionnel, mais de procéder à l’identification de périodes. Le conceptualisme ancien, hérité des premiers manuels de droit constitutionnel à la fin du XIXe siècle, a permis d’élaborer les grands principes du droit constitutionnel français. Partant, l’évolution des méthodes doctrinales tout au long du XXe et au début du XXIe siècle, en lien avec l’évolution du droit lui-même, soumet ces principes à des démarches plus empiriques. Il s’agit d’abord, d’un premier courant doctrinal apparu à la suite de la Seconde Guerre mondiale, qualifié dans le cadre de la présente étude de « empirisme politique », puis, aux alentours des années 1970, d’un second courant, défendant un « empirisme juridique ». Enfin et cette dernière période demeure en cours, le développement de la jurisprudence du Conseil constitutionnel, caractérisée par son empirisme, ouvre la voie à un « empirisme jurisprudentiel », dont les enjeux sont plus largement abordés dans la présente étudeThe issue of empiricism and conceptualism has been studied in administrative law. It refers to the possibility for academics to infer general and abstract categories from case law. Such reasoning by induction aims to facilitate the knowledge of administrative law, which essentially consists of case law. Studying this issue in constitutional law is justified by the changes which have occurred in the discipline since the birth of the Conseil Constitutionnel in 1958. Specifically, the development of constitutional case law has led to the assumption that constitutional law has a more empirical dimension and that new relations are being established between academics and judges. In practice, the alternation between empiricism and conceptualism in constitutional law goes beyond the relation between legal scholars and case law. Thus, this study attempts to capture the systematization of law in all stages of the discipline and whatever the sources. The analysis is not only following the changes in the mode of thinking concerning constitutional law by respecting a chronological sequence, it also aims at identifying periods.The conceptualism of the past, inherited from the first treatises on constitutional law at the end of the nineteenth century, has developed the main principles of French constitutional law. Since then, the evolution of doctrinal methods, throughout the twentieth and the early twenty-first century, in conjunction with the development of law itself, subjects these principles to more empirical approaches, bringing them closer to the reality of constitutional law. More precisely, three empirical periods can be identified. The first period emerged after Word War II and is described as “political empiricism” in this study. The second time appeared in the 1970’s and advocates a “legal empiricism”. Finally, the development of the jurisprudence of the Conseil constitutionnel opens the way for “case law empiricism”, widely discussed in this analysis
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Maniscalco, Lorenzo. "The concept of equity in early-modern European legal scholarship." Thesis, University of Cambridge, 2019. https://www.repository.cam.ac.uk/handle/1810/288545.
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In modern scholarship, the concept of equity is often assimilated with that of Aristotelian epieikeia, a process which serves to correct rules when, though their wording undoubtedly applies to a case, yet the outcome would be unjust, or the legislator would have never wanted the rule to be applied to such a case. My thesis deals with the early-modern origins of the association of equity and epieikeia in legal scholarship, and of its consequences for the doctrinal development of equity in the sixteenth and seventeenth century. I begin by showing that medieval legal writings on equity were almost completely unconcerned with epieikeia, and that the latter was only developed by philosophers and theologians. Legists and canonists developed a concept of equity that was unrelated - indeed mostly incompatible - with judicial discretion or the emendation of written rules. Thus, throughout the Middle Ages, there was almost no interaction between the writings of civil and canon lawyers on equity, and those of theologians on epieikeia. In the second chapter of my thesis, I show that the introduction of epieikeia in legal scholarship was the result of the influence of humanistic philology over the writings of humanist jurists, and argue that it caused the majority of early-modern authors to depart from medieval scholarship on equity, re-modelling instead equity as a doctrine of interpretation of the law beyond its letter in accordance with the intentions of the legislator. The final part of my thesis argues that the development of equity as epieikeia in legal scholarship broke down the barrier that had hitherto divided theological and legal writings on equity. Indeed, from the late sixteenth century onwards, legal and theological writings on equity were connected to such an extent that many later authors treated these two branches of scholarship as belonging to one, equally authoritative body of learning on the same topic.
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Kwon, Chan Doo. "Reassessing Korean legal culture and the rule of law : legal history, constitutional review and negotiations." Phd thesis, Faculty of Law, 1996. http://hdl.handle.net/2123/5994.
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Saccone, Giuseppe Mario. "The role of A Dialogue in Hobbes's conception of law and legal history." Thesis, University of Exeter, 1994. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.240761.
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Kelly, Margaret Rose Louise Leckie. "King and Crown an examination of the legal foundation of the British king /." Phd thesis, Australia : Macquarie University, 1999. http://hdl.handle.net/1959.14/71499.
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"27 October 1998"Thesis (PhD)--Macquarie University, School of Law, 1999.
Bibliography: p. 509-550.
Thesis -- Appendices.
'The Crown' has been described as a 'term of art' in constitutional law. This is more than misleading, obscuring the pivotal legal position of the king, which in modern times has been conveniently ignored by lawyers and politicians alike. -- This work examines the legal processes by which a king is made, tracing those processes from the earliest times to the present day. It concludes that the king is made by the selection and recognition by the people, his taking of the Oath of Governance, and his subsequent anointing. (The religious aspects of the making of the king, though of considerable legal significance, are not examined herein, because of space constraints.) -- The Oath of Governance is conventionally called the 'Coronation Oath'-which terminology, while correctly categorising the Oath by reference to the occasion on which it is usually taken, has led by subliminal implication to an erroneous conclusion by many modern commentators that the Oath is merely ceremonial. -- This work highlights the legal implications of the king's Oath of Governance throughout history, particularly in times of political unrest, and concludes that the Oath legally :- conveys power from the people to the person about to become king (the willingness of the people so to confer the power having been evidenced in their collective recognition of that person); - bestows all the prerogatives of the office of king upon that person; - enshrines the manner in which those prerogatives are to be exercised by the king in his people(s)' governance; and that therefore the Oath of Governance is the foundation of the British Constitution. -- All power and prerogative lie with the king, who as a result of his Oath of Governance is sworn to maintain the peace and protection of his people(s), and the king can not, in conscience or law, either do, or allow, anything that is in opposition to the terms of that Oath.
Mode of access: World Wide Web.
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Callum, Douglas R. "Soviet society and law : the history of the legal campaign to enforce the constitutional duty to work." Thesis, University of Glasgow, 1995. http://theses.gla.ac.uk/6553/.
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In both the 1936 and 1977 USSR Constitutions conscientious labour in socially useful activity was decreed to be a "duty and matter of honour" for every Soviet citizen. This study examines the various approaches adopted by successive Soviet leaderships in their determined efforts to reinforce that ethos. It focuses, in particular, on the so-called "anti-parasite" laws dating back to 1957, when as a part of Khrushchev's attempt to revive popular justice, several smaller republics experimented with enactments that permitted peer justice institutions in the form of amorphous social assemblies to exile "parasites" via a procedure which bypassed the existing court system. Special attention is devoted to the criticism lodged against the laws (during their adoption and spread to the other union republics in 1961) by members of the legal profession, who complained that the wide punitive given to the extra-judicial bodies and the attitudes and behaviour encouraged in them would erode the respect for "socialist legality" which they had been charged with enhancing in the minds of the mass public. Although as a result of such criticism, the Khrushchev regime modified the peer justice institutions in the early 1960's, and even though his populism was absorbed by or subordinated to the normative sector of social control in Brezhnev's legal policy, the study highlights the fact that complaints of abuses and inconsistencies in anti-parasite proceedings continued to be levelled against the prosecution process. This, it is contended, was due in large part to the extreme vagueness of the notion of social parasitism itself, although the lack of a precise and consistent definition of this peculiar offence (and of the key elements which were deemed to constitute it) was actually seen as necessary and even desirable since it allowed the authorities to use the anti-parasite legislation as a weapon of suppression against a broad spectrum of socially, politically, and economically inconvenient groups within Soviet society.
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Stephens, Otis H. Jr, John M. II Scheb, and Colin Glennon. "American Constitutional Law, Volume I and II: Civil Rights and Liberties." Digital Commons @ East Tennessee State University, 2015. http://amzn.com/1285736923.
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AMERICAN CONSTITUTIONAL LAW, Volumes I and II, combines cases, decisions, and authorial commentary to maximize your learning and understanding in this course. These comprehensive volumes cover the entire range of topics in constitutional law. Volume I examines the institutional aspects of constitutional law; Volume II deals with civil rights and liberties. Each of the chapters includes an introductory essay providing the legal, historical, political, and cultural context of Supreme Court jurisprudence in a particular area of constitutional interpretation. Each chapter also contains several boxed features (labeled "Case in Point" and "Sidebar") to provide additional perspective and context for the set of edited decisions from the United States Supreme Court cases that follow. In selecting, editing, and updating the materials, the authors emphasize recent trends in major areas of constitutional interpretation, as well as many landmark decisions, some of which retain importance as precedents while others illustrate the transient nature of constitutional interpretation. Because the book provides a good balance of decisions and authorial commentary, this text appeals to instructors of law as well as instructors of political science.https://dc.etsu.edu/etsu_books/1021/thumbnail.jpg
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Spagnolo, Benjamin James. "Kelsen and Raz on the continuity of legal systems : applying the accounts in an Australian context." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:a9025e33-e70e-49e9-994f-52f8daa311fd.
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This thesis has three objectives. Its primary objective is to examine, and critically evaluate, the theoretical accounts offered by Hans Kelsen and Joseph Raz to explain the temporal continuity and discontinuity of legal systems. In particular, it evaluates the explanatory power of those accounts by combining an abstract analysis of the accounts in principle and an evaluation based on systematically applying them to one concrete, historically circumstanced instance: the legal systems of British derivation in Australia between 1788 and 2001. The thesis thus tests each account’s factual fit: how adequately it corresponds to, accords with, and persuasively makes sense of, the facts – including complex social facts, attitudes and normative standards – for which it purports to offer an account. Second, the thesis aims to demonstrate, more generally, the utility of applying theoretical accounts to a particular historical instance to complement abstract analysis. Third, the thesis aims to advance the understanding of the evolution of Australian legal systems between 1788 and 2001. These three objectives are achieved through the critical exposition and reconstruction of the accounts, their development and enrichment where refinement is appropriate, their application to the specific context of Australia and their evaluation, individually and in comparison.
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Highkin, Emily. "Delegate Voting at the 1787 Constitutional Convention: The Entanglement of Economic Interests and the Great Compromise." Oberlin College Honors Theses / OhioLINK, 2019. http://rave.ohiolink.edu/etdc/view?acc_num=oberlin1582396815051673.
Full textBooks on the topic "History of the constitutional legal scholarship"
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Constitutional and legal history of England. Littleton, Colo: F.B. Rothman, 1987.
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I, Urofsky Melvin, ed. Documents of American constitutional & legal history. New York: Knopf, 1989.
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Trebilcock, Michael J. Materials on alternative approaches to legal scholarship. [Toronto, Ont: Faculty of Law, University of Toronto, 1987.
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1941-, Trebilcock Michael J., and University of Toronto. Faculty of Law., eds. Materials on alternative approaches to legal scholarship. [Toronto, Ont: Faculty of Law, University of Toronto, 1989.
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Trebilcock, Michael J. Materials on alternative approaches to legal scholarship. [Toronto, Ont: Faculty of Law, University of Toronto, 1986.
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1941-, Trebilcock Michael J., and University of Toronto. Faculty of Law., eds. Materials on alternative approaches to legal scholarship. [Toronto, Ont: Faculty of Law, University of Toronto, 1988.
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Scholler, Heinrich. Ethiopian constitutional and legal development. Köln: R. Köppe, 2005.
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Scholler, Heinrich. Ethiopian constitutional and legal development. Köln: R. Köppe, 2005.
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Scholler, Heinrich. Ethiopian constitutional and legal development. Köln: R. Köppe, 2005.
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Scholler, Heinrich. Ethiopian constitutional and legal development. Köln: R. Köppe, 2005.
Find full textBook chapters on the topic "History of the constitutional legal scholarship"
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Cajas-Sarria, Mario Alberto. "Lessons from the history of courts on the review of constitutional amendments in Colombia." In Global Legal History, 87–105. Abingdon, Oxon; New York, NY: Routledge, 2019.: Routledge, 2018. http://dx.doi.org/10.4324/9781351068482-6.
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Zhang, Jinfan. "The Emergence of Constitutional Thoughts and the Reform Movement." In The History of Chinese Legal Civilization, 145–235. Singapore: Springer Singapore, 2020. http://dx.doi.org/10.1007/978-981-10-1032-3_5.
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Stanton, John. "A legal and constitutional history of local government." In Law, Localism, and the Constitution, 17–75. London: Routledge, 2023. http://dx.doi.org/10.4324/9780429426216-3.
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Roebuck, Derek. "A Return to That Other Country: Legal History as Comparative Law." In Scholarship, Practice and Education in Comparative Law, 39–53. Singapore: Springer Singapore, 2019. http://dx.doi.org/10.1007/978-981-13-9246-7_3.
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Eijsbouts, Tom. "Why Legal Scholarship Must Not Leave Eu Constitutional Practice to The Social Sciences — Some Reflections." In The Dynamics of Constitutionalism in the Age of Globalisation, 145–52. The Hague: Hague Academic Press, an imprint of T.M.C. Asser Press, 2010. http://dx.doi.org/10.1007/978-90-6704-521-6_9.
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Dauchy, Serge, Georges Martyn, Anthony Musson, Heikki Pihlajamäki, and Alain Wijffels. "Law Books During the Transition from Late-Medieval to Early-Modern Legal Scholarship." In Studies in the History of Law and Justice, 9–57. Cham: Springer International Publishing, 2016. http://dx.doi.org/10.1007/978-3-319-45567-9_2.
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Wankhede, Asang. "The legal history of reservation for SCs/STs and OBCs." In Affirmative Action for Economically Weaker Sections and Upper-Castes in Indian Constitutional Law, 15–43. London: Routledge India, 2022. http://dx.doi.org/10.4324/9781003304692-3.
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"1. Constitutional Scholarship in the Late Nineteenth Century: Making Federalism Work." In A History of Canadian Legal Thought, edited by J. Phillips. Toronto: University of Toronto Press, 2006. http://dx.doi.org/10.3138/9781442657151-003.
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Grimm, Dieter. "Max Planck Institute and Habilitation." In Dieter Grimm, 49–62. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198845270.003.0004.
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The chapter describes the first job as a researcher in legal history in the newly founded Max-Planck-Institut for the History of European Private Law in Frankfurt, his work on the relationship between constitutional and private law in the nineteenth century, his Habilitation on the same subject, the novelty and importance of the subject. The year 1968, student protest movement, his involvement in two reform movements in connection with 1968, one concerning the Cusanuswerk (scholarship fund of the Catholic Church), the other the Max-Planck-Society.
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HARVEY, BARBARA, and PETER LINEHAN. "Edward Miller 1915–2000." In Proceedings of the British Academy, 138 Biographical Memoirs of Fellows, V. British Academy, 2007. http://dx.doi.org/10.5871/bacad/9780197263938.003.0011.
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Edward Miller's deep understanding of the history of Europe, together with meticulous scholarship and an equable temperament, made him an ideal editor of wide-ranging works with many different contributors to keep on the rails. His interests as a scholar centred, however, on the social and economic history of medieval England. As discussion of these themes gathered momentum in the 1950s and 1960s, and social history acquired the quantitative dimension that economic history already possessed, they tended increasingly to receive separate treatment. Miller always regarded them as inseparable and believed that neither could be understood apart from a legal and constitutional context.
Conference papers on the topic "History of the constitutional legal scholarship"
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Fedorov, Roman. "CONSTITUTIONAL AND LEGAL IDEA OF THE “SOCIAL STATE” IN THE HISTORY OF LEGAL AND POLITICAL THOUGHT." In Law and law: problems of theory and practice. ru: Publishing Center RIOR, 2020. http://dx.doi.org/10.29039/02033-3/066-075.
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The article is devoted to the problem of the social state as one of the fundamental constitutional principles of the state structure of modern developed countries. The course of historical development of philosophical and legal thought on this problem is considered. The idea of a close connection between the concept of the social state and the ideas of utopian socialism of Thomas More and Henri Saint-Simon is put forward. Liberals also made a significant contribution to the development of the idea of the social state, they argued that the ratio of equality and freedom is a key problem for the classical liberal doctrine. It is concluded that the emergence of the theory of the social state for objective reasons was inevitable, since it is due to the historical development of society.
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Zorile, D. V. "Historical and legal science in the context of social disciplines." In General question of world science. L-Journal, 2020. http://dx.doi.org/10.18411/gq-30-11-2020-05.
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As a special problem the division of subjects and methodology of history of law with different branches of law is arisen - such as the constitutional, financial law, and also with economic science. The author investigates their evolution within interference with the history of law, the possibility to ensure the autonomy of the scientific branches by formulation of aims and tasks of investigations.
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Ilyin, Innokentiy. "LEGAL STATE AS THE BASIS OF THE CONSTITUTIONAL SYSTEM OF THE RUSSIAN FEDERATION." In Current problems of jurisprudence. ru: Publishing Center RIOR, 2020. http://dx.doi.org/10.29039/02032-6/097-102.
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Many modern countries strive to reflect the principles of the rule of law in their national legal systems. This problem is being investigated by legal scholars around the world. In 1993, on December 12, a new Constitution was adopted in the history of Russia, which declared The Russian Federation a legal state. This marked a new stage in the development of ideas of the rule of law in the history of Russia.
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Marković, Đorđe. "VIDOVDANSKI USTAV U UDžBENICIMA USTAVNOG PRAVA – VEK KASNIJE." In 100 GODINA OD VIDOVDANSKOG USTAVA. Faculty of law, University of Kragujevac, 2021. http://dx.doi.org/10.46793/zbvu21.057m.
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The article analyses the attitude of writers of the constitutional law textbooks from the former Yugoslavia towards the Vidovdan Constitution. The author focuses on the textbooks used at the time of writing in teaching and for exam preparation of Constitutional Law at state-owned law faculties as of academic year 2020/21. However, the analysis also includes several textbooks that represent a kind of historical readings. By comparing the relevant materials, the author made an attempt to shed light on scientific, legal and even political attitude of various authors towards the Vidovdan Constitution, and indirectly towards the Yugoslav state itself. The significance of this analysis is reflected in the fact that young generations - future lawyers and members of the social elites of the states created on Yugoslav foundations, get acquainted with their constitutional history through textbooks of constitutional law.
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Zrazhevskaya, Tatyana. "Legal implementation mechanisms of constitutional obligation to preserve historical and cultural heritage, to protect history and culture sites (archaeological aspect)." In The Earliest Paleolithic at Kostenki: Chronology, Stratigraphy, Cultural Diversity (on the 140th anniversary of archaeological research in the Kostenki-Borshchevo area). Institute for the History of Material Culture Russian Academy of Sciences, 2019. http://dx.doi.org/10.31600/978-5-9273-2863-5-2019-19-23.
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Jovanović, Zoran, and Stefan Andonović. "UPRAVNO SUDSTVO PREMA VIDOVDANSKOM USTAVU." In 100 GODINA OD VIDOVDANSKOG USTAVA. Faculty of law, University of Kragujevac, 2021. http://dx.doi.org/10.46793/zbvu21.233j.
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The Vidovdan Constitution of the newly formed Kingdom of Serbs, Croats and Slovenes is one of the most important monuments of regional history of constitutional law. Adopted in 1921, in order to determine the basic principles of state and social organization, the Vidovdan Constitution contained certain provisions that are still acceptable today 100 years later. Moreover, the Vidovdan Constitution represents one of the most important moments in the creation of the administrative judiciary of the states that later emerged in the territory of the Kingdom. Namely, the literature states that the organization of the administrative judiciary, provided by the Constitution, leads to the most significant period in the development of the administrative judiciary (in Serbia) from its founding in 1869 until the Second World War. In this regard, as one of the most important aspects, authors emphasize the introduction of a two-tier administrative judiciary, with significant guarantees of professionalism in the selection of judges. Having in mind its significance in the history of the administrative judiciary, the authors will analyze the basic constitutional norms regarding the legal nature and organization of the administrative judiciary. Also, the research will include the issue of the position of judges of the administrative court and members of the State Council. In addition to the constitutional provisions, paper gives mentions to relevant provisions of the Law on the State Council and Administrative Courts, as well as the Decree on the State Council and Administrative Courts adopted shortly after the Vidovdan Constitution.
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Guettaoui, Amel, and Ouafi Hadja. "Women’s participation in political life in the Arab states." In Development of legal systems in Russia and foreign countries: problems of theory and practice. ru: Publishing Center RIOR, 2021. http://dx.doi.org/10.29039/02061-6-93-105.
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The level of political representation of women in different legislative bodies around the world varies greatly. The women in the Arab world, is that as in other areas of the world, have throughout history experienced discrimination and have been subject to restriction of their freedoms and rights. Many of these practices and limitations are based on cultural and emanate from tradition and not from religion as many people supposed, these main constraints that create an obstacle towards women’s rights and liberties are reflected in the participation of women in political life. Although there are differences between the countries, the Arab region in general is noted for the low participation of women in politics. Universal suffrage has become common in most countries, but there are still some Arab women who are denied such rights.
There have been many highly respected female leaders in Arab history, such as Shajar al-Durr (13th century) in Egypt, Queen Orpha (d. 1090) in Yemen. In the modern era there have also been examples of female leadership in Arab countries. However, in Arabic-speaking countries no woman has ever been head of state, although many Arabs remarked on the presence of women such as Jehan Al Sadat, the wife of Anwar El Sadat in Egypt, and Wassila Bourguiba, the wife of Habib Bourguiba in Tunisia, who have strongly influenced their husbands in their dealings with matters of state. Many Arab countries allow women to vote in national elections. The first female Member of Parliament in the Arab world was Rawya Ateya, who was elected in Egypt in 1957. Some countries granted the female franchise in their constitutions following independence, while some extended the franchise to women in later constitutional amendments.
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Marinković, Milica. "RAZVITAK FRANCUSKE ADVOKATURE U XIX VEKU." In XVII majsko savetovanje. Pravni fakultet Univerziteta u Kragujevcu, 2021. http://dx.doi.org/10.46793/uvp21.1067m.
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The paper is dedicated to the development of advocacy in France throughout history, and special attention is paid to the struggle of lawyers to repair the damage caused to their position by the Bourgeois Revolution. The goals of the legal struggle were fully achieved in the period of the Third Republic, rightly called the "Republic of Lawyers", when they took over the legislative and executive power. French lawyers, especially in the 19th century, were often real political dissidents. With their work as a politival opposition, they redefined the relationship between the state and society and set a clear border of state power, all of which enabled the easier emergence of a liberal constitutional monarchy, and then a republic. Due to the constant opposition activities in the courtroom, the lawyers demonstrated in the best possible way how closely law and politics stand in each state. In the introductory chapter of the paper, the author gives an overview of the historical development of advocacy from the Frankish period to the Revolution itself. During the Old Regime, lawyers enjoyed the status of "secular clergy" and, although members of the Third Class, were an unavoidable political factor in absolutist France. The second chapter contains an analysis of the devastating impact of the Revolution on the legal profession and timid attempts to improve the position of the legal profession with the advent of the Restoration. The third chapter provides an overview of the period from 1830 to 1870, which was characterized by the increasingly serious interference of lawyers in politics in order to fight for the advancement of the profession. The chapter on the Third Republic talks about the successful outcome of the lawyer's fight for their own rights, and the final chapter talks about the tendencies in the French legal profession in the 20th century.
Reports on the topic "History of the constitutional legal scholarship"
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Gilly, Zsófia Bernadett. Impeachment as a tool of lawfare in Latin America : Conceptual and historical overview (Part I). Magyar Külügyi Intézet, 2023. http://dx.doi.org/10.47683/kkielemzesek.ke-2023.27.
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The concept of impeachment has its origins in the history of political and legal thought as a constitutional mechanism to remove public officials for serious violations of the law or abuse of power. Originating from England, it has influenced the constitutions of the United States and the countries of Latin America. In addition to concrete grounds for impeachment, constitutions also allow for impeachment based on abstract grounds, designed for cases where no specific offence can be proven, but the abuse of power is so obvious that the people must be guaranteed the right to recall their elected leader. In Latin America, military coups have been replaced by so-called “soft coups”, which abuse various legal instruments. The abstract nature of the grounds for impeachment contributes to the potential misuse of this mechanism as a tool of lawfare, as many cases demonstrate. During the past decade, Peru has experienced a series of impeachments, with three presidents facing removal from office due to political conflicts between the legislative and executive branches. These cases highlight the use of impeachment as a tool of lawfare, undermining democratic stability and raising concerns about the transparency and impartiality of the process, as well as the erosion of democratic principles.
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Gilly, Zsófia Bernadett. Impeachment as a tool of lawfare in Latin America : Conceptual and historical overview (Part II). Magyar Külügyi Intézet, 2023. http://dx.doi.org/10.47683/kkielemzesek.ke-2023.28.
Full textAbstract:
The concept of impeachment has its origins in the history of political and legal thought as a constitutional mechanism to remove public officials for serious violations of the law or abuse of power. Originating from England, it has influenced the constitutions of the United States and the countries of Latin America. In addition to concrete grounds for impeachment, constitutions also allow for impeachment based on abstract grounds, designed for cases where no specific offence can be proven, but the abuse of power is so obvious that the people must be guaranteed the right to recall their elected leader. In Latin America, military coups have been replaced by so-called “soft coups”, which abuse various legal instruments. The abstract nature of the grounds for impeachment contributes to the potential misuse of this mechanism as a tool of lawfare, as many cases demonstrate. During the past decade, Peru has experienced a series of impeachments, with three presidents facing removal from office due to political conflicts between the legislative and executive branches. These cases highlight the use of impeachment as a tool of lawfare, undermining democratic stability and raising concerns about the transparency and impartiality of the process, as well as the erosion of democratic principles.
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Hendricks, Kasey. Data for Alabama Taxation and Changing Discourse from Reconstruction to Redemption. University of Tennessee, Knoxville Libraries, 2021. http://dx.doi.org/10.7290/wdyvftwo4u.
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At their most basic level taxes carry, in the words of Schumpeter ([1918] 1991), “the thunder of history” (p. 101). They say something about the ever-changing structures of social, economic, and political life. Taxes offer a blueprint, in both symbolic and concrete terms, for uncovering the most fundamental arrangements in society – stratification included. The historical retellings captured within these data highlight the politics of taxation in Alabama from 1856 to 1901, including conflicts over whom money is expended upon as well as struggles over who carries their fair share of the tax burden. The selected timeline overlaps with the formation of five of six constitutions adopted in the State of Alabama, including 1861, 1865, 1868, 1875, and 1901. Having these years as the focal point makes for an especially meaningful case study, given how much these constitutional formations made the state a site for much political debate. These data contain 5,121 pages of periodicals from newspapers throughout the state, including: Alabama Sentinel, Alabama State Intelligencer, Alabama State Journal, Athens Herald, Daily Alabama Journal, Daily Confederation, Elyton Herald, Mobile Daily Tribune, Mobile Tribune, Mobile Weekly Tribune, Morning Herald, Nationalist, New Era, Observer, Tuscaloosa Observer, Tuskegee News, Universalist Herald, and Wilcox News and Pacificator. The contemporary relevance of these historical debates manifests in Alabama’s current constitution which was adopted in 1901. This constitution departs from well-established conventions of treating the document as a legal framework that specifies a general role of governance but is firm enough to protect the civil rights and liberties of the population. Instead, it stands more as a legislative document, or procedural straightjacket, that preempts through statutory material what regulatory action is possible by the state. These barriers included a refusal to establish a state board of education and enact a tax structure for local education in addition to debt and tax limitations that constrained government capacity more broadly. Prohibitive features like these are among the reasons that, by 2020, the 1901 Constitution has been amended nearly 1,000 times since its adoption. However, similar procedural barriers have been duplicated across the U.S. since (e.g., California’s Proposition 13 of 1978). Reference: Schumpeter, Joseph. [1918] 1991. “The Crisis of the Tax State.” Pp. 99-140 in The Economics and Sociology of Capitalism, edited by Richard Swedberg. Princeton University Press.