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1
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.
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Yannakakis, Yanna. "Interpreting the History of Native Custom in Oaxaca, Mexico." Ethnohistory 70, no. 2 (April 1, 2023): 135–52. http://dx.doi.org/10.1215/00141801-10266803.
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Abstract This article addresses the opportunities and challenges for researching the history of Indigenous custom during a period in which constitutional and legal reform have led to the recognition of customary law as an official framework for local governance and the administration of justice in Oaxaca, Mexico. The article begins by situating Oaxaca’s laws within the context of broader neoliberal reforms in Latin America characterized by the promulgation of multicultural constitutions recognizing the legal jurisdiction and cultural autonomy of Indigenous communities. Some Indigenous intellectuals, activists, and NGOs working in Oaxaca have declared this new administrative arrangement a victory for Indigenous rights to self-determination, arguing that customary law serves as a defensive wall against state and corporate incursions of many kinds. Other local Indigenous scholars have nuanced the custom-law and community-state oppositions, situating customary law—currently referred to as “Indigenous normative systems”—as historical and contested, and in dynamic interplay with relationships of power within and beyond the community. The article’s author considers these debates about custom’s ambiguous meanings and effects and reflects on how the recent context of legal reform nourishes the author’s own scholarship on the colonial period by providing a broad temporal, cultural, and political framework with which to understand its stakes. The author also explores how historians researching Oaxaca’s deep past can meet the interpretive demands of their discipline while being attentive to historical justice and engaging the communities whose ancestors occupy center stage in our histories.
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Szente, Zoltán. "Constitutional Changes in Populist Times." Review of Central and East European Law 47, no. 1 (March 8, 2022): 12–36. http://dx.doi.org/10.1163/15730352-47010001.
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Abstract The article examines the impacts of populist government in Hungary on constitutional law since 2010. The criterion of the analysis is whether the comprehensive and radical changes that took place during this time have been characterized by the distinctive traits, ambitions and values that the scholarship attributes to populism and ‘populist constitutionalism’, above all anti-elitism, anti-institutionalism, anti-pluralism, the emphasis on popular sovereignty and direct democracy, and an instrumental conception of law. For this purpose, it examines the major changes in the constitutional rules and practice of sovereignty issues, the system of separation of powers, and fundamental rights. The article consists of four parts. In the first chapter, sovereignty issues are discussed including the changing approach of constituent power, constitutional identity, and the interpretation of sovereignty through an analysis of the 2011 Fundamental Law and its eight amendments. The study then reviews the changes in the system of separation of powers, that is, the transformation of the legal status and operational practices of the most important public law institutions. The next chapter provides a qualitative analysis of the situation of fundamental rights, in particular the trends in the renewed regulation of constitutional liberties and political freedoms. In addition, this part gives an assessment of the current state of institutional protection of constitutional rights. Finally, the last chapter seeks to answer the question of how the cumulative effects of these changes can be assessed; whether Hungary follows a new, specific path of constitutional development, or the constitutional changes can be interpreted within the framework of the constitutional democracy formed after the 1989/90 regime change.
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Kornbluh, Felicia. "Queer Legal History: A Field Grows Up and Comes Out." Law & Social Inquiry 36, no. 02 (2011): 537–59. http://dx.doi.org/10.1111/j.1747-4469.2011.01241.x.
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This essay examines recent scholarship on the legal history of sexuality in the United States. It focuses on Margot Canaday's The Straight State: Sexuality and Citizenship in Modern America (2009) and Marc Stein's Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010). It also reviews recent work on the history of marriage, including Sarah Barringer Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) and George Chauncey's Why Marriage? The History Shaping Today's Debate Over Gay Equality (2004), and the history of military law Defending America: Military Culture and the Cold‐War Court Martial (2005), by Elizabeth Lutes Hillman. The essay argues that this scholarship is significant because it offers a different view of sex and power than the one derived from the early writing of Michel Foucault. “Queer legal history” treats the liberalism of the 1960s‐1970s as sexually discriminatory as well as liberatory. It underlines the exclusions that were part of public policy under the federal G.I. Bill and the New Deal welfare state.
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Kennedy, Sheila Suess. "Thirty years of public management scholarship: plenty of “how,” not enough “why”." International Journal of Public Sector Management 30, no. 6-7 (August 14, 2017): 566–74. http://dx.doi.org/10.1108/ijpsm-04-2017-0111.
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Purpose The purpose of this paper is to determine the overarching lessons to be gleaned from 30 years of public management literature. Design/methodology/approach The methodology was simple: review the professional literature generated during that time period. Findings Despite important contributions to our understanding of everything from bureaucratic motivation, public budgeting processes, the promises and pitfalls of contracting out and identification of the skills needed to be an effective public manager, to the scientific arcana of sustainability and the respective responsibilities of public administrators and elected officials, the profession would benefit greatly from more sustained emphasis upon the history and philosophy of the constitutional choices made by those who framed America’s original approach to governance. Originality/value The lack of a common understanding of America’s legal culture, or even a common vocabulary for exploring our differences poses immense challenges to public administrators, whose effectiveness requires a widely shared, if necessarily superficial, agreement on the purposes of America’s governing institutions and an ability to recognize the bases of government legitimacy. In the past 30 years, however, literature that addresses the important connections between constitutional theory and management practice, between the rule of law and the exercise of public power and discretion, has been all too rare. Let us hope that the next 30 years corrects that deficiency.
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Byrne, Rosemary, Gregor Noll, and Jens Vedsted-Hansen. "Understanding the crisis of refugee law: Legal scholarship and the EU asylum system." Leiden Journal of International Law 33, no. 4 (October 2, 2020): 871–92. http://dx.doi.org/10.1017/s0922156520000382.
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AbstractIn 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among member states of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis, collectivizing external border control and shifting refugee ‘responsibility’ to new member states with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.
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Reeve, L. J. "The Legal Status of the Petition of Right." Historical Journal 29, no. 2 (June 1986): 257–77. http://dx.doi.org/10.1017/s0018246x00018732.
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One hundred years ago the most scholarly of the whig historians, Samuel Rawson Gardiner, gave the Petition of Right a leading place in his interpretation of early Stuart England, as the beginning of a constitutional revolution in which parliament took sovereignty from an autocratic Stuart monarchy. To Gardiner this was part of a movement, his portrayal of which was coloured by ideas of patriotism and moral good, and which had the sanction of historical inevitability. Clearly there were serious flaws built into Gardiner's view: teleology, narrowness of theme, implausible simplicity, belief in inevitable progress, and the selective attribution of unconscious motives to men such as Sir John Eliot. Recent historiography has demonstrated the inherent weaknesses of the traditional liberal-whig and indeed the Marxist views of this period. A most stimulating revisionist argument and a whole industry of scholarship seem likely to reduce Gardiner's work to a great narrative, graced frequently with sane judgement, but in conceptual terms virtually abolished. Nevertheless the Petition of Right remains a salient and significant feature of the early Stuart landscape. Conrad Russell has established clearly that the making of the Petition was important as the culmination of a national war crisis and as an ideological watershed. Indicative of an emerging fear of subversion – of the alteration of government and religion together – it anticipated the attitudes of those in the Long Parliament who came to oppose the Caroline regime. The Petition needs to be given due attention in seeking to understand the important relationship between the political events of the 1620s and those of the 1640s.
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Duncanson, Ian W. "Seen from Afar: An Outsider's Response to the Hurst Symposium." Law and History Review 18, no. 1 (2000): 181–86. http://dx.doi.org/10.2307/744354.
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Given the large body of expert writing about Hurst's scholarship in the United States, including the contributions to the present symposium, the most useful course for an outsider seems to me to be to ask a type of Foucauldian question: what is it about the fact of Hurst's writing what he did, at the time he did, that is strange to one foreign to the tradition to which Hurst and his commentators and critics belong? Why was a lawyer in the U.S., so long before legal scholars elsewhere in the Anglophone world, able to see the necessity of conceiving law in context, perhaps moving, as Novak suggests “from constitutional history toward historical sociology”? We can not proceed too abruptly to a conclusion, as if there were a single answer to the question. After all, lawyers such as Hurst, the Legal Realists, and the Supreme Court were involved in the New Deal. By contrast, while the professional social reformer and the professional lawyer might, just, have coexisted in the same British person at this time, the two commitments would have been cordoned off from each other.
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Waldie, Augusta. "Contesting an Elastic Constitution: British Nationality and Protection in the Mandates." Britain and the World 16, no. 2 (September 2023): 168–91. http://dx.doi.org/10.3366/brw.2023.0407.
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Current studies of British citizenship and nationality neglect the development of legal frameworks prior to the Second World War. A growing body of literature, invigorated by the 2017 Windrush scandal, charts the collapse of imperial citizenship as a dimension of British decolonisation from the 1960s onwards. In contrast, this article analyses how the British empire’s framework of national belonging became strained during the early 1920s, as Dominion leaders increasingly asserted their own sense of statehood and the League of Nations mandates system introduced new forms of imperial rule. The article considers General Jan Smuts’ decision to afford British naturalisation to 7,000 German colonists residing in the mandate of South-West Africa. League officials argued that Smuts’ scheme undermined the anti-annexationist ‘spirit’ of the Covenant, because mass naturalisation represented a practical declaration of South African sovereignty in the mandate. Meanwhile, British mandarins in the Home, Colonial, and Foreign Offices believed Smuts’ policy would destabilise the empire’s constitutional distinctions between territorial zones of formal and informal imperial governance. They also feared it would inspire subaltern inhabitants of other British-protected foreign spaces, especially mandatory Palestine and the Indian princely states, to similarly demand naturalisation in order to claim stronger legal rights for themselves as British subjects. Ultimately, Smuts leveraged his political stature to secure British and League consent for his plan. To maintain a façade of constitutional coherence and metropolitan control, Whitehall mandarins recast Smuts’ naturalisation scheme as an imperial anomaly. Non-European inhabitants of the British mandates, and the wider informal empire, were granted the uncodified, indeterminate status of ‘British Protected Persons’ (BPPs). Recent scholarship has recognised BPP status as a form of de facto statelessness. Inter-war policymakers in the Home and Colonial Offices drew similar parallels, this article shows.
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Lindseth, Peter L. "Equilibrium, Demoi-cracy, and Delegation in the Crisis of European Integration." German Law Journal 15, no. 4 (July 1, 2014): 529–67. http://dx.doi.org/10.1017/s2071832200019040.
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As my work has argued previously, European integration enjoys an “administrative, not constitutional” legitimacy. This view is in obvious tension with the deeply-rooted conceptual framework—what we might call the “constitutional, not international” perspective—that has dominated the public-law scholarship of European integration over many decades. Although the alternative presented in my work breaks from that traditional perspective, we should not view it as an all-or-nothing rejection of everything that has come before it. The administrative alternative can be seen, rather, as providing legal-historical micro-foundations for certain theories that also emerged out of the traditional perspective even as they too are in tension with it. I am referring in particular to Joseph Weiler's classic notion of European “equilibrium”—now updated as “constitutional tolerance”—as well as Kalypso Nicolaïdis's more recently developed theory of European “demoi-cracy” on which this article focuses in particular. The central idea behind the “administrative, not constitutional” interpretation—the historical-constructivist principal-agent framework rooted in delegation, as well as the balance demanded between supranational regulatory power and national democratic and constitutional legitimacy— directly complements both theories. The administrative alternative suggests how the relationship between national principals and supranational agents is one of “mediated legitimacy” rather than direct control. It has its origins in the evolution of administrative governance in relation to representative government over the course of the twentieth century (indeed before). By drawing on the normative lessons of that history—notably the need for some form of national oversight as well as enforcement of outer constraints on supranational delegation in order to preserve national democratic and constitutional legitimacy in a recognizable sense—this article serves an additional purpose. It suggests how theories of European equilibrium and demoi-cracy might be translated into concrete legal proposals for a more sustainable form of integration over time—a pressing challenge in the context of the continuing crisis of European integration.
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Verhoeven, Tim. "In Defense of Civil and Religious Liberty: Anti-Sabbatarianism in the United States before the Civil War." Church History 82, no. 2 (May 20, 2013): 293–316. http://dx.doi.org/10.1017/s0009640713000097.
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The decades before the Civil War witnessed a series of battles over the meaning and legal status of the American Sabbath. Scholarship has focused on the Sabbatarian movement, a cluster of evangelical churches that sought to institutionalize the Sunday Sabbath. This article takes a new approach by investigating the anti-Sabbatarian movement. In a series of controversies, from Sunday mail in the Jacksonian era to the running of Sunday streetcars on the eve of the Civil War, anti-Sabbatarians rallied against Sabbath laws as an infringement of civil and religious liberty. Though diverse in orientation, anti-Sabbatarians agreed that religion and politics should be kept apart, and that the United States was not, in constitutional terms, a Christian nation. A study of anti-Sabbatarianism is thus of rich significance for the history of Church-State relations in the United States.
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Benton, Lauren. "From International Law to Imperial Constitutions: The Problem of Quasi-Sovereignty, 1870–1900." Law and History Review 26, no. 3 (2008): 595–619. http://dx.doi.org/10.1017/s0738248000002583.
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The roots of the international legal order have often been traced to intertwining scholarly and political traditions dating back to the early seventeenth century, in particular to early writings in international law and the rise of the nation-state in Europe. Recent scholarship has attacked this narrative from many angles. One approach has been to reexamine early modern European politics and discourse, in particular questioning whether, for example, the publication of Grotius's writings, or the Peace of Westphalia, functioned as a foundational moment in the history of the interstate order. A second, complementary approach has been to broaden the history of global order to encompass inter-imperial politics, including the legal relations of imperial powers and indigenous subjects. The two projects have been occasionally combined in efforts to trace the impact of imperial politics on trends in international law.
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Garfinkel, Paul. "A Wide, Invisible Net: Administrative Deportation in Italy, 1863–1871." European History Quarterly 48, no. 1 (January 2018): 5–33. http://dx.doi.org/10.1177/0265691417741854.
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This article examines the legal history of domicilio coatto (forced residence), a system of summary police-administered deportation instituted by Italy’s Liberal government soon after national unification in 1861. Introduced in an emergency law in 1863, its limited purpose was to suppress a public-order crisis in the south. Within just eight years, however, forced residence had become a regular institution of Italian criminal justice. Not only did it remain as such until Mussolini’s seizure of power in 1922, but it also provided an important blueprint for confino di polizia, the Fascist variant of forced residence implemented in 1926. Focusing on the complex circumstances in which domicilio coatto emerged, the causes of its rapid transformation into a routine weapon of preventative policing, and the legal ideologies of its proponents, this article aims to explain why Italian legal experts crafted the highly repressive instrument and championed it as an essential, if not desirable, institution of ‘liberal’ criminal justice in the young constitutional monarchy. It argues that domicilio coatto was devised to be not simply an expedient for punishing political opponents, as scholars have long emphasized, but a regular instrument for thwarting what jurists and lawmakers considered to be the principal long-term threat to cementing Liberal rule: common crime. Such an interpretation sheds new light on the origins, objectives and historical significance of forced residence in Liberal Italy; at the same time, it offers a critical complement to the existing scholarship that has focused almost exclusively on the political uses of domicilio coatto.
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Jefferis, Danielle. "Carceral Intent." Michigan Journal of Race & Law, no. 27.2 (2022): 323. http://dx.doi.org/10.36643/mjrl.27.2.carceral.
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For decades, scholars across disciplines have examined the stark injustice of American carceralism. Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate. These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement. This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement. This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history. The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent. Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence. Critical race theorists have long critiqued the intent-focused antidiscrimination doctrine as incapable of remedying structural racism and inequities. The same can be said of the doctrine of incarceration. The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features. A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection. While such an approach will not remedy the full scope of harms of U.S. incarceration, it would be a start.
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Magomedova, O. S. "Concept of International Legal Policy in Foreign Comparative Legal Studies." Moscow Journal of International Law, no. 3 (December 26, 2020): 27–43. http://dx.doi.org/10.24833/0869-0049-2020-3-27-43.
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INTRODUCTION. International legal policy is a new object in international legal studies, although this phenomenon exists as long as the external relations of States. International legal policy is a rare case of research subject, which remains unexplored. International legal policy as a Concept of State's policy towards legal aspects of international relations was formed in the 80-s of last century. Earlier the questions and their particular aspects now embraced by international legal policy were divided between international lawyers and international relations researchers. However international legal policy is an integral system of State's approaches to international legal matters, therefore its punctual research is relevant only from comparative point of view. It would be interesting to compare States' positions on concrete issues or States' tactics at different stages of realization of international legal norms. This article concerns the question whether comparative studies of international legal policy can be integrated into existing fields of comparative foreign relations law or of comparative research of international law.MATERIALS AND METHODS. The article surveys theoretic questions primarily on the base of doctrinal sources. The retrospective analysis of the comparative method in international law is based on works published by Russian and foreign experts during the XX century. Particular attention is drawn upon works of founders of comparative research in international legal studies. The concept of foreign relations law in the scholarship and practice of the U.S. is researched on the base of national case law, which formulated the principle of executive exceptionalism in State foreign policy. Research work is realized with the use of analysis, synthesis, systematisation, as well as methods of historical and comparative method.RESEARCH RESULTS. The Article consistently reveals meaning and the content of international legal policy as one of the authors of the concept, French lawyer and diplomat G. de Lacharriere, presented it. The Article examines the history of foreign relations law in the U.S. and presents its doctrinal estimations from viewpoint of American constitutional law. The research work specifies different points of view on content of foreign relations law and approaches to its justification. Indeed international legal policy and foreign relations law can be compared as two types of State’s approach to its legal position on the international scene. There are six parameters for comparison: sources, functions, subjects of both concepts, questions on allocation of foreign powers in the State, on relationship between international and national law, on the role of national courts in interpretation and application of international norms. In consideration of “national interest” concept the attribution of international legal policy to international organisations or supranational association is judged as incorrect. The article examines the question of applicability of comparative method in the international law within the discourse among scholars on how differently modern States evaluate international legal norms. Analysis of the tendency to contrasting States’ approaches to the international law encompasses its development from notions “international law of transitional period”, “international legal systems”, to notions “national approach”, “legal style”, “legal culture”. Brief survey of comparative international law gives perspective on diversity of approaches to comparable aspects of the international law. Comparative studies of international legal policy could get consolidated among them.DISCUSSION AND CONCLUSIONS. At first sight the comparative method is hardly applicable to the international law. However the universality of the international law doesn’t exclude variety of approaches to it. The research into international legal policy determined by national interests of every State allows to systemize positions of a State into a single strategy. At the same time comparative method doesn’t only provide classical comparison of States’ positions by issues, but also offers to compare inner-workings of the international legal policy and shaping factors. Nowadays in the context of trends on diversification of international relations (fragmentation, regionalisation), growing popularity of the comparative method translated into comparative foreign relations law and comparative international law. However international legal policy doesn’t correspond with categorial apparatus of comparative foreign relations law. International legal policy is nor able to apply methodological tenets of comparative international law due to its multivalued content. Most likely comparative studies of international legal policy can become a new approach within comparative international law, which should be based on the principles of concreteness and consistency.
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Arjomand, Saïd Amir. "THE CONSTITUTION OF MEDINA: A SOCIOLEGAL INTERPRETATION OF MUHAMMAD'S ACTS OF FOUNDATION OF THE UMMA." International Journal of Middle East Studies 41, no. 4 (October 26, 2009): 575a. http://dx.doi.org/10.1017/s002074380999033x.
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This study offers a sociolegal interpretation of the ancient extant document generally referred to in modern scholarship as the “Constitution of Medina,” showing it to be a three-part composite document written between 622 and 627. Each part has considerable formal coherence as a legal deed. The first part was the deed of foundation of Muhammad's umma, not yet a community of individual believers but a confederation of clans and their clients unified in the struggle in the path of God. The execution of capital punishment for murder was transferred from the clans to the community. The second part guaranteed religious freedom to Jewish confederates, thus laying the foundation of the later Muslim system of religious pluralism; it created the first Muslim sanctuary (ḥarām) and introduced elements of individual responsibility. The third part, here considered a supplement to the second, concerned the defense of the city of Medina against the Quraysh and added one new Jewish clan to the confederation. Taken together, the three parts of the Constitution of Medina transformed the pagan cult of vengeance into holy warfare.
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Dugard, Jackie. "Water Rights in a Time of Fragility: An Exploration of Contestation and Discourse around Cape Town’s “Day Zero” Water Crisis." Water 13, no. 22 (November 16, 2021): 3247. http://dx.doi.org/10.3390/w13223247.
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South Africa is an interesting case study on the right to water. It is an upper-middle income country with a history and current reality of extreme racialised inequality, including the water services sphere. It is water scarce, and during 2018, Cape Town was expected to be the first major metropolitan city in the world to run out of water. South Africa has one of the most progressive constitutions in the world, which incorporated socio-economic rights including the right to water as explicitly justiciable long before the international right to water was recognised. However, despite clear water-security and water-equity fault lines on the one hand and conducive legal frameworks on the other hand, there has been relatively little water rights contestation in post-apartheid South Africa. It is this paradox and, in particular, how it played out in the clear case of water insecurity in Cape Town’s “Day Zero” crisis that are the subjects of examination in this article. Aiming to make an original contribution to the scholarship on the “Day Zero” crisis by exploring it from the perspective of interlocutors and those affected by it, this article also hopes to contribute towards a better understanding of the nature and application of water rights more broadly.
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Petersen, Niels, and Emanuel V. Towfigh. "Network Analysis and Legal Scholarship." German Law Journal 18, no. 3 (May 1, 2017): 695–700. http://dx.doi.org/10.1017/s2071832200022124.
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In their contribution in this issue Mattias Derlén and Johan Lindholm use social network analysis to show that the European Court of Justice is a precedent-driven constitutional court that is comparable to the US Supreme Court with regard to the citation of precedents. The article and its use of network analysis as a method provoked a lively debate on the editorial board of theGerman Law Journalabout comparative law theory and methods generally and the place of empirical (including network) analyses in the comparative law discipline. For this reason, the editorial board commissioned this “special section” of contributions dedicated broadly to approaches to comparative law. In his essay in this section, for example, Jens Frankenreiter offers a detailed assessment of Derlén's and Lindholm's analysis. In this piece, we take a broader perspective and look at the utility and the limits of network analysis for legal scholarship generally.
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White, G. Edward. "The Arrival of History in Constitutional Scholarship." Virginia Law Review 88, no. 3 (May 2002): 485. http://dx.doi.org/10.2307/1073979.
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Price, Peter. "Provincializing Constitutions: History, Narrative, and the Disappearance of Canada’s Provincial Constitutions." Perspectives on Federalism 9, no. 3 (December 1, 2017): E—31—E—56. http://dx.doi.org/10.1515/pof-2017-0019.
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Abstract Constitutional scholarship in Canada since Confederation has been characterized by two primary narratives. The dualist narrative, which characterized constitutional scholarship between the late-nineteenth and mid-twentieth centuries, focussed on the parallel developments of provincial and federal constitutions. The monist narrative, which has become the dominant model of interpretation since the mid-twentieth century, focusses on the federal constitution as a singular foundation of constitutionalism in Canada. As a result of the shift from dualism to monism, provincial constitutions have become largely ignored in Canada and subsumed by the “mega-constitutional” politics of the federal constitution. This paper examines provincial constitutions to highlight the significant reorientation of constitutional scholarship in Canada over the past 150 years, which has become primarily focussed on post-Confederation constitutional history and written constitutionalism.
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Ding, Xiaodong. "Reimagining Law and the Constitution: Carl Schmitt and American Constitutional Scholarship." ICL Journal 13, no. 4 (March 26, 2020): 403–27. http://dx.doi.org/10.1515/icl-2019-0023.
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AbstractThis article studies the debate between Schmitt’s theory and legal positivism, which Schmitt identifies as a typical liberal theory of law. Schmitt’s theory, I argue, provides a powerful critique of legal positivism, while offering a meaningful, alternative understanding of law that begins not with norms, but with the will of a legitimate decider. To demonstrate the continuing relevance of the debate Schmitt had with legal positivism, I turn to what I describe as a similar legal positivism/Schmitt debate in American constitutional scholarship. Ultimately, I take a side in this debate, arguing for a fully Schmittian understanding of the Constitution as the will or continuous decision of the people, rather than as positive constitutional norms existing independently of politics.
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Gallarati, Francesco. "Is Climate Emergency a Constitutional Emergency?" Italian Review of International and Comparative Law 3, no. 2 (November 15, 2023): 448–68. http://dx.doi.org/10.1163/27725650-03020015.
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Abstract More than 2,000 public authorities worldwide have to date declared a “climate emergency”. Can these declarations be framed within the constitutional category of emergency? And what legal consequences do they entail? To answer these questions, this paper confronts the basic features of constitutional emergencies, as arising from legal scholarship and contemporary Constitutions, with the characteristics of the climate issue. The conclusion is that climate change cannot be framed within the category of constitutional emergency, but rather in that of constitutional crisis, as it does not require a temporary suspension of the constitutional order but a structural modification of it.
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Yolcu, Serkan. "East Nordic Model of Pre-Enactment Constitutional Review: Comparative Evidence from Finland and Sweden." European Public Law 26, Issue 2 (June 1, 2020): 505–36. http://dx.doi.org/10.54648/euro2020053.
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For the last three decades, legal scholarship on the judicial review of legislation has dominated comparative constitutional studies. Moreover, one of the emerging interests in comparative constitutional law is pre-enactment (ex ante) control of constitutionality. Historically, legal thinking in the US has advanced judicial review, while British tradition has prioritized parliamentary sovereignty, in which parliament, not courts, is the ultimate decision maker related to constitutional disputes. The current scholarship, nevertheless, argues that a particular constitutional model has emerged in a number of Commonwealth countries in which courts and legislatures are not considered alternative to each other, contrary to the traditional paradigms that prioritize either courts or legislatures. One of the defining features of this model is the pre-enactment constitutional review of proposed legislation. In some of those countries, pre-enactment review of legislation is available only in the form of executive responsibility, while the legislature has a key role in the remaining countries, in addition to the commitment of the executive. This article investigates whether similar pre-enactment constitutional review mechanisms exist elsewhere. For this purpose, it will examine East Nordic constitutional practice and ask whether there is a particular type of pre-enactment constitutional review in Finland and Sweden. The function to review constitutionality of proposed legislation belongs to non-judicial mechanisms in both Finland and Sweden. However, pre-enactment constitutional review mechanisms in these two polities are hardly considered in comparative constitutional law. This article aims to fill this gap by drawing comparative scholars’ attention to the East Nordic constitutionalism. judicial review, comparative constitutional law, pre-enactment constitutional review, Nordic constitutionalism, Finland & Sweden
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Carrington, Paul D. "The Constitutional Law Scholarship of Thomas McIntyre Cooley." American Journal of Legal History 41, no. 3 (July 1997): 368. http://dx.doi.org/10.2307/846245.
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Parry, R. Gwynedd. "Is legal biography really legal scholarship?" Legal Studies 30, no. 2 (June 2010): 208–29. http://dx.doi.org/10.1111/j.1748-121x.2009.00149.x.
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This paper examines the recent resurgence of interest in the legal biography among legal scholars. It argues that the legal biography has traditionally been treated with suspicion within the English law school due to ideological and methodological concerns about the intellectual validity and robustness of the form, and because of reservations about its true disciplinary province. Through a literary survey of legal biography, it claims a tension between intellectual and empirical approaches that parody the tension between the internal and external traditions in legal history. More recent biographies, however, have succeeded in bridging these divides and in demonstrating the potential value of legal biography in deepening our understanding of the human context of legal phenomena.
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Cornell, Saul. "Moving Beyond the Canon of Traditional Constitutional History: Anti-Federalists, the Bill of Rights, and the Promise of Post-Modern Historiography." Law and History Review 12, no. 1 (1994): 1–28. http://dx.doi.org/10.1017/s0738248000011238.
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Few aspects of post-structuralist literary criticism have garnered as much attention and provoked as much controversy as the move to challenge the idea of a fixed literary canon of great texts. The implications of deconstructing the canon extend well beyond the study of fiction. All fields of scholarship have a canon of established texts, methodologies, and questions. Critiques of the literary canon resemble the challenge to conventional history posed by the new social history and its efforts to write a history from the bottom up that would supplant traditional historical scholarship. A similar revisionist effort is now only just beginning to emerge in constitutional historiography. Proponents of “a new constitutional history” are seeking to challenge the canon of traditional constitutional history. While this revisionist project has not been cast in post-structuralist terms, the perspective provided by recent critical theory can refine the practice of the new constitutional history.
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Dawson, Mark. "Constitutional Dialogue between Courts and Legislatures in the European Union: Prospects and Limits." European Public Law 19, Issue 2 (June 1, 2013): 369–96. http://dx.doi.org/10.54648/euro2013022.
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The concept of 'constitutional dialogue' has become a focal point of US and Canadian public law scholarship. This concept sees judicial review not as a check on majority preferences but instead as part of a deliberation between the legislative and judicial branches over how constitutional commitments and general political objectives can be integrated. This article will explore the prospects and limits of developing the dialogue concept in the context of the present-day European Union (EU). The article will present a two-part argument: While the EU's political and legal diversity make the idea of a 'shared responsibility' for constitutional interpretation between judges and policy-makers normatively attractive, the existing institutional structure of the Union limits the incentives necessary for legal and political actors to constitutionally engage.
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Wallinga, Tammo. "The Common History of European Legal Scholarship." Erasmus Law Review 4, no. 1 (January 2011): 3–19. http://dx.doi.org/10.5553/elr221026712011004001002.
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Ireland, Richard W. "A Legal History of Legal History in England and Wales." Acta Universitatis Lodziensis. Folia Iuridica 99 (June 30, 2022): 99–111. http://dx.doi.org/10.18778/0208-6069.99.07.
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This article explores the development of the study of legal history as a subject in the law schools of England and Wales. It outlines changes in university education more generally, and in legal scholarship in particular and how those changes impact the particular subject under study. Drawing on empirical studies and personal reflections relating to past experience it concludes by speculating on potential different outcomes, both positive and negative, which may emerge when the universities of England and Wales emerge from the uncertainty of the COVID-19 pandemic, during which the piece was written.
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Martinico, Giuseppe. "Review Essay –Principles of European Constitutional Law (Armin Von Bogdandy & Jurgen Bast eds., 2006)." German Law Journal 10, no. 11 (November 1, 2009): 1551–60. http://dx.doi.org/10.1017/s207183220001837x.
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Recently the GermanBundesverfassungsgericht(Federal Constitutional Court) knocked on the European Union's door with its impressive judgment on the Lisbon Treaty, recalling all the weight of the German scholarship tradition steeped in the German dogmatic flavor: the attention to the history of sovereignty and the attempt to catch all the European Union constitutional system's life revealed the systemic approach peculiar to the German dogmatic scholarship.
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Riegner, Michael. "The Directive Constitution in the Varieties of Constitutionalism: An Introduction." Verfassung in Recht und Übersee 56, no. 3 (2023): 493–505. http://dx.doi.org/10.5771/0506-7286-2023-3-493.
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This overview article introduces the special issue on “The Directive Constitution in the varieties of constitutionalism”, which revisits debates on the constituição dirigente in Portugal and Brazil, analyses the genealogy, substance and evolution of the concept, and compares it to its Anglophone sibling transformative constitutionalism. The article argues that studying directive constitutionalism makes important contributions to comparative constitutional scholarship, especially to debates on constitutional typology and non-liberal varieties of constitutionalism, to the literature on constitutional transfers and the political economy of legal knowledge, and to normative critiques of non-liberal varieties of constitutionalism in the face of democratic decline and authoritarian challenges.
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Posner, Eric A. "The Legal Regulation of Religious Groups." Legal Theory 2, no. 1 (March 1996): 33–62. http://dx.doi.org/10.1017/s1352325200000355.
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Although much legal scholarship discusses the meaning of the religion clauses of the U.S. Constitution, very few articles analyze the ways in which state regulation affects actors' incentives to engage in religious behavior. Yet the question of how a law influences religious behavior is important for determining whether various laws are desirable, and whether they violate constitutional constraints. This article draws on recent economic models of religious organization to analyze the ways in which laws affect the behavior of religious groups. Religious groups produce collective goods for their members, and the effect of laws can be analyzed by examining how they modify the payoffs members receive for cooperating or free riding. The article examines the use of laws to establish religious groups, to subsidize them with cash or tax benefits, to provide accommodations for them, to provide symbolic support for them, to provide secular substitutes for the collective goods they produce, and to regulate disputes between members. The article also briefly discusses the constitutional implications of the analysis.
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Brezhnev, O. V. "USSR CONSTITUTIONAL OVERSIGHT COMMITTEE: HISTORY, LEGAL STATUS, ACTIVITY." Proceedings of the Southwest State University 22, no. 1 (February 28, 2018): 211–16. http://dx.doi.org/10.21869/2223-1560-2018-22-1-211-216.
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This article considers the history of the creation and legal status of USSR Constitutional Oversight Committee, a specialized body established to ensure legal protection of the Constitution of the USSR. It is noted that the formation of this institution should be viewed with respect to the tasks set in the Soviet state in the late 1980s and early 1990s: democratization of state administration, overcoming separatist tendencies, implementation of radical economic reform, and formation of a socialist legal state. In the study, the author used analytical, formal-legal methods, the method of abstraction, which allowed formulating main conclusions. Analyzing the legal status of the USSR Constitutional Oversight Committee, the author comes to the conclusion that its powers were of a limited nature: in the conditions of denying the principle of separation of powers, they did not dispute the supremacy of USSR Congress of People’s Deputies in the system of state power bodies. In those years, the activities of the Committee were considered not so much as jurisdictional, but as political and legal. The article categorizes the powers of the USSR Constitutional Oversight Committee, some of which were of control nature, but most of them were of supervisory or expert-consultative nature. Investigating the practice of the the USSR Constitutional Oversight Committee, the author concludes that the legal positions contained in its decisions significantly influenced the further development of domestic legislation and constitutional justice in Russia.
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Rosenberg, Norman, Michael J. Meyer, and W. A. Parent. "Dignity, Rights, and Recent Legal Scholarship." American Quarterly 45, no. 3 (September 1993): 429. http://dx.doi.org/10.2307/2713242.
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Hall, Aaron R. "“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism." Law and History Review 37, no. 03 (July 2, 2019): 743–61. http://dx.doi.org/10.1017/s0738248019000348.
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This essay considers how the cultural authority of the constitutional Founding became legal authority in antebellum America. Examining a series of cases implicating the constitutional politics of slavery, it illustrates how legal professionals grasped the public power of constitutional origin stories. To produce meanings and legitimate rulings, lawyers and judges wrote and reproduced narratives about slavery at the Founding, converting ascriptions of original constitutional visions in formal constitutional law. This power derived from the ongoing popular construction of the Founding as a venerated and authoritative moment containing unwritten intentions, understandings, and promises binding upon subsequent generations. The essay argues that these developments belong to the deep history of originalism. By approaching originalism as a form of constitutional politics integrating public memory culture and legal reasoning, the essay locates the central public and juridical dynamics of originalism emerging in struggles over the constitutional identity of slavery.
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Bocharova, Natalia V. "ANALYTICAL REVIEW OF PUBLICATIONS ON CONSTITUTIONAL LAW AT OXFORD UNIVERSITY PRESS (Monographic publications)." Bulletin of Alfred Nobel University Series "Law" 1, no. 6 (July 14, 2023): 104–15. http://dx.doi.org/10.32342/2709-6408-2023-1-6-10.
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The integration of Ukraine into the world and European research space in the field of jurisprudence requires a thorough acquaintance with the latest methodological approaches and theoretical and doctrinal developments of the world's leading experts. Familiarity with the publishing activity of foreign legal scholars and the work of academic publishing houses plays an important role in this regard. The presented analytical review highlights the activity of publishing constitutional and legal studies of the Oxford University Press, which is the largest university publishing house in the modern world. The characteristics of constitutional publications are structured according to thematic sections: sources of constitutional law and reference publications, studies on the constitutional law of individual countries and regions, as well as problems and phenomena related to constitutional development (freedom, deliberative democracy, human rights, local self-government). If we depart, so to speak, from the territorial principle, the following thematic blocks can be distinguished in relation to the issues of Oxford University publications on constitutional law: a) comparative legal constitutional studies; b) analysis of constitutionalism within the framework of classical doctrinal discourse (constituent elements of constitutionalism, constitutionalism in the philosophical dimension, problems of the social context of modern constitutionalism); c) globalization of law and the phenomenon of global (transnational, supranational) constitutionalism. This distinction is quite arbitrary, because two or more problems may be covered in a particular publication. Publications of the University of Oxford accumulate the main achievements of world jurisprudence in the field of constitutional law. Many of the characterized editions are available on a special online resource "Oxford Scholarship Online".
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Anderson, Jack. "Methodology in Sports History: Learning from Legal Scholarship?" International Journal of the History of Sport 32, no. 15 (October 13, 2015): 1764–68. http://dx.doi.org/10.1080/09523367.2015.1098625.
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Лайтер, А. В. "THE HISTORY OF LEGAL NIHILISM IN RUSSIA: CONSTITUTIONAL AND LEGAL ASPECT." Вестник Академии права и управления, no. 2(72) (July 7, 2023): 198–203. http://dx.doi.org/10.47629/2074-9201_2023_2_198_203.
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Задача статьи – подвергнуть анализу развитие нигилистических политико-правовых воззрений значительной части представителей российского образованного класса, причём не только государственных деятелей, но и многих учёных, включая профессиональных юристов, XIX-XX вв. В статье анализируются причины и предпосылки, определившие столь распространенное в отечественном истэблишменте скептическое отношение к праву, правовому государству, правам и свободам личности, вообще к законности. Проанализированы взгляды на данный предмет представителей самых разных убеждений – консерваторов-охранителей, западников, славянофилов, анархистов, марксистов, отражено преломление в их сознании и творчестве скептического отношения к праву в зависимости от взглядов. Показано вместе с тем, что большинство причин, порождающих правовой нигилизм, не являются чем-то имманентным России, они в большинстве своём преодолимы и связаны с отставанием страны от наиболее продвинутых правовых государств. Как правило, консервация и культивирование правового нигилизма связаны с задержкой в нашей истории необходимых реформ. Особое внимание уделено советскому периоду, включая годы «перестройки». Дается авторское видение исследуемой проблемы в историческом ракурсе, приводится объяснение того, почему правовой нигилизм пока не удалось преодолеть, а также содержатся конкретные предложения по его преодолению в современной России. The purpose of the article is to analyze the development of nihilistic political and legal views of a significant part of the Russian establishment of the XIX-XX centuries. The article analyzes the reasons and prerequisites that have determined such a widespread skeptical attitude in the domestic establishment towards law, the rule of law, individual rights and freedoms, and legality in general. The views of representatives of a wide variety of beliefs on this subject – conservatives, conservationists, Westerners, Slavophiles, anarchists, Marxists – are analyzed, the refraction of a skeptical attitude to law in their consciousness and creativity depending on their views is reflected. At the same time, it is shown that most of the causes giving rise to legal nihilism are not something immanent in Russia, they are mostly surmountable and are associated with the country’s lagging behind the most advanced legal states. As a rule, the preservation and cultivation of legal nihilism is associated with a delay in our history of necessary reforms. Special attention is paid to the Soviet period, including the years of “perestroika”. The author’s vision of the problem under study from a historical perspective is given, an explanation of why legal nihilism has not yet been overcome is given, and concrete proposals for overcoming it in modern Russia are also contained.
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Likhovski, Assaf. "Peripheral Vision: Polish-Jewish Lawyers and Early Israeli Law." Law and History Review 36, no. 2 (February 21, 2018): 235–66. http://dx.doi.org/10.1017/s0738248017000669.
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Some of the founding fathers of Israel's legal system were lawyers educated in Polish law schools. What was the impact of this background on their legal thought? There are few explicit references to Polish law in Israeli legal texts. However, indirectly, legal and constitutional ideas taken from Polish law did appear in Israeli law. This article focuses on the legal writing of four Israeli lawyers in the period immediately after Israel's independence in 1948, showing how Polish law was used by these lawyers as a source for occasional precedents, for critiquing Israeli law (dominated by English law), and, mostly, for constitutional precedents.The relatively greater impact of Polish law in the constitutional realm can be attributed to the fact that Poland (like other new countries established in the interwar period in the periphery of western Europe, such as Ireland) offered Israeli lawyers constitutional models that were both more modern, and more relevant to the specific circumstances of the new state, where religion played an important role in defining the identity of the nation. The history of the impact of Polish law on Israeli law can thus serve as an example of interwar constitutional innovation in the European periphery, and its later impact on post-World War II constitutional law.
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Jakab, András. "Judicial Reasoning in Constitutional Courts: A European Perspective." German Law Journal 14, no. 8 (August 1, 2013): 1215–75. http://dx.doi.org/10.1017/s207183220000225x.
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“In the beginning was the Word.” This quote from the Holy Bible also stands on the ceiling of our discipline's temple. The job of legal scholarship is interpreting, and the base of every interpretation is the word.In this paper we are going to analyze how constitutional courts are able to extract the most meaning from a, necessarily, short text, such as a constitution, with the use of sophisticated tricks, or methods, of interpretation. Partly with the help of these methods, and partly on the basis of text-independent speculations, constitutional courts and legal scholars are able to develop a system of concepts (aRechtsdogmatik, or its specific constitutional part, theVerfassungsdogmatik) considerably more sophisticated than the one of the actual text of the constitution in order to serve as a helping toolkit for the solution of future cases. After analyzing some preliminary issues in part A, the largest part of this study will deal with the different methods of constitutional interpretation in part B. Then, the nature of this conceptual system will be analyzed in part C, before turning to the question of styles of constitutional reasoning in part D. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.
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Hollis‐Brusky, Amanda. "Support Structures and Constitutional Change: Teles, Southworth, and the Conservative Legal Movement." Law & Social Inquiry 36, no. 02 (2011): 516–36. http://dx.doi.org/10.1111/j.1747-4469.2011.01240.x.
Full textAbstract:
This essay reviews two recent works in political science on the American conservative legal movement: Steven M. Teles's The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008) and Ann Southworth's Lawyers of the Right: Professionalizing the Conservative Coalition (2008). It examines these books in the context of a larger debate over the variables that best explain constitutional change in general and the recent “conservative counterrevolution” in Supreme Court jurisprudence in particular. It shows how these studies build on the scholarship of Charles Epp, who argued in The Rights Revolution (1998) that serious constitutional change requires not only the right cast of characters on the court, but also a strong “support structure” in the legal profession and civil society. Finally, it draws on the author's own research on the Federalist Society for Law and Public Policy to illustrate some important avenues for further inquiry.