SSRN PAPER: Elen STOKES, "Hope as an Object of Legal Scholarship" [OPEN ACCESS]

 

(image: Bristol; Source: Wikimedia Commons)

Abstract:

This paper explores what it might mean for hope to be an object of legal scholarship. It raises questions about what to look for and where to look for it, framing the discussion around hopeful legal ends, means, attachments and atmospheres. It finds that the relationship between law and hope can be characterised by multiplicity, and that this invites a wide range of approaches to engaging with hope in and around law.

On the author:

Elen Stokes University of Bristol

More information here: DOI 10.2139/ssrn.5893144.    

(source: Law & Humanities Blog)

 

SSRN PAPER: Jeremy KESSLER, "The Origins of "The Rule of Law"" (Law & Contemporary Problems LXXXVII (2025)

 

(image source: Wikimedia Commons)

Abstract:

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on. When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists. In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610? This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

 Source: Legal History Blog.

Read more here.

SSRN PAPER: Ewan MCGAUGHEY, "Competition and Labour Law in the United Kingdom: History, Theory and Practice" (forthcoming in The Cambridge Handbook of Labour in Competition Law"

 

(image source: Twitter)

Abstract:

What is the proper relationship between competition and labour law? In the UK since at least 1906 every real ‘person’ has had ‘freedom of association’ and is free to take collective action in a ‘trade dispute’, whether an employee, or self-employed. This principle was necessary for fair competition, fair working time, and fair wages. It forms a cornerstone of labour relations. The UK’s experience informed US antitrust law, the International Labour Organisation, and the Universal Declaration of Human Rights. ‘Everyone’ in international law has the right to ‘just and favourable remuneration’, to join unions for ‘the promotion’ of their ‘social interests’, and the ‘right to strike’. UK and international law equally influenced EU law. Like all EU members states, since World War Two the UK has never used competition rules to suppress unions. This chapter explains the law on combinations, conspiracy and restraint of trade. Modern competition law, focused on undertakings, developed to break private monopoly power of unaccountable corporations, not to suppress fair wages and voice at work. Cases of collective action from self-employed barristers, to drivers and book dealers illustrate this. Competition law’s proper focus is unaccountable corporate power, to build a plural, more democratic economy.

On the author:

School of Law, King's College, London; Centre for Business Research, University of Cambridge; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

(source: SSRN) 

SSRN PAPER: Matthias GOLDMANN, "Contesting Austerity: Genealogies of Human Rights Discourse"

(image source: Wikimedia Commons)

Abstract:

The dominant understanding of the role of human rights in the context of austerity induced by sovereign debt crises has shifted markedly over time. It reflects, and may have influenced, the genealogies of human rights law in the postwar era. Four different paradigms emerge. During the 1970s, the decade preceding the debt crisis of the 1980s, the idea of austerity as a response to debt crises was contested by the basic (human) needs approach and by the proposal of a New International Economic Order. Both strands of thought showed some affinity with human rights law, although not without ambiguity, understanding self-determination as a structural requirement for ESC rights enjoyment. Counterintuitively, though, the debt crisis beginning in the 1980s silenced, rather than provoked, any form of human rights-based critique. The IMF managed to shift the focus of the debate from human needs to human capital, in line with the emerging Washington Consensus. When the Iron Curtain fell, sovereign debt restructuring became more generous, but debtor states had to pay with ever more intrusive forms of austerity, including structural conditions such as respect for civil and political rights. This “governance paradigm” of human rights was countered by a transformative paradigm of human rights in which civil society articulated its critique of austerity. The IFIs avoided the issue of human rights, but reacted by adding “social” components to austerity that aligned with their focus on efficiency and growth and further entrenched sufficiency. The impact of austerity on the European periphery led to lots of human rights litigation, but a number of structural obstacles prevented its success. Instead, the crisis aftermath saw enormous progress in the political recognition of human rights as a relevant standard for austerity. This has given rise to a new political paradigm of human rights. While this genealogy shows the contingency of human rights discourse in relation to austerity, it reveals their potential for challenging economic expertise and empowering progressive views. The limits of human rights discourse are the limits of our imagination.

Read the full paper here.
(source: International Law Reporter)

SSRN PAPER: Emily KADENS, Cheating Pays (forthcoming in Columbia Law Review)

(image source: Mendeley)

Abstract:

Common private-ordering theories predict that merchants have an incentive to act honestly because if they do not, they will get a bad reputation and their future businesses will suffer. In these theories, cheating is cheating whether the cheat is big or small. But while reputa­tion-based private ordering may constrain the big cheat, it does not necessarily constrain the small cheat because of the difficulty in discover­ing certain types of low-level cheating and the consequent failure of the disciplining power of reputation. Yet the small cheat presents a signifi­cant challenge to modern contracting, both between businesses and in the contracts of adhesion imposed on consumers. To encourage private law scholars to address the unique governance challenges posed by low-level cheating, this Essay describes the conditions under which low-level cheating can flourish and become widespread. It demonstrates this so-called “Cheating Pays” scenario using a historical case study in which a seventeenth-century London grocer, trading under precisely those condi­tions that private-ordering theories predict will incentivize honesty, not only cheated extensively but also successfully remained in business after having been caught and publicly punished. Identifying the scenarios in which cheating pays has implications for how firms use contracts and how consumers might use the courts to try to reduce opportunistic behavior.

Read the full paper on SSRN.

(source: Legal History Blog)

SSRN PAPER: Matthew C. MIROW on Léon Duguit and the Social Function of Property in Argentina

(image source: IIDA)

Abstract:

Despite its early introduction to Argentina in 1911, the doctrine of the social function of property was not quickly appropriated into the Argentine legal system. Only after a period of more than thirty-five years did this concept of property find expression in this country through the Constitution of 1949, the Peronist constitution drafted under the guidance of the Arturo Enrique Sampay. Duguit's writings formed part of a broader understanding of the social function of property that was informed by various scholars and sources, and particularly by works on Christian humanism and the social doctrine of the Roman Catholic church. Although mentioned in the debates of the Argentine Constitution of 1949, Duguit was only one of a variety of sources employed by advocates of the doctrine, and his direct influence in the area was significantly less than one might expect considering the historical link between his lectures in Buenos Aires and the creation of the doctrine.

Read the paper here.

(source: Law & Humanities Blog)

SSRN PAPER: John C. HARRISSON, 'The Constitution and the Law of Nations', Georgetown Law Journal XVI (2018), 1659-1705

(image source: Wikimedia Commons)

Abstract:

Under the original understanding of the Constitution, customary international law features in the U.S. legal system as general law. It is not law of the United States within the meaning of Articles III or VI of the Constitution, and so does not serve as a basis for federal question jurisdiction or override contrary state law. Under the original understanding, the Constitution does not confer the protections of the international law of state-state relations on either foreign states or governments that have been recognized as such by federal political actors. Congress may confer those protections by statute, but in the absence of statute or treaty, they rest on general law. The Constitution’s text indicates that the laws of the United States referred to in Articles III and VI consist entirely of federal statutes. The Federal Convention’s drafting process indicates that members of the convention had that understanding of the text they produced. That process also indicates that the drafters probably understood the laws referred to by the Take Care Clause of Article II to consist of federal statutes. Prominent figures in the ratification debates treated Articles III and VI as using the term “laws of the United States” to refer to statutes. The First Congress drafted the Judiciary Act of 1789 on the assumption that the laws of the United States referred to in Articles III and VI were federal statutes. During the 1793 prosecution of Gideon Henfield for non-statutory criminal violations of the United States’ neutrality, a number of leading figures took the position that the federal courts could entertain prosecutions under unwritten law. It is unlikely, however, that any of them meant to assert that the law of nations was law of the United States within the meaning of Articles III or VI.

Fulltext on SSRN.

(source: ESILHIL Blog)

SSRN PAPER: David FOX, "The Anglo-Scots Monetary Union of 1707" [Edinburgh School of Law Research Paper 2018/24]

(image source: Wikimedia Commons)

Abstract:

This article analyses the 1707 monetary union between England and Scotland, seen from a legal historical perspective. The task requires a contextual interpretation of Article XVI of the Treaty of Union but, more especially, a fine analysis of the accounting and administrative documents that implemented the union as a numismatic process. Only when these are understood do the questions of private law emerge from the interstices. The article adds to the emerging literature on the economic history of monetary integration. One theme in the literature is the inter-relationship between political and monetary union. Political union drives monetary union but states that seek to preserve their political autonomy may accept some measure of monetary integration between themselves to facilitate trade relations. Strange as it may now seem, the monetary union of 1707 seemed relatively uncontentious in Scotland at the time. The reason may be that it was incidental to the bigger and more difficult question of political union between the two kingdoms. Unlike the formation of the euro-area nearly 300 years later it did not involve the cession of monetary sovereignty by states that, notionally at least, remained politically sovereign. The main effect of the union was simply to rebase the monetary standard of the currency in Scotland with the currency in England. That had been the goal of the Scottish monetary authorities since 1604, after the regnal union established by James VI/I. In one sense, the union simply restored the long-established status quo.

More information on SSRN.

SSRN PAPER: Timothy Louis SCHROER, Multinormativity in Western Arguments Regarding Punishment of the Boxers and their Patrons, 1900-1901 [Max Planck Institute for European Legal History Research Paper Series No. 2018-07]

(image source: Github)

Abstract:

Westerners applied multiple normative frameworks in debating policy toward China in the wake of the Boxer Uprising in 1900 and 1901. They variously claimed that treatment of China should be governed by the rules of international law, a code of honor, Christian teachings, the judgment of history, or ill-defined norms of civilization. At other times, however, Westerners called for violence against the Chinese without any meaningful normative basis. The law and the legal discipline have an imperializing character, as the law conceptually tends to subordinate other normative frameworks to itself and integrate them into its own normative order, dubbed law. The debate concerning China in 1900 illustrates that legal norms were inextricably and complexly entangled with other norms. It suggests that legal historians, if they are to grasp the past in its full richness, should attend to multiple normative frameworks beyond the law, since legal history cannot be divorced from its wider context. Moreover, scholars applying the lens of multinormativity should recognize that, at some point, norms end and a-normative arguments begin.

Read the full paper here.
(source: ESILHIL Blog)

ADVANCE ARTICLE: Jorge E. VIÑUALES, "The Organisation of the Anthropocene", Brill Research Perspectives in International Legal Theory and Practice I (2018), 1, pp. 1-81 (ISSN 2452-204X)

(image source: Brill)

Abstract:

This essay introduces the legal dimensions of the Anthropocene, i.e. the currently advocated new geological epoch in which humans are the defining force. It explores in this context two basic propositions. First, law as a technology of social organisation has been neglected in the otherwise highly technology-focused accounts by natural and social scientists of the drivers of the Anthropocene. Secondly, in those rare instances where law has been discussed, there is a tendency to assume that the role of law is to tackle the negative externalities of transactions (e.g. their environmental or social implications) rather than the core of the underlying transactions, i.e. the organization of production and consumption processes. Such focus on externalities fails to unveil the role of law in prompting, sustaining and potentially managing the processes that have led to the Anthropocene. After a brief introduction to the Anthropocene narrative and the possible role of law in it, it focuses on three main questions: the disconnection between natural and human history, the profound inequalities within the human variable driving the Anthropocene, and the technological transition required to reach a sustainable societal organisation.

More information with the publisher.

(source: ESIL IGHIL blog)

SSRN PAPER: Mark TUSHNET, Critical Legal Studies and the Rule of Law (forthcoming in Martin LOUGHLIN & Jens MEIERHENRICH (eds.), The Cambridge Companion to the Rule of Law (Cambridge: CUP, 2018)

(image source: Wikimedia Commons)

Prof. Mark Tushnet (Harvard Law School) published "Critical Legal Studies and the Rule of Law" on SSRN. The text is part of a forthcoming Cambridge Companion to the Rule of Law (eds. Martin Loughlin and Jens Meierhenrich).

Abstract:

This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.

Download paper here.

SSRN: PAPERS: Daniel HULSEBOSCH on "Protecting Foreign Expectations in the Early US" and "Being Seen like a State"

(image source: Famously Dead)

The Legal History Blog signalled two new papers by Daniel J. Hulsebosch (NYU School of Law):

From Imperial to International Law: Protecting Foreign Expectations in the Early United Statesand appears in UCLA Law Review Discourse 65 (2018): 4-18:

This Essay argues that several principles associated with modern international investment law and dispute resolution arose in the wake of the American Revolution, as the revolutionaries and Britons sought to restructure trade relations, previously regulated by imperial law, under new treaties and the law of nations. They negotiated such problems as the currency in which international debts would be paid; the ability of foreign creditors pursue domestic collection remedies; whether creditors had to exhaust those remedies before their nation could resort to international arbitration; and the form of state-state arbitration of private disputes. The specific setting of these negotiations — the aftermath of a colonial settler revolution — narrowed the compass of disagreement, compared to many later postcolonial negotiations. In addition, the negotiations assumed that the exhaustion of national remedies remained the standard method of resolving private debt disputes. Notwithstanding these important differences, the principles and institutions developed after an imperial civil war influenced the development of international investment law.

 The second is Being Seen Like a State: How Americans (and Britons) Built the Constitutional Infrastructure of a Developing Nation, which appears in the William & Mary Law Review 59 (2018): 1239-1319:

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution — at least, the Federal Constitution — might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope. Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, self discipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with the conventional account of the American Founding, just an intramural affair? This Article argues that many foreigners did notice, not least because some of them had participated in the process of reform. Although no foreigners intervened directly in drafting or ratification, international demands, incentives, and reactions shaped the way that leading American Framers pursued constitution making. After a “foreign ratification debate” that stretched into the first years of the Washington Administration, Britain normalized diplomatic relations with the United States and substantial capital investment followed. In 1791, the British Board of Trade approvingly analyzed the Constitution in a report designed to guide the Privy Council as it drafted instructions for its first official envoy to the United States. Within fifteen years, Britons were the largest holders of foreign investment in the United States, including state and federal “domestic debt,” or the restructured wartime certificates and loans that had floated the Revolution. In sum, Britons ultimately financed much of the project of American independence, and contemporaries believed that these credit relations would reduce, without eliminating, the prospect of renewed war.

SSRN PAPER: Barry E. HAWK, English Competition Law Before 1800 (Fordham Legal Studies Research Paper)

(image source: Github)

Abstract:

English competition law before 1900 developed over the course of many centuries beginning in the medieval period. That development reflected changes in political conditions, economic theories, and broader cultural values. English competition law mirrored the historical movements in England from the medieval ideal of fair prices and just wages to 16th and 17th century nation state mercantilism to the 18th and 19th century Industrial Revolution, laissez faire capitalism and freedom of contract. The development of English competition law is rich in insights for modern antitrust issues like the adaptability of case law and legislation to changing economic conditions, the role of economic theories in the formulation of legal rules, and the role of political and social values in competition policy. Today the predominant if not exclusive emphasis on economics in the application of modern antitrust laws has resulted in a quasi-regulatory system far more technical, specialized and narrowly focused than the case making of generalist English common law judges. Modern antitrust law adapts well to changes in economic theories and conditions but it is less adaptable than English common law to shifts in political and social values. This lack of adaptability is viewed by most commentators as a beneficial insulation of decision-making from political or social influences. Proponents of non-economic policy concerns (like fear of concentration for political or social reasons), on the other hand, are forced to formulate their concerns in economic terms because of the prevailing view that only economics counts in antitrust. They would have had an easier task under the English common law.

Read the paper here.

(source: Law and Humanities Blog)

SSRN PAPER: Rebeca FERNANDES DIAS, "Brazilian Criminological Thinking During the First Republic (1889-1930)" [MPI for European Legal History, Research Paper Series 2016-13]

(images source: typepad)

Wouter Druwé (KULeuven-Research Foundation Flanders (FWO) posted "Dignity and Cessio Bonorum in Early-Modern Dutch Learned Legal Literature" on the MPI for European Legal History's Research Paper Series on SSRN.

Abstract:

Imprisonment for debt was a common sanction in the early modern period. Through the learned legal institute of the cessio bonorum, or its customary legal alternatives, insolvent debtors could avoid the shame of prison. Nevertheless, in order to discourage irresponsible administration of one's patrimony, local customs and princely ordinances often added shaming sanctions to the ius commune institute. This contribution first presents the legal framework of the cessio bonorum, as well as some shaming practices, especially in the Low Countries. In its main part, this article analyses early modern Netherlandish learned legal literature on the cessio bonorum and outlines ten different arguments related to honour and dignity. Authors discussed which goods the ceding debtors were allowed to retain both at the moment of the cession and thereafter. On the one hand, fraudulent debtors did not deserve any humane treatment and, thus, neither the benefice of cession. For other classes of debtors on the other hand, like clerics, noblemen or members of the military, the obligations going along with the cession of goods were less severe. The arguments outlined in this paper also illustrate the entanglement of humanitarian and instrumental reasoning.

Fulltext here.

PAPER on SSRN: Annamaria MONTI, 'Interdisciplinary' Legal Studies and the Emergence of New Academic Teachings: A Research Project on Law Courses in 19th-20th Century Italy

 (image source: SSRN)

Annamaria Monti (Bocconi University, Milan) posted 'Interdisciplinary' Legal Studies and the Emergence of New Academic Teachings: A Research Project on Law Courses in 19th-20th Century Italy on SSRN.

Abstract:

English Abstract: The profound change in thinking about the law experienced by European jurists at the turning of the 20th century is well known: they renewed their methods, also through the influence of German legal thought and the impact of new social sciences. Focusing on the Italian experience, the research intends to investigate how this innovative change was linked to the teaching of law. Most certainly, new courses were introduced. Concerning the contents of the teachings, another point to investigate are the connections with the legal thought circulating at a transnational level in those times.

Spanish Abstract: El cambio profundo en la manera en la que se pensaba el derecho que experimentaron los juristas europeos a principios del siglo XX es bien conocido: renovaron sus métodos, en parte bajo la influencia del pensamiento jurídico alemán y el impacto de nuevas ciencias sociales. Nuestra investigación, que se centra en la experiencia italiana busca determinar el modo en que aquella innovación estuvo vinculada a la enseñanza del derecho. Seguramente se introdujeron nuevas asignaturas. En cuanto al contenido de aquella enseñanza, otro aspecto a investigar consiste en su conexión con el pensamiento jurídico que circulaba en aquel entonces a nivel transnacional.

See fulltext here.
(source: Legal History Blog)

PAPER on SSRN: Alfons ARAGONESES, "Convivencia and Filosefardismo in Spanish Nation-building" [ Max Planck Institute for European Legal History Research Paper Series No. 2016-05]

(image source: SSRN)

Alfons Aragoneses (Pompeu Fabra University, Barcelona) posted Convivencia and Filosefardismo in Spanish Nation-building, as part of the MPI for European Legal History Research Paper Series (2016-05) on SSRN.

Abstract:

The paper describes the historical trajectory of filosefardismo and references to convivencia in Spain and its reflection in the legal and political culture and the Nation-building process. It considers not the presence of Judaism in contemporary Spanish law and society but, following the suggestions of David Nirenberg, how the references to Jews and to Judaism affected Spanish society, how the “Spanish Jewish question” influenced legal and political thought and the nation-building process in Spain.

To trace this reinvention of the medieval Sephardim, the paper analyzes legal and political texts (laws, administrative texts and parliamentary debates) whose discourse about interpretation and/or legitimacy fulfilled important social and political functions in 19th century deliberations.

Download text here.

PAPERS on constitutional history by D. Hulsebosch (NYU)

(image source: SSRNblog)

Our colleagues at the Law & Humanities blog and the Legal History Blog signalled different new papers by prof. D. Hulsebosch (NYU School of Law).

1. "English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire" in: Lorna Hutson (ed.), Oxford History of English Law and Literature 1500-1700 (OUP, forthcoming)

Abstract:

We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant. Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems. Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human property. 

Download this text on SSRN.

2. "Magna Carta for the World? The Merchants’ Chapter and Foreign Capital in the Early American Republic" (94 North Carolina Law Review) (paper presented as draft at the Magna Carta commemorative British Legal History Conference in Reading, 2015)

Abstract:

This Article examines the early modern revival and subtle transformation in what is here called the merchants’ chapter of Magna Carta and then analyzes how lawyers, judges, and government officeholders invoked it in the new American federal courts and in debates over congressional power. In the U.S. Supreme Court in the early 1790s, a British creditor and an American State debated the meaning and applicability of the merchants’ chapter, which guaranteed two rights to foreign merchants: free entry and exit during peacetime, without being subjected to arbitrary taxes; and, in wartime, the promise that their persons and goods would not be harmed or confiscated, unless their own king attacked and confiscated English merchants. In other words, no harm to enemy aliens, except as retaliation. Tit for tat.
The idea that reciprocity was a fundamental mechanism of international (and interpersonal) relations became something like a social science axiom in the early modern Enlightenment. Edward Coke claimed to find that mechanism in the merchants’ chapter and publicized it to lawyers throughout the emerging British Empire and beyond. Montesquieu lauded the English for protecting foreign commerce in their fundamental law, and Blackstone basked in that praise. American lawyers derived their understanding of the merchants’ chapter from these sources and then, in the early Republic, stretched the principle behind it to protect foreign capital, not just resident merchants. The vindication of old imperial debt contracts would signal to all international creditors that, in the United States, credit was safe. Federalists then invoked the chapter outside of the courts to resist Republican attempts to embargo commerce and sequester foreign credit. For Republicans, doux commerce had become the Achilles heel of the great Atlantic empires: their reliance on American trade could be used to gain diplomatic leverage without risking war. For Federalists, economic sanctions threatened not just their fiscal policy but their entire vision of an Atlantic world that increasingly insulated international capital from national politics. They all agreed, however, that the role of foreign capital in the American constitutional system was a central issue for the new and developing nation.

Download this text on SSRN.

3. "Exile, Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution", to appear in Law and Social Inquiry (2016)

Abstract:

Taking a cue from Bernadette Atuahene’s concept of “dignity takings” and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that loyalists suffered, and some paths toward reintegration. Their appointment as federal attorneys helped make the government conversant in the common law, British statutes, and the law of nations, which in turn supported the Federalist goal of reintegrating the United States into the Atlantic World: achieving, in other words, national dignity.

Download this text on SSRN.

BOOK PREVIEW: Wilfrid PREST (ed.), Blackstone's Commentaries on the Laws of England (Oxford: Oxford UP, forthcoming)

(image source: Wikimedia Commons)

The Legal History blog signalled a free preview to Simon Stern (Toronto)'s introduction to Book II of Blackstone's Commentaries on the Laws of England, to be published by Oxford University Press, under the editorship of Wilfrid Prest (Oxford).

Summary:

This draft excepts three of the six sections in the introduction to Book II, on the law of property ("Of the Rights of Things") in William Blackstone's Commentaries on the Laws of England. The volume forms part of the Oxford Edition of Blackstone, and is due out in 2016. The three sections excepted here cover the aims of Book II, its treatment of property (including intellectual property), and its influence. Blackstone is often praised in vague terms for his style, and the section on his influence also attempts to explain concretely some of the stylistic features that distinguish his writing. Besides an introduction, each volume in this edition includes the editorial changes that Blackstone made to successive editions of the Commentaries, explanatory footnotes, and tables of the cases, statutes, and legal texts that he cites. The introduction to each volume discusses the book’s aims, subject matter, publication, reception, sources, and influence.

The paper can be read here on SSRN.

(source: Legal History Blog)