SSRN PAPER: Alli ORR LARSEN & Thomas MCSWEENEY, "Medieval Treatises and the Judicial Search for a Useable Past" (Willam & Mary Law School Research Paper nr. 09-514)

 

(image source: SSRN)

Abstract:

The Supreme Court’s recent turn to history and tradition has prompted a renewed interest in the far distant past – the laws and customs of the Middle Ages. But medieval treatises are full of traps for the unwary. This article – a joint enterprise between a medieval legal historian and a Supreme Court scholar – carefully explores what makes these treatises uniquely complicated and easy to get wrong. To start, they are written in Latin and, sometimes, Old French. In many instances, the underlying medieval decisions they reference are destroyed and gone forever. Because there was no photocopier or even printing press back then, treatises often come in competing versions reflecting not only multiple authors but also successive copyists who made substantive changes. And legal texts were just different in the thirteenth century. Treatises were used for purposes as diverse as passing on cultural values, advising rulers on how to govern, and even teaching people the ideals of friendship. Put simply: medieval law is hard to find, hard to read, and even harder to put into context. For the American judge or law clerk who is strapped for time but wants to make a point about a long tradition, the understandable temptation is to reach for an authority like a medieval treatise that feels familiar. After all, modern legal treatises (think Wright and Miller) are recognized as trustworthy authorities to cite. And today translated versions of medieval treatises are easy to find digitally. But that ease of access and familiarity of authority are illusory. Often the very things that make these medieval texts feel familiar to modern readers would have made them idiosyncratic to thirteenth century audiences. Our goal in this article is to raise the caution flag for judicial consumption of medieval treatises: a user-friendly useable past can lead modern lawyers and jurists astray and should not be consumed without scrutiny and care.

Read more here: DOI 10.2139/ssrn.6276360.

(source: Law & Humanities Blog)

SSRN PAPER: Kent MCNEIL, "The Intertemporal Law Doctrine’s Application to the Acquisition of Colonies in the Americas" [OPEN ACCESS]

 (image: whole world; source: Wikimedia Commons)

Abstract:

The intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and apply the international law extant at the time sovereignty was claimed. As international law has evolved from the time European overseas colonial expansion began in the fifteenth century, this means that different standards can apply in diverse colonial contexts, depending on when sovereignty is alleged to have been acquired.

On the author:

York University - Osgoode Hall Law School

Read more here: DOI 10.2139/ssrn.6188938.

(source: Law & Humanities Blog)

SSRN PAPER: Alessandro VOLPI, "Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy" [OPEN ACCESS]

(image: Hanse Kelsen; Source: Wikimedia Commons)

Abstract:

This paper situates the Carl Schmitt-Hans Kelsen dispute on constitutional guardianship within the now-standard categories of political and legal constitutionalism. It examines the conflict between political and legal understandings of the constitution and of constitutional adjudication, alongside divergent conceptions of democracy that strain this institution (notably, the countermajoritarian difficulty). It begins with a close reconstruction of the Weimar-era debate-its legal and political details-covering competing views of adjudication, the constitution as a set of norms or a political decision, and alternative models of guarantees. Through comparative analysis, the paper then traces lines of continuity and discontinuity between those positions and contemporary discussions of constitutional guardianship within debates over legal versus political constitutionalism. What emerges is the enduring persistence of theoretical alternatives that deeply structure the idea of constitutional guardianship in a democratic system. At the same time, we find differences in interpretation and in proposals for legal politics concerning substantive versus procedural conceptions of the constitution, as well as divergent understandings of democratic conflict and pluralism and their implications for constitutional stability. The paper concludes by showing how certain theoretical contradictions at the heart of constitutional guardianship resist easy resolution and must be inhabited, rather than definitively overcome.

On the author:

 Max Planck Institute for the Study of Crime, Security and Law

Read more here: DOI 10.2139/ssrn.6143326.

SSRN PAPER: Samuel MOYN, "Animals and Slaves: A Legal Analogy between Domination and Reform" (forthcoming in Anne PETERS (ed.), Oxford Handbook of Global Animal Law (Oxford: OUP))

 (image source: Wikimedia Commons)

Abstract:

The analogy between animals and slaves is rooted deep in the Western tradition. This chapter argues that the parallel between animals and slaves has been static neither in its content nor its consequences to date. Originally it revolved around domesticated non-human agricultural labouring animals and their enslaved human counterparts. Over millennia, not only did it evolve away from the imaginative centrality of agriculture and therefore domesticated service (human or non-human). Its ethical and political implications underwent a grand reversal in modern times. A little more than two hundred years ago, the analogy began to allow for a common if dissident project of reducing physical cruelty, and eventually for an abolitionist politics that aimed for a more thoroughgoing emancipation from hierarchy.

Read the full paper on SSRN.