American Responses to German Legal Scholarship: From the Civil War to World War I

David M. Rabban 

University of Texas School of Law
April 30, 2013

The University of Texas School of Law, Public Law and Legal Theory Research Paper Series Number 445 
Abstract:      
German legal scholarship had an enormous impact in the United States from the Civil War until World War I. During the last three decades of the nineteenth century, American legal scholars in all specialties relied heavily, though not uncritically, on the historical analysis of law developed by Friedrich Karl von Savigny in the early nineteenth century. American legal historians, who wrote internationally recognized works on the history of English law while stressing its Germanic origins, built on German scholarship about early Germanic law, particularly on books by Rudolph Sohm and Heinrich Brunner. At the beginning of the twentieth century, Roscoe Pound repeatedly invoked Rudolph von Jhering while promoting sociological jurisprudence as an alternative to historical jurisprudence. Unfairly ascribing to prior American scholars his interpretation of Jhering’s attack on German formalism, Pound created a misleading impression of late nineteenth-century American legal thought that remains dominant today.

Number of Pages in PDF File: 36

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2258725

The Arab Spring and Islamic Legal Thought

Leonid Sykiainen 

National Research University Higher School of Economics
April 30, 2013

Higher School of Economics Research Paper No. WP BRP 17/LAW/2013 
Abstract:      
At the end of 2010 there was series of political crises in the Arab world and this period came to be known as “the Arab Spring”. Islam has played a significant role in these events. In certain countries overthrowing the existing regimes resulted in Islamic governments coming to power. A number of aspects of the Arab Spring attracted the attention of contemporary Islamic legal thought. Its different schools diverge in the assessment of the mass protests. Islamic jurisprudence explains the “fiqh of revolution” which justifies the demonstrations and protests against the regime from a Sharia-based point of view.

Number of Pages in PDF File: 22

Keywords: the Arab Spring, Islam, political reforms, Sharia, demonstrations, innovation, fiqh of revolution

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2258422

The Supreme Court's New Source of Legitimacy

Or Bassok 

New York University (NYU) - NYU
April 30, 2013

University of Pennsylvania Journal of Constitutional Law, Vol. 16 (forthcoming) 
Abstract:      
In recent decades, the Supreme Court has lost its ability to base its legitimacy solely on its legal expertise yet it has gained public support as a new source to legitimize its authority. Due to growing public understanding that legal expertise does not award the Court with determinate answers, the Court has partly lost expertise as a source of legitimacy. The idea that judges decide salient cases based on their political preferences has become part of common sense and has eroded the Court’s image as an expert in the public mind. On the other hand, as a result of the invention of scientific public opinion polls and their current centrality in the public mind, the Court has now available a new source of legitimacy. Thanks to public opinion polls that measure public support for the Court, the Court for the first time in its history, has now an independent and public metric demonstrating its public support. The monopoly elected institutions had on claiming to hold public mandate has been broken. As a result of these changes as well as the lessons the Court took from the Lochner decisional line and Brown, an important shift in the political balance of power and subsequently in the Rehnquist Court’s understanding of its own sources of legitimacy occurred.

Number of Pages in PDF File: 54

Keywords: expertise, legitimacy, public opinion

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2258173

Nonquantifiable

Cass R. Sunstein 

Harvard Law School
May 1, 2013

Abstract:      
Under existing Executive Orders, agencies are generally required to quantify both benefits and costs, and (to the extent permitted by law) to show that the former justify the latter. But when agencies lack relevant information, they cannot quantify certain benefits. If this is so, how should agencies decide whether and how to proceed? As a matter of actual practice, agencies often engage in “breakeven analysis,” by which they explore how high the nonquantifiable benefits would have to be in order for the benefits to justify the costs. Breakeven analysis is most useful when the agency is able to identity lower or upper bounds, either through point estimates or through an assessment of expected value. If lower and upper bounds are not readily available, agencies might be able to make progress by exploring comparison cases in which relevant values have already been assigned (such as for a statistical life). When agencies cannot identify lower or upper bounds, and when helpful comparisons are unavailable, breakeven analysis may not be a great deal more than a hunch or a conclusion, or perhaps (when agencies choose to proceed) a way of announcing a decision in favor of precaution. Even if so, breakeven analysis does have the virtues of helping to identify what information is missing, of specifying the conditions under which benefits would justify costs (“conditional justification”), and of explaining why some cases are especially hard.

Number of Pages in PDF File: 27

Keywords: Cost-benefit analysis, nonquantifiable benefits, human dignity

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2259279

How Much Eclectic and Opportunistic Is Modern Political Science?

Simeon Mitropolitski 

University of Montreal
April 30, 2013

Abstract:      
Largely inspired by Max Weber’s instrumental vision of social science, the modern political science likes to see itself as an enterprise where researchers choose freely among different methods for the only sake of advancement of knowledge. Adam Przeworski, for example, a name in comparative politics and in democratization studies, calls his methodology eclectic and opportunistic. This presentation challenges the understanding of modern political science as an eclectic and opportunistic methodological enterprise. My conclusions are based on the analysis of the writings of a few authors in the discipline, including Przeworski. I will show that despite the full academic freedom to choose among different research techniques and methods of interpretation, most scholars prefer to stick with limited number of similar instruments. I will investigate the reason(s) why these authors, including Przeworski himself, do not answer the call for eclectics and opportunism.

Number of Pages in PDF File: 18

Keywords: political science, methodology, theory, discipline, Przeworski

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2258698

Designing Islamic Constitutions: Past Trends and Options for a Democratic Future

Clark B. Lombardi 

University of Washington School of Law
2013

International Journal of Constitutional Law, 2013 
Abstract:      
In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a "Sharia Guarantee Clause" depends to a large degree on questions of constitutional design -- on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGC's, and it considers the impact that different schemes have had on society. Building on this background, the article considers what type of SGC enforcement scheme, if any, are likely to permit (and ideally promote) a state to pursue democratic policies. As it notes, SGC's are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, we can draw from the experience of these countries some important lessons about the types of SGC enforcement scheme that will allow more democratic states to promote both democratic political participation and rights. At the same time, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These debates clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insight into the qualities that an institution must possess if it is to address such issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this paper describes some basic design features that effective democratic SGC enforcement schemes are likely to share.

Number of Pages in PDF File: 50

Keywords: Islam, Sharia, Constitution, Constitutional Design, Democracy, Rights, Arab Spring, Comparative Constitutions, Comparative Law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2258089

Notes on an 'Open' Constituent Power

Illan Rua Wall 

University of Warwick
May 1, 2013

Abstract:      
This paper examines the critical responses to the question of constituent power. Instead of providing a foundation for the constituted order, the paper looks at the various ways in which constituent power can be viewed as ‘open’ and undetermined. It looks at two issues in particular: the ‘subject’ of constituent power, and the nature of the ‘power’ involved. Surveying various critical theorists of the constituent moment, the paper concludes on the various difference within such open textured theory.

Number of Pages in PDF File: 15

Keywords: Constituent Power, Constitutionalism, The People, The Multitude, Potentia, Virno, Laclau, Agamben, Ranciere, Negri, Dussel

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2259008