Legal Revolutions Research Articles

The Democracy Effects of Legal Polarization: Movement Lawyering at the Dawn of the Unitary Executive

The success of the conservative legal movement in reshaping the Supreme Court has unquestionably helped transform the substance of constitutional law in ways that advance the movement’s longstanding political agenda: reverse the civil rights-era constitutionalization of civil and social equality rights, and reduce government regulation of private sector business enabled by the modern administrative state. Less well understood is the movement’s role beyond the courts, and the range of ways it has shifted once shared norms that helped distinguish the practice of law from the practice of politics in the United States. This Article surfaces one example of that phenomenon, tracing the movement’s efforts beginning in the 1980s to advance a unitary exec-utive theory of constitutional power inside the Executive Branch. Inside the Department of Justice, these efforts functioned to kneecap a suite of post-Watergate ethics reforms designed to guard against cor-ruption or other misconduct by government lawyers. Outside the Department, aided by an increasingly polarized system of professional incentives the movement likewise pioneered, inadequate ethics ac-countability at the top of the profession functioned to undermine acceptance of professional norms more broadly. Among the norms most damaged: the belief that lawyers are bound by professional duties that transcend commitments to partisan loyalty. This recovered history in part underscores the extent to which judicial rulings are at best lag-ging indicators of legal revolutions. It likewise offers a case study of the structural consequences of theories of constitutional power engineered around circumstantial partisan interest. Above all, it illustrates how de-stabilizing the norms that support rule-of-law systems can weaken constitutional democracy across the board.

R. W. Kostal: Laying Down the Law. The American Legal Revolutions in Occupied Germany and Japan

R. W. Kostal: Laying Down the Law. The American Legal Revolutions in Occupied Germany and Japan

Constitución mexicana de 1917 y la arqueología de revoluciones en derecho

¿Cuáles son las fuentes jurídicas y axiológicas de la Constitución mexicana de 1917? ¿Qué son las revoluciones en derecho al analizar dicha Carta Magna con el especial énfasis para el estudio de las soluciones concretas del ordenamiento actual? Éstas son las preguntas que giran al trono de la reflexión de los impactos de las revoluciones del derecho, comenzando desde la revolución papal del siglo XI, la revolución luterana del siglo XVI, la revolución inglesa del siglo XVII, la revolución norteamericana y la revolución francesa del siglo XVIII. En conclusión, se defiende la tesis de que la actual Constitución de México es un campo fértil de las revoluciones en derecho que impactan las actuales soluciones y los principios entre las cuales destacan la división de los poderes, el amparo para la protección de los derechos del hombre o el sistema presidencialista que rige el régimen actual.

Constituent crises. The power of contingency

Drawing on the systemic concept of contingency that considers the actualized structure of the world as a possibility among others, the article argues that major social crises release systems from reiterative patterns of selectivity that transform contingent options into necessities. As long as crises deconstruct a particular social order and recombine both elements and relations into an alternative form, they are constituent crises that reestablish the contingency of the world. The article briefly reviews the evolutionary role of constituent crises as an expression of the power of contingency in four fields: the collapse and reorganization of ancient societies, the legal revolutions giving rise to modernity, the crises in modern complex social systems, and the transnational and supranational pressures on contemporary constitutional States. It concludes that the modern, multilayered, and polyarchical architecture of world society seems to be more open than earlier periods of social evolution to contingent, self-constituting forms of social order. Yet, operative and normative polyarchy also means more complex crises.

Constitutional Background of Roman Law

The science of law is autonomous but not independent. It cannot live isolated from politics and culture. Law is part of a social structure, of tradition, of a collective human project. Law is a branch of politics in the noblest sense. Legal institutions, concepts, and ideas are so often a natural consequence of political ideals and values. Political revolutions many times involve legal revolutions. Therefore, to help the reader understand Roman law in context, what follows is a brief summary of the most significant aspects of ancient Rome’s unwritten political constitution from the foundation of Rome in 753 BCE until the death of Emperor Justinian in 565 CE.

Od „legalnej rewolucji” do kontrrewolucji. Kryzys konstytucjonalizmu liberalno-demokratycznego w Polsce

FROM „LEGAL REVOLUTION” TO COUNTERREVOLUTION. CRISIS OF LIBERAL-DEMOCRATIC CONSTITUTIONALISM IN POLANDThis paper debates the crisis of the rule of law and liberal constitutionalism with regard to processes and events in Poland after the parliamentary elections in 2015. Iwill shortly debate the previous events in Hungary — amodel for actions undertaken in Poland. In the first part this paper debates on the concept of “legal revolutions” which took place in the East Central Europe in 1989. They succeed in the institutionalization of the rule of law and liberal-democratic constitutionalism. The second part of the paper presents the swift, ruthless and brutal destruction of the rule of law. In the third part the “flood” of legal regulations, especially in the domains of economic transactions is shortly presented, and the part four debates cultural contexts of the current counterrevolutions. Here axiological foundations of liberal-democratic constitutionalism and the rule of law are discussed, and the issues of legal hypocrisy and legal nihilism in the context of Eastern European Syndrome are presented.

International law and ‘humanity’ in the making and unmaking of European solidarity, 1830–1915

The Janus-faced character of nineteenth-century Europe presents unique challenges to historians. Concurrent to spiralling industrial growth, working-class revolts, transatlantic migration and imperialism, the stark social and economic upheaval of the period has virtually belied the solidarity achieved on the Continent. In recent years, however, a number of superlative scholarly studies have excavated and illuminated the intellectual, legal and technological revolutions that ushered in an era of promise and potential unity. In this article, the author examines the degree of interdependence and interconnectedness across the Continent and the world by melding extant scholarship, introducing primary-source research, and offering new perspectives on the relationship of the increasingly globalized world and the European efforts to harness its potential by attempting to create lasting norms for peace and prosperity through international law and the benchmark concept of ‘humanity’.

Building a Political Sociology of Legal Professions in Africa: Stakes for an Open Research Agenda

Law in Africa often conjures the question of colonial legacies or the image of a legal vacuum. Counter to this deceptive representation, the aim of this presentation is to lay the stakes for the development of a political sociology of lawyers on the African continent. Built as a trend report it draws a reflexive analysis of past research and trends on legal processes and legal institutions on the continent, looking in particular at: the (dis)entanglements between scholarship and imperial and post-imperial practices on the continent; the articulation between law and politics of the state; and the relationship between political economy, political configurations and legal practices. It then lays the ground for an open research agenda focused on lawyers: It argues that lawyers offer an entry-point that highlights transformations of the state and politics, as well as the historicity of dynamics of globalization on the continent, including the colonial enterprises and their aftermaths. Tracing the social characteristics of lawyers, their professional strategies and their political mobilizations points to individual biographies that collectively connect different sites, at the local, national and international levels, in the longue duree. It underscores meanwhile that it is in these so-called African peripheries that major legal, political and economic revolutions are at play. This trend report is the extended version, in English, of the introduction to Juristes, faiseurs d’Etat, edited by S. Dezalay, with the contribution of G. Karekwaivanane, Politique africaine, 138, 2015.

Book Review: Hauke Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives

Book Review: Hauke Brunkhorst, <i>Critical Theory of Legal Revolutions: Evolutionary Perspectives</i>

Critical theory and reconstruction: On Hauke Brunkhorst’s Critical Theory of Legal Revolutions

In his account of legal revolutions, Hauke Brunkhorst applies a dual perspective encompassing the approaches both of systems and discourse theory to social evolution: functional adaptation and group-based normative learning coexist as two mechanisms of societal change, the latter being conceptualized as occasional interruptions to an overall systemic process of societal evolution. This article argues that Brunkhorst’s ‘systems theory first’ perspective undermines his claim to be delivering critical theory and that while it is both possible and necessary to incorporate a systems-theoretical perspective into discourse-theoretical social theory when devising a critical theory of law and democracy, the reverse does not apply. The building blocks of Habermas’ reconstructive approach to social evolution are presented as a conceptual framework that constitutes an alternative to Brunkhorst’s ‘systems theory first’ perspective but remains compatible with the basic premises of his account. A discourse-theoretical view that sees societal development in terms of a social learning process chimes with Brunkhorst’s dual perspective on the dialectics of legal evolution but at the same time upholds the aims of critical theory.

Reply to critics

The author of Critical Theory of Legal Revolutions discusses three major fields of objection against his outline of an evolutionary theory of public and international law. In the first part he discusses problems of action theory. There are at issue, first, the role of negation and moral resentment for the constitution of a normatively relevant social praxis, then the emergence of social systems within and from the context of the life-world, and the relation of revolutionary and gradual learning processes. The second part discusses the relation of his theory to postcolonial and feminist studies. Finally, the debate centers in part III on the dialectic of Enlightenment. The problem of alienation and negativity is at stake, closely related to the negative aesthetic of law and the intertwinement of repression and emancipation within the legal form. In the end, it is an open question if we today still can rely on the negative aesthetic and hidden utopian form of law, or if we have already fallen back to constitutional kitsch and façade.

The hidden (r)evolution

The article is a review of Hauke Brunkhorst’s book on a Critical Theory of Legal Revolutions. The author addresses three points: (1) Hauke Brunkhorst’s notion of history, and of what remains unseen; (2) the dialectics of evolution and revolution, and whether the approach is sufficiently dialectic, according to its own promise; and (3) the (too) implicit notion of critique.

The Cunning of Law

This article provides an overview and critical analysis of Brunkhorst’s forthcoming book Critical Theory of Legal Revolutions. First, I briefly analyze the specific way in which Brunkhorst’s innovative approach to social evolution combines the normative and functionalist perspectives in order to reconstruct the four great legal revolutions that led to the formation of modern law. In the second step, I raise some critical concerns about the basic conceptual and methodological assumptions behind Brunkhorst’s reconstruction: a concern regarding its Eurocentrism, a concern about the methodological distinction between evolutionary and revolutionary change – particularly the question of where to situate counterrevolutionary ideological battles and developments and a concern about the systematic role of religion and religious ideas in his reconstruction.

Legal Revolutions and the Sociology of Law

This article critically examines the importance of Hauke Brunkhorst’s work for the sociology of law, arguing that it provides new bearings for contemporary legal–sociological research. It pays particular attention to his methodological fusion of Systems Theory and Critical Theory and to the analysis of the correlation between national and cosmopolitan political structures in his theory of legal normativity. The article concludes by offering an alternative framework for observing the sociolegal processes at the center of Brunkhorst’s work.

Dilemmas of Democratisation from Legal Revolutions to Democratic Constitutionalism?

The ideas of the rule of law and constitutionalism have become an intrinsic part of any process of democratisation around the world. This was equally the case in the radical changes that occurred in East-Central Europe (ECE) around the year of 1989. The adherence in the region to a form of “new constitutionalism” has been frequently seen as an indispensable contribution to the processes of democratisation. However, in this too little attention has been paid to the dilemmas, tensions and perverse effects that may emerge in the institutionalisation and practice of new constitutionalism, not least in terms of an enduring tension between constitutionalism as an ordering and stabilising device and democracy as an uncertain and indeterminate process of verification of public views on the common good. The experiences in ECE since 1989 with regard to new constitutionalism are ambiguous. It is undeniable that an emphasis on a higher law with entrenched rights and robust constitutional review has involved important “corrections” of certain outgrowths of democratic politics and in this prevented forms of “tyranny of the majority” or the endangering of the guarantee of universal rights. But it is equally true that new constitutionalism has been adopted at a price, not least with regard to the emergence of more widespread, publicly shared constitutional cultures as well as in terms of underexplored potentials of democratic constitutionalism and endorsement of civic engagement in the region. Democratic dilemmas and perverse effects have emerged in terms of domestic tensions, in particular regarding democratic debilitation, but also stem from tensions with legal orders beyond the national arena.

Laboulaye, historien du droit et/ou comparatiste

The romance entitled Paris in America (1863) is an illustrative example of many aspects from Edouard Laboulaye’s works. This plea in favor of the free institutions of the United States shows the relations of the College de France professor (also founder of the Société de législation comparée) with legal history and comparative law. As he made a political reading of legal systems and gave an important role to legal revolutions, Laboulaye thought, among the first legal writers, about legal circulations.

The Rise and Fall of the Implied Warrant of Habitability

Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution’s frailty. Little-noticed by legal scholars, the tenants’ rights revolution also has failed, and for broadly similar reasons. Withholding rent deliberately to challenge landlords’ failure to repair is unduly risky for most tenants in ill-maintained dwellings: either moving to better housing is a better option or the risk of retaliation is too great. The implied warranty could still motivate landlords to repair if it limited evictions of low-income tenants who fall behind on their rent for other reasons, but a set of little-noticed doctrines deemed these tenants unworthy to claim the warranty’s protection. Moreover, reformers left implementation to courts with neither the resources nor the inclination to transform landlord-tenant relations. None of this was inevitable. The doctrines effectively limiting the warranty to deliberate rent withholding have weak justifications. And contemporaneous procedural innovation in other areas of law offered alternatives to the unresponsive courts. More daunting was the transformation of the housing market. Fewer low-income tenants live in decrepit dwellings, but many suffer housing problems whose consequences may be even more severe: overcrowding, locations remote from jobs and good schools, and rents that crowd other necessities from their budgets. Lacking a clear, unified purpose, the tenants’ rights revolution cannot begin to adapt to these changes.

The Rise and Fall of the Implied Warranty of Habitability

Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution's frailty. Little-noticed by legal scholars, the tenants' rights revolution also has failed, and for broadly similar reasons.Withholding rent deliberately to challenge landlords' failure to repair is unduly risky for most tenants in ill-maintained dwellings: either moving to better housing is a better option or the risk of retaliation is too great. The implied warranty could still motivate landlords to repair if it limited evictions of low-income tenants who fall behind on their rent for other reasons, but a set of little-noticed doctrines deemed these tenants unworthy to claim the warranty's protection. Moreover, reformers left implementation to courts with neither the resources not the inclination to transform landlord-tenant relations.None of this was inevitable. The doctrines effectively limiting the warranty to deliberate rent withholding have weak justificiations. And contemporaneous procedural innovation in other areas of law offered alternatives to the unresponsive courts.More daunting was the transformation of the housing market. Fewer low-income tenants live in decrepit dwellings, but many suffer housing problems whose consequences may be even more severe: overcrowding, locations remote from jobs and good schools, and rents that crowd other necessities from their budgets. Looking at a clear, unified purpose, the tenants' rights revolution cannot begin to adapt to these changes.

Rights, Relationality, and Membership: Rethinking the Making and Meaning of Citizenship

The republication after 40 years of T. H. Marshall's Citizenship and Social Class signifies a revived interest in sociolegal historical approaches to citizenship rights. For decades students have been guided by Marshall's classic treatise. But can Marshall's argument for the causal power of the “transition from feudalism to capitalism” continue to provide an adequate grounding for sociolegal approaches to citizenship and rights formation? Building on Marshall's path-breaking expansion of the concept of citizenship, I use institutional analysis and causal narrativity to present an alternative explanation. I argue that modem citizenship rights me a contingent outcome of the convergence of England's medieval legal revolutions with its regionally varied local legal and political cultures, not of the emergence of capitalist markets.

Rights, Relationality, and Membership: Rethinking the Making and Meaning of Citizenship

The republication after 40 years of T. H. Marshall's Citizenship and Social Class signifies a revived interest in sociolegal historical approaches to citizenship rights. For decades students have been guided by Marshall's classic treatise. But can Marshall's argument for the causal power of the “transition from feudalism to capitalism” continue to provide an adequate grounding for sociolegal approaches to citizenship and rights formation? Building on Marshall's path-breaking expansion of the concept of citizenship, I use institutional analysis and causal narrativity to present an alternative explanation. I argue that modem citizenship rights me a contingent outcome of the convergence of England's medieval legal revolutions with its regionally varied local legal and political cultures, not of the emergence of capitalist markets.