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Kar, “Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization”

November 30th, 2012

Robin Bradley Kar (University of Illinois College of Law) has posted Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization (University of Illinois Law Review, Vol. 2012, No. 5, p. 1499, 2012) on SSRN. Here is the abstract:
Western legal prehistory aims to reconstruct some of the earliest proto-legal and cultural developments that gave rise to Western legal systems and the rule of law. So construed, our understanding of Western legal prehistory is currently highly undeveloped. One reason for this fact is methodological: without the aid of written sources, reconstructions of human prehistory can prove difficult. Recent advances in a broad range of cognate fields have, however, now accumulated past a critical tipping point, and we are now in a secure enough position to begin to reconstruct important aspects of Western legal prehistory. This Article draws upon and develops these contemporary findings to reconstruct the most plausible genealogical shape of Western legal prehistory. In the process, it reaches a somewhat surprising conclusion. On the traditional view, the most important traditions relevant to the rise of Western law and Western Civilization are said to have originated in ancient Greece, Rome, and Israel. This traditional view is, however, based primarily on historical sources, and the reconstructions in this Article suggest that important precursors of these traditions very likely emerged much earlier and much further to the East. In fact, some of the most important traditions relevant to the emergence of large-scale civilizations with the rule of law in the West would appear to represent just one branch a much larger and richer family of traditions, which began to emerge around 4500 BC in the Eastern-Iran-Bactria-Indus-Valley region. Beginning at this early time, this region began to produce one of the very first ancient civilizations to arise within our natural history as a species (viz., the “Harappan” or “Indus Valley” Civilization), and the people in this region must have therefore developed some of the very first cultural traditions that were specifically adapted to sustaining large-scale civilizations with incipient law. I will be arguing that these ancient developments most likely had a much closer and much more intimate relationship to some of the earliest precursors of Western tradition than has commonly been recognized because these precursors of Western tradition ultimately originated closer to ancient Bactria — which is an area directly adjacent to the Indus Valley — during this very same time period. The reconstructions developed in this Article will thus allow me to decipher what I take to be the most plausible early genealogical shape of our legal family tree, and to suggest a number of important but underappreciated relationships that obtain between our modern Western traditions and a range of other Eurasian traditions with which the West has typically been contrasted. In today’s world, it is, moreover, especially important that we try to reconstruct the genealogical structure of Western legal prehistory and obtain a better understanding of our deep past. There is now an accumulating body of empirical work, which suggests that we can explain a broad range of features of modern societies in terms of the origins of their laws. This literature suggests that legal origin variables can have strong effects on issues as diverse as corporate governance structure, labor regulations, the robustness of capital markets, and even literacy and infant mortality rates. Whether and how a modern society functions best would thus appear to depend at least in part on the origins of their legal traditions. At the same time, however, both the present legal origins literature and much comparative law scholarship distinguish primarily between the civil versus common law origins of a nation’s legal system, or between both of these types of Western law and various non-Western legal systems; and the findings of this literature have not yet been fully harmonized with the swath of known difficulties that many developing nations have faced in transitioning to large-scale societies with the rule of law regardless of their civil- or common-law origins. The family trees that are employed in the current literature are, moreover, typically identified from the historical record and therefore fail to detect any relevant relations that might have arisen in human prehistory. They tend to focus on a conception of law as a set of publicly stated rules and procedures that are largely exogenous to the underlying cultural traditions and psychological attitudes that tend to support flourishing legal systems. They therefore fail to detect the kinds of emergent cultural traditions (including the culturally emergent psychological attitudes) that first allowed humans to transition from hunter-gatherer forms of life into larger-scale civilizations with the rule of law. The reconstruction offered here will, by contrast, allow us to see almost half of the large-scale megaempires that have arisen throughout world history — including all those that have arisen in the modern West — as having a shared cultural origin that goes much further back in time. The tradition in question first emerged with some of our very first human forays out of hunter-gatherer living and into settled agricultural living with large-scale civilizations and incipient legal traditions. An understanding of this deeper family tree should therefore have important empirical implications. This work can, for example, be used to help explain why certain exportations of Western-style legal institutions have worked so well while others have not. This work can also be used to identify a number of important but underappreciated features of Western traditions that are shared with these broader Eurasian traditions and have been playing a critical — if underappreciated — role in helping to sustain various forms of social complexity and economic development over the course of world history. Hence, this work can help us understand better some of the full causes and conditions of our modern success in the West. Inquiries of this kind should have special urgency today, given the massive exportations of Western law and Western legal institutions to so many other parts of the world and given the increased pressures toward Westernization that are being felt around the globe.

Bader, “Post-Secularism or Liberal-Democratic Constitutionalism?”

November 30th, 2012

Veit Bader (University of Amsterdam) has posted Post-Secularism or Liberal-Democratic Constitutionalism? (Erasmus Law Review, Vol. 5, No. 1, 2012) on SSRN. Here is the abstract:
The increasingly fashionable concept and framing of post-secularism aims to construct simplistic dichotomies and clear-cut ruptures between pre-secular, secular and post-secular ages or epochs, in order to paint generalised and homogenised pictures of societies and their inevitable evolution. This conceptual strategy drastically reduces, or even neglects, historical contingency and societal complexity. Against the background of a brief reflection on the possibilities and limits of a transcultural and transhistorical concept of religion, this article engages in a critical discussion of ‘Secularisation and the Conditions of Post-Secularism’ from a sociological point of view and critically reflects on some of the ‘normative issues of how citizens’ of a ‘post-secular society should understand themselves’. In this regard, the main assertion is that we should opt to drop both secularism and post-secularism from our constitutional and legal language, and replace it with priority for liberal democracy or, more specifically, with liberal-democratic constitutionalism.

Call for Applications: Baldy Fellowships in Interdisciplinary Legal Studies

November 28th, 2012

The Baldy Center for Law & Social Policy at the State University of New York at Buffalo at the State University of New York at Buffalo will be awarding several fellowships in interdisciplinary legal studies. Here's the call for applications The Baldy Center for Law & Social Policy at the State University of New York at Buffalo plans to award several fellowships for 2013-14 to scholars pursuing important topics in law, legal institutions, and social policy. Applications are invited from junior and senior scholars from law, the humanities, and the social sciences. Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their  research. Fellows receive standard university research privileges  (access to UB libraries, high-speed Internet, office space, computer equipment, phone, website space, working paper series, etc.) and are encouraged to  develop collaborative research projects with SUNY Buffalo faculty  members where appropriate. Those who wish to teach a course to aid their  research or gain teaching experience will be accommodated on a  case-by-case basis. Post-Doctoral Fellowships are available to individuals who have completed the PhD or JD but have not yet begun a tenure track appointment. Post-Doctoral Fellows will receive a stipend of $40,000 and may apply for up to $2000 in professional travel support. Mid-Career and Senior Fellowships are available as sabbatical supplements to established scholars who wish to work at the Center. Stipends will be commensurate with experience, need, and duration of visit. Application materials include: (1) a description of the planned research (question, conceptual framework, method, possible findings, importance to the field), (2) a complete academic and professional resume, (3) an  academic writing sample, and (4) the names and contact information of  three academic references. Applications should be submitted no later  than February 1, 2013 at: For further information, see our answers to frequently asked questions. Additional questions about the Baldy Fellows Program should be addressed to Assistant Director Laura Wirth, or (716) 645-2581. The Baldy Center for Law & Social Policy is an endowed, internationally recognized institute that advances interdisciplinary research on law, legal institutions, and social policy at the State University of New York at Buffalo. More than 150 faculty members from numerous SUNY Buffalo departments participate in Baldy Center research,  conferences, consortia, and publications. The Center maintains  cooperative ties to other research centers and hosts distinguished  scholars from around the world as visitors, fellows, speakers, and  conference participants.

Spaak on the Scandinavian Legal Realists

November 28th, 2012

Torben Spaak (Uppsala University - Faculty of Law) has posted Realism about the Nature of Law (Forthcoming in Ratio Juris 2013) on SSRN. Here is the abstract:
In this article, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavian realists and its implications for their view of the nature of law. I argue (i) that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and (ii) that although they cannot and do not accept either the idea that there is a ‘world of the ought’ in Kelsen’s sense, or the idea that law has a dual nature in the sense that it involves a non-naturalist account of legal correctness, they can accept a dual-nature theory of law of the type proposed by Robert Alexy, that is, a dual-nature theory that involves a constructivist conception of legal truth or validity. I also argue, more specifically, (iii) that the objection to non-naturalist theories raised by the Scandinavians – that there is and can be no connection between the higher realm of norms and values (the ‘world of the ought’) and the world of time and space – is convincing, (iv) and that Kelsen’s introduction of a so-called modally indifferent substrate does nothing to undermine this objection. Moreover, I argue (v) that although Alf Ross’s objection to dual-nature theories – that they give rise to certain antinomies – applies not only to non-naturalist dual-nature theories, but also to Alexy’s constructivist dual-nature theory, the objection fails since no antinomies arise either in Alexy’s theory or in other dual-nature theories. In addition, I argue (vi) that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue (vii) that the claims by Lundstedt, and to a lesser extent by Olivecrona and Ross, about the proper methods and study object of legal scholars are exaggerated, because (as I just hinted) we can easily conceive of legal relations along conventionalist lines.

Adam’s Kirsch’s reflections on deduction and analogy in the Talmud

November 28th, 2012

Literary critic Adam Kirsch continues his weekly reflections on Daf Yomi with a discussion of deduction and analogy in the Talmud. Here's an excerpt:
One of the most challenging things about reading the Talmud, I have found over the last several months, is its total lack of interest in arranging topics in what might seem like their logical order. Reading Daf Yomi means starting with what is conventionally called the beginning of the Talmud, with Tractate Berachot. But in fact, there is no real beginning or end to the Talmud; it does not start with basic concepts and move on to more advanced ones, or set out its axioms and then apply them. Rather, reading it is like joining a long-running conversation, in which the participants—the rabbis of the Mishnah and the Gemara—already know the issues at stake and the definitions of important terms. They often refer to subjects that will only be treated in “later” tractates, and they introduce wholly new teachings on the basis of a verbal parallel or a common Tannaitic source. The only way to get up to speed is to keep reading, in the hope that eventually everything will become clear, or clear enough.

Del Mar, “Legal Fictions and Legal Change”

November 28th, 2012

Maksymilian T. Del Mar (University of London - Queen Mary - Department of Law) has posted Legal Fictions and Legal Change on SSRN. Here is the abstract:
This paper offers a definition of legal fictions and an evaluation of the role of legal fictions in legal practice, especially insofar as they enable legal change. The first part of the paper defines legal fictions as any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of 1) the absence of proof of some previously required fact; or 2) the presence of proof to the contrary. The second part argues that legal fictions have an unjustifiably bad reputation as enablers of legal change. This paper makes a plea for seeing legal fictions as forms of tentative cognition that enable courts to communicate with each other, exploring whether a certain change in the law (i.e. precisely a suspension of a required operative fact in the imposition of a certain normative consequence) ought to be introduced at a more explicit level. Under the guise of this relational reading of legal reasoning, legal fictions become an instrument of careful experimentation – a way of testing the extent to which the potential introduction of a rule will be beneficial. Seen in this light, legal fictions are by no means signs of the immaturity of the system; they are, instead, dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.

Miller, “Taxation in the Bible”

November 28th, 2012

Geoffrey P. Miller (NYU School of Law), has posted Taxation in the Bible, an entry in the forthcoming Oxford Encyclopedia of the Bible and Law, on SSRN.  Here is the abstract:
Given the range of biblical references, contested issues of sources and dating, and limited information about legal institutions and social practices, conclusions about taxation in the Bible must be drawn with caution. The available information, however, suggests that taxation was an important aspect of public administration in biblical Israel.

Schauer on Hart’s _The Concept of Law_, chapter one

November 26th, 2012

Frederick Schauer (University of Virginia School of Law) has posted Hart's Anti-Essentialism (A. Dolcetti, L. Duarte d'Almeida & J. Edwards, Reading H.L.A. Hart's 'The Concept of Law,' Hart Publishing, 2013) on SSRN. Here is the abstract:
An important strand of contemporary jurisprudence takes the search for the necessary or essential features of the concept of law as the central (or, at the extremes, the exclusive) jurisprudential task. Moreover, the theorists occupying this strand of jurisprudence claim to be operating within the tradition established by H.L.A. Hart in The Concept of Law. A careful reading of Chapter One of that book, however, as well as an effort to situate the chapter within the philosophical climate in which it was written, exposes a decidedly anti-essentialist flavor. This paper, written for the Oxford Jurisprudence Discussion Group’s lecture series commemorating the 50th anniversary of the publication of The Concept of Law, focuses on Chapter One, and sets out not only the historical case for reading the chapter in an anti-essentialist way, but also suggests that such a reading has valuable implications for how we think about both Hart and the enterprise of jurisprudence fifty years later.

Brian Leiter, _Why Tolerate Religion?_

November 24th, 2012

Brian Leiter, a philosopher and law professor at University of Chicago, has recently published Why Tolerate Religion?   with Princeton University Press. Here's the book's blurb:
This provocative book addresses one of the most enduring puzzles in political philosophy and constitutional theory--why is religion singled out for preferential treatment in both law and public discourse? Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not? In Why Tolerate Religion?, Brian Leiter argues that the reasons have nothing to do with religion, and that Western democracies are wrong to single out religious liberty for special legal protections. He offers new insights into what makes a claim of conscience distinctively "religious," and draws on a wealth of examples from America, Europe, and elsewhere to highlight the important issues at stake. With philosophical acuity, legal insight, and wry humor, Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.

Dorfman, “Freedom from Religion”

November 22nd, 2012

Avihay Dorfman (Tel Aviv University Faculty of Law) has posted Freedom From Religion on SSRN. Here is the abstract:
My argument develops two main claims. Negatively, I repudiate the core of the case against the redundancy of a principle of freedom from religion. The centerpiece of my argument at this stage is that the two prevailing theories of freedom from religion fail to take seriously the political circumstances - viz., democratic politics - under which claims for freedom from religion arise. Affirmatively, I develop an account of freedom from religion by elaborating the democratic conception of such freedom. On the proposed account, freedom from religion secures political freedom from infringements that are distinctively associated with religion. The point of freedom from religion is the protection of citizens from being (illegitimately) governed by public laws that are, nonetheless, grounded in religious reasons. Its basic point is to sustain political solidarity among citizens - who stand in the relation of co-rulers to one another - rather than among mere subjects - who share the status of being ruled together by another.