little essay written in honor of my dear friend Sandy Levinson, on the occasion of the Lifetime Achievement Award he received from the Law and Courts section at the American Political Science Association convention -- One of Sandy's most fruitful ideas is constitutional protestantism, the idea that each citizen has the right to decide for him or herself what the Constitution means. Sandy stated this idea prominently in an article in the Tulane Law Review in 1987, noting the importance of Attorney General Edwin Meese's arguments that the decisions of the Supreme Court bind only the parties before the court. -- The idea is developed more fully in Sandy's great 1988 book, Constitutional Faith, in which he distinguishes between constitutional protestantism and constitutional catholicism. Constitutional catholicism stands for the view that a certain group of professional or learned authorities has the last word on interpretation, while protestantism, as we have seen, invites all believers to offer their views on the meaning of scripture. Sandy gives both positions their due, but he is essentially a constitutional protestant. -- Protestant constitutionalism leads almost inevitably to the study of social organization and culture. Once you acknowledge that many individuals have different views about the Constitution, you must also acknowledge that these individuals, like good protestants, do not simply keep to themselves. They create congregations. They form groups of like-minded believers and go out into the world and try to convert others. Thus, a focus on protestant constitutionalism leads naturally to a focus on social movements and political parties as engines of constitutional change. -- downloaded page as pdf to Note

Recensé : Pierre Bourdieu, Manet, une révolution symbolique, édition établie par Pascale Casanova, Patrick Champagne, Christophe Charle, Franck Poupeau et Marie-Christine Rivière, Paris, Raisons d’Agir / Seuil, coll. « Cours et Travaux », 2013, 776 p., 32 €. -- transcription des cours donnés en 1998-1999 puis en 1999-2000 par Pierre Bourdieu au Collège de France sur Édouard Manet -- Mots-clés : histoire de l’art | sociologie | révolution | Bourdieu -- La révolution symbolique opérée par Manet exige pour être comprise de rompre avec les représentations traditionnelles de l’histoire de l’art — ce qui implique une autre révolution dans les esprits. Derrière le portrait de Manet se profile un autre hérésiarque : Pierre Bourdieu lui-même. -- downloaded pdf to Note

“We are all realists now,” it is frequently said, yet what legal realism was about remains vigorously debated by legal theorists and historians. The debate continues because the jurists we think of as core legal realists were not members of a group. Karl Llewellyn said this multiple times in his famous essay detailing realism. (..) Contemporary scholars who make assertions about what the legal realists stood for often fail to account for these passages. Legal realism.. is best understood ... in terms of 3 overlapping complexes of ideas that emerged in the late 19thC and had become widespread by the time of Llewellyn’s article. [(1)] that society was changing rapidly while law, understood as a means to achieve social ends, lagged badly behind, producing an urgent need for legal reform. [(2)] the growing refrain among legal academics that newly developing social sciences should be applied to enhance an understanding of the actual facts surrounding law. [(3)] a vocal backlash against judges for impeding reform, including charges that they were importing class bias into their legal decisions, prompting a broader acknowledgement that the background social attitudes of judges play a role in their decisions. These three themes were interpenetrating: the popular dissatisfaction with the failings of law was manifested in criticism of courts, and resort to social science was the favored academic solution. (..) Realism characterized the new modern age of thinking about law, and it ran much earlier and more broadly than is now commonly recognized. -- PDF File: 47 -- Keywords: Legal history, Jurisprudence, law and the humanities, law and the social sciences

Thomas Pfau reinterprets the evolution of British and German Romanticism as a progress through three successive dominant moods, each manifested in the "voice" of an historical moment. Drawing on a multifaceted philosophical tradition ranging from Kant to Hegel to Heidegger—incorporating as well the psychosocial analyses of Freud, Benjamin, and Adorno—Pfau develops a new understanding of the Romantic writer's voice as the formal encryption of a complex cultural condition. Pfau focuses on 3 specific paradigms of emotive experience: paranoia, trauma, and melancholy. Along the trajectory of Romantic thought paranoia characterizes the disintegration of traditional models of causation and representation during the French Revolution; trauma, the radical political, cultural, and economic restructuring of Central Europe in the Napoleonic era; and melancholy, the dominant post-traumatic condition of stalled, post-Napoleonic history both in England and on the continent. (..) positions emotion as a "climate of history" to be interpretively recovered from the discursive and imaginative writing in which it is objectively embodied. (..) traces the evolution of Romantic interiority by exploring the deep-seated reverberations of historical change as they become legible in new discursive and conceptual strategies and in the evolving formal-aesthetic construction and reception of Romantic literature. In establishing this relationship between mood and voice, Pfau moves away from the conventional understanding of emotion as something "owned" or exclusively attributable to the individual and toward a theory of mood as fundamentally intersubjective and deserving of broader consideration in the study of Romanticism.

A cri de coeur for putting legal theory and history back together with social theory and empirical social sciences,. -- In the early part of my career, legal history and the history of legal ideas were closed books to me, as I made my way in a field of criminal law scholarship dominated by doctrinal scholarship and by concept-focused philosophical analysis of the foundations of criminal law. These 2 very different paradigms have 1 big thing in common: They tend to proceed as if the main intellectual task is to unearth the deep logic of existing legal doctrines, not infrequently going so far as to read them back onto history, as if things could never have been other than they are. (..)I have increasingly found myself turning to historical resources (1) [to examine] the contingency of particular legal arrangements, and (2) ...to develop causal and other theses about the dynamics which shape them and hence about the role and quality of criminal law as a form of power in modern societies. So, in a sense, I have been using history in support of an analysis driven primarily by the social sciences. (..) it is no accident that all of the great social theorists, from Marx to Foucault via Weber, Durkheim, and Elias, ..have incorporated significant historical elements into their interpretations .... Indeed, without the diachronic perspective provided by history (or the perspective offered by comparative study) we could have no critical purchase on social theory’s characterizations of or causal hypotheses about the dynamics of social systems. Hence, (...) my boundless gratitude to the historians whose meticulous research makes this sort of interpretive social theory possible). -- Lacey is not over-dramatizing -- see the "commentary" from a "legal philosopher" who believes the normative basis of criminal responsibility can be investigated as timeless "moral truths". -- downloaded pdf to Note

Postema offers two general programmatic suggestions for jurisprudence besides greater historical consciousness: sociability and synechism. Sociability, has two dimensions. First, it means interdisciplinarity—a continual dialogue with the study of legal phenomena by the sciences, humanities, and even theology. Second, it means embedding jurisprudence in general philosophy, ... [Sellars]: “not only ‘cabbages and kings’, but numbers and duties, possibilities and finger snaps, aesthetic experience and death.” Synechism is a less familiar idea, drawn from the philosophy of C.S. Peirce. It is the commitment to seek continuity among phenomena. Peirce was metaphysically committed to the existence of actual continua everywhere in nature, history, and human psychology. So synechism will impose a certain demand on all systematic studies, namely discerning those continua.(..) a certain kind of historiography: The historian’s job is to unearth continuities between past and present rather than studying ruptures. This, it seems to me, is a contestable commitment that rules out a great deal of important historical work. Peirce understood synechism to imply that ideas are intrinsically temporal and historical phenomena. Although Postema does not endorse this general thesis, he does argue for a special case of it, namely that law is “intrinsically temporal.” This conclusion is central to his argument against the possibility of time-slice legal systems. It, too, is contestable; but, I shall suggest, Postema can reach his conclusion on grounds other than synechism, and I agree with him about law’s intrinsic temporality. -- downloaded pdf to Note

Renaissance jurisprudence strove to be a sociable science. Following Ulpian’s lead, it refused to relegate jurisprudence either to pure speculation or to mere practice. Jurisprudence was a science, a matter of knowledge and of theoretical understanding, not merely an applied art or practice of prudence innocent of theory. It was regarded as the very heart of theoretical studies, drawing to itself all that the traditional sciences of theology, metaphysics, and moral philosophy, as well as the newly emerging humanist sciences of philology and hermeneutics, had to offer. No less resolutely, however, it refused to abandon its foothold in the life of practice. (..) Rather than reject philosophical reflection, (..) Renaissance jurists sought to locate it in concrete human life and experience. (..) Philosophy.., was most true to its vocation, and was most engaged in human life, when its reflections were anchored in the social life acknowledged, comprehended, and informed by and informing law. Jurisprudence, vera philosophia, was ...the point at which the theoretical and the practical intersected (..) at its “sociable” best sought to integrate them. Analytic jurisprudence began as self-consciously, even militantly, “unsociable,” and its matured and much-sophisticated descendant, fin de siècle analytic legal philosophy, remained largely if not exclusively so. (..) It may be time, in this period of self-conscious attention to jurisprudential method, to press beyond the current limits of this debate over method to a reassessment of the ambitions of jurisprudence and of philosophy’s role in it. (..) my aim is not critical but constructive. (..) to recover something of the ideal of jurisprudence as a sociable science, to retrieve as much as our disenchanted age can be challenged to embrace, or at least to entertain, of the ambition of jurisprudence as vera philosophia. -- downloaded pdf to Note

Whereas legal philosophers offer “analyses” that aim to be general, abstract, and timeless, legal historians offer “thick descriptions” of what is particular, concrete, and time-bound. But surface appearances can deceive. Perhaps unlike other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely) a social phenomenon. Courts, legislatures, judicial orders, and statutes are the products of human efforts, both collective and individual, and they only exist as legislatures, courts, and the like insofar as they possess the meaning they do in the eyes of at least some social group. For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one—one which aims to discern or make explicit the “self-understanding” of legal actors. At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people—judges, lawyers, politicians, and ordinary citizens—have attached to law. When they do so, they might be seen as uncovering evidence of those same “self-understandings” that philosophers claim constitute law. Perhaps, then, philosophical and historical inquiries about law do not differ so radically from each other after all. -- downloaded pdf to Note

Today’s post is the second of two by Karl Giberson and is adapted from his newly published Saving the Original Sinner: How Christians Have Used the Bible’s… -- not clear whether they take up the first shock to the historical Adam centuries before Darwinism - discovery of the New World, and then moves toward scientific racism that debated whether humans were single or multiple species - and during same period, geology pushing back age of the earth far beyond an historically plausible frame for the literalist reading of Genesis

Today’s post is by Karl Giberson and is adapted from his newly published Saving the Original Sinner: How Christians Have Used the Bible’s First Man to Oppress,… -- see part 2

Neil Fligstein and Doug McAdam have presented a new theory of how collective action creates the structure and dynamics of societies. At issue is the behavior of social movements, organizations, states, political parties, and interest groups. They argue that all of these phenomena are produced by social actors (which may be individuals or groups) involved in strategic action. This allows Fligstein and McAdam to advance a unified theory of "strategic action fields." This article takes issue with aspects of Fligstein and McAdam's important contribution. We argue that that all organizations are not essentially the same; in addition to the location and interactions of their strategic actors, their dynamics are shaped and distinguished by differing values and norms, by the autonomy of institutions embedded in strategic action fields, and by the fractal relationships that nested fields have to broader principles of justice and social organization that span societies. We also criticize the view that social change can be conceptualized solely in terms of shifting configurations of actors in strategic action fields. Rather, any theory of social action must distinguish between periods of routine contention under the current institutions and norms and exceptional challenges to the social order that aim to transform those institutions and norms. -- Sage paywall on a 3 year delay for jstor

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In classical and contemporary sociology, key elements of liberal-democratic ideology are seen as secular extensions of Protestant ideas. This case study provides a different analysis that emphasizes the problem of religious conflict and radicalism in early liberal-democratic ideology. Proponents of the new ideology rejected key tenets of their Puritan heritage, adopting deistic beliefs that legitimated pluralism and tolerance and opposed the older Puritan ideal of godly politics. Building on recent work in the sociology of culture, the paper outlines an analytic strategy for explaining change in ideological systems. Ideological change emerges out of the interaction of contextual pressures and intellectual precedents, as a collective response by ideological innovators to problems of authority. The analysis in this study shows how historical events can form an episodic context which structures this problem of authority. -- downloaded pdf to Note