History W4912
Spring 2003
Law and the Problem of Democracy in Modern History
Undergraduate
Seminar
Wednesday,
6:10-8 p.m.
Fayerweather 302
Samuel Moyn
Department of
History
616 Fayerweather
AOL IM:
samuelmoyn
“Non sub
Homine sed sub Deo et Lege.”
- motto from
Bracton chiseled on Harvard Law School library
The general purpose of this course is to provide a survey of European jurisprudence
in the modern period. A more specific purpose of the course is to investigate
the theme of democracy in this historical evolution, in light of the recent
charge of some leading thinkers that the rule of law has never wholly adapted
to the democratic circumstances of modern times. The course pays special
attention to France and Germany; but it is also designed so that students of
the Anglo-American experience may find a valuable perspective on legal
developments they normally examine in isolation. Thinkers reflecting on the
past and future of the law they inherited are emphasized throughout. Both
public and private law are considered. A seminar presentation on one of the
listed books below and a substantial final paper (on a related topic agreed
upon with the instructor) are required of each enrolled student. A draft
syllabus is available on-line at http://www.columbia.edu/~sam2008/law.html.
These four books
are ordered at Labyrinth Books on 112th St. and on reserve:
Barbara J.
Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First
Law and Economics Movement,
ISBN # 0674006984
Jürgen
Habermas, Between Facts and Norms: A Discourse Theory of Law and Democracy, 0262581620
Arthur Jacobson
and Bernhard Schlink, eds., Weimar: A Jurisprudence of Crisis, 0520236815
Jeremy Waldron, Law
and Disagreement, 0199243034
More
importantly, because the course relies mainly on xeroxed materials, there is a
reader for sale at the copy shop on Amsterdam Ave. between 119th and
120th. Any readings added later will have to be acquired from the
Fayerweather 4th floor reading room and the photocopy staff on duty.
I will calculate
your grade this way. Attendance, participation, and your seminar presentation
will account for 40% of your final grade; the paper you write will count for
the remaining 60%. You are required
to meet with the instructor at least twice during the semester (though I am of course happy to see you
more often): once to confer about your presentation and once to discuss your
final paper topic. A one-page proposal for the topic of your final paper is due
March 26 and a bibliography is due April 9. The paper itself is due May 10, and
is expected to be at least 15 and probably no more than 25 pages in length.
Schedule of
Meetings and Readings
* indicates
material available in the reader.
Introduction:
Between the Rule of Law and the Rule of the People
with a note on
the history of suffrage
Week 2 (January 29)
Theoretical
Background
Jeremy Waldron, Law
and Disagreement, chaps.
1-3, 7, 10, 12-13 (you may want to read other chapters as you formulate
proposals for specific historical investigations suggested in light of
Waldron’s claim that jurisprudence has not yet become sufficiently
democratic)
Presentation
Roberto Unger, What Should Legal Analysis Become? (this book also available on-line at http://www.law.harvard.edu/unger/english/whatsa.php)
Part I: Three Paths into Modernity (and Their Critics)
Week 3 (February 5)
The Force of
History in the English Common Law
*William Blackstone, Commentaries on the Laws of England, vol. 1, chap. 3 and vol. 2, chap. 1
*J.G.A. Pocock,
“Burke and the Ancient Constitution: A Problem in the History of
Ideas”
*H.L.A. Hart, Essays
on Bentham: Jurisprudence and Political Theory, chap. 1
*Jeremy Bentham,
Principles of Morals and Legislation, chaps. 13-14
Presentation
J.G.A. Pocock, The
Ancient Constitution and the Feudal Law
Thomas Hobbes, Dialogue
of the Common Laws of England,
ed. Joseph Cropsey
Jeremy Bentham, Commentary
on the Commentaries, ed.
J.H. Burns and H.L.A. Hart
David Lieberman,
The Province of Legislation Determined
Daniel Boorstin,
The Mysterious Science of the Law
(on Blackstone’s American influence)
Week 4 (February 12)
The Drive to
Theory from Revolution to Codification
*R.C. van
Caenegem, An Historical Introduction to Private Law, chap. 1
*Joseph Loy,
“Code Napoléon,” in François Furet and Mona Ozouf,
eds., Critical Dictionary of the French Revolution
Jean Carbonnier,
“The French Civil Code,” in Pierre Nora, ed., Rethinking France:
Les Lieux de Mémoire,
vol. 1, The State
*French Civil
Code, excerpts on marriage and minority
*Joseph de Maistre, Considerations on France, chap. 8 (“Of the Old French
Constitution”)
(The Carbonnier
text is not in the reader; but I will hand it out to you in time.)
Presentation
Donald R. Kelley, Historians and the Law in Post-Revolutionary France
Donald
R. Kelley, “Ancient Verses on New Ideas: Legal Tradition and the French
Historical School,” History and Theory 26, 3 (October 1987): 319-38
Week 5 (February 19)
The German
Romanist Approach between History and Theory
*F.C. von
Savigny, On the Calling of Our Age for Legislation and Jurisprudence
*Karl Marx, “The Philosophical Manifesto of the Historical School of
Law”
*Donald R.
Kelley, “The Metaphysics of Law: An Essay on the Very Young Marx”
Presentation
James Q. Whitman, The Legacy of Roman Law in the
German Romantic Era
Part II: The
Nineteenth Century
Week 6 (February 26)
Classicist
Private Ordering and Positivist Public Law
*Henry Sumner Maine, Ancient Law,
chap. 5
*Henry Sumner
Maine, Popular Government,
preface
*R.C. van
Caenegem, An Historical Introduction to Private Law, chaps. 5-6
*Peter C.
Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law, chap. 1
Presentation
P.J. Proudhon, What is Property? (French
critic of Code-based legal science)
P.S. Atiyah,
The Rise and Fall of Freedom of Contract (English law and laissez-faire)
Morton J. Horwitz, The Transformation of American Law, 1780-1890 (American parallels)
Duncan Kennedy, The
Rise and Fall of Classical Legal Thought (same)
William Wiecek, The
Lost World of Classical Legal Thought (same)
Week 7 (March 5)
Max Weber as
an Analyst of Law
Max Weber, On Law in Economy and Society, ed. Max Rheinstein, chaps. 1, 3-11, 14
(This book is
out of print. It is not in the course reader. You have a few options to get hold of
it. One is to photocopy the materials from the library book on reserve. Another
is to order it used from http://www.abebooks.com
[there are three inexpensive paperbacks available there now]. Finally, since it
is a part of Weber’s much larger magnum opus, entitled Economy and Society, you could check that out from the
library; the material for the class is the following: vol. 1, chap. 1 [highly
edited], and vol. 2, chap. 8 and
chap. 11, § 6.)
Presentation
Anthony Kronman, Max Weber
Part III: Early Twentieth-Century Experiments
Week 8 (March 12)
Beyond
Liberalism?: The First Law and Economics Movement
*L.T. Hobhouse, Liberalism,
chaps. 1, 4, 6, 8-9
Barbara J. Fried, The Progressive Assault on Laissez-Faire, chaps. 1-3, conclusion
Presentation
P.S. Atiyah, The Rise and Fall of Freedom of Contract
March 19: Spring
Break
Week 9 (March 26)
Beyond
Individualism?: The Idea of Social Law
*Alfred Fouillée, et al., Modern French Legal Philosophy, on solidarism
*Harold J.
Laski, “A Note on M. Duguit”
*Léon
Duguit, The Law and the State
*Alfred
Broderick, ed., The French Institutionalists, selections from Maurice Hauriou’s
essays
Presentation
Georges Balandier, Gurvitch
Week 10 (April 2) and Week 11 (April 9)
Beyond
Monarchy?: The Weimar Period
*Hans Kelsen, Pure
Theory of Law, 1st ed.,
various selections
*Gopal
Balakrishnan, The Enemy: A Portrait of Carl Schmitt, chap. 7
*Carl Schmitt, Political
Theology, chaps. 1, 3
Arthur Jacobsohn and Bernhard Schlink, eds., Weimar: A Jurisprudence of
Crisis, chaps. 1, 4, 6,
8, 9, epilogue
Presentation
Peter C. Caldwell, Popular Sovereignty and the Crisis of German
Constititional Law
David Dyzenhaus,
Legality and Legitimacy
—, ed., Politics
as Law: Carl Schmitt’s Critique of Liberalism
William
Scheuerman, Between the Norm and the Exception: The Frankfurt School and the
Rule of Law
—, Carl Schmitt: The End of Law
H.L.A. Hart, The Concept of Law
(transmission of Kelsen to Anglo-American theory)
April 16: No
Class (Passover)
Part IV: After World War II: Rights, Constitutions, and Democracy
Week 12 (April 23)
*U.N. Declaration of Human Rights and some national constitutions
*Jacques Maritain, Man and the State, chaps. 4-5
*Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of
Germany, chap. 13
Presentation
Lon L. Fuller, The Morality of Law
Debate between
Fuller and H.L.A. Hart in Harvard Law Review of 1958
Ronald Dworkin, Taking Rights Seriously
Week 13 (April 30)
Law and
“Deliberation”
Jürgen Habermas, Between Facts and Norms, chaps. 3-4, 6-7, Appendix 1
Presentation
Cass R. Sunstein, Designing Democracy