kennedy globalization outline

Document Sample
kennedy globalization outline Powered By Docstoc
					Globalization of Law in Historical Perspective
Duncan Kennedy
Spring 2009

2 Feb 2009

Some general intro remarks about the course
    The course is a more developed version of the book chapter (―Three Globalizations‖) – much better than the chapter, esp. for
       1945+ period (last third of course)
    Largely but not wholly a lecture course
    readings: most famous pieces of legal philosophy, sociology of law, law and econ. of period 1830-present
            o prob. most difficult: Savigny (for fourth class)
    The three periods, each with a characteristic ―mode of legal consciousness‖ for the period:
            o 1850-1914: CLT (Classic Legal Thought)
            o 1890-1968: the social
            o 1945-2000: contemporary legal thought
    Note: this isn‘t a normal comparative law class b/c it rejects two classical compar. law idea:
            o 1. primordial char. of distinction btw common law and civil law
                       basic idea of course is that similarities in given period btw common law and civil law are what is
                           interesting if one is interested in globalization and power
                       BUT: pay strong attention to intro to civil law system in fourth class (before Savigny rdg)
            o 2. this course isn‘t functionally organized . Common compar law idea: all around the world, economies and societies
                 throw up common set of prob.s, and Q is: how do diff. systems respond to the prob.s, how do they operate? (and
                 then you find that things that look different are in fact the same, and vice versa)
                       we‘re not about that functionalist orientation – this class is oriented toward:
                                 different modes of consciousness
                                 history of imperial power in the world and the way in which law has been both a
                                     systemization/contribution of the various imperial enterprises that have characterized the world
                                     system in the last 150 years
    Note: arbitrarily chose ―2000‖ originally – but may turn out, b/c of 9/11 and world economic crisis, that 2000 was end of
       distinct period. Wars and economic crises have historically been very important to what happens to legal thought.
    MODE OF LEGAL CONSCIOUSNESS: CLT v. social v. contemporary:
            o DK: Layered on top of each other. You can ID in the legal discourse of today elements that appear to be perfect
                 examples of CLT or the social.
            o So: contemporary legal thought is both an amalgam, a junkyard of ways of thought, as well as new ways –
            o Dialectical model: Each period is a
                       reaction to the past;
                       and an opposition to the present in the name of the future.
    First limitation on this approach:
            o Also: These are the modes of legal thought of legal elites:
                       fancy lawyers,
                       judges,
                       the operators of global legal institutions (administrators),
                       law professors.
            o SO: this won‘t be a course about popular legal consciousness – not a course in the tradition of pluralism (tho he
                 finds this very valuable).
                       i.e., the pluralism of local legal consciousnesses – e.g. tribes having legal consciousness, and in every
                           country of the West diff layers of l. consc. corresponding to heirarchy of diff classes and groups
            o It‘s about law as an instrument of, and something that shapes, power.
    Second limitation:
            o The consciousness is the pattern that an observer can get at by studying the discourse – the consc is smthg that‘s
                 inside the discourse, so to speak. And the consc.s that we’ll be talking about are generally pretty much
                 abstractions/generalizations/alleged patterns made by ex post observers rather than by the people who are
                 producing the discourse themselves.
                       e.g., btw 1850-1914, there are no books called ―CLT Is Us‖ – CLT is a projection back on mode of thought
                           of the past by historians – same is true of social
                       contemp. legal thought is much more problematic – history of the present (or at least up to 2000)
            o So what we‘re getting at is smthg about the way the actors wrote/spoke/etc. that was not fully available to them.
                       DK: and that‘s a definition of structuralism in one of its many meanings: getting at patterns/structures of
                           thought that are guiding at a consc/half-consc level what actors are doing
        o    See the chart: this course claims to cover all of law in the specific sense of all law understood as bodies of doctrine.
                   Of course, it dsn‘t do that – there are just way too many.
                   BUT: this is what shapes the syllabuses. They stick very closely to four groupings:
                             The law of the market
                                     o property, contract, torts, securities, commercial law, administrative law of the market
                             The law of civil society
                                     o at beginning, presents as ―law of the household‖
                                     o but in the broadest sense, this civil society law category is the law of the family, religion,
                                          health, education, culture
                                     o domains that split conceptually from the law of the market
                             Public law
                                     o Constitutional law
                                     o (note: Savigny, and most Western Euro/Amer after all, wd classify much of ―law of
                                          market‖ / ―household‖ as public law – that‘s not what DK means)
                             International law
                                     o Both public int‘l law and int‘l econ law
                   Note: these four categories are included on the left side of the chart
                   One of the goals of course: intro. to classic works re: these four areas for all three periods of law
   General relation between ―mode of legal consciousness‖ and ―process of globalization‖:
       o This course is only ½ about the former – we‘ll devote equal time to the processes by which modes of consc. diffuse
             across the world
       o We‘ll be considering: Violence, force, colonialism, war, occupation (e.g. US occupying Japan after WWII),
             ―opening‖ (a complex category – e.g. US ―opening‖ Japan – imperial powers demanding declining countries enter
             into unequal treaties – or, the imperial powers say, we‘ll invade you: so, rather than occupying/nuking/conquering,
             an ultimatum)
                   sidenote: the unequal treaty a characteristic mode of first globalization (colonization is most
                      characteristic mode of legal diffusion in first globalization, and topic of next few classes)
                   but has parallels in third globalization: conditions on IMF/World Bank loans – if you want this loan, stop
                      subsidizing the price of your rice! we think that‘s wrong, bad for your people, etc. (typical of third
                      globalization: the Washington Consensus, got going in late 70s, overwhlemingly dominant until mid-90s);
                      or US AID…
                   but note: during the period of the social, US AID, UNDP had another set of prescriptions for econ.
                      development in third world, quite different from Wash Consensus. They then negotiated import
                      substitution, industrialization.
       o Note: distinguish prestige/influence from bargaining: it used to be thought that legal elites in third world countries
             had adopted legal institutions, modes of thought, etc. of powerful/prestigious countries – but one way of seeing the
             trickiness of this category:
                   it‘s always tempting to turn it into marketplace of ideas where best ideas win; pure scientific admiration of
                      the best;
                   OR saying: no, it‘s all about disguised force; just knuckling under to the power of the most powerful;
                   good e.g. for DK of middle position: is Germany in 19th C: Germany was a late-coming colonial power:
                      possibly going to be the dominant power in Europe in the whole 2nd half of 19th C, and their defeat of the
                      French in the Franco-Prussian War is a very important event for the balance of power. If you‘re China,
                      Ottoman Empire, looking around, you might very well emulate Germany b/c you thought they were going
                      to be the top dogs. But they weren‘t actually at that time – everyone agreed the British was. But British law
                      constantly lost to civil tradition.
                   most interesting location for this: Latin America: by the time CLT gets going, almost all the Latin
                      American countries are independent (w/ a few exceptions) w/ ambition of being culturally/legally
                      autonomous, and they‘re borrowing like mad: KEY: they‘re not occupied. Sometimes they‘re bargaining
                      (e.g. Lat Amer markets wanting access to Brit/Amer capital).
                   SO three mechanisms of diffusion:
                             direct occupation/violence/war/occupation
                             bargaining/unequal treaties/structural adjustment
                             this diffuse middle category: emulation, prestige, influence, everything in between the two
                                 other categories
       o But what is ―diffusing‖?
                   Big Q: ―the agency question‖ (everyone calls it this): at one extreme, the idea that that which globalized
                      was, say, in the case of CLT, ―German legal thought.‖ So you‘d look at people adopting or not adopting
                      this/that German legal idea.
                   v. DK and others want to say: it‘s transnational: ―German legal thought‖ isn‘t just German – it‘s produced
                      by a transnational network, has elements shared by the members of the transnational network. The people
    who are into the construction of CLT are in diff countries of the core, and they‘re influencing each other in
    a way that gives CLT some autonomy.
   In other words: as tom‘s reading says: disting. btw. in mod period a Western European core and
    peripheral/semi-peripheral countries
          the essay for tom is about economic life
          but DK applies it to legal thought
          the countries at the core have the military/econ/political/cultural power
          in CLT period,
                  o the core countries are: Britain, France, Germany, (Holland)
                             industrializing very rapidly, and exporting to:
                  o periphery, which provides raw materials and markets,
                  o but also the semi-peripheral, which has adopted the last wave of the core‘s
                  o today, e.g., the world textile industry has been outsourced from the core to semi-
                       peripheral countries: France no longer produces any textiles, instead Bangladesh does
          So: in CLT, the core is: Britain, Germany, France, (Holland)
                  o US, Russia, Scandinavai, etc. are semi-peripheral: importing capital, large quantities of
                       fancy manufacturing machinery, etc., from W.ern Europe, but also exporting, developing
                       its own industrial base,
                  o so that by 1900, US has joined the core – the first to do so outside the little NW corner of
                  o note: this also shows how countries can move (they can also move in the other direction)
                  o note: there is no single central power – nothing like Roman empire, or Chinese empire
                       from POV of China – no single power imposing its will on the whole system – instead, a
                       complicated rivalry, always threatening to go to war – Japan bids to join core in WWII by
                       going to war – joins core after WWII
          Note: the primary significance of Germany: at start of period, least econ powerful; by end of
             period, it‘s arguably most powerful; WWI destroys its status as Great Power
                  o So: CLT = German way of thinking about private law (seen as core of law of the market:
                       contracts, torts, property – the central conceptual categories of German legal science)
                             and it‘s seen as a ―science,‖
                             focused on notion of ―right‖ – property rights, contract rights –
                             power of individual actor w/ right is absolute within that sphere
                             freedom of individual market actor has to be consistent w/ the freedom of all the
                                 other actors
                             Savigny, Kant (enormous influence on Savigny, tho he denied it)
                  o Here‘s what weird about that: we‘ve learned to think that Brit. is completely diff.: util,
                       not Kant/historical school; common law, not civil law
                             BUT: DK: the kernel of German idea: that there was a deductive science of
                                 the private law of the market based on the notino of a power absolute w/in
                                 its sphere – is actually adopted by the French in 2nd half of 19th C (tho they
                                 still think they‘re completely diff than Germans) – the first comprehensive
                                 French treatise imitates Savigny, begins to translate… missed (anyway, said that
                                 German legal thought inflitrated French legal thought, ironically through
                             In Britain, Austin, unknown in his own time, becomes God of analytic legal
                                 theory after 1860, and British legal thought gets Germanized
                             [so, basically: DK‘s argument: German legal thought spread to France and
                                 Britain – the three weren‘t so distinct, as often assumed, but shared basic
                  o BUT note: these guys don‘t just clothe themselves in German legal thought: the legal
                       thinkers in France, Britain, and eventually US (US dsn‘t become part of core of legal
                       thought until WWII) – they take the elemental German idea and apply it to a million
                       things: not just contract, property (as Savigny applied it, and where it‘s crystal clear) –
                       instead, it gets applied to many things: commercial law, law of agency, tort law, etc.
                             e.g., in the US, the German kernel idea (power absolute w/in its sphere) is the
                                 basis of US Constitutional Law (e.g. federalism: each state is a power absolute
                                 w/in its sphere) – tho no one else had done this before.
                             And after WWII, and US is using violence, occupation, bargaining, prestige to
                                 spread legal thought, one constitution after another begins adopting the
                                 American model from 1865, scrapping French and British models.
                                                       (Bruce Ackerman will tell you that this was entirely the result of our rightness,
                                                        etc. – not b/c of the bomb, econ power, structural adjustment, etc.)
                                 The point of all this being: it‘s not just a German thinker being adopted – it‘s something taken out
                                    of its context and turned into a building block to construct one element of a law after another
                                 When we study CLT, we‘ll examine that process: the abstraction of the buidling block and its
                                    application to one area of law after another
                                 And note, as above, no one is consciously doing this: there‘s a notion that there‘s a legal science,
                                    but it‘s not a single legal project.
                          Within the core, there are directions of influence: no German thinker in 1895 wd read an Amer legal
                           thinker – why do it? They‘re totally peripheral and irrelevant. They have no good ideas that are not more or
                           less accurate applications of German legal ideas. But then after WWII, great influence of US legal thought
                           on German legal thought.
                                 Note: this is also complexly true when we talk about diffusion across the colonized and newly
                                    independent world of 2nd half of 19th C
                                 CLT is brought e.g. to India, N Africa, and the people who bring it are British colonial officials
                                    and consultants – (they think of themselves as purely English, but are actually Germanizers) – and
                                    they interact w/ their colonial enterprise, produce a further development of British CLT. No
                                    Indians are allowed any part of that.
                                 BUT: in Lat Amer case, and Amer case, b/c you‘re a legal scholar of an independent country, you
                                    get to develop your own legal thought – using the tools of CLT, and w/ agenda of becoming a
                                    member of the ruling class of your own culture, and to pursue Third World interests against the
                                    core. And you may even be able to have impact on it, b/c the economic universe worships money:
                                    if you‘re an Egypt plutocrat, you can play in the Riviera; and likewise, if you‘re really good legal
                                    thought guy, you can get doctorate in Paris, lecture in French law school. And this actually
                                         o in the case of the social, this is multiplied by a hundred


3 Feb 2009

         Nation-states and colonies: there are the only two things recognized in his model? missed
              o Nation-states: defined by territorially-defined sovereignty, and by treaties (the mechanism by which nation-states
                  related to one another)
         What is meant by a ―mode of legal consciousness‖?
              o To begin with, a categorical distinction:
                        a language (langue)
                                  the words and the rules for combining (syntactical, grammatical rules)
                                  at a given moment of time, unique, complete (more or less)
                        versus speech in a language (parole)
                                  an infinite number of things can be said in the language
                                  the instance of speech is significantly constrained by the language
              o From Ferdinand de Saussure (lectures in Switzerland, 1907?), taken up by structuralism
                        [see Duncan Kennedy‘s ―A semiotics of critique‖ on his website for more on this]
                        Structuralism applied langue/parole to a subset of discourse within a language – it will have a restricted
                            number of words, including (jargon) specific words used in that area of speech, and specific rules only
                                  e.g. Russian constructivism used Saussure to describe poetry (poetic language as a subset of
                                     language: rules of versification and meter, e.g. sonnet form)
                                  Levi-Strauss (Savage Mind) applies the langue/parole idea to myth: it uses a restricted subset of
                                     characteristic actors (the sun, the moon, the bear) across cultures, etc.
                                  Barth treats the costume as the unit (like myth, sentence, etc.). Analyzed vestimentary codes of
                                     different cultures.
              o In the domain of law, we can do a legal semiotics (a legal structural linguistics) in which we try to identify units of
                  legal discourse, and the characteristic legal vocabulary used to produce the discourse that is recognizably legal
                        1st element: the production of sentences as legal norms: there are rules for the construction of a legal norm
                                  e.g., if we‘re thinking of it as criminal law, there has to be a definition of the offense, and a
                                     definition of the penalty
                                  though there are of course exceptions (just as there are exceptions to the rules for producing
                                     meaningful sentences: ―Oh!‖)
                        2nd element: the legal argument: there are typical arguments that are mustered in favor of norms
                                e.g.: ―The argument you proposed is too uncertain.‖ and then certain moves follow: ―As a result,
                                 judges will have too much discretion; parties will not know what to do…‖ etc.
                   3rd element: a legal institution
                             e.g., the state, a legal person, a court, an administrative agency, a corporation, etc.
                   (4th element: ideas about the purpose and ideal of law? (missed)?)
                             e.g., the ultimate end of law is human rights, or protecting private property
                   Other elements (could go on): see chart – the left column of the chart is a list of different elements in legal
         o So: that‘s what a mode of legal consciousness is constructed of
   The politics of the approach of the course:
         o Preoccupied with a left/right distinction, and with the question of the status of the rational v. the arational (in life,
             law, everywhere else)
         o Left/right:
                   throughout course, he will try to persuade us that political conflict btw left/right plays important role in
                       constructing a legal conciousness
                   1850-2000: a large number of participants in the process understand there to be a kind of meta-battle going
                       on btw an approach that is oriented to some form of substantive equality, bottom-up democratic control,
                       relaxation of conventional moral restraints; versus another side deeply committed to traditional moral
                       restraints, a heirarchy for preserving social welfare, and the notion that the differences among people justify
                       a very wide range of different treatment of people. Totally crude, but putting on table at the beginning.
                   left and right are ―universalization projects‖ w/in what might be described as (missed)
                   both sides see things in terms of states, aspire to welfare and prosperity for everyone
         o Rational/irrational:
                   Death of reason narratives: the place from which he works: believes that the experience of elites over last
                       150 works is the continuing undermining of (missed: basically, foundational narratives)
                   In law, that begins with idea that legal rules are natural and just, etc. – and this gets undermined
                   and this goes along w/ a constant resurgence/rebirth in exactly that declining confidence in logic, reason,
                       nature, justice, form
                   In sum: a growth of skepticism and a corresponding reaffirmation of that which skepticism appears to be
                       eroding. Both being endless: both the eroding and the reaffirmation.
   (me: sidenote: how could anyone object to structuralism? what is it not? It is not based on what someone intended to do,
    individual consciousness of the creator(s) of e.g. a myth or legal brief or costume…)
   Note: today‘s historical reading – we won‘t discuss in any detail – but they‘ll be of continuing relevance to understanding the
    legal developments
   Re: today‘s maps (in class): World in 1800:
         o has a variety of governance mechanisms: nation-states and colonies exist as an element, but a minority form –
             there‘s a vast area of the world organized tribally (agricultural or nomadic peoples), not in any way incorporated
             – some of them have states, but not in any way nation-states
                   there are also other categories: East India Company (instrument of nation-state) ruling areas, etc.
         o Question: how many have personal jurisdictions? e.g. Ottoman Empire: what kind of law you get is based on what
             category you belong to, not where you are – e.g., if you‘re a Christian, you get Christian law as you move through
             the Ottoman Empire, regardless of where you are
         o Anyway, 1800:
         o US in 1800: first colony to achieve nation-state status as a republic by rebelling against empirial occupier
         o Canada belongs partly to a company, partly to the state
         o S. India and Bengal are ruled by Dutch East India Company (not clearly public or private entities) – and these areas
             are governed overwhelmingly by personal jurisdiction – you get treated basically according to what ethnicity you
             belong to
         o A lot of empires: the Spanish empire in the Americas (though mosquito coast in C. Amer. is already British), the
             Portugese empire in the Americas and elsewhere (Portugal a giant empirial enterprise based on 15th C Portugese
             explorations) – these empires have the character of colonial empires: a metropole has acquired territory and rules it
         o different kinds of empires are: Chinese, Russian, Ottoman, Moroccan sultan… These empires don‘t have the form of
             a nation-state and colonies.
   1815:
         o Nation-states: Portugal, Spain, England, etc. (no Belgium: all the Netherlands and a little bit of France), no Italy (the
             kingdom of the two Sicilies, the papal states, Lombard contolled by Austria…), no Germany, Britain oppressing
             Ireland, Scotland, etc…. Austro-Hungarian Empire
   missed – we‘re doing rapid history based on maps – things becoming colonies in form, or in fact but remaining independent
    sovereign nations in form, etc.
   now world in 1850…
   after 1850… Spain and Portugal being outpaced technologically, etc. by new empirial powers: Britain, France, Germany, etc.
         and Italy and Germany being unified as nation-states
         …
         end of the story: only nation-states and colonies remain on earth
         democracy and republicanism have spread across the domain of nation-states so that the # of absolute monarchies, absolute
          emporers, is way down – the almost universal form of nation-states is the republic having some element of popular
         But the colony is, so to speak, the opposite: no national self-determination, no popular sovereignty, no democracy. They‘re
          ruled by such people, but aren‘t such people.
         SO: The story of CLT (the first globalization of law and legal thought) is made possible by the creation of a single global
          political system: this system. This pol/juridical order of nation-states and colonies linked together by treaties is the single
          pol/juridical system, and every entity within must as sovereign make its own law and decide what to do with the legal
          systems of its colonies.


4 Feb 2009

(yesterday was first: Historical/Political BG of CLT)
(today is equivalent exercise for the economy, esp. emphasizing the economy beyond the core countries of the period)
      What he found most astonishing in ―Europe and the Peoples Without History‖ (Wolf) which he views as extraordinary book):
              o THE WHEAT STORY: The process of settlement of the US produces, in the context of the technological
                  modifications of the time (the sequential development of mechanical threshers etc. rail and ocean transportation) a
                  dramatic change in the world price of wheat – and also involves displacement and massacre of the native
                  inhabitants – large-scale military force w/ extreme ruthlessness against men, women, children of American West –
                  many hundreds of thousands of people who hadn‘t been killed off by illness and displacement during previous two
                  centuries. Put in reservations on non-fertile land. And this displacement made it possible for new immigrants to
                  grow wheat, the price of which fell by ¾ (combination of better land for growing wheat w/ cutting-edge technology
                  w/ cheaper world transport)… and the consequence of this was: many of the small wheat-growing tenant
                  populations of N Europe are now incapable of producing wheat at market price – total wheat production of Europe
                  falling while population increasing rapidly – but it‘s more than fed by American, Canadian, and then Argentinian
                  wheat. What happens to the displaced European wheat farmers?
                        1. They move to cities in Europe, become industrial workers.
                                  in Germany, Austria, Denmark, Sweden, Belg, Neth, N France, industrialization has already begun
                                  so this population has no choice – they have zero bargaining power
                                  (this has already happened in Britain in 18th C – earlier industrializiation)
                                  this permits N Europe to quickly overshadow Britain as industrial power
                        2. They emigrate: move to America.
                                  The ships that take the wheat from US to Europe bring back in steerage the emigrants to US from
                                      Europe. Jammed w/ 15 million Europeans leaving Europe. Huge portion of agricultural population!
                                  in the case of Italy, it‘s 4 million people – when population of Italy was 20 mill in 1880s
                                  (it‘s equivalent to the displacement of people from Iraq – except these people never coming back)
                                  Southern Italian agriculture has been destroyed
                                  Some of these N Euro farmers become the wheat farmers in the West of US – these people
                                      experience it as living the American dream (until wiped out by the Dust Bowl) – and the rest of
                                      them become the industrial proletariat in the US
                                  SO: The famous story of traveling from Europe to land of opportunity in America – is
                                      created by wheat industry being wiped out in Europe – by America!
                        Also: an American-centric version of the story:
                                  the movement of Afro-Amer pop of US from South
                                  Southern agriculture dependant on cotton –
                                  note: how did South become dependant on cotton? it was providing raw materials for British
                                      textile industry, which came into business in part when Britain destroyed the handicraft textile
                                      industry of India – huge devastation – supplying them w/ textiles manufactured in Britain using
                                      Amer cotton.
                                  toward end of 19th C, Indian and Egyptian cotton begins to be produced w/ cutting-edge
                                      technology, and India develops its own new Western textile industry. Still basis of the current
                                      Bangladeshi textile industry
                                  Amer system was slave cotton system – at end of Civ War, slavery abolished, cotton industry
                                      disorganized – gets reorganized as tenant system, Jim Crow system, completely organizes their
                                      life around control by plantation owners
                                   BUT: these Southern plantation owners are like ―planter class‖ throughout the world – they lose
                                    their edge b/c they don‘t need technology, b/c they have free labor
                                 BUT w/ cutting-edge technology, India and Egypt are able to destroy Amer cotton industry
                                 The plantation owners, as their international edge is destroyed, have only one option: to tech up –
                                    mechanize the cotton industry so that it requires less labor.
                                 By 1950, requires something like 1/6 the labor of earlier, rendering the Af-Amer population of
                                    South redundant. And no safety nets.
                                 So they move North, something like 40% of entire Af-Amer population of South (1929-1955),
                                    creating modern Af-Amer community – no longer peasant class, but working class – then out-of-
                                    work working class, creating welfare class of 1970s.
                                 SO: This giant and unmotivated social problem: something like 15 million Af Amers in
                                    North who have no visible means of support – is actually produced by the process of
                                    globalization described above.
        Does one have to be a Marxist or economic determinist to buy Wolf‘s story (today‘s reading)?
             o [sidenote: Wolf is a classic 1960s neo-Althusserian Marxist, a few years older than DK]
        Sidenote: similar thing happening today, e.g., re: corn in Mexico: used to be produced by peasants, supporting them, now
         80% of Mexican corn comes from US – thanks to NAFTA
             o BUT: the biggest difference today is that the scale of immigration is much smaller, more constrained
        Discussion: main characteristics of movement of peoples, commodities
        Then: rest of this segment of the course: what is the relation between these developments and the law?

group discussion: Chapter One: What are the most important/useful features of the chapter?
     One-way wrench quality: In periods of capitalist expansion, people on the periphery had cultures altered in order to
         incorporate them into global capitalist system (reorgniazing its factors of production, intensify its capital growth) (314), but
         periods of contraction, they couldn‘t go back
             o and they really didn‘t have a choice – force was used
             o DK: Irreversible change.
     The Euro expansion imposed Euro eocnomic system on the rest of the world – and other people were doing not much more
         than providing workforce for capital accumulation
     Key distinction: The plantation v. small-holding cash crop farmer
             o latter in the Third World today is a product of 19th C. – the econ. mode of production in which family farms
                  produce a single crop (for the world market), maybe a little food on the side
             o former requires a lot of labor

group discussion: Chapter Two:
     Movement of labor -> social stratification – b/c incoming labor groups become ID‘d w/ type of labor rules that they were
         imported to fulfill -> producing pluralism: sociological designation: the plural society: this is the kind of society produced by
         these labor flows
     Heterogeneity results both from this population movement and the great powers drawing lines across maps, dividing
         populations: this is a second source of population structures
     A third source of population structures: populations being pushed around
             o Guns, Germs, Steel: describes the emergence of state-systems: pastoralists and tribally organized societies displaced
                  by state systems all over the world – DK: and this development has an ethnic dimension: there are people who are
                  driven to the margins. E.g. Bushmen in S Africa driven away from where they were. (In fact, a great migration 17-
                  19th C.s driving population groups in Africa South, and into the forest.) Bushmen driven upward into the mountains.
                  Or, e.g., Burmese hill people – opium growers. They were driven by ethnic Burmese up into foothills of Himalayans.
             o Q: Why was there a great demand for rice in W. Indies? B/c contract laborers there were from India. (V.S. Naipaul‘s
                  family.) Wanted rice. (Same thing happened on West Coast: demand for rice goes up from Chinese laborers on
                        This leads to reorganization of population of Burma.
             o The US bears strong resemblance to Burma or British Guiana in this sense: ethnic/religious groups move in
                  collectives (e.g. Swedes in Minnesota) – in general, the migrant groups are the poorest from an area in Europe,
                  migrate w/o the elites, lose the social structure that the elites provided.
                        note that same kind of things happened in France, England (proto-typical nation states) were produced by
                            centralization, accretion, the addition of peripheral groups in 19th C
                        a large part of what‘s happening in politics of France and Britain today show traces of this process: e.g.
                            Welsh nationalism. (Note that in late 19th C, massive #s of Irish were imported to run Welsh mines.) Today,
                            Wales contains Irish, Welsh, English – very easy to tell apart, b/c other two don‘t speak Welsh.
     NOTE: 1925 (map we saw) is the perfect culmination of 19th C mode of organizing the world: by 1925, there is no square of
         the world that isn‘t organized either as part of a sovereign nation or as a colony. (This is a political fact – and we will now
          study the juridical consequences: everywhere, the legal form is either authored by the sovereign, author of all laws, or…
          missed [the situation in colonies, indirect subjects of sovereign])~
         Both the flow of commodities and peoples, presented in these writings as existing outside law, are totally legally
          structured. Hawbsbawm (sp?) is describing the spread of nation-states, etc.: this is … (missed – this is what we‘ll be
          covering in next class)
         Note that the Ottoman Empire or Chinese Empire (v. this late 19th C nation-state model) does not understand itself as having
          sovereign who is author of all laws.
              o So both the rulers and the colonized people are forced to reconceptualize themselves
              o also, there is a substance to the legal regime that is spread: free trade, gold standard
         SO: Wolf‘s story couldn‘t happen after 1929, b/c it all became illegal.
         The whole commodity story, market story, sovereign story – Wolf and Hobsbawm’s stories – is based on a legal


9 Feb. 2009

    One of the most striking statements of cert. mode of legal consciousness – a crystallizing moment of something that had been
      developing for a while – a view of private law
    Everyone is in a sense a German thinker given the influence of this text.
    Savigny: gained fame from The Vocation of … Legislation … Jurisprudence: published at end of Napoleonic Wars, circa
      Congress of Vienna, very signif. moment as we saw – this text contains two memorable things:
          o 1. A presentation of ―What is law?‖
                    Two main elements in conception of law (which continue to this day):
                    These two elements can be seen as completely harmonious or in violent conflict
                    a. Law is part of the political order of a society
                             not exactly clear what he means by a ―society,‖ ―people,‖ ―nation‖
                             but we have intuitive sense that a ―people‖ has a NORMATIVE ORDER: a set of rules of
                                 conduct that are understood to be binding – that order is not to be understood as a matter of either
                                 natural law or natural right.
                             Thus Sav is in rebellion against legal trad.s of Middle Ages/early modern period. He dsn‘t believe
                                 that God gave us the rules/natural law, or that reason can work out all the details from what God
                                 gave us… or that individuals have pre-legal/extra-legal/subjective rights, and that those rights can
                                 be understood to be the basis of law… nor that smthg isn‘t law if it violates natural law –
                             thus: Sav is a positivist. One of the founders of the legal school of positivism: The law of a people
                                 is a collection of facts about the normative order of a people. Different people have different laws.
                             He also believes law is a recognizable institution –
                             there is a state that enforces law (w/in some limits)
                             There is a legal science that consists in figuring out the inner unity/consistency of the people‘s
                                 normative order.
                                      o this is necessary b/c law is, like language, an organically, not-consciously developed,
                                           natural, spontaneous product of the life of a people
                                      o so it‘s natural that there will be conflicts and inconsistencies in the normative order of a
                                      o what legal sci does (a professional activity, like other kinds of sci of this period, just
                                           emerging from being part of natural theology, etc.) is work out what the logically nec
                                           conseq.s are of an examiniation of the facts of the normative order, if we‘re going to
                                           render it consistent.
                                      o the idea that guides the enterprise is the idea that the normative order of the people has a
                                           kind of being behind the specific practices of the people. An ideal, typical being of the
                                           order, which can be figured out by the legal scientist and developed.
                             this idea is the foundation of one version of what we shd understand law to be: law understood as
                                 the actual, factual practices that come to exist inside a social/cultural milieu.
                             that is a foundation of the sociology of law: the idea that it‘s possible to study law as fact, and to
                                 understand it by contextualizing.
                             BUT: then Savigny‘s arg. takes an unbelieveable twist: when we ask whether you should codify:
                                 every people should have its own code. AND: whether you can codify effectively depends on the
                                 state of the normative order of the people and the development of legal science. If they‘re not
                                 developed enough, you‘ll produce a bastardized code.
                                      o he thinks the French weren‘t developed enough, their code ended up kind of a botch
                                    o     and he thinks the Germans are behind even the French!
                                    o     so they shdn‘t try to make a code yet
                                    o     they shd allow the law to continue to develop through tribunals (mostly faculties of law)
                                    o     The scientists are the law professors
                                                sidenote: three kinds of positivism:
                                                          judicial: common law
                                                          legislative: code
                                                          professorial: the people who are the true source of law are the legal
                                                             professors (Savigny)
                  b. What is the Volksgeist of the German people?
                                     o it develops from the reception and transformation of roman law
                                     o he denies he‘s an antiquarian, b/c the reception involved major transformations of law
                                                e.g.: Romans saw slavery as central thing… Germans don‘t (Christianity
                                                    transformed German law)
                                                e.g.: Romans had divorce at will… Germans don‘t (again, as a Christian [nation
                                                    – well, not really a nation but a collection of states = Länder])
                           So: What wd a scientist come up with if trying to get at essence of German law (through induction
                                – using facts to get to essence – and deduction – developing logical contour of system from this
                           INDUCTIVE SIDE:
                           ―things are ordered so that each individual has a sphere of autonomy as far as this sphere doesn‘t
                                conflict with the spheres of others‖
                           the claim is that this is an abstract statement of the implicit content of the Volksgeist of the
                                German people
                           Here‘s the astonishing thing about Savigny: of course, this corresponds to the basic idea of
                                classical liberalism, whether developed by util.s, Kantians, evol.ionary biologists – and he
                                identifies this with the Volksgeist of the German people?
                                     o he insists: this has nothing to do w/ social contract, rights prior to society, or God
                                     o this is just what the ethos of the German people turns out to be.
                                     o so: this was the inductive step: he‘s induced that the Germans are so to speak the
                                          universal subjects of the 19th Century
                                                which saw the abolition of serfdom
                                                the liberatory moment of the French Revolution – the proclamation of the rights
                                                    of man/citizen as fundamental principle of the political order
                                                and Savigny has induced that the spirit of the Germ people is precisely a
                                                    normative order that corresponds to the French Revolutionary idea of the rights
                                                    of man
                                                an amazing sort of trick!
                                     o every folk is supposed to be different… but it turns out that Germans‘ particularity is its
                                     o the crucial paradox of the inductive side
                           DEDUCTIVE SIDE:
                           then the deductive side: once you get to the spirit, defined in this way, then in the assigned essay,
                                he derives all sorts of legal consequences
                           everything falls either into category of myself/another person or nature
                           from this, it‘s natural to distinguish categories of law… (then he lays out this categorical scheme,
                                which we‘ll examine in whole second part of class)
                  Note: No Frenchman will believe that German spirit = rights of man! They‘ll say – that was us. No
                      American will believe this! They think they invented this… No British will! We‘re the land of liberty! or
                      Chile – it just rebelled against Spanish monarchy!
                           so: then the deductive system will belong to everyone who believes they’re part of the ethos
                           thus a crucial moment in the globalization of Western law
                           this bizarre combination of law reduced to the product of a society (reversing the usual order of
                                seeing society as product of law (?)), and at the same time having the characteristics of true, liberal
                                universality, à la Rights of Man.
                                     o so: law is both the most invented/subordinate, and the most universal/deductively
         o 2. Whether the German states/Prussia should enter into/adopt the French civil code, or generate their own civil codes
                  French civil code seen as great accomplishment of French Revolution. Q is: should everyone imitate it?
   Intermediate stage:
o   in this professorial conception of law as fact, backed by normative order, one of the complexities that‘s not worked
    in assigned text is that law is not the whole normative order. There’s law, and then there’s morality.
          law/morality central to 19th C Western legal thought (Beginning w/ Kant at very end of 18th C.)
          the problem is everywhere and is a deep obsession
          just as in the first half of 20th C, law/society is the obsession
          and in the last half of 20th C, law/politics is the obsession
o   Savigny begins by rejecting an ambiguity in Kant‘s Metaphysics of Morals.
          in that text, Kant is incredibly ambiguous about the rel. btw law and morality
          i.e., things that are legally v. morally obligatory
          unclear whether there‘s a sharp distinction between having a legal right to do something and having a moral
              justification to do something
          sometimes it sounds like yes, sometimes no – in fact, sometimes sounds like the things that can be legally
              enforced by the state are strictly diff. from those that can‘t be legally enforced by the state and must be left
              to consc.
o   Savignry by contrast is very clear: law and morality are really different, and there‘s no ambiguity: you can have
    legal rights to do things that are completely and totally immoral – and there are sharp limits on what legal order can
    enforce, v. what it must leave to consciene or non-legal state activity
          e.g. the rich man can let the poor man starve to death (he has a moral obligation to help him)
          but the state can tax the rich man to feed the poor man
          but that‘s not law: neither the tax nor any duty that might exist to feed the poor man
o   Earlier in lecture, DK emphasized universal character of Sav.ian model
o   But now: empahsizes how little of what we think of as law is law in the Sav.ian scheme
o   The process of analysis for Sav. turns out to ID this liberal/autonomy thing in quotes above – and then deduces from
    there – but this leaves out a lot that we would call ―law‖
o   There is a core of true, pure law – and then other things that are less and less like the core idea of law
o   The requirements of morality (w/o state behind them) are not law – that‘s clear.
o   Nor is the welfare system law. Why? B/c you can‘t deduce this from the general idea of law. It‘s, so to speak,
    ―merely positive.‖ (Sav‘s phrase). = a matter of state practice/ prudence / the welfare concerns of the society.
o   So: all of public law is so firmly excluded (except crim. law) – all Con law is firmly exlcuded (you can‘t deduce
    14th Am or Sep of Powers from ―the autonomy of will within its sphere‖)
o   He wdn‘t deny, on this spectrum, that the officer who taxes or the other who hands out payments to poor – he wdn‘t
    deny that the law is relevant here, that there are statutes here… But they‘re not really what we‘re talking about.
o   BUT: when Sav is opening up his deduction, and makes his three categorizations:
          Power over the self
          Power over another person
          Power over nature (the factually non-human)
o   Some textual exegesis: 272-3: ―On this matter…‖: that way of categorizing the legal order, Sav says, dsn‘t make
    sense – that shdn‘t be the first category.
          (tho this is very common trope at the time – you always have freedom of thought – even under torture, you
              can‘t be forced to believe smthg) – this isn‘t law
          BUT: re: will over your own acts: a number of laws are dedicated to protecting you from fraud, force,
              calumny (attacks on your reputation) – what we wd now call tort law – laws protecting one person from
              another – there are a very large # of these laws –
          BUT all we can say about these laws is that they are ―merely positive‖
          they can‘t be derived analytically from the idea of autonomy.
                    e.g. committing suicide is a crime.
          So this whole body of law (a significant portion of the body of law: criminal and tort law) – he says: I‘ll
              never mention this again (it‘s law far out from the core)
                    [tho: very soon after Savigny, many people will use his categories to reconstruct tort law]
          INSTEAD: he‘ll cover law applying to other people and to things
o   So: he‘s not saying that tort law can‘t be deduced from right to bodily integrity, etc. – he‘s saying that it‘s not close
    to the core of law
          he‘s going to derive the concepts of property and contract from the concepts of property and contract
          to be really close to core of law, it‘s got to be deductible from a concept
          the more something can be derived from a concept, the more legal it is (and vice versa: the less, the less)
          other things are still ―law‖ in the sense that they‘re enforced by state apparatus – but: they‘re not law in the
              deep, true sense
o   The boundary btw what is ―merely positive‖ and what belongs to the core of the law isn‘t fixed in 19th C –
          in fact, we‘ll soon see: the international lawyers (Austin, etc.) saying: we belong in the core!
o   IN SUM: the [core ideas] above:
          1. power is absol w/in its sphere
          2. induction/deduction
                 3. mobility w/in boundaries (in the sense that, e.g., int‘l law will (seem to?) come closer to core, or not)
        o   Note: what we‘ve left out is family law (v. ―potentialities law‖ = property and contract).
                 Here‘s the question: what‘s the difference for Savigny between these two?
                 (based on all he‘s said above)
                 (Sav‘s answer 278-9)
                 (Why this is important: the globalization of CLT occurs through force, capitulation/unequal treaties,
                    and prestige of German idea of law in rest of the world. In that process of globalization, both the
                    exercisers of violence from the center and the elites doing reception (and resisting) as they contsruct
                    autonomous or semi-auto states on the periphey – they adopt this distinction: between potentialities law,
                    and family law – this distinction gets globalized. So this Savignian distinct. is crucial to understanding the
                    globalization of CLT. The basic, overarching message is: we end up with very intense globalization of
                    potentialities law, very limited globalization of family law.)
                         note contrast: the Chilean elite making the Chilean commercial code might throw in ―this is a very
                             Chilean comm. code!‖ but it‘s really trivial –
                         versus in context of family law
                         BUT: there‘s a limit to what the center will tolerate: widow-burning, foot-binding, human sacrifice
                             – practices defined as unacceptable
                 Here‘s how DK would do it:
                         1. family law has a big natural/moral element to it, v. potentialities law is purely legal: you
                             can derive both property law and the law of obligations (contracts) from their idea.
                                             property: once you know it‘s the absolute power of the will over a thing in the
                                                world, you can derive the basic property rules from that concept
                                             contract: the whole corpus of it can be summed up in one para… (missed)
                                  o important here that potentialities law has this hyper-rational character, but in Sav., there‘s
                                       always a giant escape hatch: his followers are far more formalist than he is. In Savigny,
                                       the big escape hatch here is that what counts as ―property‖ is really very socially variable
                                       and up for grabs. E.g.: what can be IP? Open question. What your specific tenure in land
                                       will be? Open question. Many things not given by the concept.
                                             CLT is largely, in practice, taking positions w/in the modes of indeterminacy
                                                that remain w/in the Savignian system.
                                             You can spend your whole career filling these gaps.
                         2. Next: family law is the domain of the organic/social/collective
                                  o property law: a legal relation btw you and everyone else in the world.
                                  o v. contract law: one free contracting party v. another free contracting party
                                  o versus FAMILY LAW: it arises b/c in some aspects of our nature, we are not self-
                                             to be complete humans, we have to have a relation of a person of the opposite
                                                sex (marriage)
                                             and as mortals, we have to have progentive relationship (children), in order to be
                                  o We are ―organically‖ connected by nature, which is then disciplined by morality.
                         3. Obligations law defines what parties need to do vis-à-vis one another (property: the duty to
                             respect others‘ possession; contracts: obligation to perform); v. family law: it doesn’t say
                             anything about what you have to do for your spouse
                                  o odd for us
                                  o and in fact, in his time, society had a bunch of regulations –
                                             if you seduce my daughter or wife, it‘s a tort against me
                                  o but these aren‘t about duties of parties to one another
                                             they‘re about morality
                                             they‘re merely positive legislation
                                  o thus they aren‘t a part of family law
                         Finally, 4. Family law (natural and moral) is socially embedded and different socieities have
                             diff marital and patriarchal customs.
                                  o It‘s even the case that polygamy is part of the sequence of possible marital rules.
                                  o morally, we know this is wrong
                                  o but law can‘t distinguish between polygamy and monogamy
                                  o the concept doesn‘t drive one outcome
                                  o so: high level of variability
                                  o v. property and contract (highly variable, altho the form of the law is invariable)

   me: notes after class: so: the idea is:
        o start with the concept of individual autonomous in his sphere
                  o   from this basis, you can infer all of ―potentialities law‖ (property and contracts):
                           property: each autonomous individual must respect the power of other autonomous individuals over their
                               things, in the following ways… (followed by systemization of laws of property)
                           contracts: each autonomous individual must respect obligations to other autonomous individuals…
                               (followed by systemization of laws of contracts)
                  o   BUT: it‘s not possible to infer family law from this basis
                           because of the four aspects listed above: it varies between cultures, has to do with organic relations of
                               communities (not just individual-individual relations), etc.
                                     [this is the tricky part: thinking through all the parts of family law that make it impossible to
                                         deduce from the idea of ―autonomous individuals‖ –
                                     but there does seem to be a kind of natural thought-process here:
                                     i.e., it‘s hard to imagine protecting the autonomy of individuals w/o property law, contracts –
                                     versus one can imagine their autonomy being entirely respected w/o family law, tho perhaps
                                         society would end up monstrous somehow in its absence…]
                  o   Final step: Savigny defines ―law‖ in terms of the degree to which principles can be deduced from the ―individual
                      autonomous in his sphere‖ idea –
                           so family law is far from the core of law,
                           while property and contracts are at the core.


10 Feb. 2009



THE STRUCTURE of Savigny‘s System

          Will
                  o   Nature… Morality (connects to Paternal Power, below)
                  o   Law
                           Willer‘s Person
                           Outer World
                                 Extraneous Person
                                          o Family Law
                                                    Paternal Power Relationship (Kinship)
                                                    Marriage
                                          o Akin to Property – potentialities:
                                                    obligations
                                                    absolute rights (slavery)
                                 Unfree Nature (Property)

Roscoe POUND
     (child prodigy, photographic memory, eventually Dean of HLS, then kind of ―reactionary‖: supporting Chiang Kai Sheck)
            o DK very critical of people w/ photographic memories: Pound superficial thinker – prob. for people w/ photo
     Descrip of CLT in core countries by proponent of next mode of legal consciousness, the Social (RP is a crucial creator of
        social mode)

versus ROEPKE is a critic of the social (who contributed to the construction of modern/contemporary mode)

DK will critique both RP and Roepke as typical products of the social mode of consciousness

    What‘s great about the essay is that he proposes that when we look at the legal dimension, meaning what people of diff
      philosophical or legal or jurisprud. schools – what they say about how to underst. the body of legal rules, he claims, we get
      this astonishing/odd phenomenon
    The schools he describes are what people study in legal theory / jurispr. courses:
           o Natural law
           o Natural rights
        o     util/analytical
        o     historical
        o     metaphysical
        o     ―positivists‖
                    [today we would say: CLS is a school!]
   What makes the article amazing is that he says: altho all these people think they‘re totally different and hate each other, they
    all agree. If you look at them as legal thinkers, they share something. Whether you‘re a natural law person or positivist is
   As RP sees it, all the 19th C schools agree on: they‘re based on recognized acts of will. The centrality of the will theory. He
    sees this as essentially, profoundly Roman, as passed through Germ. legal philo.: Kant, Savigny, Hegel.
   And what it does is represent master & servant, principle and agent, husband and wife, etc. – representing them all in terms of
    the category of ―the juridical act‖: in this 19th C Germ legal thought approach, every one of these diff bodies of law is about
    the circumstances under which a willing/free indiv actor can change/create a legal relationship.
         o e.g. employee for juridical act, as does employer, and out of this comes a Savignian relationship
   They reduce all legal rules to contexts in which one or two or three etc. people create legal relations
   THE JURIDICAL ACT as the CENTRAL IDEA OF THE WILL THEORY, and the WILL THEORY as the central, shared
         o he understands will theory as almost synonmyous w/ laissez-faire
   RP interp.s this universal adoption of the will theory, individualism, as leading to a legal universe in which there is very great
    freedom of property owners to do what they want with their property – and unrestricted freedom of contr (state as night-
    watchman state; also called Manchesterism: no regulatory role of the state in the economy at all) –
   So: RP is a ―progressive.‖ Political/intellectual/econ. movement arguing for a sharp increase of the regulation of the Amer
    eocnomy to protect the interests of small farmers v. railraods/banks, consumers v. manufacturers of goods, workers v.
    employers, and beginning of environmentalism v. capitalist exploitation of forest, water, etc.
         o Amer. progressivism = regulatory creed. (Not sociality, def. not communist.)
   So RP is basically characterizing 19th C legal thought, the will theory in its Roman origins, as the legal ideology of laissez-
    faire in the economy.
         o 1st point about the social: And that‘s typical of the social – they‘re characterized over and over again by the way
              they characterize CLT: they characterize it as a legal theory w/ a very powerful political bias against laissez-faire
              and in favor of regulation
         o 2nd point: RP‘s expository strategy: CLT comes from abroad, and our native legal tradition is better – framing
              everything as a struggle against foreign domination. The feudal common law, our Anglo-Saxon heritage (Amer
              ruling elite at that time overwhelmingly WASP), our Germanic-Teutonic heritage is not Roman law.
                    When he says ―Germans,‖ he means collectivist warrior bands in German forests, not Savigny. Just as Sav
                        argues that Germans received Roman law by purifying it, systematizing it, Christianizing it, etc. –
                    this is exactly what RP is arguing against: Germans should never have done this! Should have stuck with
                        collectivist forest law!
                    There‘s a strong element of nonsense in RP‘s approach. And you can see this tactic all over the world btw
                        1900-2000: people saying: our native law is better than the foreign European law of CLT:
                              Hindu law in the thought of Ghandi
                              African socialism in the thought of people like Sangor, Kruma, Nairere
                              Islamic law in the thought of Sanguri
   DK wants to oppose this model: Altho it‘s true that as a matter of fact that the 19th C is the high-water mark of laissez-faire,
    as RP recognizes, it‘s already on the wane by last quarter of 19th C. The will theory is the theory of public law as well as
    private law. The true characteristic of CLT: it‘s as preoccupied by the will of the sovereign as by the will of the individual.
    So yes, CLT is obsessed with the juridical act of the individual, BUT it is equally preoccupied w/ the notion that law is the
    will of the state – that, as a matter of fact, any given legal arrangement can be understood as state-imposed-rules, just as much
    as party-autonomy.
   Places of the state in private law:
         o The state is always there to enforce contracts/property rights. What we mean by law is the particular rules that a
              particular sovereign decides to impose
         o The domain of family law/ the law of status
                    in Sav‘s system, remember, property and contract are based on the self-suffic individual – and these rules
                        follow from the fact that it is the exercise of will over another will
                    the mere concepts of private law in the domain of potentialities are enough to … (missed)
                    1st: rem: family law based not on individualism but on organic unity of individuals requiring other
                        individuals to be complete –
                              these elements are quintessentially anti-individualist
                    2nd: within that domain, there‘s infinite variability, b/c diff. peoples have diff customs, etc. – and it‘s
                        compulsory (you can‘t choose your family law) [might get this generality clarified at some point – the
                        contrast btw. family and potentiality re: ―compulsory‖]
       KEY: RP just reads these features of family law out of his exposition of CLT – just ignores everything DK just
       It is continually the case in the 19th C that there is a subgenre of CLT – there‘s the laissez-faire genre, but there‘s also the
        more regulatory strand within CLT: the minority strand (moderately left-wing), uses each of the two things he just described
        as the basis for kicking back against the laissez-faire version of the will theory:
              o 1st: in the Sav scheme, CLT has to have rules about fraud, force, etc. – has to guarantee that the juridical act is the
                  act of an autonomous person
                        so, e.g., labor must be able to bargain freely (this was advanced as argument under moderate-left CLT in
                             US in 19th C.)
                        KEY: means CLT isn’t intrinsically right-wing, even if majority strand is
                        CLT is a langue: and the ideas within that langue can be turned into paroles all along the political
                        So: RP leaves out public law from CLT, so that he can use CLT as his whipping boy
              o 2nd: x
       The curious thing is that German legal philosophy and English utilitarianism/analytic method end up at the same idea,
        even if latter continues to despise former as cloudy nonsense. The idea: the free subject. How does this happen?
       France thinks: we invented codification, the French Code Civile, first to do systematic ordering of all of law… eliminating
        judicial discretion – and then they think it‘s virtually constitutional – even tho it‘s just private law. They‘re the concrete
        meaning of abolishing feudalism, of the French Revolution.
              o Just as Germans will think this re: BGB in 20th C.
              o In spite of that, a book comes out, by Alsacians (border btw Fr and Germ), they‘ve read German abridgement of
                  Sav‘s book…
              o late 19th C version of this historic moment: early in the 19th C, you learn the Civil Code by starting at I.A.1.a.i…
              o the problem is that from the POV of CLT, this was irrational, b/c French Civil Code wasn‘t organized in line w/
                  deduction from the free subject idea
              o but by 1900, France has lost Franco-Prussian war, basically gives in to Germany, now teaches French Civil Code
                  according to Savigny-like order
              o so: this is how German CLT goes to France
       Related: a crisis in English law at one point – writ system had evolved, very complex, but totally irrational – so group of
        English, esp. John Austin, create a rationale exposition of the corpus juris as achieving classical goals
              o Austin: celebrated as the most British of British – the inventor of legal positivism in its post-Hobbesian form – and
                  what he stands for is the opposite of Kant, Savigny, Hegel – he stands for the proposition that law is the will of the
                  sovereign commanding someone to do or not to do something – ―he is our answer to Continental BS!‖
                        However: at start of career, is protégé of Bentham and James Mill (JS‘s father) – goes to Berlin, studies w/
                             Savigny‘s pupils – comes back and gives lectures on jurisprudence, takes a lot of notes – starts out with 15
                             students, gradually down to five, then 1, by end, empty room – then has nervous breakdown, writes classic
                             work. His lectures are importation of German legal thought into British legal thought. Later, notes get
                             developed and published 1865 – goes through nine editions, etc.
                        The leading legal philosophers then take Austin and turn it into a basis for a total new substitution for the
                             writ system. The British law of contracts/property/torts is modernized. Incredible transformation, esp. at
                             theoretical level.
                        So: this is how German CLT goes to Britain: ironically, through Austin, the most British of British legal
       German legal lit. also goes to US: through Britain. Something involving Holmes rejecting something in British law.
        Reconceptualizing law around the Savignian model.
              o sidenote: Holmes‘ Common Law is a work of CLT – he thinks he‘s better than Savigny (and Pollock, influenced by
                  Savigny) b/c they‘re too Romanized, he‘s going back to Teutonic roots.
              o He has objective theory of will v. subjective will? missed – anyway, digression based on student Q
              o Every ch. of Common Law, the goal of law is the recognition of human will, freedom of the will, laissez faire is the
                  spirit of the age – again, missing
       German also goes to Dutch.
       French, German, US, Dutch colonies then also receive CLT.

Summary of RP:
    RP is criticizing CLT as conservative, laissez-faire private law ideology, so that he can argue in favor of progressive reforms

SO: Now: International Economic Law:
         Roepke = German ―Ordo-Liberal‖ late-1940s-50s: he‘s saying social (Bismarkian Germany, Great Depression, fascism, etc. –
          that‘s the social! he‘s saying – RP and his social = national, and it destroyed the world, was a catastrophe) is disaster, just as
          RP said CLT was disaster.
                o just what RP hated is what Roepke thinks is great: an unordered consensual order of nation-states around a set of
                     ground rules, crucially w/o a central power imposing it all – no world gov‘t – but a legal order
                o all the so-called virtues of laissez-faire should be attributed to this mode of regulation of life
                o it‘s not freedom that produces prosperity, but freedom structured by an order
                o (me: Thomas Friedman, ordo-liberal: this is the hardware necessary to make econ work)
                o the order (hence ordo-liberal) creates trust between actors, etc. – see essay, list in one paragraph
                o all can see the advantage of continuing to play by the rules so that their neighbors will too – this is what is lost after
         Three elements to the order Roepke likes, i.e. depoliticizing the economy:
                o Roepke buys efficiency analysis, so ―depoliticizing‖ means getting out of the way of supply and demand, which are
                     determined in objective ways… (e.g., how much it costs physically to produce the resource wherever it‘s located)
         How you do it, the three elements:
                o 1. private law (―domestic law‖ is divided btw ―public law‖ and ―private law‖) – society is ruled by Savigny‘s rules
                     of property and contracts – these rules aren‘t natural: the state enforces rules of individual autonomy – these rules
                     are necessary to allow us to compare the prices of copper in Katanga and Chile – the minute you deviate from that,
                     you‘re politicizing.
                           thus no political rules: minimum wages, subsidies, etc.
                o 2. free trade
                o 3. money (Roepke‘s lengthy discussion of gold standard)
                           every country controls its own money, but if everyone agrees to play by the rules of gold standard, the
                               values of currencies will be outside of political control – regulated by productive activities of peoples in
                               diff. economies. If each gov‘t agrees that it will maintain convertability of its paper currency into gold, then
                               no gov‘t can do anything to rig the value of its currency.
         Key: ends up being natural, because outside any organized political control.
         CLT permits all the participants in the system to understand the parole
         Note: just as RP‘s presentation can be attacked as a negative representation designed to bolster his own position as a
          progressive, Roepke‘s portrait of the 19th C int‘l econ. order has the same problem, but in reverse –
                o e.g., he ignores that empires erected trade barriers around their colonies
                o grossly idealizes
         Roepke writing 1954, Stalin died year before, USSR in full expansion, absolute high point of Cold War
         A basic position of Euro and Amer conservatives that begins to be elaborated in 1944 is: there‘s something called ―the road
          to serfdom‖: the way you end up USSR is through welfare states
         SO: The problem is minimum wage laws, protectionism, income transfers, etc. – this totally screws up int‘l trade
         Funny thing: int‘l trade is about to take off in greater expansion in its history after 1954 – so he‘s just wrong (welfare state
          isn‘t a threat to int‘l trade)
         and his picture of 19th C is completely crazy – nothing like the depolitization of the econ was either attempted or achieved
         it‘s just a myth created to argue against welfare state, etc. – to set back the clock to 1914


11 Feb. 2009

         Calling CLT a langue means the following: it‘s not a right-wing laissez-faire ideology, but rather a body of concepts that can
          be used to produce a variety of diff. substantive legal regimes – a set of concrete specific rules (re: property, tort, contract,
          corporate, commercial law) – and these might be placed on a spectrum from more to less regulatory.
               o e.g., in the late 19th C, in the US and thru industrial world, workers‘ org.s (unions) developed a left-wing version of
                   CLT to attack existing labor rules and argue for new ones. As a gen matter, the state in late 19th C in industrializing
                   countries was firmly in control of corporate interests – so in general, the arg.s using CLT w/ a left twist failed.
               o and in the second wave of legal reform, the reformers like RP presented CLT as right-wing conspiracy – and said we
                   needed new mode of legal thought to get progressive reform. DK: But this isn‘t right understanding
         So: what wd be a CLT leftist thought position re: labor? Org.‘d labor proposed a whole series (all failed – not b/c
          incompatible w/ CLT but b/c org‘d labor had no power):
               o e.g. The ―independent willing subjects‖ in CLT means you shd never enforce a contract if there was
                   fraud/duress/undue influence/violence – peasants working for massive corporate entities
                         e.g. 1. in actual CLT, ―duress‖ etc. were unbelievably restrictive (e.g. in state of MA, there must be threat
                            of physical violence). Org‘d labor was arguing: the judges are deriving these concepts wrong. Let‘s do law
                            in a rational/deductive way: you can deprive someone of freedom thru duress w/o threatening phys. viol.!
                         e.g. 2. the labor laws of the late 19th C in all the industr. world start out making strikes illegal
                               reasons in CLT: strikes are conspiracies – illegitimately combine wills of workers to coerce
                            left-wing argues, also using CLT: the strike is based on absolute ownership of his labor by every
                   e.g. 3. everyone at the time is trying to prevent formation of labor org.s
                            right CLT says it‘s coercive, etc. etc. etc.
                            left CLT says… etc.
                   e.g. 4: bindingness of contract btw employee and employer
                            right CLT: cd. be binding
                            left CLT: cdn‘t be binding (or vice versa? may have missed)
         o anyway, these left CLT arguments generally lost until beginning of 20th C
   New topic:
   Savigny‘s scheme is less weird to us than it wd‘ve been to a legal treatise writer like Blackstone writing at end of 18th C
         o The way we look at law today does sort of correspond to the idea that there property, contracts, quasi-contracts
             (more like property than contracts), then family law.
         o But that way of slicing it up req‘d getting rid of the typical way of our understanding of society and law of
             the 18th C. – and many centuries before that in many legal traditions.
   The lat 18th C understanding of the social order reflected in law is that a basic building block of a society is a
    HOUSEHOLD, and it‘s org‘d both as an econ. unit and as a social/emotional/geological unit
         o husband/wife
                   note: wife can be corporally punished by husband, and husband has right to bring wife back if she runs
                      away: both on model of master/servant -> agricultural estate, see below
         o parent(father)/child
         o guardian/ward(adopted members of household)
         o master/servant
                   incredibly important, b/c this category is radically altered in 19th C
                   the idea is: a very large part of everyone who works for someone else is living in the someone else’s
                   tho this is ceasing incredibly rapidly in 18th C Britain at least as we move to factory production
                            arts, crafts, early manufacturing production
                            proprietor also has family working for him
                            which contributes to analogy btw wife, child, servant
                            servants in the household fit a wide variety of diff. characters, but all w/in general category of
                            so in much of Europe, the implicit model of the household is the agricultural estate/domain: w/
                                lord of the domain – and these estates contain multiple estates
                                     o no slavery in this system (it‘s been abolished) – but there is serfdom: a rel. btw
                                          master/servant, landlord/tenant, lord/vassal, in which the agricultural laborer (either alone
                                          or with his entire household) are understood to be ―not free‖: the household/tenant is
                                          ―bound to the land‖ = tenant does not have a personal right/freedom to leave the land. If
                                          you do, landlord can employ police to get you back.
                                     o and a large number of other diff. types of duties: providing hen at Christmas, etc.
                                     o and in this regime, the lord has duties to you too: reciprocal rel.: service and obediance in
                                          exchange for some forms of support and protection, and with a high level of security –
                                          you can‘t leave, but the lord can‘t really get rid of you either
                                     o also: you can be punished by whipping, etc. – corporal punishment
                   the household is also an urban phenomenon – in form of guilds
                            based on system of apprenticeship
                            not heridatary – rather: often contracted as a minor by your parent (who has power of father over
                                child) – and as apprentice, you are member of household, can‘t leave (if try to leave, can be
                                brought back by force)
   The above contains a langue: the langue of monopoly/unfree labor modeled on household: (me: the langue can be applied in
    paroles of parent/child, master/servant, etc.): and there are a million different varieties of rules re: when corporal punishment
    is okay, what forms it can take, etc.
   And this langue is what is abolished in Savigny: this is accomplished in a series of steps that pull it apart into its different
    elements. Note:
         o his change is a long, slow consequence of political events: French Rev and Napoleonic Wars
                   this will be true of every transition in legal consciousness: have roots in political change
         o e.g., Meinecke opening para: Stein is contemplating the reform of Prussian agricultural, a system in which peasants
             are unfree, of the type just described. Why is he considering this in 1807? Germans just defeated Napoleon at Jena
             (or vice versa?). Created duchy of Warsaw, which Prussia is all around. Stein is responding to Napoleon‘s liberation
             of Poles, briefly existing Polish nation-state before it disappears again:
        o Abolishing all kinds of restrictions, serfdom, etc., and the household is therefore reduced to
             husband/wife/children. Now peasants have freedom of contract… apprentices can quit, can‘t be physically brought
             back (tho may be liable for breach of contract or withholding of some part of wages). And restraints on ownership of
             agriculture are gone, etc.
        o This is all a transformation that Napoleon spreads across Europe.
        o The transformation dsn‘t require changing your government – it‘s a level below that –
        o But it always has const‘l conseq.s – b/c the guilds, monarchy, etc. – their relationships are always laid out in Const.
                   e.g.: new Const. can still have House of Lords, but it will little by little become an expression of democratic
        o This transition takes us from feudalism to mercantalism, etc. – also called ―the liberal revolution‖ – based on rights
             of man, equal rights for all citizens, democratic participation rights, etc.
   So: when Savigny is describing his system, it’s that system.
   CLT is the legal langue of the liberal transformation of that order. (Though the political transformation – French Rev., etc. –
    precedes the legal transformation)
                   [sidenote re: above: husband-wife is the core out of which the other relations are modelled]
        o By the time of Savigny, in the wake of the Fr. rev., the following are reconceptualized as free contractual rights and
             absolute property rights:
                   Master/apprentice (guild)
                   Master/servant (agri. estate)
                   Landlord/tenant (serfdom) master/serf
        o BUT: Husband/wife remains.
                   Savigny‘s category of family law.
                             note: CLT cd’ve been reconceived – marriage as wholly contractual, children as property, or
                                contractual-style autonomy for children as we see increasingly today, etc.
                             but that‘s not what happens
                   Instead, husband/wife is made less like an economic relationship
        o So: there‘s a polarization: an intensification of the exceptionalism of husband/wife
        o We have now arrived at the bifurcated internal structure of CLT, in which:
                   potentialities law (indiv auton will leading by deduction to duress rules, fraud rules, force rules, absolute
                       prop rights, some def of freedom of contract, etc. – market rules following logically from their conception)
                   v. family law (based on partially defined person, organic unity of man/woman, parent/child in larger
                       species reproduction process, with morality as major component)
                             1. it‘s minimal (largely outside the legal order)
                             2. compulsory (you can‘t just agree btw you and your wife that it‘s okay to beat her w/ something
                                when the conceptions of your people says it‘s not)
                             3. and varies from country to country (each people has a diff interp of what is natural –
                                polygamy in one, monogamy in another; what you can use to beat your wife)
        o CLT allows the development of a discussion of labor relations in market terms (can be used by both right and left)
                   note re: feminism: 1st-wave feminism in 19th C. (JS Mill, Stanton, etc.) begins w/ CLT
   Within CLT law of the family, you find consrevative and liberal camps in every country (though Catholic countries seem to
    be more conservative, Protestant/N. Europe more liberal/egalitarian, US even more liberal). Same debate in each society:
        o custody: old system gave father virtually total custody, versus CLT (morally relative, culturally independent,
             Savignian system) provides arguments either for custody by either, or for women
                   based on strong maternal attachments?
        o marital property: the trad. regime (which Sav. just takes for granted) is one in which directing/paternal power of
             husband means that wife can‘t act legally except through him, and her property is merged w/ his property, under his
             control, versus CLT can attack this
                   sidenote: even in trad. system, unmarried woman over 21 has rights of man
        o divorce: property regime: to what extent does wife own herself, v. husband owning her? e.g., to what extent can
             husband bring wife back by force? CLT can chip away at this so that wife can‘t be brought back – she can be
             ―granted separation from bed and board‖ (still married to him, but outside his physical control)
        o marital chastisement (i.e., wife-beating): we can either say right to wife-beating is great by Sav.‘s model or not
        o a million other examples – and as this system globalizes:
                   exactly the same issues arise in each legal system (the langue governs),
                   and the solutions use the same concepts (langue again),
                   but you can stretch them out on a spectrum that closely corresponds to the right/left spectrum on the
                       economy (egalitarian/horizontal model w/ contract seen as central, power of property marginalized, intense
                       concern w/ duress; OR: traditional model)
                   b/c family law is a domain that is directly opposite to but adjacent to the market
   Today‘s readings:
               o     Meinecke: much older, but influenced CLS
                           agricultural context, based on household
               o Steinfeld: classic CLS
                           guild context, based on household
               o Siegel: very crit-influenced legal historian
                           family law, based on same household model
                           19th C family law is torn within its nonmarket conception between two ideas (which she mentions)
         Similarities btw the three pieces:
               o ORIGINS: they all start w/ the household model
               o TRANSFORMATION: then describe a transformation (liberalization)
                           first two: toward contract
                           third: toward giving wife more autnoomy, just the way workers/serfs have gotten it
               o BUT: all 3 authors have a distributive idea – another dimension where the 3 authors make an incredibly similar
                     point – agricultural guild system, Anglo-Saxon indentured servitude system, husband/wife system
                           there‘s a similarity in the outcome: how well the parties really do in the end
                           (similarity comes from 3 authors belonging to same intellectual tradition)
                           Meinecke: the landlord/tenant, etc. relation is transformed, but…
                           Steinfeld: the master/servant model is transformed, but…
                           Siegel: the patriarchal ideal is transformed, but…
         Q: what are the “but”s here?
               o Meinecke: those w/ econ. power beforehand (nobility, church) just had their power increased – got compensation,
                     bought up peasants‘ land, peasants had to move to cities, be exploited as proto-industrial laborers
               o Steinfeld: employer no longer has obligations to take care of laborers, eg. disabled servants – and workers are now
                     subject to ―economic persuasion,‖ may be no more free
               o Siegel: husband no longer has right to beat wife, but can still beat wife w/ ―privacy‖ justification now
         In all situations, a replication of the pre-existing power structures (despite change in formal legal structures)
               o inequalities that were there before are still there
         BUT: all three reservations also contain a reservation:
               o Meinecke (1911): handicrafters and peasants may really be worse off, BUT: Germany is now 3rd largest economy in
                     world! Breaking from feudal order allowed massive economic growth! Allowing Bismarckian welfare state, etc.
               o Steinfeld: quoting his God, Weber: Weber leaves out the possibility that under this juridical equality regime, it might
                     be the case that the employer wd be screwed (which wd be much less likely to happen under previous regime) – e.g.,
                     unions putting employers under duress
               o Siegel: she clearly thinks that wife-beating has been radically delegitimated and restated as something that low-class
                     people and recently-freed slaves do: even if this is racist and classist, it‘s still a radical reordering


16 Feb. 2009

Two exercises in understanding CLT:
    What are these essential characteristics of CLT? (understood as a langue)
            o 1. powers absolute w/in their sphere
            o 2. deductive method
            o 3. public/private distinction (we haven‘t discussed so much, will today)
    so: Today:
            o First, CLT in private law: taking the materials from the last two classes (Pound: the will theory in the law of the
                 market; the household and what happened to labor law/the law of the peasants/family law as it got caught up in CLT)
                 and putting them together
            o Also: CLT in Con. Law
            o Also: CLT in Int‘l Law, public and private

     In CLT, law is either categorized as public or private law
           o This by itself shows the importance of the distinction
           o His thesis: the distinction is reiterated w/in both private and public law: w/in both, some parts are more private,
              some more public (i.e., w/in private law, there‘s a part that‘s more private, a part that‘s more public)
                    What he calls this is ―nesting‖: the distinction that is so crucial at an abstract level is then used w/in the
           o Note that this distinction isn‘t present early on: in common law and French law in 18th C., the distinction between
              persons and things is more important: this is the starting point categorization: some parts of law are of persons (incl.
              officials, husband and wife, King), other parts of things (vast array of diff. types of property arrangements).
   Flowchart on board:
                 Individual
                 Will
                 State
        o II. Public
                 Criminal: rules about what the state does to individuals when they commit crimes
                 Administrative: mixed:
                          involves both intrastate (internal) relations, the relations among administrators (e.g., the
                              governance of the educational system)
                          and the relations between individuals and the administration
                                   o NOTE: he‘s distinguishing these categories of public law based on public/private
                                        distinction: criminal law is more private than constitutional law, and admin. law is in
                                        between – [not a distinct new category, but rather in between them on a spectrum]
                                   o Illustration of how the public/private distinction goes way beyond the top-level
                                        distinction between public and private law
                                   o The public/private distinction really organizes all thinking about law in CLT
                 Constitutional: intrastate relations: sep. of powers, etc.
                          Sidenote: nowhere in Dicey‘s discussion of Con Law does he mention a right of the individual vis-
                              à-vis the state. (Except when he‘s talking about the validity of public acts. But even this isn‘t about
                              the individual‘s right.) Even though this is probably the single most important category of public
                              law in many people‘s minds today.
        o III. Private [protection of the will of each party w/in its sphere]
                          note: when we try to subdivide private law, we also end up doing it based on public/private
                              distinction – though it‘s less intuitively obvious here than in public law example above
                          note: some rules of private law are generated by the parties, by private will; other rules of private
                              law are generated by the state
                                   o in pre-classical legal thought, 18th C. legal thought, they were obsessed w/ distinction
                                        between persons and things
                                   o the equivalent obsession in CLT is btw contracts and torts
                                              contracts: the domain of the will of the parties [thus more private]
                                                         the law through which the state provides protection to the wills of indiv.
                                                            parties when they are in accord and choose to establish a law for
                                                         this makes it the quintessence of the private in “private law”
                                              tort law: [note: no torts books until after 1850 in US or England, common law
                                                  countries – rather: forms of action: trespass on the case, assumpsit – books
                                                  listing the req.s for succeeding based on that pleading categories… Torts only
                                                  emerges with CLT. They begin by explaining that tort law is a product of the
                                                  will of the state re: how injuries shd be compensated.]
                                                         early 19th C., part of the law of obligations, along w/ contract,
                                                         which is understood through a pretty bizarre construction: if you
                                                            commit a tort, you have an ―obligation‖ to your victim to compensate
                                                            out of your assets the diminution of the assets of the other,
                                                         tort norms represent the will of the state as opposed to the will of the
                                                            parties [thus more public]
                                              note: property ends up being understood as variants on contract (transfer of
                                                  property), or tort (re: trespass, nuisance – based on the will of the state)
                 K [contract]
                          O/A
                          Consid [consideration]
                          Also: [missed location of this]
                                   o pre-CLT: implied (quantum meruit) v. express contract
                                   o CLT: distinction between true contract (by will of parties, or the facts allow us to infer a
                                        contract willed by the parties – inference from conduct) and quasi-contracts (based on
                                        unjust enrichment, v. agreement – implied in law, it‘s not inferred at all)
                                              note: what‘s the difference between a tort and a quasi-contractual obligation?
                                                  former involves duty of care owed to the world, versus latter is duty of one
                                                  person to another person as a result of something that‘s happened in the
                                                  relationship between two people
                                   o    the point being: true contract v. quasi-contract is once again the public/private
                                        distinct: quasi-contract is public, true contract is private
                           Note: CLT understands labor as private relations; i.e., labor migrates into branch of contract (what
                               we studied in previous classes)
                                    o what about husband/wife, parent/child?
                                    o in Savigny, rem., the diff. between family law and potentialities law (incl. both
                                        obligations and property) is that former is
                                               very moral (not just matter of individual will),
                                               highly variable according to diff. Volksgeists,
                                               and it‘s compulsory (husband/wife belong under quasi-contractual
                                                  obligations, can’t be modified by a contract)
                           Note: trusts: like contracts, either express or implied: a constructive trust is an obligation created
                               by a court/the state for one person to take care of estate of another based on something that
                               happened between them, not a contract. (Like quasi-contract.)
                           What about the law of marriage?
                                    o That‘s contractual.
                           What is a status? A relationship that you might either be born into or contract into. And once
                               you‘re into it, you can‘t leave it at will.
                                    o So: on the public side of the public/private divide, a distinction btw contract and status.
                                    o Marriage, citizenship, alienage, soldier, child is a status. (None of these can change their
                                        rights/duties, e.g. the terms of their citizenship, though they can change their status.)
                                               the enlistment contract is on the private side
                                               but once you‘re enlisted, you have the status of a soldier
                                               again, public/private distinction gets reiterated over and over again
                                               [note: many people view modern family law as the contractualization of what
                                                  was status: back then, you couldn‘t alter the terms of the relationship, duties,
                                                  rights, etc., though you cd leave the status altogether through divorce – now, w/
                                                  prenup.s, you could alter the terms]
                  T [torts] [note: even within tort law, the public/private distinction gets reproduced again]
                           N [negligence] [more private: requires fault/negligence, a quality of the will, an internal state]
                                    o and even within the law of negligence, there is a discussion re: whether negligence is
                                        subjective (private version: you have chosen to be negligent) or objective (public
                                        version: reasonable person test, where your subjective state doesn‘t matter)
                           SL [strict liability] [more public: independent of the will, irrespective of the internal state of mind]
                           Also:
                                    o -> QK [quasi-contract: see above]
                                               (H/W) [husband/wife]
                                               (Master/Servant)
                                               (Const. Trust)
                                    o -> STATUS
                           [sidenote: this structure is coming from rationalizing law professors who divide
                               up/categorize/rationalize the existing law based on public/private distinction:
                                    o e.g., Wigmore saying: ―I‘ve found the secret structure of the law‖ – and then his way of
                                        organizing it gets picked up by other law professors, this is how it gets taught – even
                                        though the way he organizes it isn‘t reflected in any code at that point]
                           [The French civil code is still totally organized around the person/thing distinction that the
                               public/private distinction replaced – everything sticks around through these stages.]
                           [we‘ll see later the social critique of the public/private distinction]
        o IV. International Law
                  Contains another example of the nesting of the public/private distinction:
                           Public: the relations among states
                           Private: conflicts of law – governing the relations of individuals in a multi-state system
   The key idea above: the will theory of CLT radically distinguishes btw public and private will, and uses this distinction to
    subdivide all the legal order, thereby transforming the 18th-19th C. conceptions that constantly blurred the distinction rather
    than accentuating it.
   DICEY: 20 minutes to summarize CLT Con Law:
        o late 19th C theorization of Con Law
        o like Savigny, absolutely fundamental
        o the beauty of the text is that it allows us to look at CLT in Con Law
        o we cdve done the same thing w/ Crim Law (talking about the internal ordering of Crim Law w/in CLT)
o   Here‘s the idea of a langue: as Dicey sees it, there are 3 completely intelligible systems of Con Law that exist in the
    world today: two are consistent, one is paradoxical and weird (naturally, the French):
          The ways that are British and American may be good or bad, but they are totally coherent
          The British way is really good!
          Another is appropriate for a peripheral, squirt nation that has so little responsibilities, it dsn‘t need a
              functioning government – also based on legalist, delusional char. of Amer. citizenry
          Clear ranking:
                    British
                    American
                    The British empire
                    The French
o   Parliamentary sovereignty: CLT idea, but only barely: it‘s not very CLT, b/c there‘s no sphere other than Parl. In
    CLT, there‘s a horizontal order of spheres and a vertical order of deduction. In Dicey, Parl. has no horizontally rival
o   Parl‘s sov.ty:
          1. it can change any law
          2. no categorical distinction btw fundamental and ordinary law
          3. the absence of any other law-making body exercising review/restriction of an Act of Parl.
o   He says: You can deduce the system from… (missed) [he uses the word ―deduction‖]
o   Where CLT really gets reflected (horizontal and vertical) is (his examples of non-sovereign lawmaking bodies):
          1. institutions like railways
                    making bye-laws, invalid if conflict w/ higher-level lawmaking body
          2. colonial administration
                    quasi-autonomous, soon-to-be-Commonwealth territories like Canada, etc. Settler colonies v. non-
                        settler colonies:
                             o latter = direct rule by Brit. administration;
                             o former = white settlers given on racial grounds a signif. ground of autonomy, given own
                    note: one mode of globalization of law
                    [colony laws… missed] [absolute power w/in own sphere (tho. if it exceeds that sphere, can get
                        struck down)]
                    throughout this discussion, please note: Dicey uses the word ―sphere.‖ Pretty good for DK‘s case!
                        Savigny saying: what is right? the absolute power of indiv. will w/in its sphere consistent w/ the
                        like freedoms of everyone else.
          3. federalism
                    For Dicey, US = federalism.
                             o (& Swiss are just the same as US)
                    sphere of the federal power v. sphere of state power
                             o role of fed. judges is to police the boundaries of these spheres
o   me: Key of above: the idea of “absolute power w/in its sphere” reflected in horizontal and vertical relations
    between law-making bodies in Dicey
          so: this horizontal/vertical “sphere” idea is another aspect of CLT langue, like the public/private
o   THEN: The French system: even the definition of an anomaly depends on CLT
          the Const. is above ordinary legislation
          legislature can‘t make any law
          however, according to Dicey, there‘s a deductive consequence of a conception of a subordinated legislature
              w/ a higher Con. Law which is that there has to be somebody outside the leg. that can enforce the req.s of
              Con Law against the Leg., which, in the Amer. system and Swiss system is the court – the Const. court.
              This is the reason Amer/Swiss systems are inferior to Brit: req. everyone to bow down to judges (who are
              influenced by politics, rather than being based on strict legal reasoning).
          Note: French system is dominant system in the world – has existed since Fr. Rev.
          French get worse of both worlds: the only enforcement is by public opinion. Nobody can really enforce the
              rule. Fails to create either a boundless sphere of absolute power w/ no ―outer,‖ or a system of powers
              absolute w/in their spheres. Rather, a mishmash of the two. Which Dicey calls paradoxical.
o   Note: As CLT passes through long period of the social, Con Law will be radically in eclipse. However, beginning in
    1945 w/ independence of a large part of the British and French empires, and the Amer. empire, there will be a giant
    switch from Brit/French model to Amer. model. So: the Amer. anomaly becomes dominant: jud. rev., sep. of powers,
o   Note: Dicey: between Dicey‘s 1st and 8th Edition comes the Lochner Era in US – the US Supr Ct taking over the
    right to enforce individual rights (freedom of contract, absolute property rights, etc.) – these abstract rights, being
                   enforced against the states, thru the Constitutioanlization of the bill of rights. Striking down laws as
                        In US, con law theorists thought this was req‘d by CLT
                        but nowhere else in the world did it exist
                        BUT: it‘s the anomaly that will become the rule.


17 Feb. 2009

         Yest: Is there a particular CLT mode in Con Law in the core countries where CLT originates? (Germany, France, Britain,
          with US as near periphery)
              o so: we‘d look at Con Law in second half of 19th C and ask: are there similarities btw this and the core of CLT,
                    private law?
              o DK‘s arg. was: yes – we see in Dicey (as representative of later 19th C CLT Con Law) a quite elaborate
                    resemblance to Savigny‘s approach to private law: similar structural traits
         Today, we‘ll do the same exercise w/ Public International Law
              o private law CLT:
                         indiv. rt-holders as powers absolute w/in their own spheres – the will theory;
                         deduction;
                         and public/private distinction as a way to organize the system
              o Con Law, in Dicey:
                         analogy 1: sovereignty as absolute power, a category that expresses itself in the will of the sovereign –
                              parallel to property in private law
                         analogy 2: you can deduce the characteristics of the system by asking whether Parl. is sovereign or non-
                              sovereign – Dicey‘s method is overwhelmingly deductive
                                    the Constitution is understood in a way that bears a striking similarity to Savigny‘s theory of
                                        modern Roman Law: two diff. types of Con Law forms that are characteristic:
                                    those in which – [DK: all of this is fun – dsn’t have to be very analytically tightly mastered –
                                        rather, loose analogies]
                                             o Note: for exam, play this game: define parallel categories, show how various things are
                                                  paroles in various langues
                         note: Dicey establishes a third category (where higher body grants authority to make laws w/in its sphere,
                              tho courts will strike down any attempted lawmaking outside of its sphere), with three examples:
                                             o private corporations given public powers by Parl.: in corporate charters
                                                        RR can create fare regulations
                                                        but if RR tries to pass health regulation, court will strike it down as illegal
                                             o system of administration of the British Empire
                                                        Parl. gives Governor and counsel power to pass colonial law w/in some set of
                                                        but if they pass a law re: criminal law protection of English subjects operating in
                                                           India and it goes over line, illegal
                                             o the American federal system
                                                        sovereign people laying down Const. binding on court
                                    so even here, a very close structural analogy to the private law system – each of these three has
                                        absolute power w/in its own sphere
                         Ways in which the concept of sovereignty can be articulated:
                                    complete legislative supremacy = British
                                    complete legislative subordination + no judicial enforcement = French? (missed)
                                    the anomaly of the French model
                                             o to view this as an anomaly is itself reflective of CLT approach: it’s only anomalous for
                                                  Con Law to be seen as higher law but not to have judicial review b/c this disregards
                                                  the model coming from private law, the idea that the function of judges is to enforce
                                                  the boundaries of spheres
                                             o we cd adopt another POV under which saying ―this law is fundamental, but we‘re not
                                                  going to let judges enforce it‖ isn‘t paradoxical at all: why should it be?
                         [missing something, categories not clear to me]
                         Dicey‘s ground for viewing British superiorty over American is also reflective of CLT:
                                    The problem in Amer system is that boundary btw law and politics will be blurred: judges will
                                        attempt to decide deeply divisive societal questions by abusing deduction, basing decisions on
                                        morality v. pure deduction from law
                                             o [sidenote, missed: Amer. Con Law of late-19th C. fits CLT even better than Dicey]
   DK: (re: student Q: What are alt. theories to explain similarities between these different areas of law?)
        o Alternative explanations:
                     1. National legal culture
                     2. The inherent properties of legal fields
        o E.g., in Amer Con Law, a typical way to describe its transformations in 19th C is as a function of Amer history.
              Why do we have federal system? B/c of 13 colonies, problem of slavery in Amer S. Why move away from this in
              1930s? B/c of move from agrarian to industrial/national economy.
        o DK‘s response to this is: look at the striking analogies btw Amer tort/contract/property/fed.ism/judicial rev./indiv.
              rt.s re: state.
        o Not really a Q of scientific validity.
   Also: alt. explanations of the globalization/spread of law across territories:
        o 1. Again: DK‘s way here = nothing original: straight coercion to unequal treaties to prestige as mechanisms of
                     e.g., no one disputes importance of colonization – that cuts across all explanations
                     the original part of what DK is doing is what he sees in the three periods, and seeing them as very distinct
                         (CLT, the social, modern)
        o 2. Watson‘s theory of transplants: a critique of/reaction against dominant mode of thinking before Watson
              (functionalism – the idea that diff cultures confront similar problems, which lead to similar legal solutions –
              me: a good idea?)
                     focused on phenomenon of random contact
                     quite influential for last 20 years or so, but now fading fast
        o 3. civil law v. common law as very importantly different, and spreading distinctly…
   Reasons for why CLT would spread across so many different legal categories: e.g., how does Con Law get pulled into CLT?
        o 1. the domains of law (e.g. Con Law) are getting constituted in part by the people who are trying to develop it as an
              instance of a more general approach
                     so: Con Law is a characteristic CLT category, associated w/ Hawbsbawm‘s histories of people‘s
                         democratic expressions (missed) as reflecting the powers of people absolute w/in their spheres
        o 2. missed
   PUBLIC INTERNATIONAL LAW: ANGHIE: working out the reductionist CLT correspondences:
        o Just taking the first part of Anghie‘s (sp?) text – the part defining 19th C. – these 5-10 pages
                     Note: Anghie – the punk – DK‘s student – doesn‘t use category of ―CLT‖ – calls it ―positivism‖
                               DK: doesn‘t mean anything. What he calls ―positivism‖ = CLT.
                               at the time he‘s writing all this, PIL field uses the term ―positivism,‖ and he needs to talk in their
                                 language in order to get tenure. They all see there being ―natural‖ period, then ―positive‖ period,
                                 then modern period critiquing positivism
                                      o from our perspective, this is yet another example of bad thinking: like thinking Amer.
                                           contract law is defined by the Amer. fronteir
                                      o ignores the deep similarities between 19th C PIL and other categories of law
                     So: when he says ―positivism,‖ has nothing to do with ―positivism‖ in legal theory
        o Exercise: what are the parallels btw what Anghie calls ―positivism‖ (late 19th C PIL) and what we‘ve called CLT?
                     1. WILL THEORY: The sovereign (individual state) = power absolute w/in its own sphere
                               DK: The will of the sovereign in PIL is analogous to the will of the individual in private law
                               CONTRACT: A treaty is secured/created by the wills of two sovereign parties, just like a
                                 contract in private law
                               PRIVATE PROPERTY: Territorial sovereignty = individual’s sovereignty over private
                                 property (the quintessential individual right in Savigny, the power of the individual over his
                                 private property)
                                      o Positivism: it‘s territorial, it‘s got obligations
                     2. ―Scientific‖ ideal animating positivism:
                               as in Savigny: before deductive part, you have to do inductive part: positivists did this, looked
                                 at practice/customs of countries, drew principles from these – the jurist deduces application of
                                 norms from inducted principles
                                      o just as Savigny believes law is actual concrete body of customary norms derived from
                               my point re: analytical school positivists having trouble w/ historical school observation of law-
                                 like things in non-Euro cultures – because of primacy of deduction, they ignored these things,
                                 found elaborate ways to deny the existence of law in non-Euro cultures
                               deductively drawn from their own pasts: the states in their sovereignty are primordial
                     3. Break down PIL into categories: treaties (more private) v. custom (more public)
                               so custom less like real law – which is precisely how Austin viewed it
                                      custom is just morality (as family law has a lot do with morality, and morality as the other of law
                                       in CLT)
                                    society shapes custom, just as family law was shaped by historical/cultural/non-legal factors
                                            o (Colonies as similar to families: not granted autonomy?)
                          Also: parallel to private law nesting, and every tier in Con Law having parallel power (Parl. absolute w/in
                             its sphere, RR absolute w/in its sphere, etc. – nested)?
                                    What is nested here? – broken off, DK decides not to pursue that
               o   A comment on Anghie‘s discussion: he points out that John Austin (noted already re: globalization of Savigny –
                   English student and protégé of James Mill, JS‘s father, and of Bentham – who goes off to Germany to be the
                   utilitarian‘s legal guy – Savigny is teaching in Berlin, unclear whether he went to that course – JA absords legal
                   thought of the period incl. Savigny – lectures, no one comes, etc. see above) is the founder, w/ Province of
                   Jurisprudence Determined, (following Hobbes), 19th C Brit. positivism – opposed to Catholic natural law ideas,
                   natural liberal rights ideas – sees law as command of sovereign backed up by threat of sanction.
                          Austin‘s jurisprudence is the study of basic concepts of law.
                          Austin‘s utilitarianism and his positivism – those ideas are radically not general in CLT. CLT includes
                             Catholic natural lawyers, Kantian, Savignian/Maine historical jurists, etc. Remember Pound article. You
                             can be an English positivist and still be a CLT about powers absolute w/in their spheres, will theory,
                             public/private, induction/deduction.
               o   SO: one of the most interesting things that Anghie points out: the British international lawyers have a problem b/c
                   according to Austin, what they‘re doing isn‘t really law.
                          Their general CLT approach/moves corresponds to Austin‘s CLT approach
                          But their IL is, according to Austin‘s concept of law, not law
                          Their move: IL is the concretely identified customs of the civilized international community – just what
                             Savigny says law is re: Volksgeist. The civilized community is like the people w/ a Volksgeist. Jurists
                             then deduce legal principles of IL from these inductively arrived-at norms.
               o   Last note: the globalization process here: of 19th C PIL – we‘ll be discussing tom. one of his four categories – four
                   ways of establishing dominance of Euro over non-Euro:
                          1. treaties
                                    Note re: unequal treaties: you get out of treaties by establishing that you have become civilized
                                       and thus no longer have to be bound by treaties that humiliatingly treat you as less than equal. (as
                                       in China, Ottoman Empire, Thai, etc.)
                                    An important dimension of this process is that it creates pressure for globalization of
                                       Western legal norms.
                          2. colonization
                                    (missed: secession?)
                                    annexation
                                    conquest
                          3. establishment of protectorate
                          4. admission to the community of civilized nations
               o   These are the four processes of spread of law here
               o   The existence of classical PIL, because of its internal langue quality (not an ideology, not a philosophy) – a milliion
                   different norms/arguments can be made – classical PIL consciousness – absolute will of the sovereign, treaty-
                   making, deduction – turns out not to be deductive at all – you cd deduce a million diff things about a treaty using the
                   moves in the langue.
                          and the Q of when will is free is just as problematic as it was re: labor and capital. (Labor saying labor
                             contract is unequal; women can say family contract is unequal) – CLT offers a million ways to fight back –
                             though, as a general matter, you‘re going to lose
                          there is a possibility of resistance w/in the discourse
                          this is one of the things that makes it seductive


18 Feb. 2009

Lat. Amer. guest lecturer

(in context of IL on one hand, and in context of emergence of int‘l legal regimes on the other)

         4 QUESTIONS:
             o 1. How and when did IL become global legal order?
             o 2. What is the nature of the process of globalization?
         o two other questions – he claimed they were on handout, but they aren‘t
         o anyway, nevermind
   basically, saying international law was constituted by things happening in semi-peripheral states, esp. semi-peripheral
    lawyers appropriating Euro IL (not just created by the core! not origin in Europe as everyone thinks!)…
   Two stories of IL:
         o Anghie: expansion through imposition: IL expanded when legal rules of IL, etc. were imposed outside of Europe –
               to do colonialism or informal imperialism
                     does not explore what were actually the rules of IL – can‘t distinguish rules that justify colonialism v. rules
                         that enable nonWestern states to increase their bargaining power – can‘t identify agency in non-Western
                               me: really?
                     sometimes non-Western states got better deals, other times worse deals – why?
                               e.g. Mexico getting preferential treatment for ten years in Britain (better); v. following year,
                                   Brazil‘s treaty established consular jurisdiction (worse) (usu. associated w/ capitulation and treaty
                                   ports, extraterritoriality)
         o more trad. view: expansion through inclusion: IL coming about when non-Euro members were recognized as
               states or whatever
                     does not explain from historical/social-legal POV how lawyers in non-Euro areas were pressured to adopt
                         IL rules – why some did, some didn‘t; why they adopted the rules they did
                     also, does not account for pre-19th C IL: the conception that IL is European and globalized in 19th C is
                               me: really?
   v. his view:
         o IL became global/universal only when semi-peripheral lawyers appropriated the Euro IL trad
                     also: extraterritoriality isn‘t a Euro invention – e.g. in Egypt reading today, we see that Ottomans got
                         extraterr. idea from Romans… The same story can be told in China: extraterr. existed in the legal history of
                         China b/c of its complex interethnic composition
         o (b/c Euro lawyers in 19th C. didn‘t want IL to be extended to non-Euro states: invented distinctions like
               civilized/uncivilized to exclude them)
         o IN A NUTSHELL: He wants to put agency on the side of the periphery, versus only being on the side of the
   Spectrum: from sovereign/equality to inequality/colonialism
         o Sovereign/equality:
                     Latin Amer., Greece, Ethiopia
         o Legal and political equality
                     treaties of amity, commerce & navigation?
         o Political participation + legal inequality
                     Capitulations
                     Ottoman and Russian empires
         o Political & legal inequality
                     Treaty port system
         o Inequality/colonial rule
                     Japan/China/Siam/Persia
   RE: QUESTION 2: (?)
   The move from naturalism to positivism (in 19th C Euro IL thought) is a move to doctrines (e.g. of ―civilization‖ and
    ―recognition‖) that created greater inequality between Euro and non-Euro, and pluralism btw Euro/non-Euro relations (the
    variety of systems on the spectrum above)
         o Before 19th C was equality, after 19th C is inequality – partly b/c of changes in Euro intellectual history, partly as
               result of West negotiating with the gun
   How did the spread take place? non-Euro lawyers appropriated the doctrines:
         o 1. non-Euro lawyers internalized the standards of Euro courts, etc.
         o 2. missed
         o 3. displacing the inequality inwards: saying, we‘ve got our own barbarians, we‘ll transfer IL to them
   also, non-Euro lawyers created the identity of the ―international lawyer‖ – ―if int‘l is global, you have to have me in your
   non-Euro critique of CLT: you say it‘s ―scientific,‖ but it‘s really just your religion
   this is all so much nonsense, incoherent mishmash of unparallel topics, hodgepodge of contexts and poorly phrased, unclear
         The main lesson of the story: The relevance of IL today is to be explained by the disappearance of this specific identity
          of the international lawyer who participates at the professional centers of the discipline and political centers of the
          world and yet at the same time is able to assert a divergent strategy.
               o Absurd: why does this sentence start with ―the relevance of IL today‖? Untangling the tangled logic of this claim
                    would take more effort than any conceivable product of doing so
         His nonsense, unparallel chart is precisely reflective of the ineffectual disorder of his thoughts
         Also, as students are now pointing out, speaker‘s perspective is entirely pro-Latin America (where he‘s from), giving the
          semi-peripherals there (like him!) great agency – key players in the creation of IL! – versus peripheral lawyers (like the
          students asking questions and lawyers in their countries in the past, fully colonized countries) still having no agency…
         like a parody of a Marxist intellectual

    note: the interwar period (btw WWI and WWII, when latter two articles were written) is when the capitulations were called
      into question

    A great weakness in world-systems theory: from Wikipedia:
          o ―Fernando Henrique Cardoso summarized the quantifiable essence of dependency theories as follows:
                          * there is a financial and technological penetration by the developed capitalist centers of the countries of
                        the periphery and semi-periphery
                          * this produces an unbalanced economic structure both within the peripheral societies and between them
                        and the centers
                          * this leads to limitations on self-sustained growth in the periphery
                          * this favors the appearance of specific patterns of class relations
                          * these require modifications in the role of the state to guarantee both the functioning of the economy
                        and the political articulation of a society, which contains, within itself, foci of inartuculateness and
                        structural imbalance (Cardoso, 1979)‖
          o So: the nonsense leftist idea that ―periphery‖ countries would be wealthy (generating ―self-sustained growth‖) if
               only it weren‘t for the ―core‖ countries ―exploiting‖ them…
                     (as though the baseline were poor countries flourishing into utopias, rather than unending brutish nasty
                        short life w/o development)
          o When in fact, as an empirical matter, the greatest creations of wealth on the periphery have come from being
               ―exploited‖ more, not less. China and India have done much more foreign trade and gotten much more foreign
               investment than the countries in Africa and Latin America that have only broken even from globalization, or have
               suffered as a result of it.
    see Stiglitz


23 Feb. 2009

Exactly what did the transportation of metropolitan law into the colonies accomplish?
     DK loves this article
     3 different attitudes that the English colonial governing class adopted (two put in practice, one only theoretical) – applies to
        Engl. practice in other parts of world, and to Dutch and French colonial practice
     Article begins: somewhat paradoxical consensus in Indian legal profession:
             o Indian law is the product of a very aggressive British strategy of transformation of the Indian way of being in
                  relation to legal norms
             o on the other hand, over the course of Indian hist., this transformation has been assimilated/transformed/integrated
                  and made in some complex way coherently Indian rather than being just something sent from England
     BUT what isn‘t specified, oddly: (missed: the political structure of pre-British India?)
     What the article does say is: how are we to underst the relationship btw this system and the prior system?
     The frame that‘s offered for understanding the system before the British is that it‘s a 3-tiered system:
                        note: this is the system of Hindu legality, broadly perceived – but the article dsn‘t provide a political
                            account – it lays out the 3-tiered Hindu system (analogized to three levels of weather), it dsn‘t politically
                            explain what the political organization of the subcontinent is at the hypothetical earlier moment (early 17th
                            or 17th C.) –
                        we do know that there‘s a Moghul empire: all the north of India is ruled by Muslim empire and a small
                            system of kingly/princely states
                      and we assume that this must have a lot to do with the enforcement of norms, locals trying to recruit
                       political leaders to intervene in their affairs
                   the significance of Islam in this system is never specified
                             (tho we will in tom‘s class – ½ of assig. is about Muslim law in the Maghreb and the strategies of
                                 France as a colonial power w/ respec to Muslim family law)
         o I. top level: jet stream: dharmasastra – presented as a kind of ―wisdom literature‖ (collection of writings, presenting
             idea of what a just society is like) – it‘s not the most abstract principles from which more concrete principles of a
             legal order is derived – it‘s a body of literature: principles, events, etc., designed to show us/train us to understand
             what justice is.
         o II. second level: administration by these not-described political entities of pre-British India – these state apparatuses
             are run by rulers, officials, issuing regulations making decrees to govern population that they rule – also capable of
             intervening in a local dispute – e.g. between castes or villages. There are officials with power, but they aren‘t
             understood as specialized courts – no diff. than the standards that a wise/equitable ruler would use (thus related to I.).
         o III. village level – again, very briefly described – local dispute-resolution mechanisms, based on local village custom
             (both modified by e.g. very specific decree of ruler, thus related to II., but also informed at some altogether
             unspecified level by the wisdom lit that is supposedly inspiration for the work of justice for the whole society, thus
             related to I.)
   SO: the 3 levels are related to one another, but not bureaucratically. (Not like you can appeal from III. to II.)
         o e.g., you can appeal to dharmasastra in an argument, but you appeal to it in a diff way than you appeal to a very
             specific regulation
   [sidenote: author = man]
   THEN: British colonial rule when it‘s still the East India Company – late 18th, early 19th C.:
         o First strategy: An attempt to fuse or integrate the wisdom literature with the practice of administration to create a
             court system which will be like an early mod Euro court system, based on idea that judges are specialized officials
             (not just anybody) and apply a set of norms independent of them (not just their own equitable understanding). Note:
             also severing III. completely from the rest of the system.
                   BUT: The British have the idea that they‘re going to administer Hindu law
                   This is the interesting thing from globalization perspective, our concern
                   They‘re going to apply to HIndu population Hindu law – they presuppose that there‘s something analogous
                       to Brit law – a body of norms distinguishable from equity/custom that can be applied
                   they see wisdom lit as top layer from which the rest of it is derived
                   and the admin procedures (missed)
                   they hire assistants who are … (missed) who will give advice about what HIndu law acquires
                   and they‘ll then accumulate thru their common law precedential system a body of correct Hindu law that
                       can then be applied in the future.
                   DK: a basic problem: by the middle of first part of 19th C., there‘s a lot of controversy/critciism of the
                       Hindu advisors. By the beginning of CLT in late 1860s, the Brit cts get rid of the advisors and they now
                       understand and present their system as the body of case law that has been accumulated in the prior
                       experience to be interp‘d according to the Brit understanding of how precedent works. They decide that the
                       system is sufficiently complee and the advisors are sufficiently untrustworthy to get rid of them.
                   Now, at this moment of CLT, the Brit have ―Law Commissioners‖ (Brit theorists, academics, high ct
                       judges), put in charge of creating a codified Indian law – and these people who are put in charge are the
                       principle Brit proponents of CLT: Sir Henry Maine, Sir Fitzjames Stephen, Frederick Pollock – in the Brit
                       context, struggling to reform and classicize the chaotic and disordered body of the common law, where the
                       forms of actions (medieval pleading system) has just been gotten rid of (and now we‘re going to have
                       causes of action: property, torts, contracts, etc.), in India, these guys – underst as most advanced legal
                       thinkers of the Brit elite – and one thing they do (one thing that‘s characterisitic of CLT), they set out to
                       codify – to produce codes of Brit India (eg. Stephens produced codified Indian crim code).
                             [note: just to repeat the process we‘ve been through several times: what wd classical criminal law
                                 look like? how wd we ID a body of crim law as characteristically CLT? We already did Int‘l Law
                                 (nations as sovereign powers absolute w/in their spheres, treaties as equivalent of contracts, etc.),
                                 Con Law (the 3 models: Amer form treated as marginal is most CLT in Dicey: federal – powers
                                 w/in own spheres, etc.). In Crim. Law: the intense elaboration of mens rea, incl. insanity defense.
                                 Analogous to tort law:
                                      o the crucial element determinative of criminal liability is the quality of the criminal’s
                                           will –
                                      o and all criminal law is statutory and based on the will of the sovereign.
                             I.e., WILL THEORY: mens rea -> criminal will focus; and crim law as will of sovereign.
                                      o As long as you don‘t have a bad will or transgress against the will of the sovereign, you
                                           are free.
                                      o Overwhelmingly concerned w/ protecting personal autnoomy/bodily integrity.
   Other things that get codified in India: procedural, contract, admin law: A law of the market that is
    overwhelmingly based on a classicized version of the common law of England. (Written by the principal
    importers of German legal science into England. And their crit of the common law is that it conflicts in its
    chaotic messy way w/ rational deduction of laws according to will, etc.)
   SO: India ends up much more civil law (codified) than common law.
           characteristic of colonial enterprise everywhere
   THe elements of law most plainly connected to market, foreign investment, commerce, are very strongly
    incoporated through something that looks like a transplatn – though the process of transpl. is part of the
    transnationalization of law.
           e.g., when you set out to incorporate India into world market, you did it by having a crim law
              enforced from the cneter (which will ensure the econ rts/capacities of people who will be engaged
              in trade) –
           you set up the market as something that people can engage in whether British or Indian
           so: radical bifurcation:
                    o (in 2nd half of 19th C, this gets spread internatiaonlly – Dutch do the same thing in
                        Indonesia): the law of the market is transnational.
                              Pollock, Stephens, Henry Maine, as they develop codified CLT for India,
                                 they‘re (missed) – engaged in the classicization of their domestic law, and the
                                 transformation of Indian law.
                    o BUT there‘s another part of the story: in beginningof 19th C, this period, the colonial
                        powers make more and more explicit the gesture of saying: your local law is for you.
                              this ends up meaning FAMILY LAW. Religion is seen as part of family law.
                              Between family law and commercial law = law of property.
                              partly this is b/c colonial enterprise threatened to founder if family/religion law
                                 were changed
           What this says: what the colonizers really care about is the econ. dimension – and geopolitical
              (military) dimension – not family law/religion.
   NOTE: A very important qualification: all the colonial powers as they say ―we‘ll repsect your family law,‖
    all include an exception: unless they violate precepts of humanity, etc. (various formulations come up)
           widow-burning
           China: foot-binding
           Northern African: clitoridectomy
           child marriage
   At diff times, diff practices of colonized peoples have become centers of attention for the colonizers
   SO: in the middle of the bifurcation: land law
           a characteristic trait of the colonial regime: this is basically an agricultural law, and it‘s
              overwhelmingly oriented toward taxation
           colonies not a big welfare project of imperial states for their merchants: the colony shd be self-
              paying. And the great source of money for this is taxes. And the only obvious large-scale methods
              of taxation are (missed: Land?) and tarrifs.
           Each empire a free trade zone – but charges tarrifs on the other empires
           So every empir has to figure out how they‘er going to tax.
           In india, they come up w/ diff strategies to org/minitser/tax low-level ag producers
           Note also: these agricultural pop.s are being shrunk during this period – for them the
              CLT/econ/colonial world is one of small-holders and large estates. Not any different from Europe.
              The colonial authorities, just like reformers all over Europe and Lat. Amer., hve to decide on a
              strategy: one strategy is (miss), or you break up large ones and tax the small-holders
                    o in latter, colonial power deals with/negotiates with the large landholers, basically
                        abandons the peasant to them
                    o in former, ou try to ally colonial regime to new categoy of small-holder
           most large empirial areas have both kinds of systems (small and large)
           Rem: Savigny‘s structure establishes a complex series of gradations from the core of the core (the
              law of contractual oblig.s, thru property, to family law) (and note: tort law is seens as even more
              irrational than family law)
                    o Sav also said family law was local, moral, compulsory
                    o which wd also apply to law of relig
           and the colonial order corresponds to that (missed – falling asleep)
   So: this is the Bengal srategy (?) (I originally thought he had switched to second strategy here): BENGAL:
    the strategy of Anglo-Hindu law, also used in Madras presidency – a very large part of India adopts this
                                involves turning the Hindu dharmasastras into the top-level principles of CLT, understanding case
                                 law as applying them, cut off from III.
                             involves creating a new form of law: they think they‘re doing Hindu law – but even when they
                                 attempt to preserve it, they transform it completely – b/c the dharmasastras aren‘t the Savignian
                                 top-level principles… etc.
                             fusing the upper two layers and cutting off the bottom layer
                             They create a situation where the British ct system in India is aailable in local dispute, but it‘s not
                                 underst as the governing law. You don‘t bring your lawsuit to get the issue of law settled and the
                                 dispute resolved.
                             RATHER: you bring the lawsuit to ruin your opponent.
                             Whatever your local dispute was, when it gets kicked up into the British ct.s, no one expects them
                                 to resolve it in a way that will be a precedent for the future, or will even give you money judgment.
                             This just floats above, a strategic resource for lower-level disputes
                             (note that this kind of tactical behavior of course exists in US as well)
                             But here, Indian context, movement from the bottom up will be always be tactical
                             This theme applies endlessly
                             Though of course the courts work well and for real for resolving big econ disputes.
                   In sum, puts top layer together w/ middle layer?
         o Second strategy: BOMBAY:
                   Use the ct system to investigate and eventually codify local customs
                   Basic idea: there is a state apparatus… (missed)
                   Puts the middle layer together with bottom layer
                   (note: appears in reading – see summary on last page)
         o Third strategy: PUNJAB: romantic idea
                   Romantic Anglo-Punjabi customary idea. Anti-legalist in the sense that the administrators of Brit empire –
                       not courts in towns, and not legal offiers, but the people who are the actors of the Indian Civil Service
                       (highly trained elite English public school (private school) graduates, understanding themselves to be the
                       brains of the empire) – they administer laws at the village level as the tax collector, adjudicator of disputes,
                       transmitter of messages from the center. So: delegates and local players. Those people will then preserve
                       and develop local custom, not to codify it, but w/ goal of developing the spirit of the Punjabi sub-nation.
                   This is a plausible straetgy for them on the theory that outside towns, the rurual pop of Punjab operates
                       already based on customary law where there is already virt. no diff between Hindu and Muslim –
                   and the administrator can relate to the Punjabi peasantry in a straightforward Savignian way
                   Here, Savigny comes into our story in a different way:
                             Savigny‘s sociology: law is the normative order of a people who have a Volksgeist,
                                 refined/systematized by academic interpreters.
                             There is a law of folk – and this idea is the romantic part – these people are romantic-era
                             they‘ve never read Savigny themselves, but they‘re influened by upper-level legal people who
                                 imported it
   Note: author makes clear – none of these have anything to do w/ preserving Indian law
         o tho anglo-hindu caselaw approach is really, really divorced from any Indian intellectual cutlural or practical reality
         o v. Bombay/Punjab solutions at least include III. as important component
         o and Punjab solution is even closer to ground than Bombay b/c former is anti-legalistic, using model of Brit. local
             administration by non-specialist local elite person
   What the Brit do is look fro ―what the PUnjabis should be like as a Volk‖ – just as the German professor codifying civil law
    has a conception of what the German VOlk is like (which dsn‘t correspond to anything on the ground)
   Final piece of the puzzle:
         o A fourth strategy that never gets tried: the ideal associated w/ Nelson and Van Vooo… (see reading):
         o Nelson is protesting against Bengal system in Madras
         o Van Voolonhofen (Dutch) is principal theorist of Dutch law in Indonesia – though he‘s always outside the system
         o Nelson and VV propose letting them do whatever they want.
         o Their function in this exposition is to remind you that there‘s another thing you could have tried to do: say: we‘ll
             control the military/commerce, globalize the law of the market, impose order, secure our traders – and after we‘ve
             done that, we‘ll let you do what you want.
         o Really diff. than all the other solutions.
         o You wd not administre justice at the micro level at all.
         o If we have to intervene to make order, we‘ll do it.
         o You have to read between the lines: this attitude is today called ―legal pluralism,‖ which will be a major factor in
             the next period of the globalization of legal thought. Very reflective of Savigny in the sense that it dsn‘t try to touch
             the organic core of the people.
               o   NOTE: a critique of this is that it‘s not really non-interventionist: you‘ll still get a diff. political/legal order, b/c
                   the ostensibly unchanged laws will now be in a different military/political context – II. will have been gotten rid of,
                   the Moghul ruler will no longer intervene under certain conditions, b/c he‘s been gotten rid of.
         The virtue of the piece is: one version or another of these strategies is tried everywhere by colonial powers.
         The French have even more interventionist models: trying to set up in their settler colonies the full French admin state,
          incorporating them into France somehow
         Basic idea is: No matter committed to only globalizing the law of the market, the result is profound legal
          transformation. The nature of the legal transformation is endlessly mysterious.
              o at end of article, his picture is something like: some complicated combination of the Anglo-Hindu law (Indian law
                   made CLT-like – globalized, codified, missed) and … really has become positivistic … and more like continental
                   civil law than common law.
              o but III. is still discontinuously related to legal order taken as a whole
              o and I. is still a profound although totally not positivist or conceptual, a deep cultural influence on the evolution of
                   law in India


24 Feb. 2009

         Janaki Nair: Women and Law in Colonial India – family law
         First question: very important, hard to get from article: what is the Chatterjee idea that provides the framework for the article?
               o Chatterjee: Indian political scientist who teaches in Calcutta and Columbia, one or two or three most famous ―post-
                   colonial‖ article, very influential on this course and DK – esp. for 19th C. transnational family law in the context of
                   nationalism, The Nation and its Fragments, contains chapter on the way middle-class Bengali nationalist
                   intellectuals tried to reconceptualize ―the woman question‖ – and Ch proposes set of ideas about how they did that.
                   These ideas are the destination of the developments that Nair‘s describing – a reformulation of the woman question
                   (which then has profound implications for the social period).
               o Q: What is the idea of Ch‘s that makes her cite Ch at start and end of article? (even tho it‘s not an idea about the
                   period she‘s mainly discussing in article – it‘s an idea about what happens post-1900)
                         note that the idea has been discussed re: Greece (role of Greek orthodox doctrine in the formulation of
                             modern Greek nationalism) and many other places as well…
               o Ch‘s proposal: in order to preserve a trad nationalism, they instantiate it w/in the sphere of the home, and esp. w/in
                   the social categories of women – seen as guardians of trad, while men are active fighters w/in the world of imperial
                   law and politics.
                         DK: the thesis as Nair presents it is: this project of Indian middle-class nationalists represents women in
                             novels/poems/political writing/newspaper articles as the repositories of the uniquely spiritual character of
                             Indian womanhood.
                                   Indian women are diff. than Western women, who are characterized by liberalism/unrestricted
                                       everything, which greatly reduces differences btw sexes – act like men all the time (Indian women
                                   Indian middle-class woman is neither a peasant nor a Brahmin – she might have access to
                                       education, participates in the home in a discursive community, dsn‘t require her to be silent, no
                                       internal segregation of women in the household
                                   SO: this figure who is emblematic of that which makes the nation the nation is distinguished
                                       on a class axis (middle-class) and on a gender axis (woman, not man)
                         v. the men are in science/technology/the military/knowledge(global universal knowle.)/the market
                         (note: Bengal: stereotype seen as ―the land of the book‖)
         Second question:
               o note: Ch‘s chapter is very, very specific – about Bengali literary elite – it‘s mainly an analysis of their lit. Whereas
                   Nair‘s chapter addresses more generally a series of analyses re: the ―women question‖
                         1. sati
                         2. age of marriage
                         3. treatment of widows
                         4. female infanticide (in what is now the NW territories of Pakistan, on the outer edge of what British ID‘d
                             as Punjab, tho this apparently is not a Punjabi practice)
               o Nair is examining relations between British reformers (missionaries, officers, etc., acting in India and writing in GB,
                   etc.) and various Indian groups responding to British reform pressure – a process that moves through whole 19th C.
                   and beyond.
               o So: the Question is: What are the reactions of these Indian groups to the British pressure? (which eventually
                   culminate in the ―woman question‖ changing) Nair describes several different approaches:
                         1. defend the practice as good, holy, based on the wisdom lit.
                         2. or: let‘s reintepret the wisdom lit. to come up w/ formulations that don‘t simply endorse the status quo
             3. or: (not feminist but secular and modernizing approach) these practices have to go, based on secular
              modernity (not based on colonizers or missionary‘s position)
                     feminism per se (which dsn‘t exist at this stage) can be understood as a development from within
                        the secular/modernization position
o   So: there has been an attack from outside (from the West), alleging that in these ways Indian culture and Indian
    people are barbaric – these practices violate the minimum req‘s of humane treatment in the modern world – the only
    Q is: how far will/can the British go to outlaw/ban them? (no dissensus among the colonizers that these things are
    outrages – no relativism – though there are political reasons not to intervene, since the natives will resist insofar as
    they see these practices as center to their culture or religion)
o   Each of these 3 reactions are a resolution of the conflicting strands in a new nationalist consensus
o   All of this leads to a possible general pt about the globalization of legal thought: The question of reception or
    selection: why does this group produce Ch‘s idea, that Indian women are so different? What did this offer for them?
    Why do they want the emblem to be diff. than upper-class and lower-class women? Why are the men all about sci
    and tech? What‘s good about this solution from the POV of the people who adopt it? (not women generally)
          The way you answer this Q w/in DK‘s general model of reception/selection: this isn‘t a Western solution –
              it‘s not a ―transplant‖ (in classic lang. of Compar. Law) – it‘s generated by a local elite – and KEY this
              mode of solution is one that has been attractive in many parts of the world (in the process of the
              globalization of family law, reproductive law): so you need a general way of talking about the
          KEY PRINCIPLE IN DK’s APPROACH: You arrive at a formulation (e.g. of what women are like,
              or Indians are like) in order to resolve a conflict (a very psychoanalytic way of talking). Often well
              understood as a way of dealing w/ internal, psychic conflict. which incl.: threat, desire, fear, anxiety, the
              question of integrity, heirarachy – these aspects of social life produce situations where people experience
          Can you understand Ch‘s solution as a way to deal with the conflicts (threats/challenges/desires) that are
              revealed in Nair‘s story (in which a series of diff. actors react to the challenge w/ all kinds of disparate
              reactions)? What is the problem they‘re all struggling with?
                     imagine that you are a male Indian middle-class intellegentsia, literate, knows several languages,
                        dealing w/ the situation of an India that is colonized – imagine that you work in the part of the
                        British Raj administration that administers taxes or customs duties or RR – you‘re a high clerk in
                        the administration… What are your conflicts, and how might Ch‘s solution resolve them?
                     DK: re: sense of inferiority (b/c colonial system is a racist system, based around racial
                        inferiority of colonized people – no cultural relativism, diversity, etc.! unbelievably denigrating,
                        constantly having face rubbed in Euro experience and its superiority in every way), this allows you
                        to concede that West is ahead (in sci, econ) and entering battle to get ahead (and maybe even
                        accepting criticisms re: military, econ, etc.), but then saying: counterclaim: they say we are
                        racially inferior, but indeed we are culturally superior – their women are men or whores – our
                        women are women
                             o why make the emblem middle class? b/c widow burning is characteristic of Brahmin
                                  elite upper class – that‘s the strongest resistance to these reforms – so cutting loose from
                                  them is also a gesture of class power – in the new Indian nation, we‘re going to get rid of
                                  this class structure which is now discredited as barbaric
                             o and obviously, you don‘t want to make your emblem a peasant, b/c the goal is to say:
                                  we‘re better than British, we win, etc.
                     re: anxiety of being subsumed by foreign culture: this protects at least one sphere – but still allows
                        you to satisfy your desire to compete in global universal market/job battle
          note that this middle-class elite is against female infanticide, child marriage, widow burning, etc. – they‘ve
              incorporated the reform agenda, gotten rid of the things that Western critics treated as barbaric
o   Final note: what are the conflicts for the British: they say: ―We‘re tolerant except re: barbarity.‖ Nier critiques this,
    says in clever move: they‘re destroying environment, utterly disrupting econ life of the country – it‘s being
    deindustrialized (get rid of all domestic manufacture) so that it can be reindustrialized as arm of Brit econ. One
    justification they offer is civilizational justification, which requires us (Brit) to have serious critique of them – and
    what better way than re: their treatment of their women? A very important point for Nier is that this is difficult to do
    b/c widow burning (obsession of the British!) is in reality an extremely limited practice characteristic only of a tiny
    subset of the Indian population – so: the proof that you‘re a barbarous culture is something a tiny fraction of elite
    does. Brit say: India = widow burning (only tiny elite does it); female infanticide (only done in extreme outback in
    NW); child marriage (associated with a fading mode of [missed]).
o   So: the conflict is: we (Brit.) are doing all this stuff to them – so how is that justifiable? Ah – we’ll find some
    practices (no matter how rare) and fix on these practices (here, re: women), make them emblems of the
    culture, use them to characterize the whole thing.
o   The same thing is done in China and Islamic culture.
               o    NOTE: Footbinding = same deal (practice only among the most extreme elite of the last Chinese empire, but is very
                    prominent in the discourse); for Islamic countries, it‘s polygamy and the harem, women segregated w/o education in
                    a polygamous harem (and then, in 20th C., female genital mutilation) (not a practice of the average guy! average
                    brick-carrier in Baghdad dsn‘t have a harem).
         DK: defending Charrad reading against Havvi‘s critique (e-mailed to us):
               o One view:
                          Malaki law: more liberal than the other three schools of Islamic law? b/c offers women more ability to
                          So a feminist shd see this as a crucial equalizing dimension of one of the schools – shd see Maliki law as
                              useful precedent
               o Charrad has opposite attitude toward this rule: not looking at it as formal equality btw the sexes, but: she
                    distinguishes diff family law regimes in Maghreb on an axis other than equal rights within the couple: her axis is the
                    extent to which a family law regime is favorable to the lineage at the expense of the couple or vice versa
               o How does Havva come to grips with this?
               o Charrad‘s idea is: when we organize the rules of a family law system (any, cd be GB law), there are two dimensions:
                          1. relative equality between husband and wife
                          2. subordination of the couple to the male lineage
               o These are just analytically diff Qs to ask about a family law system. Orthagonal relation.
         Note: Berber = similarly fascinating for Western orientalists, like Pashtun (the mountain people! noble savage! way off the
          map!). The Sheltering Sky – those desert people are Berbers.
         Related to ―trafficking in women‖ idea: using women as pawns in economic and political transactions between lineages, just
          like in European dynastic marriages. Her consent is inconsistent with this system. Once there, dumped into arranged marriage
          w/ hubby, it‘s actually bad if they fall in love, b/c that might screw up family arrangements that might require getting rid of
          her if necessary for e.g. alliance.
               o The Maliki rule that lets the wife divorce – very useful for fathers in a lineage-based system, b/c if husband‘s family
                    gets screwed up, wife‘s father can force her to divorce him.
         French colonizers care deeply about lineages, b/c this is the potential political opposition. So their strategy for family law is
          (depending on diff. countries) e.g. in Morocco, divide and conquer the most powerful lineages – get different lineages to fight
          one another.


25 Feb. 2009

DK‘s interest in CHARRAD (2nd reading from yest – Islam)
    Charrad says that you can array family systems along a spectrum: from those that reinforce lineage power versus those that
        reinforce couple power.
             o lineage = agnetic (male descent) v. non-agnetic (not male based) kinship systems
             o note that Savigny already noted that diff. cultures define the kin-group differently
    And this is a different dimension than the dimension of heirarchy within the couple. (Whether it‘s inegalitarian, etc.)
    Charrad says in the Mahgreb, the idea of lineage is defined by male descent (i.e., an agnetic kinship system) – whether you
        are man or woman, your lineage is defined by the male line: your father, his father, etc.
             o and there are also tribal constructions, so that there‘s an imagined great-great-great-etc.-grandfather who‘s imagined
                  as the keystone of the whole tribal configuration
    And Charrad says Mahgreb

HAVVA: guest speaker (SJD writing on Islamic law)
    agrees with a lot
    but Charrad represents external feminist critique school of thought
    Havva‘s school is modern school of Islamic reformist school of thought: internally criticize Islamic legal system – and
     change thinks they think aren‘t authentic Islamic legal thought – based on Qu‘ran and practices of Prophet.
    Islamic law didn‘t emerge in a vacuum – it came to an already establihsed tribal trad in Arab peninsula in 7th C – and it tried
     to bring about a social revolution: against slavery, against women‘s subordination, etc. – which could have led to total
     equality of women in a few generations – but it was interrupted by the conservative reaction at the beginning of the
    now there are many varieties of reformist approaches within this tradition of internal critique
    when Havva reads smthg that starts with ―Islamic law is…‖ – it‘s too general – there are Islamic laws from Morocco to
     Indonesia, so many diff political traditions, over so much time – diversity from the beginning – far beyond just Sunni/Shia –
     immense variety
    our reading is just a passionate e-mail – wd‘ve been more scholarly if cd write again
       Main criticism remains though: she‘s making an essentialist claim about Islamic law – traditional Islamic law (which Havva
        distinguishes from ―the Islamic law,‖ the true/ideal/as she sees it Islamic law) – and she describes many things that are
        common institutions/norms/regimes that exist in all Islamic legal schools – e.g. the insitution of male guardianship over a
        woman‘s decision to marry – this isn‘t even Islamic – it existed in Roman law – Islam didn‘t bring this to society – it just
        found it – and tried actually to cut down many of the unfair aspects of the system (e.g., they used to give the bride-price to the
        father of the girl / her male agnate – but Islamic law emphasized that it must be given to the woman herself – it‘s not
        supposed to be her sale from one man to another man but based on her consent – and if she gives it up, the choice is hers)
        (also, the Qu‘ran emphasizes that this is supposed to be a free gift, not in return for anything)
       She dsn‘t do fairness to the traditionalist version of Islamic law
             o e.g., divorce: she claims that it symbolizes the fragility of the conjugal ties btw husband and wife – under Maliki
                  system – this is totally wrong. First, she essentializes – this also exists under Hanafi system. [me: this isn‘t
                  ―essentializing,‖ and isn‘t a counterargument.] This has nothing to do with Maliki school. It‘s just what happens
                  when an Islamic law system arrives in North Africa.
             o she sounds like conservative American legal scholar criticizing no-fault divorce, who say this harms the integrity of
                  family system
             o as a feminist, she shd be praising the Maliki system for being more liberal in this regard, letting women get out of
       me: when Havva says Charrad is essentializing, does she mean that there are variants of Islamic law, places and times where
        in some variants of it woman are not legally subordinate to men, or the law doesn’t favor kin-based tribal cohesion over
        conjugal bond?
       me: Could a defense of Charrad‘s presentation of ―fragility of the conjugal unit‖ be that in some contexts, this would have a
        feminist upshot (conjugal bond broken -> woman receives the new power as individual), but in many of the Maghrebian
        contexts that she‘s discussing, this tends to have a pro-kinship/tribal cohesion upshot (conjugal bond broken -> tribe receives
        the new power of freedom)?

       (third mode, after direct colonization and capitulations/unequal treaties)
    columns on board:
    I.
    II.
    III.
    DK: This article is about how they take on board various ideas – the creation of nat‘l consc based on citizenship as opposed
       to cast – perfect examples of the global.tion of legal thought that‘s not happening through colonization or unequal treaties
            o on the one hand, as represented in song/story/novels, they have genuine aspiration to be like Europeans, but on other
                 hand, under a lot of stress to be plausible to Euros. and Amer., who are occasionally sending gunboats to the coasts
            o so: combination of genuine admiration, mil/econ threats, etc.
            o a thing to underst is how many leading Lat Amer jurists spend time in W Euro – they‘re much more sophisticated
                 about Euro Legal Thought than a typical European in a Euro legal system. (And the same is true of the Americans in
                 1900: they know much more about Euro Legal Thought than anyone outside of a tiny transnational Euro elite.) The
                 mass of Euro jurists have dumb and simple-minded ideas about their own systems, about what is national and not,
                 etc. So: in Engl, no one is reading Savigny, except people like Pollock, who is then exporting Savigny to India (but
                 that‘s going over the head of the vast majority of Engl lawyers, who think Savigny is German and thus a fool) (but
                 Pollock is just [DK makes slurping noise])
            o These peripheral char.s are participants in the world of the sophisitcates, and they‘re much more sophisticated
            o So: Lat Amer.s go to France, get a doctorate, sometimes end up teaching in a French law faculty. And this will also
                 contribute to the globalization of French legal thought through the prestige of the Chilean participant in it.
            o And one more thing about this: this will be reproduced for the social and for contemporary legal thought.
    Note: the other region of the world where this mode of globalization applies: ex-Ottoman lands after disintegration of
       Ottoman empire, starting after Greek independence. e.g. Greeks and Serbs are in position not unlike the Lat Amer repub.s
       (and Bulgarians and Romanians – those are the four main countries).
            o note: they‘re all Christian nations, and this is very important to their identities – so the first thing they do is
                 completely reject Sharia. (Though even under Ottomans they had Christian family law.) Each tries to reconstruct a
                 Christian family law. Greeks and Bulgarians go to Germany and Austria. Serbs and Romanians go to France.
                 Eventually get codes, just as in Latin America – and as there, distinction between law of the market and family law
                 will be very important.
            o One way Greeks construct national identity is by making ―Greek orthodox family law‖ – like Chatterjee‘s
                 hypothesis, creating Greek nationality around Greek orthodox family law, saying: we‘re like Euro.s b/c we‘re
                 Christian; but we‘re different b/c we‘re Greek orthodox.
            o note: Greeks get their independence in part as result of British campaign to undermine Ottomans. And in this context,
                 there has to be a deal between Prussia/Austria-Hungary/Britain – and the deal is: Greeks will have German king. He
             brings legal advisor – Savigny disciple, who sets up Greek legal system around Savignian contrast btw family law
             and law of market.
                  That kind of thing happens everywhere. Me: KEY: This is one of the structures/patterns he’s looking
                      for, finding everywhere: legal systems being constructed with radical breaks between family law and
                      private law/law of the market – which is a sign of CLT/Savigny.
   Also note: DK wants to link the Lat Amer globaliz of CLT and the Meineke reading about Germany and Steinfeld/Siegal
    readings about Amer law – law of household.
        o There are three characteristic institutions of Spanish colonial law:
                  encomienda –
                                    o Wikipedia: ―La encomienda fue una institución socio-económica mediante la cual un
                                         grupo de individuos debía retribuir a otros en trabajo, especie o por otro medio, por el
                                         disfrute de un bien o por una prestación que hubiese recibido.‖
                            part ―protective,‖ part ―exploitative‖:
                            bears a resemblance to serfdom (the way Euro feudal classes constructed agricultural production
                               after the fall of the Roman empire)
                            has its own governance insitutions; family life is partially Christianized (it‘s a vehicle of
                               christiainization in fact); and there‘s a forced labor obligation/tribute dimension (population made
                               available to Spanish protectors) (but not free labor: like indentured labor: you don‘t have freedom
                               of movement) (thus structurally related to ―head tax‖ [―poll tax‖] in Africa – me: missing the
                               reference, think we discussed this in earlier class)
                            once independent, new states get rid of encomienda system
                            KEY PARALLEL: rem: Meinecke‘s discussion of feudal states of Junkers – you free the German
                               peasants, and they can now own land and travel wherever they want – but what happens is Junkers
                               buy everything up and peasants have to become agricultural laborers
                                    o similarly, in today‘s reading, once CLT arrives and liberalized property becomes
                                         foundation of everything, the rulers of encomiendas buy up all the land
                            ALSO parallel: church property: either it becomes private property, or it‘s appropriated w/o
                               compensation. It‘s supposed to go to farmers on the land – they sell it for a song, etc.
                  mayorazga –
                                    o Wikipedia: ―El mayorazgo es una institución del antiguo derecho castellano que permitía
                                         mantener un conjunto de bienes vinculados entre sí de manera que no pudiera nunca
                                         romperse este vínculo. Los bienes así vinculados pasaban al heredero, normalmente el
                                         mayor de los hijos, de forma que el grueso del patrimonio de una familia no se
                                         diseminaba, sino que sólo podía aumentar.‖
                            what is called in English ―the entail‖: basic idea is: primogeniture keeps the estate together; the
                               extent to which the legal order permits/forbids/facilitates/discourages/prohibits… (missed)
                            linked in W Euro societies to the category of lineage
                            So: DK: parallel between W Euro systems from fall of Roman Empire and Arabian peninsula in
                               time of Mohammed – agricultural land is the basis of social power, and it‘s desirable to make it
                               easy for great families to find in terms of their descendants/dependents (e.g. servants) to keep the
                               land in the family.
                            So you start out with entails and serfs, then there‘s a tradition in which liberals in CLT belong to
                               generation of rebellion – the idea that legal order wd preserve serfdom w/ ability of great family to
                               keep the land and its serfs forever in its possession – and to make dynastic connections creating
                               further agglomerations of property, still undivided though primogeniture – that is softened.
                            the basic characteristic of CLT is that it has recreated the feudal system to one degree or another as
                               a property/contract system – they‘re now free, but they just don‘t own any land, and they‘ve made
                               contracts to get enough food to feed their families until next harvest. CLT gets rid of the titles‘
                               meanings (Dukes no longer get 10k human beings), but to one degree or another, the feudal
                               household, as it morphs into CLT, the human beings retain a surprising amount of their econ.
                               power, and they meld w/ a new middle class everywhere.
                                    o The pre-classical structures don‘t disappear when their legal order is abolished.
                                    o However, there is a battle that never ends over the legal dimension.
                                    o The social structure can continue more or less intact, regardless of the legal
                                         structure – but at some time everyone understands the remaining elements of formal
                                         inequality is related to the survival of the ancien régime.
                                    o and in each country they work this out differently
                  fuero
                                    o special legal regimes for special categories of people – they get their own courts, special
                                         treatment, etc.
                                         o    Wikipedia: ―Los fueros locales, fueros municipales o, simplemente, fueros (en catalán-
                                              valenciano furs en euskera "foruak" y en portugués foral, en francés for) eran los
                                              estatutos jurídicos aplicables en una determinada localidad cuya finalidad era, en general,
                                              regular la vida local, estableciendo un conjunto de normas, derechos y privilegios,
                                              otorgados por el rey, el señor de la tierra o el propio concejo. Fue un sistema de derecho
                                              local utilizado en la Península Ibérica a partir de la Edad Media y constituyó la fuente
                                              más importante del Derecho altomedieval español. También fue utilizado en ciertas zonas
                                              de Francia.‖
                                not a cast system, but a system of jurisdictional entitlements in the military, the clergy, and
                                if you have a fuero (you can have a fuero for any occupational group), and you commit a crime,
                                    you get tried by a distinct ct, and you have some priveleges re: taxation, modes of land-holding,
                                This also is abolished, b/c CLT says every citizen of the republic is subject to same legal order.
         DIVORCE: (this is based on the work of a past SJD)
             o the Catholic church has a level of jurisdiction over definitions of various varieties of divorce-like institutions (e.g.
                Catholic regime where wife no longer has to live with husband)
             o but there are also state-based regulations – very complicated
                      e.g.: Is adultery a crime? Yes. Gigantic, cd be punished by death. BUT: the state view is that it‘s a crime for
                          a man to sleep w/ a woman other than his wife only if he takes her in as a concubine.
             o So: there’s a lineage v. couple conflict (see Charad above) btw church view and state view. (This is the analogy
                he‘s arguing for: lineage v. couple in Lat Amer and in Maghreb. Savigny views W.ern family law as much harsher
                and less liberal than the Muslim conception of marriage at this moment in history. Women have far more rights in
                Islamic law than they do in any W.ern country – closer to legal equality, and protected in many ways. Sav; family
                law as …/local/compulsory is the locus of a giant battle in CLT over how much it shd be shifted in the direction
                of a market model – against the background of the big distinction in CLT between private/market law [formally
                much more Islamic, though substance of power in Islam totally different] and family law.)
                                THE CONCLUSION FOR THIS WHOLE SECTION OF THE COURSE: The way to
                                    understand the globalization of family law is: CLT sets up a kind of global battle in every
                                    country that has a very similar structure – much more similar than the national histories
                                    ever acknowledge – b/c there are so many diff paroles in this langue. Every diff country has
                                    its own family law – that’s the parole.
                                It sets up a challenge to say: how are we different? and men turn to saying: our women are
                                    different, and better.
                      The state (king, royal governors, conservative society associated w/ large land-owners, big merchants of
                          coastal towns, military) have an interest in the lineage: the strength of the latifundista-based organization of
                          society around extended lineages w/ very large #s of dependent workers is the foundation of the Spanish
                          monarchy (an organic conception of the orders of society – the feudal domain has become the large landed
                      VERSUS church, at least some tradition in it, sees itself as having interest in the couple, marriage based
                          on love (running off with your girlfriend) – tho church is totally collaborating/reactionary in Lat Amer.


So: Kennedy class so far:
           versus telling a story about the spread of Western law to most of the world in which the main actors are individuals in states
all over the world – a rich historical portrait of the individual decisions that culminated in the current situation in each nation – rich
national narratives –
           instead of that, Kennedy sees odd parallels between what happened in all of these different countries, almost as if there were
structures that determined beforehand how things would turn out – the ideal pieces of evidence [great to point any of these out on the
exam] for Kennedy are the same things happening in different legal nations‘ legal histories, while those histories explain the things in
a way that suggests it was just the result of internal processes –
           What is Kennedy‘s story? What are the parallels he finds?
           It starts with a model of core and periphery – originally designed as a model of economic exploitation and capital and
technology and labor flows, etc., but that he applies to the diffusion and interactions in the spread of legal langues –
           and he sees three primary legal langues since globalization began in modern era, since the world system of core and periphery
began, since places like Egypt started having laws like France, etc. – 1. CLT 2. social 3. contemporary.
           Right now we are studying structural parallels between the way one of these langues – CLT (roots in Savigny, and
characterized by i. will theory, idea of powers absolute within their spheres, ii. public/private distinction, with private as core of real
law, iii. deductive method, view of itself as science) – spread from legal core (Germany, France, England) to legal periphery (China,
Egypt, Maghreb, Latin America, etc.) –
        specifically: through a) direct colonization (India), b) capitulation (China, Egypt), and c) influence (Lat Amer., Ottoman
Empire, Maghreb, etc.).
        BUT: what are the specific structures of diffusion that he‘s seeing repeated in, say, the influence mode?
        This has been the topic of his lectures in recent classes:
                          one repeated structure is that influenced countries (and directly colonized and capitulated countries as well?)
                 do what Chatterjee describes (which we articulate with a Savignian twist in legal context): they define the
                 household/women/family law as refuge of tradition, bastion of superiority v. West, while conceding that West is
                 superior in the market (technology, military, science). me: As a result, they adopt Western law of the market, but
                 maintain a distinctive family law. [So: national histories would explain this as, say, Indian tradition actually being
                 superior, etc. – while from the structuralist perspective of the class, this move is just what happens when you import
                 CLT? I‘m somehow missing some level of this account‘s explanatory power – perhaps try think through: why does
                 this happen the same in so many different countries? does it? is it significant that it does? etc.]


2 Mar. 2009

         Note: Lat. Amer. in this sense contains Carribean and Phillipines – a very large segment – as big as anything else we‘ve
          talked about
         Summary idea: When we looked at N Euro and the US, we talked about the early mod agri domain/estate w/ its semi-free
          laborers (no longer simply serfs but certainly not free or agri labor in modern sense either) – we talked about
          indenture/slavery/apprenticeship law as important elements of the labor system that was transforming – slavery was
          abolished – and the third part was: the law of husband and life (basic argument: there was an early mod household order
          that was both economic, familial and dynastic, and included many people who weren‘t blood relations but were thought of
          as social unit w/ heirarchy – patriarch at top, then wife, then agricultural workers – men, women and children – or, if it‘s an
          urban household, handicraft and small industrial worker [missed])
         CLT arrives as a liberal legal order that rejects many aspects of this system:
               o no more bound labor (as Savigny and Steinfeld explain) – workers can leave, and they can‘t be physically punished
               o handicraft and small industrial workers move out of household; but even domestic workers are no longer seen as
                    part of the law of the household – it‘s just plain old contract law
               o and agricultural properties – giving some part of your produce to lord of the domain, this ends – you either own the
                    land or you don‘t; the basic model is fee simple and leasehold, no longer feudal tenures that have forms of labor
                    associated with them
               o also, domestic abuse no longer allowed – tho as Siegel points out, the actual institution of wifebeating dsn‘t
                    disappear – just the legal structure gets modified (so that domestic abuse is justified on privacy grounds, v. on
                    historical ground of heirarchical legal inequality: husband‘s support exchanged for wife‘s obediance)
         Basic idea: a major part of the world is run by the model propagated by the Spanish empire (Portugese empire very similar,
          but he isn‘t sure, so won‘t say anything): different than the British or French or Belgian or Dutch – and this is understood by
               o Spain is heirarchical/traditional, and represents a vision of Catholicism (not French, Austrian or Italian Catholicism,
                    but a Spanish form)
               o Very common in L Amer for people to attribute everything in their cultures to being Catholic – but people in non-
                    Spain Catholic Europe find this ridiculous, b/c they‘re completely different
               o Spanish Cath. is conservative as opposed to liberal, goes along w/ a conservative mode of social organization (going
                    back to Spain‘s expulsion of the Moors from Spain – the famous ―tragedy of Andalouse‖ that bin Laden refers to it:
                    ―Above all, we must not repeat the tragedy of Andalouse.‖)
         What happened in mid-19th C America? The partial liberalization of the following things: the first 3 things, and the
          Church-state system.
                          What is liberalization? Making something look more like basic CLT strucure: will theory, etc.
               o Some of the institutions that Spain brought to the Americas:
                          1. Mayorazga
                                   ―entails‖: the legal structure that preserves the coherence of the landed property of the family,
                                       which is the basis of the authority of the patriarch – his authority is economic, based on
                                       management of the estate
                          2. Fuero
                                   special legal statuses w/in the state: orders for clergy, military
                                   profoundly conservative institutions whose autonomy sets up the power of the lineage vis-à-vis the
                          3. Encomienda
                                   the institution designed to incorporate the Indian/Native population into the workforce
                              initially, directly parallel w/ serfs in Spanish feudalism (though not seen as that, not called that –
                               b/c Pope forbade Spanish crown from enslaving Indian population)
                              Indian population held on what we wd call ―reservations‖ – culture protected, prevented from
                               sexual intercourse producing mixed population (colonizers didn‘t bring many women)
                              only at time of independence is this totally dissolved, leaving Indians w/ citizen status
        o    Church v. state
                 Lands
                               as faithful donate their lands, perhaps in exchange for various spiritual rewards from church
                                (another characteristic of Spanish Cath), church land ownership expands – and church land stays
                                forever with the church
                            a basic thing that happens: at some point after middle of 19th C, the republican states of Lat Amer
                                begin to react against the institution of massive church land-holding – w/ or w/o compensation,
                                various forms, etc.
                   Family law
                            The relig jurisdiction of Prot/Cath churches over marriages goes away in NW Euro and N Atlantic
                                in 19th C. (note: MA had established church until 18xx, people still paying taxes to support
                                churches and buildings)
                            But in Cath countries up until a few years ago in Lat Amer, it‘s still a major issue: should we have
                                civil marriage? Just as in Israel, if you don‘t want Jewish marriage, go to Cyprus.
                            Liberalization in church v. state re: family law results in: What kind of sex is criminal? Now the
                                state will define homosexuality, abortion, adultery, incest, etc. as criminal – the state has a strong
                                role. The state regulates whose permission is necessary for marriage and what kind of fees to pay,
                            w/in Euro Cath and to lesser extend w/ Span Cath, there‘s a spiritualization of marriage (Council
                                of Trent onward), meaning: More and more emphasis on the notion that marriage is a voluntary
                                union of man and woman based not only on consent but on love – exactly parallel to what‘s
                                happening in N Euro.
                            KEY: the spiritualization of marriage w/in Cath produces a set of complex conflicts in Lat
                                Amer w/ the specific Spanish lineage-oriented understanding (power of patriarch over
                                daughters, and regulation of sexuality to preserve clear lineages, and coherency of property –
                            The issue that Sharrad identifies in Muslim law: the couple is a potential problem for the
                                lineage. So: for the lineage, we want early age of marriage for girls, older for boys; we want
                                forced inherited shares that the guy dsn‘t disperse his property to his youngest cute kid and his
                            SO: the same battle over family law in the N Atlantic, Spanish Catholic, Muslim (and even
                                Japanese world, if anything he learned in 1961 course was true!)
   SO: What is CLT?
        o A world reform does by colonialism, unequal treaties, emulation/spread of republicanism.
        o And the site of intense left-right conflict btw liberalizers of family law
                   liberalizers identified in two diff ways (not the same thing):
                            w/ egalitarianism btw men and women
                            and w/ defense of couple w/in the lineage
        o Across the world, it‘s being fought out inside the categories of CLT.
   Transition to reception issue:
        o Why would elites love CLT in Romania, Serbia, Bulgaria, Greece, each under diff. influence (Germ, Fr, etc.)?
        o The idea: KEY: THIS IS ONE OF THE STRUCTURAL PARALLELS (the justification for doing this kind of
             structuralist history v. national/contextual history): CLT is attractive to the elites of newly formed nations
             partly b/c of the potentialities v. family law distinction –
                   the existence of such a distinction in which family law is cultural/moral/national and imposed, whereas the
                      law of the market is universal, based on the notion of a power that is absolute within its sphere –
        o this distinction has an appeal if you‘re Argentinian, Romanian, etc. b/c it establishes basis for you finding prestige
             in the world community of law (there‘s nothing particular about the law of the market) – and you don’t have to
             accept shame regarding your family law (or any other critique – or even integrate) (whether Cath, Greek
             Orthodox, Protestant, etc.)
        o Of Const, Crim, Pub Int‘l Law, PIL is the most fully integrated into CLT (it is based on powers w/in their sphere,
             extremely deductive, and universal)
                   so: PIL is available to you for seeking prestige
                   and it’s a tool to argue against the imperialists
                            (e.g. you can argue against gunboat diplomacy based on the principle of sovereignty)
             o    Con Law is more political, not moral, more local, much more variable across the globe than private law or PIL – it‘s
                  much more like family law – which means it dsn‘t require you to be a democrat who believes in the rule of law, IHR,
                  sep of powers, majority rules (as it does today) – the ideals of the post-WWII hegemonic consensus – this isn‘t true
                  in 19th C.: there‘s no idea that Con Law requires a single model (look at, for example, Brit model of Parl
                  sovereignty; or look at French not having judicial enforcement of Const.)
                        So: another reason for CLT to be appealing: CLT doesn’t demand via Con Law that you have to give
                           up your trad form of govt

    Von Ghering and Gény
    note on new syllabus: similar arrangement to 1st syllabus
    These are, like Savigny, master thinkers of the development.
    VG: Law as a means to a social end
    Gény: Critique of abuse of deduction
    Note: The social can be right as well as left. Must resist the very common reaction of today‘s students as CLT=Republicans
      (free marketeers), social=Democrats (pro-regulation). What makes it possible for social to be a hegemonic consciousness is
      that it‘s a langue, not a parole – and those can be on spectrum from far right (fascism, social Cath, tomorrow) to far left
           o smthg to keep in mind:
                      in today‘s legal consc, the reason we have this assoc is that people who argue that law is a means to a social
                          end (not about indiv but about welfare of the whole, so state has crucial role in regulating the econ), those
                          people today are overwhelmingly left-of-center;
                      however, the people who argue using social rhetoric in family law, in the law of religion, sexuality,
                          reproduction, education, health, the people there who argue for solidarity/guardian role of the state, tend to
                          be right wing not left wing. SO: even today, the rhetoric of the social (eg., the rhetoric of opposition to
                          abortion or same-sex marriage – latter based on children needing a guardian of each sex b/c men and
                          women are really diff) can be far right.
           o SO: today:
                      CLT rhetoric re: family law = mostly liberals
                      CLT rhetoric re: law of market = mostly conservatives
                      Social rhetoric re: family law = mostly conservatives
                      Social rhetoric re: law of market = mostly liberals
                      (orthagonal diagram)
    Some general ideas:
           o generally associate this w/ VG:
                      The social is a self-consc. critique of CLT – the social people invented the idea of CLT (before then, it was
                          just legal thought, not a period)
                      The critique contains four elemtns:
                      1. ORGANICISM: CLT as an atomic individualism that fails to recognize the organic character of society
                      2. INTERDEPENDENCE: Instead of powers absol. w/in their spheres, interdependence
                      3. EVOLUTION: Plus, the idea of evolution (from Darwinist and then post-Darwinist rhetoric): the social
                          organism is challenged environmentally and mutates or changes to adapt or doesn‘t survive. And law is one
                          of the mechanisms thru which a society mutates so as to adapt to new social conditions. The new soc
                          cond.s are:
                                industrialization
                                urbanization
                                the rise of new social classes, esp. mass radically disadvantaged proletariat
                                globalization
                                         o social people are obsessed with this
                                         o b/c of the success of the Roepke, etc. descip. of global economy that we‘ve read about
                                               several times
                                         o (note: world was more globalized in 1914 than it was again until roughly 1980)
                      3. UNSTABLE EQUILIBRIA: Four examples: in each case a problematic structure: individualized rights
                          lead to catastrophe for the interest of the community:
                                Labor-management conflict: Individuals pursuing their atomic rights will produce sort of
                                    feedback loops, destructive, like panics and depressions (e.g. of 1890s). (Suddenly relevant again
                                    today!) Conflict btw labor and capital (two organic groups, both essential to orderly evolution of
                                    society), if not adequately regulated thru law, will produce paralysis of global industrial structure.
                                    (e.g. strikes that paralyzed economies)
                              Epidemics: you need some mechanism to prevent this (e.g. spread of diseases of slums in late
                                     o against your autonomy: no, we‘re going to vaccinate you
                            Financial markets: welfare constantly threatened by the instability of unregulated financial
                               market, which permit: speculative bubbles and massive fraud (e.g. financial meltdowns of Great
                                     o against autonomy of parties to contract: no, we‘re going to impose regulations to prevent
                                         fraud (all that common law offers is weak penalties and no real disclosure req.s) (and a
                                         court just can‘t do this regulation ex ante – useless to sue Bernie Madoff now)
                                     o a defect of the common law of fraud linked to CLT – the Savignian reconstruction of
                                         obligations of parties to one another in Roman law
                                     o so: the basic ideas of the social very much in play today
                            War: CLT PIL is just like classical private law, based on powers absol w/in their spheres, and a
                               doctrine of radical autonomy for units – creates an endless probability for game theoretic problems
                               of mutually escalating armaments, w/ imperfect info, etc. (what led to WWI – Barbara Tuckman:
                               WWI as a game-theoretical dilemma – created by CLT PIL)
                                     o against autonomy of states: no, we want a UN
       o Because of all of these deficiencies, we need a regulatory overlay that is simultaneously substantive and
       o The characteristic legal model of the social is based on public law: you leave private law largely in place (tho some
            argue for the socialization of private law – very marginal) – but in public law create an adminsitrative state (the
            prototype for all this is Bismarckian state) – w/ administrative agencies enforcing a code of conduct:
                  SEC, NLRA
                  Leage of Nations
                  etc.
                  Institutions whose underlying emphasis is: a regulatory body that will be the product of a consensus and
                      thus allow sanctioning of people who are going to set off unstable equilibria.
                  Thus preventing collapse of the system.
   Von Jhering (Ghering?): Law as a means to an end:
       o DK: very important for Americans because influenced legal realists of late 20s-30s – VG is the single most
            important influence on our legal thought as Americans! Legal realists regarded VG as father of the whole thing.
            However, after WWII, Americans said: we invented this ourselves! We invented the automobile, the telephone, etc.
            And from 1945 on, we deny that we ever import ideas (even tho we were just a minor colonial outpost of Euro legal
            thought until 1945). We have Balanchine, Jackson Pollock, the best of everything.
       o The structure of the piece is:
                  the idea of absolute property rights is wrong
                  back to Roman empire, it has never been true, even tho students are still taught this
                  they are taught that the things he describes are exceptions
                  but VG: these exceptions have the character of showing that there is no rule that property is absolute
                  there’s a rule that if indiv’s property right serves the interests of the society, then the legal order will
                      protect and enforce the absolute right of the property owner
                  So: There‘s not absolute property w/ exceptions; rather: there‘s property rights limited to what ―we‖
                      (always unspecified) want. Property rights serve social values.
                  The way to underst the law is not as deductions from the concept of property, with exceptions – it‘s as the
                      pragmatic working out of a social welfare agenda that appropriates or opportunistically recruits so-called
                      private actors who are really just the puppets of society.
                  Also a normative proposition: this isn‘t just the way it is, it‘s the way things ought to be.
   Gény:
       o VG at end asks: how far should we let these private parties go? Humboldt and Mill have tried to come up with
            principled answers, and they‘re just nonsense: there‘s no possible principled answer to this question. Rather: it‘s
            basically just a pragmatic question – based on the practicalities of the matter – case by case. (Tho: v. contemporary
            legal thought: not political.)
                  this goes against the basic idea of CLT that its structure is deductively based, etc.
                  and this is also what Gény critiques:
       o CLT has a strong Germ compnent (the substance) and Fr component (the idea of codification), latter being
            insignificant compared to former.
                  the Fr believed that they are the inventors of CLT, saw Fr Civil Code as the core of the transformation of
                      legal thought in 19th C
                  but historical studies have shown the extent to which Fr legal thinkers in 2nd half 19th C are adopting
                      Savignian scheme and using it to reinterp Fr legal code
                           Germans don‘t codify until 1900, then Swiss codify – at which point, German legal science has finally
                            become a fully legislative phenomenon
              o   Fr people like Gény dedicated to critiquing two things above all:
                        characeristically French foundation: the Code – the idea that it answers all questions
                                  G says: no, it has gaps
                                  when you say that it offers an answer and it dsn‘t, you‘re abusing deduction
                        characterisitcally German foundation: pure concepts -- the idea that foundational principles answers all
                                  abuse of deduction here too
              o   In fact, we fill the gaps w/ teleological reasoning from social purposes.


3 Mar. 2009

GÉNY cont…
    Very important in obligatory French philosophy of law course in French legal education
          o had giant impact in France between 1896-1930s, but after WWII, these French theorists of the social were little by
             little forgotten, except a few famous names:
                    Gény, Salet?, DuGui?, DeMogue?, Lambert
          o but also had great influence in Lat Amer (Fr. legal theory sphere of influence – partly also German as well) – and
             influence there hasn‘t dissipated as much
          o great influence in Spain, Portugal, Italy, and in Serbia and Romania
          o and of course French colonial empire: Africa, Indochina, Carribean possessions
          o and very important influence in US
    Key elements:
          o 1. Gény‘s critique of the reasoning mechanisms of CLT is foundational
                    BUT: cliché in France: ―la critique était bonne, mais il n’a pas réussi reconstruire la système‖
                    i.e., he was a failure: what‘s the point of having a critique if you cdn‘t rebuild the system?
                    DK: even though it‘s true that Gény‘s alternative – to formalize and make scientific the social approach – is
                        totally unconvincing and has had virtually no impact, the critique is foundational
          o 2. first big distinction: 2 big approaches that Gény sees as characteristic of French legal thought (Fr legal academic
             productions used by Fr judges) – he criticizes both:
                    a. STATUTORY ABUSE: the solution to every legal problem can be found in the Code (the Code
                        Napoléon = the private law code) or other statutory provision covering the situation in question – contains
                        two problems:
                              i. ABUSE OF DEDUCTION:
                                      o the Code solves every legal problem through an interp. of the Code that is necessary,
                                          objective, deductive –
                                      o so that the essential activity of the jurist is to look for the meaning of the Code provision.
                                      o he thinks this is an abuse of deduction (= making the claim that the mere interpretation of
                                          the meaning of the words can solve a problem when it can‘t = me: logical perfectionism)
                                                Gény thinks that it is often the case that how to apply rule in the Code to facts of
                                                   the case is clear – this happens all the time – and this is deductive
                                                         and in these cases, judge is bound to do what the Code says
                                                         the whole theory of the system is that the legislature is the sovereign,
                                                             b/c it is the representation of the will of the people
                                                BUT: the abuse of deduction is to ignore the vagueness, ambiguity, gap, conflict,
                                                   etc. in the Code – the abuse is the denial of this, and then the production of a
                                                   mistaken/wrong deduction
                                                SO: what DK is emphasizing here: it‘s not a critique of deduction.
                                                         it is common to discuss ―critique of deduction‖ in philo. of law classes
                                                             w/o making the distinction he‘s making
                                      o If there‘s any doubt, you can‘t deduce. If the Code is open to 2 poss. interp.s, and you say
                                          there‘s only one, that‘s an abuse of deduction: you made a false deduction.
                                                as Gény says: all legitimate deduction must be logically necessary: logic must
                                                   always be necessary
                                                note: French Code-interpreters did have canons of statutory interp. – they had
                                                   the idea of going to context, history, etc. going to other sources – BUT what
                                                   Gény is criticizing is saying: ―There is no gap here, we don‘t need to go to these
                                                   other sources.‖
            ii. the abuse of deduction is a MOTIVATED ERROR: this is Gény‘s psychological explanation
             for why judges make the error above, the abuse of deduction:
                   o judges have this unconscious motivation to abuse deduction: they wish to deny their own
                       lawmaking power b/c their lawmaking power is inconsistent with the theory of judicial
                       interp. of the system, which says that judges merely apply law, it‘s up to the legislature to
                       make law
                   o the error is motivated by fear of being attacked, etc.
                   o you get enormous power from saying: ―I‘m not speaking – the law is speaking through
          Sidenote: there will be a critique of Social Legal Thought that is exactly parallel to SLT‘s critique
             of CLT – missed
   b. ABUSE OF INDUCTION/DEDUCTION: the abuse of ―pure concepts‖: “the method of constructions”
    (the ―constructions‖ are the inductions)
          i. the nature of the abuse:
          it is an accepted method by Gény‘s time to use Savigny‘s inductive/deductive method on the
             French Civil Code to fill gaps
          Gény offers 4 examples of (logical imperfection): etc.
                   o sidenote: ―patrimony‖ very important category in French law b/c often liability is only for
                       patrimonial injury. But in the French Code, references to ―patrimony‖ are few and far
                       between, and there‘s no analytic definition of it.
                   o So: an example of the abuse of deduction wd be to draw a conclusion about yr ability to
                       transfer all yr property to another based on the concept of patrimony.
          basically: ―if the Code is to make sense, then this is what ‗patrimony‘ must mean, and when we
             apply this sense of patrimony to these facts, the result is x‖
                   o you induce the definition of patrimony from Code provisions that are relatively more
                             the definition is not textually in the code, but we induce/infer it from the Code
                             assumption: the Code is coherent – is the expression of a single, coherent,
                                  principled understanding
                   o then you deduce (like in a. above) how to apply this concept to the facts at hand
          and in CLT, the highest thing that a jurist can do is produce a construction that is accepted by the
             community – this is what von Jhering mocks
          Gény‘s position: construction is great – it‘s necessary, useful, desirable, good – just like deduction
             of the meaning from the Code – however, it can be abused:
                   o he claims that while occasionally there may be only one possible construction (5 civil
                       code provisions, very concrete, maybe only one possibility!) – but it‘s far more likely the
                       case that there are several possible constructions you could make
                   o so he sees the choice of a construction as ―subjective‖ – that is, it is a choice, it is a
                       product of the will of the jurist. It‘s not logically necessary for the coherence of the
                       Code to have this construction.
          AND: KEY: we shd test the construction (subjectively) produced by the jurist by how its
             effects/consquences serve the interests of society. (This is the social aspect.)
                   o we shd treat the jurist‘s construction as provisional, experimental – as something that will
                       produce some deductions – and then we shd see how the deductions serve social order‘s
                   o if it produces an undesirable outcome, then we should reject the construction.
          La système ne marche pas, parce qu’il claims that he‘s going to develop a scientific method of
             testing these abstractions.
                   o Gény‘s failure: he didn‘t want to concede that this testing-against-social-ends stage
                       would have to be subjective. He wanted to make it a science.
                   o (me: so tragically French! can‘t escape the log. perfectionist Aquinas-map even when
                       recognizing its impossibility or absence elsewhere… wanting ultimately to restore
                       scientificity to law… and no one listens, so he disappears)
                   o (me: also, from his POV, the choice of filling gaps based on social ends isn‘t subjective.
                       We can say: he was deeply committed to social through his Catholicism, etc. – but he saw
                       this is as not a choice.)
                             this is the contemporary legal thought critique of the social: it‘s a disguised
                                  ideology – filling these indeterminacies with ―social interests‖ isn‘t a required
                                  choice, though they treat it as one – and there‘s no way of making this scientific:
                                  it‘s political
                                                          sidenote: Dworkin is like Von Jhering and Gény, in the sense that he thinks
                                                           values are a part of the legal order and can fill the gaps
                                     ii. This too (b.) is a motivated error
                                             o note: institutional differences between Gény and his adoption in US – latter is much more
                                                  radical: Gény assumes legislature is sovereign, this dsn‘t change; in US, this is unsettled,
                                                  so when ct.s build enormous constructs in gaps, striking down social labor laws based on
                                                  invented freedom of contract, etc., this is major (missed)
        Note: What Von Jhering and Gény are arguing for is taking account of actually functioning of markets, families, etc. – make
         it all real, versus simply relying on deduction.
               o they are operating in the ―social‖ – a general societal construct beyond law,
               o and based on a criticism of their primary target: liberalism (they see as dominant political ideology of late-19th C
                    – though there is left-right conflict w/in liberalism: people more and less committed to protection of laborers – but
                    it‘s a really narrow range)
                           b/c liberalism is based on atomic individuals, rights, permits them to ignore the consequences of their
                               actions for others
                           and b/c this way of approaching things creates the catastrophic feedback loops he described yesterday in
                               health, finance, family, labor, war – five characteristic systems where there‘s a danger of a downward
               o places interests of society as a whole above all else

    Two components:
            o conservative social Catholicism
                      note: w/in Catholicism at all times there‘s a left-wing version of social thought as well, just as there is w/in
                          Protestantism (BUT: much more left in Protestantism)
                      so Catholicism is open to diff. interp.s
            o fascism
    Relation btw extreme right-wing social Catholics in Vatican and fascists used to very controversial – but today,
            o there‘s no question that clerical fascism was significant force in Europe and Lat Amer (direct participation of far
                right-wing priests in right-wing govts)
            o and there‘s no question that extreme right-wing social Catholics in Vatican opposed fascism in var. ways, though
                they are criticized for not doing enough. (missed?)
    Note: Japanese fascism (Japanese traditionalist ideology – a product of late-19th C., not actually traditional, just like Serbian
       traditional nationalism) is as significant globally for the hist of the social as Cath and fascism
    DK running through map: basically, the upshot is, in 1941, fascism (and close relatives, right-wing dictatorial regimes)
       comes incredibly close to global hegemony
            o (incl, e.g., Japanese co-prosperity sphere in SE Asia: w/ anti-colonial ideology, they defeat Dutch, Amer, Brit,
                French – and a significant # of the nationalist anti-colonial leaders from SE Asia go to Japan and spend the war in
                Japan – but in each case, again and again, Japan overplayed its hand – to an extent that is in retrospect astonishing –
                so that the local population turned against the Japanese, b/c they‘re ―worse‖ than the colonial powers by a very
                significant margin – colonial powers operating w/in CLT constraints kill a certain number of people – but Japanese
                operating on a different scale, create revulsion – so: e.g. Ang San‘s (Burma) relative spends war in Japan, returns to
                Burma and turns on Japanese)
    also note: in E and C Euro, rise of fascism correlates unbelievably closely to depression (unemployed industrial workers,
       previously socialist/centralist allegiances, becoming right-wing)
            o DK: at what rate did Bulgarian/Romanian econ contract in last 3 months? exactly same rate as in 1930s
    How do we define a social that‘s right wing v. left wing? Based on assigned Encyclical (Quadregisimo Anno) (so tom. we‘ll
       review all the elements of the social that‘s in his article). The elements of the right-wing social v. left-wing social:
            o Left wing = relatively egalitarian;
                      v. right wing = oriented to preservation and development of social heirarchies. The idea of legitimate
            o Right wing = legitimation through authority and reason
                      v. left wing = through progress and reason
                      so: both sides committed to reason. But when they must appeal to transcendent meta-rational value, for left
                          it‘s historical narrative of progress, for right-wing it‘s the Bible/order described by God in Catholic case,
            o Right wing = directly affirms the legitimacy of the private property system (sees property as key dimension of
                natural law, and sees attack on property as a threat to people‘s liberty, and a threat to the basic ordering of society
                based on an appropriate heirarchy)
                      v. left wing social (note: IS NOT COMMUNISM) = alternatives to and variants of private property.
                      So: left -> land reform, peasant coops, gov‘t banking credit systems for peasant communities.
                        v. right -> leave big land owners in place, but develop unused land for peasants
                        and both sides totally in favor of reallocating gov‘t land
              o   Right wing re: family/reproduction = protective of women w/in the context of patriarchy, and very protective of
                  men‘s role as protector of household and preservation of good morals (criminalizing all kinds of sexual minority
                  behavior, adultery, etc.) – sexual liberation as generating social decline
                        Left wing = protective of women, very preoccupied w/ sexual health – seeking liberation as a way to reduce
                           social unhappiness
              o   Re: public law, right wing = syndicalism: Pope calling for participation of labor groups in gov‘t – v. majoritarian
                  individual-based democracy or class-based political parties, participation in gov‘t should be based on organic
                  functional ordering; and ―subsidiarity‖: the lowest effective unit of gov‘t for a given task shd have
                  power/responsbiility over it – you only move from the utterly local up the scale to the extent that efficiency requires
                  you to do so – thus: a structural affirmation against ->
                        the left wing socialist‘s desire for central planning (to overcome the interference of liberal autonomous


4 Mar. 2009

    2 Qs:
         o What is the abuse of deduction?
                  me: finding that logic necessitates an outcome where there is no logical necessity
                  DK does see two categories here:
                            abuse of deduction: which he associates with the claim that a statute dictates a determinate
                               outcome, where in fact it does not
                            “construction”: which involves induction-then-deduction: and this alone is fine – the abuse occurs
                               when it is claimed that there is only one principle that could be induced from the system in order
                               to make it coherent (rather: there are many possible principles to induce to make the system
                               coherent, and we should go with the one whose consequences – when used as a basis for
                               deduction – are best for our social interests)
         o What does it mean to say that the abuse of deduction is a motivated error?
                            note: ―motivated error‖ =
                                    o a Sartrean concept (from ―existential psychoanalysis‖) – he called it bad faith: when you
                                        know it and you don‘t know it.
                                    o Freud came up with same idea re: his daughter Anna – denial as a way of dealing w/ pain
                                        that wd result if you confronted internal conflict.
                                    o The social psych. theories of ―role conflict‖ or ―cognitive dissonance‖ are also the same
                                        idea – you see something the way you want to see. (e.g. judges have role in civil law
                                        countries of simply being conduit for the law – so have motive to see their work this way)
                  judge claiming that law is speaking through him – gives his pronouncements more authority than if he
                      presented his conclusions as his own subjective determinations
                            a way of disguising power as powerlessness
                  and in civil law systems, law is not supposed to be made by judge b/c is legislature‘s volonté
         o NOTE: one of DK‘s irritations: it‘s constantly said that CLT is ―deductive‖ – this isn‘t DK‘s view:
                  it‘s not that CLT is deductive, but that CLT thinkers have a will-to-deduction: an understanding that
                      deduction would be the best thing to have
                  In CLT, judges often have to use methods other than deduction – though they never admit it:
                            e.g. they‘ll look to purpose (teleology)
                                    o note: teleology is the focus of SLT (social legal thought) – so teleology rises and
                                        deduction falls
                  Deduction = you work with positive law and get answers from it, either directly (method #1) or indirectly
                      through induction to principle and then deduction from principle (method #2)
         o Weak way of framing what he‘s saying: In CLT, it‘s a consensus that deduction is the ideal – and this makes it
            easier to understand the motivation for the error; in the social, teleological reasoning is the ideal (but there‘s still
            tons of deduction there).
         o Stronger way of framing what he‘s saying: There‘s always deduction present (whether CLT, or SLT, etc.) – but
            perhaps we can say that at some points a given body of doctrine is understood to permit (experienced as permitting)
            more or less deduction.
         o (interesting: now DK is discussing how law students get indoctrinated into having motivated error to believe what
            their professors believe – precisely 1L experience: people simply believing what told, repeating what professors
            believe, etc. – DK is saying: to avoid cognitive dissonance of having to lie to professor in order to avoid flunking)
   Useful: an actual example of a deductive sequence (from Contracts) and what happened to it: (Q here is: ―Is there a K?‖)
                    1. Will theory ->
                    2. K requires meeting of the minds ->
                    3. In order to have meeting of the minds, you need acceptance ->
                    4. Acceptance is effective on receipt. (the mailbox rule)
         o CLT saw 1 leading directly to 4.
                    Williston does this kind of thing in 1880 on every page of W. on Contracts.
         o Social critics of CLT – at HLS in 1920s – cut off 1 & 2, said they‘re hopelessly vague: 1. & 2. could lead to
              ―Acceptance effective on receipt‖ instead.
                    and if their students tried to derive 4 from 1, they‘d flunk them – 1 is just hopelessly vague re: 4.
         o BUT: the social people do not stop deducing altogether: they are still deducing, just at lower level (the level of 3 or 4
              v. the level of 1 or 2) – they‘ll still say that shouting ―I accept!‖ doesn‘t constitute ―dispatching an acceptance,‖
              based on deductive reasoning – this just isn‘t what ―dispatch‖ means. If you argue this in courtroom, it‘s malpractice.
                    (tho: David Rosenberg (?) said: given enough time, money and law student assistants, he cd dislodge any
                        deductive move)
                    DK: but in practice, this move will always win
         o ON THE OTHER HAND: what if mailbox and house and flooded away after letter arrives and before house washes
                    It could be argued deductively: ―receipt‖ means something other than arriving in proximity to you for a few
                        minutes before being washed away. And other side argues the opposite.
                    Or the judge could say: you can argue either way – the word ―receipt‖ could mean either one, the term is
                        ambiguous as applied to the facts of this case – so there‘s no rational way to decide this through deduction
                        – so we‘ll decide it based on policy.
                    Policy: our two ―social purposes‖ here are:
                               Security of transaction
                               Promotion of reliance
                    And concludes based on this that the determinate answer is x: this will give the offeree great security, etc.
                    And at some point in mid-20th C., someone points out: this is actually as indeterminate as what CLT did.
                        (i.e., Rule x will actually render the offeror’s situation radically insecure.)
         o DK: people are always saying that he says that CLT = deduction – he hates this – he never said that!
   Von Jhering: ―the heaven of legal concepts‖ – a satire of the idea that ―will‖ is more logically perfect of ―dog‖ (which
    Savigny et al would‘ve defended, to distinguish their faith in deriving #4 above from #1 [will theory] from the absurdity of
    concluding that ―dog‖ is this determinate)
   DK: Today, we‘re just a jumble –
         o Someone who has lived through the social would find IHRL‘s faith in determinism of abstract rules extraordinary
         o Versus in 1L Contracts, Torts classes today, sometimes extreme absence of abstraction, extremely concrete
   Sidenote: Richard Epstein, Charles Fried – neoliberal reaction in legal thought, new right – they believe in the restoration of
    the abstractions of CLT (Rehnquist‘s federalist opinions talk about states having powers absolute w/in their spheres) – and
    they affirm their own complete good faith – and they‘re met by Larry Tribe‘s laughter: I can‘t believe you‘re saying that!
    That was discredited in 1902! No one believes that! And they say: the critique was 4th-rate intellectual destruction,
    politically-motivated undermining of one of the pillars of civilization. To which Tribe might respond: Huh?! Read my treatise!
         o Epstein: Simple Rules for a Complex World – CLT works, you can derive private law from the will theory
         o but Epstein has now given up, returned to utilitarianism
   Note: ―efficiency‖ comes into the modern legal consciousness through the critique of the social
         o the critique of ―social conceptualism‖: saying that these social critics of the abuse of deduction are guilty of the
              same thing they‘re critiquing
   Sidenote: and even Savigny recognizes that family law isn‘t totally rational – isn‘t wholly deductive – you can‘t just derive
    marriage rules from the concept of marriage. (Even polygamy is logically consistent with family law.)
   Note: One of the most complex pieces of exposition in DK‘s article we re-read today re: social is the family law in the
    Social section:
         o again, shows how the Social can be right-wing too (as mentioned in last class)
         o Q1: How would you contrast the social attitudes toward family law w/ CLT attitudes twd family law?
                    Savigny: Family is not power absolute w/in sphere: it‘s organic, based on incompleteness of individual
                               v. Social: takes this marginal dimension of CLT (organicism) and makes it central to social as a
                    they both have an organic understanding of the family
                               BUT: the CLT people think the Social people are complete revolutionaries; and the Social people
                                  think the CLT view of family was a complete catastrophe
                    So how are they different?
                    Social says: CLT failed to put the organic unit of family in the context of larger organic social system – the
                        consequences of what happens in the family for society as a whole
                                e.g. child abuse (Von Jhering‘s example): under CLT, morality not law controls the patriarch; Von
                                 Jhering says that‘s crazy: leads to widespread child abuse, which has disastrous consequences for
                                 society – so we need to change the rules to give much more protection to abused children – we‘ll
                                 have family court, juvenile delinquency courts, create a whole apparatus that reduces patriarchal
                                 power dramatically and parental power dramatically
                                      o the right-wing version of this: we need to preserve the society by reinforcing the family
                                           by aiding and supporting mothers – get rid of the ways in which the modern economy
                                           produces child abuse by creating situations in which mother dsn‘t have enough support
                                           and father‘s authority has been undermined. And there will be legal enforcement of this.
                                      o left-wing version says: the way to do this is reduce the power of patriarch and empower
                                           the wife – modify the power relations by reinforcing the power of women
              o   Q2: How would you distinguish left-wing from right-wing speech about the family in the langue of the social?


9 Mar. 2009

SPECIFIC CONTENTS OF THE SOCIAL – the langue of the social
    The actual regulatory initiatives of this period (end of 19th C until 1960s) – they‘re often thought of as ―social law‖ – the
       word is actually there all the time (social welfare, social cost, etc. – see list in ―3 Globalizations‖)
    Today: the market parole of social langue – both common and civil law
    SO: me: note: first reading (Pigou) was social law (well, actually economics, but relevant to law) re: market in common law
       context, second reading (Wieacker) was in civil law context
    Pigou: founder of modern welfare economics (his predecessors: Marshall, Sidgwick) – The Economics of Welfare,
       foundational text.
           o Pigou‘s fate: the most discredited author of modern economic theory –
           o ―The Problem of Social Cost‖ by R. H. Coase (containing Coase theorem) is a root-and-branch devastating critique
                of the piece we just read
           o Pigou‘s most basic idea: distinction between private and social cost – is object of Coase‘s critique
    Wieacker‘s book is also a classic – foundational for Euro legal history.
    PIGOU
           o Private cost v. social cost
           o The social = a way of thinking about law that we understand as distinctly antagonistic toward CLT
                      ―the social‖ has many different meanings – in economics, the meaning is an appeal against the theory of
                          laissez-faire and perfect competition that has been dominant within economics basically up until this point
                          – both classical and neo-classical economists have a deep commitment to the idea of freedom of contract,
                          absolute property rights, laissez-faire.
           o Pigou is setting up an elemental challenge to laissez-faire: respects in which there may be a failure of a perfectly
                competitive market. (i.e., large enough buyers and sellers and few enough transaction costs so that no buyer or
                seller has any power to modify the price of any commodity – me: all are price-takers – under these conditions, the
                price will be driven down to the marginal cost of its production including a profit sufficient to make producer
                produce it; and there is an equilibrium in marginal utility for consumers and the amount being produced… missed
                the details of this, but basically: a harmony, everything getting satisfied.) The laissez-faire idea was of a harmony
                between buyers and sellers, etc.
           o Pigou is saying: even under these ultra-ideal conditions, (the social won‘t be achieved)
                      The social here is in contrast to the private: the social = an interest in the welfare of everyone in the society.
                          And that won‘t be achieved through the vehicle of the private economy as it‘s understood in CLT.
           o It just won‘t work – you can‘t expect a regime of property and contract, even w/ perfect competition, to produce a
                perfect maximum – and the problem is the divergence between
           o Pigou is responsible for formalizing the concepts of positive and negative externalities = difference between
                private cost and social cost. Externalities are a crucial component of the social.
           o DK: Every rule in the system (in social legal consc.) can be put on trial by asking the question whether under
                conditions of perfect competition – or (says Pigou) monopolistic or oligopolistic competition or bilateral monopoly
                – ask whether a given rule will create positive/negative social externalities, and whether if we leave the rule in place
                the result will be good or bad
           o Externalities are the social consciousness’ justification for modifying the rules of property and contract
                understood to be implicit in CLT, deductively derived.
                      (so my notes were basically right)
           o BUT: DK: the way he‘s put that is too characteristic of the 3rd globalization. The social people think instinctively
                that “we need to regulate,” not “we need to change the private law rule.” We need a congressional law, a federal
                enactment, a federal regulatory regime that will displace private law with public law, regulatory law, administrative
    law, in Europe they call it social law. (All the same thing.) Euro. calls it social law and sees it as part of public law.
    We in US generally call it administrative law or (missed).
o   Categories: THIS IS THE SOCIAL:
          consumer protection law
                   in US, Federal Trade Commission, Food & Drug Administration – created by Teddy Roosevelt in
                      pre-WWI Progressive era – goal seen as displacing private law. The statute provides very vague
                      general standard, and then to enforce it, instead of a private lawsuit, the regulatory agency has an
                      inspectorate with powers who gather info about market and bring criminal penalties w/ low
                   so: we have the old private law regime – the new rule
                   (note: the idea that an administrative agency wd be less democratic than common law judge would
                      have seemed absurd to the social – admin. agencies are appointed by executive!)
          note: securities regulation/reforms & labor law
                   US is last to come to these – not until after WWII.
                   but there‘s giant labor unrest in Cont. Euro. after WWI, understood as great threat to capitalism –
                      labor keeps getting mowed down by private police – massacres.
          labor law
                   CLT just doesn‘t work for this, social says
                   the crucial labor law innovation of the social: to permit the labor union to represent in
                      bargaining (and then to impose the outcome of the negotiation on) unwilling persons
                   if the union is ―certified‖ or the ―official representative‖ (different in US and France model), you
                      as a worker in the enterprise are bound – whether or not you‘re a member of the union paying dues
                      to it. Sometimes there‘s compulsory unionization.
          securities regulation
                   the crucial concept is disclosure: requiring someone who is issuing securities to get them in some
                      vetter by a public authority to whom disclosure must be made – and then to make compulsory
                      disclosures to the buyer of the security
          banking regulation
                   the idea is: protection for depositors – beyond the protections they acquire through contract with
          determining what terms insurance companies can offer, etc.
          monopolies
                   they‘ll underproduce to keep their prices up
                   so they‘ll be regulated by public utility commissions (electricity, railways, water, lighting, etc.),
                      which determine terms of service and rates
o   Sidenote: generalization: the people who produce Social langue assumed that CLT was coherent – you cd deduce
    such a system as they said they did – and this system even fit early 19th C. conditions well, perhaps – but as result of
    explosion in interdependence in mid-late-19th C., letting individuals injure each other w/o liability is problematic:
    everyone is now part of these really complicated networks – which will lead to feedback loops – a person injured
    w/o remedy by one person will shut down operations that will effect another, lead to another reaction, etc. (e.g.
    shutting down for fear of being defrauded) – and this will destroy the whole system.
          The admin agency‘s project wil be to produce rules that follow the logic of the social v. the logic of
             individualist private law – i.e., attuned to all the ways one person can injure another w/o just compensation.
             And then, in addition, social thinkers will adjust the rules to prevent feedback loops.
o   When you step back, it‘s fairly easy to say that there is a language: a set of concepts that have to do with three
          norms
                   an array of typical regulatory norms that are available whenever you want to regulate in a
                      particular area: a list of typical norms that you can then apply:
                            o good faith
                            o fair dealing
                            o reasonableness
                   classic ―standards‖ that are understood in contemporary legal thought to be understood as just as
                      much in private law as public law
                   BUT: social saw private law as radically hostile to standards, e.g.:
                            o the basic problem in consumer protection law was a coherent/consistent law of fraud:
                                 CLT common law said: in order to show fraud, you have to meet a strict set of
                                 requirements (you need a statement (not silence), known (as opposed to accid/neglig) to
                                 be false (so need a matter of fact in Q), that was intended to and in fact did reasonable
                                 reliance to the detriment of the recipient of the false statement) –
                                         o      the idea was: this is built into CLT – very restrictive – this was understood as just a
                                                consequence of what it means to have a common law securities regime
                                           o v. Rule 10b5 of Sec & Exch Act: gets rid of common law of fraud and replaces it with a
                                                standard (―false or misleading‖)
                                  OR: another e.g.: in labor law, they used standards to say: (missed)
                                  So: the theme is the following: CLT didn‘t make people liable enough for injuries inflicted on
                                      others. When they say the CLT are individualist and that‘s bad, a concrete meaning of that = ―very
                                      limited liability for fraud.‖ (i.e., one person can defraud another under many circ.s and there‘s just
                                      no remedy – which leads to all kinds of negative social consequences – all kind of externalities)
                        institutions
                                  administrative agencies
                        sanctions (remedies)
                                  individual rights of action are no good b/c we need response to general social prob
                                  so agency shd have power to issue injunctions (e.g. for a whole industry to use filters on its
                                      smokestacks), collect damages, etc.
                                  inspections, low-level fines
                                  note: the logic of private law = making individual plaintiff whole re: injury to her assets; v. the
                                      logic of social law: could radically undercompensat or overcompensate based on individual, if that
                                      was only way to advance interests of society as a whole
             o So: the model: even under perfect competition, CLT won‘t achieve social optimum – much less under imperfect
                        note: in contemporary law and economics, you respond to this by arguing that the private law rules should
                           be changed to take care of the problem of inefficiency
                        but in this regime, you don‘t do that – you have an alternative mechanism – regulatory agency – and norm
                           – the standard.
             o Note: And social thinks that these reforms can‘t be left to courts – they‘ll just screw it up. And they did – when
                  common law courts were put in charge of civil codes in 19th ., they just read private law CLT back into it.
                  Judges don‘t have economists/engineers working for them, they give individual remedies (v. injunctions to whole
                  industries), etc.
             o Bismarckian reforms:
                        note: leading up to German Civil Code 1900 (ultimate example of CLT in many ways), there‘s a huge
                           dispute between social guy Gierke (claiming to base his ideas on feudal pre-CLT traditions) versus the
                           drafters of the code (understood to be rigorously liberal/romanist/CLT) – usual interp. is that Gierke forces
                           lose almost entirely and GCC and CLT.
       Transition: A note re: Gény and the other guy in that day‘s reading: the Social started from private law people. But by WWI,
        the idea that you could reform the society through private law is gone. A series of crises/wars/etc. have changed things: WWI
        has created a lot of state intervention in housing, labor, etc. (as 2nd reading says). Though Mussolini will still be propagating
        Civil Code (i.e., private law) in 1942, the original people who were in favor of reforming things through private law are
        disillusioned, no longer see that as the way to go.

    This excerpt is striking in the sense that he‘s writing after WWII – after von Jhering, all the social private law people – the
     idea that CLT is coherent is still there – even though no advanced American thinker of private law thinks this by then.
    The drama of European legal theory self-conception is: the coherent CLT law was great, beautiful, a science, what made us
     gods, responsible for our prestige – but when combined with social changes of the type that occurred, it produced
    VERSUS: the regulations that have come about under banner of social are piecemeal, incoherent, chaotic:
          o internalizing the costs they‘re imposing on others
          o transform the administration and the remedial system to deal with feedback loops
          o etc.
    This is the tragedy of our situation in 1945, Wieacker feels: our problem is to render all of this coherent.
    Private law has been rendered completely incoherent b/c we never know when it‘s going to apply
          o when it was the only law, this wasn‘t a problem
    And what has replaced private law has no coherence at all
    The pathos, tone of a certain kind of European intellectual after WWII – the civil law system is in ruins, covered by the flora
     of social law, wild animals of social law running around in it
    What to do?
    What we have is better than liberalism, fascism or Stalinism, but we‘re reduced to the role of people being nostalgic for the
     coherency of an earlier day.
    We need to do the work of the Glossaters – medieval jurists of 13th C who reconstructed Euro law.
    SO: This is a very important part of the social: two camps:
              o   There are the enthusiasts
              o   and there are those who see it as psychic and cultural catastrophe.


10 Mar. 2009

Frances Olsen‘s article – a real classic
part of her SJD dissertation at HLS, DK was supervisor
      DK: one very striking element of article: that it‘s very important to understand ―state/
      civil society: not the state
      A very fundamental way of talking about state/civil society:
              o the public/private distinction is reproduced both between state (public)/civil society (private) dichotomy terms and
                   within Civil Society term, where there is a market/family distinction: market = public; family = private
              o SO:
              o I. State (public)
              o II. Civil society (private)
                          Market (public)
                          Family (private)
      Also: Olsen notes the striking parallels between:
              o development of notion of market in 19th C. (CLT on market)
                          (as domain of private will – i.e., everything we‘ve discussed: indiv. will as power absolute w/in its sphere –
                              and laissez-faire = leaving this unregulated by the state)
              o and development of notion of family in 19th C. (CLT on family)
                          (CLT sees family as only to some extent a legal/rights-based institution – it‘s also heavily morality-based:
                              which means that legal intervention is limited – two ways of seeing the limitation:
                                    Savigny: the basic institution of family law is patriarchal power, the basic idea of which is that the
                                        father has authority over his wife and children – an authority given him by law – he has superior
                                        legal rights – BUT: this doesn‘t mean he doesn‘t have moral duties
                                    Riva Siegal: in 19th C, the patriarch‘s authorized power over disciplining individuals, etc. – is
                                        now conceived as justified by the family being a private sphere – and state shouldn‘t intervene b/c
                                        this will destroy the delicate balance of altruism, etc. (people will stop considering each other as
                                        part of the organic unity of the family and will instead see one another as opposed individuals)
              o so: in both cases, the state is seen as the state leaving things alone
                          BUT: a very important role the state has in 19th C laissez-faire economy is enforcing property/contract
                              rights through both criminal law and civil law
              o key: laissez-faire in the family (in a sense) goes much further than laissez-faire in the market: state dsn‘t even
                   enforce contracts between husband and wife – because legal structures would be counterproductive.
      Then: Olsen: two further ideas: the relationship between family and market:
              o Lag theory
                          one preceding the other
                          family lagging behind the market – Savigny‘s model of family has strongly feudal quality – rights of
                              patriarch are still there – versus his market/potentialities law all based on formal equality
                          in the last part of 19th C., first part of 20th C., we get women receiving similar legally enforceable property
                              rights as men – then getting rid of marital rape exemption, battery legislation, etc. – and child custody
                              becomes more an equitable adjustment – the family catching up with the market by making husband and
                              wife equal rights-bearers re: property/contract.
              o or as polar opposites
                          two institutions having opposite ethoses at all times
                          within this way of thinking, the market is thought of as the domain of
                              individualism/selfishness/autonomy/initiative/self-reliance/innovation, whereas the family is thought of as
                              the domain of altruism/sharing sacrifice/stability/organic unity as opposed to individualism
                          this way of seeing things is the basis for the particular role that the family plays in the social legal
      With respect to the overall structure, the social is identified with the notion that society has become interdependent (b/c of
          industrialization, rise of large corporation, organizations, etc.) and social people understand society as organism (not
          autonomous individuals exercising rights) – with the result that social people are often deploying family as concept for the
          reforms they want for market:
              o in CLT, family is unmistakably a peripheral institution; core is unquestionably the market – family is exceptional
                   (though essential: you need an individualist sphere and an altruistic one)
              o social wants to make market more like the stereotypical image of the family: and this is sometimes treated as a
                   feudal restoration move
                     and some segments of social even refer explicitly to wanting to return to feudal in some sense – everything
                      that was good about feudalism
                   e.g. Meineke/Steinfeld/Siegal: in the medieval/early modern household, the lord had all kinds of duties to
                   (and then deregulation means boss dsn‘t have many obligations to employees)
                   the CLT people see this social call for feudalism as regression
                            BUT: the social people say this is wrong: we‘re not restoring the power of the boss v. the
                                 employee, the manufacturer v. the consumer
                            what is sought is not heirarchical
         o the argument is, in any case: an appeal to the ethos of the family as a model that can be applied to marketplace, v.
             deregulation of market in 19th C
   Family law in the social:
         o The regulatory program involves taking the moral duties that Savigny has identified and then making them legal
                   while at the same time recognizing privacy, and that legal obligations alone are insufficient – they‘re not
                      for total legalization – education, etc. will play a huge role
                   How does organic unit of family relate to organic unit of society as a whole?
                   Lasch will say this as critique: the social has turned the family into a unit to be regulated
                   But social will deny it wants to do this
         o Reforms: ending child abuse, ending spousal abuse, temperance movement (part of ending abuse), etc.
         o Social work understood to be a science – a social science
         o Family law in the social will be very typical of the social:
                   new institutions
                   new professions (like social workers)
                   new remedies
                   so: rather than building up private law rights, things are done by… e.g. regulatory agency that
                      collects information and can offer low-level criminal sanctions (like housing inspector called by tenant,
                      and then housing court fines landlord – it‘s not about tenants‘ rights – it‘s about securing the quality of
                      housing through codes and regulatory enforcement)
                   the remedy is chosen in the interests of the collective rather than to make the individual plaintiff whole
   So: what he has been discussing so far are reforms that attempt to make the family more like the ideal family –
         o ideal of family: altruistic, etc.
         o nasty patriarchs have been getting in the way of this
         o so what we must do is enforce those high altruistic duties against the patriarch thru mechanisms like what he‘s just
             described – regulatory agencies. etc.
   BUT: there‘s another idea at play here as well (will eventually become the dominant idea under contemporary legal thought)
         o reforms that attempt to make the family more like the market
                   = reconceptualizing husband/wife/child as independent, autnomous rights-bearers whose relations among
                      themselves are based on autnoomy and contract
                   rather than saying husband should be altruistic, saying: husband and wife should be equal
                   this idea began in CLT and continues on into social
         o based on LAG THEORY
         o First-wave feminism: overwhelmingly Anglo-Saxon movement
                   it argues that a major social problem of the family arises from women‘s lack of legal autonomy
                   so: the bad conseq.s for society of family malfunction are not just wife-beating, etc., they‘re also closely
                      related to unequal rights of women re: custody of children
                   women shd have equal rights w/ father to custody of children
                   women shd have right to divorce
                            very important idea
                            a major dimension of social malfunction is the ways in which women‘s lack of ability to get out of
                            we need to make marriage more contractual
                            e.g. a right to breach, just as labor law
   so: we have two strands in social: an equal rights strand and an altruistic strand
         o this will create conflict between left social (equal rights for women; focus on women‘s autonomy) and right social
             (the protection of women; me: ―difference claim‖) –
         o right says: men get superiority in the public sphere, in the market (family wage theory – male head of household shd
             get enough money to support family in such a way that woman is not working – reinforces authority of the husband;
             and we‘ll make wife even more dependent on husband); women in the private sphere (authority of patriarch won‘t
             be reinforced here: instead, a shared model of marriage).
                   So right social reinforces public/private distinction
         Another dimension of this story: sex
              o in the Savignian model, and also in the late-19th C separate spheres family ideology, sexual practices outside
                   marriage are heavily regulated – of course, there‘s a spectrum, but the BG idea is that female adultery, premarital
                   sex, homosexual sex, are all very heavily criminalized: the basic idea is that the world of 19th C tries to enforce thru
                   the criminal law various restrictions on sexual practices
                         based on an idea of men as promiscuous and women as monogamous – former not a problem so long as
                             they fulfill their obligations; latter great for interests of society
                         BUT: there are prostitutes: a major part of sexual life of 19th C –
                                   also: equivalent of AIDS epidemic in late-19th C: the epidemic of syphilis – a major cultural event
                                   [tuberculosis and syphilis are the 2 defining contagious diseases of late 19th C in core countries]
                                   social agenda cared about public health – and was willing to interfere with people‘s autonomy
                         right-wing social responds: authoritarian/regulatory: we need to enforce conventional sexuality to the max:
                             quarantining people; treating people against will for syphilis
                         left-wing social: libertarian re: sex
                         and this will persist into contemporary legal thought
         An illustration of the social in the law of sex and reproduction:
              o What is the typical social idea about what to do about prostitution?
                         Model: public health
                         You have an inspectorate – every social proposal involved an inspection: compulsory inspection of
                             prostitutes for VDs (not of their Johns) – so: a department of public health authority – we need some
                             studies also
                         So:
                                   licensing of individual prostitutes
                                   or: licensing of brothels (an institution)
                                            o latter is even more social than former (a functioning social institution)
                                            o make all prostitutes operate out of brothels, so that you can inspect it
                         Legalization, regulation, mandatory checks for health, venereal diseases, professionals going out to monitor
                             conditions, end abuse of women – in order to promote interests of society as a whole
              o NOTE: another recurring feature of social that we haven‘t discussed much: not moralizing about problems, but
                   treating them from scientific point of view – if you simply ban prostitution, it will go underground
              o Guiding ideas of criminal punishment:
                         CLT: punishment
                         Social: rehabilitation
                         Contemp LT: deterrence
         In Contemp Legal Thought, the attacks on the social will be brought full-bore against this treatment of prostitution – tried in a
          few places, abolished everywhere
         Q: What is the relation between this and prisons?
              o A generalization about SLT (will also be relevent re: ContempLT):
                         CLT has a swiss-cheese quality – there are domains of no law:
                                   the most obvious being the family –
                                   but also: official (court) custody (e.g. of children) (prisoners, police in police custody, mental
                                            o people in this custody aren‘t legally autonomous
                                            o thus they‘re under control of the person in custody
                                            o (in CLT, you have no rights)
                                   public international law: no individual has any rights vis a vis states
                         A basic idea of the social is to begin to fill in the Swiss cheese empty spaces with regulatory initiatives
                         In contemporary legal thought, it‘s total problematization of these regulatory/public/institutions – but these
                             are subjected to individual rights
                                   e.g. League of Nations – attempt to create regulatory insitutions
                                   or custody: people begin to imagine that we need regulation of orphanages, jailhouses, prisons,
                                       mental delinquent homes – SLT: like the inspection-regime for parental abuse – and in
                                       ContempLT: these become individual rights vis a vis institutions


11 Mar. 2009

In what sense was PIL in the interwar period as portrayed by Berman comparable to Social on family and market in national context?
                 1. Can we see an analogy between Von Jhering‘s piece and Redslob as portrayed by Berman?
             2. Can we find analogies between the new regimes of PIL created in interwar period and what was happening in
             national economies?
    Goal would be to see a double dimension of the langue/parole distinction here
   Social
         o Market
         o Family
         o Public: 1. is PIL as Berman describes it an instantiation of the social?
                   2. specific solutions used by lawyers at the time: is this like a parole of the social-PIL langue?
         o Const
         o Admin
   If Von Jhering (Law as a Means to an End) is a foundational text of the social – what is it about? the law of property: a
    particular take and critique and attempt to get beyond Savignian/CLT understanding of property – does the development
    described by Berman – is it in any way equivalent to what Von Jhering is doing? (this isn‘t what Berman is doing)
         o us:
                   interwar PIL is a critique of CLT-like PIL focused on sovereignty of states
                   nation as organic unit (like family) –
                   the recognition that there are intermediate groups below the state and above the state – like institutions
                       in national context (as in Wikipedia on fascism)
                   and not self-contained: letting them interact like sovereign states or power-absolute-within-sphere
                       individuals in CLT will create destruction for world as a whole (= society)
                              hence we need League of Nations to prevent downward spiral
                              and regulations like ―self-determination‖ (through plebiscite, etc.) etc. – the specific tools they
         o others/DK:
                   in 19th C thinking in PIL the way interwar (Redslob et al) reconstructed it (whether or not this is accurate),
                       an unproblematic correspondence was seen between nation as ethnic/religious/cultural entity and state
                              Savigny: what a state is is the concrete embodiment of a nation
                              this both is the case and is what ought to be the case –
                              an experience of normative coherence
                   then we get the First World War (and in fact, something like this had been happening in other parts of the
                       world even earlier, in e.g. Latin America, but in WWI esp.: as Russians were defeated by Axis powers in
                       middle of WWI – Treaty of Brest-Litovsk (?), they lose Poland, etc.; and Austro-Hungarian and Ottoman
                       empires fall apart)
                              so: in wake of WWI, empires fall apart
                              everything is up for grabs
                              the basic problem of this: viewed re: ethnicity, the people are too mixed together to draw
                                  coherent national boundaries
                              in the vocab. of the period: there will be a problem of minorities
                                       o note: ―minorities‖ are conceptualized as having a ―kin state‖ (with exception only of Jews,
                                            who have no homeland – until Balfour Declaration of 1919, which creates special relation
                                            btw people of Jews and UN‘s British Mandate post-WWI in Palestine)
                                       o and the people from the kin state will also live in the state next door (Romanians in
                                            Hungary or vice versa, etc.)
                   the danger is repeating WWI – the risk of war because of conflicting wills
                              but: you can‘t draw the boundaries so that each territorial area is ethnically homogenous
                              so you need some way of dealing with this fact – if you just draw the lines arbitrarily, the kin
                                  states will always have passionate commitments to their people in other states, this will always
                                  cause problems
                   note: re: deciding these issues by plebiscite (one way of going forward) – whoever picks the outlines and
                       rules for the plebiscite will have massive effect on outcome
                              but plebiscite is only one from a long list of techniques for dealing with the problem we‘ve now
                   Von Jhering: the Q is not what individuals want, but social ends – the social/collective welfare of society –
                       this is what he claims the legal rules should promote. The law of property isn‘t there for individual owners:
                       it‘s for the benefit of societies.
   DK: clearly an analogy w/ PIL:
         o power of property-owner over territory in private market law CLT
         o = state sovereignty in PIL CLT
         o (property in private market law analogous to sovereignty in PIL in CLT)
   And thus:
         o the social welfare, the true end of law according to Von Jhering, in private market law Social
                     such that the protection of individual will flows from this interest
        o    =?
                       Berman says interwar thinkers refuse to choose between the two earlier (19th C CLT) models:
                              state sovereignty positivists
                              and the equally Savignian idea that the state should simply be an expression of the will of the
                                  people (liberal nationalism)
                    They see a contradiction between these two, and see this as a problem
                    B/c:
                              if we don‘t divide up states according to nations (state sovereignty model), conflict results;
                              if we do divide up states according to nations (liberal nationalism model), conflict results.
                    Their solution is to preserve both state positivist idea and liberal nationalist idea, through
                        ―experimental statist formal innovation‖:
                                       o the jurists develop new legal forms within which the nationalists will have to operate.
                              DK: note: this isn‘t experimentalism as in science – it‘s not having a hypothesis and then verifying
                                  it by objective measures; and it‘s not scientistic; rather, it‘s like experimentalism in art.
                              What Berman is arguing is that what these people are doing is like what Picasso is doing: formal
                                  innovation, not trying to represent reality, but attempting to achieve a kind of coherence (as in 12-
                                  tone system, or Les Demoiselles d’Avignon).
                              The thing being subjected to formal innovation is: sovereignty.
                                       o the idea that the sovereign is absolute w/in his sphere
                              The key e.g.s of this experimentalism will be: (see list p. 1796)
                                       o internationalization
                                       o self-determination
                                       o minority protection treaty
                                                 after WWI, Versailles makes these treaties a condition of becoming a state, of
                                                     becoming sovereign
                                                 thus inconsistent with the model of sovereignty
                                                 KEY tho: NOTE: this isn‘t a human rights system – this is the opposite of a HR
                                                     system: here, you can‘t disenfranchise your Hungarians in Romania, and if you
                                                     do, Hungary will bring Romania‘s violation before PIL bodies. This is based on
                                                     collective rights enforced by kin states versus individual rights.
                                                           (sidenote: always rem: in MA, we had established church until 1848!)
                                                           so: one story would be PIL: state sovereignty (CLT) -> collectives
                                                               (Social) -> individual rights (ContempLT)
                                                 KEY ANALOGY: Just as in Von Jhering, individual can’t do whatever he
                                                     wants with his property (or, other reading, with his child), so in interwar
                                                     thought as presented by Berman, state can’t do whatever it wants with its
                                                           and sidenote: we might also want to ask skeptical questions about these
                                                               minority protection treaties: only imposed on defeated powers… May
                                                               be part of a strategy of domination by victor countries, just as ―unequal
                                                               treaties‖ were in previous class.
                                       o plebiscite
                                       o mutual immigration and citizenship
                                       o economic union (sovereign states bound together by treaties preventing them from
                                            exercising full economic autonomy)
                              These are the langue of Social PIL, and these words (internationalization, etc.) are the key
                                  words in the langue
                                       o with the 1947 UN Resolution re: Palestine being a parole in this langue
                                       o this is just a combination of the same terms that were also used re: the Saar, Rhine,
                                            Danzig, etc. – other paroles
   SO: again: the analogy is between the state and the property-owner
         o the state is no longer sovereign – it is restricted re: e.g. what it can do to minorities (presuming kin state of minority
              actually raises objections in the int‘l system)
                    versus today, we‘d say individuals in minority groups have human rights
         o just as the patriarch is limited in what he can to do to child in the wake of Social child-protective legislation (they
              can take away your child if that‘s what‘s in the interest of society)
                    versus today, we‘d say child has individual right
   KEY: rem: Von Jhering says it‘s an illusion that in CLT there were really powers absolute w/in their spheres – this is a
    classical misconception of their own law – in CLT, owners did not have a power absol. w/in their sphere – they thought they
    had it – the jurists and texts and treatises said they had it –
              o   But VJ says: this was wrong. In fact, there was no power absol. w/in its sphere re: property. Even all the way back to
                  Roman law. Even back then, when property owners‘ act was destructive of social interest, the state just wdn‘t let the
                  property-owner do that. (e.g., rights-of-way, etc.)
              o ―powers absol. in sphere‖ weren‘t the basis of the law but an instrument of the law to achieve social ends
              o so the limitations proposed by Social are limitations that have always existed
         Similarly: in PIL, people are arguing: we need to limit the power of the sovereign in the interests of humanity (to avoid
          war and devastation)
              o dsn‘t mean abolishing states (they‘ll have palaces, flags, etc.)
              o but the state must protect its minorities
         DK: and there‘s an analogy here w/ Gény here too! re: abuse of deduction
              o G says the principle flaw of CLT is the abuse of deduction – e.g. saying you can deduce right-of-way from ―power
                  absolute w/in its sphere‖ idea – from the concept of property – no, you can‘t!
              o likewise, in PIL, the classical publicists abused deduction constantly to make the system look as tho it‘s based on
                  state sovereignty, but it‘s not


16 Mar. 2009

Today: Start of how the social globalized: family law/sexuality/etc.
Tom: Main theme of tom will be public law understood as ―econ. development policy‖
          Note: Con.ism = relatively minor theme in the globalization of the social
Wed: Public int‘l law – the IMF and the World Bank as characteristic transnational social institutions
First class after Spring Brk: the critique of the social (from left and right)

         The Social as it developed is product of Germ, Fr, a few Amer thinkers
         Its initial process of spread is within the core: von Jhering immediately read in France, US (trying to prove their own
          cosmopolitanism by reading Germ.s and Fr.) (but Britain a deep laggard – hard to find the leading thinkers of the social who
          are British)
                o it then proliferates across the world – where it is associated with two stages:
                o First part: (e.g.?) Latin America:
                           1. Lat Amer jurists go to France to study all the time – they‘re there at the founding, getting doctoral
                              degrees (starting in 1890s), going home, hooking up with reform movements
                                    Germ less often, b/c more difficult to learn for Spanish-speaker
                                    (also: Fr Code -> Span Code -> Lat Amer Codes)
                                    and path dependance: once some people go to France, others follow
                           2. influence of Cath Church in Lat Amer
                                    as we saw, Cath thinkers at the highest levels, up to Pope, are committed to social as alt. to liberal
                                       individualism right from the start of the social
                                    (and the French influence is indirectly Catholic also)
                           3. the rise in Lat Amer in the 20th C of self-consciously left and right pol parties and movements
                                    and Argentina taking in anti-clerical Euro immigrants w/ left BGs
                                    and rise of ―Hispanidad‖ movements oriented toward something like fascism
                o Second part: Post-colonial development of the social
                           in nineteenth century, independence isn‘t the goal really anywhere
                           all over the empires of the Fr, Brit, Dutch, Belgians, Amer.s (Philippines, Puerto Rico) (all of these
                              combined a giant part of pop. of globe) in 1920s and 1930s begin to generate national oppositions aiming at
                              independence – an anti-colonial struggle (steadily growing in interwar period)
                           slogans of colonial regimes (even when engaged in violent repression etc.): econ development and the
                              welfare of the colonized people – incl. a very limited educated natives brought to the metropole to pursue
                              higher education
                                    W. Africans -> Brit, Fr.;
                                    E Afr -> Brit;
                                    Vietnamese such as Ho Chi Minh -> Fr. (becomes communist right away, founds anti-colonial
                                       Comm. newspaper for Indochinese students in Paris)
                                    Middle East such as Sandhuri -> Fr. (becoming protégé of Lambert, leading light of Fr. social
                                       thought) (many even in Brit territories go to Fr. because of antagonism twd Brit, and Fr govt‘s
                                       desire to screw Brit.s by training Egyptian legal elite in France)
                           these colonials all arriving in interwar period
                           end up turning against the French more or less everywhere
        For the Brit side, the 1920s-30s are emergence of serious large-scale Indian nat‘l indep. movement –
         closely linked intellectually w/ Indian elites from all regions (both Hindu and Muslim) arriving and going
         to Brit universities – hooking up very quickly w/ British fabian socialists – typical not-Communist, not-
         Marxist British socialists, deeply sympathetic to anti-colonial movements: not generally jurists, tho a few
         are. And the nationalists acquire a significant training in Britain socially-oriented social-institutional
       In Africa, an important category: people converted to Christiainity. Missionaries a big part of Brit colonies
         in Africa, v. Fr. African colonies. Many of these go to Brit and receive education in social Christian
         ideology, which blends w/ their nationalism. Nairere is important example of that.
       or: in Singapore, Lee Quan Yu, studies at London School of Econ – hotbed of social ecnomics and social
         thought, some Marxists.
       So: in sum: a lot of people from colonies coming interwar to metropoles, receiving generally social thought
         educations, some receiving social thought legal educations. And have a mix of nationalism and anti-
o   MARKET LAW (K, P, T)
       Rem: The social agenda in private law in the core countries: a reaction against the doctrines associated w/
         CLT, which is seen as suffering from radical individualism and absurdly exaggerated commitment to
         deduction that often produces abuse of deduction.
               And according to Social critics, CLT people believed that from mere concept of Contract or
                   Property, it will be possible to work in great detail what the specific rules are.
               And these rules ignore the interdependence of elements in the economy, create too large spheres of
                   non-liability, lead to catastrophic consequences –
                        o in tort law, the problem is ―negligence‘: there‘s too much ―no duty‖ and too many
                             domains where you‘ll never be able to show that the factory was negligent, but industrial
                             accidents happen anyway.
                        o in financial domain, failure to regulate financial markets through private law causes
                             panics, meltdowns, fraud, etc.
                        o in contract: landlords allowed to rent insalubrious premises that lead to epidemics
               The slogan is: socialized private law. More liability for powerful actors (sellers v. consumers,
                   landlords v. tenants, etc.).
       This socialized private law will now be exported: first to the S.ern Euro periphery (Greece, Italy, Spain,
         Portugal) as doctrines that fit together w/ Latin ideas b/c they‘re supported by Cath. Church, and they fit
         naitonalist agendas in S.ern Euro.
       Then exported to… Then to post-colonial world.
       Q about reception:
               when we discussed the process of globalization of CLT, rem.: what wd make it plausible for Lat
                   Amer legal intellectual to like some of the distinctions in CLT (e.g. btw law of market and family
                   law) – to get handle on global. of CLT as not just imposition, but as complex interaction btw core
                   and 3rd-world legal elites.
               Shalakany: discussing Egyptian Civil Code: presents a kind of idea about what Sanhuri (author of
                   code) thought he was doing [me: using ―social‖ to mediate between modernity and Islamic
                   tradition]. Note: Sanhuri‘s Code became model for whole region.
               Q: How is Shalakany‘s idea about the reception … how reception of social private law cd be seen
                   as interaction between center and periphery v. imposition (b/c colonialism is over, there‘s no
                   jurisdiction: why were these ideas accepted by the third-world elites?)
                        o social private law doctrines in K, P, T (unconscionability, strict liability, etc. –
                             Shakalany lists) mediate btw modernity (which he wants for his country, to be on equal
                             footing) and Islamic tradition (which he wants – to get support from conservatives?)
                        o and Roscoe Pound had already presented the social as something that returns to feudal
                                   v. CLT dsn‘t
                        o he says: it returns to Islamic roots – altruism, moralism
                        o Modern law = the social = Islamic law
                        o DK: Sanhuri has two goals: identity and redistribution
                                   identity: is trying to modernize the law but also make it Islamic
                                   and redistribution:
                        o What we‘ll see in one country after another is the equation of the social with a national
                                   each country will find something peculiar in its own past and say: social private
                                      law recovers this
                        o So: the thought process:
                                   There is a national identity –
                                       (Islamic law) is a part of that identity –
                                       the social fits perfectly with that which is particular about the national
                                        identity of (Egyptians).
                                    So that traditional Islamic law = the modern, which = the Social.
                The next problem: how to generalize this into a schema that‘s applicable in other places.
                         o The idea that the nationalist projects are identical with the Social: why is this? why do the
                              post-colonial elites say this?
                         o to be able to say: When we import the Social from the West, from our colonial masters,
                              their world, that doesn‘t show our subordination, but rather it just shows that we‘ve
                              brought home what has always been ours?
                Over and over again, in one country after another, the nationalist project is held to be associated
                    with, coherent with, equal to the Social, which is also the modern.
                Other examples:
                         o Nairere: leader of Tanzanian independence movement – educated by Christian
                              missionaries – socialist ideology of Ujama (?)
                                    note: intense Cold War tensions in this time – you can get your post-colonial
                                        ideology either from USSR/Chinese or West (?)
                                    DK: Nairere may‘ve gotten money from Eastern bloc, but his model of
                                        socialism is not at all theirs (state-controlled, centrally-planned), it‘s much more
                                        like West
                         o Ghandi: assertion of Indian values against Western individualist values.
                                    and also Nehru (trained in Cambridge, associated w/ Brit Fabians), conflicted w/
                                        Ghandi, influenced by USSR
                         o in Indonesia, the Panchasilla: 5 principles characteristic of Malay people (all very social
                         o in Russia, Slavophile discourse exalting Russian peasant village as quintessentence of
                              Russian culture – a solidarity village community
                         o in Mexico, the Ahido system: understood in Mexican nationalist discourse as pre-
                              Colombian insitution of Mexican social rural organization – resources shared, etc.
                         o in Senegal: Négritude of Leopold Sangor (a poet/nationalist president), anti-Soviet
                         o in Lat Amer, conflicting references: to Lat Amer native peoples, or at other extreme,
                              Hispanidad as attirubte of most white Lat Amer elites, distinguishing them from Euro
                              elites, and also social – and particularly Spanish model Catholicism is a distinctive
                              dimension of Lat Amer culture.
                         o Kenya, etc. on African idea of property based on Kikuyu customary property regimes
                So: a very general phenomena in which non-Communist nationalist post-colonial movements
        Very hard Q: Why do all these movements see the Social as identical to their cultures, v. the CLT? Many
          possible reasons: (not even slightly the kind of question to which there is an answer)
                Psychological idea: some virtues of the social: the association of colonialism w/ the 19th C right
                    allows the prior regime to be associated w/ CLT, w/ its exploitative character
                So: the reason they reach out to Social is b/c that‘s what was available as ―the most up to date and
                    modern‖ and ―not what colonialists used (which was CLT)‖
                OR (more persuasively?): the people advocating for the Social in the 3rd World – the elites – face
                    2 radical forces against them:
                         o trad society, generally tribal/clan/familial organized – and the social is an attack on the
                              nation as merely a collection of tribes
                         o and negotiating conflict btw Communists and West
                                    the Social is a great way to get money from both sides
        me: when CLT was dominant in core, periphery adopted CLT private law and said it was foreign but
          necessary; and CLT itself said they could keep their family law, which they saw as refuge of their tradition
          and cultural superiority
                versus, when the Social is dominant in core, periphery adopted Social and said it reflected their
                    own culture.
                a puzzle: why view CLT private law as foreign and Social private law as your own?
        DK: we‘re spending less time on this, b/c we‘ve already done it – we already had this discussion at the end
          of the discussion of Janiki Nair and Indian case, when we struggled with the question of what is the
          Chatterjie thesis.
                again, the Chatt. thesis: for nationalist Bengali elite of 1920s-30s, the line is: they‘re not in favor
                    of child marriage, widow-burning, female infanticide (never prevalent in Bengal at all), domestic
                    seclusion, restriction of the rights of women. They‘ve gotten rid of all of these practices that were
                                    so criticized by colonialists. HOWEVER, this same Begali lit/intell elite is committed to the idea
                                    that a new, socially-integrated/educated female population are still really, really different than
                                    Western women. So: a celebration of Indian woman as feminine where Western woman is
                                    masculine, devoted to her family and sexually pure and monogamous v. concerned only about
                                    herself and sluts.
                                   How does Abu-Oday fit into this story?
                                         o (DK: the article was badly edited when included in the collection – pulled it apart, made
                                              it look bad)
                                         o the article starts out from a trad practice: the crime of honor understood to be not a crime
                                              – then describes a complicated sequence of events taking us way beyond Chatterjee thesis
                                              to the present
                                                    What is judicial crime of honor doctrine?
                                                    How do national elites reform it and why?
                                                    What are the effects of the reform?
                                                    How does the legal system shift back to being more favorable to men who kill?
                                                              courts end up looking not to the directly relevant criminal provisions
                                                                  but to other ones to reach the old end
                                                    Why does this happen?
                                                    What are the effects of this happening?
                                         o the way she sees it, the traditional practice is associated with hymenization: the
                                              construction of female space on analogy with the hymen: there are pre-Islamic practices
                                              in Arab society (Hava would say if she were here) that Mohammed tried to reform –
                                              dress, bodily covering, distinction of the haram, unclean, forbidden – this system
                                              enforced by crime of honor.
                                         o The system changes: Chatt. thesis: the natioanlist Arab elites, beginning w/ internal
                                              modernizers: endorse education for women, to a lesser extent employment, elimination of
                                              strict segregation, wd never dream of female circumcision.
                                         o Abu-Oday: the first reform of crime of honor law is just part of this transformation
                                         o But it produces in Arab society a sexual destabilization – eliminating the enforcement of
                                              this system creates instability leading to effects that you may not have intended: a range
                                              of heterosexual and homosexual practices that don‘t characterize the earlier regime. Boys
                                              and girls getting together in all kinds of new ways. Social practices of disguised/sexually
                                              frowned on behavior, producing in the elite a sense of the instability of the gender
                                              practices in their society –
                                                    a danger that our women will begin to become sluts like the Western women
                                         o And this produces in her (very speculative) model an inching back – the crime of honor
                                              had been criminalized in every Arab regime (on a spectrum, from forbidding everything
                                              but crimes of passion to less prohibition) – judges begin to offer more excuses to guys for
                                              killing their female relatives. And a relaxation of the heat of passion defense, its
                                              immediacy requirement.
                                                    The Tunisian regime is the most liberal and French – but even in Tunisia, there‘s
                                                        a distinct movement away from liberal solutions in the period of the rise of
                                         o She says: this isn‘t an attempt to restore the status quo ante at all – it‘s a reaction to new
                                              practices produced by the initial liberalization.
                                         o So it‘s not right to understand it as reactionary – not a return to full cult of virginized
                                              existence. It‘s an intermediate position – the elites compromising, letting people of lower
                                              social classes do certain amount of crimes of honor.
                                         o DK: A classic example of the Chatterjee thesis – fits neatly into the general proposition
                                              about the globalization of social legal thought.


17 Mar. 2009

         The basic objective: How does this topic belong in the same domain as the civil code in the post-colonial era (Shalakany) and
          crimes of honor in post-colonial nationalist context (Abu-Oday)?
         How are these materials on econ., ISI, etc. a part of the ―social‖?
              o Does this topic fit in the social?
              o If so, does it fit in the globalization of the social?
         And: how to understand relevance of langue/parole distinction (used in Abu-Oday re: articulating crimes of honor) to these
   us: General charactierizaton of SLT, and how ISI fits it:
         o law as a means to an end
                 1. ISI does not treat free trade as an end in itself – sees free trade as means to end
                           1. (me: here, we‘re associating CLT with free trade)
                 2. focus on empirical results, v. what the models claim must happen (Prebisch)
                           1. me: thus, against abuse of deduction: similarly, abuse of Classical Economics models (such as
                               comparative advantage)
         o critique of CLT (as it actually got embodied in law and institutions = free trade)
                 1. based on there being interdependence
                 2. which causes catastrophic feedback loops when things are left free, without government intervention
                           1. KEY: Two justifications of ISI:
                           2. Dynamic: feedback loops:
                                    1. Myrdall: unstable or hyperstable equilibria
                                             1. one of his innovations: hyperstable equilibria: in some situations, you might
                                                  flood resources in and nothing happens
                                    2. ISI says: there is a hyperstable eqiulibrium resulting in perpetual exploitation of
                                        periphery – it can‘t pull itself out of this put unless government intervenes – so
                                        government must intervene
                                             1. (which deviates from CLT prescription of free trade)
                           3. Static: externalities: (Begoovian idea? of setting legal rules to provide incentives to correct for
                                    1. that the economic/legal insitutions of CLT public policy (the actual way it ended up: free
                                        trade, the gold standard, an unregulated internal market) would end up preventing actors
                                        from reaping benefits for society as a whole
                                    2. e.g.: so: an entrepreneur considering going into shoe manufacture wd look at starting in
                                        developing country and think: this wd be completely rational – BUT: this calculation
                                        would fail to take into account the long-term social benefits that would accrue
         o bureaucracy/institutions
                 1. tarrif policy = protectionism: the idea that there are big econ and social stakes in setting a tarrif policy is a
                     perennial that gets wrapped up in SLT
                           1. Amer econ. professors cd be fired 1890-WWI for advocating protection
                 2. agricultural marketing board: way of responding to the radical instability of primary product market
                     producing countries caught in monoculture (cocoa, or bananas, or coffee)
                           1. you have this difficulty of declining terms of trade
                           2. and long cycles of world commodity prices – fluctuations in price of monoculture crop will be
                               devastating to your national economy –
                           3. which radically constricts your government policies
                           4. and tragic tendency to drive down price through overproduction:
                                    1. when prices go up, peasants flood into market
                                    2. when prices go down, they continue in market in order to stay afloat!
                           5. What is a marketing board? Set up all over developing world, first by colonial authorities. Two
                                    1. the board will be a monopsony – it will have a legal exclusive right to buy the
                                    2. then the board will sell the commodity into the world market –
                                             1. you‘ll have some market power (i.e., not entirely a price-taker)
                                             2. even though not a monopoly – other countries will also be selling
                                             3. and you‘ll shrink the margins of the five buyers of cocoa (oligopsony?)
                           6. All of this will create rational decisions by producers – based on projected quantities of crop over
                           7. DK: This is the social in its purest form:
                                    1. in response to unstable prices in unregulated market (world commodity market), market
                                        based on free competition, based on property/contract rules – which leads to socially
                                        inoptimal outcomes: a lot of profit for the big cocoa buyers, but not for peasants, etc.
                                    2. the marketing board is an alternative to private property and government by executive –
                                        the quasi-independent char. of the Board of Dir.s will permit appointment of eocnomists
                                        and specialists in the crop who will make considerations based on welfarist calculation of
                                        long view of industry, v. political considerations
                                    3. eliminating externalities that create adverse effects for the social
                 3. development banks:
                           1. unregulated private banks will make choices with socially inoptimal outcomes – e.g. avoiding
                               high-risk projects (like the shoe-factory)
                                 2.  so you create an independent agency development bank, an institution run by semi-autonomous
                                     experts (not a Dept. or Bureau in the Ministry of Development)
                                 3. and what they do: they loan money at better than market rates – subsidized rates (sidenote: in
                                     addition to the protective tarriff you already have; and you have an import license that will allow
                                     you to bring into the country the shoe-manufacturing machine at preferred foreign-exchange rate)
                                           1. or they may offer money, where there is no market, at rates that are understood to be
                                                worse than market – as a way to raise money
                                           2. so: the marketing board operates through the manipulation of domestic and int‘l prices, in
                                                order to generate surpluses that will in principle allow subsidies over time that will pay
                                                off by transforming the structural properties of the economy
                        4. looking ahead: the critique of this we can already glimpse: (the critique that will be offered by international
                            econ. institutions)
                                 1. DK: inefficiency, rent-seeking: every one of these initiatives creates a giant incentive to be the
                                     beneficiary of the policy, b/c you‘ll make a fortune – if you can buy access to the development
                                     bank (bribe the bank person to give you the loan), the tarriff is set high enough that you can
                                     charge the populace of your country double what they‘d pay on the world market, even if they‘re
                                     terrible quality shoes.
                                           1. and the import license will also be worth a fortune
                                 2. DK: also: rem: monocultural crop is source of foreign exchange – and if the commodity board
                                     lowers the price, you are taxing the peasantry (they have no one else to sell to, you‘re a
                                     monopsony) – another opportunity for corruption – and the countryside is subsidizing the
                                     development of the city: with consequence that there will be flight from countryside to city (giant
                                     urban slum w/ great percentage of your country)
                                 3. DK: How valid is this critique? sometimes quite valid, sometimes not.
                                           1. and Indian economists, e.g., disagree about whether ISI was nec. precondition for later
                                                econ. success or an obstacle such that success only arrived when ISI went away
                                 4. me: you‘ll end up like Cuba – no one will want to buy what you‘re making, and you won‘t be able
                                     to buy anything on the world market (your currency will be so devalued)
              o Last question: langue/parole distinction applied to regulation of crimes of honor and to development banks:
                        1. what‘s being globalized is a langue
                        2. Crimes of honor:
                                 1. what is the parole here?
                                           1. the specific legal norm adopted somewhere in the world – like the Jordanian statute re:
                                                crimes of honor, the Egyptian statute, etc.
                                 2. what is the langue? what are its components? (as in subject, verb, predicate, adjective – dangling
                                     modifier as an example of the ungrammatical – what are the necessary elements in a crime of
                                     honor statute for it to be properly formed? like a properly formed sentence) DK: here are the
                                     axes of variation:
                                           1. who is a person whose honor violation justifies you in killing them? at one extreme, the
                                                only person who you can kill is your wife (not even your husband); at other extreme, all
                                                female unlawfuls, including anyone who has nursed you
                                           2. the immediacy requirement: do you actually have to kill them when you discover them?
                                                or can you wait 50 minutes? a week? (what if you‘re still really freaked out a week later?)
                                           3. what do you have to discover: in bed having intercourse? or holding hands in café?
                                           4. etc.
                                           5. etc.
                        3. Same for development bank:
                                 1. paroles
                                           1. million variants
                                 2. langue: the axes of variation:
                                           1. what the calculus of profitability over time will be
                                           2. how independent the bank will be
                                           3. etc.
                                           4. etc.
         Note: though most histories of ISI don‘t note this, ISI first happens in Germany and US, which perceive themselves as being
          on Britain‘s periphery and having disadvantage v. Britain (which has first-mover advantage re: e.g. steel production) –
          Germany and US use infant industry policies


Chris‘s notes:
18 Mar. 2009
18 March 2009

                  Economy                   Civil Society

Social          left                     right

CLT             right                    left

This will flip again under contemporary legal thought?

Articles on IMF, World Bank, and WTO – transition period between social and contemporary legal thought

    -     Peet – left?

             o Asserts agenda of these organizations predetermined by US/UK

    -     James – right?

             o from the IMF (in 1996, the height of neoliberalism)

             o Critique of development theorists/ISI, says actually promoting inequality – third world destroyed itself through ISI,
                claims to be egalitarian, but completely counterproductive, depleted countryside for sake of rent-seekers, urbanites,

                          At the same time, tariffs to ensure that subsidies aren‘t wasted on imports – but this has no part of
                            development strategy.

                          Depleting countryside means that more people are flowing into cities than there are jobs for them. How to
                            deal with unemployed masses? Print money to subsidize food, causing inflation.

             o Another problem – currencies and exchange rates controls.

                          With institutions, a crime to exchange currencies except through official vehicle, which gives exchange rate
                            that it wants.

                          One common motive for this – an aspect or dimension of an ISI policy, manipulating all aspects of price
                            system to make it desirable to invest in industry rather than in agriculture – leading into same problems.

             o Alternative – third world countries should have integrated selves into world economy. Should have allowed
                currencies to fluctuate according to supply and demand in the currency markets.

    -     Initial formulation of what the IMF was supposed to do – world currency stabilizer against the background of the autonomy
         of each nation state, choosing own economic policies. For third world, considered desirable to have economic policies that
         would result in manipulation of their currency prices.
-     Contemporary legal thought – from 80s on, structural adjustment – conditions on granting credit that domestic policies of
    the ISI type be reformed.

-    Up until the arrival of the crisis of late 70s and early 80s, there was a different idea: the Bretton Woods system, which has
    four distinct parts:

        o ISI (for third world)

        o Keynesian fiscal and monetary policy (developed world)

                  How to analogize this to ISI? How would one interpret Keynesianism as part of social legal thought?

                  Unstable equilibria – here, the business cycle – cyclical processes of depression and recessions and
                    overheated booms that go to busts.

                  Social policies are only implicitly egalitarian. Formal reason for their existence is stabilization of
                     disequilibria. Instability is globally threatening to national welfare. So not even about relative distribution
                     of income, but promoting welfare by stabilizing economy – having positive long term consequences.

                  How does Keynesianism stabilize? Gets rid of the gold standard, free trade, and laissez-faire, recognizes that
                    the nation has its own welfare question, and proposes that, on the down cycle, the agents of the
                    center/government should attempt to manipulate total demand (macroeconomic language of social vs.
                    microeconomic one of CLT) – vehicles: government spending (fiscal) and manipulation of interest rates
                    (monetary). When there is an inflationary spiral, run a surplus rather than a deficit, and raise interest rates.

                  So idea: we need a central, regulatory response that gets rid of the consequences of feedback loops and
                     unstable equilibria. This is done through the institutions of public law – independent agencies – central
                     banks reconceived, understood not as repositories of fiscal integrity, but as affirmative, expert-based
                     administration of the monetary system in the interest of the whole society.

                  At same time, Keynes had a reactionary view of private law – maintain CLT, and do everything else through
                    central vehicles.

        o IMF system (international currency)

                  Source of instability: currency speculators and their expectations of values – expecting the price to fall will
                     result in acting in a way that will bring the price down. Basically, system out of control, self-sustaining
                     feedback loop/unstable equilibrium

                  Problem linked to this: imports becoming extremely expensive, and exports becoming dirt cheap? No. real
                     problem is debt. If economy running on investment in dollars, or some other currency, paying this back
                     becomes increasingly difficult. Requires selling enormous multiple of goods sold before to do this,
                     resulting in a devotion of ridiculous amount of economy into servicing of debt – this means that you need
                     to default on debt. This means no one will lend money in future because of lack of faith in debt repayment.

                  The idea of stabilizing currency to avoid pitfalls of individual devaluations and other actions that would affect
                    international system. How? Stabilizer buys currency or makes loan to threatened country‘s bank. This
                    intervention is directed specifically at the speculator.

                  Technocrat staffed agencies that is aligning the interests of international players that might have destructive
                    self interests

                  Nothing to do with third world development – a regulatory mechanism designed to permit governments to
                    pursue ISI, in spite of fact that once they are doing that they have created a sitting target for speculators by
                    manipulating currencies.

                  This system produced incredible economic growth in the third world – but after 80s, switched to demanding
                    an end to ISI/Keynesianism in exchange for loans, which was an astonishing slowdown on world growth
             o International Bank for Reconstruction and Development -> World Bank (capital flows)

             o GATT -> WTO


30 Mar. 2009

Final day on the social: critique of the social
by contemporary legal thought
     Just as there was a left social and a right social, so there was a right and left version of their critique
              o Hayek and Coase – often treated as part of same tendencies – are critiques of the social from the right
              o Goldberg v. Kelly is a critique of the social from the Left
     Three questions:
              o 1. in what sense is Hayek a critique of the social?
                        and what exactly is the content of Hayek‘s critique?
              o 2. in what sense is Goldberg v. Kelly (J., Brennan) a critique of the social?
                        much harder question, b/c seen as ―liberal‖ (in Hayek‘s bad sense), and social, like progressivism, is seen
                             as alt. to laissez-faire…
              o 3. in what sense is Coase‘s Problem of Social Cost a critique of the social?
                        Coase responding to Pigou‘s chapter on social cost
                        note: Problem of Social Cost
                        (Pigou as arch-representative of social in mainstream classical econ.)
     HAYEK
              o Wants to see a spontaneous order: give abstract rules, let people pursue their own purposes
                                   not imposing outcomes
                                   not specifying the purpose
                        v. in the social kind of order, the outcomes are specified
              o Hayek: what people call the ―distribution‖ of income is actually the ―dispersion‖ of income
              o H attributes to his social opponent an idea of what the goal of gov‘t intervention should be: ―social justice‖
                        H: the people who object to the outcome of this game – generated by chance and skill – assert that it‘s
                             socially unjust
              o DK: But what‘s wrong with saying there‘s social injustice, and the gov‘t shd intervene to make the outcomes less
                  socially unjust? (Just calling one a spontaneous order and the other a directive order isn‘t enough.)
              o So: H‘s critique of the social:
                        a. they believe in social justice
                                   BUT: 171: ―social justice‖ is meaningless: it‘s a mirage – it has no content, there‘s no consensus
                                        about what it means – it can never be reduced to a rule
                                   all it means, therefore, is the arbitrary dictates of the people in power – the RULERS
                                   (so: social justice -> totalitarianism)
                        b. they try to bring it about through social law
                                   but the safety net version of social law (social security, etc.) is immoral:
                                             o also: those positions were acquired by playing the game of chance and skill and winning
                                             o and then when you lose the next game and say, ―change the rules!‖ which involves taking
                                                  away the winnings of other people, reducing the pot available for the next round of
                                             o this violates the ethic of the game
                                   also:
                                             o i.e., they try to determine outcomes through directive orders rather than allowing things
                                                  to come about through spontaneous order
                                             o Also: the VESTED INTEREST critique: the social attempts to protect the shares of
                                                  people who are losing out as a result of changes in the game of skill and chance
                                             o Sidenote: A very elaborate critique, every element of which has a resonance in
                                                  contemporary legal thought
                        note: Hayek says: as long as social safety net comes from completely outside the economy
                        also: it‘s fine w/ Hayek to have anti-trust laws, so that competition will be sustained – though it‘s much
                             more important for gov‘t not to create or encourage monopolies than to fight them (note: you don‘t need
                             perfect competition, that‘s imposs.)
                              this aligns Hayek with German school of Ordo-liberalism – they‘re not Manchesterists, don‘t want
                               to cut state down simply to a night-watchman state – they think taking care of emergencies,
                               making the rules work, etc., requires something more
                 also: an economic objection to any social law:
                           H. wants as much produced as cheaply as possible
                           (he dsn‘t use the word ―efficiency‖)
                           any social law that specifies an economic outcome will be specifying an outcome that is desireable
                               b/c of the goal of the ruler – which will be at the expense, in some categorical way, of anyone who
                               doesn‘t share that goal
                                    o for DK‘s critique of Hayek, see: ―Law and Economics from the POV of …‖ on his
                 also: a political objection to any social law: it will lead inexorably to totalitarianism
                           ―the road to serfdom‖ (another book of Hayek‘s)
                           and it‘s not just Hitler and Carl Schmitt:
                           liberals in the bad sense:
                           utilitarians: believe in designing and redesigning the social/political/economic order in order to
                               achieve the greatest good for the greatest number – rulers can arbitrarily
                                    o taken to its extreme, it‘s Hitler; but no matter how you do it, it‘s totalitarianism, which =
                                         the dictation of values for everyone in the soceity
                                               different than authoritarianism, which says: you better obey the boss or you‘re
                                                   going to get your butt kicked – and people should respect the authority of the
                                                   laws (the opposite of DEMOCRACY)
                                               totalitarianism: the opposite of LIBERALISM
                                               modern conservatism says: authoritarianism is a lot less sinister than
                                                   totalitarianism – it‘s good for democrats to ally with authoritarianism
        o   sidenote: an interesting fact about Hayek‘s piece – when he specifies the foundation for a spontaneous liberal
            economic order, he‘s offering a very CLT vision – even mentions Kant – his idea of the appropriate order is ―the
            private law society‖ – powers absolute w/in their spheres in such a way that each could be like that w/o conflict
            (peace), simply deduced:
                 H. basically arguing that Savigny was right all along
                 it‘s the invasion of private law (Savigny‘s system) by public law over the last 100 years is what leads to
                     totalitarianism/serfdom, and leads to a failure to maximize wealth
                 (note: no mention of family law in the whole story, even though family law is a major preoccupation of the
                 VERSUS: Coase is completely different: his critique of the social is very different than Hayek‘s
   COASE:
       o founder of ―law and economics‖ movement, which in its early stages is avowedly utilitarian, offering criterion of
           efficiency (= maximizing wealth w/o regard for distribution) – thus an enemy of Hayek in that sense
                 wealth-maximization, aka Kaldor-Hicks criterion
                 explicitly about the size of the pie, not about the distribution of the pie
                 don‘t exclude the idea that govt. cd redistribute after the fact the pie, once it‘s made as large as possible
                           so: you don‘t redistribute through legal rules of the game but after-the-fact
       o so: paradox that these two strands of critique of social (spontaneous order strand – Hayek; wealth-max. strand –
           Coase) come to many of same conclusions
       o many libertarians criticize law and econ. exactly on Hayekian grounds – many criticized Richard Posner for being a
           totalitarian in Hayekian terms – wd like to remake econ. economy from center based on technocratic idea, v.
           spontaneous generation of order
       o What Coase has against the social:
                 The social is trying to centrally regulate outcomes – think of railroad and sparks: this was a contest between
                     populist small-holder farmers (who organize whole political parties against being exploited by the railroads)
                     versus the railroads (pro-capitalist free market political parties)
                           Pigou says: the RRs aren‘t liable for the sparks, so its negative externalities aren‘t incorporated
                           so we need regulation to produce the outcome that wd result if RR were liable for the sparks
                           then everyone will be as happy as possible…
                 Coase is saying: unless there are too-high transaction costs, no need for regulation
                           the difference between private costs and social costs is irrelevant
                           it‘s just a conflict between competing private costs
                 Second example is noise pollution, sewage, doctor‘s office, etc. – the Greens against the laissez-faire
                     people: Coase is saying: these Greens want to protect victims of pollution through regulation, etc. – but
                           liberals in bad sense will immediately object: there are always enormous transaction costs!
                            DK: lame, noncompotent objection – Coase is already there – and the point is: the transaction
                             costs need only not be so large that they wd block the transaction
               Coase‘s killer objection to the social: if there are bargain-blockingly high transaction costs, it‘s impossible
                   to determine what the outcome should be
                         and this is where Coase rejoins Hayek
               Given holdouts, etc., it‘s very likely that the farmers will be unable to bargain effectively w/ the RRs
               So (and now Coase becomes like Hayek) what shd govt. do? It wd have to know the value of every
                   additional train in terms of the consequences for all the lost crops and the benefits to the society –
               It‘s hopeless to believe that the state will be able to come up with an effective solution
               Either the parties will bargain out of it, or it‘s a hopelessly ocmplicated regulatory problem, and there‘s no
                   reason to believe that the gov‘t has a better than 50% chance of improving things by whatever regulation it
               So: the social grossly underestimate the efficiency of markets and grossly overestimate the efficiency
                   of gov’t regulation
               These objections survive to today
               And the financial industry today is deploying the arguments right now, against regulation of the
                   financial industry
       o the left-wing critique of the social
       o the social here is the institutions of the modern welfare state: (more even than those than Hayek critiques)
               footnote 8 to Goldberg v. Kelly cites to the Bible of leftist critique of the social (p. 11 of 17), which is
                   article by Charles Reich called ―The New Property‖ (= the massive and multifaceted intervention by the
                   state in the name of the social means nearly everyone is now in position of capitalist in 1931 right after
                   stock market crash –
                         companion case is about federal social security system (unemployment insurance, workman‘s
                         domestic social work interventions
                         mental health: voluntary and involuntary commitment
                         nursing homes paid by federally provided Medicare/Medicaid
                         the whole licensing system for small businesses, incl. minimum wage/overtime/labor regulation
                         the dependence of members of Big Labor whose existence is established by fed labor legislation of
               the social is opposed to the idea of individual entitlement, oriented toward groups – e.g. minorities – and
                   says state must take into account interdependence, diff btw private and social cost
               so the social creates an agency with inspection/low-level criminal penalty powers, distributes licenses,
               and the state is the counterbalance to the illegit influence of market power
       o the Left critique of the social says: these institutions (from mental hospitals to jails to Soc Sec to big unions) are loci
         of arbitrariness
               the social people are against individual entitelements
               b/c they think the whole goal is overcoming CLT property entitlements
               and the counterbalance to that is administrative solution
       o the Left’s solution is to revive individual rights within the institutions of the Social
               so: far from understanding the social institutions as unequivocaly good for humanity and everyone
               people shd have causes of actions w/in the instutitons
               individuals through class actions bringing due process/equal protection/cruel and unusual/a million diff
                   kinds of Constitutional claims
               claiming to vindicate, actually, the underlying humane/communitarian ideals of the social
       o DK: a way to understand this critique:
               social said: CLT‘s coverage was too small – social filed up the gaps w/ institutions
               now contemp legal thought judicializes/privatizes remedies against institutions which were initally
                   understood as public antidotes to the private arbitrariness that was permitted by classical legal thought
       o so: the Left and Right critiques of the Social both see the cost to individual freedom of the institutions of the social
         as too great
               and you can‘t solve this with more public guardians guarding the guardians –
               you need to put the power back in the hands of individual rights-holders
               and where will they go?
               COURT
       o This is devastating for the Social, which was all about getting rid of the indiviudal right-holder/court nexus – the
         source of all the problems of CLT – and what‘s now happening is not only the revival of this idea but something
         much more exterme
       o Finally: in the contemporary Left critique of the Social, there are two strands: both exist in Goldberg:
                           the Right strand: individual rights as crucial component in any solution here
                           the Left strand: balancing rights against interests (anti-formalist, totally against Hayek, who loves rules)
                                  Justice Black will offer the Hayekian critique of balancing: it‘s just the arbitrary will of the ruler


31 Mar. 2009

    Some generalizations
    then Hohfeld –
           o the readings contextualize Hohfeld in two ways:
                     Singer‘s contextualization
                     and then the political contextualization of Hohfeld offered by focusing on H‘s treatment of 2 of the cases in
                         the famous labor-law trilogy in England in 1890s
           o the question will be:
                     what is his critique of the House of Lords trilogy opinions?
                     and what is H saying shd have happened in the House of Lords trilogy (labor and anti-trust cases)?
    Is Contemp LT a new synthesis? DK‘s argument is ―no.‖ It‘s not a transcendence of the social by a new coherent integrated
       formation – DK is saying no. The way to understand Contemp LT is as an unsynthesized amalgam of CLT and the social –
       each devastatingly negated and critiqued but still totally alive. So: ContLT hasn‘t aufgehoben CLT and the social.
    A way to understand ContLT: a distributional view (the way CLT and social have been distributed in discourse today):

                                               Market                                         Civil Society (family, religion, health,
                                                                                              education) – the domains of the
                                                                                              Habermasian lifeworld
Social                                         L                                              R
CLT                                            R                                              L

         When we‘re talking about Market relations, the social persists as the Left way (they use the vocab of the social, etc.); and
          CLT persists as the Right way. Etc.
         Habermas: missed (something about lifeworld?)
         if you understand yrself to be a leftist/progressive/liberal in current American sense, you‘re likely to deploy in yr
          argumentative practice about what law should be alternately social and CLT langue elements, and likewise if yr a
          conservative – but it will depend on which box yr in
               o this idea will be basic template for remainder of semester
         A second way to understand ContLT: (also not a synthesis)
               o Indiv. Rights / Juridification / Constitutionalism
                        A narrative:
                        CLT in the market, family, and internationally, can be understood as a kind of complicated swiss cheese
                                  not Gruyere but swiss cheese as sold in Amer supermarkets
                                  ie. family law is only partially juridifid – Savigny sees large areas of family law where injuries
                                      don‘t produce legal recourse – patriarch has enormous legally unreviewable power, tho he‘s
                                      morally bound
                        The social people are very conscious of this swiss-cheese character
                                  social uses regulations and admin agencies and special courts, etc. etc. etc. to fill the holes
                                  the remedy is not the creation of individual legal rights
                                           o the major exception is the partial socialization of private law: e.g., promissory estoppel;
                                                or strict liability in tort (both American examples)
                        SO: the point of all this: JURIDIFICATION = ContempLT solution to problems w/ social = using
                            individual rights to combat the abusive character of public agencies, in both market law, law of family, and
                            public international law – creating individual entitlements to judicial redress
                                  such as: woman going to family court
                                  also: class-based shareholder actions
                                           o or: in contract law: the law of unconscionability
                                  or: public int‘l law: UN Universal Declaration of HR: displacing the complex social idea of
                                      collective deliberation in the UN understood as an intrastate body where, for example, state that is
                                      home of minority (v. individuals) goes to UN and asks for redress – instead, empowering the
            and then: CONSTITUTIONALIZATION = little by little, as the holes in the swiss cheese are filled out
             by individual rights, coherence comes from the notion that there is some transnational/transindividual
             charter – a const., a treaty – whose very abstract provisions are best understood as the source of legal
             obligations that the court is going to enforce
                   e.g., creating inside the Const. or Charter or treaty social and econ. rights –
                            o note: the radical opposition of private law v. public law/Const. rt.s erodes – so that today
                                 it‘s almost always poss. now to argue that a private law rule deviates from the Const. (e.g.,
                                 freedom of contract norms that permit discrimination against a buyer motivated by a
                                 politically discriminatory intention can be challenged as inconsistent w/ free speech
                                 norms even tho the action is being done by a private party)
                   or, e.g., the Euro Ct of HR (based on treaty)
o   Rights/Identity / Economic Analysis
         Former: development of CLT; latter: development of Social (Pigouvian)
         The developments in the vocabularies (e.g. rights/identity discourse)
         RIGHTS discourse:
                   missed: In Const. law, ―rights‖ are rights that adhere to all citizens
                   the characteristic of ContempLT is th
                   the category of ―identity‖ is a post-WWII category (dsn‘t exist in modern sense in English until
                       post-WWII) (religious, gender, sexual orientation, nationality, etc. sense) identity is a collective
                       dimension of who one is – far below level of abstraction of ―merely human‖ – and for people
                       subdivided in many ways
                            o e.g., classic identity rights are:
                                        the right to equal treatment – prior discriminations are invalidated
                                        the right to protection of identity-defining activities
                                        a right of protection against specifically hostile or discriminatory actions
                                        a right of compensation/affirmative action
                            o the proliferation of identity rights discourse encapsulated for DK by the following:
                                 Amartya Sen formulates as a right that needs to be protected aong w/ the rights of other
                                 minorities: the right of entrepreneurship. Sen‘s idea: there are relig practices, gender-
                                 specific and other minority practices that need to be protected – and another significant
                                 category here is entrepreneurs. In modern IP discourse, creators of IP need protection
                                 against discrimination by 3rd world countries. So any specific subgroup with an interest
                                 can be reconceived as a rights-based thing.
         ECONOMIC ANALYSIS: a development of the social idea that we should design the legal system to
             pursue the public interest and social welfare -> into a highly differentiated and technical discourse in which
             every conceivable interest is individual and has to be taken into account.
o   Semiotization / (Neoformalism [or maybe it shd just be called deduction] / Proportionality)
         Hohfeld is the crucial actor in SEMIOTICIZATION: in the geneology of social critique of CLT
         Neoformalization: the process by which treaties charters etc at national or int‘l level, you get deductive
             character of assertions of law – actually more textual, less inductive than CLT, more based on
             Constitutional juridification idea
         Proportionality/balancing: in the geneology of the social critique of CLT – and note: proportionality can
             be applied to absolutely everything. What were the purposes of social legal thought that were supposed to
             justify legal reasoning? The idea that from the social, we get a multiplication of social purposes, we need to
             deal with conflicts btw them, then proportionality idea moves beyond social purposes to rights and powers.
o   Politicization
         The paradox of contempLT: on the one hand, the rise of a universal that all interactions involve
             indiv.s who have rights (juridification/constitutionalism as the large architecture of the legal order – which
             really has eliminated the swiss cheese – we now live in a world in which everything that happens is within
             a jurisdiction, versus being merely moral) – but paradoxically: abolishing the distinction between law and
             politics. The problematic – the basic way one can always critique the three developments above is to say
             that they are merely disguises for the arbitrary exercise of power:
                   neoformalism is just abuse of deduction
                   balancing is open to Hayekian critique of balancing in Godlberg – as just an excuse for exercise of
                       arbitrary power
         so:
                   in CLT, problem was relation between law and morality (so many areas where the law dsn‘t
                       require people/institutions to behave morally) – how can you favor law when it authorizes so
                       much immoral behavior? Savigny just puts this on the table and says: you can use your legal rights
                       to do immoral things. A big tension in CLT.
                                   in Social, it was: is law that which makes society, or does society make law? really problematic to
                                    use society as criterion… are you simply replicating status quo? and if not, on what
                                    authority/criterion are you altering it?
                                in ContempLT, the deep/prevalent/always-available critique of ContempLT is that it‘s just using
                                    the law as a tool to codify political/ideological program
                                         o e.g. third-world critique of WTO
                                         o the claim that x is juridical is unmasked as just being politics
       Note: looking at the above, you might think Neoformalism will = rights/identity, and Proportionality will = Economic
        analysis (b/c based on cost/benefit analysis). This would be wrong. Each goes equally well with the other. Economic analysis
        goes often with deductive neoformalism. And rights also have to be balanced.
            o note: modern law and econ. split btw two branches:
                       one is highly deductive (e.g. Posner‘s Econ Analysis of Law, esp. 1st Ed., all of law is deduced from
                          individual wealth maximization and the economist‘s idea of choice as uncoerced)
                       the other is highly empiricist, cost-benefit style (will assert that you can have 20 diff rules for 20 diff
                          situations, and efficiency criterion can be concretized only concretely)
       HOHFELD: where to put on chart above? maybe with semiotization
            o another diagram:

Priv                                                                 No Rt
Right                                                                Duty

Priv <-> Duty
Priv <-> No Rt
Priv <-> Right
Right <-> Duty

       Hohfeld: you can break down legal discourse into units, the langue of legal reasoning
       missed
       We‘re only going to talk about the static set: injury questions
             o the simplest case: it‘s about tort law
             o the basic context is injury
       The underlying Q is: what is enforceable in court? (He‘s not about political categories of enforceable duties, as in Rawls,
        Rousseau, Locke) The kind of Qs he tries to answer is: for situations in which people are related as injurer/injuree, and then
        go to court, how wd we characterize the way in which the ct will classify/categorize the diff ways in which the injuror/injuree
        can… (missed)
             o someone strikes someone in bar
                        If the court says that blows to the head under the circumstances in Q are just part of life, and there‘s no
                           redress, then the striker is priveleged and the victim is in the no-rights position
             o Or: if you accuse Obama of being racist pig, and he sues you, and ct says: he‘s a public figure, so he gets no
                 protection against your attack, then the speaker is priveleged, and Obama has no-right
             o Or: if you pollute the atmosphere with your factory, and the ct says: there was no nuisance, therefore no liability,
                 then you have a privelege and your neighbors are in the no-right position
       The other is just the opposite: if you have to pay/compensate, it‘s a right-duty pair, and if you don‘t, it‘s a no-right/privelege
       Simple: but it‘s a catastrophic event re: the legitimacy of lawyers in their world, for two reasons:
             o this is the canonical/most effective attack on the idea that to say that a person has a right allows (from that mere
                 single statement) you to know both whether you have a Hohfeldian right and whether you have a Hohfeldian
       Property rts, according to Hohfeldian analysis, combine two Hohfeldian position: the privelege position, and the right
        position: if you‘re a property owner, you can inflict some damage on your neighbor; to be a property owner means having
        some discretion to do things on your property that your neighbor objects to w/o your neighbor being able aesthetically to sue
        you. E.g., aesthetic nuisance. Not a cause of action. So you have a privelege to bulid hideous structure. Or: No easement re:
        light and air. These are damnum absque injuria (i.e., no duty; or losing a lawsuit for failure to state a claim on which relief
        can be granted; or, in the anglo system, your claim is demurrable – the D interposes a demurrer to your plea – these things are
        all synonymous: the D has a privelege)
             o but it‘s equally true that the meaning of property is that you have some rights: some forms of intrusion by the
                 neighbor will give rise to cause of action against the neighbor – if he camps on your property, you can get him
                 kicekd out, etc.
             o the slogan associated with this idea: property is just a bundle of sticks
             o you also have duties to your neighbor
         the Hohfeldian moment is the moment at which it becomes clear that the category of property as it has existed in W.ern legal
          systems up to Hohfeld – to say the word property dsn‘t give you an analytic basis for deciding the content of combination of
          priveleges and duties.
               o the same is true for transferring property
         Next step in the argument: in any given case where it can be argued that the case has not been decided before, now we have
          to decide whether the property owner is in the privelege/no-compensation side or the duty/compensation side – whether the
          transaction is valid or invalid – the basic prop of Hohfeld‘s article is: given that there‘s no way of using the mere concept of
          property or contract to derive all the different rights/privel.s/powers/immunities that you‘ll get if you‘re an owner/a
          contractual party, we‘re going to have to decide it by some other mechanism than deduction.
               o Hohfeld brilliance, going way beyond Gény: the abuse of deduction where there are very high econ states is
                   overwhelmingly present
               o the abuse of deduction = trying to reason from e.g. the existence of a privelege to invade your neighbor‘s property to
                   a right to do so
               o H says: once you get rid of the false inferences, you’re left w/ the criteria of justice and policy
               o you‘ll have to decide on the basis of one of these two
               o and doing the decision on the basis of justice or policy involves you inevitably in some kind of proportionality


1 Apr. 2009

Contemp Legal Tht
semiotization                      constitutionalization               rights                             Hohfeld
neoformalism                       juridification                      identity                           privatization
proportionality                                                                                           property

         Significance of Hohfeld: leads to the bundle-of-sticks conception of property rights (the relativization of property), and then
          the same thing happens to sovereignty
               o then the disintegration of the public/private distinction
               o the emergence of a new experience of legal order
         What is the nature of Hohfeld‘s critique of these opinions (the three cases: Allen v. Flood; Mogul; Quinn v. Letham)? And
          what does he think the judge should do?
                        three cases about D trying to instrumentalize TP (third party) to do harm to P by securing advantage from P
                            (i.e., by getting P to define his relationship w/ D in a certain way, to get a better bargain from P)
               o ALLEN: holding for D (the excluding union isn‘t liable to the rival union)
                                   context: union v. union
                                   (one union wants closed shop rights, so tries to get employer to fire members of other union)
                        P – the other union
                        D – the union doing the mischief
                        Third Party – the employer
               o MOGUL: holding for D (the monopoly business isn‘t liable)
                                   context: business v. business
                                   the tactic here is D telling TP that they have to continue shipping w/ D, can‘t deal w/ P in areas
                                       where P is shipping, or D will cut off TP where P is not present (thus TP won‘t have anyone to
                                       ship stuff)
                        P – new entrant trying to break into market
                        D – the monopoly shipping lines
                        TP – customers
               o QUINN: holding for P (the D union is liable to P for putting pressure on TP) [understood as having overruled
                   ALLEN, though not technically; anyway, there‘s an understanding that a case like ALLEN will now be decided for
                   P – ALLEN will be distinguished on some factual difference]
                                   context: union v. business
                                   the D union is organizing the P employer‘s shop by pressuring TP customer, which has already
                                       been organized by D union: D says to TP: if you don‘t break relation w/ P, we‘ll strike your plant
                        P – employer
                        D – union
                        TP – customer
   The Sherman Anti-Trust Act of (1896?) is response to failure of common-law courts to do anything but MOGUL-like
   These 3 cases are so significiant b/c in US, Germ, Fr, Belg, Neth, Ital 1850-1914, the most cental political issue (as
    Hobsbaum explained in our reading) is the rise of organized labor on one side and trusts/monopolies on the business side (the
    consolidation of heavy industry – the total # of manufacturers of steel, autos, petroleum, chemicals, etc., plummets).
         o and as a result, confrontations btw unions and concentrated corp.s
         o everyone believes that it will be possible for labor to organize into a small # of unions, or perhaps even one giant
             union which will threaten takeover of whole society
                   and many people are terrified of this outcome
                   and many others (maybe more?) are thrilled
         o but the Q of whether this will be possible, everyone agrees, will depend on what tactics of organization are
             permissible and which aren‘t
                   and this depends on: what can you do w/ rival unions
                             (if there are 4 unions in a workplace, you‘ll have radically less bargaining power)
                                     o me: fascinating: why precisely was it assumed that all of this wd happen through unions
                                          as opposed to through democracy? (i.e., why have one giant union controlling politics v.
                                          electing a government that favors the policies you want and will impose them on
                   and also: the Q of secondary boycotts: threatening third party customer in order to influence the employer
         o and on the other side, business side, it‘s just the same:
                   e.g. Standard Oil (creating virtual monopoly) using tying agreements
                   and in RRs, threatening to become one big railroad
         o if these tactics are allowed, then you‘ll have much more monopoly/consolidation in your society
         o and the answer is left up to common law in Common Law Countries
                   in core Cont countries, it becomes Q of statute
         o There will be legislation, but even the terms of the legislation will be influenced by how these cases turn out (b/c
             bargaining power of both sides will be influenced by outcomes: money/power -> influence in legislative process)
   The way it looks, in the end, is that
         o ALLEN -> big union;
         o MOGUL -> monopoly;
         o then QUINN -> implicitly overruling ALLEN -> small unions
         o = double standard
         o favors formation of industrial monopolies and disfavoring formation of big unions that might counter or even
             overcome their power
   When Gény talks about abuse of deduction, he‘s talking about decisions like this, this double standard: the social critique of
    CLT gets giant push forward from cases like this
   But Hohfeld (often presented as part of the social; politically aligned w/ Amer. progressivism, in favor of trustbusting, the
    labor movement) – his response to the crisis produces this piece of work that reverberates to this day – thus is more than just
    the social, more than just Gény‘s abuse of deduction critique – in what sense?
         o Key is: What is Hohfeld‘s critique of Lord Lindley‘s reasoning in QUINN? (i.e., the paragraph of reasoning he
         o The critique is that the judge draws an inference where there is none:
                   1. P‘s privelege -> TP‘s no-right
                             the relationship btw the employer and the TP is a privelege – it‘s not a legal wrong, it‘s damnum
                                absque injuria – when there‘s a K entered into btw P employer and TP customer
                   2. P‘s right -> D‘s duty
                   Hohfeld‘s point: 2 can‘t be inferred from 1
                   so you have to base it on justice/policy
                   DK: so he‘s not saying that the case necessarily came out wrong
                             in fact, you cd argue that society has a big interest in Ks btw customers and suppliers, and these
                                wd be useless if anyone cd come along and interfere w/ that relationship
         o so: sounds like Gény so far: judge made political decision, claimed that it was required by law; we shd look at social
             purposes of the law to decide what best decision wd be
         o Hohfeld was in fact understood at the time as just an extension of the Gény abuse of deduction critique – providing
             an analytic framework to let us diagnose abuses of deduction
         o But Hohfeld is more than this b/c of the application of H‘s analytic to property and sovereignty
         o When you take H‘s analysis and ask: what is a property rt? You have a classic definition from Roman times – it
             includes a right of possession, dispossession, enjoyment, abuse, transfer, fruits, whatever. That‘s fine. But H points
             out that for each one of these, there are two neighbors, and the use of one may reduce the use of the other – the
             possession of one is at the expense of the possession of the other
                   and there are countless situations that will give some rt of e.g. possession…
                       but you can have an extensive law of nuisance (strongly protecting rights of use/abuse/fruits, strongly
                        protective against rights of neighbor)
                    or a very limited right of nuisance (in which case people have it as privelege of use rather than as right),
                        meaning limited protection against interfering uses by neighbor
   The consequence of this: there are an infinite number of possible combinations of rights/priveleges/powers/no-
    rights/duties/immunities/disabilities (the 8 Hohfeldian categories) that all meet the formal classical definition of property in
    terms of the owner as absolute power-holder.
         o this is the ―property is a bundle of rights‖ idea: the word ―property‖ has no deduction-facilitating meaning at all
         o KEY: any use of the category/word “property” to justify a particular stick in the bundle is an abuse of
         o you can justify the sticks based on positive law – legislation, etc. – but if you‘re using legal reasoning, you just can‘t
              use the concept of property at all
   Simultaneously: inside social int‘l law: Redslob believes that we can adjust the concept of sovereignty w/ infinite complexity
    to deal w/ the social purpose of restricting national passion that threatens war
         o rem: CLT reasons about sovereignty based on analogy w/ ―property‖
                    sovereign absolutely sovereign on its own territory
                    -> national self-determination (Savignian idea)
         o so if you destroy property, you destroy sovereignty
   if you stick a bunch of people into a state… Redslob: minority rights regime, restricts the legal capacities of the state re: the
    minority – reinforcing sovereignty of people of home country of minority. League of Nations as analogue of court,
    adjudicating soveriegn rights. And L of N will have a million tools for adjusting sovereignty (free city of Danzig, plebiscitary
    decision, etc.).
         o you can never justify any rule of int‘l law by reference to the concept of sovereignty, after you‘ve done the
              Hohfeldian analysis of soveriegnty
         o we‘ll see this when we read WEILER‘s famous article (next class): The Transformation of Europe
                    Weiler: a profound Hohfeldian sovereignty critic
                              DK: only problem: fails to admit debt to Hohfeld and American federalism – Wyler covers his
                                 tracks b/c audience wd be outraged to find that Euro U is just outpost of Amer legal thought – DK:
                                 Euro. U as just outgrowth of Hohfeldian reconceptualization of Amer constitutionalism in 1930s –
                                 but typical of peripheries today, asserts its own originality
                    one of the purest examples of contemp L T: Euro Union law – quintessentially the legal thought of our
                    says: Euro U is neither sov nor not-sov; the states of Euro U are likewise neither sov or non-sov
                              [me: like Habermas on multi-level global order w/ divided functions, v. world gov‘t]
   so: above: 1st Q of Conetmp LT re: sovereignty: vertical (?)
   2nd Q of Contempt LT re: sovereignty: horizontal (?)
         o i.e., giving a lot of power to the Fed Reserve Board, appointed in a way to make it independent
         o the internal fragmentation of sovereignty
         o the Supr Ct cd be seen as sovereign b/c it interp.s the Const, but so cd every other instuitution
         o sovereignty is just a bundle of sticks
   (Sidenote: the 1st Amend instance of this Hohfeldian analytic:
         o there are actually a bunch of limits on freedom of expression:
                    e.g. libel/slander is a radical restriction of freedom of speech
                              and who you‘re libelling changes whether you‘re liable (famous v. not-famous, etc.)
                    or e.g. the law of sexual harrassment
                    or e.g. threats (tort law conflicted re: assault by mere words)
         o so there is no absolute right to freedom of expression, just a set of doctrines inside of each of which there‘s an
              infinite # of possible resolutions of boundary between ―right to speak‖ and whatever else is being protected – sexual
              autonomy, etc.
         o And people will always rebel against this, and say: no, no, the definition of freedom of expression means that in this
              case it dsn‘t protect this
         o And the mocking Hohfeldian response will be: this is neoformalism—I will show that you don‘t actually use this
              meaning in the next case over, etc.
                    or, more politely: this is actually indeterminate; or: you‘re begging the question
         o And the first person responds: you are cynical, deconstructive, nihilist)
   DK: When Minow is writing an essay about rights (the essay for Cover) – first page – rights-criticism (DK: = nihilism)
   Social class and national minority status –
         o crucial transformations of IL after 1945: nat‘l minority status once protected thru treaties by homeland of minority -
              > rights of minorities understood as entitelements based on minority status
   DK: for old leftist such as myself, can‘t describe this any way but mockingly: social idea -> identity category; as in middle
    class -> ―the poor‖
               o the extreme of this being: entrepreneurs as a class
               o WTO preventing discrimination against entrepreneurs…
         the emergence of identity as a category from the social categories of class and national minority status
         How is the category of ID different from the categories of social class/national minority status?
               o not so easy to answre
               o we wdn‘t say soc class was historically understood as an identity
                         tho part of modern discussion of ID is rooted in Marx‘s discussion of class consciosuness
               o national minority status deeply connected to anthropologcial concept called ―culture‖
                         language/religion/physical appearance
               o tied to aspects of social existence:
                         so you can be woman, gay, black, handicapped
               o it begins by a category assoc‘d w/ disadvnatage vis-à-vis a majority
               o multiple possible characteristics can be overlaid
               o it begins – you‘re only a subcategory
               o if working class (or, say, peasant) is vast majority of population, hard to identify as ID
               o but if they‘re minority, characteristics easier to distinguish
                         1950s Pasolini celebrating the ―peasant‖ as an identity category – b/c it‘s disappearing
                         but no one writing in 1850s in France wd‘ve seen peasant as an identity category
               o Another crucial thing: class discourse is often framed in terms of distributive justice (how much do the peasants
                   get v. the landowners), v. identity in terms of discrimination
                         and latter is separated from national categories
         in period immediately following 1945, two crucial moments in developments of identity discoruse:
               o 1. Nuremberg trials
               o 2. Amer. civil rights movement
               o Both illustrate centrality of Amer in 3rd Globalization
         Neither the Jews in Europe nor the ex-slave population of US were national minorities – not like the Germans in Poland or
          the Hungarians in Romania – b/c the Jews had no homeland, and ex-slaves derived from all over Africa’s pre-colonial
          world do not have a homeland – so if you‘re going to protect them, you‘re going to have to cut them free from the cateogry
          of national minority. They can‘t be protected by giving homeland juridical power to protect their interests.
         THUS: individualization of rights-concept. No longer based on social idea of ―group right‖ (v. CLT individualism).


6 Apr. 2009

         The unit of discourse for SLT was a big change from CLT b/c of introduction of
              o position in econ. order (Marxist: class)
              o and minority status
         both were understood as major shifts in who cd be understood as the subjects of legal transactions
              o e.g., labor: hours and wage legislation (based on understanding labor as a category: redressing the balance btw labor
                   and capital)
              o or landlord and tenant
         So: SLT on economics:
              o assumes labor has common interest v. capital, tenants have common interests v. landlord, etc. – and that there is an
                   imbalance – and this presents dangers to society – and a move by govt. is needed to redress the balance (and to
                   address interdependence, negative feedback loops, downward spirals)
              o and all of these elements are still there in Contemp LT
         and: SLT re: national minority:
              o minority is there as a minority in a nation-state, and it‘s connected to another nation-state
              o so: there‘s a failure to protect minority where it‘s located
              o and this creates danger to world peace
              o i.e. that the homeland of national minority will be motivated to protect its members residing in other state
              o and it‘s plausible to redesign treaty system that established after Treaty of Versailles that homeland
              o DK‘s idea (he thinks it‘s very interesting and original): the moment of the transition from econ. interest group to
                   minority interest group has to do with combination of Nuremberg and Amer. civil rights movement – both of these
                   deeply influencing Amer. legal thought in 1950s, and then globalized)
                         Jewish relatives of Holocaust victims and descendants of slaves share the property of not having a
                                  (until Israel is founded)
                                 in fact, Jewish agencies located in W. Euro and US participating in processes leading up to
                                  Versailles are very explicit in saying they‘re not a national minority – a regime that works for
                                  them will have to get beyond this traditional category
                              SIDENOTE: note that one of Germ‘s arguments for expansion in WWII was that it was necessary
                                  to do this in order to protect Germ. people in other countries – national-minority-treaties had failed
   So: the idea is: in the post-WWII period, there‘s a shift toward the idea that there are universal individual human rights that
    everyone has a right to, that belong to everyone, just as everyone is an individual.
         o We‘ll see the exact equivalent in terms of civil law inside nation-states re: libertarianism view of rights in social
              welfare state.
   Anyway: an identity no longer defined by nationality. Instead, a very large # of conceivable right-holding identities.
         o This transformaiton gets us out of several parts of social conception
                    1. social conception said you have only one type of identity, and you get protected in that role
                    2. and social said it wasn‘t protecting you as individual, it was protecting a collective
                              labor legislation protects people as union members
                              was originally very hostile to idndividual union-member-rights re: the union
         o the identities for individuals are potentially an infinite number
                    and there‘s a common interest across the group
                    the minute you start subdividing, you get poss of single person occupying multiple identities
         o the right idea when assoc‘d with the identity idea is something well-understood using the langue/parole distinction
                    i.e., the notion of an identity that‘s coupled w/ a right is a kind of abstract idea that can be given a very
                        large number of iterations
                    M: we know that any given social complex is divided up by people w/ grievances and conflicting interests
                    the notion of an identity combined w/ rights provides a ―language of claiming‖
                              the rights-identity combination as providing a language of claiming that new groups – groups
                                  w/o much self-consciousness, groups where people have many already existing ID categories –
                                  can ID themselves and then mobilize themselves w/in the legal system
                              ie., if you’re unhappy and you look around and see other people who might be unhappy too
                                  is to define yourself as an identity and then claim rights doing that
                              and this process in modern era, since WWII, has become the central process by which interests are
                                  put forward by claimant groups
                    DK: many examples of this in US context – groups coming together around a more-or-less created-for-a-
                        legal-purpose type of identity (and what comes through here is the fluidity of ID idea)
                              but there has been a progression:
                                       o 1. the Nuremberg idea: there is an ID of “Jewishness”
                                       o 2. in US civil rights context, the ID of “black”
                                       o 3. the ID of “woman”
                    These three are models for all the developments that come after that
         o DK: The characteristic rights-formation that emerges when you start out w/ the idea of an ID w/ rights:
                    1. the ID group demands a formal legal equality
                              so: in the case of Jews, BG is highly structured legal discrim against Jews in Euro
                              and an Amer understanding is that Amer is diff than Euro 19th C b/c of formal equality of Jews
                                       o BUT: There isn‘t formal equality for blacks in slavery and Jim Crow system
                              or re: women: a formal legal inequality
                                       o derived from family law structures we discussed earlier
                              KEY: this isn‘t just an extension of liberal paradigm to all members of society b/c the demand
                                  goes beyond formal legal equality:
                    2. the ID group demands there should be accomodation – i.e., specific measures to accommodate the
                        particular practices and activities
                              e.g., there shd be a right to practice what is diff about your religion, w/o being prevented
                              or, e.g., in the context of gender: is there some accomodation for the fact that women bear children?
                              NOTE: none of this is the same as formal legal equality
                    3. a further legal demand that some forms of private discrimination should be rendered illegal
                              there should be some special recognition of private discrim.
                    4. affirmative action / reparations
                              the justification for this, note, isn‘t substantive inequality: it‘s to make up for consequnces in terms
                                  of current prosperity of having been unfairly treated in the past
         o Before going on to see how this functions as a langue (beyond the Jew/black/women prototype): the basic idea for
              ID rights is that it‘s not a distributive conception: it‘s an idea of procedural justice – a kind of equality of
              opportunity, as opposed to the notion that there is a kind of end-point of social equity
                      the Social people were concerned w/ social justice, which was distributive – they thought there was some
                       criterion for determining what the outcome should be
                    Social justice often said what they were doing had nothing to do with politics – was just responding to
                       imbalance btw labor and capital (tho everyone understood they were favoring labor at the expense of
                    Contemp LT criticizes it for this
                    How this difference works out:
                             if you have a procedural / equality of opportunity view, then the fact that there is a black
                                 President will be extermely significant
                             if you have a distributive / social justice / outcome view, then the fact that there is a black
                                 Preisdent will be trivial
                                      o as Sen pointed out: if you treated black America as a country, it wd be way, way down
                                            UN development list w/ a poor latin american country
                                                  BUT this isn‘t how we think: otherwise we wdn‘t care about discrimination
                                                     against Amer. Jews just b/c if you treated them as a country they‘d be very high
                                                     up on UN development scale
         o Note: You can be a moderate leftist in Contemp LT and agree w/ Hayek‘s critique of the Social
                    the abandonment of distributive justice as a goal among much of the contemp left (tho not DK) is often for
                       reasons similar to Hayek‘s critique
   one last note:
         o one striking thing in US: emergence of identity categories that are particular to their position in the anti-
              discriminatory-rights-asserting legal context – e.g. the category of ―Asian‖ as an ID category – can encompass very
              prosperous Japanese immigrant of 1920 to Hmong tribesman brought to US by CIA after fall of S Vietnamese
                    and this category is a true cultural category in that it‘s now possible to find people who have an ―Asian
                       identity‖ today – an identity that didn’t exist before
                    ―indigenous peoples‖ is another category like this
                    but even these two are like national minority categories, not too much of a leap
         o the extreme complexity of the process of generating new identities
         o gay rights
                    comes about in a system that already has Nuremberg paradigm, already has US civil rights paradigm,
                       already has second-wave US feminism paradigm
                    and gay rights people confronting Q of how to confront identity
                             e.g. very important part of discourse of rights of Jews, blacks, women, is the discourse of
                                 ―immutable characteristics‖ –
                                      o i.e., what‘s wrong is that you shdn‘t discrim. against immutable characteristics
                    if you‘re a gay rights activist, do you say that ―gay‖ is immutable
         o Halley makes two points:
                    1. answer to this Q will be affected by disocurse/identity rights up to that point
                             you‘ll be fitting yourself into this langue
                    + 2. each new identity will have impact on already-existing identities
                             you‘ll be modifying what the existing paroles in the langue stand for
         o Minow‘s example is: the rights of the child
                    she‘s preoccupied w/ emergence of ―children‘s rights‖ as a category in the 1980s
                    shd it be an obstacle that children don‘t have autonomy?
                    and she argues that the fact that children aren‘t sui juris (aren‘t authorized to decide anything for
                       themselves) dsn‘t mean they don‘t have rights
   DK: at this pt, when ―rights‖ concept can be used for children v. parents and v. state, the category of ―right‖ has gone 180
    degrees from Savigny (whose idea was: right = absolute freedom of the will within its sphere so that all people can have
    absolute autonomy of the will)
         o very long historical process from CLT to Contemp LT:
                    begin w/ Savigny‘s conception, defined explicitly in terms of universality of the right (where the exception
                       is: you can‘t have such a right if you lack competence – first section in the Pandecta: ―what we‘re saying
                       dsn‘t apply if you don‘t have competence‖)
                    end w/ saying: you don‘t have to have any freedom of the will at all, and you still have rights – guardian ad
                       litem can still litigate your rights
   (a good stu. question we‘re not going to address right now: how do econ/soc rt.s fit into the idea of Contemp LT not being
   IN SUM: MINOW FIRST PART: the lang. of claiming today is the lang of rights/identity
         o and it‘s avail. to anybody, and affirms connection between the claimant and anyone else making the claim
        o     it‘s a mechanism of community
        o     it establishes a language in which issues of justice can be disucssed
        o     and the dominance of rights discourse is a symptom of the empowerment from below of people who think they have
              claims against other claims and the state apparatus
   MINOW SECOND PART (very subtly conveyed): should we bel. that there will be good results from casting all claims in
    rights discourse? will the above produce anything that cd be described as consensual/communitarian resolution of the
    underlying disputes/grievances that motivate the claimants?
         o and there, Minow is completely not idealistic: says, you‘re a sucker/fool if you believe that the mere phrasing of
              these things in terms of rights discourse is going to produce results that you like
                     this is the Cover part
         o dashes any expectation that the mere reformulation of claims in the lang of rts will be assoc‘d w/ substantively just
              or satisfying outcomes:
                     no, violence is there
                     if it‘s what you don‘t like, it‘s going to be there anyway
         o dominant people will claim their ability to be violent in terms of rights as well as though against which violence
              is inflicted
   In other words, the political is always there.
         o politics drives law
         o no matter how much law might influence politics as well
   Seems to DK that Part II is very different in tone than Part I

 2nd part of Min‘s article is like Hohfeld: H establishes the lang of rts – says: when you say ―rt,‖ you think you know what
   you mean, but actually you might mean any number of a large number of things. When you say ―property rts,‖ it cd be any
   permutation of bundle of rt/no-right/priv.s., etc. And what the specific bundle will be will be a matter of policy. So: a
   disintegration of the idea of property rts. and of rt. generally
        o emphasizing that in a given situation, you may want to combine the 8 elements in any # of different ways according
            to what your justice/policy objectives are re: the situation
 Whatever you do, however you end up resolving it, you‘ll be able to state it rt.s terms
        o therefore, as Min says, rt.s is avail. as the universal lang. of claiming
        o and this lang. has 8 distinct components
        o which can be arranged in infinite ways
        o motivated by justice/policy concerns
 Whatever your claims are, you can state them in the lang of rts
 Where does Weiler fit in?
 He illustrates just the same thing has happened to sovereignty as to property rts above
        o public law and private law have gone through identical transformation:
                  the disaggregation of the abstraction
        o in Contemp LT, sovereignty can be aggregated/disaggregated in an endless # of ways
                  say: Treaty of Rome didn‘t abbrogate in any way the sovereignty of member states
                            This is meaningless
                            you have to think about sovereignty as just H‘s bundle of sticks, each of which can be infinitely
                               varied – so, over its history, there have been many diff Euro Unions, and none cd be derived from
                               abstract statement of the terms of the treaty of Euro Ct Justice‘s articulation of the nature of
        o Wiler: the particular configuration that constitutes the Union at a given time is a product of things like: the big
            countries v. small countries, sov. fetishizing countries (e.g. France) v. non-sovereignty-fetishing countries (e.g.
        o You‘d be crazy if you thought that the actual coup-d‘etat by which ECJ establishes its right to decide whether other
            isntiutitons are palying by rules of game – if you thought this was just law – you‘d understand nothing about Euro
            Union at all –
        o in fact, it was totally up for grabs – exec power, law, sov., center, region, etc. are completely up for grabs
        o nothing about the nature of a transregional federation will tell us what ought to be done
 Sovereignty is just a bundle of powers, property is a bundle of rights – abstract concept gets you nowhere
 Now: connecting all of this to constitutionalization/juridification:
        o you might think that out of H.ian property and post-League of N.s sov., the one thing you wdn‘t get is
            const.zation/jurid.ation – b/c CLT abstractions can‘t resolve Qs of law – you‘d think the result wd be politicization
                  and it‘s true that contempLT is obsessed w/ politics
                            (parenthesis: the distinction between property (CLT) and an alternative to prop (SLT) disappears,
                               as does btw sov and alt to sov – b/c these are all just seen as … missed)
              o   the paradox of Contem LT is that on the one hand, the disintegration and relatization of prop/sov render the Q of
                  politics a constant shadow
              o   but on the other hand, this development dsn‘t destroy the plausability of juridification/constitutionzation/legal
                        you can still sometimes do CLT deductive legal reasoning, SLT purposive reasoning
                        some deductive legal reasoning will continue to be completely plausible
                                 you still have precedents, enactments, statutes, treaties, Const.s
                        plus, you’ll have Contemp LT balancing if CLT and SLT don’t give you an answer
                                 as we‘ll see soon
              o   the disintegration of prop/sov concepts show not only that the abstractions don‘t work, but also the unity of the
              o   Actually, faith in the judiciary goes through the roof
              o   the amazing thing that happens as 1992 approaches is that the parties – both at transnational level (Council of
                  MInisters, Euro Ct of Justice) and the member states – have come to accept that it is simply somehow in the nature
                  of the new system that the Euro Ct of Justice can determine the boundaries between e.g. the Commisison and the
                  Concil of Ministers
                        DK: Why?
                        the only kind of answer he gives is at end of article, consideration of Euro identity
                        it turns out that the thing that is problematic is the emergence of a Euro identity, and what this emergence
                            implies about democracy and HR
                        so: juridification/constitutionalization occuring inside politicization and collapse of foundation of legal
                            reasoning that you might think wd undermine it


7 Apr. 2009

    The reasoning part of Contemp LT
          o (versus prev classes – the relativization of rights/sovereignty, and the rise of the category of ―identity‖)
    The characteristic mode of legal reasoning in Contemp LT
    Rem: this is a geneological inquiry – earlier stages are preserved in the new stages – so: there is deductive reasoning at every
      period of legal thought.
          o proportionality/blaancing just develops and comes in/becomes dominant
    Categories we‘ll be dealing with today:
          o property/contract
          o econ & social legislation
          o constitutionalize/identity
          o inductive/deductive
          o purposive
          o balancing
          o policies
                      FR
                      MR
          o rights
          o principles
          o powers
                      central/local
                      executive/leg/judicial
          o institutional competence
    How to trace proportionality backwards in time
    DK‘s piece in reading today is basically what he‘s going to present now – but in more comprehensible form, b/c that was last
      piece in article on Weber, etc.
    Bal/proportionality:
          o 1. in whatever domain it‘s being done, people tend to see it as a particular characteristic of the domain they‘re
               located in. Germ. Const. theorists see it as peculiarly assoc‘d w/ Germ. Const. thought. Amer.s tend to see it as
               assoc‘d w/ legal realism, Amer. const. thought. IHL thinks it‘s in IHL. In fact, it‘s everywhere, all around in modern
               legal thought.
          o 2. Balancing is a council of despair. People doing legal argument have an implicit heirarchy in their minds:
                              deduction
                                     o        if you can argue that there‘s a master text (Const., statute, sentence from a doctrinal
                                              writer, holding, etc.) that looks like it‘s authoritative, and you can argue that the interp.
                                              you‘re looking for is simply another statement of the meaning already in the text – that‘s
                                              deduction. Meaning-based interpretation that takes a more abstract statement
                                                    ―I‘m just applying a rule!‖
                                                    it‘s obvious
                                                    this is just what the clause means
                                         o e.g. ―the rule of contract-market is just what we mean by ‗expectancy‘‖
                               teleological reasoning
                                         o e.g. ―it‘s not clear what we mean by ‗expectancy,‘ but given that there‘s a purpose, the
                                              contract/market fulfills the purpose‖ (or: the meaning of expectancy is clear here, but
                                              given the facts here, we won‘t accomplish the underlying purpose without adding an
                                              exception here)
                               balancing
                                         o e.g. ―the contract/market outcome is the best available outcome when we balance
                                              expectation-fulfillment (reliance) against formal realizability‖
                                         o look, there are actually two different purposes for enforcing contracts – and for the rule of
                                              expectation damages. We want to promote reliance, but we also have second goal: to
                                              have a measure that is highly formally realizable, that we‘ll be able to enforce so that
                                              parties will know obligations ahead of time. (then went into detailed example) We might
                                              partly sacrifice one for the other, or vice versa. E.g., harming reliance in order to use a
                                              rule that is formally realizable.
                     note: this heirarchy comes from the law/politics distinction in Contemp LT, the idea that judges shd just be
                         mere appliers of the norm, dem‘ly-elected legislators shd come up with the norm
   Rem.: balancing occurs in many contexts
   it is, e.g., used in ―proportionality test‖ in civil law/Euro Union. Note: has multiple stages –
          o 1. is the objective legit.?
                     if the harming actor who the ct is being asked to restrain didn‘t have the power/rt/protected purpose from
                         the start, then the ct can hold him liable
                     (this step will be resolved ―deductively‖: the guy was regulating cigarette-advertising, but they don‘t have
                         any right to regulate in the domain of health, therefore the regulation was invalid – it was really a health-
                         regulation masquerading as a regulation-of-commerce)
          o 2. ―least-intrusive means‖
                     let‘s say regulating cig. ads falls within the domain of legit. EU regulation; then the Q becomes: is there a
                         better way to do this? one that interferes w/ rights less?
                     and this is usually framed deductively as well
          o 3. proportionality in the narrow sense (the real balancing question)
                     on the one hand, strong national interests in regulating in this domain, preserve free trade; on the other hand,
                         strong interests in preserving the autonomy of units to pursue their powers over health
                     looking at a conflict btw two purposes that can‘t fully be realized under the circumstances
                     these are the famous 3 steps
                     NOTE: the things in conflict can be:
                               policies
                               rights
                               powers
                               legitimate interests
                               principles
                                         o e.g. no man shall profit by his own evildoing
                                         o or whatever
                     in Contemp LT, the balancing paradigms just means: conflicting considerations – some push toward one
                         interpretation, and some toward other
                               and neither the category of ―the meaning of the text‖ or ―the meaning of the purpose of the text‖
                                    will resolve this
                     e.g., DENNIS: in Frankf‘s conc. in Dennis: fed govt‘s power to protect nat‘l sec v. indiv‘s right to free
   SO:
          o 1. first really striking thing about Contemp LT: any considerations can be balanced, everything can conflict w/
                everything else
                     e.g. US libel/standard = conflict btw indiv‘s right to representation and indiv‘s rt to free speech
          o 2. second really striking thing: it‘s very common for someone to position themselves at stage 1 and say:
                     2a. purposive reasoning is just discretionary;
                       2b. or: purposive reasoning isn‘t necessarily discretionary, but balancing is just a matter of whatever the
                        judge had for breakfast – b/c obviously, there’s no objective way of measuring this
   A very important legal/theoretical pt wd be this: objection #2 is no more valid as an objection against balancing than it is
    against purpose or meaning.
         o 2a.: E.g., if there is a purpose clearly stated in preamble and it clearly applies to case in a clear way.
         o or: 2b.: all systems are based on precedent (comparative legal thought has showed that civil law is also very
              dependent on precedent; just as it‘s showed that common law is much more depednent on codes than was previously
                    A FORTIORI reasoning: given that you decided that policy A was stronger than policy B in case X, then
                        in case Y, there‘s no way we can say that policy B is stronger than policy A here, etc.
                    A fortiori reasoning renders balancing highly compelling in next case, makes it not “all just a matter
                        of the subjectivity of the judge”
                    so balancing is no more ―all just a matter of what judge had for breakfast‖ than deduction – is a kind of
                        deduction (a fortiori is a logical category)
                    so: balancing can seem as determinate, as compelling, as deduction or purposive analysis
                              tho it will never seem to be at the top of the heirarchy – the defendant will always prefer a defense
                                 based on deduction, etc.
                    (toward Alexy‘s article: balancing is like arithmetic!)
         o and note: you can do a ―balancing test‖ at any of the three stages in the proportionality test
   SO: Contemp LT at the level of METHOD = the endless iteration and reiteration of
                    deduction/induction,
                    purposive reasoning,
                    and balancing
                              from a fortiori
                              to less determinate forms
         o with each of them in argumentative contexts where the following is true:
                    anything can be a conflicting consideration against anything else
                              the judge is just taking in all the arguments that might be made
                              the process always proceeds in the same heirarchy from deduction to balancing – and it can
                                 be stopped at any stage
                    the way you succeed at legal reasoning: you show that the other person is a formalist
                              what it is to be a formalist is:
                                      o to rely on deduction when the other side can show indeterminacy;
                                      o to rely on purpose when other side can show anther purpose;
                                      o to rely on a fortiori balancing when other side can point to a different kind of
                              that is:
                                      o if you deduce, you may be stuck w/ charge of “abuse of deduction”
                                                [and the counterargument will always be: “you’re no good at deductive
                                      o if you use purposive reasoning, you may be charged w/ the critique of “social
                                           conceptualism” = the abuse of purposive reaosning, which can mean:
                                                a. you thought there was only one purpose, but there are others
                                                b. you thought we cd deduce the solution from the purpose, but in fact it’s
                                      o if you use a fortiori balancing, …
   [sidenote: DK says ―nesting‖ where I would once have said ―fractal‖]
   sidenote:
         o Swiss Civil Code says: the way you shd interp is
                    1) textual
                    2) purposive
                    3) ―the way you‘d do it if you were a legislator.‖
         o Fr. highest court (Court de Cassation): the category of ―equity‖ is how they sneak in balancing in private arguments
         o Lat Amer codes: some talk about textual, others purposive, and some sneak in ―equity‖
         o Vienna Convention (on how to interp. treaties) says:
                    1) textual
                    2) purposive
                    then mentions equity somewhere…
   SOCIAL/ECON RT.S (finally replying to some longstanding student Q):
         o the Social period is the beginning of legislation of econ/soc rights, which are always understood as a matter of
              legislation – not Constitutional in the sense of being enforceable against the legislature through judicial review
               o something about identity (missed)
         there is a characteristic process by which rights-balancing emerges over time – and it‘s part of the sequence from CLT to
          Social to Contemp LT
               o first: remember: constitutionalization/juridification story:
                         swiss cheese image of CLT: delegalized/nonlegalized domains (police/prison/hospital custody, discretion
                              of employer, nothing above state system in PIL, etc.)
                         the Social fills the holes w/ non-constitutional intervention: social-work agencies, etc. Understood as public
                              administrative intervention.
                         then Contemp LT: the constitutionalization/juridification of all the domains that were previously
                              understood as either strictly private or strictly public
               o so: in civil law countries, code is understood as preceding whatever const. may be in force at the moment. e.g.
                    German scholars saying: ―the BGB has quasi-constitutional status.‖ Or in Fr.: ―the Fr Civ Code has quasi-
                    constititional status.‖
               o So all the Social creations are reconceived as public administration of private entitlements: as a welfare-holder, you
                    have Const.‘l rt.s re: the welfare dept.
         Again: How does the emergence of right-balancing happen? A series of steps:
               o e.g.: the Span, Grk, Portugese Const.s are loaded w/ the statement of soc/econ rt.s
               o there will be judicial access for people to challenge actions
                         of admin. agencies
                         and of private persons
               o on csontitutional grounds
               o NOTE: this isn‘t about independently claiming the COnst‘l right – you don‘t go to court and say: I‘m homeless,
                    Const. says state has to give me a home
                         that‘s still a matter for the agency established by legislation
               o RATHER: if you‘re evicted, you go to court, and the interp. of landlord-tenant statute is guided by soc/econ ―rt.s‖ in
               o SO: there‘s now going to be a balancing (sometimes statute will resolve it, sometimes lang of Const., sometimes
                    purposes of administrative public housing regime)
                         and this is how econ/soc rt.s come into the story
               o AND: identity-rts (constitutionalized rts of non-discrimination) are on top of that system –
                         they‘re a further dimension of rts-holding on top of the structure of rts created by balancing indiv
                              autonomy/powers absol w/in their spheres/the private against the social interests of society (me: see DK‘s
                              article if this dsn‘t make sense by the time reading it – not actually crucial to get this exact pt)
                         basically: the whole of Contemp LT is organized around balancing between CLT and the Social under the
                              aegis of ―identity‖
                         (constitutionalism/juridification)
                         (again: all of this is clear in the article)


8 Apr. 2009

         I. Relativization (symbolized by readings of Hohfeld and Weiler):
                          Property
                          Sovereignty
                          Public/Private
               o relativization = the transformation of these categories into bundles of sticks, which is variable (i.e., we want to call
                    the property bundle ―property‖ in each case, but it will be very diff. for residential homeowner in restricted
                    residential community v. copyright holder in France)
               o rather than these being concepts which, once you‘ve got them, allow you to derive multiple sub-rules understood to
                    be implicit in the idea of sovereignty or property
               o you can‘t get to the composition of the bundle based on the concept
               o you have to consider:
                          context
                          objective
                          purposes/goals
                          justice & policy considerations (e.g. of whoever created the statute)
               o e.g. in US, owner of share is beneficiary of 2 diff. versions of law of fraud – entitled to use against corp. the
                    (probably Delaware) common law of fraud, as well as Rule 10b5 of SEC act specifies restrictions on what issuers of
                    securities can do – which modified common law of fraud, imposing higher duties on issuer.
                            So: the bundle you get as owner of share is unintelligible unless you put together these two sticks – the
                             common law stick and the SEC statute stick – and you can‘t determine t
               o the essential idea: the character of the sticks in, e.g. property bundle (i.e., which specific sticks you get as, e.g.,
                   a property owner) can’t be derived from the concept of, e.g., property
        II. characteristic techniques of legal reasoning: PROPORTIONALITY & NEOFORMALISM (yesterday)
        III. JURIDIFICATION (future class)
        ―Const.ism‖ as a phenomenon can be understood to go way beyond Const.ism proper

    Things are happening in Con Law in this period, transforming what Con Law is understood to be
    these developments turn out not to be isolated phenomena occuring in Con Law
    but typical of what‘s happening across legal domains
    all falling under banner: the juridification and constitutionalization of law in general
    What DK is doing here (in the terms that Teubner‘s article uses):
           o abstraction
           o re-specification
    i.e., he‘s abstracting the features from Con Law proper, and then re-specifying these features in other domains
    this is the structuralist method he‘s using.

    applying what might have been most confusing in the discussion yesterday
    Yesterday, he said: we can say we have this modern balancing/proportionality test, w/ three stages.
    And though there is a heirarchy of ways of doing each stage, any one of them may be perfectly clear/deduction-like:
           o sometimes deduction will give you the answer you want
           o sometimes the teleogical criterion will be perfectly clear
           o sometimes the balancing approach will be perfectly clear (the most striking example being: a fortiori cases)
    Douglas‘ opinion in Griswold is very important, b/c establishes a Constituionally protected right of privacy, which can lead
      to the invalidation of judicial review of a statute that is passed in the legitimate pursuit of a valid interest of the gov‘t. It
      creates a new way of considering the validity of legislation: does this statute survive when confronted w/ the existence of this
      right of privacy? How does he do it?
           o He refers to a set of specific provisions of Bill of Rights: 1, 4, 5, 9 amendments, now generalized as rights against
                not only fed govt but states as well.
           o Inducing upward, he says: all of these ought to be understood as instantiations of the ―right of privacy‖
           o Deducing downward, he says: the prohibition of contraception is a privacy issue… (this is just deductive: if there is
                a right of privacy, then this right is implicated in couples having access to contraceptives – this is just what the Rt of
                Priv. is, just what it means)
                      note: so this was the use of induction/deduction to establish first prong of proportionality test:
                      there is a valid right here
                      so proportionality analysis can go onward
                      (if there weren‘t a right, there wd be no justification at all for questioning state‘s regulation)
                      sidenote: the example of induction/deduction is striking, often mocked, extreme example
           o But this dsn‘t mean the statute is necessarily invalid
           o How do we decide this?
           o Next step: the least-intrusive-means part of the test
           o Douglas brings up explicitly (and Ely points this out and takes it much further in Wages): whatever your objection to
                contraceptives, there was another way to regulate their use: regulating manufacture, v. criminalizing their use
           o Douglas says: statute chose the most obstructive and intrusive way of reducing/controlling contraception
                      sidenote: many in Europe say: ―balancing‖ is so diff. than ―proportionality‖ – latter has 3 parts, US dsn‘t
                           have that, just uses balancing, it‘s completely diff
                      DK: this is completely wrong – in US, we have exactly the same structure
           o Anyway, b/c of failing step 2, we don‘t even get to the balancing stage
                      versus: in ROE, we do get to 3rd stage – balancing (btw privacy right of pregnant woman, but also
                           association rt btw woman and doctor – very complex and ambiguous (missed))
                                 sidenote: ―interest‖ just means ―right‖
                      balance is performed, and balance comes out differently in each trimester
                      so ROE is a very florid version of balancing
    Continuing: DK claimed that there‘s a heirarchy of methods: deduction -> teleology -> balancing
    Ely‘s Wages has become for US the canonical text arguing that an instance of balancing was just arbitrary, etc.
           o Ely: the balancing test they do is incredibly arbitrary and really unconvincing – amounts to judicial law-making – ct
                not performing its appropriate function – no better than Lochner
             o     Ely‘s rhetoric very contemporary: calls the article the Wages of Crying Wolf: ref. to the ―boy who cried wolf‖: all the
                   arguments I‘m making against this opinion have already been made against every opinion of Lochner court and
                   every opinion of Warren Ct: I admit that I‘m just making completely familiar argument against judicial lawmaking
                   and refusal of judges to abide by appropriate performance of deduction/teleology/balancing. So you‘ve heard this
                   before! And I agree w/ many Warren Ct opinions that were attacked – w/ police-dogs!
               o So: why is he in favor of all these Warren Ct decisions but not this one?
               o The conservatives and the Harv Law Sch centrists (major critics of Warr Ct as activist) – they were crying wolf!
               o And now when I, Ely, Yale Law Prof., say it has finally happened, I won‘t be believed.
               o The Warren Ct’s critics are the boy who cried wolf; I‘m the boy crying out when the wolf is actually here – Ely
                   expects he won‘t be believed.
               o The arguments he‘s recycling are foundational arguments of contemporary legal thought.
        Remember:
               o For CLT, morality was the big Q: has the legal system departed so far from morality that it can no longer be
                   respected; or is law just morality; or… etc.?
               o For ContempLT, politics is the big Q: has the ct just hijacked Const. to enact its political objection? Ely accepts this.
        Note that ―judicial activism‖ is a phrase developed by liberal (left) critics of the Lochner ct in retrospect starting in 1937. And
         it‘s used against the Warren Ct by the right.
        Note: Warren Ct is attacked from both right and left for its balancing.
               o e.g. 1948-1960: ct. balances re: 1st Amendment, dsn‘t invalidate the Smith Act. Instead, balances – as Frankfurter
                   does in concurrence in DENNIS, as we read. This is right after WWII, very peak moment of Cold War. USSR
                   taking over E Europe. Stalin purging Jews, taking old members of Comm Party back to Russia from e.g. Poland
                   (whole urban intelligentsia), kills them all, replaces them w/ children of polish peasants, who are turned into Polish
                   communist party.
                         there are hardly any Communist Party members in US – a few dozen thousand, all under surveillance…
                         but the non-Communist civil libertarian left attacks balancing test – the Smith Act is unconstitutional
        Note: Douglas‘ construction by induction/deduction of right of privacy is just as open to critique as ―balancing‖: just a mask
         for arbitrary/subjective preferences of opinions of judge.
        KEY: Gény‘s critique of abuse of deduction is the same critique that Stewart offers in his opinion in GRISWOLD
               o for every instance of induction/deduction to construct the rights or powers, there‘s going to be the potential critique
                   that deduction has been totally abused
               o and that certainly is a plausible objection to Douglas‘ opinion in GRISWOLD: there no need to derive ―right of
                   privacy‖ to support var. Bill of Rights
        1970-1: DK clerked for Stewart, and Douglas was still there – and they thought his opinions were disgraceful, just tossed out
         – b/c it opened them to these criticisms
        One more dimension of ROE in context of juridification in the Social: rem. the Swiss Cheese thesis:
               o … this structure is being filled in by the Social, to prevent socially negative conseq.s of certain holes not being
                   legally controlled
               o then Contemp LT reducing arbitrariness of custodial process, etc. through giving indiv. rt.s…
               o i.e., the production across the legal sphere of a situation which could be called ―structural coupling of sub-system
                   and law‖ (Teubner)
               o Teubner: famously hard to understand, really irritating, like Homi Bhaba
               o this article probably his most comprehensible except the other one assigned

    DK: in this class, we now need to abstract and then re-specify the notion of the Const.
    me: What are the features of a non-state Constitution? What must something have that we can find in it a Constituional
          o 1. Structural coupling of sub-system (such as family) and law:
                    ―System‖ could be family, Olympics, world economy, whatever
                    You as private individual will conceptualize yourself as right and powerholder operating in the
                        shadow of a judge of some kind, an adjudicator of the rules of whatever system you’re involved in
                        (see parenthetical re: #1 below under #3)
                              (e.g., the Olympics: a competitor sees themselves as subject to decisions of judges re: whether
                                 he‘ll get medal or not)
                              e.g. once a ―family‖ is understood as hooked up to law, it‘s reconceived as a place where actors
                                 interact in the shadow of legal norms – w/ the occasion intervention of, e.g., judges
                              and e.g. we reconceptualize IR in the same: we couple the sub-system of IL to law by
                                 reconceptualizing the actions of all the actors as actors who are either or are not subject to IHRL;
                                 whose actions will be assessed or not assessed by a judge; etc.
                             SO: coupling of a sub-system means: actors either do or don‘t understand themselves as subject to law; and
                              subject or not subject to judge. But judge dsn‘t mean Art III US Const prototype of judge.
                                    What is req‘d is that the dispute will be processed by actors who understand themselves to be
                                        disinterested appliers of a set of norms.
                                    Teubner: always understood as a Luhmannite: systems-theorist – but DK thinks he‘s actually more
                                        aligned w/ Weber
                          The ―judge‖ here could be the staff of any institution – the dispute-resolution staff (e.g. WTO dispute-
                              resolution staff)
                                    Teubner‘s favorite example: Int‘l Olympic Committee – not part of any state, and not subject to
                                        legislated jurisdiction of any state – though it‘s incorporated in some place, maybe Switzerland.
                                        When IOC adjudicated dispute btw Kerrigan and Harding, that was exactly what Teubner was
                                        talking about.
                o 2. Hierarchy of norms – ordinary v. constitutional
                          Teubner: this dual structure gets generated across a wide variety of law.
                          Lower-level standards must be consistent with (or even derived from) higher-level norms.
                                    e.g. in case of IOC: it has all sorts of rules about meetings, and about goals and purposes of
                                        Olympic enterprise – sort of like Const‘l values – impartiality in judging, etc. – then there are a
                                        million specific regulation. KEY: latter regulation are subject to former goals and purposes. A
                                        competitor can challenge judges at games – not by saying they were wrong, but by saying
                                        something about structure of judges is inconsistent w/ goals and purposes of Olympics.
                o 3. Judicial review of norms
                          More than the presence of the judge (of some kind) in your mind when you are thinking as a private actor
                              about how your dispute will be resolved (which = #1)
                          This is a different level of juridificaiton/constitutionalization
                          Means that the neutral party has a second kind of juridical authority: to decide the consistency of lower-
                              order norm with higher-order norms.
                          The opposite of Jacobinism: these const‘l norms are just there. And the one who judges whether they have
                              been violated is not a political actor.
                o 4. Dual Constitution of Organized and Spontaneous Sectors
                          We conceive of there being two dimensions in the sub-system:
                                    the bureaucratically organized
                                    and the spontaneous sectors
                          So: a sub-system is constituted of two parts: a bureaucracy, and then the spontaneous actors
                                    This is just an abstraction of the public/private distinction (in e.g. the economy, there‘s the state on
                                        one side, private actors on the other)
                          In the spontaneous order, people are just running around doing things for themselves, and that‘s understood
                              as a legit thing to do
                          Then there‘s the bureaucracy…
                                    e.g. The SEC is the bureaucracy re: the security issuers; just as within the security issuers there‘s a
                                        bureaucracy and a spontaneous element; etc.
         SO: the above are four features of a system that would allow us to conceive of the system as “constitutionalized”
                o e.g. the system of ―family‖ has all four features, or the ―Olympics,‖ or ―the world economy‖
                          individuals operating in the system see themselves as subject to law/rule/norm of some kind that will be
                              decided by judge
                          etc.
         NOTE: It‘s not that the systems have become what DK describes above.
         A sociologist might conclude that any given institution has the four features or not
         This isn‘t a statement about that
         It‘s a statement about the langue of Contemp LT
                o There are a million ways to couple a sub-system with law
                o And if you say some system displays one of those ways, you might be empirically wrong
         me: he‘s saying: this isn‘t a claim that things in these instituions have shifted over the last 100 years – it‘s a claim that this
          way of talking about institiutions has evolved over the last 100 years.
                o DK: this isn‘t an example of universal history
                o in Weber‘s terms, it‘s decribing a universal sociology: the participants in the system understand these to be the
                     categories they‘d use to understand what‘s happening


13 Apr. 2009
Last time: CON LAW and emergency of contemporary structure in which there‘s a confrontation btw Griswold/Roe-type judicial
activism and the countercharge of judicial usurpation

This time: MARKET LAW (specifically, Contracts, Property, Torts)
     Within contemporary legal thought, use of CLT re: Market Law is generally by right, etc.

                                               CLT                                             SOCIAL
MKT                                            Rt                                              Left
CS (Civil Society)/Family law                  Left                                            Rt

    Traynor‘s conc.: canonical, foundational reading for 1L Torts courses now
         o this written early in period of ContempLT
         o and Traynor wd go on to play, on CA Supr Ct, the intellectual leader of liberal thinking on CA Supr Ct during

    his way of approaching legal thought very close to approach of the course
          o BUT: he didn‘t simply mechanically and slavishly follow DK‘s approach, as he shd‘ve
    Feinman wrote this while DK was independently writing Three Globalizations

        The period roughly from Escola onward is a period of general socialization of private law: rapid, substantive doctrinal
         change across the jurisdictions in the U.S.
        This is the area of law where US is almost entirely federal (up to states): thus fed. ct.s haven‘t been prominent in developing
             o and almost entirely judge-made (common law) v. legislative
        And there was also national coordination: private law was led by the drafting of the 2nd Rest.s of Contract, Property, Torts
             o (not the 1st Rest.s, which were made in 1930s)
             o a process of businessman, etc. discussing drafts; professoriat (very similar to Continental W Euro, very diff than Brit)
                   major influence in drafting – both through writing law review articles and through writing treatises and hornbooks
                          sidenote: this whole process dsn‘t make sense if you try to conceive of law in simply ―positivist‖ terms as
                             the will of the sovereign…
        What was the socialization process?
             o In the social critique of CLT that was developed starting w/ Geny and Von Jhering, Pound, Brandeis, Cardozo and
                   then realists (Llewelyn, etc.), there had been a very elaborate social critique of CLT contract/property/tort – so: this
                   is already in place. A lot of the key examples are from around WWI. (DK‘s article: From the Will Theory to the
                   Principle of Private Autonomy… (Lon Fuller) – the development here from end of 19th C to WWII) But isn‘t fully
                   in place until end of WWII.
             o The technique used by social writers (mostly academics, a few judges) on private law before WWII: they collect
                   outlier cases that look inconsistent w/ CLT approaches to contract/property/torts – inconsistent w/ the individualism
                   and transactional formalism of CLT – and they stick their social theory together w/ their collection of cases to argue
                   that the mainstream dominant view of contract/property/tort is wrong.
                          e.g., it‘s dogma in US that there‘s no liability w/o fault [me: damnum absque injuria: see Singer‘s article]
                          social people collect dozens of instances where there is, in fact, liability w/o fault, tho it‘s not justified in
                             those terms
                          they rationalize these cases – and then say: once you‘ve rationalized these cases, you see what tort law, etc.
                             ought to be
             o Escola is a perfect example of this
                          the social people will use this as fodder for the creation of social theory of tort
                          ―res ipsa loquitor‖ (the thing speaks for itself): if you were in sole control of the thing that caused the injury,
                             and if the injury is one of a type that most likely wdn‘t have happened unless somebody in control was
                             negligent, then we can find you to be negligent, although there‘s no evidence at all that you did anything
                          This doctrine, according to Traynor (expressing common view among Social sophisicates) – the way it
                             actually works is: the D can only refute the inference of negligence in a trial situation (personal negligence
                             trial w/ jury) by producing affirmative proof that there was no negligence – and the jury will get both the
                             res ipsa inference and the countervailing effort by the D to refute it (and will have to choose btw them),
                             unless the judge decides that no reasonable jury cd decide that as a matter of fact there was no negligence.
                             (In which case, directed verdict for D.)
                       What this means is that if the judge lets it go to jury, they‘ll be overwhelmingly likely to give verdict for P.
                        So, in effect, there‘s no actual attempt to establish negligence – no one even tries to think through what it
                        would mean to be negligent in this context.
                     In fact, everyone knows in Coke context that there‘s a standard procedure for making bottles, and
                        inevitably some portion will explode. So, really, there was nothing like carelessness or deviation from the
                        plan. (And it might very well be prohibitively expensive to prevent these from happening.)
         o This is the kind of context in which the Social people say: this is a fiction. There was no convincing proof of actual
              negligence by manufacturer of the bottle! So as a matter of fact, we have here de facto strict liability. i.e., de facto
              liability of the manufacturer of a product that malfunctions and causes injury.
                     and then social people develop their rationale for why prod. liability ought to be switched from a
                        negligence system to a strict liability system
         o Very important sidenote: this development has already happened in Europe. In the dvelopment of the social version
              of the law of warranty, US is far behind Europe. What‘s happened is that in US, Social people are finally getting
              control of common law – not legislatively or through centralized courts, but through complex process etc.…
         o What happens is that after 1945, this process takes off in US in a way it didn‘t in Europe
         o Takes off across the range of contracts/property/torts, based on same arguments for expanding liability in each of
              these areas.
         o In 1980, the election of Ronald Reagan – the realization of what Kevin Phillips calls (missing name – me: The
              Emerging Republican Majority?) + Thatcher, etc. Between 1980 – 2000, a very dramatic shift against the doctrines
              of private law developed 1945-1980 (period of Socialization). 1980-2000: neo-liberal/neo-conservative/right-wing
   Traynor‘s arguments in ESCOLA: perfect example of the arguments that the Social uses, one after another.
         o Europeans had already adopted these rules
         o but what the Amer.s do differently is: they argue it all in terms of policy – in terms of conflicting policies, through
         o moves thru NY, NJ, MA Supr Ct.s –
   KEY: these courts are now staffed by the elite students of the legal realists and sociological jurists
         o and they actually decide: rather than going through fictions to justify changes of rules in terms of traditional
              categories, they‘ll actually make social policy arguments – making policy arguments the center of private law
         o and then after 1980, the people who shift back in other direction will affirm what look like the CLT rules, but they‘ll
              argue them in terms of policy (v. simple-minded terms of CLT will theory) – they‘ll go from will to the market
   And now the state legislature, prof., judge, will all speak the same language: policy
         o and this is what most strikingly distinguishes how things sound in Cambridge, MA from Cambridge, England or
              Geneva, etc.
   Both sides will agree that policy is the basis of the decision
         o which is completely different than the experience of CLT or the Social
         o [sidenote: Harv. LLM program established as a Cold War thing to promote US foreign policy in W Euro, which is
              under threat from Communism – the Americans in the LLM program see as their mission from the start to teach
              Euros. and 3rd Worlders to do policy analysis and get rid of tendency to think as formalists.] [tho DK still sees them
              as totally formalist]
   e.g. Traynor: ―public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life
    and health inherent in defective products that reach the market‖
         o note: strict liability was the program of the Left social people
         o and note that there‘s no longer, in 1944, as he‘s writing this decision, any more Right social – fascism is being
              militarily destroyed
   me: would Habermas see both the Social on torts and ContempLT on torts as teleological/instrumental thought – i.e., both set
    a goal (is it the same goal?) and then say: what set of rules would best help us achieve these goals? Or would the Social not
    see this as a set of rules? DK would say: the Social would not see the goal as a choice. That‘s the difference.
   An example of conservative doctrine re: products liability wd be: liberals would want foreseeable misuse doctrine… then
    conservative court would come in and say: the costs of anticipating misuse have now won wildly out of control, so that it wd
    now cost the person less to avoid this idiocy than to charge all non-idiot consumers to pay for this extra protective
    mechanism. This is an unfair shifting of resources from idiot users to non-idiot users. So we‘ll now say: if the misuse was
    grossly negligent, then the fact that it was foreseeable is irrelevant. And they‘ll say: the protective attitude of the social
    people encourages hazardous behavior, etc. An insurance catastrophe.
   The emergence of law & econ. as a dominant mode of ContempLT
   What makes Traynor not just an example of the social?
         o DK: it is the social, but it‘s distinctly contemporary. The two ways are:
                     1. Traynor‘s a judge: an overt judicialization of policy-language
                              versus cases in 1920s-30s, tort cases have no evidence of the social at all
                              the social just shows up in legislation, RR Commissions, administrative institutions
                              at the level of caselaw, MA courts, etc. in 1920s-30s are amazingly formalistic
                                and then – bang! – sometime around 1945, Traynor language of policy takes over the discourse in
                                 the cases
                    2. People like Traynor recognize that it‘s a matter of balancing (whereas the social did not): a matter of
                               this case isn‘t the best example of this
                               but they often say: if you go too far, the cost of precautions will just be too much
                                      o not all cars have to be amphibious in order to prevent drunk kid from dying when drives
                                           off bridge into bay
                                      o one-car accidents is the most common cause of death for adolescents in MA (other than
                                           drug OD) – drive into trees – and this is foreseeable
   Note: A typical CLT idea would be: from your own wrong, no action can arise. So, in case of you drunk driving car off
    bridge, categorically, as a matter of principle, you can‘t recover. This is just unthinkable.
   Now version-of-CLT that fights back against ContempLT will argue on policy grounds as well: it will also have the structure
   DK:
        o the most sophisiticated discourse here (a very small minority of judges and academics):
                    those on the right have the same set of premises as opponents:
                               overall social welfare is what‘s important
                    and as w/ social, it‘s not a distributive discourse: it‘s not about giving more money to poor, it‘s about social
                        welfare requiring strict products liability, as Traynor says (in quote above: ―public policy demands…‖)
                    BUT they‘ll reformulate ―social welfare‖ as efficiency – following Coase – saying: we can redesign
                        entitlement to exactly figure out where the net balance of social welfare will be maximized by our choice of
                    Giving things a complete conservative spin
                    All recognize that law is an instrument to social welfare –
                               but one side emphasizes personal responsibility
                               the other side emphasizes the role of the state/big company to effectively prevent bad things from
                    ME: this is just puzzling – it seems that if both sides are really doing what DK is presenting them as doing,
                        there should be no difference between their prescriptions – this should be something with a correct answer
        o the unsophisticated version:
                    there‘s a neo-formalist version of conservative, efficiency-oriented law & econ. talk
                    Feinman is to some degree guilty of a neo-formalist version: he accuses Scalia, etc., of a kind of neo-
                    Feinman thinks that the virtues of social expansion of liability are obvious – dsn‘t treat this as a matter of
                               and then turns around and accuses those on the right of being neo-formalist, not balancing!
                               characteristic of the rhetorical upping of the ante from balancing to neo-formalism
                                      o this is a move that runs through ContempLT
                                      o along w/ the accusation that the balancing test is mere disguise of arbitrary political
                    DK: So: he both is neo-formalist and accuses opponents of being neo-formalist
                               they would accuse him of being neo-formalist
   [me: is it possible to say that the Social was just doing left-ContempLT poorly? I.e., the Social thinkers aimed at maximizing
    social welfare, but only took one side into account – only the poor, weak, etc. – neglecting costs on the other side?] Qs:
        o 1. Is it right that the Social re: both market and family law, and both right and left ContempLT re: market law, see
              law as a tool to achieve the end of social welfare? DK: YES.
                    and there‘s also rights-ID talk re: the market in ContempLT, which is different
                               e.g. Epstein: conservative libertarians who criticize both sides of ContemptLT
                    and in the social
        o 2. Is one difference between the Social and ContempLT that the Social sees this end as kind of given, what the goal
              of law has been all along and continues to be, whereas ContempLT sees this as a policy choice? (Though it now
              needs to be changed as a necessary consequence of changes in society (industrialization, etc.).) Not exactly
                    CLT -> rights/ID discourse in ContempLT
                    Social -> social welfare discourse in ContempLT
                    Social people were not into rights; CLT people not into social welfare
                    But today, the descendents of CLT are into efficiency as well as ID rights
                    and the social people today who were not into rights are perfectly okay w/ being into rights in the Civ Soc
                    me: and ALL SIDES use proportionality/balancing as way of combining these?
               o   3. Are both sides really doing what you‘re describing – treating law as instrument to achieve social welfare – if
                   they‘re coming to such different answers?
                                   note: right using law & econ in ContempLT to discuss market will favor traditionally CLT-like
                                       rules within law & econ., while left using law & econ in ContempLT to discuss market will favor
                                       traditionally Social-like moves/rules
                         DK‘s answer was: and this leads to the Critical Legal Studies critique of both sides of ContempLT in their
                             approach to social welfare – DK‘s article (on law & econ.?) on his website. Both sides pretend that they‘re
                             having a conversation in which there‘s a correct answer that they‘re arguing about – but really, the rules of
                             the conversation make it impossible that the correct answer, if one exists, could ever be found – the tools
                             being used are too indeterminate, etc.
         student: was the Social in social period empiricist? DK: They were organicist – they claim that they are the proponents of
          looking the reality of modernity in the face
         Specific example:
              o how all of the above works in the context of contract law:
                         CLT: common law of contracts (which is complexly diff. than civil law contracts, tho it shd be poss to
                             make a similar argument there)
                         everyone has duty re: everyone else not to cause harm through negligence, and also duties under criminal
                             law; but if you a K, you‘re really bound – unless you can show an extreme case of excuse – whole country
                             was wiped out by hurricane! you were defrauded by the other party!
                         two different kinds of zones: all zones and nothing zones
                         and rules tell us when we‘re crossing from one zone to the other
                         Grey areas are terrible
                         We want rules
                         (I‘m missing a lot)
                         Scalia is a self-consc. advocate of getting rid of grey areas and rules / all-or-nothing zones
                         Scalias of world argue w/ Traynors of the world: latter saying you have to have character-defect/S&M to
                             like this all-or-nothing rules etc.; and Scalia saying it‘s decline of Western civilization that we can‘t have
                             rules any more (your children driving drunk of bridges!)


14 Apr. 2009




and there will be, here,
a. a Social-type argument
b. and a CLT-type argument

         b. Conservative ContempLT about market will argue
               o rights arguments (CLT-sounding rights) that will sound libertarian
         a. Left ContempLT about market will argue
               o econ/soc. rights (Social-sounding rights): econ. security is a basic human need, as is health and safety
                        so we shd enact private law rules that will make sure that people end up with health and safety
         And note: each of these arguments can turn into a balancing argument at the rights level:
               o e.g. we need to balance right to health against right to…
               o and Right will say the proper balance in this case is the CLT-type rule

      post-Coasian: recasting the Q as: choose the rule that will produce the most utility/welfare/highest dollar value

and there will be here, as well, a Social-type argument and a CLT-type argument

         a. CLT-looking argument: you‘ll argue that free markets are efficient, (people are rational-maximizers), and that a
          compulsory products liability warning will thus be inefficient
              o Hayek
            o very typical of the way Posner argues in 1st and 2nd Ed.s of Economic Analysis of Law
       b. Social-looking argument: (a little harder to generate this one)
            o so: to some extent DK realizes he‘s forcing it – which is the way things work in these kinds of box-diagram
            o by nxt year, this may seem to stupid to him – way too formalistic on his part
            o But here goes: people don‘t make rational decisions about safety
                       behavioral eocnomics teaches us, categorically, people can‘t assess the relative safety or dangrousness of
                       they make characteristic exagerrations of safety in some cases, danger in other cases
                       this is an area where the only sensible way to proceed is to recognize that people need insurance
                                 insurance is the efficient rule b/c people can‘t choose for themselves
                                 strict liability insurance is the response to freedom of contract
            o sidenote: when first Behv. Law & Econ. article came out in Stan Law Rev. in late-1990s (Joll, Sunstein, Thaler),
                 journal also published response from Posner saying: this won‘t be applicable in many cases (rightly seeing the
                 article as attempt to argue against the policy prescrip.s he‘d been making since 1970s) (missed some of that)
                       the difficulty of DK‘s approach here: Behav L & Econ. is just one strand
                       and against the stu. objection that law & econ. is mostly for conservatives – true, in terms of self-selection,
                           etc. – but note that until end of 1970s, the econ. move was constantly used by the left (Pigou, etc. – market
                           imperfections, etc.) against the right
                                 DK was an Econ. major at Harv College 1961-64 – it was a liberal economics dept. – the basic
                                     idea was: anyone who‘s an economist thinks that most conservative ideas about econ. are totally
                                          o the right-wingers tended to be libertarians
                                          o those into ―rights‖ were typically into property/contract rights (ID rights were just getting
                                              off the ground)
                                 today, obviously, feels radically different

                                                                      neo-formal                         balancing
                                                                      (deduction)                        (policy)
normative order                   Rights/Identity                     originalism                        Economic Human Rts?
                                                                      civil lib                          ‗50s USSC (USC?)
                                  Efficiency                          Posner 1st ed. (relatively         Calabresi (relatively balancing
                                                                      abstact deductive form of econ.    form of econ. efficiency
                                                                      efficiency analysis)               analysis)

       DK: re: above chart: a striking aspect of all of these is that, like CLT, and like the Social, they are non-distributive.
           o CLT:
                     it‘s all about rights.
                     It‘s Kantian or neo-Kantian. Or if it‘s utilitarian, it‘s util. on the grounds that the indiv. is the best judge of
                         his or her util.
                     anyway, it‘s not distributive
           o Social:
                     and the social (organic/propulsive view of the social people) is about justice for social classes or national
                     not about the correct division of the pie
                     Social welfare as a whole depends on divising mechanism that will contain violence arising out of
                         perceptions of injustice
                               so labor law isn‘t justified on the ground that laborers deserve larger piece of econ pie
                               it‘s structured around managaement-labor relations (which leftists think are horrible, and even
                                    fascists might think are horrible) and the fact that there is interdependence in them, and failure of
                                    regulation creates feedback loops, chaos, disaster, etc. – which has nothing to do with justice
                     anyway, it‘s not distributive
           o Contemp LT: for both ID rights and efficiency approaches, this is true
                               [sidenote again: remember that Contemp LT ended 9 years ago – we‘re now in Post-Conemp LT!
                                    ha ha ha]
                     Right Contemp LT is focused on expanding the size of the pie, not on defining how it is distributed.
                               sees distribution as political/subjective
                     Left-wing socially oriented regulatory people in Contemp LT see themselves as maximizing welfare as
                         well, not distributing
                             So: in both cases, the person making the argument won‘t even tell you of the distributional impact of the
                                     DK did distributive analysis of compulsory terms in contracts, didn‘t publish, 1997
                                              o no one else has done this analysis – shows it‘s not a part of Contemp LT
         No need to say much about identity-rights in this context, b/c ID-rights are not about distribution: it‘s about treating people
         Note: when contemp. Const.s include ―rt to health‖ ―rt to housing‖ etc., isn‘t that distributional?
               o Yes.
               o BUT: this just lets you challenge a gov‘t policy. Dsn‘t allow you to go to court and say: ―Gov‘t me owes me this
                    (minimal housing, health, etc.), in particular, must give it to me now.‖ Budgetary constraints are always taken into
                          me: well, wasn‘t there one exception in Tushnet? in Brazil?
         Also: when DK says ―efficiency‖ – the discourse just deploys this term, often dsn‘t define which term it‘s talking about. But
          usually, it means ―Kaldor-Hicks‖: the allocation of resources (given existing budget constraints) wd produce the largest
          possible money-valuation. You ask what people would pay for certain things.
               o which means it‘s even more non-distributive…
               o which solution is thought to be efficient will be determined in part by existing income distributions…
               o but often people will use different standards
         One of the characteristics of Contemp LT: sectarianism in Weber‘s sense – cult-like groups, etc.
               o the argument DK just made in class that (Warren Buffet‘s solution: maximize wealth, then redistribute) doesn‘t
                    work b/c in Kaldor-Hicks distibution/wealth-maximization can‘t be separated – is a typical argument of CLS cult
         DK views Contemp LT as political: uses radically non-distributive criteria to achieve distributive goals
               o overtly and on its surface, Contemp LT, like CLT and the Social, self-presents as apolitical
                          whether you‘re right or left-wing law & econ, you say: I‘m not right or left-wing! Once you say you are,
                              you step outside the discussion of law & econ.
               o but the historical approach we‘re doing tries to find how these allegedly apolitical approaches are deployed for
                    political ends, politically, etc.
         sidenote: Indian Supr Ct re: right to housing: … (missed) Even when this idea is taken quite far down the road to
          judicialization, it‘s still a long way from distributive justice.
         FINAL NOTE: differences between Contemp LT and CLT/Social:
               o 1. today, efficiency and rights today understood on the side of law, not politics, b/c don‘t require us to make
                    substantive judgments of distribution
                          and he accepts the qualification of that claim with regard to some econ/soc rights, as students objected
                              today in class
               o 2. identity rights really do seem very different than econ and soc rights – latter are more distributional
         note: the CLT version of the social-welfare-maximization idea we have in efficiency: the classical econ. utilitarian idea that
          says something like: we‘ll secure the maximization of … (missed) through free market (freedom of contract/property
          rights)… (b/c we‘ve reformed the late-medieval model of guilds, etc.) and that‘s responsible for progress
         note: the Social version of the social-welfare-maximization idea is Pigou: externalities justify a lot of regulation
         note: the Contemp L T version of the social-welfrare-maximization idea is: (Hohfeld + Coase): no background concept of
          pure, legally-defined free market – and market failures no longer straightforwardly justify regulation – which means that
          modern efficiency, Kaldor-Hicks is very different: there‘s no legally defined private markte; causation is awlays mutual, and
          there‘s no assumption that internalizing an externality will lead to efficiency


15 Apr. 2009

    Very complicated article, organized around several tensions, flips…
    DK: The article (tho independently developed) cd be well-understood using some categories we‘ve dealt with:
         o Relativization
                   sovereignty
                   property
                   private law categories in general
                   critique of the public/private distinction
                             including the national/international distinction
         o Constitutionalization/juridification
         o Identity/Rts / Econ analysis
         o Neo-formalism / Proportionality
         o Politicization
   This is all the BG of DavK‘s discussion of Kelsen and Jackson
   DavK distinguishes the ―metropolitan‖ from the ―cosmopolitan‖ – DK will restate the distinction – but w/ the goal of still
    being completely faithful to it:
        o the thing that makes Kelsen ―metropolitan‖ is that he looks at the system of int‘l order from a perspective that says,
                    first of all, sovereignty is relativized;
                    intl law/natl law distinct. is relativized;
                    etc.
        o and then there‘s a move: to say: when we understand the issue for Pub Int‘l Law as ―what way to move,‖ we
              recognize the radical limitations of the pub int‘l law of sovereigns of 19th C and before WWII.
        o So then we say: there‘s a choice: two routes for the future conceptualization of PIL:
                    the route we shd take is the route of understanding the key idea of PIL to be that war is a ―delict‖ (i.e., that
                       peace is to be secured by a set of rules which will illegalize war… recognizing that a distinction between
                       national/int‘l levels is that the latter are undeveloped by contrast w/ the former. So: nat‘l legal order is an
                       effective instrument to secure domestic peace. And if there cd be a nat‘l/transnational order that wd equally
                       effectively ensure peace among nations, it wd do so by getting beyond idea of nat‘l = legal, int‘l = anarchic,
                       to instead the idea that there is a latent order – the use of force is presumptively illegitimate, illegal, and
                       subject to sanction. That will do away with sovereignty conceptualized as power absolute w/in national
                       sphere by superimposing an already latent transnat‘l legal order
                    So: it‘s anti- or post-sovereignty, b/c this will greatly restrict the power of nations (as it was understood as
                       powers w/in spheres)
                    BUT: the idea is to reproduce at transnat‘l level smthg very like the sovereign order that exists nat‘lly. An
                       idea of world-sovereignty that is emerging step by step and piece by piece. We don’t say: there’s no sov
                       for the world; there is for the nation. Instead, we say: there are many, many elements of sov., and we
                       can imagine building on them, the diff. sticks in the bundle of sov., little by little. So, we might begin
                       w/ a world court, w/ a very restricted jurisdiction and very limited enforcement capacity. But just as
                       primitive law evolved into mod nat’l law, transnat’l law cd evolve in same way: step by step,
                       institutional by instituion. Sov. is a bundle of sticks, and we can add them one by one. Not all at once.
                       It‘s going to be a pragmatic process.
                             So: both anti-sovereign and anti-conceptualist/legalist, deeply pragmatic
                             DavK: but you can‘t understand this unless you understand the latent concept of sovereignty in
                                 nat‘l law as what is guiding the relativized/pragmatic process.
        o Re: relativization: as above:
                    The Q becomes: what is the state of development of various institutions? Not: is there international law?
        o Re: constituitonalization/juridifiation
                    DK Teubner as model of the Contemp LT view of this: [constittionalism is a world force, even though
                       there‘s not like a world court, etc. – it‘s a fundamental feature of contemporary legal thought.] The features
                       of a constitutionalist system (we discussed):
                             1. the emergence of a normative order spontaneously
                             2. fundemantal norms govern more superficial norms
                             3. etc.
                    Kelsen in DavK’s presentation is just a more specific example of this: international institutions
                       developing here…
        o Re: identity rights / econ. analysis
                    DK: The character orientations of arguments in Contemp LT are to one or the other
                    Kelsen‘s discussion is actually much more grounded in the social idea: The current conditions of world
                       order produce interdependencies that will produce war
                    SO: in this sense, Kelsen isn‘t really very Contemp at all – he‘s using a more social mode of argument
        o Re: neo-formalism / proportionality
                    DavK notes: K is strongly assoc‘d in legal theory w/ what is often described as ―Kelsenian neo-formalism‖:
                       the idea that norms are either valid or invalid, and when they‘re valid, they have domains of clear meaning,
                    and he‘s totally not assoc‘d w/ the idea of proportionaltiy or balancing as a mode of legal thought
                    In fact, when K discusses in his legal theory proport/balancing, he says it‘s not legal: it‘s
                    SO: K‘s legal theory produces a picture of K as someone writing in social period but trying to rehabiitate
                    BUT: when we get to K‘s Holmes lectures, then we have a very different Kelsen: he‘s a contemporary legal
                       thinker in the following way: he‘s deeply preoccupied w/ the extent to which the formal order of legal
                       norms is indeterminate, meaning that w/in the legal structure that exists in a nat‘l society, and even more in
                       PIL, there are large domains of discretionary interp. The norm establishes a frame. Things outside the
                       frame are excluded by the norm. But there will be significant degree of choice as to which way to go in
                       interpreting them. SO: K isn‘t a formalist in his theory of interp. He insists on existence in ALL CASES of
                       discretion in the interp.ive process, to one degree or another. SO: K presents PIL after WWII as a CHOICE
                       – between various ideals – not determined by the legal order. SO he‘s very classical example of Contemp
                       LT in the sense that he says we have to make decisions on our own on a political direction for the
                       transformation of PIL. (Tho there is an element of CLT in his thought.)
   How does K‘s lectures, in DavK‘s presentation (in this very canonical text), reflect Contemp LT in a broader sense (v.
    particular notes above):
         o a very basic characteristic of the period is that large #s of advocates/judges/statesman/etc. have been preoccupied w/
             the question of how to go in that Kelsenian direction: in the direction of modeling of the
             transnational/international institutions on the national institutions of sovereignty (based on the
             fragments/sticks/separate elements that constitute sovereignty): the ideal of developing world govt step by step:
             based on BG idea that soveriegnty is relativized but preserved (Teubner: it‘s abstracted and respecified):
         o this has taken a few forms especially:
                   1. UN: most PIL people see a creeping juridif/const‘zation of PIL – symbolized by creation of UN
                             which has many typically Kelsenian dimensions (along w/ the World Ct): we can understand the
                                Sec Council as an executive, Gen Ass as legislative, and World Ct as a judiciary
                             and the Q has been for many: to what extent shd UN head in the direction of becoming a world
                             w/in Contemp LT, intense controversy – largely a Left/Right controversy in Amer context (Left is
                                sympathetic to UN -> world gov‘t; Right is profoundly committed against this, in favor of no
                                world govt and preserving nat‘l sovereignty as much as possible)
                   2. Specialized tribunals: The multiplication of special jurisdictions: Institutions created by treaties, w/
                       creation of special jurisdictions
                             e.g. ICC
                             but there are a lot of other specific jurisdictions: governance of rivers crossing int‘l boundaries in
                                Europe (smthg like the ―Danube Commission‖)
                             moving toward states being subject to a code of ―delicts‖ (crimes)
                   3. Regional governance organizations:
                             e.g. EU (as described by Weiler) is a perfect example of the Kelsenian ethos in 1941 lectures
                             Weiler sd in transformation of Euro that Euro is neither sovereign nor nation-states in Euro are
                                sovereigns: some of the sticks have been not only reallocated from national to transnational, but
                                also the separate powers of the EU interact w/ the separate powers of the member-states (sep of
                                powers ideas)
                   4. Trade organizations (either at global level – WTO – or regional – NAFTA):
                             When the Bretton Woods GATT becomes WTO, the way that‘s understood to be a transformation
                                is: the WTO is a ―world trade constittion.‖ v. GATT as chaotic treaty creating essentially
                                disordered system. v. WTO is its transformation into something looking like a world trade
                                government (incl. e.g. judicial power in ―dispute resolution mechanisms‖; and basic rules of
                                GATT govern subordinate rules; and the process involves a dramatic uniformization… though
                                there are of course many exceptions, not uniform treatment… however, those things are
                                reconceptualized not as special arrangements – as in GATT – but as a system of norms w/ some
                                exceptions – a very, very different conception.)
                                      o This is just the same process: marching forward… so that some even say: the true world
                                          constitution in the age of globalization is the WTO not the UN charter
                                      o but the key pt here is: the conception of a domestic Const. is (again, in Teubner‘s lang.,
                                          adequately abstracted and respecifie) repeated here
   So: the emrgence in the US in last ten years (in Bush admin basically, also realized in conserv. Supr Ct.): a national-
    sovereignty-oriented reaction to the above
         o So: again: Contemp LT shdn‘t be understood as pointing in vector toward greater world governance
         o Rather: a situation in which there are conflicting vectors: There is at all times a sov-based resistance to this process
             of internationalization, based on arguing back against Kelsenian move in the name of sovereignty – and that arguing
             back has had, since WWII, a whole series of different manifestations
         o in the name of sov, 3rd-world-resistance to globalization; and to cultural imperialism re: human rights; and to tying
             Amer‘s hands from Bush admin
         o It‘s very wrong to think of this as Kelsen v. Jack Goldsmith: latter is a constant element in the debate – earlier
             embodied by Singapore.
   Much more briefly: JACKSON part of DavK‘s article:
         o the basic idea here is that there‘s another Int‘l Law ethos, diff. than Kelsen‘s (reconstruction of world gov‘t,
             associated w/ PIL) (metropolitanism) – versus Jackson‘s alt. is associated w/ int‘l econ. law (cosmopolitanism). DK
             thinks that Kelsenian sensibility is the sens. of the WTO; etc. – DK: TODAY, both cosmo (Jackson) and metro
             (Kelsen) are present in BOTH PIL and int’l econ. law. (Much more true today than when DavK was writing,
             primarily b/c WTO has become Kelsenian.)
         o Jackson is also a post-sovereignty person, pre-occupied w/ trade.
                           liberal trade as an ideal is like peace (not always good, but we can all agree that other things being equal –
                            which of course they never are – more trade is better than less trade)
                         however, whereas Kelsen calls for destroying sov at nat‘l level and reconstructing it at int‘l level,
                         DavK says Jackson‘s orientatio is much more post-sov than that: it‘s not oreinted to the WTO
                                  (so: a problem w/ the article: Jackson designed WTO, turns around and shapes WTO:
                                  DavK dsn‘t capture Jackson‘s ethos, but his pre-WTO strategy – Jackson was totally happy when
                                      moment arrived to abandon his earlier approach and adopt Kelsenian idea)
                                  Jackson = a GATT person
                                  = there is a large, vast # of diff. instit‘l players who can‘t be constrained by a single
                                      delict/Kelsenain structure, b/c what counts is their deals among themselves: like war: interfering
                                      w/ free trade in an opportunisitic/nationalist way
                         So: There‘s a danger – just like today when people worry about financial crisis -> protectionism
                         and you dael w/ this not through int‘l architecture but thru a common body of trade expertise, located nat‘ly
                            and int‘ly, of people who will put pressure toward free trade in a thousand diff. ways that will eventually
                            generate a global BG consensus that free trade is the best policy.
                         Expertise as a neutral pursuit of the overwhelmingly desirable policy goal won‘t be legal – it will just
                            include legal expertise, along w/ IR, poli sci, etc. expertise, sensitive to the play back andforth of
                            conflicting econ interests, etc., and how they‘ll have to be accomodated
                         the complete relativization of sov, pub/private, etc.: int‘l trade requires that this expertise be brought to bear
                            in every country in the trade system in a wide variety of contexts
                         BUT it‘s against constitu.zation and juridificaiton
                         It is, however, totally based basically on econ. analysis and the idea that every diff. interest in the system
                            (industries, legislators, etc.etc. everyone) has to be recognized and accomodated, using econ. analysis
                            (totally geared toward proportionality). Very unlike Kelsen, who‘s into the norm and sanction. Jackson‘s
                            ethos here is the management of different interests.
        So: it looks like WTO is opposite of Jacksons‘ ethos as described above
              o and also: other critique of DavK‘s analytic: in PIL, a Jackson-like ethos of people w/ expertise not formally linked
                   (but cooperating at substate or superstate level) is a basic way of thinking today. (me: as in Slaughter‘s article.)
        SO PIL and int‘l econ law contain both Kelsen and Jackson today

    Slaughter:
           o head of IR/Int‘l Law, the mainstream sect of int‘l law in US
           o bridges Con Law and poli sci
    She contrasts herself w/ realist IR theory (present everywhere in article tho not explicitly):
           o realist theory sees states as opaque billiard balls, and interrelation of these balls determines outcomes based on the
                power of indiv. states (and ultimately force)
    Slaughter says: it‘s rather the interests of the states and of indiv. actors w/in each state that determine outcomes
           o e.g. courts in diff. countries communicating w/ one another (v. in realist model, the billiard balls are totally isolated)
           o so: still using Contemp LT mode of legal reasoning (desegregated sovereignty)
    The realists say: we need to have territorial jurisdiction
           o Slaughter says: no, we need extraterritorial jurisdiction –
                      so anyone affected cd adjudicate the matter
    How will jurisdic be det‘d? Which ct will deal w/ issue?
           o Interest analysis
           o Positive comity: the state having the biggest interest in the outcome of the litigation shd deal with the dispute
    Speaker studies this project in anti-trust perspective, where there was big Q of extra-territorial effect (US is very aggressive
      here: if there are effects on US territory, even if the e.g. merger is taking place outside US, the US regulator/ct will be
           o and Slaughter thinks this is a very good idea
    Second part of article: Extra-territorial effect
           o as said, US extremely aggressive
           o his paper, anti-trust context (anti-trust comes from US) (was very fashionable esp. in Germany b/c Amer.s thought
                Hitler‘s Germany was product of US corp.s going crazy)
           o EU wd block mergers of US companies, and US wd say: this affects us, how can you do this? and EU says: sorry,
                this is what you‘v ebeen doing forever
           o But as jurisd.s doing this proliferated, it was like each jurisd. having a global veto-right!
    Slaughter thinks the prob. of having mult. decision-makers isn‘t a problem at all, despite what happened in EU/US arena
    How do you solve this? How do you decide which jurisd. shd handle this?
    Slaughter: the jurisd. having the biggest interest in outcome of litig shd be the only jduge on the issue (a sort of balancing of
      interests) – already built into global anti-trust agreements…
               o   this is one of the cornerstones of lib int‘l relations theory, which lecturer thinks is wrong: how can you
                   balance/compare the interests of one jurisdiction and another? even if you‘re in the Alexy mode of mathematical
                   formulations and modes…
                         it affects consumers, workers, the structure of communities… how do you measure these interests? and you
                             don‘t even know the conseq.s mergers will have in a particular society…
                         and in fact, this balancing just reproduces the dispute that it was supposed to solve: both sides saying ―I
                             have a bigger claim than you do‖
                         also: you need a decision. You need a third-party to adjuciate this.
                                   me: but isn‘t this the key, and the only key? if you really can‘t dtermine who‘s got the bigger stake
                                       (tho, me: realistically, you‘ll be able to in many cases), then it dsn‘t matter which side wins, so
                                       long as only one does
              o there‘s another twist to this: if a periphery country wants interest here, it needs to adopt anti-trust laws in its
                   jursidction, which is problematic for various reasons – e.g., many argue that free markets coupled w/ anti-trust is not
                   a good way to develop periphery
                         (me: but what‘s the risk to periphery here? they can pass anti-trust laws, don‘t need to use them ever? or do
                             these laws require allowing civil actions?)
         Slaughter changed in this article, tho, and said: above balancing is no longer the way to go; now it‘s judicial comity (judges
          judging other judges: do they have the capability of adjudicating something? which is another strike against the periphery)
         Another critique: Slaughter decontextualizes the courts – in fact, the extraterritorial enforcement of a court depends on the
          economy of its jurisdiction. Zambia can‘t effectively enforce its anti-trust judgment. Slaughter sees all courts as equal,
          horizontal, ignores the core/periphery context.


DK clarifies my question about how Hohfeld is beyond Gény:
Gény‘s abuse of deduction for DK = only 1) the belief that the code we laid down anticipates every case, because some cases will
come along in future (me: key limit here is: future: the only gaps Gény is really recognizing, in DK‘s view, perhaps, come from
legislator‘s inability to anticipate what might come around the bend later on – key: re: my misconception: Gény does not offer a
general critique of logical perfectionism)
2) critique of construction (abuse of induction in saying that there is only one general principle that we can extract from various
provisions as a ground for them)

Hohfeld, on the other hand, is something more like J.L. Austin (note: DK prefaced all this by saying his view of all this might not be
extremely widely embraced, tho others in legal history might agree) – pointing out (me: what we wd say in this case, in that case, our
uncertainty – basically, DK locates critique of logical perfectionism here, insofar as he‘s including it in his scheme at all) – the idea
that it‘s not clear how to use individual term in variety of contexts… much deeper recognition of indeterminacy – (me: the concept
itself contains no essential core, etc.)

final, later note: by ―J. L. Austin‖ maybe DK means something like ―meaning = use‖ – meaning is not an essence hidden in the word
determining how it must be used in order to be used correctly in every context


20 Apr. 2009

Guest speaker (SJD)
    Game plan:
            o 0. Background:
                     DK + HS compared
                     ―Legal origins‖?
                     Terminology: diffusion v. ―structural theories‖
            o 1. Data 1: Tales from the Lewis basement
            o 2. Data 2: Tales from statistics
            o 3. Theory/Interpretation:
                     comparative law
                     macrophenomenological (sociology)
                     rationalist (soc., pol. sci., econ.)
            o 4. Q & A
    His lecture:
            o 0. Background:
                     DK + HS (the speaker) compared
                   HS isn‘t neo-Marxist, and doesn‘t speak of langue and parole
            ―Legal origins‖
                   term picked up by World Bank and many others trying to get quantitative measures of the
                       type/quality of law being used
                            o and economists doing quantitative work w/ these data
                   they find there are big differences btw common and civil law countries (conclu)
                            o even in quite modern areas of law that cd hardly have put in place during colonial period
                   There is something going on (tho he has party made career critiquing it)
                   He dsn‘t think there is a great or deeply significant difference between common and civil law
                            o tho clearly there are some differences
                   DK: Both Sven (today‘s speaker) and (Mark) Roe are brutal critics of “legal origins” theory
                       (the common law / civil law distinction as an explanation for a whole lot of things)
                            o Note: DK‘s alt. explanation here is, e.g., that Lat Amer first absorbed the civil law
                                version of the Social, and then absorbed contemporary legal thought from the US
         Terminology: diffusion v. ―structural theories‖
                   two attempts to explain whatever differences exist between common and civil law countries
                   Q they ask: Is there smthg particular about the common law system that causes it to tend to
                       develop certain rules? e.g. to be more protective of investors, or of liberty
                            o maybe something about the way judges think, etc.?
                   this would be a structural theory: anything about internal development w/in a country being the
                       source of some outcome (v. outcomes having roots in factors external to the country, such as
                            o so far, he thinks, no structural theory has succeeded in explaining common law/civil law
                            o and outside of DK‘s class, these structuralist theories are what you‘d usually hear about
                                in law schools and political science dept.s: you‘d hear about things happening internal to
                                the country
                   DK‘s vision: things floating around, coming from the outside
                            o e.g., insider trading laws adopted around the world in early 1990s – if you think internal
                                factors are the only relevant causes, you‘ll have trouble plausibly explaining this
                            o and pol. sci.s agree that there is mutual influence: e.g. IMF or US pushing for it or int‘l
                                financial markets incentivizing this policy
o   1. Data 1: Tales from the Lewis basement
         this paper started w/ him talking w/ lawyers from 46 countries and collecting data
         then you start to read things e.g. statutes and recognize that you‘ve already them – patterns of diffusion
         in a superficial sense, you begin to realize: many statutes, legal rules, etc., were drafted by someone in
             one country simply looking at a statute in another country and copying it, being influenced by it
                   simplified, e.g., someone in Singapore will say: ―for corporate law, we always follow either
                       English law or Delaware law,‖ so we‘ll wait until they do something…
         (v. in Corp. Law Journals in US, the story of creation of corporate law is always about conflicting interest
             groups: business round tables pressing for one thing, etc.)
         BUT: note: it‘s hard to pin down (me: is it? couldn‘t you contact the people who made the law? v. he‘s
             suggesting he wd have to quantify this somehow – e.g., see what percentage of the Singapore statute is
             copied from Australia, etc. – and the analysis wd be of little value, b/c Singapore cd so easily completely
             change the meaning of the statute in a very brief general qualification)
         SO: he looked at treatises instead (dsn‘t show you the gap between black letter law and practice, but tells
             you something)
         (Note: there are influences on US corporate law from abroad, but they are hidden – same in France,
             Germany, UK)
                   v. e.g. in Australia, there‘s very open importation, it‘s totally ordinary
         NOTE: in Commonwealth world, importation is very open and common (Kenya, Nigeria – you only
             find foreign cases!) Singapore, Malaysia, Australia, etc.
         NOTE: Lat Amer see themselves generally as civil law jurisdictions and cite Euro.
                   BUT what they cite dsn’t correspond to how law is currently done in Euro context
                            o most of what they‘re citing is treatises from 1920-30 – that‘s in law-books of 1990s
                            o very odd b/c the Euros. themselves don‘t cite these things
                   v. Sing/Malaysia cite current Euro cases
         But even when you see clear formal diffusion, you don‘t know how substantively important it actually is in
             the country – eg., if the courts don‘t botehr w/ it, or no one actually enforces the stuff. Having the stuff on
             the books dsn’t really say that it’s having influence on the ground. And even if it is, you don’t know
                            whether what’s in the book got to be there through foreign influence OR b/c domestic actors wanted
                            something and then looked around until they found something close enough, then adapted it.
                                  a very deep problem
               o   2. Data 2: Tales from statistics
                        This gives rise to problems as well, as he searches for evidence of trade flows, etc.
                                  Note: you see more trade among common law countries than between common and civil law
                                  What you can‘t say is whether that has any influence on legal development in these countries
                                  Same thing cd be said re: student migration
                                  Note: if Amer. weren‘t there, the world could be divided btw civil and common law countries
                        NOTE: there are reasons to believe it‘s impossible to test these things empirically.
                                  From phenom. of copying going on all around the world
                                  BUT: there is a big lit. in compar. law re: ‗‖legal transplants‖ (1973 Alan Watson book)…
               o   3. Theory/Interpretation:
                        comparative law
                                  a big lit. in compar. law re: ‗‖legal transplants‖ (1973 Alan Watson book)
                                           o famous Watson story: why does Turkey have the Swiss civil code as their model? b/c the
                                                Min of Justice of Turkey at the time had studied law in Switzerland. Watson has tons of
                                                stories to that effect.
                                                      not surprisingly, others in compar. law resisted this way of explaining things
                                                      the explanation is not sufficient
                                                      there must have been political processes, etc.
                                           o the problem he has w/ this critique though is that both sides see it as black and white, one
                                                or the other
                                                      he‘s open to the possibility that Watson‘s kinds of explanations might have some
                                                           explanatory power: there may be some actual, significant consequences to
                                                           copying Swiss v. some other statute
                        macrophenomenological (sociology)
                                  these theories argue that there is such a thing as mere imitation
                        rationalist (soc., pol. sci., econ.)
                                  these theories are based on rational-actor model (not always hardcore Chicago school rational
                                      actor, but something along those lines)
                                  From this perspective, why shd copying matter at all? Why wd anyone do this?
                                  They leave out the diffusion part – the fact that when law is made, it is never from scratch.
                                  Hard to make this story work
                                  (he seems more sympathetic to sociology than rational choice theory?)
               o   4. Q & A
                        great stu. Q from someone who helped design/review Pakistan corporate/commercial laws: there‘s
                            something speical about corp./comm. law v. something more related to local custom, etc. – naturally,
                            corp.comm law will be greatly influenced in this way b/c of int‘l loan conditions, etc. etc. all the
                            interrelations in the int‘l financial system (countries given a 30-day window to come up w/ code of
                            corporate governance)
                                  speaker admits that there‘s less diffusion in e.g. family law, tho he imagines it exists and
                                      comes through diff. channels
                        (how about base interp. on diff. theories of corporate law being adopted in diff. places?)


21 Apr. 2009

    An important aspect of the contemporary legal world: if you compare it to the 19th C or the social period – say up to the
     1950s – there‘s a personnel phenomenon: thousands & thou.s of lawyers (as opposed to a smaller #) whose law practice
     activities put them in some kind of relationship to positive legal rules from other jurisdictions – or transnational rules – or
     legal practice activities that occur in a multi- or transnational context
          o all these people who somehow are drawn into a mass of globally-conscious lawyers
          o so that you can ask something about whether they share
    not linked the way PIL lawyers were in the 1930s – there are too many people for that – what they share isn‘t highly
     disciplinarily specific
    around the world, there are quite a few law faculties that seem to be participants in a global legal educational culture
    in this room, 8 people from such institutions
    displacement of Euro model itnernationally by US law firm model –
          o a large bureaucratic organization delivering legal services
          o (note: in Euro, accounting firms have also begun to deliver legal services, creating a second site of global legal
               culture: the culture of the large Euro accounting firms, where Euro.s dominate and Amer.s aren‘t in control but are
               very much present)
    most practically important article for us as lawyers
    Note: the globalization claim made in Euro re: the Americanization of Euro law are identified in the US as the growing
     dominance of the elite law schools over normal lawyers/legal education outside the rich centers of law practice
    large urban night law schools that once had a distinctive local legal culture strongly opposed to the culture of the elite law
     schools have become closer and closer over last 30 years in their models to the large elite schools
    (not paying attention for about 15 minutes)
    re: a student question (isn‘t Dk just describing globalization?):
          o To understand the transnational legal dimension as it‘s done through these organizations (transnat. corp.s and
               transnat. law-firms), we need to (look to the diffusion of contemporary legal thought?)
          o HLS is in bed w/ transnational law firms and corporations – this is a complex that needs to be given some unified
    And so, the idea is: one wd then have to ask two diff kinds of Qs about the global dimension of the legal: LAW and LEGAL
     CONSC. might be the way to organize thinking about it
          o LAW dimension: how do the norms get globalized?
                     study of the concrete process bywhich norms are enacted, adopted, become valid, are agreed to
          o LEG. CONSC. (cd also be called LEGAL THOUGHT) dimension: how does the way of thinking about the norms
               get globalized?
    The two are not the same
    Up to now, he‘s been primarily interested in describing the characteristics of Contemp Leg Consc (understood as a langue in
     which you do proport analysis, etc.), but something more specifically institutionally describable
    Holder‘s lecture yesterday: this is the globalization of the law – could happen w/ minimal globalization of legal thought
    Today: ON HANDOUT: a specific parole – the globalization of specific norms
    What Holder tells is: if we‘re looking at peripheral and semi-peripheral valid normative legal orders or whatever, don‘t tell
     me anything like ―each country is according to its own needs, hist, cult, etc. developing its own body of corporate law‖ – if
     you think this, you‘re dreaming – pick them up, and the first thing you notice is the similarity of the paroles – specific norms
     in specific legal systems
          o and then he‘s trying to use classic poli sci, scientistic models of explanation (rat choice theory, etc.) to
               explain/predict how the spread of these similarities works – similarities of words in statutes across jurisdictions, etc.
          o sidenote: the rational choice/efficiency model is the part that says: in drafting, they’ll just grab some boilerplate,
               and a lot of that will end up in the final result, even if the idea is completely different – only what you have a
               reason to discard will you discard
          o note: one element of his data that is very important for 3 globalizations thesis: the further you are from the status
               of recently independent ex-colony (esp. Brit/Francoph Africa), the less likely you’ll be to be in the very direct
               adoption mode – otherwise, what you’ll get post-WWII is the US influence.
    Today‘s readings (Bebchuk, etc.) tells us a lot of globalization of norms is going on, but that it‘s going on at the family level
     as well as at the market level

        The limits of classical/abstract law & econ analysi
        The part DK wants to emphasize is (b/c wd love if everyone in the class cd deploy this when the moment comes): How could
         it be that a rule-change that everyone agrees will signficiantly increase the GNP of country A absolutely and re: every other
         country in the world – how could it be that that would not be enacted? In classical law & econ. modelling, it‘s hard to explain
         this. Which is source of Posner‘s evolutionary law & econ theory (adopted in watered-down form by Kraakman) – there‘s a
         long tradition of arguing that these gains from legal change generate massive pressure on a system to adopt them. The
         winners ought to be able to bribe the losers, given the gains, to adopt the change. So if transnat instit.s can generate large
         surpluses, this wd shift global system toward same rules.
              o DK: criticism of this: it‘s perfectly easy to imagine that in many situations, the rule-change has to be enacted in a
                   legislative or exec process that‘s interest-oriented. There are a set of interests of human being who have interest in
                   the distribution of wealth under orginal rules. That profiting group may lose absolutely under a rule-change, though
                   other groups are better off. So winners (given no transac. costs) shd be able to bribe losers to accept the political
                   change. Why wdn‘t this happen?
              o Posner‘s simple answer: it‘s possible that gainers are numerous, dispersed, disorganized, so there‘s no way for them
                   to induce the people w/ political power (based on incomes) to make the change. I.e., transaction costs may be too
                         but wdn‘t the gainers organize the losers to transfer to them money?
                             and Posner et al just think there are a lot of situations won‘t happen – it‘ll be too risky (me: uncertain –
                              imperfect information), politically problematic, contingent – and rational rich people are very likely in very
                              many cases to say: why mess w/ a good thing? We cd get even richer, but why risk it? We‘re already so
               o SO: all of this undermines the image of the all-powerful transnational corp. creating inevitable spread of its values
         The Singapore article: What are Asian values? (this article has nothing to do w/ DK): In contemp Singaporean legal thought,
          the key concepts are efficiency and Asian values. (i.e., an economic conception; and identity rights.)
               o the transnational institutions demand x y z
               o but Sing. says: we‘re not going to wholesale dismantle our public welfare systems, etc., b/c we have Asian values
               o KEY: note: Asian values are just the Social
               o DK: (cynically) the people saying ―Asian values‖ – one Chinese, one Malay, one Indian – are Social-democratic
                    atheists, have no connection to Chinese, Malaysian, Indian values
               o The Social here is restated as ―Asian values‖ and CLT is restated as ―efficiency‖
         3rd article: Potter: China having difficulties doing economic modernization: why?
               o 1. the remnants of the clientalistic regime of the pre-COmmunist past and of Communist thinking
                          residual communist thinking
                          what is ―clientalistic thinking‖? the Communists were defending not state ownership of means of prouction
                              but basially just the Social
                          clientalism: local resistance to efficiency
               o 2. (missed)
         probably these three readings will be rapidly displaced by better articles


22 Apr. 2009

    In what way has there been a parallel third globalization of market, family and (next week) Constitutional law?
         o what suggests a strong parallel to DK is: in the pieces that you read, globalization has a particular meaning:
                  for the market law pieces we‘ve read (when we‘re talking about dispersal to 3rd world, v. relations btw
                      core countries, influence of US on Germany of vice versa e.g.), it turns out that ―globalization‖ = neo-
                      liberal program of individualization, deregulation, opening up of economy to outside world, etc.
                  the global push is the push to a particular substantive agenda, which we can understand very easily in
                      political as well as economic terms
                  and then there‘s a resistance to the legal/pol/econ transformations that come about when the neo-liberal
                      model is globalized
                  SO: both what is being globalized, and what is resisting it, is easy to recognize
                  (DK: a problem he hasn‘t resolved yet: What about the period before 1980? Maybe we just say that it
                      doesn‘t really begin until 1980)
         o SO: for law of market, ―globalization‖ dsn‘t = the world is unified; it = the spread of a particular vision of global
             econ reform
                  and it‘s resisted around the world
                  it‘s not that the resistance just freely circulates (in the model of Slaughter‘s global community of courts)
                  there‘s a process where the resistance is defined in various ways, but a crucial aspect is: it‘s the local
                  the globalization of neo-liberalism is resisted by local forces
         o AND: for law of family: parallel:
                  if you look at Karen Engle‘s article – the Globalization of family law that she‘s discussing in early 1990s
                      isn‘t ―global. in the abstract,‖ it‘s the globalization of a very particular model of feminism
                  just as globalization of RIGHT (neo-lib) in market law; here, globalization of LEFT (feminism) in family
                  and her model is written from the center (like Bebchuk), saying: we know that the globalization of family
                      should have equal recognition rights for women
                  but when the reformers go out w/ this model, they end up encountering local resistance (to the agenda of
                      globalizing feminist transformation of family law)
                            e.g. no parental consent needed for abortion: when reformers come in w/ this idea, they encounter
                                local resistance
         o What is the ―cultural relativist‖ business?
                  Step 1: It‘s a way of arguing against ―cultural imperialism‖ of UN, etc. general and specialized women‘s
                      rights/human rights institutions
                  Step 2: reformers saying: we have to deal with this resistance
                            reformers becoming preoccupied with fact of this local resistance: how shd we modify our
                                advocacy of liberal feminist agenda for transformation of family law?
        o     Pushing the parallel a little further:
                    in market, ―Washington consensus‖ = consensus of the core capitalist powers (not just Washington)
                             has extreme fringe
                             and moderate type
                    equivalent to this is the liberal feminist understanding
                             also has extreme fringe
                             as well as more moderate interp.s
         o The mechanisms by which the project in the core is promoted in the semi-periph. and periph. are not identical but
              they‘re also pretty similar
                    (missed) people thinking market law shd be market law in the periphery
                    the forces who want core feminist family law to be family law in the periphery
                             UN institutions
                             but also national NGOs in US, Euro, Scand that have the agenda of lib feminist reform around the
                             SO: NGOs in S. Korea, etc. have access to funding for activist activities thru the center – some
                                 private funding, some public funding
                                      o e.g. the famous Beijing conference – involved thousands of people, and was based on
                                            enormous amount of money being raised
                    SO: wrong to deny the existence of some elements of push here
         o Sen argues in Development as Freedom for rts. of entreprenuer – showing that rights discourse can be easily hooked
              up to neoliberal agenda
   SO: What is meant by ―globalization‖ in both family and market is a particular project, and in both cases it runs up against
    resistance by the local
         o Another parallel: the resistance is local resistance to globalization: e.g., in China, combination of pre-modern rural
              etc. and Communism together = the local (irony: Comm. as ideology of world-dominating regime run by
              International to ―local‖ resistance of globalization)
   Both are also ideological projects taking off well after… (missed: advent of ContempLT?)
         o Market globalization really catches fire with Thatcher, Cole (sp?), Reagan 1980 elections
         o Family feminist globalization coming only in (1970s?) long after… (missed)
   Once again drew the orthagonal on the board
   What emerges from the way he has drawn the parallels is that:
         o the SOCIAL in ContempLT (i.e., in Market, the Left; in Civil Soc., the Right) is the LOCAL
         o and the CLT in ContempLT (i.e., in Market, the Right; in Civil Soc., the Left) is the GLOBAL.
   If you look at Karen Engel‘s descrip of doctrinalists/institutionalists believe in positive law: the law of HR exists, and there
    are institutions supporting it – and they don‘t ask whether the existing law is just. The critics (the externalists) are those who
    say: no, the positive law is terrible, b/c it dsn‘t acknowledge the abstract/liberal/pre-legal rights of women – so we shd reform
    the positive law to correspond to the true rts of women.
         o That‘s very much like CLT – not Savigny on the family – but CLT‘s treatment of market law. It‘s turning CLT on
              the market to apply it to the family.
                    Again: Women as individuals have rights to autonomous govt of their lives w/in spheres defined so that
                       everyon (women and men) have equal rights.
                             that‘s not Sav‘s view of the family – his local, cultural, diverse, religious, heirarchical, non-
                                 rational view (the opposite of property and contract)
                    the externalists in K Engel are saying: there‘s a gender regime valid in all societies, etc.
                             sidenote: a lot of people doing sweeping intellectual hist want to reduce CLT to ―individualism‖ –
                                 just that, purely – and DK doesn‘t like that – it‘s more than that (abuse of deduction, etc., all we
   Me: so: Engels‘ article is basically explaining how the Left version of Civil Soc under Contemp LT (that box in the
    orthagonal chart) is CLT: it‘s CLT in the sense precisely above
   Globalizers (in Market, right; in Civ Soc, left) say they‘re neo-liberals or they‘re women‘s rights activists; and they
    characterize the resisters as tradition, the local, religion, the political, the cultural (just as Savigny CLT used these terms to
    describe family law v. market law)
   The readings we did were designed to undermine the representation of the resistance by the Globalizers:
         o Potter and Engel are located firmly in the core, and they‘re looking at and investigating the question of the outward
              dispersal of hegemonic neo-liberal and women‘s rights norms
                    the Singapore article is about resistance (missed)
         o in Abu Odeh article‘s case, the resistance isn‘t local: it‘s Islamic. And it represents a different project.
   So: DK wd say: a strong parallel is that in the law of the market, what‘s obscured is the idea that the resistance is from the
    social. The resistance to the globalization of the neo-liberal econ policies comes from either the Left Social or the Right
    Social of the social period, which itself was based on an alliance of the social w/ tradition
        o      rem. Shalakanih‘s article: Sanhuri‘s civil code, which became model of codification all over Sunni middle east: in
               Shal‘s representation of the project of the social in private law, the crucial alliance was:
                     the modern = the social = the Islamic traditional
                     Sanhuri‘s Egyptian Civil Code: fuses progressivism of modern social thought w/ the progressivism of
         o Now: abstracting and respecifying this: all over the world in Soc period, there‘s attempt by nationalist elites creating
               new nation-states to argue that Afr Socism or Isl Law have a strong progressive trad dimension that can be hooked
               up with the leftism of the social (b/c after WWII, fascist social is totally gone except a little in Lat Amer – e.g. Peron)
         o so: in the post-WWII period, there is (starting in 1930s and thru 1950s) the globalization in market law of social
               econ thought, which can make a close alliance in the national context with the idea of tradition
   what he‘s doing: trying to reconstruct something that looked like it only applied after 1980 by giving it an earlier piece: the
    law of the market in the periphery in 1940s-1970s, before arrival of neoilberalism, is the creation of social institutions
    promoted transnationally (rem. back to assignment on import substitution industrialization: in periphery btw 1945 and 1980,
    it was the nationalist economic poilcy of choice, which involves marketing boards – crucial vehicle of this policy – and other
    kinds of alt.s to private property, plus heavy reulation of for ex, import-export controls, elaborate reconfig of pub/priv credit
    banking facilities – development banks – these are the isntitutions of the social in the post-WWII period – and they‘re the
    instit.s of a very large range of peripha nd semi-periph developing countries
   and we‘ve read about all of this already
   what the Market CLT Right box in Contemp LT orthogonal (i.e., neo-liberal econ. market law policy globalization) is a
    radical attack on the Social in econ. policy in the periphery
         o it‘s not globalization against local resistance
         o Potter‘s representation is accurate on one level, but absurd on another: Communism is not the locali
         o what‘s happening after 1980 is the globalized Social econ. policy is being gotten rid of by globalized neo-lib econ.
         o KEY: the West exported Social econ. policy globally (import-substitution indust.n: ISI); and the West
               exported neo-lib. econ. policy globally to displace it (this was not an attack on the local, as the resisters of
               Contemp LT resisters present it)
                     or at least, this is another way of understanding the large cosmic story
                     DK likes this story a lot, but at this point it‘s no longer so easy to draw rigid parallel story to globalization
                         of family law: not so easy to identify the policies that parallel ISI – BUT he‘s going to TRY!:
   Referring back to Abu-Odeh‘s first article:
         o the social policies for gender were: nationalist gender reformist policy in the period btw the wars and then in 1950s
               (esp. Jordan in 1950s and 1960s) – her theory was the following: we have a trad gender regime (she was
               preoccupied w/ crimes of honor), but gave a rather elaborate descrip of hymenized space, virginity as central
               category, social segregation of men and women except on particular occasions, the idea of honor as smthg that
               adheres to the males of the lineage that can be threatened by any female of family who violates BG gender code, etc.
                     (btw: DK thinks this can be transferred mutatis mutandis to conservative Catholic countries, e.g. Spain –
                         which has a lot of homologies w/ this version of Islamic societies – what‘s being described here has
                         nothing to do with Islamic law as law; and note that Spanish catholicism came into existence in the wake of
                         Islamic law; was formed by those, the Span Catholic Knights, who drove the Mores out of Spain, in the
                         reconquista; Andalusian Islamic culture had been much more liberal – hypersophisticated, tolerant,
                         diffusely innovative, to the pt of being called decadent – than the Catholics who came)
         o So: A-O‘s thesis: in the family law context, there‘s a nationalist compromise (advocated even by early social muslim
               reformers, as early as 1900): women can be educated, and women can work, and we can have a variety in the middle
               and upper-middle classes of mixed social occasions, where men and women socialize together – and her exampel is
               belly-dancing at a wedding – so there will be a partial dehyminzation of social space – and her thesis is: this creates
               an unbelievably tense/complex instability of the system, in which the relatively highly formal regulation of social
               regulation btw women and men (virginity fror women as req of culture; but virg by default for unmarried men) out
               of which you get complex forces destablizing the system – and the crime of honor becomes one way by which
               reaction against disintegration of once relatively coherent can be rebelled against (all lower-class) – has the quality
               of knife-edge of adjustment of gender relations
         o So: women’s human rights as developed by lib fem as transnat movement is a reaction against that regime –
               NOT against tradition
                     it‘s arriving in a society that has already been radically destabilized in its gender regimes by the social idea
                         tha women can work, be eduated, dance w/ men at wedding – but will retain purity as symbols of what will
                         be most authentic about the nation (Chatterjee thesis re: nationalist Bengali intelligentsia).
   SO: Just as the globazlaition of neo-liberalism is an attack on the soci-econ development practices of the post WWII,
    women‘s rights are an attack on the equally unstable compromises of the social by nationalist elites re: family law
         o BG: ISI can be understood as unstable in the same way that in A-O first article Social muslim family law was
               unstable: it‘s not Communism (though Hayekians see it as precursor of Communism): it‘s still got a private sector
               and public sector – heavily regulated w/ pub-priv partnerships – and you an argue; it produces a kleptocratic state
               based on rent-seeking
                           e.g. to import a Mercedes, you need a permit from gov‘t – it‘s worth a lot of $, a very large part of the value
                            of the Mercedes, b/c once you import it, you can sell it for giant price internally – and basically, the person
                            who sells the permit can recoup some of that value through bribery
                          pushing analogy to the max: A-O 1st article says a whole set of practices emerge in 1960s that are directly
                            parallel to rent-seeking – the word ―cheating‖! (pushing analogy to extreme here, admittedly) – really rare
                            that brother kills sister for having coffee – but it happens once every five years and it will be in the
                            newspaper – so: sister has incentives to cheat, have coffee with boy, will rarely be caught/killed for it
         Again: there‘s nothing local about the resistance to women‘s rights in the Muslim world. The way to undrestnad what‘s
          happening is that there‘s pressure to modernize Taqlid law, but this gets compromised in every country. Taqlid isn‘t the local,
          it‘s the social.
                                  terminological sidenote: ―law and development‖ movement = ISI
                                           o relativization of private property
                                           o regulatory regime isn‘t inconsitent w/ capitalism
                                                      an alt to Soviet, and to pure free market
                                           o promoted by US AID, mainly in Lat Amer
                                           o relative faithfulness of Lat Amer to CLT made the influence of Euro social – Von Jhering,
                                                etc. – invisible
                                                      i.e., incorporated many of the rules (paroles) of the Social, but the way it was
                                                          organized in 1950s-1960s had a strong CLT overtone
                                  an amalgam of Social ideas and Chicago School/Reagonomics – ISI is the moment of tipping of
                                      fulcrum between Socal and Chicago School/Reagonomics?
                                  not all of this entirely clear – response to stu. Q
                o Note:
                          there‘s both resistance to (and compromise with) globalization of neo-liberalism destruction of globalized
                            social econ ISI (foot-dragging, buying out elements of neo-liberal regime, etc.)
                          and reaction against it (Putin‘s economic take-back of commanding hts from Russian econ from oligarchs;
                            and Bolivarian revolution of Chavez in Venezuala – people trying to go back to an earlier vision)
                o What would be the parallel w/ family law?
                          (me: Resistance would be the kinds of compromise that A-O describes in 2nd article?)
                          Reaction wd be trying to go back to medival Shariah as family law?


27 Apr. 2009

today: The spread of rights-based constitutionalism and judicial review
tom: globalization and the production of uniformity (or not)

         today‘s readings: a quite dramatic: Mencima and Santos‘ descriptions radically opposed to Ackerman‘s piece; and Hirschl‘s
          cynical dose of acid…
         A picture of the origins in global Con Law of the model of the Constitutionalization and judicialization of rights: and in a
          sense the last reading directly relevant to the description DK will give in first part of this class was Dicey‘s reading in the
          Law of the Const (twds end of CLT section)
              o Dicey: recap: He presents 3 models: the Eng, Fr, and federalist model (US as primary example)
                                  the Brit model is Parliamentary Sovereignty:
                                           o no written Const,
                                           o but the key thing is whether or not there‘s judicial review:
                                                      there‘s no jud rev of legislation
                                                      but there is judicial review of administrative action (me: the ultra vires approach)
                                           o these two are seen as radically different, going back to 17th C
                                           o and latter is identified with the rule of law
                                                      me: in jud rev of admin action, you don‘t have cts. overruling elected
                                                          gov‘t – rather: you have judges enforcing the law, giving individuals a remedy
                                                          for when official does something illegal, beyond what democratically-elected
                                                          gov‘t authorized him to do, ultra vires
                                                                and originally, the claim was against the official
                                                                the lawsuit was rationalized by saying: the official when acting w/in his
                                                                   sphere has absolute power to inflict the injury; but once outside of his
                                                                   sphere, commits a tort when injures a right of the plaintiff – a tort just
                                                                   as a private actor
                                                      DK: this idea can be seen as germ of CLT expanding into modern Admin Law;
                                                          and in the US, in late 19th C, it develops into very robust understanding of
                                        institution of jud rev of legislation: i.e., there‘s a kind of path from suits against
                                        king‘s agents to e.g. Griswold v. CT
                          o an important dimension of the hist of CLT: both in common law countries and (over 19th
                              C) in civil law countries, there‘s the generalization of the right of action to cover more
                              and more different kinds of injuries to interests/rights of the plaintiff
                                     in Brit, you start out w/ physical violence bieng preoccupation
                                     but by late 19th C, it‘s generalized, across W.ern admin law systems, there‘s
                                        some concept of protective law interests… (missed)
                                     and liability (originally understood as liab. of indiv. official) becomes liability of
                                        the state – so you can recover damages from the state, not just the official who
                                        injured you
                                     and that‘s going to require complex adjustments b/c of the idea of sovereign
                                        immunity, the unsuability of the sovereign
                          o also note: it‘s key to ideology of the common law countries that the ruler acting beyond
                              the scope of his authority is just a private person
                                     the common law: not conceptualized as enforcing a code, but rather enforcing
                                        the law of the land in disputes between two private individuals
                                     versus civil law systems: internal courts first set up merely as way for king to
                                        supervise his servants – slowly develops toward courts to which a person can
                                        appeal for administrative energy
                          o and all fitting into model of CLT: it‘s the rights-idea of CLT, has acquired this
                              ramification outward from the law of rights as individuals to include the same rights,
                              mutatis mutandis, against the king as opposed to against an individual – it‘s still your
                              property right, e.g.; it‘s still the Savignian idea of a right; and it‘s still understood in
                              terms of spheres
                                     analogous to development of PIL in Anghie‘s article: in CLT, Austin (eng
                                        positivist) denies that Eng PIL is law at all; but PIL lawyers develop an entire
                                        apparatus defending PIL as law using Savignian idea of powers absolute w/in
                                        their sphere
                                     similarly: an admin person might say originally: admin law isn‘t law; but then
                                        an admin lawyer will say (using Savignian models) it is law
                          o HOWEVER: as Dicey explains, none of this has anything to do with Parliament. (Ultra
                              vires) review is completely independent of jud rev of leg. You cd support one but not the
                          o BTW: If you ask many ord Amer lawyers, they‘re not sure that they have the rule of law
                              on the Continent… b/c of the ordinary ct/special ct distinction…
                  2. The French system: quite different on the surface:
                          o there is a written Const. (but Dicey dsn‘t see this as crucial distinction, contra what most
                              Brit and Continentals think at the time)
                          o and the conception of the written Const. is that it binds the leg., unequivocally, it‘s part of
                              the doctrine of the public law and of the state
                          o SO: when a leg passes a law, after it‘s been denounced by the minority as blatantly
                              violative of the Const, the ct.s are understood by everybody as not going to refuse to
                              enforce the statute on the grounds that it violates the Const. – this is Dicey‘s hard
                              positivism, saying: despite superficial appearances of difference, in fact (Parl. is in
                              practice unlikely to be overturned by ct.s) in French ct.s as well
                  3. The federalist system
o   Summary of 3 Globalizations thesis re: evol. of Amer. Con Law: the evolution from private law to administrative
    law was extended to Con Law
         sidenote: by 1914, Amer Const.‘l law was almost parodically classical, ironically much more than Amer.
            private law; versus, in the Euro model, the only thing that really counts as true law is private law, (me: and
            everything has been rationalized and codified); Amer private law very traditional, incompletely rationalized,
         Dicey is aware of #1 but not #2:
                  1. the CLT development of the law of federalism
                          o post-Civil War, emergence of federalism, happens to be at same time as emergence of
                          o right to secede was big doctrine adhered to by many southern jurists until Civil War:
                              doctrine of nullification (the right of a state legislature to annul a federal law)
                          o on the other side, the federalist doctrine, it‘s not crazy to interp. this as a doctrine of
                              federal supremacy
                          o Marshallians believe in supremacy of federal law, and authority of Supr Ct interp.s
        o     all of this is the subject of the Rise and Fall of CLT, DK‘s tenure book
        o     S. is militarily occupied by fed armies
        o     at this very moment, the US Supr Ct adopts the following definition of the relationship
              between fed power and state power: each is a power absolute within its sphere
         o this is pretty surprising – and when wrote the bk, had never read Savigny – didn‘t realize
              this formula, which becomes dominant formula of US federalism until rise of New Deal,
              came from Savigny, who got it from Kant
         o so: what remains of the federal position of pre-Civil War period is the idea of Supr Ct
              being on top – but instead of the role of Supr Ct being to ensure federalist supremacy, it
              says: our role is to draw the line, to protect the one from the other, so that neither invades
              the prerogatives of the other
         o quite an intellectual transformation
         o Bryce, in the book that influences Dicey, says (totally inconsistent w/ Euro idea of
              sovereignty, where it‘s by nature indivisible and absolute – to be sovereign over terr is for
              there to be no other sovereign – v. in Amer federalism, me: both national and state
              sovereignty exist) – and drawing the line btw the two is not a political task but a judicial
         o the defining thing that happens in post-Civ War doctrine of federalism is the emrgence of
              typical classical method of induction/deduction: e.g.: Congr has power to regulate
              interstate commerce; already, before Civ War, Marsh was toying w/ negative conclusion
              reached from that; but after Civ War: if it‘s true that Congr has power to regulate interst
              comm, then it may be that if Congr has regulated in some domain, the states can‘t
              regulate at all; and from there, we go to situation where the states can‘t legislate, b/c
              Congress has occupied the field; or, if Congr hasn‘t regulated, but the only poss inference
              is that in choosing not to regulate, Congr intended the states not to regulate either; all
              three solutions are possible for different dimensions of interstate commerce. And then it‘s
              all deductive from the idea of conflicting sovereignties, each of which is absolute within
              its sphere.
         o (Dicey describes the system just described: typical Brit, he says: the way to understand
              this is the way we rule India: delegated power, like a railway corp. being delegated power
              to make conduct-rules for passengers; but if went beyond that, wd be outside its scope.
              The problem: you have to be both legalist and peripheral to have a federalist system – b/c
              the state will be impotent… (He‘s writing this just as US steel production passes Brit
              steel production.).)
   2. jud rev of leg. action?
         o A little later, there is round two: the rights revolution in Amer Con Law (starting in
              dissents to Slaughterhouse Cases – the origins of the spread of Constitutionalization
              around the world today; their basic claim is: the Amer system shd be understood as: bill
              of rts, federalized, creates individual entitlements – equality rights and autonomy rights –
              shd be understood as binding both fed govt and state legislatures.)
         o The Slaughterhouse Cases involved the creation of municipally-owned market where all
              slaughtering in the city of New Orleans would have to be enacted – if you want to be a
              butcher, you have to rent a stall there. And the justification is to get the public health
              consequences of slaughtering under control. The objction is that it‘s a restriction of
              freedom of enterprise – that the public health xplanation was pretextual. Result of bribery.
                    the two cases in reading today have the same structure: Const Ct treating some
                         state action that was supposedly in public interest as actually a rent-seeking
         o This is a direct development from ―powers absol w/in spheres‖ of federalism idea: the
              Const. established spheres – the sphere of leg power can‘t intrude on private sphere; the
              sphere of action by states can‘t intrude on Congr‘s sphere.
         o SO: IN SUM: we’ve gone from (this is the story he’s telling in all of the above:
              Savignian idea evolving into Griswold v. CT, basically – the story of his tenure book,
              tho at the time he didn’t realize the origin was in Savigny)
                    first: private law: rights-rights
                    second: federalism: powers-powers (w/ court drawing boundaries)
                    third: Con Law: rights against the state, thus rights against powers
         o Lochner era: keeps viewing interferences w/ freedom of contract where leg justifies as
              doing for public health reasons – ct sees these as pretextual
                    no balancing, just a Q of straight legal interp
                    of what Const says
                    using method of induction and deduction
                 o so: that‘s CLT for Const‘l sphere
   NEXT: The Social
          in US, radically discredits classical American Con Law – famous case of West Coast Hotel: this
            moment when the US Supr Ct under intense pol pressure from advocates of New Deal social
            legislation, retreat – abandon powers absol w/in their spheres
          the Social: both in sphere of fedralism and rts against state, US Supr Ct affirms fed power against
            state and indiv. rts. power – so fed govt gets right to do basically whatever it wants
                 o in states
                 o and in domain of indiv rts
          using only rational basis review
          EXCEPT the famous Carolene Prod.s ftnt (in cert cases of insular and discrete minorities, we as
            court may have to do more)
          radical retreat from activist judicial review, w/ the exception for discrete and insular minorities,
            which was set up right at the start of the Const‘l revolution
   SO: a powerful story here: After WWII, a radical diffusion of this model (v. the Brit model of Parl
    supremacy, or the Fr model w/ written Const and it‘s understood that all leg must conform to it, but there‘s
    no jud mechanism to enforce that against the legislature)
          DK‘s claim: globalization of Constitutilization is extreme example of spread of Amer
   Ackerman‘s article fits this narrative
   BUT: remember Kelsen and Jackson – laying out relatively modernist approaches to PIL and Pub Int‘l
    Econ Law – Kelsen is author of the second contemporary model of constitutionalism w/ jud rev: SO:
          #1 there’s the US model
          #2 and the Austrian/Kelsenian model
          (and then combinations of the two)
   KEY point: there are differences, but not in what we‘re ult concerned with (?):
          e.g. the Austrian model has Const Ct
                 o which only has jurisd over con Qs
                 o so it‘s not the highest ct re: private law Qs (which goes to sometimes called Ct of
                      Cassation or Supr Ct)
          central to Amer thinking about law is the crucial role of ―ordinary cts‖ – this fetish is totally
            absent from Austrian model
          another diff: case or controversy, etc. rules don‘t exist in Kelsenian model – they can do abstract
            review, apply to a hypothetical
          under both #1 and #2, rights are guaranteed against legislative infringement by a written doc
          the moment of the crisis of the Social: sociological jurisprud. and legal realists take as a
            centerpiece of their attack on the reactionary policies of the US Supr Ct (which is striking down
            zoning laws, child labor laws, etc.) – a major way of attakcing them is to say they‘re doing an
            abuse of deduction. Rem. Geny and von Jhering on the absue of deduction in classical private law.
          btw 1905-1945 in Amer., this abuse of deduction critique (Amer.s in 1930s are citing Geny and
            von Jhering all the time!) is applied to public law v. private law.
          so the Social critique: they (e.g. Cardozo, author of liberal manifesto of 1920s, Nature of the Jud
            Process) read Geny and von Jhering and applied it to private law but mainly to public law
                 o e.g. just dsn‘t make sense to define freedom of contract as … (missed)
                 o the deductions are false, are overwhelmingly influenced by political preferences of those
                      doing the deduction
                 o it wd be much better to bring the policy judgments out into the open
          a good example of this is Frankfurter‘s concurrence in DENNIS: what we‘ve got to do here is
            balance. The Social people‘s repsonse to the critique of Classical Con Law is the balancing test.
            (Comes from Holmes and Hand. A little geneology of balancing in Critique of Adjudication.)
                 o so: balancing test is against abuse of deduction as much as it‘s against powers w/in their
          and Supr Ct goes on to endorse balancing in one domain after another
          this it he transition moemnt from the Social to Contemp LT
          after World War II, we made everyone do what we did: the Germans, Italians, Japanese – written
            Const.s, and formal judicial review
                 o tho Germ says they created their own under Adenauer
                 o Ital.s say the same… a compromise btw Ital Comm Party and Ital Social-Dem Party!
                 o but basically, it‘s obvious that it wdn‘t have happened the way it happened w/o Amer
                               The adoption of jud rev in Germany – a spontaneous and also imposed development – after WWII
                                is an unbelievably important even tin the 3rd Globalization –
                                     o e.g. b/c very soon after WWII, there‘s a filmmaker who‘s going to show a pro-Nazi film
                                          (Lueth case, see Tushnet book) – the point being: it‘s a balancing case
                                     o and German jurists see this as Germ contribution to the world – irrelevant that 15 recent
                                          US Supr Ct cases had advocated balancing, and US is occupying Germany at the time
                            BUT: key: the important thing is: prestige of German law allows diffusion of basically US ideas
                                in Europe
                            ALSO: decolonization: one Brit colony after another rejects Brit model of Parl supremacy
                                model in favor of US model of judicial review
                                     o a billion different variants – and often, ct.s quickly lose power to restrain leg activity
                                     o this isn‘t a statement about the law in action
                            ALSO: the US model has been gaining ground steadily in Lat Amer: alrady in middle of 19th C.,
                                as amer jud rev system takes off after Amer Civ War, … missed… so that 3rd World countries in
                                Africa and Asia can look to Lat Amer, which has already been independent for a long time (me:
                                and thus 3rd World Africa and Asia get US through Lat Amer)
                   And what gets adopted in each case is a Const system on the US or Austrian model – a million variations –
                      but it‘s experienced as a logical thing to do for at least 3 reasons:
                            the influence of US
                            the influence of longtime independent Lat Amer countries
                            the influence of EU model…
                   And then there‘s this 1980s moment: combo of fall of Communism w/ undermining/fall of principal
                      remianing rt-wing social regimes in Lat Amer and Africa – the famous moment of transition from the
                      Social in its COmmunist form and from right-wing authoritarianism as it has prevailed in Greece, Spain,
                      Portugal, Brazil, Argentina (tho Chile is going in other direction…)
                   Simultaneous dramatic upheaval: many countries creating new regimes
                   This part is the last tstep in the development, the end of 3rd globalization: this is a formal story of the
                      globalization of constitutionalism
                   Hirshl‘s great contribution – DK will recast it – to get the function of constitutionalism in the 3rd world in
                      1980s and 1990s, the end of 3rd globalization, you have to remember what we read about ISI: policies
                      proposed by both US AID and Soviets – very strong tarrif protections, exchange controls, restrictions on
                      imports/exports, manipulation of credit toward potential industrial sectors, manipulation of countryside
                      through markets that function like taxation… That‘s the global econ regime of the Social in its last years.
                   In 1980s, a giant world financial crisis, the argument that ISS failed and produced failed states, and the
                      rise of neo-liberalism (open markets, deregulate, privatize)
                   In the last years of the 20th C., there‘s yet another significant development: rise of IHR, incl women‘s
                      rights – also a transnational movement – in the countries of the developing world that have the transition to
                      rights-based constitutionalism, there rae at least the following powerful forces: ISI just as neolib.s sd,
                      creates beneficiaries: old elites and new rich… the govt.s of the 3rd world have been encouraged to vastly
                      expand the state sector to administer ISI… but there‘s almost always an ARMY (except Costa Rica! the
                      only one w/o an army! the only country in the world! no army capable of trheatening a coup d‘etat)
                   And then there are the forces of tradition – a family law conception that‘s rooted in some idea of tradition
                   KEY: Constitutionalism in the 3rd world = all the forces we’ve been studying come together in Const
                      Ct, which is the mediator of the following conflicts:
                            1. in the economy, neo-lib forces (incl. domestic supporters) against those who have acquired
                                positions either through old privelege or through success under ISI
                                     o closed-shop regime in Mexico: great example of the Social
                                     o these courts are negotiating the internal/external pressure btw neolib(+ some domestic)
                                          and domestic/status quo forces
                            2. in family law, HR NGOs v. local/traditional/religious forces
                                     o in Euro., conserv. Cath
                                     o in 3rd world, sometimes Islam
                                     o or Asian values in Singapore
                                     o or in US, conserv. Christian
                            3. and the authoritarian state apparatus (usually military) having to deal w/ HR NGO claims
                   so: courts mediate transnational social pressure of each of these three types
                   you can‘t underst constitualization w/o globalization: the Const system isn’t just a result of globalization
                      in the sense of coming about through influence of globalization – it also plays a key role in mediating
                      the conflicts brought about by globalization
   (rem: in the Social, Con Law hardly figured at all)
   (in the 3rd Globalization readings, we set up core of Contemp LT based on a few US Supr Ct cases as paradigmatic)

28 Apr. 2009

         Teubner: diversity thesis: Globalization produces difference, not homogeny
               o similarly: another article by Maxima… (author of article on Muslim religious law in Britain): Transnational labor
                    migration produces legal diversity
                          note: since that article was written, there was a concrete British reform of the ct system designed to grant
                              more formal recognition in complex circumstances to Sharia
         1. = Teubner‘s irritant model
         TEUBNER:
               o thesis = The national legal systems need to be understood as arraying themselves for the core countries according to
                    ―the varieties of capitalism‖ thesis.
               o in typical Teubner form, he wants the article to be contribution at very abstract level, but what‘s actually most
                    interesting is very concrete:
               o there‘s a book by Soskice, Varieties of Capitalism, arguing that Cont/Brit/Jap styles of capitalism are distinct, and
                    correspond roughly to Roe‘s typology of corporate law: on many diff. levels, the core/Continental model is really
                    different from the anglo-saxon model, and diff. from the E Asian model – a crucial element in the thesis is the notion
                    that there‘s a radically different relationship btw shareholders and corporate directors and organized labor in the
                    different systems of moden capitalism
               o really schematic: we have 3 striking different modes of organizing capitalism, not only at level of corp law but
                    including welfare safety net provisions are organized and the way org labor is or isn‘t incorporated in … missed.. the
                    way banks are ordered… etc.
               o If you introduce a norm from one system,
                          here: the good faith norm (from civilian codes – in fact, has a very important role in civilian codes)
               o when it arrives outside of where it was developed, the meaning of the norm (of good faith e.g.) will be different.
                    And even more than that, it will be an irritant, foreign to the host body, which will react to it in all kinds of ways
                    b/c it produces inconsistency in the preexisting coherence. Body will have immune rxn, change other things to
                    accommodate the norm.
               o A very famous article – canonical comparative law: part of a trend also rep‘d by Langer‘s article – versus:
         2. = Legrand common law v. civil law as cultures
               o argument: common law v. civil law as cultures: second variant of the diversity thesis: common law and civil law
                    are organic systems that have a spirit or a culture, which is what knits each of them together in radically diff ways,
                    and b/c a single transplant (exactly like Teubner‘s good faith example) is torn from one and dropped into the other, it
                    will be impossible to assimilate it w/o transforming it, b/c the culture (an inert thing, the context in which the legal
                    system operates) will make something altogether different out of it
         3. = Langer‘s translation idea
               o each system (common v. civil) as though it were a language
               o and the transplant arrives as something in a diff lang
               o and then must be translated into the local lang
         1-3 are all ways of arguing the opposite of the langue/parole idea – they all offer an organicist idea of the local/national
          system, emphasizing the interrelationship of the parts of the national system, but more than the interretlationship: that there‘s
          a dynamic process of change/growth/contraction – the image of the organism is crucial, and the organism is national
         And this can be related to Roe‘s path dependene idea:
               o the national has laws, is not fully permeable to the outside
         DK strongly believes in organicist ways of thinking about law: national legal cultures, varieties of capitalism, etc. – all 1-3
          are really useful
               o BUT: the other way of looking at these things is the langue-parole distinction
               o And one ought to deply both
               o The conception of the langue characteristic is implictly organicist, but it‘s at the global level generated by the core
                    transnational elite, as opposed to at the local level
         COMBINING langue and organicist approaches:
         So: a global organism of legal thought in constant interaction with equally organic entities at national level
               o and that‘s going to produce gigantic variation in globalization process
               o the diff btw looking at global and nat‘l levels is: at global level, the langue is being specified in national paroles in
                    one country after another
                          When looked at from the local POV, the organism reacts to the transplant
                          When looked at from the global POV, in the langue, diff. paroles are spoken from country to country
               o So, the langue/parole distinction is its own version of global organicism, w/ parole as what happens at the local level
                          (me: i.e., langue spreads at global level, and wherever it arrives, it will have a different parole)
              o     And note: the core/periphery theme simply asserts that there is a structure/coherence to the process of diffusion:
                    basically, that ideas come from the core and go to the periphery
         Langer‘s other/later article (not translation one) argues on basis of the same Lat Amer reforms of criminal procedure in an
          adversarial direciton that: there is a lot of illusion in our first reaction, which is that this has got to be Americanization – and
          what he does in the second article is emphasize the way in which Lat Amer crim lawyers derived pieces of their new/more
          adversarial model (w/ more prosec. discretion, plea-bargaining, etc.) from reforms of German crim law of 1920s-30s, and
          completely autonomously from the Americans picked up these elements, and spread them w/o direct reference to Amer
          sources, altho with massive funding from the US govt and US NGOs and the World Bank.
               o so second article focuses more on spontaneous energy created by 3rd world scholars (those responsible are mostly
                    Argentinians: semi-peripheral Lat Amers)
               o Langer taking a big step past first article: giving a lot more agency to periph/semi-periph lawyers…
                          DK: some persuasive, some not – dsn‘t really address the fact that Argentina is semi-peripheral and thus in
                              Wallerstein‘s system is always taking up and transforming second-to-most-recent technologies from the
         Student: Given the idea of the langue as a kind of all-encompassing thing that we‘re just inside, what explains how we go
          from one langue to another?
               o there is no single explanation
               o this is an overdetermination situation
               o we can look at the event (the Social really is quite different than classical legal thought) and come up with any
                    number of situations
               o e.g. wars are very important (WWI: CLT -> Social… tho Social precedes it… and WWII for Social -> Contemp), or
                    massive economic change (Great Depression: CLT -> Social), etc.
               o and the Social in law gets reinforced by the Social in economics, which was already there… and revolt against
                    formalism… and pragmatism
                          sidenote: von Jhering, Geny, Holmes: the three main critics of the abuse of deduction
               o and there are internal developments as well…
         me: maybe everything is just formalism (articulated in various ways) and consequentialism (articulated in various ways)
         DK: Rehnquist Court: their theory of federalism was very much a revival of CLT – b/c in (19th C?) federalism was conceived
          on basis of powers w/in their spheres – e.g. in striking down Violence Against Women Act on federalism grounds (which
          makes social progressives go crazy – from Burger ct beginnings onwards)
               o not part of the box diagram:
               o doesn‘t fit the model of CLT is right in the market and left in civil soc, tho
         me: originalism as instance of revival of CLT (formalistic abuse of deduction) in Contemp LT (―politics‖ as the other of
          originalism) – certainly langue-like in the sense of having recognizable rules of game, and left-right variants (Black and
          Balkin/Tribe potentially v. Scalia or Thomas; the two sides of Heller)
               o perhaps we haven‘t discussed it b/c it hasn‘t globalized – other countries just don‘t have hardcore Const.‘l
                    originalists? or do they?
         student: right seems to be marketizing various civil society things (contra the box diagram) (right CLT, but applied to civil
          soc issue): you should be able to choose whether to vaccinate your kids or just pray, you should be able to choose whether to
          pray at public school flagpole, privatizing education, etc. We would normally think they would use the right Social for this.
               o NOTE: me: one thing for exam: perhaps try think of counterexamples to the box diagram: the left using CLT-revival
                    arguments for market law, etc., the right using Social-revival arguments for market law…
         tom: sectarianism of Contemp Legal Theory
         the only shared part of Contemp LT is the variety of what‘s on the table: law & econ (Posner/Sunstein), proportionality
          (Frankfurter/Hand), neoformalism (Black/Scalia/Thomas), CLS (Kennedy/etc.), etc. And each of the sectarians experience
          themselves as minoritarian.


Note: We didn‘t do any reading on constitutional law in the social, b/c was comparatively minor part of the social ideology
there are, however, at least 3-4 developments during the soc. period which are about const.s and con law and have major implications
of the future

note: a list of major loose ends (things not in the course, not resolved into the structure yet) for understanding Con Law:
1.        1900-1910: a series of const.izing revolutions – e.g. China, Iran, Russia, Mexico – first two are never-colonized periphery;
russia semi-peripheral –
          and in this very short period of time, there is not just a political upheaval, but const.-making as outcome of revolutionary

2.       socialization of var. const.s – e.g Ital. post-WWII – There will be an argument that no conception of property that wd
unconst.ize rent-control is const.l
        one innovation of Cath Natural Law was: constitutional ―Right to Family‖ (conservative Catholics in Spain)
        analogous in civil society domain to the socialization of the property right
        where does this ―right‖ come from? in the Cath development, it‘s closely related to the Social in Cath legal thought
        opposed to individualist/feminist thinking about law

        … but there‘s no text that wd cd‘ve read that wd capture this – these are just things that would happen

3.      Austrian/Kelsenian model of Const. is crucial to everything that happens in Contemp LT (e.g., judicial review) – if there
were only an American variant of this, no Euro variant, Contemp LT wdn‘t have happened as it did

How did the balancing structures that make balancing seem inevitable in Contemp LT come about?
big area for DK‘s future research
first sense: Const.ization of some social ideas co-existing w/ some const.ized CLT ideas – and once they’re both there, you get
some kind of balancing

       Kelsen: one of the sources of Contemp LT as a critic of the Social
             o His critique is: Basically, there are no unproblematic means of society – you‘re really just saying ―follow my left or
                  right wing agenda‖
             o He‘s like his teacher, Max Weber, a very early critic of the Social as a new way of explaining what law ought to be
       now: in David K‘s Kelsen and Jackson article: in the design of the Austrian Nat‘l Ct and Kelsen‘s proposal for gradually
        getting to world law w/ world authority – by pushing for diff. modes of adjudication here and there – that has a characteristic
        element of the Social and a characteristic element of Contemp LT combined
             o but when we get to Kels‘s proposals that DavK is discussing: what we shd work for is a solution to the prob of peace
                  – the central problem of the mod world – the way we‘d get there is by a slow evolutionary process of
                  transforming … (missed)
       but Kels, like Holmes, contains almost all of legal thought
             o e.g. another aspect of Kelsen: transformed version of CLT b/c of extreme insistence on distinct. btw legal norms and
                  all other kinds of normativity

    Another question about the box diagram: why do the left opt for transformed Social arg.s in the Market, and the right opts for
       transformed CLT (focus on indiv. rt.s and induction/deduction) arg.s… Why isn‘t there more use by left of CLT arg.s in the
       Market? e.g. talking about autonomy rights in labor as (Forbath? guy on left in 1890s) does, etc.
            o just as we saw yesterday the right (exceptionally) using CLT in Viol Ag Women Act (re: federalism; or interfering
                w/ husband‘s property rights in house) or abortion controversy (the rights of fetus as a person)
            o note: in card-check argument today, both left and right use CLT arguments (left: card-check allows quick and true
                check of true will of workers, v. secret ballot election allows long preliminary period in which employers can
                manipulate workers; right: only secret ballot guarantees expression of workers‘ will)
            o there are counterexamples to all the boxes – the boxes are just tendencies
    another challenge: the right-left distinction: doesn‘t exist in Amer. sense in Euro.: e.g. the Repub. combo of conservative
       family values and conservative economics
    me: USE AS EXAM TOPIC? maybe could challenge the langue-parole distinction, its emphasis on how things are phrased –
       or perhaps not emphasizing how things are phrased enough? – e.g., what about cases where Euro socialists and Amer liberals
       end up at (some) similar econ welfare policies, but former describes it as a response to late-stage capitalism, a step on the
       road to socialism; whereas latter insists it‘s a way of making capitalism stronger, isn‘t socialism at all
            o is the langue about how we talk about things? or about policies?
            o both? does this work?
            o my sense is: sometimes in this class, we‘ve ignored what people say about what they‘re doing, as though it‘s just
                patina, self-serving self-delusion (e.g. FIND EX.s – e.g. the people in last few days who claimed they weren‘t
                getting balancing from Frankfurter/Hand/US), whereas other times we have accepted what people say about
                themselves at face value, as though this were our real object of study, the (explanandum?), what is being explained?
            o what is the base and what is the superstructure?
                      materialist v. ideal elements (DK‘s terms)
                                the focus of this course, DK just suggested, is legal discourse
                                me: which makes it sound like the real subject of the course is what people say about what they‘re
                                and yet… in many cases (e.g ???? incl. many of the readings that struck me as conspir. theories?)
                                   we have ignored what people say about what they‘re doing and have blithely assumed that they
                                   were doing something else
                      is actual, concrete econ./family policy the base; or is how people talk about those policies the base?
                                      cd separate the readings that were conspiracy-theory-like (radically questioning the accuracy of
                                       how people describe their projects – e.g. the one about law re: women early on) from those that
                                       take what people say at face value, really seriously
                                            o note: I guess in law, you could try to collapse this distinction to some extent, since laws
                                                are both policy and written expression? an issue at least
               o my real question here: how does all of this cash out?
         Read ―The Disenchantment of Logically Formal Legal Rationality‖ (1055–end): the death of reason narrative (Weber‘s
          ―philo of hist‖: hist at completely abstract and inevitably kind of bullshitty
               o for law, the death of reason narrative starts w/:
                         tradition understood to be sacred;
                         then the arrival of various kinds of charismatic authorities disrupting and transforming trad practices (who
                             have some relig justification of course)
                         then the routinization of charisma – the initial inspiration turned into a whole body of law and legal
                                    me: just like Amar talking about Washington!
               o all religions have to deal w/ basic prob. that the evil prosper and the good are punished – the problem of theodicity –
                   how to relate the moral teachings to these outcomes, in the terms of the larger relig. belief?
                         and the conseq. is that people start to explain things based not on will of God but based on rationalization
                         and it turns out more and more things are best explained this way
                         squeezing the place for God
                         and then a series of attempts to reinstitute all-encompassing divine order in one area after another
                         law is separate from science is sep from art is sep from politics – dispersal into different domains
                         and in law, God as source is replaced by reason, then by the state, then by society, then eventually you get
                             to a state of mind in which each of these solutions has been trashed –
                         at which pt, in each of the domains, there‘s a revival of the mystical/irrational, in the form of people
                             dividing up into conflicting sects –
                         w/ rival interp.s of the ideal
                         which, in law, wd be the rival schools of normative legal philo: everything from HR to Dworkinian princip
                             to law & econ to CLS to Razian legal positivism
                         and the characteristic of the current period of Contemp LT wd be that it‘s like the disintegration of unified
                             world religions into subsystems of warring congregations
                         which also radically reduces its power/influence
                         CLT and Social was still before the utter disintegration into secterarianism – Geny, von Jhering are
                             incredibly important in a way that no contemp. legal theorists are – none transcends the internal divisions
                             of the sects
                         Dworkin and Posner just hate each other, etc.
         Where does Communism fit into this?
               o DK has no good answer for this
               o Communism has to be understood as a cause of the Social – b/c of Comm‘s challenge of capitalism (Social is
                   cap.ism saving itself in reponse to Comm. threat)
               o in domain of private law, Comm countries had social codes that were ―social‖ in the sense of the ―Social‖
               o BUT of course the Communist ideology can‘t be reduced just to parole of the social, b/c it‘s so important to the
                   Social that it‘s an intermediary position
         so: work he needs to do is relationship btw this period and communism


Shared By: