Legal History Commons^™

Liberdade, Ética E Direito, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Further than Ethics concieved as mere obedience, Republican Ethics expresses the idea of duty for freedom and Liberty. After Law concieved as only duty and imperative norms from power to the subjects, there is the possibility of a fraternal law, in new patterns. This article explores several ways in a new ethics and a new law paradigms, after the objective Roman Law and the subjective modern Law.

The Jews And Ius Commune, Kenneth Stow

Early Modern Workshop: Resources in Jewish History

From the sixteenth through eighteenth centuries, there was a gradually increasing integration of Jews into systems of ius commune, loosely, the law of the land, but actually a legal tradition based on Roman law, which subsumed local law, usually called ius proprium. The integration might be purely theoretical or in fact, as certainly occurred in the papal state and it seems elsewhere in Italy, too. This legal integration prepared the way for the major legal upheaval worked by the French Revolution. The implications are many. The details mostly unresearched. The Tractatus de Iudaeis of Giuseppe Sessa (Turin, 1713) is the …

Trying Issues: Polish-Lithuanian Jews Under Multiple Jurisdictions, Adam Teller

Early Modern Workshop: Resources in Jewish History

The texts presented here highlight issues of multiple jurisdiction Jews were subjected to in early modern Poland-Lithuania

This presentation is for the following text(s):

• Privilege for the Jews of Lwów (1692)
• Privilege for the Jews of the Przemyśl Region and Rus' (1660)

Jews At The Court Of The Kadi, Yaron Ben-Naeh

Early Modern Workshop: Resources in Jewish History

One of the most astonishing phenomena of Jewish life in the Ottoman state is the widespread appeal to the kadi's court - a muslim court. I intend to describe the frequency of this norm, against explicit regulations, and explain the motivation to use the kadi's services, as well as the reasons for the ban against it. I shall conclude with the social and cultural significance of this practice.

This presentation is for the following text(s):

• Mordechai Halevi, Darkei Noam (Pleasant Ways) (Venice, 1697)
• The court records of istanbul/ Istanbul sher'iyye sijilleri (1662)

Under Imperial Protection? Jewish Presence On The Imperial Aulic Court In The 16th And 17th Centuries, Barbara Staudinger

Early Modern Workshop: Resources in Jewish History

From the middle ages on Jewish life in the holy roman empire was characterized by their egal status as servants of the imperial chamber (servi camerae, Kammerknechte). Paying taxes to the imperial chamber, the Jews stood under special protection of the Emperor. The so-called Speyrer Jew Privilege (1544) stated the legal framework of the Jewish community of the Empire, prohibiting expulsion, and „unjustified“ acusations of ritual murder and securing undisturbed religious practice, and imperial conduct and protection. But what was this privilege along with other privileges from indiviuals worth in reality? Based on two cases from the Imperial Aulic Court …

Evasion As A Legal Tactic: The 1616 Amsterdam Regulations Concerning The Jews, Miriam Bodian

Early Modern Workshop: Resources in Jewish History

Early modern rulers (or ruling bodies) who chose to readmit Jews in places where they had long been banned were faced with theological dilemmas and practical problems. Although it is true that the principle of freedom of conscience was gaining increasing acceptance, its adherents were rarely clear about whether it could be applied to non-Christians. And while the economic interests of rulers favored the settlement of Jews in their lands, the opposition of guilds and clergy could not be ignored. In these circumstances, a rather striking policy of evasion was adopted - in France, in the Netherlands, and in England. …

The Herem As The Source Of Authority Of The Lay Governing Council, Anne Oravetz Albert

Early Modern Workshop: Resources in Jewish History

A treatise on the herem composed by Isaac Aboab da Fonseca, the head rabbi of the Spanish and Portuguese Jewish community of Amsterdam. Specifically, this pamphlet defends the authority of the lay leadership council to do so, arguing against unnamed members of the community who are causing scandal by denying that authority.

This presentation is for the following text(s):

• Exhortation to those who fear the Lord, not to fall into sin due to lack of understanding of the precepts of his Holy Law by Isaac Aboab de Fonseca (1679/80)

Challenging Herem In Hamburg, 1732, David Horowitz

Early Modern Workshop: Resources in Jewish History

These documents represent one of the earliest calls for state intervention by the Hamburg authorities into the internal decisions of the bet din. The bed din of the Triple Community of Hamburg-Altona-Wandsbek compelled Joseph Jonas, a resident of Hamburg, to divorce his wife after she was suspected of adultery. When he refused, the chief rabbi and kahal put him and his wife in the ban (herem). Jonas turned to the Hamburg Senate for assistance in reversing the decision and removing himself from the ban. The documents comprise letters from Jonas and the Hamburg kahal in defense of their respective positions …

The Legal Status Of The Wife In Ashkenazi Jewish Legal Tradition: Continuity And Change In The Sixteenth Century, Elimelekh Westreich

Early Modern Workshop: Resources in Jewish History

The ban of Rabbenu Gershom forbade both polygamy and divorcing a woman against her will. The ban has been seen by historians as a key determinant of the singularity of Ashkenazi Jewish culture. In sixteenth-century Poland there were two main approaches among halakhic scholars towards the ban: one, represented by R. Solomon Luria adhered strictly to the Ashkenazi legal tradition; the second, represented by R. Shalom Shakhna and R. Moses Isserles, was open to other Jewish legal traditions. Is this phenomenon related to the Early Modern Period? And if so, how is it related? My discussion in the workshop shall …

Expanding Legal Horizons?, Edward Fram

Early Modern Workshop: Resources in Jewish History

Legal change was not only a result needs to adapt the law to new situations but could be stimulated by new information. New sources were not always accepted and this presentation will attempt to locate the point in time in which acceptance of a large number of new sources took place in the eastern European community of the early modern age.

This presentation is for the following text(s):

• Shulhan `arukh, Yoreh De'ah 19.1 (1567)
• Siftei Kohen-The Priest's Lips on Yoreh De'ah 19.1 (1647)
• Turei Zahab-The Golden Columns on Yoreh De'ah 19.1 (1646)

Heuristics, Biases, And Philosophy, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Commenting on Professor Cass Sunstein's work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein's papers. And his work is typically not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, …

Hotspots In A Cold War: The Naacp's Postwar Workplace Constitutionalism, 1948-1964, Sophia Z. Lee

All Faculty Scholarship

No abstract provided.

The Trial Of Queen Caroline And The Impeachment Of President Clinton: Law As A Weapon For Political Reform, Daniel H. Erskine

Daniel H. Erskine

This article explores the calculated use of legal mechanisms to impact national politics and the effect such utilization had on accomplishing deliberate political reform. In answering why political actors use legal procedures as political weapons and whether such use is effective, this paper analyzes two historical examples to illustrate that law as political weapon is extremely successful in accomplishing political change. In the early 1800’s, England’s King sought to defrock his politically radical heroine Queen Caroline through the parliamentary mechanism of a Bill of Pains and Penalties, which caused a flourish of public criticism and call for political revolution. Public …

The Paths Of Christian Legal Scholarship, David A. Skeel Jr.

All Faculty Scholarship

The history of twentieth century Christian legal scholarship– really, the absence of Christian legal scholarship in America’s elite law schools– can be told as a tale of two emblematic clashes: the first an intriguing historical footnote, the second a brief, explosive war of words. In the first, a tort action in Nebraska circa 1890,William Jennings Bryan and Roscoe Pound served as opposing counsel; the second was a war of words in the 1940s between a group of neo-Thomist scholars and defenders of Oliver Wendell Holmes. Using these two incidents to frame as a starting point, this essay briefly chronicles the …

The Hidden Influence Of Jewish Law On The Common Law Tradition: One Lost Example, Michael J. Broyde

Faculty Articles

Professor Berman is undoubtedly correct that the surviving literature shows little such influence of Jewish jurisprudence. Over the course of numerous conversations I had with Professor Berman at Emory, we discussed another possibility, namely that the Jewish tradition indeed had a distinct influence on the common law; however, due to the general lack of enthusiasm for the Jewish legal tradition throughout the medieval Christian world, even when Jewish sources were consulted, they were not cited. I wish to show what I think is one such example --the enigmatic origins of the common law rule that the holder of lost property …

Prophets, Priests, And Kings: John Milton And The Reformation Of Rights And Liberties In England, John Witte Jr.

Faculty Articles

In this Article, I focus on the development of rights talk in the pre-Enlightenment Protestant tradition. More particularly, I show how early modem Calvinists-those Protestants inspired by the teachings of Genevan reformer John Calvin (1509-1564)-developed a theory of fundamental rights as part and product of a broader constitutional theory of resistance and military revolt against tyranny. With unlimited space, I would document how various Calvinist groups from 1550 to 1700 helped to define and defend each and every one of the rights that would later appear in the American Bill of Rights and how these Calvinists condoned armed revolution to …

Droits De L'Homme, Droits Du Citoyen: Les Présupposés De La Jurisprudence Américaine Et Européenne, Gregory Lewkowicz

Gregory Lewkowicz

This paper proposes a comparative analysis of some rulings of the US Supreme Court and of the European Court of Human Rights. Reviewing cases related to international legal problems or using comparative legal reasoning, the paper suggests that the difference of attitudes between the two courts in human rights cases is embedded in the classical opposition between men and citizen.

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …

The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel

David B Kopel

The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.

Lawsuits In Context, Ernest Metzger

Ernest Metzger

The study of Roman procedure has benefited enormously from the discovery of wooden tablets near Pompeii. Unfortunately, the tablets are sometimes misinterpreted, for the simple reason that the procedures they describe do not always match the procedures which more familiar sources have led us to believe existed. The tablets, in fact, give us the rare opportunity to revise our understanding of procedure, particularly when taken together with another remarkable find, the lex Irnitana. This article gives a sketch of the ‘new’ Roman civil procedure now available to us as a result of these exciting finds.

In: J. W. Cairns and …

A Whale Of A Tale: Post-Colonialism, Critical Theory, And Deconstruction: Revisiting The International Convention For The Regulation Of Whaling Through A Socio-Legal Persepctive, Nick J. Sciullo

Nick J. Sciullo

This article is a critical interpretation of the indigenous whaling debate, which, although often discussed in legal academia, has received only passing critical attention. As a scholar in the critical theory/critical legal studies model, I am primarily concerned with the impact that law and debates about law have on divergent groups (racial, ethnic, gender, etc.). This article develops a criticism of the United States's postcolonial opposition to whaling, arguing, instead, for cultural relativism. The article indicts U.S. imperialism, and treatment of indigenous peoples, arguing for interdisciplinary analysis and a more keen appreciation for the voice of indigenous peoples. As I …

The French Intrigue Of James Cole Mountflorence, Jud Campbell

Law Faculty Publications

In July 1793, less than three months after President George Washington had declared the United States impartial toward the conflict raging in Europe, French Minister Edmond-Charles-Edouard Genet tested America's incipient neutrality. With instructions from his government, Genet armed a French privateer in Philadelphia and simultaneously launched an offensive against Spanish Louisiana using disaffected American pioneers. The episode began on July 5, when Genet shared the French plans for western invasion in a private meeting with Secretary of State Thomas Jefferson. Ten days later Genet's agents departed for Kentucky to rendezvous with American Revolutionary War hero George Rogers Clark. The effort, …

What Were Jesus And The Pharisees Talking About When They Talked About Law?, David A. Skeel Jr.

All Faculty Scholarship

No abstract provided.

The Ladies' Health Protective Association: Lay Lawyers And Urban Cause Lawyering, Felice J. Batlan

Felice J Batlan

Human And Fundamental Rights And Duties In Portuguese Constitution. Some Reflections, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

The Portuguese Constitution (1976) came after a period of 48 years of authoritarianism and a closed society, in which some happy few enjoyed great privileges while the great majority of people were charged with heavy duties So, by a very understandable "law of human nature", the constituent law givers could not reasonably impose constitutionally many obligations, in an autonomous way. As rights and duties are the twin sides of the same coin, the juridical formulation under the sign of rights also implies obligations, related to those same rights. This is kinder and more pleasant to do by a liberating Constitution...

El Derecho Natural, Historia E Ideologia, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Intentemos retomar algunos hilos sueltos de discursos dispersos y con una nueva mirada analítica, procuremos ver una realidad sutil y huidiza: ese derecho natural que parece silencioso en nuestros días, y más silencioso aún en los discursos psitacistas: tanto en los pomposos como en los pseudo-rigurosos.

Princípio Republicano E Virtudes Republicanas, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

O presente artigo procura unir traços de aparente heterodoxia, recuperando, porém, paradigmas e tópicos que não são novos. Com efeito, nem as virtudes, nem a república, nem sequer a felicidade são novidades. O que talvez seja novo (new again) é o espírito de buscar outra vez as raízes, as fontes, para um intento de renovação do ambiente juspolítico. Somos naturalmente favorável a uma Constituição principial e valorativa, como a nossa. Mas parece-nos que há nela lugar a Virtudes (que já existem nela), e que a descoberta das Virtudes nas Constituições, e, logo, no Direito, é, afinal, um ovo de Colombo. …

Da Constituição Antiga À Constituição Moderna. República E Virtude, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Virtude e República necessariamente têm de levar-nos à Antiguidade: desde logo porque a primeira “começa” com a helénica "areté". Logo, é preciso ir, antes de mais, à Grécia Antiga, e especialmente ao legado ateniense. “Directly or indirectly, Athenian democracy as an extraordinary experiment in social history thus stimulates our own thinking about crucial issues of our own democracy and society, incomparably more complex though they are. The point is precisely that the ancients help us focus on the essentials" - como afirma Kurt A. Raaflaub.

Uma Filosofia Constitucional Comum (Luso-Brasileira), Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Onde melhor se pode aquilatar de uma filosofia constitucional? Além do cunho da constitução, que já vimos ser liberal na fórmula política (porque moderna ecodificada) e social na social, cultural e económica, o que mais exprime uma filosofia constitucional é a ética constitucional, e, antes de mais, são os valores. A Constituição cidadão brasileira e a Constituição portuguesa de 1976 comungam, em grande medida, dos meus valores de liberdade, igualdade, justiça, e outros, progressivos e de cidadania.

Decrecimiento Poblacional En China Durante La Época Del Gran Salto Adelante, Fernando Villaseñor Rodríguez

Fernando Villaseñor Rodríguez

No abstract provided.