bluuebunny/crossref_metadata_2025 huggingface dataset:
Epistemic Uncertainty and Legal Theory by Brian Burge-Hendrix (Aldershot, UK: Ashgate Publishing Limited, 2008). [ISBN 978-0-7546-7521-1.] All page references in parentheses are to this book.
Authors: Soper Philip
Published: July 2016

Making the perspective of insiders critical to a theory of law, including particularly those who accept and enforce legal standards, has been the hallmark of corrections to John Austin’s theory at least since Hart’s The Concept of Law. Burge-Hendrix’s book continues this tradition and brings its insights to bear on the particular dispute between inclusive and exclusive positivists. That being said, the project has always seemed to me to be incomplete. If the participant’s perspective is indeed the critical one, then the recognition that participants make normative claims about the concept of law itself (not just about their legal standards) surely deserves its own proper place in a legal theory. Those normative claims about law range, at the very least, from claims that coercion is (morally) justified to claims of (moral) authority. If these claims turn out to be false in cases of laws that are extremely unjust, then either they are not “laws” at all according to the participants’ own views(in which case the natural law theorists are correct.) Or, participants will have to give up their normative claims about law and recognize that all that counts is pedigree and the power to coerce. In that case, we will be back to Austin’s coercive account of law, and much of the dispute between exclusive and inclusive positivists will be irrelevant.
Legal Theory and Legal Doctrinal Scholarship
Authors: Bódig Mátyás
Published: July 2016

The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It provides a reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the ‘mainstream’ discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. The essay argues that a more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship – by way of providing conceptual and methodological foundations for it. Conceptual legal theory can make a contribution to doctrinal debates by relying on its ability to assess competing doctrinal claims in light of the epistemological characteristics of the legal doctrines in a modern legal system. The mainstream conceptual discourse can also have a vital role in in making sense of the external challenges to legal doctrinal scholarship. Such cionsiderations lead to a criticism of Hartian methodological legal positivism: it is blamed for becoming oblivious of the ways in which the mainstream conceptual discourse is parasitic on the conceptual tensions encountered or even generated by doctrinal scholarship.
Law, Selfishness, and Signals: An Expansion of Posner’s Signaling Theory of Social Norms
Authors: Druzin Bryan
Published: July 2016

Eric Posner’s signaling theory of social norms holds that individuals adopt social norms in order to signal that they have a low discount rate (that is, they value the future more than the present), and are therefore reliable long-term cooperative partners. This paper radically expands Posner’s theory by incorporating internalization into his model (the sense that norms possess some sort of binding quality, an “ought to”). I do this by tethering Posner’s theory to an evolutionary model. I argue that internalization is an adaptive quality that enhances the individual’s ability to play Posner’s signaling game and was thus selected for. The idea that internalization is evolutionarily conditioned is not new; however, linking this to Posner’s theory of discount rate signals is, and doing so offers tremendous explanatory potential.

Part I identifies the limitations of Posner’s purely rational choice approach, argues for the necessity of including internalization, and then proposes a model that does so – what I call the Expanded Signaling Model of Norms (ESM). Part II examines the problems that arise when we embrace such a model. How this model answers some key criticisms plaguing sociobiology is also briefly explored. Part III then examines existing criticisms of Posner’s theory, demonstrating how the Expanded Signaling Model clearly resolves these issues. The paper concludes that incorporating internalization into Posner’s signaling model greatly broadens the explanatory reach of Posner’s theory, providing a measure of clarity and predictability regarding how and why norms are internalized – an important insight, as these beliefs form the normative underpinning to law.
In Defence of Two-Step Balancing and Proportionality in Rights Adjudication
Authors: Panaccio Charles-Maxime
Published: July 2016

Two-step proportionality-balancing [TSPB] has become the standard method for human and constitutional rights decision-making. The first step consists in determining whether a rights-provision has been infringed/limited; if the answer to that first question is positive, the second step consists in determining whether the infringement/limit is reasonable or justified according to a proportionality analysis. TSPB has regularly been the target of some criticism. Critiques have argued that both its ‘two-step’ and ‘proportionality’ elements distort reality by promoting a false picture of rights and constitutional decision-making. This would cause negative moral consequences. This article seeks to defend TSPB against these criticisms and to depict it in a more appropriate and favourable light. First, it is argued that both aspects of TSPB do not have the dire moral consequences that opponents suggest they have. Second, it is argued that TSPB, deploying notions such as burdens, presumptions and prima facie/defeasible propositions, constitutes a valuable framework for public argumentation and authoritative decision-making.
The Limits of Consent and the Law of Assault
Authors: Stewart Hamish
Published: July 2016

In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but thebody– the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can be justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault.

But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem (as he sees it) of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms.
John Austin and Constructing Theories of Law
Authors: Bix Brian H.
Published: July 2016

One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced or perceived by lawyers, judges, and citizens; and since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and Ronald Dworkin’s interpretivism, while they criticize the lack of fit of theories like Austin’s, themselves unapologetically offer characterizations of legal practice that deviate in significant ways from the way most people practice or perceive law. Thus, it appears that many contemporary legal theorists wish to have it both ways: they use the deviations from conventional understandings as grounds for dismissing some theories by other scholars, but forgive or overlook comparable deviations in their own theories. This article explores what general principles can be learned, or developed, regarding when or to what extent deviation from the way law is practiced and perceived can be justified in a theory of the nature of law by other theoretical gains. Additionally, the article considers whether, in light of the proper approach to fit and mistake in theory-construction, Austin’s theory of law might be a more viable alternative than is conventionally assumed.
Austin, Kelsen, and the Model of Sovereignty
Authors: Vinx Lars
Published: July 2016

Hans Kelsen’s critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen’s attack on Austin anticipated the key elements of Hart’s rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin’s conception of sovereignty reveals important differences in purpose and intention between Kelsen’s Pure Theory of Law and Hart’s legal theory. The Pure Theory of Law is animated by an ideal of legality that is alien to purely descriptive jurisprudential approaches in the Hartian tradition.

The article concludes that this difference between Kelsen and Hart merits further exploration and that it might help to show that the Pure Theory of Law is still relevant to contemporary legal theory.
Defending the Case for Liberal Anationalism
Authors: Kostakopoulou Theodora
Published: July 2016

Nationalism appears to be so entrenched in political life and discourse, that its illiberal face is often deemed to be an exception and unfortunate coincidence triggered by international terrorism. Alternatively, it may be depicted as the result of ill-thought policies which can be reversible. In this paper, I argue that liberal nationalism is conceptually flawed and politically illiberal. Illiberal tendencies are an integral part of it and these cannot be corrected by ‘taming’ unruly nationalism or by articulating ‘benign’ adaptations of it. Because the liberal and illiberal faces are interwoven in complex ways, my suggestion is to look far ahead and beyond it. The territory may be uncharted, but a commitment to a pro-human welfare orientation could open the way for separating liberalism from nationalism and aligning the former with critical democratic politics. The challenge, as I see it, is to articulate a liberal anationalism which by affirming equal human dignity and the importance of non-domination could sustain inclusionary and democratic communities.
Emmanuel Melissaris, Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (2009) (Aldershot, UK: Ashgate, 2009) [ISBN 978-0-7546-2542-1] [Ubiquitous Law]. All page references in parenthesis are to this book.
Authors: Donlan Seán Patrick
Published: July 2016

A broad assortment of contemporary approaches to legal and normative complexity have challenged state law’s claim of dominance and exclusivity. In Ubiquitous law: Legal Theory and the Space for Legal Pluralism (2009), Emmanuel Melissaris similarly seeks to ground the ‘legal’ in what he calls ‘shared normative commitments’. As with much ‘legal pluralism’, his focus on normativity rejects long-established conventional concepts of law. Indeed, for Melissaris, state law may not even properly qualify as ‘law’. But understood as a descriptive theory of normativity, the dynamic legal-normative web he outlines has much to recommend it. It is certainly superior to the continuing narrow concentration of jurisprudes on state law and law-like regimes. Less convincing is Melissaris’ prescriptive suggestion, with ‘critical legal pluralists’, that illustrating the degree to which legal-normative reform occurs beyond the state and its laws promises liberation. Shared normative commitments do not necessarily result in popular control as existing social structures and power relationships remain. We may be ensnared rather than emancipated. On the whole, however, Melissaris has made a sophisticated and substantial contribution to our understanding of legal and normative plurality. His book deserves to be widely read.
Original Acquisition and Unilateralism: Kant, Hegel, and Corrective Justice
Authors: Sage N.W.
Published: July 2016

Contemporary Kantians suggest that the original acquisition of property is problematic for Kant’s theory of private law. Kant requires that private law obligations be consistent with the equal freedom of everyone. However, a rule of original acquisition seems to favor the acquirer’s freedom over others’: the acquirer originally obtains property in an unowned object simply by taking control of it, and thus seems to impose obligations on everyone else (to respect the property right) through her own “unilateral” action or choice. This article first addresses proposed Kantian solutions to the supposed “unilateralism” problem, which involve the creation of a “civil condition” of public legal institutions to determine property rights. Such solutions make property rights a matter of distributive justice rather than corrective justice. Moreover, they cannot actually solve the unilateralism problem. But in any event, the supposed “unilateralism” problem is in fact no problem at all for Kant. This is because one person’s original acquisition does not limit others’ “freedom” in the Kantian sense of that term. In this respect Kant’s account of property is equivalent to Hegel’s, which contemporary Kantians have criticized for denying any problem of unilateralism. And both Kant and Hegel’s accounts are fully consistent with a theory that explains property as a matter of corrective, rather than distributive, justice.
The Methodology of Jurisprudence: Thirty Years Off the Point
Authors: Halpin Andrew
Published: July 2016

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.

Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.

A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law's Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz's split theory of legal reasoning and law.
Playing with Hutchinson’s Nonfoundationalism
Authors: Hackett Ben
Published: July 2016

Although we are provided with a clever game of metaphor for the description of adjudication and a rather diverse survey of other jurisprudential theories, Hutchinson fails to provide a distinct, coherent, theory of adjudication. He either overly radicalizes foundationalism or under radicalizes antifoundationalism.
Are Constitutions Legitimate?
Authors: Marmor Andrei
Published: July 2016

This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments which purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.
Hate Speech and Pornography in Canada: A Qualified Deontological Response to a Consequentialist Argument
Authors: Mullender Richard
Published: July 2016

InThe Hateful and the Obscene, Sumner offers a consequentialist reading of John Stuart Mill’s political philosophy that blinds him to the complexity and normative attractions of Canadian law's response to hate speech and pornography. This essay argues that qualified deontological moral philosophy provides a more adequate basis on which to understand the bodies of law examined by Sumner. The qualified deontological analysis is more adequate since it (unlike consequentialism) provides a basis on which to account for the presence within Canadian law of incommensurable values. The analysis offered here also addresses three further weaknesses in Sumner’s text. Sumner offers an inadequate account of the role played by the concept of community in the law’s operations. He also fails to recognise that a strong commitment to identity politics has shaped the development of Canadian law. But perhaps the most significant weakness inThe Hateful and the Obsceneis Sumner’s adoption of a ‘Millian’ position on free expression that fails adequately to address the threats posed by those political activists who seek to undercut liberal democracy's foundations.
A Particle of Freedom: Natural Law Thought and the Kantian Theory of Transfer by Contract
Authors: Dedek Helge
Published: July 2016

Modern contract law theorists frequently invoke Kantian ideas to conceptualize contract as a form of immediate transfer. The Kantian theory of contract itself is eclectic: Kant makes use of the main conceptual building blocks of Natural Law (in particular Grotian) contract doctrine – promise and transfer. Yet Kant re-arranges and adapts them to his own epistemology and conceptual system. I submit that because of this connection, additional light can be shed on Kant’s theory of contract by placing it in the context of contemporary Natural Law discourse. One of the most outspoken critics of contract theory in the Grotian tradition was then famous (and now apocryphal) legal philosopher Theodor Schmalz. Schmalz faulted Natural Law thought for conceptualizing contract as transfer by fallaciously – “subreptively”– explaining the normative event of creating an obligation through the model of the empirical transfer of physical objects. Kant’s theory reads like a response to this critique: Kant avoids modelling contract on the transfer of property. Rather, he explains any transfer as contractual, brought about by a unified will.
A correspondence between maximal abelian sub-algebras and linear logic fragments
Authors: SEILLER THOMAS
Published: July 2016

We show a correspondence between a classification of maximal abelian sub-algebras (MASAs) proposed by Jacques Dixmier (Dixmier 1954.Annals of Mathematics59(2) 279–286) and fragments of linear logic. We expose for this purpose a modified construction of Girard's hyperfinite geometry of interaction (Girard 2011.Theoretical Computer Science412(20) 1860–1883). The expressivity of the logic soundly interpreted in this model is dependent on properties of a MASA which is a parameter of the interpretation. We also unveil the essential role played by MASAs in previous geometry of interaction constructions.
What IAPT CBT High-Intensity Trainees Do After Training
Authors: Liness Sheena , Lea Susan , Nestler Steffen , Parker Hannah , Clark David M.
Published: July 2016

Background:The UK Department of Health Improving Access to Psychological Therapies (IAPT) initiative set out to train a large number of therapists in cognitive behaviour therapies (CBT) for depression and anxiety disorders. Little is currently known about the retention of IAPT CBT trainees, or the use of CBT skills acquired on the course in the workplace after training has finished.Aims:This study set out to conduct a follow-up survey of past CBT trainees on the IAPT High Intensity CBT Course at the Institute of Psychiatry, Psychology and Neuroscience (IoPPN), King's College London (KCL), one of the largest IAPT High Intensity courses in the UK.Method:Past trainees (n= 212) across 6 cohorts (2008-2014 intakes) were contacted and invited to participate in a follow-up survey. A response rate of 92.5% (n= 196) was achieved.Results:The vast majority of IAPT trainees continue to work in IAPT services posttraining (79%) and to practise CBT as their main therapy modality (94%); 61% have become CBT supervisors. A minority (23%) have progressed to other senior roles in the services. Shortcomings are reported in the use of out-of-office CBT interventions, the use of disorder-specific outcome measures and therapy recordings to inform therapy and supervision.Conclusions:Past trainees stay working in IAPT services and continue to use CBT methods taught on the course. Some NICE recommended treatment procedures that are likely to facilitate patients’ recovery are not being routinely implemented across IAPT services. The results have implications for the continued roll out of the IAPT programme, and other future large scale training initiatives.
Household food security and breast-feeding duration among Canadian Inuit
Authors: McIsaac Kathryn E , Stock David C , Lou Wendy
Published: July 2016

Objective

There have been few studies investigating the association between food security and breast-feeding duration and none have been conducted among Canadian Inuit, a population disproportionately burdened with food insecurity. We evaluated the association between household food security and breast-feeding duration in Canadian Inuit children.

Design

Data were obtained from the Nunavut Inuit Child Health Survey, a population-based cross-sectional survey.

Setting

The Canadian Territory of Nunavut in 2007 and 2008.

Subjects

Caregivers of Inuit children aged 3–5 years. Participating children were randomly sampled from community medical centre lists.

Results

Out of 215 children, 147 lived in food-insecure households (68·4 %). Using restricted mean survival time models, we estimated that children in food-secure households were breast-fed for 16·8 (95 % CI 12·5, 21·2) months and children in food-insecure households were breast-fed for 21·4 (95 % CI 17·9, 24·8) months. In models adjusting for social class, traditional knowledge and child health, household food security was not associated with breast-feeding duration (hazard ratio=0·82, 95 % CI 0·58, 1·14).

Conclusions

Our research does not support the hypothesis that children living in food-insecure households were breast-fed for a longer duration than children living in food-secure households. However, we found that more than 50 % of mothers in food-insecure households continued breast-feeding well beyond 1 year. Many mothers in food-secure households also continued to breast-feed beyond 1 year. Given the high prevalence of food insecurity in Inuit communities, we need to ensure infants and their caregivers are being adequately nourished to support growth and breast-feeding, respectively.
I. Gregorian Reform in Action: Clerical Marriage in England, 1050–1200
Authors: Brooke C. N. L.
Published: July 2016

Few men have ever shown a more sublime faith in the divine origin of their mission than the papal reformers of the eleventh century. They set to work with a ‘modest proposal’ to destroy two of the most intimate and powerful foundations of clerical society: they aimed to abolish simony and with it the lay control of patronage; they tried to destroy the family life of the clergy. From one point of view they were doing only what every policeman does—they were trying to enforce the established law. From another point of view their platform was a devastating social revolution. If we may admire the high idealism of Leo IX, Humbert, Hildebrand and Peter Damian, we must also concede that their work had many victims; the legislation of the eleventh-century Popes on clerical marriage must have produced as many broken homes and personal tragedies as the morals of Hollywood. Both Damian the ascetic and Heloise the deserted wife have a claim on our sympathy as historians; and both found their supporters in their own day. Between the unbending demand for the enforcement of celibacy and the view of the Anonymous of York that it was entirely proper for the clergy to be married there were many possible positions. The Anonymous (writing at the turn of the eleventh and twelfth centuries) was propounding opinions already obsolescent; and clerical marriage found few defenders in the middle and late twelfth century. But if the field narrowed, the subtleties of the problem were more fully appreciated. The twelfth century was an age of growing sophistication in lay circles as well as clerical. Nowhere was this more true than in the world of love and of marriage; in that century (whatever the lot of womankind as a whole) the romantic ideal was born, under whose spell we still live. It is the variety and the subtlety of the view-points which give my subject its interest, and also its intractability. Clerical marriage is an exceedingly delicate topic, though it has not always been delicately treated.
II. Great Britain and Poland 1762–72
Authors: Reddaway W. F.
Published: July 2016

Applied to Britain and the First Partition, Campbell's “unwept” is perhaps misleading. Through five generations, despite much European slandering of the Poles, Britain always condemned Dismemberment. In 1772, when three Great Powers completed that “suicide of the old Europe” which the seizure of Silesia had begun, Burke styled their operations “fatal to the rights of mankind.” In the language of diplomacy, Suffolk's “disagreeable” sounds hardly less emphatic. The First Partition, we must remember, was a blow to France, struck by the group to which Britain looked for allies against the natural enemy. Yet our minister in Poland spoke unequivocally of “all this mischief,” and ascribed it to Frederick, the Satan of those behind the scenes. Voltaire, to whom the persecuting Poles were as odious as the persecuting French, sent Catherine the most ambiguous of congratulations. His heroine, he declared, had undertaken a task more useful and noble even than the expulsion of the Turks—that of destroying anarchy in Poland “en rendant a chacun ce que chacun croît lui appartenir, et en commençant par elle-même.” But Suffolk's official utterance was more pungent still. “Le Roi,” he replied to the ministers of the partitioning Powers,” veut bien supposer que les trois cours sont convaincues de la justice de leurs preventions respectives.”
II. The Marshalsy of the Eyre
Authors: Cam Helen M.
Published: July 2016

The office of Marshal of the Eyre is the subject of at least two interesting cases reported in the Year Books of Edward II. As no account of this Marshalsy appears to exist it seemed worth while to bring together the following particulars, not only for their own sake, but as illustrating the history of a medieval serjeanty. These particulars fall under three heads: the origin and evolution of the office, its tenure and descent, and the functions and activities it involved.
V. The Eastern Crisis of 1840. Extracts from the unpublished papers of Lord John Russell
Authors: Gooch G. P.
Published: July 2016

The following letters (which are selected from the forthcoming Later Correspondence of Lord John Russell, and supplement the documents published by Spencer Walpole) take us behind the scenes of the Melbourne Cabinet during the anxious months of 1840, when the competition of Great Britain and France for hegemony in the Eastern Mediterranean enlarged the struggle of Mehemet Ali and the Sultan from a local into a European problem, and brought the two countries within sight of war. The duel between Palmerston and Thiers was watched with an anxiety which was fully shared by the colleagues of the masterful Foreign Secretary. Lord Holland led the opposition within the Cabinet, and was vigorously supported by Lord Clarendon. Lord Spencer and Lord Lansdowne were also uneasy; and their apprehensions were shared by the Prime Minister who, however, was painfully aware that the resignation of Palmerston would destroy a ministry which had long outlived its popularity.
I. An Early Motive of Roman Imperialism (201 B.C.)
Authors: Griffith G. T.
Published: July 2016

The action of the Roman government in 201 B.C. has probably attracted the notice of every student of ancient history. Within a few months of the treaty of peace with Carthage, the Senate decided that a new war was necessary, a war overseas in the East against an enemy who was not dangerous to Rome at that moment, and who, as is clear to us now, could hardly have become dangerous in the future. Such is the bare statement of the event; and if we knew everything that happened both at Rome and in the East in this critical year the event, no doubt, would no longer be surprising. But, as it is, our knowledge is defective, and perhaps fatally so. One knows that at Rome the charges of the new war made it impossible for the Treasury to pay the interest on the public debt, and that the Roman people was anxious for peace and voted against the first proposal for a war with Macedonia, facts which are in no way surprising when they are regarded as natural consequences of the long war against Carthage; but when they are considered in relation to the new war against Macedonia, they increase our bewilderment rather than diminish it. And the difficulty that is felt by modern historians is not one of modern creation.
I. The Fear of the Orient in the Roman Empire
Authors: Charlesworth M. P.
Published: July 2016

In September of the year 29 B.C. the citizens of Rome saw pass before them one of the most splendid triumphs ever celebrated in their city. In it Caius Julius Caesar Octavianus, the heir and successor of Julius Caesar, now sole master of the Mediterranean world, displayed the spoils he had won from his campaigns in Illyria and Dalmatia, at the battle of Actium, and by the conquest of Egypt. The spectacle must have been gratifying to Roman pride and a fair omen for future security: in the young victor were centred the hopes of the Roman people for external conquest and internal peace. Octavian had now reached the summit of his desires, his word and will appeared all-powerful; yet he was already aware that he was bound to a policy imposed upon him by his own success, and as time went on he became conscious that the very completeness of his victory, though it satisfied immediate demands, presented embarrassing problems for the future. In order to defeat Antony and to secure the necessary support for himself he had utilised a sentiment which had recently grown strong in Rome, and he was now to some extent fettered by the feeling he had aroused. This feeling was a profound fear of the Orient and mistrust of all things Oriental, and Octavian had posed as the champion of Roman manners and institutions, and had thus succeeded in concentrating on himself the enthusiasm of all Italy. He was now committed to this policy; in future years there must be no suspicion of Orientalism whether in government or institutions or religion. And even though Octavian might satisfy his countrymen on this score, he himself found it difficult to throw off the anxiety and embarrassment that the possession of Egypt caused him.
I. The Athenian Democracy and its Critics
Authors: Jones A. H. M.
Published: July 2016

It is curious that in the abundant literature produced in the greatest democracy of Greece there survives no statement of democratic political theory. All the Athenian political philosophers and publicists whose works we possess were in various degrees oligarchic in sympathy. The author of the pamphlet on the ‘Constitution of the Athenians’ preserved among Xenophon's works is bitterly hostile to democracy. Socrates, so far as we can trace his views from the works of Xenophon and Plato, was at least highly critical of democracy. Plato's views on the subject are too well known to need stating. Isocrates in his earlier years wrote panegyrics of Athens, but in his old age, when he wrote his more philosophical works, became increasingly embittered against the political régime of his native city. Aristotle is the most judicial in his attitude, and states the pros and cons, but his ideal was a widely based oligarchy. With the historians of Athens, the same bias is evident. Only Herodotus is a democrat, but his views have not carried much weight, partly because of his reputation for naïveté, and partly because his explicit evidence refers to a period before the full democracy had evolved. Thucydides is hostile: in one of the very few passages in which he reveals his personal views he expresses approval of a régime which disfranchised about two-thirds of the citizens, those who manned the fleet on which the survival of Athens depended. Xenophon was an ardent admirer of the Spartan régime.
I. Clarendon, Coventry, and the Sale of Naval Offices, 1660–8
Authors: Vale V.
Published: July 2016

More than three-quarters of a century have elapsed since the part played by Sir William Coventry (1627–1686) in the government of England under Charles II was first adjudged worthy the attention of political historians of the period. These latter can scarcely be charged with idleness in the interim; but it has been to more prominent men of his time that they have attended, and to their pages Coventry is at best a transient and rather confused visitor. It is natural to wonder why. None of his contemporaries, not even Clarendon, denied him to possess administrative ability of the first order; he occupied for some years, including the critical ones of the second Dutch war, offices of considerable importance; yet his figure remains discernible only within the penumbrae of brighter bodies.
III. The Authorship of the Vindiciae Contra Tyrannos
Authors: Barker Ernest
Published: July 2016

The authorship of the Vindidae has been a vexed question for 350 years, and perhaps it is not likely to be solved. The book belongs, in the main, to a body of Huguenot literature which appeared after 1572 and was concerned with the dangerous question of the right of resistance. A good deal of this literature was sedulously and obstinately anonymous. There was a reason. If a writer advocated resistance, and, still more, if he advocated or even condoned “tyrannicide,” he would be committing himself to something as abhorrent to the general opinion of his age as “Bolshevism”is to the general opinion of ours. If in addition he backed his opinions by his name, and his name were that of a known adherent of the Calvinist cause, he would be committing that cause to certain obloquy and possible danger. He would be trespassing beyond the bounds of cautious and guarded discretion which Calvin had imposed upon himself in this matter: he would be giving to the enemies of Calvinism the very handle which they desired. In these conditions anonymity flourished: pseudonyms were rife; and calculated puzzles were set to baffle future ages. Not only are we confronted by problems of authorship: we have also to face other and lesser problems. Sometimes, for example, the place and the date of publication are falsified. There was indeed a particular reason for such falsification. Printers as well as authors—perhaps even more than authors—had to be wary; and a genuine place and date of publication afforded too easy a clue.
III. Disraeli and Palmerston in 1857, or, the Dangers of Explanations in Parliament
Authors: Temperley Harold , Henderson Gavin B.
Published: July 2016

On 2 December 1854 a treaty was signed between Britain, France and Austria. By this treaty, Britain and France hoped to draw Austria into the Crimean War—Austria, on the contrary, hoped that Russia would be frightened into concessions, and that peace would thus be made without Austrian intervention in the war. There was a powerful pro-Russian party at Vienna; the young Emperor Franz Josef was for a long time unable to make up his mind; and it was only after toilsome negotiations that the tripartite treaty was signed. A decisive factor in Franz Josef's ultimate decision was the Austrian fear of revolutionary intrigue in Italy, backed up by the French. Napoleon III had been the ‘man of order’ since the coup d'état; but this was Only three years ago, and the Austrians feared that Napoleon might not have shed all his Carbonarist leanings. It might therefore be good policy for Austria to risk the growing antagonism of Russia, and enter into treaty engagements with France and Britain, if, in return, France would promise good behaviour in Italy.
II. The Cultural Influence of English Medieval Monasticism
Authors: Knowles David
Published: July 2016

Students of history are well aware of the ambiguity of the term medieval. Although it may be true that for some thousand years, betweenc. 500 andc. 1500 A.D., the social, economic, political and religious life of Western Europe had characteristics easily distinguishable on a broad view from the ancient Greco-Roman civilization that preceded, and from what we call the modern world of nation-states that followed, yet within that millennium the developments are so great, and the changes and declines so numerous, that the careful historian distrusts anything approaching to a general judgment which might confuse century with century, and region with region. Yet in spite of this, many, whose knowledge of the social or artistic life of past ages is very wide, forget such distinctions, and speak readily of the medieval papacy, the medieval village, the medieval craftsman or medieval philosophy, as if each of these expressions denoted a single clear-cut system or institution.
II. Edward I and the Historians
Authors: Templeman G.
Published: July 2016

It is generally recognized that Edward I deserves a high place in the history of medieval England, and it is plain why this should be so. Few medieval kings achieved such undisputed mastery of their dominions as he contrived to do. His statutes set a deep and lasting mark on English law, and he had much to do with the beginnings of Parliament. He conquered Wales, and, as his tomb proclaims, he was the hammer of the Scots. These things have led a great company of scholars, whose number includes men so differently placed in time and circumstance as Polydore Virgil and Sir Maurice Powicke, Fuller and Stubbs, Brady and Hallam, Hume and Tout, to see in Edward an historical figure of outstanding importance. On this, at any rate, they are all agreed. They are, however, far from unanimous in the reasons they find for their judgement, and in the significance they attach to the things he did.
I. Election and Inheritance in Early Germanic Kingship
Authors: Grierson P.
Published: July 2016

Few historical doctrines agreed better with the prejudices of what one may call the romantic-liberal school of historians of the last century than the classical theory of Germanic kingship. In early Teutonic society, according to this theory, there were normally no kings, but in each nation there was a royal race from which kings could be chosen by the ‘folk’ if need arose. ‘Kings’, wrote Tacitus, ‘are chosen by reason of their nobility, dukes because of their good qualities’, and it was assumed that such an arrangement, which so judiciously combined a romantic respect for aristocratic traditions with a democratic element of popular selection, still held good in the epoch of the Barbarian Invasions. More sober historians of a later epoch echoed the enthusiasm of earlier scholars. The king, wrote Kern, ‘possessed a certain hereditary reversionary right, or at least a privileged “throne-worthiness” in virtue of his royal descent. But it was the people who summoned him to the throne with the full force of law, in as much as they chose from among the members of the ruling dynasty either the next in title or the fittest. … What distinguished the king from a freely elected official was his hereditary right to the throne; but this was an hereditary right not of any individual ruler, but of a ruling family…All members of the ruling family are royal’. Bury put it even more clearly. ‘A German state might have a king or it might not, but in either case it was virtually a democracy.… Some of them had kings; any of them might at any moment elect a king; but the presence or absence of a king might almost be described as a matter of convenience, it had no decisive constitutional importance…. But the people who had no king required an executive officer of this kind likewise. Well, they had an officer who was called a graf…. The graf was elected by the assembly, and the assembly might elect anyone they liked. The king was likewise elected by the assembly, but in his case their choice was limited to a particular family, a royal family. In other words, the kingship was hereditary, and the grafship was not. But this hereditary character of the kingship was of a limited kind. When a king died, the office did not devolve on any particular kinsman of his; the sovran people might elect any member of the family they chose; they might refuse to elect any successor at all.
III. The Whig Theory of The Constitution in The Reign of Charles II
Authors: Behrens B.
Published: July 2016

No description of the theory of the constitution which the Whigs Professed in the five years of their existence as a political party in Charles II's reign, can be adequately made except in relation to the position in which they found themselves during this period. For though their view of what the constitution ought to be was to a considerable extent built up on ideas inherited from past ages and especially from the previous half-century, as it was formulated between 1678 and 1683 it was designed to justify a particular set of actions, and to advocate a type of government appropriate to the needs of a group of people at a particular moment.
IV. Macartney in Russia, 1765–67
Authors: Reddaway W. F.
Published: July 2016

Among the blithe adventurers of the eighteenth century, few sur-passed Macartney in the diversity and value of their public service, and none left a fairer name. Whether he was cajoling the Russian premier, or contending with republican patriots in the Irish Parliament, or defying a tenfold force of French in Grenada, or heartening Madras against Hyder Ali, or driving the Dutch from the coast of Coromandel, or facing the pistol of a soldier to whom as Governor of Bengal he had given the lie, or teaching the court of Pekin the merits of his country, or conspiring with Louis XVIII in Italy, or protecting our conquest at the Cape by threatening to blow up the mutinous Tremendous, he was always the same rare man, unflinching, versatile and incorruptible. When, as a gouty veteran of sixty-two, he turned his house at Chiswick into “the resort of every distinguished character,” the Latin verses in which he reviewed his wanderings contained no more mention of Russia than Europaeque plagas fere visimus omnes. Yet he lived to see the work that he had done there contribute, and that perhaps in no small degree, to the fate of Napoleon and of Europe. In 1806, when he died, the dependent empire had not yet made its most conspicuous effort to dispense with British commercial aid. Tilsit had yet to point the way to Borodino. But the fate of Paul I had already hinted at the attitude of the Russian gentry towards a Tsar who challenged the system which Macartney's treaty had confirmed. One great cause of the retreat from Moscow may be discovered in the Anglo-Russian commercial bargain of 1766.
I. Edward I and Adolf of Nassau. A Chapter of Mediaeval Diplomatic History
Authors: Barraclough G.
Published: July 2016

The thirteenth century, like the eighteenth century, was asiècle français. Even Frederick II had failed to eradicate the impression German decline which had found expression after Philip Augustus's victory at Bouvines in 1214. After Frederick II's death in 1250, the Capetian monarchy had used its power, its prestige and its traditions to obtain political predominance in Europe and, indeed, throughout the Mediterranean world. The French monarchy was not, indeed, so firmly established as contemporaries supposed: after 1314 a period of “feudal reaction” set in, which revealed the weaknesses in the political structure the Capetians had built up. But the sudden concentration of French power in the closing years of the thirteenth century, the unity of the country around the throne, and the unanimous support which all classes, nobility, clergy andbourgeoisie, gave to royal policy, not only contrasted markedly with the divergences of interest within England and within Germany, but also gave the Capetian monarchs decisive advantages in their dealings with other governments. French policy, based on Carolingian tradition and directed to the “reintegration” of Gaul, was, by comparison with the mere conservatism of Edward I, positive, clearly defined, and systematically pursued. Unlike English or German policy i t was invigorated by a conscious “ideology”, which found expression not only in the unofficial writings of Pierre Dubois, but also in the official memoranda of Nogaret, Flote and Plaisians, and which had deep roots in French history.3 Because of these advantages, France at this period was the focal point at which all the complex problems of European politics converged: all the wires which statesmen were pulling, passed through Paris. European policy responded or reacted to the policy of France.
II. The Audiencia of New Galicia in the Sixteenth Century
Authors: Parry J. H.
Published: July 2016

Spain at the close of the fifteenth century had just completed a long process of unification, accomplished by a series of crusades, partly national and partly religious in character, within Iberian territory. Pride of race, skill in arms and a truculent missionary Catholicism characterized the ruling elements in the new Spanish state, especially in Castille, the dominant partner of the union. A stern royal discipline controlled the ambitions of the aristocracy. The monarchy was strong, at that time truly national, supreme in both Church and State. Its authority, however, though autocratic, was by no means lawless. Canon and Civil Law, adapted to national needs, existed side by side with jealously guarded localfuerosand the interpretation and reconciliation of masses of conflicting law lay in the hands of a numerous and very powerful legal profession. Spain, indeed, carried over from the age of feudalism into the age of sovereignty the supposedly mediaeval notion of jurisdiction as the essential function of authority. The monarch was still a judge, the chief of judges. His authority was most directly and characteristically represented by the high courts of justice and in the government of his dominions the school-trained lawyer was his most useful servant.