Monday, November 10, 2008

Private Law Models for Public Law Concepts

How did I miss this over the summer? An excellent article on a number of intersecting important topics.

Daniel Lee, "Private Law Models for Public Law Concepts: The Roman Law Theory of Dominium in the Monarchomach Doctrine of Popular Sovereignty," The Review of Politics (2008), 70:370-399

The essay traces the juridical origins of the modern doctrine of popular sovereignty as developed by the monarchomach jurists of the late sixteenth century. Particularly, the use of doctrines from the Roman law of property explains the sovereign right of the people to resist and reconstitute the commonwealth. Reviving the civilian concept of dominium during the French Wars of Religion and dynastic royal politics, these radical jurists articulated the claim that the people, not kings, have property rights over the commonwealth. By conceptualizing the people corporately as property-owners in this way, they were able to draw on legal arguments from Roman law to justify popular resistance as an assertion of a corporate property right. In doing so, the monarchomachs expressed an elaborate theory of state and sovereignty within the grammar of the Roman private law.