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International audience; The battle of Oudenarde (11 July 1708) is one of the numerous defeats of the end of Louis XIV’s reign. The event seems disconnected from legal history. Yet, several layers of analysis allow to connect the battle to the constitutional systems of the belligerents, as well as to the law of nations. This article treats first the military confrontation of two mass armies, representing rulers from Granada to Königsberg, and the local perception of this sudden foreign military presence, through a satire on ‘French vanity and consternation’. In an ensuing stage, the German allies of Louis XIV and his opponents offer a perspective on the law of the Holy Roman Empire. Finally, the battle in itself being far from decisive, diplomatic manoeuvres announced the blueprint of the agreement that would bring the war to an end in 1713-1714. The interconnectedness of all ‘Theatres of War’ (Italy, Spain, Germany, Low Countries, Scotland) equally transpires in the iconography used in Schenk’s Schouwburg van den Oorlog.; La bataille d’Audenarde du 11 juillet 1708, une des nombreuses défaites françaises de la fin du règne de Louis XIV, semble bien éloignée de l’étude de l’histoire du droit. Pourtant, plusieurs niveaux d’analyse permettent de remonter au droit constitutionnel des belligérants impliqués dans la Guerre de Succession d’Espagne (1701/1702-1713/1714), tout comme au droit des gens. L’article présent traite d’abord le déroulement de l’affrontement entre deux armées de masse, représentant des souverains de Grenade à Königsberg, et la perception locale de ce déferlement de troupes, mise en scène dans une pièce satyrique exposant le ‘Français vantard et consterné’. Ensuite, la présence des alliés allemands de Louis XIV et de ses opposants mène au droit du Saint-Empire Germanique. Finalement, la bataille en elle-même n’étant pas décisive, il est important de souligner que les manœuvres diplomatiques entre les campagnes de 1707 et 1708 annonçaient les contours de l’accord qui a permis en 1713-1714 de terminer une guerre sanglante. Le caractère connecté de tous les « théâtres de la guerre » (Italie, Espagne, Allemagne, Pays-Bas, Ecosse) paraît également dans l’iconographie du Schouwburg van den Oorlog de Schenk.

L’abbé de Saint-Pierre (1658-1743) est un des penseurs les plus étudiés du début du dix-huitième siècle. Son projet « utopique » de paix perpétuelle fut publié pendant le Congrès de paix d’Utrecht (1712-1713), où des plénipotentiaires de diverses puissances européennes mirent fin à la guerre de Succession d’Espagne (1701-1714). Comme le souligne Merle Perkins, les conceptions de Saint-Pierre, comme celles de Hobbes, partaient de la crainte comme fondement de l’ordre social et de la nécessité d’un arbitrage obligatoire. Saint-Pierre croyait en le dépassement de l’état de nature violent. L’élément-clé était la fixation des prétentions juridiques réciproques des souverains, source de querelles. En abandonnant les querelles, l’ « Union européenne » pourrait assurer la « possession tranquille » des souverains. Le contexte diplomatique après la paix d’Utrecht était davantage compatible avec sa proposition que celui du début de la conférence, où Saint-Pierre fustigeait l’équilibre des pouvoirs. La paix était basée sur les renonciations réciproques des principaux prétendants à la succession d’Espagne. Saint-Pierre écrivit l’édition de 1717 de son Projet pour convaincre les diplomates du Régent, qui s’appliquaient à introduire une solution semblable pour les duchés de Parme et de Plaisance, et pour le Grand-Duché de Toscane. Le contexte de la diplomatie de la Régence explique les tentatives de l’abbé de formuler un message crédible, susceptible de convaincre les acteurs de la politique étrangère française. Abbot Saint-Pierre (1658-1743) is one of the most studied early 18th century political thinkers. His “utopian” project of perpetual peace was published during the Utrecht Peace Congress (1712-1713), where plenipotentiaries from various European powers ended the War of the Spanish Succession (1701-1714). As Merle Perkins demonstrated, Saint-Pierre’s conceptions on the state of nature and man’s violent instinct were similar to Hobbes’. Saint-Pierre, by contrast, believed in the possibility to overcome the violent state of nature. The key element here was the freezing of reciprocal legal claims by monarchs, which were always a source of conflict. Leaving quarrels behind, the “European Union” would be able to ensure the “tranquil possession” of sovereigns. The diplomatic context after the Peace of Utrecht was more compatible with his position than his first version (1712), wherein he castigated balance of power-politics. The peace was based on the mutual renunciations by the most prominent pretenders to the Spanish Succession. Saint-Pierre redacted the 1717 edition of his Projet to convince the Regent’s diplomats. Their efforts focused on finding a solution for the duchies of Parma and Piacenza, and the Grand-Duchy of Tuscany. The context of Regency diplomacy explains the attempts of Saint-Pierre to deliver a credible message, able to convince the actors of French foreign policy.

Analysis of the claims of Philip V of Spain on the throne of France after 1713 and his peculiar position in the struggle for the succession of the composite Habsburg monarchy from 1700 to 1725.

Analysis of legal argumentation in the quarrel around the renunciation vows of Philip V of France with regards to his right of succession to the throne, read together with diplomatic and treaty developments in the early 18th century. Present-day public international law concepts can be deemed useful to understand both sides of the medal.

Straipsnyje nagrinėjami LDK viešosios teisės istorijos tyrimų metodologiniai pagrindai, aptariama LDK viešosios teisės istorijos tyrimų spragos ir jų šalinimo perspektyvos, kaip alternatyva tradicinei LDK teisės vientisumo doktrinai pateikiama pliuralistinė tos teisės vizija. In the article methodological bases of research of history of public law of Lithuania to the end of 18th century are examined, problems of study of history of public law and methods of solution are discussed. As the alternative of that existing doctrine is proposed the pluralistic concept of Lithuanian public law – in the same territory there were many alternative systems, each of which had their public and private law. The first level of studies is a study of law of individual corporations and associations. The second level is comparative analysis of these laws for the purpose of obtaining general signs. The third level is further generalization for the purpose of obtaining a general characteristic of Lithuanian public law to the end of the 18th century. The sociological theory of law must become methodological basis of these studies. Research must be carried out in the context of history of the Western legal tradition. It must widely be used the methods of comparative jurisprudence. The history of public law can be considered as the sequential change of three types of the law – ancient (existed in Lithuania to 1387), medieval (1387–1918) and modern (since 1918).

The Flawed Energetic Executive Model In the late summer of 2013, President Barack Obama seemed poised to order U.S. military action against Syria without congressional authorization. Obama "apparently [felt] the need to follow through on his threat" to use military force against the Assad regime if it used chemical weapons in the Syrian civil war (Cole 2013). However, following criticism from more than 150 legislators who insisted that congressional authorization was constitutionally required, President Obama changed course and asked Congress to authorize military action in Syria. John Yoo argued that the president's decision to seek congressional authorization was a mistake (Yoo 2013). In Yoo's view, President Obama had constitutional authority to act without congressional approval. (1) Yoo claimed that "the Framers did not lodge the war power solely with Congress ... [because] [legislatures are slow--Congress will not vote on the [Syria] authorization until the second week of September ... They [members of Congress] do not act with unity, secrecy, and speed" (Yoo 2013). Yoo worried that, because Obama had chosen not to act promptly and unilaterally, "[i]t seems likely that [Bashar al-] Assad will learn everything he needs to know about our tactics, strategy, and political will from a lengthy legislative debate" (Yoo 2013). As it turned out, however, Congress never voted on legislation to authorize the use of military force against Syria, and the United States did not take military action against the Assad regime. (2) After President Obama asked Congress for approval, the crisis was resolved through diplomacy when Russia brokered a deal that would eliminate Syria's chemical weapons arsenal (Walsh and Labott 2013). Yoo's concern that Obama had made a mistake by asking Congress to weigh in on the question of using military force against the Assad regime was based on a misconceived and constitutionally illegitimate energetic executive model of presidential power. By the energetic executive model, we mean the claim that Alexander Hamilton believed it was necessary to vest war power in one person, the president, who could order the military to act quickly and decisively in the name of national security. Yoo and other proponents of this energetic executive model are misreading both Hamilton's writings and the Constitution itself. When Hamilton spoke of energy in the executive, he did not mean that the president had plenary power over the use of military force, and even if Hamilton had meant this, the Constitution clearly rejects concentration of war power in the hands of the president. The energetic executive model is similar to the baseless sole organ doctrine of exclusive presidential control over foreign affairs (Fisher 2007). Each creates an illusion of legitimacy that depends on taking remarks by prominent figures in the history of public law (Hamilton for the energetic executive, John Marshall for the sole organ doctrine) wholly out of context to support a vision of presidential power that neither man intended and the Constitution expressly rejects. Both the energetic executive and sole organ theories seek to claim legitimacy through seemingly authoritative sources--for the energetic executive, an Office of the Legal Counsel (OLC) memorandum, and for the sole organ, dicta in a Supreme Court opinion (United States v. Curtiss-Wright Export Corp. 1936; Yoo 2001). But, on closer examination, these seemingly authoritative precedents are based on misreadings of the primary sources. Like the sole organ doctrine, the energetic executive model needs to be debunked and exposed as a fallacy. The energetic executive model associated with Yoo and other advocates of plenary executive power fails, both as a matter of law and of policy. It fails as a matter of law because, as Hamilton himself recognized, the Constitution squarely rejects unilateral presidential military action outside of the limited context of an emergency defensive response to a sudden attack (Adler 2010, 537; Fisher 2013, 8; Kassop 2015, 164). …

Justice Imperiled: The Anti-Nazi Lawyer Max Hirschberg in Weimar Germany, by Douglas G. Morris. Ann Arbor: University of Michigan Press, 2005. 443. pp. $35.00. Douglas G. Morris, very much like his subject, the Weimar-era German lawyer Max Hirschberg, is a practicing big-city criminal defense lawyer with a significant sideline as a scholar. His somewhar unusual background contributes to the success of this study of a lawyer ar work and helps make this carefully researched and lucidly written book a very valuable addition to our knowledge of law and the administration of justice in the Weimar Republic. This knowledge remains surprisingly patchy. We know a lot about the jurisprudential dispures of the 1920s and early 1930s, as a wide range of legal scholars, philosophers, and historians on both sides of the Atlantic continue to be fascinated with Weimar constitutionalism, and with the profound disputes about the fundamental nature of law for which the Republic's troubled politics created especially fertile ground (See inter alia Michael Stolleis, A History of Public Law in Germany 1914-1945, trans. Thomas Dunlop [2004J; Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: TIk TIKory and Practice of Weimar Constitutionalism [1997]; Arthur J. Jacobson and Bernhard Schlink, eds., Weimar: A Jurisprudence of Crisis [2000]); Manfred Gangl, ed., Linke Juristen in der Weimarer Republik [2003]). We know a little about the practical politics of law and the legal profession in Weimar (Kenneth F. Ledford, From General Estate to Special Interest: German Lawyers 1878-1933 [1996]; Robert Kuhn, Die Vertrauenskrise der Justiz [1926-1928]: Der Kampf um die Republikanisierung der Rechtspflege in der Weimarer Republik [1983]; Tilmann Krach, Judische Rechtsanwalte in Preusen: Uber die Bedeutung der freien Advokatur und ihre Zerstorung durch den Nationalsozialismus [1991]). But of the actual conduct of criminal trials, even the overtly political, let alone the unpolitical, we know very little; and despite the colorful personalities and contemporary fame of many members of the Weimar bar, biographies of lawyers are few, and good ones even fewer. Thus a scholarly biography of an important lawyer which pays careful attention to the hows and whys of his cases fills a major gap. Hirschberg was born in Munich in 1883 and grew up a rather characteristic product of the Imperial German Bildungsburgertum, idealistic, cultivated, and perhaps naive in equal measures. Hirschberg was never especially religious, and Morris suggests that Hirschberg's Jewish background was important only in contributing to a sense of separateness that he carried throughout his life (p. 19) - and, of course, in providing one ground for his flight from Germany after the Nazis came to power. Hirschberg opened a legal practice in Munich in 191 11 but as Morris shows, it was the First World War, in which Hirschberg served as a front line officer, and even more the revolutionary turbulence of post-war Munich, that shaped his political outlook (social democratic) and gave him a sense of political mission. After flirting with a formal political career, Hirschberg decided that he could most effectively contribute to a democratic Germany through his legal practice. …

M E M O RY," MICHEL FOUCAULT has argued, "is actually a very important factor in struggle... . If one controls people's memory, one controls their dynamism.... It is vital to have possession of this memory, to control it, administer it, tell it what it must contain."' Recognition of this relationship between memory and political practice was by no means absent in France at the end of the Old Regime. Indeed, it was explained to Louis XVI on his accession-and with disarming simplicity-by one of the crown's most enlightened and innovative ministers, Henri Bertin. "The history and public law of a nation are based on the records," Bertin instructed his sovereign

The approaching bicentennial of the Constitution promises to stimulate interest in scholarship on the history of American law. This prospect coincides with what many practitioners of constitutional history consider to be a genuine crisis in their field-a crisis that recently inspired the program committee of a major scholarly organization to feature the theme "Is Constitutional History Dead?" in preparing its annual meeting.' The essence of the field's problem, as many contend, is that scholarly interest in the traditional core of constitutional history-the doctrines and behavior of courts-has been overshadowed during the last two decades by a distinctly different mode of investigation, one that is often termed the "new legal history." My contention is that, while some troubles do beset the field of constitutional history, there is little reason to proclaim or even seriously debate the "death" of that field. The new legal history, taking the whole legal system as its province and stressing the interactions of change in law with socioeconomic developments, offers perspectives on American history in many vital respects different from the perspectives of constitutional history; yet the two approaches are necessarily complementary both in their logical structures and in their evidentiary bases. Only by integrating their concerns can the full context and significance of change in American legal history be understood. Harry N. Scheiber is professor of law at the University of California, Berkeley. He acknowledges with thanks research support provided by a humanities fellowship of the Rockefeller Foundation. 'This pessimistic session title was adopted by the American Society for Legal History program committee in the planning for the fall 1980 annual meeting. When the final program was prepared, however, the more cautious title "The Crisis in American Constitutional History and Public Law" was adopted. No creation of a straw man was intended; the validity of each title was seriously debated. As to rising interest in constitutional history vis-A-vis the bicentennial: Project '87 has pursued a program of research fellowships and public and scholarly conferences; an encyclopedia of the Constitution, funded by National Endowment for the Humanities, has been announced under the editorship of Leonard W. Levy and Kenneth Karst; and the American Historical Associa