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Summary

In The King’s Two Bodies, Ernest Kantorowicz explores the fusion of corporate office with the private person occupying this office, considering the historical and legal issues within this topic. Kantorowicz, however, was also to fuse his ongoing study of the past with his own office as professor in his refusal to sign the oath of loyalty requested by the University of California regents, 1949. Kantorowicz’s intellectual life as a medieval historian informed his decision not to sign the oath – in contrast to his Berkeley colleague, the Renaissance scholar, Leonardo Olschki. This example shows not only how one fashions one’s scholarly work, but how one is, perhaps on the deepest level, fashioned by the working out of one’s mental life. This chapter also considers how Kantorowicz incorporated pivotal concepts from his past, in this case, the notion of sovereignty from Carl Schmitt.

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analysed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.

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Chapter 3 - Ernst Kantorowicz, Carl Schmitt, and the University of California Regents

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The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought: Review Essay of Gideon Sapir, Daphne Barak-Erez and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart Publishing 2013)

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Chapter 3 - Ernst Kantorowicz, Carl Schmitt, and the University of California Regents

Summary

The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought: Review Essay of Gideon Sapir, Daphne Barak-Erez and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart Publishing 2013)