Pub Date : 2023-10-19DOI: 10.1017/s0738248023000445
Willemijn Ruberg
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{"title":"E. Claire Cage, <i>The Science of Proof: Forensic Medicine in Modern France</i> Cambridge: Cambridge University Press, 2022. Pp. x, 237. $110 hardcover (ISBN 9781009198332). doi:10.1017/9781009198356","authors":"Willemijn Ruberg","doi":"10.1017/s0738248023000445","DOIUrl":"https://doi.org/10.1017/s0738248023000445","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135778748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-18DOI: 10.1017/s0738248023000457
William Chester Jordan
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{"title":"Elizabeth Allen, <i>Uncertain Refuge: Sanctuary in the Literature of Medieval England</i> Philadelphia: University of Pennsylvania Press, 2021. Pp. x, 311. $59.95 hardcover (ISBN 978-0-8122-5344-3).","authors":"William Chester Jordan","doi":"10.1017/s0738248023000457","DOIUrl":"https://doi.org/10.1017/s0738248023000457","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135885021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-18DOI: 10.1017/s0738248023000433
Esther Sahle
Abstract Legal centralization in British America was characterized by the passing of arbitration from the community level to the colonial courts. As a consequence, when the 1765 Stamp Act raised the cost of court business, colonists were at a loss for alternatives. This paper addresses the question of why, at this point, colonists did not return to earlier, non-state forms of arbitration. It offers an explanation by providing a detailed empirical study of an alternative American legal forum: the Philadelphia Quaker monthly meeting. While busy arbitrating disputes in the early colonial period, it declined from around 1720. Contrary to what might be expected, this decline was not the consequence of state efforts to marginalize competing institutions. Rather, the local Quaker population abandoned their community legal forum in favor of the public courts. This was likely due to the Quaker court's reliance on reputation-based instruments for enforcement. As Philadelphia's population grew, the meeting's practice of pressuring culprits into compliance through public shaming lost its edge. Accordingly, Friends moved their legal business to the public courts. The paper contributes to the debates on the legal pluralism of empires, the history of arbitration, and state formation in the Atlantic.
{"title":"Legal Pluralism, Arbitration, and State Formation: The Rise and Fall of Philadelphia's Quaker Court, 1682–1772","authors":"Esther Sahle","doi":"10.1017/s0738248023000433","DOIUrl":"https://doi.org/10.1017/s0738248023000433","url":null,"abstract":"Abstract Legal centralization in British America was characterized by the passing of arbitration from the community level to the colonial courts. As a consequence, when the 1765 Stamp Act raised the cost of court business, colonists were at a loss for alternatives. This paper addresses the question of why, at this point, colonists did not return to earlier, non-state forms of arbitration. It offers an explanation by providing a detailed empirical study of an alternative American legal forum: the Philadelphia Quaker monthly meeting. While busy arbitrating disputes in the early colonial period, it declined from around 1720. Contrary to what might be expected, this decline was not the consequence of state efforts to marginalize competing institutions. Rather, the local Quaker population abandoned their community legal forum in favor of the public courts. This was likely due to the Quaker court's reliance on reputation-based instruments for enforcement. As Philadelphia's population grew, the meeting's practice of pressuring culprits into compliance through public shaming lost its edge. Accordingly, Friends moved their legal business to the public courts. The paper contributes to the debates on the legal pluralism of empires, the history of arbitration, and state formation in the Atlantic.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135884389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-16DOI: 10.1017/s0738248023000470
Darren Wan
Yael Berda, Colonial Bureaucracy and Contemporary Citizenship: Legacies of Race and Emergency in the Former British Empire Cambridge: Cambridge University Press, 2022. Pp. 278. Hardcover $91.98 (ISBN 9781316511664). doi:10.1017/9781009053495
{"title":"Yael Berda, <i>Colonial Bureaucracy and Contemporary Citizenship: Legacies of Race and Emergency in the Former British Empire</i> Cambridge: Cambridge University Press, 2022. Pp. 278. Hardcover $91.98 (ISBN 9781316511664). doi:10.1017/9781009053495","authors":"Darren Wan","doi":"10.1017/s0738248023000470","DOIUrl":"https://doi.org/10.1017/s0738248023000470","url":null,"abstract":"Yael Berda, Colonial Bureaucracy and Contemporary Citizenship: Legacies of Race and Emergency in the Former British Empire Cambridge: Cambridge University Press, 2022. Pp. 278. Hardcover $91.98 (ISBN 9781316511664). doi:10.1017/9781009053495","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136114000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-12DOI: 10.1017/s0738248023000408
Eric Eisner
Abstract While every slave state except Louisiana limited free Black testimony in cases involving whites, and most barred it completely, several jurisdictions with slavery, including three in the Upper South—Delaware, Maryland, and D.C.—allowed at least some free Black testimony in cases involving whites at least some of the time. Historians and legal scholars have largely overlooked the phenomenon of free Black testimony in the South, outside of Louisiana. In this article, I argue that courts in the Upper South allowed some free Black testimony in cases involving whites in part because allowing (limited) Black testimony enabled courts to access the truth (slightly) more freely, thereby increasing the law's legitimacy. The exceptions to the general bar against Black testimony in cases involving whites also demonstrate the diversity of legal trends in the antebellum Upper South. In Maryland, the space for free Black testimony shrank. In D.C. and Delaware, it grew. But Southerners long contested the relationship between race and law. Competing pressures to administer a well-functioning legal system and to maintain racial hierarchy exerted force on the white elite. Southern elites, even before the great convulsion of the Civil War, sometimes divided on how best to administer a white supremacist legal regime.
{"title":"Free Black Witnesses in the Antebellum Upper South","authors":"Eric Eisner","doi":"10.1017/s0738248023000408","DOIUrl":"https://doi.org/10.1017/s0738248023000408","url":null,"abstract":"Abstract While every slave state except Louisiana limited free Black testimony in cases involving whites, and most barred it completely, several jurisdictions with slavery, including three in the Upper South—Delaware, Maryland, and D.C.—allowed at least some free Black testimony in cases involving whites at least some of the time. Historians and legal scholars have largely overlooked the phenomenon of free Black testimony in the South, outside of Louisiana. In this article, I argue that courts in the Upper South allowed some free Black testimony in cases involving whites in part because allowing (limited) Black testimony enabled courts to access the truth (slightly) more freely, thereby increasing the law's legitimacy. The exceptions to the general bar against Black testimony in cases involving whites also demonstrate the diversity of legal trends in the antebellum Upper South. In Maryland, the space for free Black testimony shrank. In D.C. and Delaware, it grew. But Southerners long contested the relationship between race and law. Competing pressures to administer a well-functioning legal system and to maintain racial hierarchy exerted force on the white elite. Southern elites, even before the great convulsion of the Civil War, sometimes divided on how best to administer a white supremacist legal regime.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135969935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-12DOI: 10.1017/s0738248023000469
Rebecca Probert
An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.
{"title":"Luke Taylor, <i>Constructing the Family: Marriage and Work in Nineteenth-Century English Law</i> Toronto: University of Toronto Press, 2023. Pp. viii, 411. $90 hardcover (ISBN 978-1-4875-4652-6).","authors":"Rebecca Probert","doi":"10.1017/s0738248023000469","DOIUrl":"https://doi.org/10.1017/s0738248023000469","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135969425","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.1017/s0738248023000391
Danny Orbach, Ziv Bohrer
Abstract Between 1870 and 1945, the Imperial Japanese Army and Navy provided uniquely broad legal protection to subordinates who perpetrated crimes under the orders of military superiors. Legal immunity was provided not only to soldiers who obeyed orders contrary to international law, but also to those who under orders violated domestic standing legislation of the Japanese Army. This gave rise to a so-called “paradox of obedience”: while disobedience among officers was rampant, their subordinates were expected to unquestionably obey their orders, even in rebellion against the Japanese government. This mix of blatant disobedience to the system at large on the one hand, and blind obedience to immediate superiors on the other, was a remarkable feature of the Imperial Japanese armed forces. Drawing on legal codes, court cases and juridic writings, we analyze how this “paradox of obedience” encouraged mutinies as well as atrocities, especially in the 1930s and during the Asia-Pacific War.
{"title":"“Let the Commander Respond”: The Paradox of Obedience in the Imperial Japanese Armed Forces","authors":"Danny Orbach, Ziv Bohrer","doi":"10.1017/s0738248023000391","DOIUrl":"https://doi.org/10.1017/s0738248023000391","url":null,"abstract":"Abstract Between 1870 and 1945, the Imperial Japanese Army and Navy provided uniquely broad legal protection to subordinates who perpetrated crimes under the orders of military superiors. Legal immunity was provided not only to soldiers who obeyed orders contrary to international law, but also to those who under orders violated domestic standing legislation of the Japanese Army. This gave rise to a so-called “paradox of obedience”: while disobedience among officers was rampant, their subordinates were expected to unquestionably obey their orders, even in rebellion against the Japanese government. This mix of blatant disobedience to the system at large on the one hand, and blind obedience to immediate superiors on the other, was a remarkable feature of the Imperial Japanese armed forces. Drawing on legal codes, court cases and juridic writings, we analyze how this “paradox of obedience” encouraged mutinies as well as atrocities, especially in the 1930s and during the Asia-Pacific War.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135199719","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-27DOI: 10.1017/s073824802300038x
Timo Schaefer
Abstract Colonial Latin America had the fame of being a land where lower-class people were forever suing their betters. To Latin America's popular classes, the law was an indispensable instrument for claiming rights, solving conflicts, and advancing interests. Fast-forward to the middle of the twentieth century, however, and Latin American law held a very different fame. The law was now something to be shunned. It was seen as an instrument of power, manipulated by the rich and influential. Public trust in the law was low, and support for alternative forms of justice, high. In comparison with the colonial era, we are faced with a baffling reversal. This article seeks to explain that reversal by elaborating three propositions: (P1) popular trust in the law declined because of the law's increasing formalism, particularly evident in the codification of civil and criminal law over the course of the nineteenth century; (P2) popular trust in the law declined because of the rise of patrimonial capitalism over the period of study; and (P3) popular trust in the law declined because a new generation of social rights became politicized, first under populist, corporatist regimes that arose in the region in the early and mid-twentieth century and then under the region's Cold-War military dictatorships.
{"title":"Why did Latin America Lose Faith in the Law?","authors":"Timo Schaefer","doi":"10.1017/s073824802300038x","DOIUrl":"https://doi.org/10.1017/s073824802300038x","url":null,"abstract":"Abstract Colonial Latin America had the fame of being a land where lower-class people were forever suing their betters. To Latin America's popular classes, the law was an indispensable instrument for claiming rights, solving conflicts, and advancing interests. Fast-forward to the middle of the twentieth century, however, and Latin American law held a very different fame. The law was now something to be shunned. It was seen as an instrument of power, manipulated by the rich and influential. Public trust in the law was low, and support for alternative forms of justice, high. In comparison with the colonial era, we are faced with a baffling reversal. This article seeks to explain that reversal by elaborating three propositions: (P1) popular trust in the law declined because of the law's increasing formalism, particularly evident in the codification of civil and criminal law over the course of the nineteenth century; (P2) popular trust in the law declined because of the rise of patrimonial capitalism over the period of study; and (P3) popular trust in the law declined because a new generation of social rights became politicized, first under populist, corporatist regimes that arose in the region in the early and mid-twentieth century and then under the region's Cold-War military dictatorships.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135537920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-31DOI: 10.1017/s0738248023000366
Maayan Sudai
The rising field of medical jurisprudence in common law from late eighteenth century has led to a rearrangement of authority and epistemic power between lay and expert witnesses, in favor of the latter. Although the law had long relied on testimony from members of the community to establish the legal fact of a person's sex, the legal procedure of fact-making started to rely instead on the opinions of doctors, surgeons, and medical practitioners. This article closely reads medical jurisprudence books, U.S. case law, and U.S. newspapers from the nineteenth century to describe this expansion of medical experts’ authority to establish the legal fact of sex in vague cases. The article describes the spread of medico-legal technics of sex classification in three arenas of U.S. law: the law of marriage and divorce, cross-dressing, and defamation. The practice of legal sex classification was thus absorbed into medical expertise, and the meaning of sex in the law transformed from a socio-physical construct to a medical one. The mid-nineteenth-century decline of medical jurisprudence subsequently pushed the practice of sex classification outside the realm of law and into the jurisdiction of the medical profession, thus leaving sex classification mainly to doctors.
{"title":"The Medico-Legalization of Sex in the Nineteenth-Century United States","authors":"Maayan Sudai","doi":"10.1017/s0738248023000366","DOIUrl":"https://doi.org/10.1017/s0738248023000366","url":null,"abstract":"\u0000 The rising field of medical jurisprudence in common law from late eighteenth century has led to a rearrangement of authority and epistemic power between lay and expert witnesses, in favor of the latter. Although the law had long relied on testimony from members of the community to establish the legal fact of a person's sex, the legal procedure of fact-making started to rely instead on the opinions of doctors, surgeons, and medical practitioners. This article closely reads medical jurisprudence books, U.S. case law, and U.S. newspapers from the nineteenth century to describe this expansion of medical experts’ authority to establish the legal fact of sex in vague cases. The article describes the spread of medico-legal technics of sex classification in three arenas of U.S. law: the law of marriage and divorce, cross-dressing, and defamation. The practice of legal sex classification was thus absorbed into medical expertise, and the meaning of sex in the law transformed from a socio-physical construct to a medical one. The mid-nineteenth-century decline of medical jurisprudence subsequently pushed the practice of sex classification outside the realm of law and into the jurisdiction of the medical profession, thus leaving sex classification mainly to doctors.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44381645","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-17DOI: 10.1017/s0738248023000354
C. D. Deere
In colonial Hispanic America, widows and widowers were in an unfavorable position if their spouse died without a will, only inheriting from them if the deceased left no blood relatives to the 10th degree of kinship. This article examines the extent to which the intestate position of the surviving spouse improved in the new civil codes of the sixteen republics, and how their approaches were influenced by the circulation of ideas. It finds that in all except one the spouse came to be favored over the extended family. If the deceased left children, two approaches developed with respect to the inclusion of spouses: where they obtained an unconditional right to an inheritance share equal to a child, and where their inheriting depended on their relative poverty or need. These reforms took place in concert with the rise of the centrality of the conjugal unit as the focus of affection, loyalty, and responsibilities, and prior to such reforms in Europe. The countries that went furthest in elevating the position of spouses, Venezuela and Argentina, were those most deeply influenced by the ideas and changes fostered by liberalism.
{"title":"Beyond “Death Do Us Part”: Spousal Intestate Succession in Nineteenth-Century Hispanic America","authors":"C. D. Deere","doi":"10.1017/s0738248023000354","DOIUrl":"https://doi.org/10.1017/s0738248023000354","url":null,"abstract":"\u0000 In colonial Hispanic America, widows and widowers were in an unfavorable position if their spouse died without a will, only inheriting from them if the deceased left no blood relatives to the 10th degree of kinship. This article examines the extent to which the intestate position of the surviving spouse improved in the new civil codes of the sixteen republics, and how their approaches were influenced by the circulation of ideas. It finds that in all except one the spouse came to be favored over the extended family. If the deceased left children, two approaches developed with respect to the inclusion of spouses: where they obtained an unconditional right to an inheritance share equal to a child, and where their inheriting depended on their relative poverty or need. These reforms took place in concert with the rise of the centrality of the conjugal unit as the focus of affection, loyalty, and responsibilities, and prior to such reforms in Europe. The countries that went furthest in elevating the position of spouses, Venezuela and Argentina, were those most deeply influenced by the ideas and changes fostered by liberalism.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43379049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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