Pub Date : 2023-08-01DOI: 10.1017/s0738248023000305
Paul D. Halliday
Abstract The essays in this forum demonstrate how attending to the intricacies of documentary practice provides a way to see legal practices over the long haul. Different materials—for instance, paper and palm leaves—manifested different ways of understanding and doing law. But change from one way of doing law to another is sticky; old practices persist alongside new ones. Appreciating this helps us see past apparent ruptures in ways of living brought about by states and empires as they come and go. By looking closely at the routines and physical materials through which law works, we can look past simple binaries: European vs. indigenous; pre-colonial vs. colonial; resistance vs. accommodation; oral vs. literate; manuscript vs. print; paper vs. palm leaf.
{"title":"Persistence of Practice in Law's Parwana and Palm Leaf Empire","authors":"Paul D. Halliday","doi":"10.1017/s0738248023000305","DOIUrl":"https://doi.org/10.1017/s0738248023000305","url":null,"abstract":"Abstract The essays in this forum demonstrate how attending to the intricacies of documentary practice provides a way to see legal practices over the long haul. Different materials—for instance, paper and palm leaves—manifested different ways of understanding and doing law. But change from one way of doing law to another is sticky; old practices persist alongside new ones. Appreciating this helps us see past apparent ruptures in ways of living brought about by states and empires as they come and go. By looking closely at the routines and physical materials through which law works, we can look past simple binaries: European vs. indigenous; pre-colonial vs. colonial; resistance vs. accommodation; oral vs. literate; manuscript vs. print; paper vs. palm leaf.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135003347","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 : 2023-08-01DOI: 10.1017/s073824802300041x
An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
{"title":"LHR volume 41 issue 3 Cover and Front matter","authors":"","doi":"10.1017/s073824802300041x","DOIUrl":"https://doi.org/10.1017/s073824802300041x","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135003344","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 : 2023-08-01DOI: 10.1017/s0738248023000081
Nandini Chatterjee, Alicia Schrikker, Dries Lyna
Abstract Anthropologists and historians have recently underscored the ways in which European colonialism created novel regimes of legality and record-keeping, associated with ambitious and exclusive state-centered claims to both truth and rights, while being inevitably and constantly sucked into eddies of forgery and corruption. However, attention so far has been focused on English/European-language records and the colonial institutions that produced, stored, and deployed them. This has communicated a monolithic sense of power and normativity that unwittingly replicates the aspirations of colonial states. Drawing on eight case studies from in and around South Asia from the eighteenth to the twentieth centuries, we propose instead that the law of empires was rooted in the highly localized, often multilingual, and fragmented bureaucracies that produced its records. Here, historians of pre-colonial Indian regimes join hands with historians of British, Dutch, and French colonialism in order to unearth the genealogies of records written in Bengali, Marathi, Persian, Sinhala, and Tamil, as well as in French, Dutch, and English. This special issue collectively excavates the many layers, regimes, and languages in which legally effective records were produced by imperial regimes in South Asia and its much larger watery penumbra, the Indian Ocean.
{"title":"Paper Empires: Layers of Law in Colonial South Asia and the Indian Ocean","authors":"Nandini Chatterjee, Alicia Schrikker, Dries Lyna","doi":"10.1017/s0738248023000081","DOIUrl":"https://doi.org/10.1017/s0738248023000081","url":null,"abstract":"Abstract Anthropologists and historians have recently underscored the ways in which European colonialism created novel regimes of legality and record-keeping, associated with ambitious and exclusive state-centered claims to both truth and rights, while being inevitably and constantly sucked into eddies of forgery and corruption. However, attention so far has been focused on English/European-language records and the colonial institutions that produced, stored, and deployed them. This has communicated a monolithic sense of power and normativity that unwittingly replicates the aspirations of colonial states. Drawing on eight case studies from in and around South Asia from the eighteenth to the twentieth centuries, we propose instead that the law of empires was rooted in the highly localized, often multilingual, and fragmented bureaucracies that produced its records. Here, historians of pre-colonial Indian regimes join hands with historians of British, Dutch, and French colonialism in order to unearth the genealogies of records written in Bengali, Marathi, Persian, Sinhala, and Tamil, as well as in French, Dutch, and English. This special issue collectively excavates the many layers, regimes, and languages in which legally effective records were produced by imperial regimes in South Asia and its much larger watery penumbra, the Indian Ocean.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135003345","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 : 2023-07-03DOI: 10.1017/s0738248023000317
K. Schumaker
This article examines the enforcement of anti-miscegenation law in Progressive Era Mississippi by focusing on a series of unlawful cohabitation prosecutions of interracial couples in Natchez. It situates efforts to police and punish mixed-race families within the broader legal culture of Jim Crow, as politicians, judges, and district attorneys sought stricter enforcement of morals laws, including those barring interracial cohabitation. This article argues that the historic prerogative of white men to choose their sexual and domestic partners undermined the illegality of interracial marriage. Lynching deterred Black men from cohabiting with white women, but prosecutions for “unlawful cohabitation” did not effectively punish white men and Black women who formed lasting partnerships. This article relies on extensive research in local court records that reveal that prosecutions of white men and Black women often resulted in fines and, in many cases, had little effect on these mixed-race families. In Natchez and elsewhere, eugenic ideologies of “white racial purity” were no match for a patriarchal legal culture that gave white men leeway to ignore the law when it suited them, even amid outward denunciations of miscegenation. In Mississippi, many white men did not view relationships between white men and Black women as a clear threat to white supremacy, creating space for some interracial families to survive into the twentieth century.
{"title":"“Unlawful Intimacy”: Mixed-Race Families, Miscegenation Law, and the Legal Culture of Progressive Era Mississippi","authors":"K. Schumaker","doi":"10.1017/s0738248023000317","DOIUrl":"https://doi.org/10.1017/s0738248023000317","url":null,"abstract":"\u0000 This article examines the enforcement of anti-miscegenation law in Progressive Era Mississippi by focusing on a series of unlawful cohabitation prosecutions of interracial couples in Natchez. It situates efforts to police and punish mixed-race families within the broader legal culture of Jim Crow, as politicians, judges, and district attorneys sought stricter enforcement of morals laws, including those barring interracial cohabitation. This article argues that the historic prerogative of white men to choose their sexual and domestic partners undermined the illegality of interracial marriage. Lynching deterred Black men from cohabiting with white women, but prosecutions for “unlawful cohabitation” did not effectively punish white men and Black women who formed lasting partnerships. This article relies on extensive research in local court records that reveal that prosecutions of white men and Black women often resulted in fines and, in many cases, had little effect on these mixed-race families. In Natchez and elsewhere, eugenic ideologies of “white racial purity” were no match for a patriarchal legal culture that gave white men leeway to ignore the law when it suited them, even amid outward denunciations of miscegenation. In Mississippi, many white men did not view relationships between white men and Black women as a clear threat to white supremacy, creating space for some interracial families to survive into the twentieth century.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48468552","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 : 2023-06-13DOI: 10.1017/s0738248023000275
N. Phillips
This article analyzes how the multidirectional movement of legal and popular printed texts, newspapers, letters, and citizens contributed to the political and legal influence of individual lawyers across the Atlantic. It is based on a case study of leading common law barrister and Whig MP Thomas Erskine (1750–1823). It examines the dissemination of Erskine's legal and political arguments, and other publications in support of freedom of the press and the constitutional importance of trial by jury in libel trials. Erskine's Country Whig politics, key role in the passage of the 1792 Libel Act, and support for American independence were admired by American lawyers, diplomats, and politicians. His disinterested public service as an advocate meant he personified the ideal of a patriot lawyer that underpinned the classical republican model of law, citizenship, and politics on both sides of the Atlantic. Erskine's powerful, often emotive forensic rhetoric was equally admired as part of a shared transatlantic legal culture, linking law, politics and literature. The speeches were reprinted and widely circulated in edited collections, texts on oratory, trial reports, newspapers, and periodicals; key arguments were also referenced in legal treatises on libel. Hence, parts of his most significant speeches in English libel trials came to be regarded as “usable” legal texts studied by students and re-cited by American defense lawyers in court.
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Pub Date : 2023-06-09DOI: 10.1017/s0738248023000184
I. Shahar, Karin Carmit Yefet
The paper addresses the perpetual discontent evoked by the concept of legal pluralism, one which, in turn, brings about incessant efforts to “rethink” it. We suggest that one of the sources of this discontent is the erroneous view that legal pluralism is a theory, and the consequent misguided expectations that it should provide scholars of law and society with causal hypotheses and explanations. We argue that legal pluralism is not a theory but a research perspective, and, as such, is not meant to provide us with explanatory propositions, but rather to increase our awareness of the plurality and inter-relationality of socio-legal spheres and of the implications thereof. We further identify—and briefly discuss—the four core principles of a pluri-legal perspective: plurality, relationality, power, and agency. Taken together, these four premises constitute a manifesto of sorts for a pluri-legal perspective.
{"title":"Rethinking the Rethinking of Legal Pluralism: Toward a Manifesto for a Pluri-Legal Perspective","authors":"I. Shahar, Karin Carmit Yefet","doi":"10.1017/s0738248023000184","DOIUrl":"https://doi.org/10.1017/s0738248023000184","url":null,"abstract":"\u0000 The paper addresses the perpetual discontent evoked by the concept of legal pluralism, one which, in turn, brings about incessant efforts to “rethink” it. We suggest that one of the sources of this discontent is the erroneous view that legal pluralism is a theory, and the consequent misguided expectations that it should provide scholars of law and society with causal hypotheses and explanations. We argue that legal pluralism is not a theory but a research perspective, and, as such, is not meant to provide us with explanatory propositions, but rather to increase our awareness of the plurality and inter-relationality of socio-legal spheres and of the implications thereof. We further identify—and briefly discuss—the four core principles of a pluri-legal perspective: plurality, relationality, power, and agency. Taken together, these four premises constitute a manifesto of sorts for a pluri-legal perspective.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42699005","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 : 2023-06-09DOI: 10.1017/s0738248023000172
Caroline Humfress
This article interrogates the concept of legal pluralism, as it currently tends to function within contemporary legal and historical scholarship. It argues that the concept of legal pluralism cannot ‘liberate’ positivist analytical legal theory from monist (municipal, state-centric, etc.) straightjackets, but rather itself presumes the primacy of centralized state-issued law—at the same time as masking that primacy within a pluralist discourse. The concept of legal pluralism should be properly understood—and analyzed—as part of the mythology of modern law, not as an alternative to it. The first two sections develop this argument via a critical tour of legal-pluralist historiography, focusing on 1986 to the present day. The final section then moves on to explore what is at stake for the pre-modern historian when they apply (modern) concept(s) of legal pluralism to try to explain the multiplicity of legal orders that they invariably encounter in their own source material.
{"title":"Legal Pluralism's Other: Mythologizing Modern Law","authors":"Caroline Humfress","doi":"10.1017/s0738248023000172","DOIUrl":"https://doi.org/10.1017/s0738248023000172","url":null,"abstract":"\u0000 This article interrogates the concept of legal pluralism, as it currently tends to function within contemporary legal and historical scholarship. It argues that the concept of legal pluralism cannot ‘liberate’ positivist analytical legal theory from monist (municipal, state-centric, etc.) straightjackets, but rather itself presumes the primacy of centralized state-issued law—at the same time as masking that primacy within a pluralist discourse. The concept of legal pluralism should be properly understood—and analyzed—as part of the mythology of modern law, not as an alternative to it. The first two sections develop this argument via a critical tour of legal-pluralist historiography, focusing on 1986 to the present day. The final section then moves on to explore what is at stake for the pre-modern historian when they apply (modern) concept(s) of legal pluralism to try to explain the multiplicity of legal orders that they invariably encounter in their own source material.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48256762","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 : 2023-06-01DOI: 10.1017/s0738248023000147
L. Benton, A. Clulow
Challenging the common assumption that legal misunderstanding was pervasive, this article analyzes jurisdictional politics as an element of “interpolity law”—a broad framework for legal interactions across polities and regions in the early modern world. It draws on recent research on jurisdictional politics to show how such an approach allows historians to avoid some of the familiar pitfalls associated with studies of legal pluralism. This approach provides clear methodological advantages over the study of global legal history as a function of multi-normativity. Political communities across the globe centered on internal and external conflicts on the nature and reach of legal authority. By focusing on jurisdiction as a touchstone of legal action and tracing how legal authority was produced through conflict, our approach treats legal pluralism as a valuable descriptive term rather than an analytical framework. The study of jurisdictional politics portrays state authority as potentially one among many forms of legal authority, and it brings into sharp focus continuities within and across pluri-political regions. By tracking broad institutional shifts that occurred when empires and states moved to assert power over multi-jurisdictional orders, the perspective informs new narratives about trajectories of regional and global legal order.
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Pub Date : 2023-05-26DOI: 10.1017/s0738248023000135
C. Ando
Numerous Roman grants to local communities of the right to use local law survive in contemporaneous copies starting in the second century BCE. Contemporaneous with these grants of autonomy, Rome urged institutional changes that reconstituted local elites as aristocracies of office. By contrast, evidence that individuals identified themselves as experts in local law survives in bulk only starting in the second century CE. The paper urges that the superimposition of Roman courts as courts of the second instance created a role in local polities for expertise in local law in mediation with these Roman courts, and that local elites sought to monopolize this role and the technocratic prestige that it brought.
{"title":"The Rise of the Indigenous Jurists","authors":"C. Ando","doi":"10.1017/s0738248023000135","DOIUrl":"https://doi.org/10.1017/s0738248023000135","url":null,"abstract":"\u0000 Numerous Roman grants to local communities of the right to use local law survive in contemporaneous copies starting in the second century BCE. Contemporaneous with these grants of autonomy, Rome urged institutional changes that reconstituted local elites as aristocracies of office. By contrast, evidence that individuals identified themselves as experts in local law survives in bulk only starting in the second century CE. The paper urges that the superimposition of Roman courts as courts of the second instance created a role in local polities for expertise in local law in mediation with these Roman courts, and that local elites sought to monopolize this role and the technocratic prestige that it brought.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46139581","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 : 2023-05-10DOI: 10.1017/s0738248023000159
Emanuele Conte
This paper considers the historical contexts in which theories of legal pluralism grew and developed between the final third of the nineteenth century and the first half of the twentieth century. Theories of the state as a pluralistic system, as opposed to the absolute supremacy of state-made law, were the focus of German legal historical scholarship in the late nineteenth century, represented by the towering figure of Otto von Gierke. Gierke's image of a pluralist German Middle Ages largely influenced legal scholarship in Europe, even affecting the Italian scholar Santi Romano, whose book on the “legal order” has been considered a milestone in the construction of pluralist legal theories. Once passed from a legal historian like Gierke to a theorist like Romano, the model of a pluralist legal order returned to legal historiography, inspiring the innovative historical interpretation of medieval law proposed by Francesco Calasso. Gierke was a conservative, right-wing socialist, and Romano was a fascist and counselor of the fascist Italian government. Calasso, on the contrary, was a liberal opponent of the fascist regime. The three versions of legal pluralism, then, decline the same basic vision in three different ways, being influenced by the political contexts in which the three authors operated.
本文考察了法律多元主义理论在19世纪最后30年至20世纪上半叶之间成长和发展的历史背景。将国家作为一个多元体系的理论，与国家制定的法律的绝对霸权相对立，是19世纪晚期德国法律历史学术研究的焦点，以奥托·冯·基尔克(Otto von Gierke)为代表。基尔克对多元主义的德国中世纪的形象在很大程度上影响了欧洲的法学研究，甚至影响了意大利学者圣蒂·罗马诺(Santi Romano)，后者关于“法律秩序”的著作被认为是多元主义法学理论建设的里程碑。一旦从像吉尔克这样的法律史学家传到像罗马诺这样的理论家那里，多元法律秩序的模式就回到了法律史学，并激发了弗朗西斯科·卡拉索对中世纪法律的创新历史解释。基尔克是保守的右翼社会主义者，罗马诺是法西斯主义者和意大利法西斯政府的顾问。相反，卡拉索是一个反对法西斯政权的自由主义者。因此，受三位作者所处的政治环境的影响，法律多元主义的三个版本以三种不同的方式否定了相同的基本愿景。
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