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":" ","pages":""},"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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Pub Date : 2023-05-03DOI: 10.1017/s0738248023000160
T. Herzog
This text takes issue with how present day debates regarding legal pluralism affect our vision of the past, as well as limit the horizons of possibilities in the future. It suggests that the genealogy of these debates determined what would be seen, and what ignored, and that, as a result, it has privileged some aspects, while forgetting the importance of others.
{"title":"The Uses and Abuses of Legal Pluralism: A View from the Sideline","authors":"T. Herzog","doi":"10.1017/s0738248023000160","DOIUrl":"https://doi.org/10.1017/s0738248023000160","url":null,"abstract":"\u0000 This text takes issue with how present day debates regarding legal pluralism affect our vision of the past, as well as limit the horizons of possibilities in the future. It suggests that the genealogy of these debates determined what would be seen, and what ignored, and that, as a result, it has privileged some aspects, while forgetting the importance of others.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47442462","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 : 2023-05-01DOI: 10.1017/S073824802300007X
Cynthia Farid
Abstract This paper argues the Government in Exile (GIE), the first government of independent Bangladesh, played an important role in framing the founding moment in legal terms. The GIE's constitutional warfare through its adherence to legalism, and subsequent internationalization of the conflict significantly shaped the independence movement of 1971. The GIE was composed of leaders who were lawyers, economists and other intellectuals who sought refuge in neighboring India. The agency of the founders and their allegiance to constitutional principles catalyzed the founding moment, oversaw the transition to an independent state and ultimately led to a swift adoption of a constitution that endures despite much instability. This national struggle of 1971 also played out in the international arena. In the process, lawyers from the so-called Third World articulated, reshaped, and generated new debates about international legal principles such as sovereignty, territoriality, and self-determination (and criterion for legitimacy of exiled governments)—most of which were considered to be well-settled at the time.
摘要本文认为，孟加拉国独立后的第一个政府——流亡政府(Government in Exile，简称GIE)，在法律框架下的建国时刻发挥了重要作用。民主革命军坚持法家主义的宪法斗争，以及随后冲突的国际化，极大地塑造了1971年的独立运动。GIE由律师、经济学家和其他知识分子组成，他们在邻国印度寻求庇护。国父们的能动性和他们对宪法原则的忠诚，催化了建国的时刻，监督了向独立国家的过渡，并最终促成了一部宪法的迅速通过，这部宪法尽管存在诸多不稳定因素，但仍得以延续。1971年的这场民族斗争也在国际舞台上上演。在这个过程中，来自所谓第三世界的律师们对国际法律原则，如主权、领土和自决(以及流亡政府合法性的标准)进行了阐述、重塑和产生了新的辩论，其中大多数在当时被认为是很好的解决方案。
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Pub Date : 2023-05-01DOI: 10.1017/s0738248023000330
{"title":"LHR volume 41 issue 2 Cover and Front matter","authors":"","doi":"10.1017/s0738248023000330","DOIUrl":"https://doi.org/10.1017/s0738248023000330","url":null,"abstract":"","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"41 1","pages":"f1 - f5"},"PeriodicalIF":0.8,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41757792","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 : 2023-05-01DOI: 10.1017/S0738248023000093
Saumya Saxena, A. McClure
Abstract This special issue brings together scholars from multiple disciplines and with varied research and geographic expertise to study the historical role played by the law in governing the political, social, and cultural life of twentieth-century South Asia. These articles have not emerged in a vacuum, but rather build on an exciting turn in South Asian history that is placing new focus on the legal and constitutional work that accompanied the post-colonial moment. This introduction examines some of the important historiographical and methodological interventions made by scholars working in this field, before outlining the specific themes connecting the articles in this issue.
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Pub Date : 2023-05-01DOI: 10.1017/S073824802200058X
faiz ahmed
Abstract Not long ago, the study of comparative law in U.S. law schools was dominated by North American and European constitutional systems. Thanks to the contributions of a new generation of legal historians, including those canvassed in this special issue, the landscape is changing. In this special issue, scholars of courts and constitutions in twentieth century Afghanistan, Bangladesh, Burma, India, and Nepal have come together to share novel sources, perspectives, and analyses of significant constitutional experiments in the Global South, specifically twentieth century South Asia. This afterword reflects on these important scholarly contributions by highlighting common threads and divergences in the case studies presented in this volume—from the perspective of a legal historian of the late Ottoman Empire and modern Middle East. Ultimately, the author concludes that the articles in this special issue persuasively stamp modern South Asian legal history “on the map” not only for specialists of this large and populous region, but for students and scholars of comparative constitutionalism and global legal history more broadly.
{"title":"Courts and Constitutions in South Asia and the Global South: A View from the Middle East","authors":"faiz ahmed","doi":"10.1017/S073824802200058X","DOIUrl":"https://doi.org/10.1017/S073824802200058X","url":null,"abstract":"Abstract Not long ago, the study of comparative law in U.S. law schools was dominated by North American and European constitutional systems. Thanks to the contributions of a new generation of legal historians, including those canvassed in this special issue, the landscape is changing. In this special issue, scholars of courts and constitutions in twentieth century Afghanistan, Bangladesh, Burma, India, and Nepal have come together to share novel sources, perspectives, and analyses of significant constitutional experiments in the Global South, specifically twentieth century South Asia. This afterword reflects on these important scholarly contributions by highlighting common threads and divergences in the case studies presented in this volume—from the perspective of a legal historian of the late Ottoman Empire and modern Middle East. Ultimately, the author concludes that the articles in this special issue persuasively stamp modern South Asian legal history “on the map” not only for specialists of this large and populous region, but for students and scholars of comparative constitutionalism and global legal history more broadly.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"41 1","pages":"405 - 415"},"PeriodicalIF":0.8,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41789236","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 : 2023-05-01DOI: 10.1017/s0738248023000342
{"title":"LHR volume 41 issue 2 Cover and Back matter","authors":"","doi":"10.1017/s0738248023000342","DOIUrl":"https://doi.org/10.1017/s0738248023000342","url":null,"abstract":"","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":"41 1","pages":"b1 - b2"},"PeriodicalIF":0.8,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42807547","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 : 2023-04-18DOI: 10.1017/S0738248023000068
Leilah Vevaina
Abstract Within India's system of plural personal laws, the rights of women in matters of marriage, divorce, and inheritance are solely based on their natal communal identity. While we see many examples of women appealing to courts to secure or improve their rights vis-à-vis personal laws, marriage outside the community has often occluded these rights completely. Marital property, inheritance, and even access to sacred space are in a gray zone of differentiated rights between natal and marital community customs. One intermarried woman, Goolrukh Gupta, sued the trust that managed the town's sacred space in the High Court to confirm her rights to enter sacred space. The Court ruled that she was removed from her natal community even though she had married under the Special Marriage Act of 1954, as she had “merged personality with her husband.” While British women's property was held under coverture through the nineteenth century, these laws were never transferred over to the Indian colony. Through the legal appeals of intermarried women, this article explores the shifting and unstable rights of intermarried women in India.
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Pub Date : 2023-03-30DOI: 10.1017/S0738248022000542
B. Raman
Abstract From the age of empires to the apartheid regime in South Africa, pass laws have defined the scope of the mobility of subjects by relying on a paper document, the pass. This essay focusses on the pass document to understand the governance of mobility in the Indian ocean. In doing so, it shows how the pass document in its various forms through many centuries in fact, illuminates a form of inter-legal governance through which racialized life came to be constituted via convention and statute.
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