Wednesday, January 23, 2019

European or Global? Secular or Religious? How (Some) European Jurists Re-Consider their Past

Recently, I returned from a visit to the Max Planck Institute for European Legal History in Frankfurt (, where several groups are working simultaneously to re-cast European legal history. Rather than thinking about Europe in isolation, rather than insisting on law as a secular affair, members of these groups interrogate the processes that led European law to expand overseas, as well as the way religion contributed to this expansion. They ask: What would happen to European law if we observed it from a global perspective? If we considered not only its accomplishments (rule of law, constitutions, democracy, etc.) but also its other legacies (empire, slavery, violence, and so forth)?[1] If we focused on the entanglements between law, religion, and morality?

With study groups centered on “Legal Transfer in the Common Law World”, “European Normative Orders in Ibero-America,” “Governance of the Universal Church after the Council of Trent,” “The Legal History of the School of Salamanca,” or “Translations and Transitions: Legal Practice in 19th Century Japan, China, and the Ottoman Empire,” this re-thinking follows several paths. 

(1)   It interrogates the spaces that scholars need to study if they are to understand the history of European law. In tune with existing affirmations that Europe was an idea rather than a continent and that its meaning and extension constantly mutated, they suggest that historians of European law should modify the scope of their analysis. The appropriate scope could cover from Rome to the Mediterranean, further west to Latin-Christendom, North to England and Scandinavia, and across Oceans to Africa, Asia, and the Americas.

(2)   It asks about the consequences of the encounter between Europeans and other legal cultures. Rather than posing a West vs. the Rest, or engaging in, dismissing, or criticizing Eurocentrism, the aim is to understand how interactions between European and non-European norms changed both. Change and endurance are important in this regard but looking at European law elsewhere also has important methodological underpinning. European response to the “other,” scholars at the Max Planck argue, can tell us a great deal about European law. It allows to perceive its rigidity on occasions, malleability on others, and helps identifying its core principles as well as their potentialities. In other words, the main question we should ask is not whether European law was indeed universal (or potentially universal) as some Europeans have argued, but which parts of it survived the transfer outside Europe, what was lost, what changed, and how.  
(3)   If enlarging the research on European law to less-than-usual suspects is important, research at the Max Planck also reminds us that as important is to ask, “what is law.” Rather than assuming that law was a secular affair, the research agenda followed in Frankfurt recognizes the centrality of religion by integrating to the study of European law canon law and moral theology and by re-evaluating the contribution of the church to the dissemination of juridical ideas. One emblematic way they do so is by insisting on the importance of pragmatic literature, that is, the non-juridical literature that inculcated normative conduct ([2]  Drawing our attention to less-than- conventional sources for legal history, it observes what practitioners published but also the contents of popular works, as well as works of moral theology, confessionaries, and the like. The working assumption is that these types of sources, mostly ignored, contributed greatly not only to disseminate legal ideas, not only to vulgarize them (as they are often viewed) but also to develop and enrich European legal tradition.

[1] Thomas Duve. “Global Legal History: Setting Europe in Perspective.” In Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey (eds.). Oxford Handbook of European Legal History. Oxford: Oxford University Press, 2018, 115-140. This transformation began in 2009 after Thomas Duve was named director of the Institute. The Max Plank has this amazing system: The Society identifies individual scholars and names them directors of an institute, giving them space, funding, and administrative support to hire scholars and develop their own intellectual agenda, the only condition being that they innovate. 
[2] The results of this project will soon be published in a new Open Access book series with Brill Publishers, titled Max Planck Studies in Global Legal History of the Iberian Worlds.

Slauter on copyright

Out this month with Stanford University Press is Who Owns the News? A History of Copyright by Will Slauter, Université Paris Diderot. From the press:
Cover of Who Owns the News? by Will SlauterYou can't copyright facts, but is news a category unto itself? Without legal protection for the "ownership" of news, what incentive does a news organization have to invest in producing quality journalism that serves the public good? This book explores the intertwined histories of journalism and copyright law in the United States and Great Britain, revealing how shifts in technology, government policy, and publishing strategy have shaped the media landscape. 
Publishers have long sought to treat news as exclusive to protect their investments against copying or "free riding." But over the centuries, arguments about the vital role of newspapers and the need for information to circulate have made it difficult to defend property rights in news. Beginning with the earliest printed news publications and ending with the Internet, Will Slauter traces these countervailing trends, offering a fresh perspective on debates about copyright and efforts to control the flow of news.
Praise for the book: 

 "This history of the idea and practice of trying to control news by treating it as intangible property is an important and hugely timely work—brilliantly researched and presented with real sophistication." —Lionel Bently

"Who Owns the News? is a meticulous and fascinating history of attempts over four centuries to copyright news, but it is also much more than that. Will Slauter has given us a commercial history of journalism, which demonstrates that news is a public good that always needs to be embedded in a set of favorable arrangements in order to survive. It is a useful corrective to today's bromides about the promise of new forms of market support for news, at a time when its economic base has severely eroded." —Nicholas Lemann

"A gripping tale, mixing the high principle of Supreme Court opinions with the low subterfuge of editors concocting fake news to expose pilfering rivals. At a moment of peril for both the news industry and the culture that depends on it, there could be no better demonstration of our need for a historical perspective on the most pressing issue of our time." —Adrian Johns

Further details are available here.

Ferguson on Ottoman administrative discourses

Heather L. Ferguson, Claremont McKenna College, has published The Proper Order of Things: Language, Power, and Law in Ottoman Administrative Discourses with Stanford University Press. From the publisher: 
Cover of The Proper Order of Things by Heather L. FergusonThe "natural order of the state" was an early modern mania for the Ottoman Empire. In a time of profound and pervasive imperial transformation, the ideals of stability, proper order, and social harmony were integral to the legitimization of Ottoman power. And as Ottoman territory grew, so too did its network of written texts: a web of sultanic edicts, aimed at defining and supplementing imperial authority in the empire's disparate provinces. With this book, Heather L. Ferguson studies how this textual empire created a unique vision of Ottoman legal and social order, and how the Ottoman ruling elite, via sword and pen, articulated a claim to universal sovereignty that subverted internal challengers and external rivals. 
The Proper Order of Things offers the story of an empire, at once familiar and strange, told through the shifting written vocabularies of power deployed by the Ottomans in their quest to thrive within a competitive early modern environment. Ferguson transcends the question of what these documents said, revealing instead how their formulation of the "proper order of things" configured the state itself. Through this textual authority, she argues, Ottoman writers ensured the durability of their empire, creating the principles of organization on which Ottoman statecraft and authority came to rest.
Praise for the book: 

 "The Proper Order of Things invites us to rethink Ottoman empire-building with its capacity to codify, categorize, and monopolize symbolic violence. A brilliant book." —Ali Yaycioglu

"The Proper Order of Things offers an ambitious treatment of Ottoman bureaucratic textual production. Heather Ferguson's intelligent discursive analysis of the different bureaucratic genres as both texts and spatial practices allows for a new understanding of the nature of Ottoman governance and the longevity of the empire." —Dana Sajdi

Further information is available here.

Monday, January 21, 2019

ASLH ISO: Warren Court Panelists

Although LHB readers ISO others for ASLH panels should feel free to leave comments on this post, we're happy to post the following from Earl Maltz, Rutgers Law:
I am interested in putting together a panel commemorating the 50th anniversary of the end of the Warren Court for the 2019 meeting of the ASLH.  My own contribution is tentatively entitled “The Changing of the Guard:  The Triumph of Richard Nixon, the Travails of Abe Fortas, and the Transformation of Constitutional Law.”  If you would like to be part of such a panel, please contact me at

Loeffler on the Paradoxes of Lauterpacht

James Loeffler, University of Virginia, has posted Zionism, International Law, and the Paradoxes of Hersch Zvi Lauterpacht, which is forthcoming in The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought (Cambridge University Press):
The history of modern international law is often told as a fable of Jewish moral cosmopolitanism. Many recent accounts of the lawyer, law professor, and judge Hersch Lauterpacht (1897-1960) confirm this narrative by positing that his pioneering ideas of international human rights, crimes against humanity, and the laws of armed conflict derive from his personal experience of antisemitism, the Holocaust, and refugeedom. Implicitly or explicitly, this meta-narrative frequently situates politics in opposition to law, and frames Zionism as the particularistic pole opposite the putative universalism of twentieth-century Jewish legal cosmopolitanism. This chapter challenges this view through a novel reconstruction of Lauterpacht’s biography based on newly discovered archival sources in English, Hebrew, Yiddish, and Polish. Against the trend towards apolitical or antipolitical narratives, this chapter argues that Lauterpacht’s political investment in the Zionist movement shaped his legal imagination of modern international law.

Rugemer on slave law in the early Atlantic world

Edward B. Rugemer, Yale University, has published Slave Law and the Politics of Resistance in the Early Atlantic World with Harvard University Press. From the publisher:
Cover: Slave Law and the Politics of Resistance in the Early Atlantic World in HARDCOVERThe success of the English colony of Barbados in the seventeenth century, with its lucrative sugar plantations and enslaved African labor, spawned the slave societies of Jamaica in the western Caribbean and South Carolina on the American mainland. These became the most prosperous slave economies in the Anglo-American Atlantic, despite the rise of enlightened ideas of liberty and human dignity. Slave Law and the Politics of Resistance in the Early Atlantic World reveals the political dynamic between slave resistance and slaveholders’ power that marked the evolution of these societies. Edward Rugemer shows how this struggle led to the abolition of slavery through a law of British Parliament in one case and through violent civil war in the other. 
In both Jamaica and South Carolina, a draconian system of laws and enforcement allowed slave masters to maintain control over the people they enslaved, despite resistance and recurrent slave revolts. Brutal punishments, patrols, imprisonment, and state-sponsored slave catchers formed an almost impenetrable net of power. Yet slave resistance persisted, aided and abetted by rising abolitionist sentiment and activity in the Anglo-American world. In South Carolina, slaveholders exploited newly formed levers of federal power to deflect calls for abolition and to expand slavery in the young republic. In Jamaica, by contrast, whites fought a losing political battle against Caribbean rebels and British abolitionists who acted through Parliament. 
Rugemer’s comparative history spanning two hundred years of slave law and political resistance illuminates the evolution and ultimate collapse of slave societies in the Atlantic World.
Praise for the book:

 “This is, to my mind, the best history of the Anglo slaveholders and their slaves in the western Caribbean.”—Ira Berlin

“At its heart, this spirited and comprehensive reevaluation of the British imperial project in the Americas is a story of the clashing politics of slave resistance and slaveholders’ repression. It reveals how the slave laws, first initiated in Barbados and later adopted in Jamaica and South Carolina, became progressively more draconian in the face of mounting slave resistance.”—R. J. M. Blackett

“In this significant contribution to the history of slavery, we see how slaveholding regimes developed in response to slave resistance, were transformed in the Age of Revolution, and finally succumbed to concerted action from an array of antislavery forces. Tracing this process through the most profitable and brutal slave societies in Anglo-America, Rugemer sets a new standard for comparative history.”—Vincent Brown

“Edward Rugemer’s vital new book focuses our attention on the relationship between politics and organized violence in the two largest economies of British America. A superb example of comparative history that reveals how the most pernicious institution in the Western Hemisphere contained the seeds of its own demise.”—Peter C. Mancall

Further information is available here.

Sunday, January 20, 2019

Job Notice: Seeking Constitutional and Legal Scholars

Our attention has just been drawn to the following posting on H-FedHist:
Seeking Constitutional and Legal Scholars.  We seek two scholars, one in U.S. constitutional and one in U.S. legal history, to help develop a timeline of federal history.  The timeline will highlight critical and formative milestones in the history of the U.S. federal government and the development of the United States, and identify essential readings. Please respond with questions and interest to the H-FedHist editor at
H/t: Jay Stewart

Citizenship, Naturalization, and Belonging: Attempting a Comparative Legal Research

In 2003 I published a book on citizenship and belonging in Spain and Spanish America.[1]  Having surveyed hundreds of conflicts in which individuals requested rights (or were forced to comply with duties) either in local communities or in the kingdom, I discovered that both litigants and those who opposed them, both local and royal authorities, both jurists and laymen, referenced a similar set of criteria. According to it, status, rather than being automatically abstracted from birth or descent, hinged upon the ability to demonstrate attachment to the community. Attachment could be demonstrated in multiple ways: local residence, marriage to a local person, owning of real estate, or paying taxes. Although a legal presumption protected those born locally to locally born parents –in their case the presumption held that they loved the community and were loyal to it— if there was reason to believe the contrary, then despite local birth to locally born parents, these individuals would be considered foreign. The same was true of those born outside to foreign parents. In their case, the presumption held that they had no love to the community. But if they could demonstrate that they did (by referencing the indications enumerated above that demonstrated integration) then they would be recognized as members.

In both Spain and Spanish America, these categories operated vis-à-vis both the local community (constituting individuals as vecinos) and the kingdom community (recognizing them as naturales). Initially, each Spanish kingdom had its own community of natives, which was distinguished from others (there were natives of Castile, natives or Aragón, and so forth). However, by the late sixteenth century, the category “natives of the kingdoms of Spain” also made its appearance. First applied in the Americas, where only “natives of Spain” could theoretically reside and undertake commercial activities, by the early eighteenth century this category was also applied in the Iberian Peninsula. Thereafter, legally, at least, there was only one community of natives in Spain and it included all Spaniards.

My aim in pursuing these questions was to write a history that would observe NOT how states and kings defined members but how residents engaged in the elaboration of a legal distinction between natives and foreigners, Spaniards and aliens. Rather than discovering what the law meant, I was after the question how historical actors used the law and how this use influenced what they said and what they did. I also wanted to re-think debates regarding citizenship. These debates affirmed the importance of medieval urban citizenship to the formation of state centered citizenship, but normally failed to explain how these processes of borrowing and extension took place. Spain and Spanish America gave an interesting answer because they demonstrate that to determine who Spaniards were people asked about their urban membership. If the literature tended to affirm that there were no citizens in monarchical territories, my wish was to showcase their importance. Methodologically, I was interested in reconstructing the legalities of the past not by referencing abstract legal doctrines, jurisprudence, or legislation, but instead by analyzing the words and behavior of a multiplicity of actors. Undertaking a task similar to the one linguists perform when they analyze speech to reconstruct the rules that govern it, I wanted to understand how contemporaries conceived of membership. Why did they think they had rights? How did they explain their refusal to allow others to enjoy them?  I was also fascinated by the need to reconstruct rules by observing conflict. I asked: what do moments of disagreement tell us about consensus? How can we learn from them what happened when people agreed?  

In chapter 8 of that book I engaged with comparative research. I asked whether if we applied the same questions and methodology to England, France, and Italy, we would reveal similarities. Because I could not carry out the same detailed archival research in my comparative examples, I decided to focus instead on examining the secondary literature.

The historians whose work I read affirmed that membership in England, France, and Italy was radically different than what I have discovered in Spain and Spanish America. Yet, as I read through their scholarship I found plenty of indications that such might not have been the case. Municipal and kingdom communities also existed in England, France, and Italy and, in most of the cases I reviewed, membership in them implied the imposition of a certain regime of privileges and duties. In all these places, obtaining status as member was contingent on behavior, which could be formally recognized by the competent authorities or implicitly acquired through prescription. Behaviors recognized as meaningful were also extremely similar: permanent residence and tax payment ranked high but so did marriage to a local or the purchase of real estate. Local birth to locally born parents could be significant on occasions, but it was mostly treated as a legal presumption, not a condition sine-qua-non. Prima-facie, England did look somewhat different because of the tying of freedom to the exercise of certain professions. Yet, in the early modern period, freedom and Continental citizenship came to be closely associated, most clearly in the ruling of common law courts. Similarly, if subjecthood in England seemed divergent when observed through the famous Calvin Case, it stopped being thus if analyzed, for example, by studying how imperial subjects negotiated status as Englishmen.[2]

I thus concluded that similarities between the Spanish, Italian, French, and English experience might have been much greater than is currently accepted and that that there was, in fact, a common European framework that operated across the continent despite the existence of local variations. As a historian of Spain, I thus wondered: Can Spanish history be normalized rather than exoticized (as it usually is)? Can it be made central to narratives of European (and legal) formation? Can we converse across national historiographies to imagine a common European past or is this attempt doomed to fail? How to overcome a tendency to highlight particularities rather than to search for what we share?

[1] Tamar Herzog. Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America. New Haven: Yale University Press, 2003; Vecinos y extranjeros. Hacerse español en la edad moderna. Madrid: Alianza Editorial, 2006; Nations, Citoyens, Immigrés dans L’Espagne et l’Amérique espagnole du XVIIIe siècle. Paris: Le Poisson Volant, 2017.
[2] On these issues, see the most recent Hannah Weiss Muller. Subjects and Sovereign: Bonds of Belonging in the Eighteenth-Century British Empire. New York: Oxford University Press, 2017 and my review, published in the William and Mary Quarterly 75 (1) (2018): 179-182. Also see Daniel J. Hulsebosch. “English Liberties Outside England. Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire.” In Lorna Hutson ed. The Oxford Handbook of English Law and Literature, 1500-1700. Oxford: Oxford University Press, 2017, 748-772.