Wednesday, January 16, 2019

Kahn, "Islands of Sovereignty: Haitian Migration and the Borders of Empire"

New from the University of Chicago Press: Islands of Sovereignty: Haitian Migration and the Borders of Empire (Jan. 2019), by Jeffrey S. Kahn (University of California, Davis). A description from the Press:
In Islands of Sovereignty, anthropologist and legal scholar Jeffrey S. Kahn offers a new interpretation of the transformation of US borders during the late twentieth century and its implications for our understanding of the nation-state as a legal and political form. Kahn takes us on a voyage into the immigration tribunals of South Florida, the Coast Guard vessels patrolling the northern Caribbean, and the camps of Guantánamo Bay—once the world’s largest US-operated migrant detention facility—to explore how litigation concerning the fate of Haitian asylum seekers gave birth to a novel paradigm of offshore oceanic migration policing. Combining ethnography—in Haiti, at Guantánamo, and alongside US migration patrols in the Caribbean—with in-depth archival research, Kahn expounds a nuanced theory of liberal empire’s dynamic tensions and its racialized geographies of securitization. An innovative historical anthropology of the modern legal imagination, Islands of Sovereignty forces us to reconsider the significance of the rise of the current US immigration border and its relation to broader shifts in the legal infrastructure of contemporary nation-states across the globe.
A few blurbs:
“This remarkable book chronicles the making of the US maritime border as a dialectic of sovereign will and legal reason. Using an impressive array of historical and ethnographic materials on Haitian interdiction, Kahn illuminates the tensions between water and land, refugee and migrant, and imaginaries and practices of jurisdiction that have shaped the legal and political geographies of asylum in the United States and beyond. This is a brilliant and timely intervention in contemporary debates around border securitization.” -- Ajantha Subramanian

“Kahn’s astonishing ethnography of the law and politics of America’s interdiction of Haitian refugees at sea is heartrending, insightful, and necessary. No one concerned about the frightening history of the country’s relationship to others at another troubling moment—and no one who cares about the discretionary sovereignty of the modern state and its borders—can afford to look away from the story Kahn tells in this major intervention.” -- Samuel Moyn
More information is available here.

Special issue: Merchants and commercial conflicts in European history

Continuity and Change has a special issue out on "Merchants and Commercial Conflicts in Europe, 1250-1600," 32 (2017): special issue 1. Here is the line-up with abstracts:
    Continuity and Change
  • Alain Wijffels, "Introduction: Commercial quarrels--and how (not) to handle them," 1-9: The settlement of structural commercial conflicts of interest cannot be exclusively subsumed under the heading of dispute resolution. Even when a particular conflict opposing specific individuals or groups of interests could be settled, the broader underlying conflicts of interest would subsist and re-emerge. Both commercial and institutional or political actors would therefore rely on various techniques of conflict management, a process imposing restraint on the opposing parties while allowing sufficient leeway for business to be continued. Both conflict resolution and conflict management were devices of public and corporate governance, and therefore, following the late medieval tradition, instruments more or less based on established patterns of legal or quasi-legal models legitimised by accepted or conventional parameters of ‘justice’.
  • Flávio Miranda, "Conflict Management in western Europe: the case of the Portuguese merchants in England, Flanders and Normandy, 1250-1500," 11-36: Recent historiography argues that the legal autonomy of municipal governments created the necessary conditions for successful commercial transactions and economic growth in certain parts of Europe in the later Middle Ages, and that these features attracted foreign merchants. This article uses empirical data from England, Flanders and Normandy to test the following questions: were there significant differences in rules, laws and institutions between one place and another in late medieval western Europe? Were the Portuguese merchants drawn to markets that hypothetically had more effective institutions? The findings demonstrate that legal institutions and conflict management were very similar across western Europe, and that there is no evidence that the Portuguese opted for trading in a certain market because of its effective institutions. Moreover, the article claims that the merchants seemed to prioritise protection and privilege while trading abroad, and it highlights the role of commercial diplomacy in conflict management.

  • Thomas K. Heebøll-Holm, "Law, order and plunder at sea: a comparison of England and France in the fourteenth century," 37-58: This article addresses the management of maritime plunder and conflict in the waters of England and France in the fourteenth century. It argues that during this century a fundamental change occurred. Around 1300, maritime conflict was handled by recourse to the strictly civil law merchant and law maritime, or by Marcher law. However by the 1350s and 1360s the kings of England and France, moved by contemporary political events and theories of sovereignty at sea, created courts of Admiralty that challenged the previous systems’ jurisdiction. These initiatives eventually paved the way for the criminalisation of private maritime conflict.
  • Justyna Wubs-Mrozewicz, "The late medieval and early modern Hanse as an institution of conflict management," 58-84: Ever since research on the Hanse began in the nineteenth century, there have been repeated efforts to redefine the boundaries and the core of the phenomenon. Views of the Hanse have evolved, and it has been seen by turns as a profoundly German league of towns, and as a network or organisation of towns and traders that was present in commercial centres and harbours from Novgorod to Portugal, and from Norway to Italy. In more general discussions on the institutional development of commerce in Europe, many of them influenced by the New Institutional Economics, the Hanse has even appeared as a mega-guild. The revival of the field of institutional economics and the history of commerce in pre-modern Europe has recently spawned a reappraisal of Hanseatic sources. The present article contributes to this debate by arguing that from the perspective of conflict management, the late medieval and early modern Hanse was an institution. There were several institutional mechanisms, such as a strong preference for mediation and arbitration in conflicts between individuals, as well as a mediation strategy for internal conflicts between towns. All of these mechanisms combined in a multifaceted institution of conflict management, which represented the added value of Hanse membership for traders, and for their towns.
  • Andrea Caracausi, "A reassessment of the role of guild courts in disputes over apprenticeship contracts: a case study from early modern Italy," 85-114: This article analyses the mechanisms of conflict resolution in apprenticeship contracts using a large database of disputes from early modern Italy. It finds that the guild court under investigation (the Padua Woollen Guild court) did not enforce training contracts, but rather sought to improve on incomplete contracts by adding clauses, thereby helping individuals renegotiate and redefine the contractual arrangements into which they had decided to enter. However, power relations within the court operated largely in favour of employers, both merchants and master craftsmen. The article concludes that alternative contract enforcement systems, such as municipal or state courts, were probably better suited than corporative systems for resolving disputes surrounding apprenticeship.
Further information is available here

Tuesday, January 15, 2019

Lesaffer on Roman and International Law

Randall Lesaffer, Tilburg Law School and KU Leuven Faculty of Law, has posted Roman Law and the Intellectual History of International Law, which appeared in the Oxford Handbook of the Theory of International Law, edited by Anne Orford and Florian Hoffmann (2016), 38-58:
The pivotal role of Roman law is well established in the historiography of the civil law tradition. Compared to this, its role in the intellectual history of international law is a marginal subject. This paper maps the place and role in the intellectual development of international law from Antiquity to the present.

Miller on Indian Slavery in Virginia

Robert J. Miller, Arizona State University-Sandra Day O'Connor College of Law, has posted Virginia's First Slaves: American Indians:
A little known fact of American history and law is the ubiquitous legal enslavement of Indian peoples over much of what is now the United States during colonial and early American times. In the Virginia colony, it seems that the first slaves of the English settlers were local Indian peoples and then large numbers of Indians captured elsewhere and transported to Virginia to serve as slaves on plantations. Much of this activity appears to have occurred before Virginian planters and traders began importing Africans to be enslaved. Complicating this history is that several Indian nations and many individual Indians actively participated with the English in raiding, enslaving, and trading Indians from other tribes and cultures and transporting them to Virginia, other American colonies, and even to the Caribbean.

A Classic in Newfoundland Law: Archibald's Digest

The SS Daisy Legal History Committee announces its latest publication, Edward M. Archibald’s Digest of the Laws of Newfoundland (1847), edited with an Introduction and Notes by Christopher Curran.  Published in 1847, the work was “a staple on Newfoundland judges and lawyers’ bookshelves for more than 100 years" and is the second in the Committee’s reprint series, “Classics in Newfoundland Law.”   More.

Monday, January 14, 2019

CFP: Autonomy in Private Law

[We have the following CFP.  Please note: the deadline is January 20, 2019, midnight EST.]

Autonomy in Private Law: Past, Present, Future.  Organization: The Private Law Junior Scholars Conference.  June 19-20, 2019, Tel Aviv University Faculty of Law, Safra Center for Ethics.  @PLJS_conference

The Private Law Junior Scholars Conference is a collaboration between the law faculties of the University of Toronto and Tel Aviv University. It aims to create a forum for junior researchers from around the world to exchange about private law and different aspects of private law scholarship. The conference provides a select number of doctoral candidates, post-doctoral researchers and junior faculty (pre-tenure) with a unique opportunity to present their work and receive meaningful feedback from senior faculty members and peers. Last year’s conference, themed ‘Public Aspects of Private Law’, received 70 submissions. A total of seven presentations were selected by the organizers and leading private law scholars from the universities of Tel Aviv, Toronto and Yale, which included Hanoch Dagan, Avihay Dorfman, Larissa Katz, Daniel Markovits, Ariel Porat, and Arthur Ripstein.

This Year’s Topic
: Autonomy in Private Law: Past, Present, Future  .Autonomy has long stood as the central pillar of conventional scholarship in private law. Much of private law, as depicted in these accounts, is built around the ideal-typical vision of autonomous agents as the relevant legal subjects, and frequently, private law is also claimed to realize and enhance autonomy. The assumption of the existence and desirability of autonomous agents and agency appears to be shared by widely diverging approaches to private law.

Private law’s autonomy-paradigm is, however, increasingly challenged by alternative theoretical accounts of the field that identify freedom as private law’s central pillar, and/or stress the relational dimension of private law. Additional challenges emanate from societal and technological developments that create new areas of power imbalances. At the same time, precisely because of its perceived emphasis on autonomy, private law might seem to offer a promising normative framework for addressing some pressing societal problems.

These challenges and promises invite further reflection about the place of autonomy in private law’s past, present and future. The 2019 Private Law Junior Scholars’ Conference aims to explore these issues, shed light on resulting tensions, and develop possible future perspectives. We invite papers that explore the overall conference topic from different theoretical and methodological vantage points, including historical, comparative, empirical, and critical perspectives.

Miller on Brandeis in Erie and in INS v. AP

Joseph Scott Miller, University of Georgia School of Law, has posted Brandeis’s I.P. Federalism: Thoughts on Erie at Eighty, forthcoming in the Akron Law Review:
Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associated Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference in fall 2018, makes the case that the answer to both questions is “yes.”
H/t: Legal Theory Blog

Thornberry on Rape in South Africa

Out this month with Cambridge University Press is Colonizing Consent: Rape and Governance in South Africa's Eastern Cape by Elizabeth Thornberry, Johns Hopkins University. From the publisher: 
Colonizing ConsentElizabeth Thornberry uses historical evidence to shed light on South Africa's contemporary epidemic of sexual violence. Drawing on over a thousand cases from a diverse set of courts, Thornberry reconstructs the history of rape in South Africa's Eastern Cape, from the precolonial era to the triumph of legal and sexual segregation, and digs deep into questions of conceptions of sexual consent. Through this process, Thornberry also demonstrates the political stakes of disputes over sexual consent, and the ways in which debates over the regulation of sexuality shaped both white and black politics in this period. From customary authority to missionary Christianity and humanitarian liberalism to segregationism, political claims implied theories of sexual consent, and enabled distinctive claims to control female sexuality. The political history of rape illuminates not only South Africa's contemporary crisis of sexual violence, but the entangled histories of law, sexuality, and politics across the globe.
Here is the Table of Contents:

  • Introduction: writing the history of rape
  • 1. Custom and consent in Xhosaland
  • 2. Sex and spiritual power
  • 3. Liberalism and the colonial law of sexual violence
  • 4. Rape and racial boundaries
  • 5. Navigating the politics of consent
  • Conclusion: rape and the postcolony.
Further information is available here.

Sunday, January 13, 2019

Patricia Wald (1928-2019)

The New York Times's obituary of this great American lawyer and judge is here.  The Washington Post's, here.

English Exceptionalism Revisited II – The Continental Strawman


In English Exceptionalism Revisited, published previously on this blog, I argued for the need to reexamine the convention that English law was different from Continental law. I suggested that claims for English exceptionalism are often based on privileging the history of common law over the history of other jurisdictions and legal systems that co-existed in England. In this second part, I would like to examine yet another issue: how narratives of English exceptionalism use Continental law as a strawman. Because of considerations of space, I focus my attention on the claim that common law was different because (contrary to Continental law) it included an immemorial customary law. This claim became central to English legal thinking in the late sixteenth and the seventeenth centuries, but it also persists to-date. It is based, inter alia, on the (silent) assumption that Continental law was not an immemorial customary law, but instead a system based on scholarly debates, legislation, and Roman law.

Historians of Continental law would disagree. In their telling, customs were a central element also in the continent. From as early as classical Roman law and into the nineteenth century, Continental jurists habitually identified local law as customary. They suggested that it was a legitimate expression of a legal diversity that allowed for different local solutions despite the existence of an overreaching common core uniting all Romans (first), Christians (second) and Europeans (third). Jurists’ main role was to explain how this was possible, that is, how thousands of local legal arrangements (“customs”) could nevertheless form part of a single global system. This was what Roman jurists did, but it was also what medieval jurists accomplished as they slowly elaborated a system that, while validating local laws, also created a ius commune (a common law, a system that scholars of England identify as “Roman” or “Civil” precisely in order not to call it common law as Continental jurists would).

The effort to harmonize local and global were criticized by some sixteenth-century jurists. These jurists, known as legal Humanists, insisted on identifying an authentic local customary law that would stand in opposition to (rather than in harmony with) the common framework.  Because they believed that customary law could counter monarchical pretensions at absolutism, these jurists turned to identify what this law included. Thereafter, the main question they asked was not if customs existed and were important (of course they were) but who would be charged with identifying them. In France, where this struggle was particularly strong, the kings succeeded to have the upper hand. They gained control over the identification of customs by instituting committees that purportedly “wrote down” the customary laws of France but that, in reality, greatly modified them according to royal desire as well as tied them to royal validation.   

Because it was difficult to prove that certain practices were customary, late medieval and early modern Continental jurists adopted the convention that customs were, by definition, immemorial. In their telling, immemoriality was a category of proof, not a historical fact. It embodied a presumption identified as juris et de jure that, contrary to all other presumptions, admitted no proof to the contrary. As far as these jurists were concerned, at stake was not the distinction between what could be remembered and what had been forgotten, but a policy decision regarding what should be proved and what could be assumed without proper proof. This decision hinged on evaluating what society wished to protect (local law) and how much (as strongly as possible). It represented, perhaps better than anything else, the important place of customs in Continental juridical elaboration.

English sixteenth- and seventeenth-century descriptions of common law as immemorial customary law were thus part of a much larger European conversation. This conversation initiated in the Roman empire but continued throughout the Middle Ages and into modernity. Nonetheless, in the late sixteenth and in the seventeenth century, English lawyers insisted that their system was radically different, and they expressed fear of “foreign” influence. They suggested that Europe followed Roman law, while England had a genuine customary law of its own, which reflected the spirit of its people.  This portrait omitted the important contribution of ius commune jurists to the formation and institutionalization of common law, including ideas regarding customs and immemoriality. It assumed English lawyers were ignorant of developments in Europe (all evidence to the contrary) and it constructed a Continental strawman, against which England was compared. The result was often, to paraphrase the words of Chris Wickham, a “cultural solipsism” that led scholars to believe in exceptionality where not much of it existed.

Saturday, January 12, 2019

Weekend Roundup

  • Last Saturday I had the pleasure of sharing with Penn Law's Serena Mayeri the chairing and commenting duties for two panels at the annual meeting of the American Historical Association, which was the first time the American Society for Legal History claimed its two slots on the program as an AHA affiliate.  Six junior scholars presented on topics ranging from the abolition of slavery in revolutionary Massachusetts to the policing of black women and "Bad Queers" in the late twentieth century.  The six were Gloria Whiting, Kellen Funk, Jane Manners, Shaun Ossei-Owusu, Scott De Orio, and Anne Gray Fischer.  (Lincoln Mullen stood in for his coauthor, Funk.) Thanks to MIT's Malick Ghachem, who organized the panels.  DRE.  
  • Dean Risa L. Goluboff has published a tribute to the late Gordon Hylton in the Virginia Law Review.
  • Congratulations to Annette Gordon-Reed, an Honorary Fellow of the ASLH, upon being named one of the twenty-five most influential alumni of Dartmouth College.  She checked in somewhere down the list from Daniel Webster and Salmon P. Chase but still well above Fred Rogers.  The list was compiled as part of the College's sesquicentennial celebrations this year, which include a symposium on and reargument of  the Dartmouth College Case, decided 200 years ago this February.
  • New York University will host two workshops for K-12 teachers on the sit-in movement, protests, and legal change in the 1960s.”  One is to be led by Robert Cohen, NYU Steinhardt Professor of History and Social Studies, on his book, Howard Zinn’s Southern Diary: Sit-Ins, Civil Rights, and Black Women’s Student Activism.   The other will be led by Christopher W. Schmidt, Professor of Law & Associate Dean at Chicago-Kent College of Law, and Faculty Fellow at the American Bar Foundation, on his book The Sit-Ins: Protest & Legal Change in the Civil Rights EraMore.
  • John F. Burton, Jr., Professor Emeritus in the School of Management and Labor Relations at Rutgers University, and Alan S. Pierce, a former chairperson of the ABA Section on Worker’s Compensation, discuss “the history of workers’ compensation, outlining its legal evolution through different political and economic eras in the United States” here.
  • The deadline for submitting papers to the the 2019 annual meeting of the American Political Science Association is Tuesday, January 15th.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, January 11, 2019

Patrick on the Legal History of Disgust

Carlton Patrick, University of Central Florida, has posted When Souls Shudder: A Brief History of Disgust and the Law, which is forthcoming in the Research Handbook on Law and Emotions, ed. Susan Bandes, Jody Lyneé Madeira, Kathryn Temple, and Emily Kidd White:
This chapter takes a look back at the past three decades of disgust and the law. Reviewing many of the empirical findings of the behavioral sciences as well as the normative scholarship of legal scholars and other social scientists, it attempts to provide a bird’s eye view of the links between disgust, morality, and jurisprudence, and of the debates that emanate from those links.

Endicott on Entick v Carrington

Timothy A.O. Endicott, University of Oxford Faculty of Law, has posted Was Entick v Carrington a Landmark? which appeared in Entick v Carrington: 250 Years of the Rule of Law, ed. Adam Tomkins and Paul Scott  (Hart Publishing 2015), 109-130:
Entick v Carrington (1765) 2 Wils KB 275 was a landmark not only in the development of the law of the constitution, but also in the development of a distinctively English mixture of judicial restraint and judicial creativity. Lord Camden’s decision was a model of the common law method of devising new ways of controlling public powers, while disclaiming any power to legislate and, in fact, claiming to abide by the ‘ancient venerable edifice’ of the constitution. The result was a practical reform that protected civil liberties, on the basis of a very conservative understanding of the constitution, according to which public authorities are limited by law, but have powers that are not specified by law. I defend that understanding against the twenty-first-century idea that public authorities may do nothing except what the law expressly or impliedly authorises.
H/t: Legal Theory Blog

Motha on sovereignty and violence

Stewart Motha (Birkbeck College, University of London) published Archiving Sovereignty: Law, History, Violence with the University of Michigan Press in 2018. From the publisher:

Book cover for 'Archiving Sovereignty'Archiving Sovereignty shows how courts use fiction in their treatment of sovereign violence. Law’s complicity with imperial and neocolonial practices occurs when courts inscribe and repeat the fabulous tales that provide an alibi for archaic sovereign acts that persist in the present. The United Kingdom’s depopulation of islands in the Indian Ocean to serve the United States’ neoimperial interests, Australia’s exile and abandonment of refugees on remote islands, the failure to acknowledge genocidal acts or colonial dispossession, and the memorial work of the South African Constitution after apartheid are all sustained by historical fictions. This history-work of law constitutes an archive where sovereign violence is mediated, dissimulated, and sustained. Stewart Motha extends the concept of the “archive,” as site of origin and source of authority, to signifying what law does in preserving and disavowing the past at the same time. 
Sovereignty is often cast as a limit-concept, constituent force, determining the boundary of law. Archiving Sovereignty reverses this to explain how judicial pronouncements inscribe and sustain extravagant claims to exceptionality and sovereign solitude. This wide-ranging, critical work distinguishes between myths that sustain neocolonial orders and fictions that generate new forms of political and ethical life.
 Praise for the book:

“Set in and around the Indian Ocean, Archiving Sovereignty is a thoughtful meditation on how the law traffics in fictions—the ‘as if’—as it adjudicates state sovereignty in contexts of colonial and postcolonial violence. Elegantly written, it invites an important consideration of the law’s complex work as historical archivist.” - Avery F. Gordon

“Stewart Motha re-envisions the Indian Ocean as a material site of law, violence, and dispossession that he compellingly terms an ‘archive of the present.’ Drawing comparatively from Australia, South Africa, and the Chagos Archipelago, Motha offers a beautifully crafted analysis of law and sovereignty, how they draw from and disavow their entangled colonial histories.” - Renisa Mawani

“Of the many interwoven themes in Archiving Sovereignty, the driving motif for me is Kant’s ‘as if,’ which responds to the disappearance of metaphysical objectivity. If objects are the only knowable facts, the unknowable is suspended in the ‘as if.’ This is true for a lie (such as acting as if law were grounded in nature or acting as if sovereignty were a power in itself) as well as for a fertile fiction. We must then think of the ‘as if’ in its relation to an absence of first law, and think of sovereignty as the ‘as if’ of a postulation of ‘nothing’ at the centre of existence. Stewart Motha explores this double dimension, its commingling and unravelling, its aporias and suggestions that are of course inexhaustible. This research is at the heart of the concerns and expectations of the present time.” - Jean-Luc Nancy

“Through a series of brilliant readings of contemporary cases of exile and exclusion the source of legality, the archive, is exposed as an unstable archipelago and excoriated as the fictive mark of sovereign solitude.” - Peter Goodrich

Further information is available here.

Thursday, January 10, 2019

Clune on Realist Legal Pedagogy at Wisconsin

William H. Clune, University of Wisconsin Law School, has posted Legal Realist Innovation in the Wisconsin Law School Curriculum 1950-1970: Four Influential Introductory Courses:
This paper is about four courses developed by faculty of the Wisconsin Law School from about 1950-1970 that reflected the law-in-action instructional goals of American legal realism: Legal history by Willard Hurst; Criminal Justice Administration by Frank Remington, Herman Goldstein and colleagues; The Wisconsin contracts course by Stewart Macaulay, Bill Whitford and colleagues; Legal Process by Willard Hurst, Lloyd Garrison, Carl Auerbach and colleagues. 
Eight themes in the courses are discussed: 1. Major flaws in the legal reasoning of appellate decisions (e.g., as internally incoherent, un-predictive of later results, politically biased under the guise of formal reasoning) 2, The importance of practical remedies over theoretical rights 3. The importance of legal agencies and law practice beyond appellate and other court decisions (e.g., legislation, administrative law) 4. The importance and impact of discretionary decisions of lower level public officials (for lawyers and citizens) 5, How private actors react to law and influence outcomes (and the role of lawyers in advising them) 6. Growth of legal policies over time in relationship to the wider society & economy (legal history) 7. The gap between social needs and justice and real legal outcomes and workable legal reforms (political progressivism) 8. The importance of empirical research on law, interdisciplinary research and social scientists on law school faculties or in collaboration with law faculty members
On Hurst's legal history and the Hurst et al. Legal Process course (previously, Hurst & Garrison, "Law in Society"), see William Eskridge and Philip introduction to their edition of Hart and Sack's The Legal Process (separately published here) and the symposium on Hurst in 18:1 of Law and History Review.

Amann on Female Officals at the Tokyo Tribunal

Diane Marie Amann, University of Georgia School of Law, has posted Glimpses of Women at the Tokyo Tribunal:
Compared to its Nuremberg counterpart, the International Military Tribunal for the Far East has scarcely been visible in the seven decades since both tribunals’ inception. Recently the situation has changed, as publications of IMTFE documents have occurred alongside divers legal and historical writings, as well as two films and a miniseries. These new accounts give new visibility to the Tokyo Trial – or at least to the roles that men played at those trials. This essay identifies several of the women at Tokyo and explores roles they played there, with emphasis on lawyers and analysts for the prosecution and the defense. As was the case with my 2010 essay, “Portraits of Women at Nuremberg,” the discussion is preliminary, offering glimpses of the Tokyo women in an effort to encourage further research.

Wednesday, January 9, 2019

English Legal Exceptionalism Revisited: English vs. Common Law


The wish to tell a history of European law that is coherent yet recognizes the wide variety of systems and solutions across the continent (see previous blog), led me to question English legal exceptionalism. In their mildest form, claims for English legal exceptionalism affirm that English law is different from Continental law. In their most obnoxious form, these claims also assume English superiority. Despite their prevalence, historians making such claims rarely agree on what makes English law different and they point to different periods as essential in this parting of ways. For some, England was different because the Roman conquest was short lived and left no enduring legacies. For others, differences emerged because England was conquered successively by Northern peoples that had distinct legal traditions. Yet other historians point to legal developments after the Norman invaded Britain in the eleventh century, including the institution of royal courts and the elaboration of writs. For some, early common law was profoundly Continental. Distinctions only emerged over time because the English monarchs turned to use juries rather than inquisitorial processes and employed the services of non-university-trained individuals. For another group, English exceptionalism was particularly clear in the seventeenth century, when the English began portraying common law as a system of immemorial customary arrangements which included, inter alia, an ancient constitution. In the nineteenth century, England again took a distinct path when most of its experts rejected Continental-style codifications and turned to modernize their law in a distinct English manner.  
    
Although this telling of the past is based on meticulous research, it is nonetheless problematic. One problem is the insistence on comparing the Continent to common law and common law only. This comparison turns all other jurisdictions present in England, most importantly, the feudal courts that until the seventeenth century handled most of the adjudication, into the exception rather than the rule and it also dismisses the importance of royal legislation. A second problem (which I will tackle in the next blog) is the profound lack of familiarity with the Continent, which often serves as a straw-man, against which England is compared and contrasted.

Common law vs. English law

Asked in the abstract, we would all agree that besides common law courts, England had a variety of other courts: local courts, feudal (manorial) courts, ecclesiastical courts, courts of equity, merchant courts, and so forth. We would therefore concede that common law was not the only legal system operating on the island and we might even concur that until a certain point in time (which we may have difficulties to identify) it was hardly the most important one. As is well known, common law was applied only by royal courts that initially dealt with very few cases and were open only to subjects who could (and wanted) to afford litigating there. Although the jurisdiction of these courts expanded over time, throughout the Middle Ages and the early modern period, the number of judges sitting in common law courts was extremely small and they could not hear appeals from other courts or force these other courts to relinquish their jurisdiction.

While this story is well known, in the history-telling of English particularism, this part tends to be forgotten. This mostly happens because it is generally assumed that Manorial courts, for example, came under the influence of common law if not earlier than at least by the late sixteenth century. As a result, these court can be treated as part of the common law system and, in practice, be forgotten.

Yet, scholars who study manorial courts disagree. They argue that they were mainly geared towards keeping other powers (including royal powers) at bay and therefore had absolutely no incentives to emulate royal jurisdiction or allow royal standards to affect their rulings. If anything, manorial courts placed themselves in opposition to royal jurisdiction, their judges and litigants constantly invoking the power of local rather than royal norms. Scholars of manorial courts also maintain that their judges sought to identify the most convenient and consensual ad hoc solution depending on place, parties, and time. There were hundreds of feudal courts in England and none was like the other. If there was no uniformity within each court and there was none across the different courts, why assume that they were all subservient to common law?

Insisting on the importance of manorial courts (rather than common law courts) to English legal history is essential in evaluating the singularity of the English legal system because courts, similar to manorial courts, also existed on the Continent and, according to scholars, they followed a nearly identical trajectory. In the Continent as in England, these courts strove to solve conflicts by adopting what seemed just and efficient according to parties, subject matter, and place and their lay judges implemented solutions, which were ad hoc rather than scholarly or doctrinal.

If the routine telling of English legal history tends to ignore the contribution of manorial courts, it also tends to undermine the importance of legislation. To fit the narrative of the prominence of common law (that is portrayed as a customary yet judge made law), the contribution of legislation to legal development is often undervalued, even ignored. Yet, here too, historians affirm that legislation was an important legal source from as early as the twelfth century and throughout the Middle Ages and the early modern period. Indeed, it was so important that even common law judges and teaching at the Inns of Court could not afford to ignore it.

During the Middle Ages and the Early Modern period, in short, common law might have been an important, even essential, component of the English legal system, but it was not the only one. Nor did it absorb all other jurisdictions and normative orders present on the island. Giving it retrospectively a special status or making it “the law of the land” because to some degree or the other this was what eventually happened is therefore extremely anachronistic. If anything, this reading, which is not obvious, nor was ever foretold, requires an explanation. We need to ask how common law came to dominate, indeed to symbolize and stand for, the entire English legal system, when and why this happened, and what were the results.

Viewed in its entirety, it is probable that the history of English and Continental law mostly coincided rather than diverged.  But what would happen if we centered our attention on common law? Could we argue the same thing? (to be continued)