Thank you, Nurfadzilah Yahaya!

 We're delighted to have had Nurfadzilah Yahaya, National University of Singapore, join us as guest blogger in September 2020. Many thanks for her insightful guest posts this month on topics from cardboard camels on book covers (see hers here) to the history of land reclamation (her next big project). Here are her posts, all in one place for your convenience: 

• Ceci n'est pas un chameau
• Moorings
• The Fowl Affair, or How I Temporarily Swore off Puns
• Reclamation
• Ellipsis

Thank you, Professor Yahaya!

--Mitra Sharafi

Ellipsis

This is my last post as a guest blogger on Legal History Blog in September 2020. Thank you for engaging with me this past month.

In a report on a Muslim endowment known as a waqf in Penang, a scholar of Islamic law pointed out that certain paragraphs in a report quoting a translation of a will of a Peranakan (mixed Malay and Gujarati in this case) merchant in 1892 contained ellipsis, a series of three points with spaces between them which he took to mean that some part of the will had been deliberately removed. The translator told him that ellipsis punctuation marks were common in academic and legal writing and that parts of the will were omitted in the report as “it conveyed the same meaning.” Certainly, this is common form but did it really convey “the same meaning”? Any detail omitted would change the meaning of the text even if a little. Yet, ellipses are common in translations of legal documents. They are found all over Powers of Attorney, wills and codicils that I encountered in the colonial archives. Every layer of translation necessitated more ellipses in fact such that translations became progressively, and I must say, alarmingly, shorter. Ellipses is what interest me most. Not in the sense of what is hidden, but what is understood to be missing. How did groups of people across time and space come to understand what is not being said in law reports, and come to accept legal conventions regarding such deliberate omissions? When was the moment that particular words, formats and punctuation were understood to be code for something else? How was this knowledge transmitted, and to whom? Who gets to see the code, and who does not?

         One can see why ellipsis invoked this reaction. In 1892, Penang was part of the British colony known as the Straits Settlements. It is easy to ascribe sinister motives to a translation of a document that was originally produced during the British colonial period and whose translation in 2020 still subscribed to colonial legal norms. Already compromises to the institution of the waqf had kicked in with the English Common Law of Trusts, being denied perpetuity, a requirement according to Islamic law.    

While close to submitting my book manuscript last year which became Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia, I read Katharina Pistor’s The Code of Capital: How the Law Creates Wealth and Inequality. I came to realize that a lot of things that postcolonial nation-states inherited were not substantive laws necessarily, but rather laws that have been encoded in specific ways. These coded forms, including English law of trusts at the confluence of law and economics, had been applied to waqfs during the colonial period. A trust is a form of preemptive asset-shielding, Pistor writes. These codes are what prove to be resilient and useful through time. As cadres of legal practitioners painstakingly gained knowledge of legal codes, they understandably became more invested in preserving them. We come to rely on these legal experts who were able to decipher these established codes, much like how the translator in Penang in the middle of 2020 informed his colleague about the use of ellipsis as a norm of legal reporting while the latter was much more concerned with the Islamic law of waqfs which had been coded as a modified common law trust 128 years before in Penang.

The most interesting stories lie between the dots, historians might be tempted to suggest but the dots collectively encode so much information such that they are endowed with the capacity to protect and act in specific ways. In order to view the extent of this capacity, legal historians have to adopt a broad view across legal domains and jurisdictions to tell more unexpected stories.

 

Pistor, Katharina. The Code of Capital: How the Law Creates Wealth and Inequality. Princeton, NJ: Princeton University Press, 2019.

 

Nurfadzilah Yahaya

Moore on Anti-Federalists and Implementing Article III

Tyler Moore, a 2011 graduate of the Georgetown University Law Center and a Ph.D. Candidate at the University of Notre Dame, has posted Trimming the Least Dangerous Branch: the Anti-Federalists and the Implementation of Article III, which is forthcoming in the Tulsa Law Review:

The traditional narrative of events following the ratification debates has connected the Bill of Rights with the Anti-Federalists and the Judiciary and Process Acts of 1789 with the Federalists. Although the scholarly consensus has turned against the Bill of Rights part of this story, most scholars continue to portray the first Congress’s implementation of Article III as a victory for the Federalists. In this article, I trace the development of the Anti-Federalists’ theory of federal/state power and its application to the judiciary in an effort to show why the second part of the above narrative also has it wrong.

Here is the short version. Having adopted the same conception of federalism as an underappreciated faction of delegates at the Constitutional Convention, Anti-Federalist writers like “Brutus” argued that some mechanism was needed to prevent the states from being swallowed up by federal judicial overreach. Despite Alexander Hamilton’s attempts in Federalist Nos. 78-83 to downplay this danger and emphasize the necessity of a robust system of federal inferior courts with general “arising under” jurisdiction, it was the Anti-Federalists’ arguments that continued to resonate in the state ratifying conventions and beyond. Oliver Ellsworth, the Connecticut Federalist who was the primary draftsman of the Judiciary and Process Acts, had shown his sympathy with Brutus all along. And the bare bones, state-dependent inferior court structure he helped create is testimony to this sympathy. Like the Bill of Rights, then, the Anti-Federalists’ influence on the original federal judiciary was a vicarious one. But unlike the Bill of Rights, this victory tracked their theory of federalism and gave them a meaningful structural change that could protect the states against a national consolidation. 

--Dan Ernst

Marino on feminism as international human rights movement

 Katherine M. Marino (UCLA) published Feminism for the Americas: The Making of an International Human Rights Movement with the University of North Carolina Press in 2019.

From the publisher: 

This book chronicles the dawn of the global movement for women's rights in the first decades of the twentieth century. The founding mothers of this movement were not based primarily in the United States, however, or in Europe. Instead, Katherine M. Marino introduces readers to a cast of remarkable Latin American and Caribbean women whose deep friendships and intense rivalries forged global feminism out of an era of imperialism, racism, and fascism. Six dynamic activists form the heart of this story: from Brazil, Bertha Lutz; from Cuba, Ofelia Domíngez Navarro; from Uruguay, Paulina Luisi; from Panama, Clara González; from Chile, Marta Vergara; and from the United States, Doris Stevens. This Pan-American network drove a transnational movement that advocated women’s suffrage, equal pay for equal work, maternity rights, and broader self-determination. Their painstaking efforts led to the enshrinement of women's rights in the United Nations Charter and the development of a framework for international human rights. But their work also revealed deep divides, with Latin American activists overcoming U.S. presumptions to feminist superiority. As Marino shows, these early fractures continue to influence divisions among today’s activists along class, racial, and national lines.

Marino's multinational and multilingual research yields a new narrative for the creation of global feminism. The leading women introduced here were forerunners in understanding the power relations at the heart of international affairs. Their drive to enshrine fundamental rights for women, children, and all people of the world stands as a testament to what can be accomplished when global thinking meets local action.

 Praise for the book:

“In this valuable contribution to the historiography of social movements in the Americas, Marino chronicles the impact of the women’s movement of leaders from six countries--Uruguay, Brazil, Panama, Cuba, the US, and Chile--in the interwar years . . . Marino successfully demonstrates that this was a vital period in Pan-American relations.”--Choice Reviews

“A brilliant and ambitious new account of the origins of global feminism . . . . Feminism for the Americas reconstructs a radical, transnational, and influential movement for women’s equality and social justice.”--International Feminist Journal of Politics

“The best book on Western Hemispheric feminism in at least two decades. . . . A necessary starting point for anyone contemplating research on inter-American feminism. . . . Marino has given us a masterpiece.”--Hispanic American Historical Review

The book has also won several book prizes, including the Ida Blom-Karen Offen Prize (International Federation for Research in Women's History), the 2020 Luciano Tomassini Book Award (Latin American Studies Association), and the 2020 Barbara "Penny" Kanner Award (Western Association of Women Historians).

Further information is available here. 

--Mitra Sharafi

Comparative Constitutiional History: Collected Essays

Published this summer by Brill: Comparative Constitutional History: Volume One: Principles, Developments, Challenges, edited by Francesco Biagi, Justin O. Frosini, and Jason Mazzone:

While comparative constitutional law is a well-established field, less attention has been paid so far to the comparative dimension of constitutional history. The present volume, edited by Francesco Biagi, Justin O. Frosini and Jason Mazzone, aims to address this shortcoming by bringing focus to comparative constitutional history, which holds considerable promise for engaging and innovative work along several key avenues of inquiry. The essays contained in this volume focus on the origins and design of constitutional governments and the sources that have impacted the ways in which constitutional systems began and developed, the evolution of the principle of separation of powers among branches of government, as well as the origins, role and function of constitutional and supreme courts.

TOC after the jump

--Dan Ernst

NHC Briefing: Federal Responses to Economic Crisis

[We have the following announcement.  DRE]

The National History Center of the American Historical Association invites you to attend our briefing, Federal Responses to Economic Crisis, Monday, October 5, 2020, 11:00 am EST.  Register here.

The Coronavirus pandemic has killed vast numbers of people across the world, transformed the work and home lives of many millions, and has sent many of the world's economies into a tailspin. Indeed, the economic damage produced by the pandemic promises to challenge Americans and others abroad for years to come.

How should the federal government respond to the ongoing challenges generated by this crisis? This is a question that American citizens and their elected representatives have been debating passionately and loudly this year. Despite some fleeting moments of agreement on public policy responses over the past months, the question produces no single answer. Should the federal government continue to aid the victims, both businesses and individuals, harmed by the pandemic? What larger role should the government play in the economy going forward? Not surprisingly, Congress, our political parties, and Americans across the nation find themselves in disagreement about the path forward that the federal government should pursue.

This Congressional Briefing of the American Historical Association's National History Center steps back from the current moment to explore the history of the federal government's role in handling economic downturns and crises at various points in the twentieth century. Its subjects are the federal government's response to the Great Depression of the 1930s, the economic downturns (admittedly far less severe than the Great Depression) in the 1950s, and the urban crisis of the 1960s -- all moments when presidents and Congress debated and implemented a variety of programs designed to address economic distress. As always, our approach is nonpartisan and is not aimed at answering the question about the future. Rather, it is to show that the arguments about policy during our present crisis have counterparts in the past. As the American Historical Association frequently notes, everything has a history. This Congressional Briefing of the National History Center steps back from our current moment to explore the history of federal responses to economic crises at key moments in the last century.

Speakers:
Eric Rauchway, University of California, Davis
Jennifer Delton, Skidmore College
Lizabeth Cohen, Harvard University

Moderator:
Eric Arnesen, George Washington University

A Symposium on Race, Citizenship and Women's Right to Vote

 [We have the following announcement.  DRE]

The symposium Citizenship and Suffrage: Race, Citizenship, and Women’s Right to Vote on the Nineteenth Amendment’s Centennial, sponsored by the Washington College of Law, American University, will take place online via Zoom on Tuesday, October 6, from 05:00PM - 06:30PM.

The event will describe how citizenship acquisition and citizenship-stripping laws barred women who married noncitizens, as well as women of color generally, from exercising their right to vote even after the 19th Amendment was ratified. Speakers will discuss the history of these laws and then connect these historical events to the challenges to accessing the ballot today.

Panelists include Professor Rose Cuison-Villazor (Rutgers Law School and WCL alum); Professor Kunal Parker (Miami Law School); Celina Stewart (League of Women Voters); Professor Leti Volpp (Berkeley Law School). Professor Amanda Frost (WCL) will moderate.

Du on filiality and falsity in Qing China

Last year, Yue Du (Cornell University) published "Policies and Counterstrategies: State-Sponsored Filiality and False Accusation in Qing China" in the International Journal of Asian Studies 16 (2019), 79-97. Here's the abstract: 

Using court cases culled from various national and local archives in China, this article examines two strategies widely employed by Qing litigants to manipulate state-sponsored filiality to advance their perceived interests in court: “instrumental filicide to lodge a false accusation” and “false accusation of unfiliality.” While Qing subjects were willing and able to exploit the legalized inequality between parent and child for profit-seeking purposes, the Qing imperial state tolerated such maneuvering so as to co-opt local negotiations to reinforce orthodox notions of the parent–child hierarchy in its subjects’ everyday lives. Local actors, who appealed to the Qing legal promotion of parental dominance and filial obedience to empower themselves, were recruited into the Qing state's project of moral penetration and social control, with law functioning as a conduit and instrument that gave the design of “ruling the empire through the principle of filial piety” a concrete legal form in imperial governance.

Further information is available here. 

--Mitra Sharafi

Assistant Professorship in Legal History at Tilburg

[We have word of a listing of an Assistant Professor in Legal History job at Tilburg University, with a deadline of October 19.  DRE]

Tilburg University | Tilburg Law School is looking for an Assistant Professor in Legal History
Job description

Job opportunity for an Assistant Professor in Legal History, in the department of Public Law and Governance (PLG). PLG is a large, diverse and interdisciplinary department, home to nearly 100 academic staff and a range of legal and social science disciplines. You will develop and grow in teaching as well as research, both individually and as part of a team of ambitious scholars.

Job description
As assistant professor, you develop and teach courses in the bachelor Rechtsgeleerdheid (in Dutch), in the bachelor Liberal Arts (English) and bachelor Global Law (English), which include courses mostly in the field of legal history, as well as in humanities (European history of the early modern period). You will supervise bachelor theses. You also participate in research carried out by the team of the legal philosophy, jurisprudence and legal history scholars, part of the Department of Public Law and Governance. In the course of your appointment, you will develop a research profile, in line with the research profile and priorities of the Law School. The research conducted within Tilburg Law School is aimed at both scientific and societal relevance. It is organized into several cross-departmental research programs, including Global Law and Governance, New Modes of Lawmaking and Governance in a Multilayered Order, Law and Security, and Law and Technology. Key research themes of legal history include the history of international law, the history of commercial law and the history of public law and governance. The intended ratio between teaching and research is roughly 40%-40%, with the remaining 20% for administrative duties.

Weekend Roundup

• Simon Stern will speak online on "Reasonable Doubters: Cross-Examination, Detection, Mystification" on Wednesday, September 30, 12:30, under the auspices of the Centre for Ethics, University of Toronto.  More information here.  
  

• The INS on the Line: A Discussion with Deborah Kang at the Yale Macmillan Center online on Friday, October 23, 2020 - 12:00pm to 2:00pm, with Cristina Rodríguez, Anna O. Law, and Brendan Shanahan.
  

• Sara Mayeux, Vanderbilt Law, interviewed on Free Justice: A History of the Public Defender in Twentieth-Century America in Princeton Alumni Weekly.
  

• Theodore Gonzalves, National Museum of American History, Erika Lee, University of Minnesota, and Natalia Molina, University of Southern California at the National Museum of American History on Fear and Scapegoating during a Pandemic, online on Tuesday, September 29, 2020, 4-5 PM.

• Over at History and the Law: Sanne Ravensbergen, Leiden University, on spatial perspectives on law in Batavia

• Penn Law's Serena Mayeri in the Philadelphia Inquirer: "Ruth Bader Ginsburg made the impossible look easy." Retropolis on RBG's fateful research trip to Sweden (WaPo).
  

• Maeva Marcus on the early history of the US Supreme Court (History Channel).

• A lot, apparently: "What Trump Is Missing About American History," by Leslie M. Harris and Karin Wulf (Politico), and "What Trump Doesn't Understand about US History," by Sean Wilentz (WaPo).  The OAH's statement on the White House conference is here.

• For all you early risers: the University of Hong Kong is launching a new virtual Asian legal history seminar series, organized by the Faculty of Law and the Dept. of History. Here's the first event: a book session on Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia by LHB guest blogger this month, Nurfadzilah Yahaya (National University of Singapore) on Oct.12, 2020 at 6pm HK time (=6am ET). Register here to receive the Zoom link.
  

• A new catalogue from Lawbook Exchange: 47 Law Dictionaries: American, English and More. 

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Tel Aviv University Law and History Workshop

 [We have the following announcement.  DRE]

Tel Aviv University Law and History Workshop, Fall 2020, Thursdays, 14:15 - 15:45.  Organized by Rachel Friedman, Ron Harris & Assaf Likhovski.

Nov. 5, 2020, Jedidiah Kroncke, University of Hong Kong Faculty of Law, The Harvard Model as Domestic and International Export: A Translocal Movement of Elite Legal Integration

Nov. 12, 2020, Yair Lorberbaum, Bar Ilan University Faculty of Law, The Rise of Halakhic Religiosity of Mystery and Transcendence [paper and discussion in Hebrew]

Nov. 19, 2020, Aviram Shahal, Michigan Law School, From Konstitutzya to Huka: The Adoption of a Hebrew Term for a Constitution [discussion in Hebrew]

Nov. 26, 2020, Vanessa Ogle, University of California, Berkeley, Department of History, "Funk Money:" The End of Empires, the Expansion of Tax Havens, and Decolonization as an Economic and Financial Event

Dec. 3, 2020, Rowan Dorin, Stanford University, Department of History, The Bishop as Lawmaker in Late Medieval Europe

Dec. 10, 2020, Geraldine Gudefin, American University Department of History & Tel Aviv University, Berg Institute, "An Innocent Candor that Left No Doubt as to her Sincerity": East European Jewish Women and Jewish Law in Early 20th-Century American Courts"

Dec. 17, 2020, Emily Kadens, Northwestern Law School, "The Dark Side of Commerce: Trust, Reputation, and Cheating in Early Modern England."

Dec. 24, 2020, Idit Ben Or, Tel Aviv University Safra Center, Non-Governmental Currencies in Early Modern England: A Legal Analysis [discussion in Hebrew]

Dec. 31, 2020, Julie Cooper, Tel Aviv University, Department of Political Science, The Zionist Critique of Spinoza's Politics [discussion in Hebrew]

Jan. 7, 2020, Adam Lebovitz, Cambridge University Faculty of History, Freedom of the Press between the American and French Revolutions


*** All sessions of the workshop will take place on Zoom.  We have a limited number of slots available in each session for visitors.  Anyone who is interested in participating in a particular session must register in advance by sending an email to rachelf3@tauex.tau.ac.il. ***

Behrens on the Absent Justice Matthews

Jennifer L. Behrens, J. Michael Goodson Law Library, Duke Law, has posted The Empty Chair: Reflections on an Absent Justice, which has been published as Green Bag Almanac & Reader 131-142 (2020):

Stanley Matthews (LC)

This article examines a January 1888 letter to U.S. Supreme Court Chief Justice Morrison Waite from Associate Justice Stanley Matthews. Justice Matthews requested time away from the notoriously overworked Court’s session in order to attend the funeral of Dr. Peter Parker, renowned medical missionary and diplomat. The piece presents biographical sketches of Justice Matthews and Dr. Parker, and considers the historical context of the potential absence on the late nineteenth-century Court’s operations. 

 --Dan Ernst

Korporowicz and friends on English legal history

 A volume edited by Łukasz Jan Korporowicz (University of Lodz, Poland), Studies in English Legal History, came out earlier in 2020. It is vol.91 (2020) of Acta Universitatis Lodziensis. Here is the line-up: 

• Łukasz Jan Korporowicz, "Studies in English legal history. An introduction"
• Cerian Charlotte Griffiths, "Researching eighteenth-century fraud in the Old Bailey: reflections on court records, archives, and digitisation"
• J. Patrick Higgins, "More in common (law) than originally thought? A theoretical first comparison of the Magna Carta and the Księga Elbląska"
• Łukasz Jan Korporowicz, "Rome and Roman law in English antislavery literature and judicial decisions"
• Michael Stuckey, "John Mitchell Kemble’s Anglo-Germanic legal historiography"
• Tomasz Tulejski, "Samuel Rutherford – the monarchy of law or the monarchy of saints?"
• Thomas Glyn Watkin, "Efficacy, impact and English legal history"

Further information is available here.

--Mitra Sharafi

Ramsey on Originalism and Birthright Citizenship

Michael D. Ramsey, University of San Diego School of Law, has posted Originalism and Birthright Citizenship, which is forthcoming in volume 109 of the Georgetown Law Journal:

The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?

The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.

But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.

--Dan Ernst

Barzun on MacKinnon

Charles L. Barzun, University of Virginia School of Law, has posted Catharine MacKinnon and the Common Law:

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.

This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

--Dan Ernst

Reclamation

One thing peculiar about land is that we are predisposed to encounter it as if it was always there, seemingly naturalized from the outset without a beginning. Because histories are built upon land, its own history is obscured by later infrastructure, quickly escalating the complexity of the territory. My current book project tentatively titled Overflow - History of Land Reclamation in the British Empire focuses on the history of seaward land reclamation which entails the formation of artificial land surfaces that extend outwards over the sea using advanced geo-engineering techniques. I was motivated by the avid land reclamation that occurred in Singapore which increased in land size by 23% from 587 square kilometers in 1974 to 725 square kilometers today (slightly larger than DC metropolitan area). 

Intensive land reclamation transformed coastal areas from the late nineteenth century. Colonial governments were initially drawn to the supposed lack of ambiguity concerning the status of reclaimed land - there was little possibility of indigenous inhabitants or prior landowners of reclaimed territory so authorities were theoretically free to plan without any resistance. A territorial blank slate was the ultimate goal of colonial officials after all. But the prohibitive costs of land reclamation projects make it a last resort in expanding territory. While local colonial governments eagerly embarked on such projects, higher authorities within the imperial hierarchy based in London often asked “Is this really necessary? and “could something else be done instead?” to ensure that cheaper options were explored first. Land reclamation efforts were extremely expensive, and often completely debt-financed and thus formed risky undertakings involving huge volumes of sand, specialized equipment and vehicles, costly research into the suitability of soil and sand with its particular characteristics, labour, logistical coordination, and resettlement of people who lived in areas adjacent to reclamation sites. In Hong Kong, private enterprise was historically powerful and initiated reclamation projects. Armenian businessman Catchick Paul Chater founded property developer company Hong Kong Land which reclaimed 59 acres of land in the colony between 1889 and 1903 for example. The interests of long-established dock companies such as Butterfield and Swire, and Jardine and Matheson were aligned with that of the colonial government in the late nineteenth century although they drifted apart in the first half of the twentieth century. While businesses entrenched themselves in the area of the port, successive government administrations sometimes differed greatly from their predecessors to the extent of breaking ranks with previous policies. In addition, while the cost of reclamation was relatively low during the early years since landfill was made up of rock and soil found in abundance near sites, it became progressively expensive because fills are not easily available anymore and the sea to be reclaimed was deeper. The Admiralty too weighed in, anxious about encroachment to existing dockyard facilities. 

As land reclamation became popular throughout Empire, the coastal feature known as the foreshore which is neither wet nor always dry due to the ebb and flow of the incoming tide gained prominence. As a buffer zone, the foreshore was valuable because it provided entry to the sea. From 1830s onwards, the British government granted ownership rights to foreshores in parts of the British Isles opening them up further to construction and development but these rights were suspended in Empire. Historically, denizens of undeveloped waterfronts had survived and thrived on it because they occupied cheap land. Increasingly from the late nineteenth century onwards, the foreshore became more prized throughout Empire as a gateway to land reclamation which brought a new enemy on the horizon for residents in coastal regions - coastal development. Even when they were compensated by government authorities, rising land prices post-reclamation meant that they were unable to buy their own property back in order to live there again. Something about control over watery spaces, a relatively new form of domination, resists risk assessment necessary for compensation requests. This “hydroborder,” to borrow Isabel Hofmeyr’s term, “where the ‘normal’ anxieties of the boundary were exacerbated by ecological uncertainty” serves as the fulcrum for change.

Hofmeyr, Isabel. “Provisional Notes on Hydrocolonialism.” English Language Notes. 57, 1 (April 2019): 11-20.

--Nurfadzilah Yahaya

Parrillo on Delegated Rulemaking and Federal Taxation in the 1790s

Nicholas R. Parrillo, Yale Law School, has posted A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, which is forthcoming in volume 121 of the Yale Law Journal (2021):

The Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested they are open to the sweeping theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking’s constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics’ main response has been that these early statutes don’t count, because they fall into areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: non-coercive legislation (e.g., giving benefits) or foreign-affairs legislation.

This Article finds that the originalist critics of

Oliver Wollcott, Jr. (wiki)

rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counter-example missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the “direct tax” of 1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties’ respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was “worth in money”—a standard that the legislation stated but did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with power to divide the state into districts and to raise or lower the assessors’ valuations of all real estate in any district by any proportion “as shall appear to be just and equitable”—a phrase undefined in the statute and not a term of art. The federal boards’ power to revise valuations en masse in each intra-state tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal tax burden within the state it covered.

This Article is the first study of the federal boards’ mass revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, the nation’s fourth-largest city, by 100 percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method; (c) had a major political aspect, as the federal boards were inheriting the contentious land-tax politics that had previously raged within the state legislatures, pitting the typical state’s rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards’ power was consistent with original meaning, or, alternatively, with the Constitution’s liquidated meaning. Vesting administrators with discretionary power to make politically-charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution into practice.

More broadly, this Article is the first in-depth treatment of the 1798 direct tax’s administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution’s first two decades. It is remarkable that today’s passionate debate on whether the administrative regulatory state violates the framers’ Constitution has so far made no reckoning with this endeavor.

--Dan Ernst

Robinson, Mäkinen, Slotte, & Haara, eds., "Rights at the Margins: Historical, Legal and Philosophical Perspectives"

Earlier this year, Brill released Rights at the Margins: Historical, Legal and Philosophical Perspectives, edited by Jonathan Robinson (independent scholar), Virpi Mäkinen (University of Helsinki), Pamela Slotte (Åbo Akademi University), and Heikki Haara (University of Helsinki). A description from the Press:

The essays in this volume explore the ways rights were available to those in the margins of society. By tracing pivotal judicial concepts such as 'right of necessity' and 'subjective rights' back to their medieval versions, and by situating them in unexpected contexts such as the Franciscans' theory of poverty and colonization or today's immigration and border control, this volume invites its readers to consider whether individual rights were in fact, or at least in theory, available to the marginalized. By focusing not only on the economically impoverished but also those who were disenfranchised because of disability, gender, race, religion or infidelity, this book also sheds light on the relationship between the early history of individual rights and social justice at the margins.

Contributors: Wim Decock, Heikki Haara, Virpi Mäkinen, Alejandra Mancilla, Julia McClure, Ilse Paakkinen, Mikko Posti, Jonathan Robinson, John Salter, Pamela Slotte, and Jussi Varkemaa. 

More information, including the TOC, is available here. 

H/t New Books in Law.

-- Karen Tani

Weekend Roundup

• William S. Bush and David Tanenhaus discuss their new edited collection, Ages of Anxiety: Historical and Transnational Perspectives on Juvenile Justice, with Tamara Myers of the Society for the History of Children and Youth, here.
  

• Thanks to Kaneesha R. Johnson for the pointer to this oral history of Pauli Murray by Genna Rae McNeil and the Southern Oral History Program. 
  

• New from ASLH online: "The Southern and Western Prehistory of 'Liberty of Contract': Revisiting the Path to Lochner in Light of the New History of American Capitalism," by Gabrielle E Clark.  Abstract here.
  

• At the Washington Post's Made by History: Stony Brook University's George Aumoithe on the racist history of why some communities don't have enough ICU beds.

• Over at Lawfare: Columbia Law's Matthew Waxman on Eisenhower and War Powers.
  

•  Paul Finkelman, the president of Gratz College, was interviewed on the history of slavery and law at Gustavus Adolphus College.
  

• The University of Texas at Dallas announces the hiring of S. Deborah Kang, and Yale University announces the hiring of ASLH President Lauren Benton.
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

VanderVelde and Chin on the Reconstruction Congress and the "Chinese Question"

Lea S. VanderVelde, University of Iowa College of Law, and Gabriel Jackson Chin, University of California, Davis School of Law, have posted Sowing the Seeds of Chinese Exclusion as the Reconstruction Congress Debates Civil Rights Inclusion, from Tsinghua China Law Review 12 (2020):185-233:

Frank Leslie's Weekly (1872)(LC)

 During Reconstruction, Congress amended the Constitution to fundamentally reorder the legal and social status of African Americans. Congress faced the challenge of determining how Chinese people would fit in to the emerging constitutional structure. This article draws on a method of digitizing the Congressional Globe to more broadly explore the arguments about Chinese rights and privileges during Reconstruction. Unlike African-Americans, Chinese were part of an international system of trade and diplomacy; treatment of other people of color was understood as a purely domestic question. In addition, while a core feature of Reconstruction was ending the enslavement of African-Americans and overruling Dred Scott by making Africans Americans born in the U.S. citizens and granting them eligibility for naturalization, for Chinese, Congress chose to leave in place racial restrictions on naturalization, which had existed since 1790. This rendered them perpetual foreigners in America. With regard to labor rights, by abolishing slavery, Congress intended to raise up the freedmen, giving African Americans a chance to work on equal terms with other citizens. In the main, Congress continued to treat the Chinese people as constitutive of the so-called “Chinese question,” a nominalization that ascribed to them features of caste, from which there was little possibility of upward mobility. Congress recognized that some Chinese workers in the U.S. who were building railroads or working in mines might be subject to labor exploitation from bosses and from jobbers, sometimes white and sometimes Chinese. However, rather than intervene to liberate Chinese laborers through laws that would free them from involuntary servitude, and give them fair terms on which to compete, Congress eventually moved in another direction: excluding the Chinese altogether in 1882.

--Dan Ernst

Abrams on the Mail Fraud Statutes

Norman Abrams, UCLA Law School, has posted Uncovered: The Legislative Histories of the Early Mail Fraud Statutes:

The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime—that is, not made a crime because it serves to protect direct federal interests against harm, but rather as an auxiliary to state crime enforcement. Mail fraud is also a crime that scholars, judges and lawyers have viewed as not having any significant legislative history linked to its original enactment in 1872, nor to its two early revisions in 1889 and 1909.

This paper uncovers and elaborates on legislative history details related to each of those three legislative enactments and, along the way, presents a more nuanced view of the status of mail fraud as the original federal auxiliary jurisdiction crime.

 --Dan Ernst

Osgoode Society's "Evenings of Canadian Legal History"

The Osgoode Society for Canadian Legal History has announced "An Evening of Canadian Legal History,” a monthly lecture series to be conducted on-line via Zoom at 5:30 pm on designated Wednesdays.

September 23
Professor Jim Walker, “Legacies: The Impact of Black Activism on the History of Rights in Canada”

October 21
Professor Nina Reid-Maroney, "Vigilance:  Black Activism and Chatham’s Demarest Rescue, 1858"

November 18
Anna Jarvis and Filippo Sposini Present their Research

--Dan Ernst

Calabresi and Godi on Italian Constitutional History

Steven G. Calabresi and Matteo Godi have published Italian Constitutionalism and Its Origins in the Italian Law Journal 6:1 (2020): 23-53:

Focusing on the evolution of constitutional thought in Italy is key to understand not only Italy’s current legal order, but also constitutionalism more generally. In Italy, there has not been a true rupture point between the pre-unitary legal systems and the new constitutional order; a comprehensive study of Italian constitutional law, then, cannot do away with the preceding legal orders as modern textbooks do. And a study of modern constitutionalism cannot ignore Italy’s contribution: centuries of attempts at constitutionalizing, detached from any meaningful revolutionary vacuum. This Article sets out to fill that gap by focusing on the little known, three-centuries-long history of Italian constitutionalism, and it does so by offering many previously unpublished English translations of Italian constitutions. Part II discusses the genesis of modern constitutional thought in Italy. It focuses, in particular, on the Draft Constitution of Tuscany (1787); the Second Constitution of the Cisalpine Republic (1798); and the Constitution of the Kingdom of Italy (1802). Part III analyzes the Albertine Statute, the most famous pre-modern Italian constitution, first enacted in 1848 by the Kingdom of Piedmont and Sardinia and later extended to the entire nation following the unification of Italy in 1861. Part IV briefly focuses on the 1948 Constitution of the Italian Republic – Italy’s current constitutional document. Part V extrapolates from this history in order to make a few normative claims. A brief conclusion follows.

--Dan Ernst

Johnson on soothsayers and legal culture in medieval England

 Tom Johnson (University of York) has published the following article: "Soothsayers, Legal Culture, and the Politics of Truth in Late-Medieval England," Cultural and Social History (published online on 31 Aug. 2020). Here's the abstract: 

Soothsaying or divination has generally been understood by historians within the context of magic, popular culture, and lay religion. This article considers what it might be able to tell us about legal culture in late-medieval England. It argues that soothsayers not only offered people an alternative to the pursuit of justice in law-courts, but also different means of conceiving what justice was: they did not necessarily aim at the conclusion of peace between parties, but rather claimed to unveil the truth. Elaborating this comparison, it argues that this casts a different light on the publicity of late-medieval legal culture.

Further information is available here.

--Mitra Sharafi 

David's "Kinship, Law and Politics"

Joseph E. David, Sapir Academic College, Israel, has published Kinship, Law and Politics: An Anatomy of Belonging in the Law in Context series of Cambridge University Press:

Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentieth-century statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wide-ranging and fluid notions of belonging can be.

Some endorsements:

'Not since Charles Taylor have scholars seen such a profound inquiry into the sources of selfhood and the nature of belonging in community. Joseph David draws on a stunning range of ancient and modern, familiar and forgotten figures to probe the depths of human nature and our essential bonds of marriage and family, friendship and faith, property and state. This is interdisciplinary and interreligious scholarship of the highest caliber.'

John Witte, Jr. - Director of the Center for the Study of Law and Religion, Emory University

'Joseph David’s book is an immensely erudite and deep exploration of the meaning of belonging and identity. David’s brilliant examination of the belonging and identity in their different layers and in diverse historical settings, is of fundamental importance to the understanding of the complexity of the concept and the vital role it plays in contemporary political and cultural life.'

Moshe Halbertal - New York University

--Dan Ernst

Haksgaard on the Homestead Rights of Deserted Wives

Hannah Haksgaard, University of South Dakota Knudson School of Law, has posted The Homesteading Rights of Deserted Wives: A History, which is forthcoming in the Nebraska Law Review:

Mrs. Faro Caudill, Ironing (NYPL)

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.

–Dan Ernst

McClure on whipping in colonial India

 Alastair McClure (University of Hong Kong) has published "Archaic Sovereignty and Colonial Law: The reintroduction of corporal punishment in colonial India, 1864-1909," Modern Asian Studies 54:4 (2020), 1712-47. Here's the abstract: 

The judicial and summary punishment of whipping—absent from the Indian Penal Code (IPC) of 1860—was passed into law through Act No. VI of 1864. This legislation, tacked on as an appendage to the IPC, invested the judge with wider discretionary powers to administer violence across Indian society. In this case what emerged was an evolving attempt to enlarge the colonial state’s capacity for quotidian violence, targeting certain bodies to reaffirm, manage, and police the social hierarchies upon which colonial sovereignty depended. In the context of a slow imperial movement away from the cast-iron distinctions that had been made between groups in the early nineteenth century—distinctions that had, among other things, supported a legally enforced system of slavery—new methods to mark the value of different bodies were created. The events of the 1850s, in particular the rebellion of 1857-1858, saw the re-emergence of the colonial idea that certain bodies could withstand violence, and that violence itself could be used to create economically productive colonial societies, in debates around penal law and punishment. This article will trace this history through formal legal restrictions and informal legal cultural practices in relation to corporal punishment in colonial India. Over the course of the period under study, this legislation introduced into law what one official termed ‘the category of the “whippable”’. Charting the changing shape of this legal category along lines of race, gender, caste, class, and age, the article will argue that a logic of exceptionality, channelled here through the application of judicial violence, attempted to structure and manage Indian society in complicated ways.

Further information is available here. 

--Mitra Sharafi

Religious Normativity in Early Modern New Granada

[We have the following announcement from our friends at Max Planck.  DRE]

Religious Normativity in Early Modern New Granada

Ecclesiastical institutions and actors played key roles in the formation of normative orders in early modern  Ibero-America. Their legal historical importance is now discussed in case studies focusing on New Granada - a region which included today's Colombia, Venezuela and Ecuador - from the 16th to the 19th century. This is the subject matter of the most recent volume of the series Global Perspectives on Legal History (GPLH), edited by Pilar Mejía, Otto Danwerth and Benedetta Albani (Max Planck Institute for European Legal History).

The nine chapters of this Spanish-language volume explore the relationship between different types of religious normativity as well as their local adaptations in the archdiocese of Santafé and peripheral dioceses. With respect to the colonial period, they deal, for example, with language policy and activities of various religious orders (Dominicans and Jesuits), conflicts between regular and secular clergy, the role of educational centres (colegios and conventos) as well as with financial aspects of parish administration. Further contributions are devoted to the 19th century: in addition to the role of oaths in legal proceedings, the state-church relationship during the processes leading to independence and in Republican times both in Colombia and Venezuela is examined afresh.

The present volume is the third in a four-book series exploring the contribution of ecclesiastic institutions to normative orders in early modern Ibero-America. The first two books examined the viceroyalties of New Spain and Peru, respectively. The final volume (2021) will focus on Portuguese America (Brazil) and thus provide comparative material to the studies of Hispano-America.

More information on the volume [here].

The Fowl Affair, or How I Temporarily Swore off Puns

I once wrote about a chicken that refused to die and called the article “The Fowl Affair.” Not everyone was amused, and I was told to go with a different title by one of the editors. I was attached to the title because the idea was hatched in a graduate class years before publication. The professor who taught the class neither encouraged nor discouraged it which I took as tacit approval though he did warn me not to present the paper at lunchtime talks. The title had been a constant companion through my postdoctoral years as I drafted and revised the article so I definitely considered digging my heels in. The article won a prize from the journal and I acquiesced.

    Although common in journalism and marketing, puns are not without controversy in academic publishing. Of course, there is such a thing as going too far. The main criticism of puns in scholarly work is that they are clever but more often than not, seldom move beyond self-congratulations. Anti-punsters believe they rarely illuminate anything or push the conversation forward although as fortuitous homonyms, they are hardly any different than metaphors which academics have embraced wholeheartedly as heuristic devices. Humor in puns make people cringe and groan, irritated at the distraction or even, perceived deflection. Droll at best, puns are indeed lesser than tropes which could be explored at length as turns of phrases. By contrast, puns tend to end conversation because to explain them would destroy the fun in them. Because of this, I myself refrain from puns in my book although one of my manuscript reviewers mentioned (in a positive light so likely, a lover of puns) that there were indeed puns so I might be a natural punster after all.

Puns are delightful. They are whimsical and grant a reprieve from the serious dreariness of scholarly work at times. A pun is as an expression that achieves emphasis or humour by contriving an ambiguity, two distinct meanings being suggested either by the same word or by two similar-sounding words, according to the Oxford Dictionary of Literary Terms. Because legal history often addresses topical issues with urgency and immediacy, they could add much-needed levity to our writing. Law review articles are already notorious for being punny – here’s a sample list of delicious titles. My personal favorite is the title of a book by Rebecca J.H. Woods The Herds Shot Around the World: Native Breeds and The British Empire, 1800-1900 (2017).

Puns are supposedly untranslatable although ironically people revel in multilingual puns all the time taking advantage of similar-sounding words in many languages simultaneously. The two languages I am learning at the moment, Persian and Mandarin Chinese, are particularly full of puns. Even within one language, puns are by their very nature interdisciplinary since they exist in several domains at the same time because they layer meaning, humor and irony in a single or few words. Puns suggest evidence and expression of a hidden connection—between mind and material, ideas and things, knowing and nomenclature, and who would not want to be sensitized to these connections. The knowing recognition we get from our audience is very satisfying too and bonds us deeper with one another. I have since returned to puns as my previous post attests.

--Nurfadzilah Yahaya

ASLH Virtual Mini-Conference

 [We are only just getting around to posting here the following information, which has been up on the website of the American Society for Legal History for some time.  DRE]

The ASLH program committee has organized an exciting short program of online panels to be held on November 13-14, 2020. You can find the schedule below.  The mini-conference will be free to attend. Information about registration and virtual attendance will be posted here soon.  All times are U.S. Eastern Standard Time.

American Society for Legal History, Virtual Mini-Conference November 13-14, 2020

Friday, November 13, 2020

10:30-12:00: Panel 1 – The Everyday Materials of Colonial Legal Spaces

Introduction
Kalyani Ramnath, Harvard University

“Half Real: Space, Imagination and the Juzgado de Indios in Spanish America”
Bianca Premo, Florida International University

“Paper, People, Cloth: Mixed Courtrooms and Materiality in Colonial Indonesia”
Sanne Ravensbergen, Leiden University

“Out of Bounds in the Circum-Caribbean”
Laurie Wood, Florida State University

“Policing the Countryside in Colonial Mexico: Native Law, Custom, and Jurisdiction”
Yanna Yannakakis, Emory University

1:00-2:30: Panel 2 – Documenting Identity in the Atlantic World, 1600–1800: A Conversation

Introduction
Nathan Perl-Rosenthal, University of Southern California
Hannah Muller, Brandeis University

“Licenses in Servitude, Military Service, and Slavery: Views from the Lower Courts”
Sonia Tycko, Oxford University

“‘That no such Alien shall depart…without previously obtaining a Passport’: identification and documentation under the Aliens Acts, 1793-1794”
Hannah Muller, Brandeis University

“Between Land and Sea: Maritime Identification Documents and Terrestrial Legal Regimes”
Nathan Perl-Rosenthal, University of Southern California

Comment
Susan Pearson, Northwestern University

2:45-4:15: Panel 3 – The Preyer Prize Panel

“‘Los Hijos Son La Riqueza Del Pobre:’ Postwar Mexican Child Migration and the Making of Domestic (Im)migrant Exclusion, 1940-1965”
Ivón Padilla-Rodriguez, Columbia University

Comment
Barbara Welke, University of Minnesota

“Policing the ‘Police State’: Detention, Supervision, and Deportation During the Cold War”
Smita Ghosh, University of Pennsylvania

Comment
Lucy Salyer, University of New Hampshire

2:45-3:15: Panel 4 – Roundtable: Publishing Legal History Books in the Coronavirus Era

Wendy Strothman, The Strothman Agency
Reuel Schiller, Hastings College of the Law/Cambridge University Press
Michael Lobban, London School of Economics/Cambridge University Press
Tim Bent, Oxford University Press
Debbie Gershenowitz, University of North Carolina Press

Saturday, November 14, 2020

10:30-12:00: Panel 1 – Jefferson, Madison, and the Challenge of Abolition in the Era of the Haitian Revolution

“Slavery in the Era of the Founders”
Annette Gordon-Reed, Harvard University
Peter Onuf, University of Virginia

“Caribbean Migrants and the Non-enforcement of the 1807 Ban on the Slave Trade”
Rebecca Scott, University of Michigan
Andrew Walker, Kenyon College

Comment
Malick Ghachem, Massachusetts Institute of Technology

1:00-2:30: Panel 2 – Presidential Address & Prize Announcements

Lauren Benton, Yale University

Ho on Administrative Law in Tang Dynasty China

 [We have the following announcement from the Chinese University of Hong Kong.  DRE]

Greater China Legal History Seminar Series: Feeding the Emperor – Administrative Law in Tang Dynasty China by Prof. Norman P. Ho (Online)

The Tang Liu Dian (hereafter, “TLD”), compiled in 738–739 A.D. during the Tang dynasty, is an important administrative law code which lists out in great detail every Tang dynasty government office, as well as various official positions and their functions and obligations. The TLD is of great historical significance—it is regarded as the earliest fully extant administrative law code from China, and it served as a model administrative law code for subsequent dynasties, including the Ming and Qing dynasties. This seminar will examine Tang dynasty administrative law, as set forth in the TLD, through the specific lens of how the emperor was fed and will analyze Tang administrative regulations on feeding the emperor. This seminar will describe the specific agencies and officials who were responsible for feeding the emperor, as well as their specific functions and structures as provided by the TLD. Relevant rules in the Tang Code ?? (i.e., the Tang dynasty penal code) will also be discussed to provide a complete picture of the regulatory apparatus behind the task of feeding the emperor. Ultimately, from this examination of Tang administrative law through the emperor’s food service agencies and offices as set forth in the TLD, this seminar will also set forth some general observations regarding Tang dynasty administrative law and will argue that one of the key roles of administrative law in the Tang was to further enhance and protect the prestige, image, and power of the emperor.

Prof. Norman P. Ho is a Professor of Law at the Peking University School of Transnational Law (STL) in Shenzhen, PRC. His research interests broadly are in legal theory and legal history, and he writes specifically in the areas of premodern Chinese legal history and legal theory, comparative jurisprudence, property theory, and Asian-American jurisprudence. He has served as a visiting professor at the National University of Singapore Faculty of Law and a visiting fellow in the Center for Chinese Law (HKU Faculty of Law). Prior to joining the STL faculty, Norman practiced in the Hong Kong offices of Morrison & Foerster and Slaughter and May, where his practice focused on capital markets and private equity transactions. He received his J.D. degree from NYU School of Law and his undergraduate and graduate degrees in Chinese history from Harvard University.

CPD credits are available upon application and subject to accreditation by the Law Society of Hong Kong (currently pending).

Register here by 5pm, 17 September 2020 to attend the seminar.

Moorings

In the eastern end of the Indian Ocean, the hardening of racial boundaries from the second half of the nineteenth century onwards occurred under the aegis of a globalized imperial system. According to Dutch classification, every non-white person in the Netherlands Indies was part of a European empire. The vast majority of Indies population were of course Dutch subjects, but there were people relegated to the category of ‘Foreign Orientals.’ For example, Malays were often labeled ‘Britisch-Maleiers,’ even if in Dutch territory simply because the Malay peninsula, identified as place of origin for all Malays, had fallen under British influence in the closing decades of the nineteenth century. By the early twentieth century, Chinese subjects who originated from Taiwan were recognized as Japanese because the territory was colonised by Japan in 1895. South Asian populations in the Dutch colony on the other hand were alternatingly labelled ‘Britisch-Indiers,’ ‘Klingaleezen’ and ‘Bengaleezen.’ Because Dutch colonial censuses were not diligently undertaken, we do not know the proportion of the South Asian population throughout the colonial period; the only systematic colonial census published in 1930 put the population at 1-3% depending on their location in the vast archipelago. Evidently, urban areas in Padang, Medan and Surabaya had enough South Asians for them to have their own quarters with their own community heads.
    Yet the much older category of ‘mooren’ predated these categories, appearing in both VOC (Dutch East India Company) records and Dutch colonial government records before 1850 especially. Who were these ‘mooren’ exactly? A clue is provided by the fact that the term ‘klingaleezen’ was sometimes substituted for ‘mooren.’ By using the term ‘mooren,’ Dutch authorities linked South Indian Muslims with other Muslims much further away in Spain (who once ruled them) a few centuries before. But this link excluded non-Muslims from Malabar and parts of southern India. The ‘Hindoe-Klingaleezen’ were a “neglected” people the Dutch should pay more attention to, a Dutch newspaper lamented in 1918, which suggest that on its own, the term only referred to Muslims. Also, why did “Bengaleezen,” a label that applied to all Indians from northern India regardless of origin, remain a distinct but undifferentiated category too? Although nearly all references to ‘mooren’ after 1800 refer only to the Indian subcontinent, the term emerged out of Dutch experience in Sri Lanka from 1640 to 1796 referring to Muslims of Tamil descent who were living in Dutch Ceylon who were of mixed ethnicity. “But more likely, if not certain, is that they are descended from the 'Mooren,' or so-called Klingaleezen of the Malabar coast,” the reporter of Sumatra Courant noted in September 1871. They came mainly for trade, another reporter wrote in De Locomotief in 1873. The term, in other words had many layers some of which were shed by the Dutch colonial government who took over from the defunct VOC in 1800. By subsequently connecting the ‘mooren’ classification with the subcontinent only, the Dutch government got round the awkwardness of taking over corporate VOC rule by dint of forgetting their association with Dutch Ceylon by implying that those earlier ‘mooren’ are an artefact of an era that had recently ended. 'Mooren' in Netherlands Indies on the other hand were supposedly from the subcontinent instead. The question remains as to how the klingaleezen identified themselves since their voices are rarely found in the archives but in September 1927, a group classified as klingaleezen wrote to the colonial government requested that they not be referred as such anymore since the term is humiliating. The term “kling” had evolved into a racial slur by then in parts of Southeast Asia.
    The category of ‘Britisch-Indiers’ was taken literally. In 1886, the British government in India requested that the Dutch government accept the appointment of a ‘British-Indian Protector’ from the Straits Settlement of Penang to oversee south Indian immigrants (referred to as klingaleezen) in Deli in northeast Sumatra, the site of many tobacco plantations. The south Indian coolies who traveled to work in these plantations were not only claimed by British as subjects but made to sail from southern India to British Penang first before looping back to Deli across the Straits of Malacca although their passage was paid by plantation owners in Sumatra. Dutch authorities were aghast that their authority did not suffice, but British capital buoyed the Dutch tobacco industry and the advantage of having an interpreter in the form of the Protector enticed them to accept the appointment. This arrangement aligned with their imperialistic view of governance.
    Slightly up north, Siam challenged this conception of a world organized according to empires in the late nineteenth century as an independent nation not colonized by Europeans who nonetheless increasingly determined its borders. Through copious inter-imperial correspondence between Bangkok, Singapore and Batavia, the Dutch took it upon themselves to police the presence of Chinese, Malays and South Asians in Siam. The obsession led to the proliferation of “reispas” (travel pass) and travel certificates issued by Dutch consulates, both of which functioned as some kind of proto passport and visa, instruments that first emerged in the colonial world as the late Adam McKeown pointed out in his vast oeuvre. 
    Generally, it was impossible for most people to move freely in the Asia-Pacific region. Ultimately, colonial classification was an inscription practice obsessed with legibility and smoothness although normative confusion between categories persisted by design. Everything was coded and was capable of being endlessly recoded. While much of mobility research is preoccupied with the association between origins and destinations, we know we can move while staying still because one mechanism for mobility is paradoxically dispossession.
 

--Nurfadzilah Yahaya