Chalmers on Colonialism and the Law

Shane Chalmers, University of Hong Kong Faculty of Law, has posted Colonialism and Law, which appears in Elgar Encyclopedia of Comparative Law, ed. Jan Smits, Jaakko Husa, Madalena Narciso, and Catherine Valcke (Edward Elgar, 2023):

This entry offers an overview of the field of 'colonialism and law'. It begins with the field's origins in the 1980s, the emergence of anthropology and history scholarship exploring the role of law in European colonisation, along with a parallel set of political and literary studies foregrounding the violence of colonisation and the possibilities of decolonisation. The entry then outlines some of the major thematic movements of this dynamic field from the 1990s through to the 2020s, with an eye to the future. This includes studies of law as an instrument (of colonial and anti-colonial processes); of law as produced (by colonisation) and as productive (of colonial forms of authority, subjectivity and relations); of law as a site (for colonial struggles, transformations and movements) and as an imaginary (implicated in Orientalisms, old and new); of law as a gift (from Civilisation to Development) and as a measure (of such 'achievements'). 

--Dan Ernst 

Fay, "Courts of Indian Offenses, Courts of Indian Resistance"

Alexandra Fay (University of Tulsa College of Law) has posted "Courts of Indian Offenses, Courts of Indian Resistance," which is forthcoming in the Michigan Law Review (2026). The abstract: 

In the late nineteenth century, the Department of the Interior created the Courts of Indian Offenses with the express goal of eliminating elements of Native culture through the coercive power of criminal law. The courts stood on dubious constitutional grounds, they were almost universally replaced by tribal courts in the twentieth century, and they have been widely derided as crude assimilationist tools.

This Article examines the Courts of Indian Offenses to study how law and legal institutions operate as sites of colonial struggle in the American context. The Courts of Indian Offenses were formally created to criminalize Native culture. In practice, they were more complicated. Native judges entrusted with Washington’s assimilationist designs frequently declined to enforce the “Indian offenses,” instead using the courts to resolve crimes and disputes recognized by their tribal communities.

The Article uses three decades of annual reports from the Commissioner of Indian Affairs and archival records from three Courts of Indian Offenses to illustrate the structure and function of the courts at the turn of the twentieth century. It engages with concepts from subaltern studies, tribal legal studies, and law and colonialism literatures to explore how tribal law adapted and survived despite the formal imposition of Anglo-American legal forms. The Article ultimately suggests that the Courts of Indian Offenses may be understood as contested institutions through which tribal leaders preserved tribal self-government against the imperatives of empire.

The full paper is available here, at SSRN.

-- Karen Tani

CLH 12:2

Comparative Legal History 12:2 (2024) has been published.  Here are the principal articles:

Why the rule of law? A historical perspective, by Fernanda Pirie (Open access).

Why do we expect law to bring about better and more just societies? Around the world, systems of accountability are weak and dictators find ways to avoid the constraints of both national and international laws. Yet we continue to call for better laws and for aggressors to be tried for war crimes. This article brings a historical approach to this puzzle, considering some of the earliest known laws, from Mesopotamia, Rome, the Hindu and Islamic worlds and China. Drawing analogies with anthropological analysis of ritual, I suggest that such laws may portray an imagined world, one that people feel it worth invoking in the face of threats to the social order, uncontrolled aggression and the abuse of power. The paradox is that we believe in the rule of law and that we insist it should constrain power in practical and effective ways to be worth creating at all.

Revisiting the history of colonialism and international law in Indonesia: the legacies of G. J. Resink, by Eka An Aqimuddin

Power is exercised through truth claims, as seen in the case of Dutch colonialism in Indonesia. Gertrudes Johan Resink, a scholar of international law, successfully exposed the history of Dutch colonialism in Indonesia and demonstrated the pre-existence of international law before European expansion by considering the role of international law in Indonesia’s history. This article examines Resink’s legacy and the potential for elaborating further on his ideas in Indonesia’s history of international law. Although this article deals with a specific context, the Indonesian experience can contribute to the history and development of international law in the region more generally.

Moral rights and the protection of classics: A study of §51 in the Swedish Copyright Act of 1960, by Martin Fredriksson (Open access.)

This article examines §51 of the Swedish Copyright Act 1960, generally known as ‘the protection of classics’ in relation to international discourses on copyright in the mid-twentieth century. The provision in §51 protects works of cultural significance by deceased authors and artists against reproductions that are considered offensive, even if the works are in the public domain. This article analyses the arguments and motives that led Swedish legislators to draft §51 and contextualises them internationally. The origin of the protection of classics is rooted in the notion of a paying public domain, a provision which existed in various countries in the twentieth century that allowed the state to collect royalties for works in the public domain. In Swedish copyright law this economic right was reinterpreted as a moral right to protect classical works. Unlike conventional moral rights, this right aimed at protecting the interests of the public rather than the integrity of the author. The protection of classics, and to an extent the notion of a paying public domain, can be seen not so much as a regulation of intellectual property but more as a statement about cultural heritage. By showing how the protection of classics operated within the international discourse on copyright law of the twentieth century, this article explores the relation between moral rights, a paying public domain and cultural heritage.

Book reviews

--Dan Ernst.  H/t: ESCLH

Colonial Legacies in Public Law

[We have the following announcement.  DRE]

Call for Applications: Colonial Legacies in Public Law: histories, theories, pitfalls and potentials.  Tuesday, January 14, 2025 - Thursday, January 16, 2025, 12:00 PM - 5:00 PM.  Organisers: Mohsin Bhat, Tanzil Chowdhury and Eva Nanopoulos.

The Queen Mary Centre of Law and Society in a Global Context (CLSGC) is thrilled to announce a Masterclass with Professor Philipp Dann that will take place on 14-16 January 2025.

The legacies of empire and colonialism are becoming visible everywhere these days. They shape various debates in public law but also indicate a new phase of globalization. The Masterclass will study these legacies and discuss their various dimensions and implications in comparative constitutional, public international and European Union law. The Class will draw on history and political theory, especially post-/decolonial theories to contextualize public law. It will use examples (such as the concept of development and democracy) to understand how empire and colonialism have shaped constitutional, international and European Union law and their scholarly reflection over time. But it will also turn to the future and ask participants to explore the potentials (and pitfalls) for re-imagining public law and its scholarship in the 21st century through the colonial lens. The Class is an invitation to rethink public law and the role of legal scholarship in a truly global way mindful of the broader legacies of modernity and colonialism.

Please note the start and end times listed are provisional and will be confirmed at a later date.

Overview of the sessions

Session 1: Comparative Constitutional Law, the Southern Turn and Reflexive Globalization – argument and framing

On the first day, the general theme of the class will be introduced and a framework of analysis established. This includes a basic engagement with colonial history and postcolonial thought as well as a reflection on the attention of public law scholarship to these dimensions so far. The class will discuss the overarching argument that a ‘Southern Turn’ and an understanding of colonial legacies provides a foundation to rethink the conceptual vocabulary of public law in the 21st century. Comparative constitutional law is a paramount area for such reflexive rethinking of public law theory.

Session 2: International law and the concept of development

The second day will turn to international law, the scholarship of which was the first to engage with colonial legacies. The class will situate and discuss Third World Approaches to International Law (TWAIL). It will then engage in particular with the concept of development as the central paradigm to structure South-North relations in the 20th century and study its implications for international institutional, economic and human rights law in shaping international law up until today.

Session 3: Constitutional thought in reflexive globalization: examples of temporality and democracy

On day Three, the class will return to the initial argument that basic notions and the conceptual vocabulary of public law are in (and need) a process of reflexive rethinking in order to grasp and structure the realities of public authority in the multipolar world of the 21st century. The class will turn to two examples that will demonstrate this process and possible outcomes of such reflexive rethinking. One is the perspective of time and temporality that allows us to highlight distinct elements of public law; the other example is democracy, a universally used notion, which still rests on conceptual considerations arising from 19th and early 20th century Europe even though it has traveled long ago.

Session 4: European Public Law and the legacies of Empires

Scholarship on the law of the European Union as well as the law of European states has been late in engaging with postcolonial perspectives. Day Four of the class will engage with reasons for this obliviousness – and then examine various colonial legacies in these two and entangled bodies of public law. Through the colonial lens, concept such as the state (and community of states), citizenship and the common market take on new contours and become more contested and less solid as generally assumed.

About Professor Philipp Dann.  Philipp Dann is Professor at Humboldt University Berlin, where he holds the Chair in Public and Comparative Law. His research focuses on the role of law in the encounter and entanglement between South and North – in international, comparative and European law, in legal theory and legal history. He has published three monographs, ten edited volumes and is the editor-in-chief of the quarterly journal “World Comparative Law”. He is a co-founder of the ‘Law and Development Research Network’, a co-chair of the ICON chapter Germany and a principal investigator at research clusters ‘Contestations of the Liberal Script’ and ‘Varieties of Constitutionalism’. He has advised governments and other parties on constitutional matters and questions of law and development.

Format.  The Class will be text- and discussion-oriented, based on a reader comprising texts by Professor Dann and other eminent works in the field. It will unfold through four sessions of 3 hours each.   Each session will be composed of three elements: An introductory lecture by Professor Dann on the theme; discussions among smaller groups on the lecture and the assigned readings guided by an open set of questions; and a plenary discussion on the theme with Professor Dann.

Application process.  The Class is addressed to academic researchers (including PhD and postdoctoral students) with research interests broadly aligned within the themes of the Class.  Applications should be sent to Eva Nanopoulos: e.nanopoulos@qmul.ac.uk by the 20 September, with the following information:  Name; Current institution; Country of origin; Gender; Statement of interest (500 words); CV upload (up to 3 or 4 pages).

CFP: Legal Histories of Empire IV

[We are moving this post up[ because the deadline for submissions is a month away.  DRE]

Legal Histories of Empire IV: Empires in Touch.  St Michael’s College, University of Toronto, July 10-12, 2025.

Law in Empire. Law among Empires. We invite papers that consider how law has worked within empires at different times and places, how it has worked at the contact points between empires, and how imperial subjects have attempted to work law to their advantage. Law has facilitated, constituted, and enabled connections. People and societies have both suffered and benefitted from the uncertainties produced as empires have spread, imposed themselves on local populations, and competed with each other. Legal ideas have moved with people who had legal training and people without it. Institutions have formed and reformed, succeeded, failed, and produced intended and unintended consequences. In this fourth Legal Histories of Empire conference, we seek to explore these movements and connections, including the construction of illegality and non-legality. We hope to bring together historians working in different legal traditions and with a range of different sources to reveal the threads that have bound, ordered, and separated different empires, places, laws and legal traditions across the globe.

Please send abstracts to LHE2025conference@uts.edu.au by 31 August 2024. Acceptances will be sent by the middle of October 2024. We are pursuing avenues to allow us to provide funding for travel, especially for graduate students and scholars from the Global South. Those interested in seeking funding should sign up for updates from our website.

Format: Chiefly in-person. We may have some limited capacity for online participation. Please indicate on your abstract whether your participation is contingent on the availability of online participation.

Personal information: For each participant (presenter, chair, or commentator), please submit: (1) biographical details of no more than 150 words; and (2) where, and in what timezone, you will be in July 2025 if you are not physically in Toronto.

Individual papers: If you are submitting an individual paper, please submit an abstract of no more than 200 words.

Panels (of no more than 4 speakers: a chair and/or commentator can be included): If you are submitting a panel, please include (1) a panel abstract of no more than 150 words; and (2) individual paper abstracts of no more than 200 words.

Streams.  We anticipate having streams in the program on the following themes, coordinated by the scholars listedbelow. If your proposal is to a particular stream please indicate that clearly in your abstract.

Illegality in Empire: Dr David Chan Smith

The American Empire: Dr Sam Erman

Empire in Oceania: Dr Mary Mitchell

Law in Africa: Dr Yolanda Osondu

Legal Transfer in the Common Law World: Prof Stefan Vogenauer and Dr Donal Coffey

Comparing Empires: Judicial Institutions and Legal Actors: Prof Heikki Pihlajam

Grant, "Sir Edward Coke’s Infidel: Imperial Anxiety and the Origins of a ‘Strange Extrajudicial Opinion’”

The Journal of Modern History has published "Sir Edward Coke’s Infidel: Imperial Anxiety and the Origins of a 'Strange Extrajudicial Opinion,'" by Daragh Grant (University of Chicago). Here's the abstract:

In the middle of his report on the Case of the Post-nati, also known as Calvin’s Case (1608), Sir Edward Coke drew a distinction between the status of laws in conquered Christian and conquered infidel territories. Scholars have long interpreted this distinction as an expression of Coke’s interest in the Virginia Company, but the assumptions that underpin this colonial reading have recently been called into question. In this article, I revisit the influence of England’s early colonial ventures on Coke’s report. His remarks on infidels, I maintain, were intended to respond to a particular line of argument advanced before the Exchequer Chamber. Specifically, Coke aimed to foreclose the denization of Indigenous Americans in England as a result of colonial conquests, a possibility raised by counsel for both the plaintiff and the defense. Anxious about the potentially disordering implications of imperial expansion, Coke hoped to secure England’s legal order by excluding infidels from English subjecthood. But if this was what Coke intended by his remarks on infidels, what he did was furnish a new justification for colonial conquest that ran contrary to his own aims. In the conclusion of this article, I exploit this disconnect between Coke’s intentions and his actions to make a modest contribution to ongoing debates over the relationship between law and history.

Access to the full article appears to be behind a paywall.

-- Karen Tani

Blackhawk, "The Constitution of American Colonialism"

The Harvard Law Review has published "The Constitution of American Colonialism," by Maggie Blackhawk (New York University). The article appears as the Foreword to the law review's annual Supreme Court Issue. Here is an excerpt from the introduction to the piece:

The United States holds hundreds of governments in subordination. Not historically. Today. It dominates these governments and their peoples, exploits their resources, prohibits political independence, withholds representation, and imposes its own laws, values, and norms upon these governments without consent. Mere decades ago, the United States forcefully sterilized citizens of these nations3 and removed a quarter or more of Native children from their families.4 At the same time, the Supreme Court stripped these governments of the ability to police crimes in their own communities,5 unleashing widespread sexual violence and leaving more than one in three Native women vulnerable to rape.6 Just over a hundred years ago, the United States invaded these nations and held them under decades of martial law before unilaterally appointing civil governments.7 It ran detention camps on the lands of these governments8 and forced their children into boarding schools that promised to “[k]ill the Indian in [them], and save the man.”9 Federal agents beat Native children in such schools for speaking Native languages,10 held them in unsanitary conditions,11 and forced them into manual and dangerous forms of labor.12 Thousands died.13 Federal law also criminalized political and spiritual practices14 and outlawed traditional marriage and family structures.15 In the last two hundred years, the United States has engaged in campaigns of mass execution16 and slaughter against citizens of these governments to a level that many have called genocide.17

But we do not consider these problems to be problems of constitutionalism. We do not invoke this history when considering questions of good governance, citizenship, representation, the ideal design of our governing institutions, or the best distribution of power across the national government and within “our federalism.” Constitutional scholars rarely discuss the problem of American colonialism at all. We lack the very language to confront these problems in a constitutional register. Our common parlance of rights, equality, and integration fails us. Our antisubordination discourse runs out. The limits of our constitutional language are seemingly the limits of our world.18

Instead, we call the component parts of American colonialism sui generis.19 We banish each to its silo. The United States did not engage in a structured and mass campaign to remove, detain, assimilate, and destroy these governments and their peoples in the name of “civilization.” Rather, we have federal Indian law;20 the law of the territories;21 foreign relations law;22 treaty law;23 the war powers;24 and the laws of naturalization, immigration, and citizenship.25 We have the puzzle of Puerto Rico,26 the fascinating but marginalized question of Native nations,27 and the forgotten history and ongoing struggles of the state of Hawai‘i.28 All of these puzzles are seen as so illogical and alien as to withstand theorization, defy understanding, and refuse any common logic. Rather than engage with questions born of American colonialism, we have instead declared these puzzles as beyond our constitutional theory and left them to the “plenary power” of the political branches to solve.29

Yet, these colonized nations and peoples have lived on and continue to shape the government, the Constitution, and the empire we live with today.

Read on here. The journal has also published a response by Jennifer M. Chacón (Stanford Law School).

-- Karen Tani

Cromwell Dissertation Prize to Cors

At its annual meeting last month, the American Society for Legal History announced the winner of the  Cromwell Dissertation Prize, awarded by the William Nelson Cromwell Foundation in consultation with an committee of the ASLH.  The winner was Alexander M. Cors, “Newcomers and New Borders: Migration, Settlement, and Conflict over Land along the Mississippi River, 1750-1820,” Emory University, 2022.  Here is the citation:

Alexander M. Cors

This dissertation represents a sparkling contribution to what Cors terms “the legal geography of settler colonialism in the Mississippi River Valley” during a pivotal time of contact between Indigenous peoples, Europeans, and Africans. Utilizing sources in three languages from Spain, France, and four states, Cors seamlessly weaves together narratives of bottom-up experiences of individuals making claims to land under Spanish law with the expansion of state power and control over the Mississippi River territory prior to and after the Louisiana Purchase. Instead of focusing on one or two large tribal nations, Cors takes the land as his analytical frame, beautifully telling the story of how parts of four tribes moved to lands west of the river and then used Spanish land grants to protect their claims against those later made by European-Americans. The tribal claimants were surprisingly adept at achieving their goals, at least for a time, helped by Spanish legal regimes that were much friendlier to first-comers than Anglo-American law later proved to be. By focusing on the river as geography and ecosystem, Cors is able to reveal dimensions of the slave economy that relied on the mobility the river enabled. Instead of cordoning off Louisiana as a civil law territory that had little influence on surrounding states and national legal development, Cors makes Louisiana’s physical position at the mouth of the river central to the movement and migration that undergirded the expansion of slavery in the South. Settlement patterns conferred social structure, he notes, and they also conveyed legal knowledge that proved essential to maintaining property ownership during periods of transition in governance. Indeed, Cors reveals that many non-European settlers along the river resisted the imposition of colonial state power and non-native legal systems, persuading the committee of his broader argument that local land claims drove territorial law and legal practice more than treaty negotiations and national sovereignties. What makes this new history possible are the Spanish-language sources that Cors deftly mines, both for the revealing family narratives he pieces together and for new cartographic data. Cors’s maps are things of beauty, wholly original to this project, that show how indigenous communities spread along the river for decades prior to the Louisiana Purchase. The committee marveled at the way Cors advanced a deeply complex argument with beautifully crafted prose. This novel and original thesis was a joy to read and will, the committee believes, make an important and influential book.

--Dan Ernst

Sources of Early Modern Colonial Law

[We have the following announcement.  DRE]

Workshop: Sources of Early Modern Colonial Law - Global and Comparative Perspectives.  CoCoLaw Project, University of Helsinki.  November 9th and 10th, 2023

The CoCoLaw Project (University of Helsinki) is organizing a workshop that delves into the exploration of legal sources in early modern colonial law from a comparative perspective, shedding light on the perspectives of various European empires. Key questions to address include:

• What were the foundational legal sources that shaped colonial legal systems?
• How did courts, lawyers and subjects utilize these legal sources?
• In what ways did colonial legal sources differ from those in the metropolitan centers?
• What changes and trends emerged during the early modern period in this context?

Participants in the workshop are encouraged to address these questions by presenting case studies or broader syntheses related to a specific empire. Throughout the discussions, we anticipate drawing comparisons among the empires, examining the legal sources available and employed within colonial territories.

For this workshop, we are excited to announce our distinguished keynote speakers, including Alejandro Agüero from Universidad Nacional de Córdoba, Alicia Schrikker from Leiden University, and Naveen Kanalu from École des hautes études en sciences sociales.

The workshop is open to all interested participants, whether attending in person or online.

You can register using [this] link.  More information about the CoCoLaw Project and its activities [is here]. 

[Schedule after the jump.]

Burset's "Empire of Laws"

An Empire of Laws: Legal Pluralism in British Colonial Policy by Christian R Burset, Notre Dame Law School, has now been published by Yale University Press:

For many years, Britain tried to impose its own laws on the peoples it conquered, and English common law usually followed the Union Jack. But the common law became less common after Britain emerged from the Seven Years’ War (1754–63) as the world’s most powerful empire. At that point, imperial policymakers adopted a strategy of legal pluralism: some colonies remained under English law, while others, including parts of India and former French territories in North America, retained much of their previous legal regimes.
 
As legal historian Christian R. Burset argues, determining how much English law a colony received depended on what kind of colony Britain wanted to create. Policymakers thought English law could turn any territory into an anglicized, commercial colony; legal pluralism, in contrast, would ensure a colony’s economic and political subordination. Britain’s turn to legal pluralism thus reflected the victory of a new vision of empire—authoritarian, extractive, and tolerant—over more assimilationist and egalitarian alternatives. Among other implications, this helps explain American colonists’ reverence for the common law: it expressed and preserved their equal status in the empire. This book, the first empire-wide overview of law as an instrument of policy in the eighteenth-century British Empire, offers an imaginative rethinking of the relationship between tolerance and empire.

–Dan Ernst

Likhovski on Jurisprudence and Nationalism in the British Empire

Assaf Likhovski, Tel Aviv University Buchmann Faculty of Law, has posted Jurisprudence and Nationalism in the British Empire in the Early Twentieth Century: India, Egypt, and Palestine Compared, which is forthcoming in the English Historical Review:

Radhabinod Pal (Wiki)

This article discusses works on jurisprudence produced by authors from three British-ruled territories (India, Egypt, and Palestine) in the early decades of the twentieth century. It argues that these works were part of a non-Western jurisprudential wave that appeared in different parts of the British Empire at the time. Legal scholars working in these territories were not passive recipients of legal ideas imported from the metropole: their works were more cosmopolitan than those produced in the United Kingdom, using ideas drawn from English thinkers but also referring to Continental and American historical and sociological theories of law. The use of such theories was combined with an interest in the ideas and values of local religious legal systems (Hindu law, Islamic law, and Jewish law, respectively). These systems were depicted as superior to Western law—not only because local legal scholars saw them as the historical source of Western jurisprudential conceptions but also because they were viewed as a possible source of collectivist values that would replace the individualist values of transplanted Western law. While there were many similarities between the works written in the three territories, the article also highlights certain differences in the way religious legal systems were viewed in the places examined. 

--Dan Ernst

Littlewood on Public Nuisance, Tax Avoidance, and George Grey in 19th-C New Zealand

Michael Littlewood, University of Auckland Faculty of Law, has posted three papers on nineteenth-century New Zealand.  The first is a short paper, Public Nuisance in Aotearoa New Zealand in 1849.  It “examines the Constabulary Force Ordinance enacted by the legislature of the New Zealand Province of New Munster in 1849" for its revelations into the everyday life of the time.  A second paper, Nothing New under the Sun: Tax Avoidance in Otago in 1856, reports on a tax on river crossings.  The third Sir George Grey’s Machiavellian Constitutional and Fiscal Reforms in Aotearoa New Zealand, 1845–1876:

Sir George Grey (wiki)

This paper examines the evolution of the New Zealand tax system from 1845 to 1876. The key to this period is the New Zealand Constitution Act 1852 (UK), which was devised by the Governor, Sir George Grey, and which divided the Colony into six provinces. There were hardly any roads, so allowing isolated settler communities a degree of autonomy made obvious sense. Grey’s more sinister aim, however, was to retain control of the purse-strings and thus dictate policy generally. In this he was markedly successful: the Act gave the Governor tight control over the Colony’s two main sources of revenue (land sales and customs duties) and also over the military (which he used to confiscate Maori land). The provinces were free to build and operate roads, wharves, railways, schools, hospitals and so on — but they had to either persuade the Governor to supply funding or pay for them themselves.

Twenty years later the difficulties of communication had been largely solved and the Colonial Government, spectacularly insolvent prior to Grey’s arrival, was financially secure. The provinces had served their purpose and in 1876 they were abolished. Since then, New Zealand has had one of the most centralised systems of government and taxation in the world, and the Maori people are still suffering from the catastrophic loss of their land.

--Dan Ernst

Yannakakis, "Since Time Immemorial: Native Custom and Law in Colonial Mexico"

Duke University Press has published Since Time Immemorial: Native Custom and Law in Colonial Mexico (2023), by Yanna Yannakakis (Emory University). A description from the Press:

In Since Time Immemorial Yanna Yannakakis traces the invention of Native custom, a legal category that Indigenous litigants used in disputes over marriage, self-governance, land, and labor in colonial Mexico. She outlines how, in the hands of Native litigants, the European category of custom—social practice that through time takes on the normative power of law—acquired local meaning and changed over time. Yannakakis analyzes sources ranging from missionary and Inquisition records to Native pictorial histories, royal surveys, and Spanish and Native-language court and notarial documents. By encompassing historical actors who have been traditionally marginalized from legal histories and highlighting spaces outside the courts like Native communities, parishes, and missionary schools, she shows how imperial legal orders were not just imposed from above but also built on the ground through translation and implementation of legal concepts and procedures. Yannakakis argues that, ultimately, Indigenous claims to custom, which on the surface aimed to conserve the past, provided a means to contend with historical change and produce new rights for the future.

Advance praise:

“Rejecting an older bibliography that romanticized Native customs as ancient and autochthonous, Yanna Yannakakis studies how customs were formulated, how they changed, and how they became central to both law and politics during the colonial period. Rather than conserving a past, she astutely points out that customs enabled a host of different actors to adjust to a present and dream of a better future.” — Tamar Herzog

“Since Time Immemorial is a compelling study of how Indigenous communities in colonial Mexico adapted European concepts of custom to their own communal lifeways. It shows how they advanced those reformulated versions in Spanish courts of law, responding strategically to global changes and challenges in the name of local custom, ironically. As with her first book, The Art of Being In-between, Yanna Yannakakis has written a classic in the field of Latin American history.” — Kevin Terraciano

More information, including free access to the Introduction, is available here.

-- Karen Tani

Diversity, Dilemmas and Discoveries: Legal History in the Curriculum

[We have the following CFP.  DRE]

Diversity, dilemmas and discoveries: Legal history in the curriculum

15 December 2022, The Open University Law School, Legal History Research Cluster

What is the place and purpose of legal history in the wider law school curriculum? Research in the field increasingly engages with socio-legal approaches, histories of oppression and discrimination, and critical perspectives on the role of law. As law schools seek to diversify, liberate and decolonise the curriculum, legal history can and should play a vital role.

This online conference will explore how legal history contributes to the curriculum of the modern law school. We invite proposals for 15-minute papers on any aspect, and particularly welcome those which address the central theme of diversity, dilemmas and discoveries.

Abstracts (not exceeding 300 words) should be submitted by email to OULS-legalhistory@open.ac.uk by Friday 11 November 2022.

CFP: History of Prison Reform in Colonial and Postcolonial Contexts

[Here is a legible version of a previously posted call for papers.  DRE]

History of Prison Reform in Colonial and Postcolonial Contexts: Hope and Disappointment
17-19 June 2024, Sapir Academic College, Israel

This workshop will explore the history of prison reform in the colonial context, its hopes and failures. It seeks to broaden our understanding of the distinctiveness of penal reform in colonial and postcolonial territories, and to clarify how it differs from its implementation in other, non-colonial settings. The claim of promoting penal reform was often an explicit part of the colonial 'civilizing mission' and its application an indicator of progress. Proclaimed reformist intentions, however, were often not fulfilled in practice. Historians have examined the violent and oppressive practices of colonial penal regimes. A considerable part of this scholarship criticizes the Eurocentricity of the progressive reformist narratives, often underpinned by the Foucauldian argument about a shift from corporal punishment to imprisonment, and laced with disciplinary and surveillance knowledge-power technologies. These studies reveal that within the colonial context, the European penal model underwent transformations, both deliberate and unintended ones.

Postcolonial accounts of penal regimes critically analyze the implementation of reformist, humanitarian institutions and ideas. While reformist ideology explicitly advocates for humanistic values, in practice it can nonetheless support imperial projects of control over foreign bodies. The proposed workshop will explore the implementation, rejection and manipulation of reform mechanisms of the penal system in colonial settings by the various social players that were involved in these practices. Who were the players advocating for reform and what was their agenda? When reformist practices and institutions were transplanted to colonial settings, how did they change? In what ways were the subalterns able to influence the meaning of these practices? What impact did the broader political, administrative and societal context have on these practices? In what ways are the achievements and failures of reform different in a colonial and non-colonial context? The participants in the proposed international workshop will work together towards providing answers to these fundamental questions that stand at the heart of current debates on colonial punishment and the shortcomings of penal reforms.

Submission Guidelines:  The workshop will be held at Sapir Academic College, Israel on 17-19 June 2024. All participants will be expected to submit a working paper by 10 May 2024, to be distributed to the other participants. Those interested in participating in the workshop are welcome to send a one-page proposal in English, along with a short C.V., by 18 October 2022. The proposal should briefly state the topic and outline how the paper contributes to the aims of the workshop. We hope to publish selected papers from the workshop as a book or a special journal issue. Please send the above and refer any questions to Orna Alyagon Darr (oad@mail.sapir.ac.il). Financial assistance for airfare and accommodation will be offered depending on funding.

AJLH 62:2

Here is the TOC for American Journal of Legal History 62:2 (June 2022):

British Policy towards the Incorporation of the Baltic States into the USSR: A Dilemma of de facto and de jure Recognition    
Evgeny Tikhonravov
 
The Judicial Failsafe: American Legal Colonialism in the Philippines    
Timothy J Foley
 
Amnesty and the Limits of Transitional Justice in Brazil: The Case of Expelled Low-Ranking Soldiers, 1964–2014    
Marilia Corrêa
 
Book Reviews
 
Susan J. Pearson, The Birth Certificate: An American History    
Teal Arcadi
 
Inge Van Hulle, Britain and International Law in West Africa    
Joyman Lee
 
Anne Gray Fischer, The Streets Belong to Us: Sex, Race, and Police Power from Segregation to Gentrification    
Marie-Amélie George

--Dan Ernst

Weekend Roundup

• New online from the AJLH and Oxford Academic: The Judicial Failsafe: American Legal Colonialism in the Philippines, by Timothy J Foley.
  

• William & Mary Libraries announces a new Archive of American LGBTQ Political and Legal History.
  

• 
  ABA Silver Gavel Awards went to "My Name is Pauli Murray," directed by Betty West and Julie Cohen, and to the issue “Black Legal History in Oklahoma,” Oklahoma Bar Journal (May 2021).

• Tomorrow in Quincy, Illinois, a program “on Lincoln’s years as lawyer in Illinois and how those years shaped his presidency.”  (Herald-Whig).

• Tomiko Brown-Nagin on Civil Rights Queen: Constance Baker Motley and the Struggle for Equality, before the Columbia Alumni Association, Washington, DC, Chapter on July 12, 2022 at 6:00pm - 7pm, moderated by Rhonda Colvin.   More.

• "A Constitution Against Oligarchy?" In the New Rambler, Evan Bernick (Northern Illinois University College of Law) reviews The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy, by Joseph Fishkin and William E. Forbath. 

• In the Washington Post's "Made by History" section: Mytheli Sreenivas (Ohio State University), "The tie between the Buffalo shooting and banning abortion"; Gillian Frank and Neil J. Young, "What everyone gets wrong about evangelicals and abortion.

•  ICYMI: A Smithsonian curator of medicine and science on Griswold v. Connecticut (Smithsonian).  How the Government Helped White Americans Steal Black Farmland (TNR).  Brittany Hunter for the Pacific Legal Foundation on the Downton Abby law.  Aviam Soifer on the Supreme Court’s “text mess “ (The Hill).  Sophia Dodd for the Atlanta History Center on Reproductive Rights in Georgia: Doe v. Bolton.
  

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

Inagaki on the Rule of Law and Emergency in colonial India

Haruki Inagaki (Aoyama Gakuin University, Japan) has published The Rule of Law and Emergency in Colonial India: Judicial Politics in the Early Nineteenth Century with Palgrave Macmillan. From the press:

This book takes a closer look at colonial despotism in early nineteenth-century India and argues that it resulted from Indians’ ‘forum shopping,’ the legal practice which resulted in jurisdictional jockeying between an executive, the East India Company, and a judiciary, the King’s Court. Focusing on the collisions that took place in Bombay during the 1820s, the book analyses how Indians of various descriptions—peasants, revenue defaulters, government employees, merchants, chiefs, and princes—used the court to challenge the government (and vice versa) and demonstrates the mechanism through which the lawcourt hindered the government’s indirect rule, which relied on local Indian rulers in newly conquered territories. The author concludes that existing political anxiety justified the East India Company’s attempt to curtail the power of the court and strengthen their own power to intervene in emergencies through the renewal of the company’s charter in 1834. An insightful read for those researching Indian history and judicial politics, this book engages with an understudied period of British rule in India, where the royal courts emerged as sites of conflict between the East India Company and a variety of Indian powers.

Praise for the book: 

 “Inagaki’s methodical study demonstrates how the Company’s disputes and eventual subjugation of the independent King’s Court in Bombay embedded the logic of state necessity and perpetual emergency into the governing fabric of the British colonial regime. In so doing, it offers a compelling and important new insight into how colonial rule privileged security and political order over the rule of law.” - Mark Condos

“Britain’s empire did not arrive fully formed in India. Haruki Inagaki’s superbly-researched, well-argued book traces its emergence in a proliferating set of arguments between different groups of British officers, who variously fought with and co-opted Indian elites. It traces the debates which raged amongst British officers about the character of Britain’s presence in India during the early nineteenth century, in doing so unravelling the fractured, debated character of the imperial enterprise itself. British India’s Imperial constitution was, he argues, forged within the opposition between radically different logics of power. Inagaki’s book offers a compelling account of the real life of empire in motion. A vital contribution to the burgeoning field of imperial legal history, it speaks well beyond narrow thematic categories, and is vital reading for anyone interested in the history of empire more broadly and the Indian subcontinent.“ - Jon Wilson

Further information is available here.

--posted by Mitra Sharafi

Evans on empire and madness

Catherine Evans (University of Toronto) has published Unsound Empire: Civilization and Madness in Late-Victorian Law with Yale University Press. The publisher calls this a "study of the internal tensions of British imperial rule told through murder and insanity trials." More from the press:  

Unsound Empire is a history of criminal responsibility in the nineteenth‑century British Empire told through detailed accounts of homicide cases across three continents. If a defendant in a murder trial was going to hang, he or she had to deserve it. Establishing the mental element of guilt—criminal responsibility—transformed state violence into law. And yet, to the consternation of officials in Britain and beyond, experts in new scientific fields posited that insanity was widespread and growing, and evolutionary theories suggested that wide swaths of humanity lacked the self‑control and understanding that common law demanded. Could it be fair to punish mentally ill or allegedly “uncivilized” people? Could British civilization survive if killers avoided the noose?

Praise for the book: 

 “Unsound Empire reconnoitres with late-Victorian jurists and medical men struggling with prisoners too dangerous to release and too mad to hang.  Catherine Evans’s micro-histories are strewn with eccentric characters and thick with tales that sparkle with stunning prose.” -Constance Backhouse

“This original, bold and beautifully crafted book brings legal history, the history of medicine and imperial history into dialogue. A must-read for anyone interested in a critical history of the British Empire.” -Renaud Morieux

 “Deeply researched and grippingly written, Unsound Empire demonstrates the centrality of imperial rule to the making of the common law and of legal competence to the emergence of political subjecthood, fundamentally transforming histories of law, medicine, and empire.” -Rohit De

Further information is available here.

--Mitra Sharafi

Medhi on the Indo-Afghan frontier

 Abhilash Medhi (Mount Holyoke) has published "Infrastructural Contingencies and Contingent Sovereignties on the Indo-Afghan Frontier" in Modern Asian Studies (2020), 1-38. Here's the abstract:

The Khyber Pass Railway is a defunct 42-kilometre-long railway line that connects the western reaches of Peshawar to the Afghan border. Completed in 1925 mainly to carry British troops, the railway line failed to attract decent passenger or commodity traffic. Instead, it made an impact on a more primal register. Negotiations carried out between the British Government of India and populations from around the Khyber to allow its construction reproduced and rearranged lines of authority among the latter. They also embedded colonial administrators in tribal hierarchies. Efforts to acquire land and labour opened up spaces of collaboration between the colonial administration and members of frontier tribes, effectively contributing towards a reconfiguration of sovereign power in the area. This article weaves questions of customary law and colonial legal cultures into a retelling of the history of the Khyber Pass Railway. Examining transactions across three domains of sovereign power—the economic right to use land, extension of juridical regimes, and territorial control—it argues that the operation of sovereignty in the late-colonial Indo–Afghan frontier did not adhere to conventional ideas about its concentration and monopoly. The colonial government as well as members of frontier tribes deployed the inconclusive nature of their transactions strategically and, often, sovereign power lay with the stakeholder who could determine which domains fell within the bounds of the sovereignty question and which domains fell without.

Further information is available on the Modern Asian Studies website via Cambridge University Press.

--Mitra Sharafi