Stenlund and Erkkilä on Memory, Law, and Politics

Karolina Stenlund and Ville Erkkilä, University of Helsinki, have published the introduction to a special issue of in Law and Critique on "Memory, Law, and Politics".

This introduction to the Law and Critique special issue explores the complex interplay between collective memory, law, and politics. It argues that “moral remembrance” — the strategic use of selected pasts — shapes political legitimacy, identity formation, and legal interpretation across liberal and illiberal regimes. Rejecting teleological views of legal progress, the authors highlight how both remembering and forgetting serve ideological purposes. Contributions examine diverse contexts, from authoritarian memory regulation in the GDR and contemporary Hungary to EU and international legal frameworks surrounding Holocaust remembrance, slavery memory laws, and museum-based memory practices. Together, these studies show that law not only regulates but also constructs collective memories, influencing which histories are legitimized or suppressed. By integrating perspectives from history, legal studies, and critical theory, the issue invites readers to critically assess the political stakes of legal memory-making and the selective mobilization of history in contemporary governance.

--Dan Ernst 

Siegert on State Liability in the First World War

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

The Max Planck Institute for European Legal History just published a new volume in its book series Studien zur europäischen Rechtsgeschichte: Philipp Siegert, Staatshaftung im Ausnahmezustand: Doktrin und Rechtspraxis im Deutschen Reich und in Frankreich, 1914-1919.

The First World War is sometimes called the 20th century's "primordial catastophe." It raised diverse legal questions and led to a host of fundamental changes. In volume 322 of the MPIeR's book series Studien zur europäischen Rechtsgeschichte, which has just been published, Philipp Siegert examines state liability law in Germany and France between 1914 and 1918. On the basis of a detailed analysis of both French and German archival sources, he analyses states' legal responsibility during such a state of emergency and identifies categories of "legitimate" and "illegitimate" state action that, however, were either non-existent in pre-war international law or even contradicted it. Nevertheless, these were subsequently sanctioned by the peace treaties, and even a century after 1919 remain part of the international order. The ways in which destruction, expropriation and economic war measures carried out by France and Germany were assessed and sanctioned is highly instructive for the question of state liability in international law today.

Max Planck Announces Two Doctoral Studentships

[We have the following announcement.  DRE]

The Max Planck Institute for European Legal History in Frankfurt is a world leader in researching the history of law in Europe and beyond. Its two research departments with more than 60 scholars, the unrivalled collections of its specialized library and its numerous national and international co-operations make it the central research hub for a global scientific community investigating the past, present and future of legal regimes.

We are now looking to recruit two Doctoral Students from 1 April 2020 or as soon as possible thereafter for the research programme ‘The History of European Union Employment Law’, under the supervision of Professors Thorsten Keiser and Stefan Vogenauer, dealing with the following topics:

(1) The History of EU Employment Law
(2) The History of Antidiscrimination in Labour Relations: France and Italy in Light of EU Law

Echevarria, Monferrer-Sala, Tolan and friends on law and religious minorities

We missed this one back in 2017: A. Echevarria (Universidad Nacional de Educación a Distancia, Madrid), J. P. Monferrer-Sala (Universidad de Córdoba), and J. V. Tolan (Université de Nantes) have co-edited Law and Religious Minorities in Medieval Societies: Between Theory and Praxis with Brepols Publishers. From the press:

This volume shows through the use of legal sources that law was used to try to erect boundaries between communities in order to regulate or restrict interaction between the faithful and the non-faithful; and at the same time shows how these boundaries were repeatedly transgressed and negotiated.

Muslim law developed a clear legal cadre for dhimmīs, inferior but protected non-Muslim communities (in particular Jews and Christians) and Roman Canon law decreed a similar status for Jewish and Muslim communities in Europe. Yet the theoretical hierarchies between faithful and infidel were constantly brought into question in the daily interactions between men and women of different faiths in streets, markets, bath-houses, law courts, etc. The twelve essays in this volume explore these tensions and attempts to resolve them. These contributions show that law was used to try to erect boundaries between communities in order to regulate or restrict interaction between the faithful and the non-faithful — and at the same time how these boundaries were repeatedly transgressed and negotiated.

Table of Contents after the jump:

Studies in the History of Tax Law

Just out from Hart is volume 9 of Studies in the History of Tax Law, edited by Peter Harris and Dominic de Cogan, Cambridge University:

These are the papers from the ninth Cambridge Tax Law History Conference, held in July 2018. In the usual manner, these papers have been selected from an oversupply of proposals for their interest and relevance, and scrutinised and edited to the highest standard for inclusion in this prestigious series.

The papers fall within five basic themes. Four papers focus on tax theory: Bentham; social contract and tax governance; Schumpeter's 'thunder of history'; and the resurgence of the benefits theory. Three involve the history of UK specific interpretational issues: management expenses; anti-avoidance jurisprudence; and identification of professionals. A further three concern specific forms of UK tax on road travel, land and capital gains. One paper considers the formation of HMRC and another explains aspects of nineteenth-century taxation by reference to Jane Austen characters. Four consider aspects of international taxation: development of EU corporate tax policy; history of Dutch tax planning; the important 1942 Canada–US tax treaty; and the 1928 UN model tax treaties on tax evasion. Also included are papers on the effects of WWI on New Zealand income tax and development of anti-tax avoidance rules in China.

--Dan Ernst

Thoughts from the Trenches: How to Make the Longue Durée Manageable

Thoughts from the Trenches: How to Make the Longue Durée Manageable

In 1967, the Lord Chamberlain’s Office refused to license German playwright Rolf Hochhuth’s new play, Soldiers: An Obituary for Geneva, for London’s National Theatre. The play, which decried strategic bombing during WWII, also held Winston Churchill responsible for the death of Polish General Sikorski. Sikorski had led the Polish government in exile and died in a plane accident off of British Gibraltar in 1943. Citing concerns for the Churchill family (Churchill died in 1965), the LCO first hedged on offering the license, then refused it. It would be one of the LCO’s last decisions before the end of theatre censorship in Britain the following year.

The play became the subject of intense external scrutiny for the better part of two years; libel suits stemming from the play extended the debate into the 1970s. The controversy pitted a self-professed new generation of Britons against older board members, a number of whom had not only fought in the war but were personal friends of the Churchill family. Was the play a libel on Churchill’s memory? On the nation and those involved in the war effort? Was personal reputation sacrosanct enough to justify censorship? Whose account of history was even right in the first place? And whose story was this to tell?    

Then Director of the National Theatre, Sir Lawrence Olivier, eventually backed away from the play, though the National Theatre’s Literary Director, Kenneth Tynan, continued as Hochhuth’s champion. Tynan eventually staged the play at another theatre in December 1968. The play ended up being performed in London for only a few months. The Churchill family never sued for libel, but others involved in the account of the crash did. As Tynan’s biographer notes: focused on the end of theatre censorship, Tynan had not taken into account a simultaneous strengthening of the laws of defamation [1].

When heading to London earlier this summer, there was but one single mention of Soldiers in my list of archives to see at the British Library. I knew there was some issue of libel involving Churchill, but nothing more. The case does not feature in accounts of defamation law. Indeed, the Churchill family never sued and, as I have learned since, the suits that were filed did little to influence case law. Yet, the play has quickly become a central example for my project. Beyond its intrinsic narrative interest, the Soldiers controversy enables me to tackle the interrelated threads of a very big project whose scope requires taming. Finding the case was thus something of a relief; but it was a studied find, not just a lucky one. I’ll try to explain what I mean so as to offer some suggestions about managing what can seem like ever-proliferating narrative threads when undertaking a new topic.

*          *          *

For my dissertation and first book, I read every item with “refugee” in the title I could find in the British Library catalogue and in the National Archives at Kew. From there, I worked to establish whom Britons identified as refugees over time as well as key turning points in the use of the category. Zeroing in on these moments, I extended my research on these cases in other archival and periodical sources. The research for Beyond Sticks and Stones has tested this method to the extreme. I could not hope to read everything in the British Library on reputation. How would I even find those pieces? The topic is simply too large and nebulous. What nineteenth-century novel does not hinge on matters of reputation or attempts to know character? All court cases involve “libels” – or charges. “Defamation” itself regularly refers to attacks on personal character, and seditious, blasphemous, and obscene libel. So, what to do…?  For me, the answer lies in sampling primary material early and, through those early samples, establishing initial patterns and breaking the project into more manageable pieces.

Once I had my initial research question -- What shaped the quasi-right to personal reputation? -- I began to build my bibliography and to read the secondary literature on defamation and reputation. While this is critical, to be sure, secondary reading cannot be done in isolation from primary material when defining a topic of one’s own. I start with a patch of evidence that I hope will help to establish the parameters of my subject, seeing how contemporary actors wrote about it, not just scholars in the years since.

1.     Sampling. Unable to read everything on reputation, I began with a sample from the Times of London. Over several months, I read all editorials and correspondence with the keywords “defamation,” “slander,” “libel,” “calumny,” and “reputation” between 1785, when the newspaper began, and the present. This task familiarized me with the major controversies over reputation over the past two hundred and fifty years, when the defense of reputation became a topic worthy not just of law reports, but of mainstream public commentary. I could derive from this a working timeline as well as basic patterns of debate.    

2.     The Fields of Scholarship. There are histories of the defense of reputation, but they are piecemeal. In British history, one finds key elements in accounts of privacy, celebrity, scandal, and of the media more generally. Even in the few legal histories of defamation, authors have tended to separate out different elements. We have books on obscene libel and on blasphemy, as well as a large literature that examines seditious libel and radical reform. Within the few texts on personal defamation, chapters tend to take aspects like fair comment, slander, and damages to write about their evolution separately. Sampling primary material helps, I find, to see better which seemingly separate swatches of scholarship are actually part of the same broader public conversation. This work itself ramifies, of course. I did not know when I first read that subset of Times commentary in 2016 that by 2019 I would need to track down literature on the Lord Chamberlain’s Office.

3.     Making Selections, Establishing Core Points. The task of the historian is not that of the chronicler and it shouldn’t be, even if the list of patterns and key moments were well-behaved enough that they could be included in a single volume. We seek explanations of change over time. I only half tease my students that they need to ban the words “also,” “additionally,” “furthermore” and so on – the connectors that so often stand in for stepping back to make a coherent argument. To change history by narrative accretion into history as explanation, the task is to organize chapters around the core episodes that move the argument along thematically and chronologically. This takes time and, for me, usually involves writing through several cases at a time, brainstorming comparisons along the way to help forge a compelling argument from a list of cases, points, or threads. I still remember vividly the day I first read about the Fugitive Slave Circulars for my dissertation in the summer of 2005. The contest over these Circulars crystallized issues of right, intervention, humanitarian need, and the very nature of life in British asylum and helped furnish a key turning point in my account of modern refuge. I had a hunch that I could use the material as a tool for thinking through the project as a whole. Indeed, I used it as one of my earliest conference papers and, later, for fellowships and the job market. It is still early, but the 1967-1968 question of whether to stage Soldiers feels like it has similar promise. 

Notes:

[1] Dominic Shellard, Kenneth Tynan: A Life (New Haven: Yale University Press, 2003), p. 314. 

--Caroline Shaw

Miller on Nazi Germany and American Indians

Robert J. Miller, Arizona State University Sandra Day O'Connor College of Law, has posted Nazi Germany and American Indians:

In the early 1930's, Nazi scholars, lawyers, jurists, and party officials were heavily influenced by United States law when they were developing racial policies and laws concerning Jewish people. Research demonstrates that when Nazis were turning their ideas into legislative proposals and laws that they were also carefully studying federal Indian laws and American state laws that discriminated against American Indians.

--Dan Ernst

Peace through Law: International Dispute Settlement after Versailles

The essay collection Peace Through Law: The Versailles Peace Treaty and Dispute Settlement After World War I, edited by Michel Erpelding, Burkhard Hess, and Hélène Ruiz Fabri, has now been published online on the open access Nomos website.  Its contents may be downloaded by chapter or in its entirety.

With the benefit of hindsight, presenting the Treaty of Versailles as an example of ‘peace through law’ might seem like a provocation. And yet, the extreme variety and innovativeness of international procedural and substantial ‘experiments’ attempted as a result of the Treaty of Versailles and the other Paris peace treaties of 1919–1920 remain striking even today. While many of these ‘experiments’ have had a lasting impact on international law and dispute settlement after the Second World War, and considerably broadened the very idea of ‘peace through law’, they have often disappeared from collective memories.

Relying both on legal and on historical research, this book provides a global overview of how the Paris peace treaties impacted dispute resolution in the interwar period, both substantially and procedurally. The book’s accounts of several all-but-forgotten international tribunals and their case law include references to archival records and photographic illustrations.

Jarvis's "Gambling under the Swastika"

Robert M. Jarvis, Nova Southeastern University Shepard Broad College of Law, has published Gambling Under the Swastika: Casinos, Horse Racing, Lotteries, and Other Forms of Betting in Nazi Germany (Carolina Academic Press):

Although much has been written about the Nazis, one aspect of their rule has been all but overlooked: gambling.  While philosophically opposed to gambling, in practice the Nazis relied on gambling to prop up Germany’s economy, earn hard currency, and wage war.  In this engaging new work, Professor Robert M. Jarvis (Nova Southeastern University) presents the first comprehensive look at gambling in the Third Reich.

After summarizing Germany’s pre-Nazi gambling laws, Jarvis describes how, within months of coming to power, the Nazis re-opened Baden-Baden’s famed casino (shuttered since 1872), took control of the country’s horse tracks, and encouraged citizens to play the lottery (to fund social welfare programs).  With the advent of war, the Nazis’ use of gambling increased.  While in some countries (such as the Netherlands) the Nazis used gambling to curry favor with the local citizenry, in others (such as Poland) gambling became another means of waging war.

Jarvis also takes readers inside the Nazis’ concentration and prisoner of war camps, where illicit gambling flourished.  Other subjects covered include the Nazis’ treatment of compulsive gamblers, their suppression of dog racing (due to the country’s progressive animal welfare laws), the use of gambling to carry out espionage missions, and the Nazis’ special rules for gambling by Jews.

Relying on an impressive wealth of domestic and foreign sources, Jarvis has crafted an important new account of the Nazi regime. The book includes exhaustive notes, a comprehensive bibliography, a detailed index, and 45 illuminating photographs.

Socialist Interpretations of Legal History in Soviet-Occupied Eastern Europe

[We have word of the following workshop.]  EuroStorie and Institut für Neuere Privatrechtsgeschichte, Deutsche und Rheinische Rechtsgeschichte are co-organizing "Socialist interpretations of legal history" workshop at the University of Cologne in March (22.-23.3.).

Socialist interpretations of legal history. The histories and historians of law and justice in the GDR, Poland and the Baltic states under the reign of communism

The aim of the workshop at hand is to concentrate on the interaction between historians and communist regimes, but rather than investigating the control exercised by the communist states, we focus on the position of legal historians and their representations of history. How did the historians see the recent past, and how did that affect their vision on the future? What elements remained from the era preceding communism, and with what means did the scholars find leeway between strict ideological preconditions and their scholarly identity?

After the Second World War, the Soviet occupied Eastern part of Germany, Poland and Baltic States all experienced – in a varying thoroughness – a drastic reorganization of higher education, which was purported to root socialist worldview to their respective academia. Consequently, in the following years also legal scholars advertised the anti-fascist, peaceable and democratizing characteristics of socialist law as an antidote to all what the western legal system supposedly encouraged and embodied.  At the same time western continental legal science concentrated on the long lines of legal history, constructing its view as an exact opposite to what started to take shape as the socialist legal science.

Rather than treating legal history and jurisprudence as mere political tools of the communist regimes, our workshop at hand focuses on the history of the scholarly representations of legal history and jurisprudence. We presume that writing the history of a community or a legal system left free space for scholars to express themselves as scientists, citizens and temporal subjects, even in communist regimes. Furthermore, we argue that this space for personal interpretation becomes evident in the works of the legal historians and legal scientists. 

The workshop is being arranged in a cooperation by the Centre of Excellence 'Law, Identity and the European Narratives'  at the University of Helsinki and The Institut für neuere Privatrechtsgeschichte, University of Cologne. The workshop attempts to bring together scholars and approaches from variety of disciplines and fields of study. Our confirmed key-note speakers are Michal Kopecek (Jena/Prague), Marianna Muravyeva (Helsinki) and Lauri Mälksoo (Tartu). In order to analyze the ‘socialist interpretations of legal history’ in different times and regions across the Eastern Central Europe and former USSR, our workshop concentrates on (but is not restricted to) the following characteristics of socialist legal science and historiography.

A Third Interlude: Presenting the Same Book to Different Audiences

I just returned from Paris, where I presented in the École de Droit of Sciences Po my most recent book on the history of European Law. This was the fifth time, in which I presented this book, the previous opportunities being the Law Faculty of the Universidade Nova of Lisbon, The departmental seminar of the European University Institute (the graduate school of the European Union), the joint PhD program of the University of Florence and Siena, The Annual Meeting of the American Society for Legal History (hurray!), and now Paris. As I flew back over the Ocean, I was thinking about how different each of these experiences was. 

In Lisbon, the session was mainly attended by law students. The students – who obviously read the book— wanted to know how I situated myself. They asked to which school of thought I belonged and how I distinguished myself from other scholars. They also wanted to know how Portugal would be inserted into my narrative. Did I not believe in the existence of nations? (I do not). Did I not think that European law was different, even superior, to law elsewhere? (I do not). The session at the European University Institute was mostly attended by jurists and historians. Many of them are involved in the construction of Europe through historical research but also through legal work, and they mainly wanted to know why I identify my object of study as “European Law” (for many Europeans this term designates the Law of the European Union). They also asked how I chose what to concentrate upon (in terms of subject matter but also geographical coverage), and what putting together England and the Continent taught me. In the Joint PhD, students and faculty were particularly interested to hear my views as to whether law was an important element everywhere, always, and in all regards. Do historians need to take it into account? In what ways? How can they? Participants in Italy also asked how (and what) we can know about the legal past. Many of their questions were directed at methodology: What can be learned from which type of sources and how does one piece together into a coherent narrative the multiple fragments of information that the archives contain. At the Annual Meeting, three commentators discussed the book. Their comments were mostly directed at posing questions about choice and selection. One of the commentators also discussed how my work could be situated among the various schools engaged in doing European legal history. In Paris, the public included both law professors and political scientists. They were particularly interested in the “big picture:” How law interacted with society and society with law, how European were the developments I described, and whether law was fixed or contingent, enduring or constantly changing. Listeners also wanted to hear more about how I selected what to write about and why certain important features of European law were absent. What was Europe came up several times, as did the question whether I intended to reproduce existing narratives or question them. Is law something that exists objectively or is it what jurists tell us it is, that is, a narrative that they, the jurists, can (and often do) constantly change?  

These differences can of course be fortuitous and depend on the accidental group of people that happened to gather that very same day, but my impression is that at least some of them had to do with distinct academic traditions of reading and discussing, as well as with the preoccupations of distinct listeners of distinct disciplines. I often tell students that no reader is ever faithful to a book. I certainly am not. I read books with my own questions in mind and looking for the information I most desire to find. As a result –as often happens to me with films or fiction books I really like —I can read the same book over and over again, each time seeing it differently or getting other things from it.  As Ruiz Zafón, a Spanish novelist, once said, because books are labyrinths, we need to find our own path in order to transit through them. And, as we do, we often discover what we already possess.  This voyage of discovery is ours, not the author's, and no author can ever control it.