Weekend Roundup

• An article in Politico on the demoralization of workers in the federal government includes the report that officials at the National Archives and Records Administration forbid the presentation of a program on “the historic context of immigration to the United States because it might attract ‘unwanted attention’" and jeopardize NARA funding. 

• On Tuesday, April 10, 2018, at 4:30 p.m., at Barat House, Boston College Law School, BC’s Clough Center for the Study of Constitutional Democracy will host The Public Roots of Private Ordering: An Institutional Account of the Origins of Modern American Arbitration, a lecture by Amalia D. Kessler, Stanford University.

•  We’re indebted to H-Law for posting Dominique Clement’s report that a complete collection of briefs to Canada's Special Joint Committee on the Constitution (1980-1) has been posted to Canada's Human Rights History.

• We realized the other day that the Great Courses is marketing a lecture series by Douglas O. Linder, University of Missouri–Kansas City School of Law, entitled The Great Trials of World History and the Lessons They Teach Us.  For many years, Professor Linder has performed an invaluable public service by gathering well-chosen materials on dazzling and ever-expanding collection of famous trials and making them available gratis.  If any professor deserves the patronage of the public for such a venture, he does!

• Harvard Law School hosted a panel discussion on George H. Gadbois Jr.' Supreme Court of India: The Beginnings this past week, featuring LHB blogger Mitra Sharafi, Mark Tushnet, and Sugata Bose. The session was chaired by Vasujith Ram, co-editor of the book, which is a posthumous publication of Gadbois' 1965 PhD dissertation. Here is an obituary for George Gadbois, who passed away in 2017, by the other co-editor of the book, Vikram Raghavan. 

• On May 8, the Supreme Court Historical Society and the John Simon Guggenheim Memorial Foundation will cosponsor a conversation between Professors Randy Barnett and Richard Primus about Modes Of Constitutional Interpretation.  Judge Patricia A. Millett will moderate the discussion. 

• The Riots of 1968: Hitting Home Here in Washington, a presentation by Jamie Stiehm, a Creators Syndicate columnist, on Saturday, April 14, 1:00pm, in the Peabody Room at Georgetown Neighborhood Library.

• ICYMI: Jed Shugerman and Ethan J. Leib, Fordham University School of Law, on the Take Care Clause and presidential pardons, in WaPo.  Also, we’ve previously noted the SSRN draft of Martin S. Lederman’s “The Law(?) of the Lincoln Assassination.”  The article is now out in the Columbia Law Review 118 (March 2018): 323-489.

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

Peabody on Slavery & Family in the French Indian Ocean

Sue Peabody, Washington State University, published Madeleine's Children: Family, Freedom, Secrets, and Lies in France's Indian Ocean Colonies with Oxford University Press in 2017. From the publisher:

Madeleine's Children uncovers a multigenerational saga of an enslaved family in India and two islands, Réunion and Mauritius, in the eastern empires of France and Britain during the eighteenth and nineteenth centuries. A tale of legal intrigue, it reveals the lives and secret relationships between slaves and free people that have remained obscure for two centuries.

 As a child, Madeleine was pawned by her impoverished family and became the slave of a French woman in Bengal. She accompanied her mistress to France as a teenager, but she did not challenge her enslavement there on the basis of France's Free Soil principle, a consideration that did not come to light until future lawyers investigated her story. In France, a new master and mistress purchased her, despite laws prohibiting the sale of slaves within the kingdom. The couple transported Madeleine across the ocean to their plantation in the Indian Ocean colonies, where she eventually gave birth to three children: Maurice, Constance, and Furcy. One died a slave and two eventually became free, but under very different circumstances. On 21 November 1817, Furcy exited the gates of his master's mansion and declared himself a free man. The lawsuit waged by Furcy to challenge his wrongful enslavement ultimately brought him before the Royal Court of Paris, despite the extreme measures that his putative master, Joseph Lory, deployed to retain him as his slave.

 A meticulous work of archival detection, Madeleine's Children investigates the cunning, clandestine, and brutal strategies that masters devised to keep slaves under their control-and paints a vivid picture of the unique and evolving meanings of slavery and freedom in the Indian Ocean world.

Praise for the book:

"What does it mean to be free? To be a slave? To belong to a family? In this remarkable book, historian Sue Peabody--one of the world's leading authorities on slavery in the French Empire--shows that these big questions are often intertwined. Through an intimate portrait of one enslaved man fighting for his dignity, Peabody shines a brilliant light on the worlds in which he and his forebears lived, stretching from India to the Mascarene Islands to the courts of Paris. This is both biography and global history at their very best." -Brett Rushforth

"This gripping family history of slavery and freedom in France and its Indian Ocean empire during the eighteenth and nineteenth centuries resurrects in inviting detail the lives of Madeleine--sold into slavery in India and freed on Bourbon Island, though not told of her manumission for nineteen years--and of her children. With help from family and friends, Furcy, one of those children held in slavery by ruse, vigorously pursued legal recognition of his free status in the Mascarene Islands of the Indian Ocean and in France--and won. Drawing on thousands of pages of archival and legal documents to reconstruct their lives with astonishing detail, Peabody presents us with the first autobiographical narrative of slaves held by French citizens and in the process illuminates the internal architectures of slavery and freedom in France's Indian Ocean colonies."-Pier M. Larson

"'Madeleine's Children' is a detailed exposition of the lives of slaves in the Indian Ocean world in the late eighteenth to early nineteenth centuries. Based on years of meticulous research, it brings vividly to life the tensions between slave-owners and slaves during a tumultuous period of shifting legal challenges to, and definitions of, slavery. Thoroughly recommended to scholars of the Indian Ocean world and of slavery." -Gwyn Campbell

Further information is available here.

Klaaren on Citizenship & Nationality in South Africa

Jonathan Klaaren, University of the Witwatersrand published From Prohibited Immigrants to Citizens: The Origins of Citizenship and Nationality in South Africa with Sandy Shepherd in 2017. From the press:

Jonathan Klaaren blends legal and social history in this engaging account of early conceptions of South African citizenship.  He argues that distinctively South African notions of citizenship and nationality come out of the period 1897 to 1937, through legislation and official practices employing the key concept of ‘prohibited immigrant’ and seeking to regulate the mobility of three population groups:  African, Asian and European.   Further, he makes the case that the regulation and administration of immigrants from the Indian sub-continent, in particular, provided the basis for the vision and eventual reality of a unified, although structurally unequal, South African population.

This book fits into the growing field of Mobility Studies, which seeks to understand and document the migration of people both within and across national borders, while exploring the origins of those borders.  In addition to nationality and citizenship, it touches on African pass laws, the origins of the Public Protector, the scheme importing Chinese labour to the gold mines, the development of internal bureaucratic legality, and India-South Africa intra-imperial relations. 

With its attention to the role of law in state-building and its understanding of the central place of implementation and administrative law in migration policy, this book offers a distinctive focus on the relationship between migration and citizenship.

Praise for the book:

"While historical attention to the pre-apartheid era migration concentrates on Africans, especially miners, this book offers a compelling reminder of the interconnections between Asian and African mobility." –Audie Klotz

Here is the Table of Contents:
 

Chapter 1 -- South African citizenship in context

Chapter 2 – Early practices of regulating mobility

Chapter 3 – The rise of borders

Chapter 4 -- Union, the Act and the Registrar of Asiatics, 1907-1914

Chapter 5 – Nationalisation of the immigration bureaucracy, 1914-1927

Chapter 6 -- African mobility and bureaucracy, 1911-1927

Chapter 7 -- The Commissioner’s population, 1927-1937

Chapter 8 – One official South Africa

Chapter 9 – Enacting nationality, 1927-1937

Chapter 10 – South African citizenship and the way forward

Further information is available here.

Agmon on French India

Danna Agmon, Virginia Tech, has published A Colonial Affair: Commerce, Conversion, and  Scandal in French India with Cornell University Press. From the publisher:

A Colonial Affair traces the 1716 conviction of Nayiniyappa, a Tamil commercial agent employed by the French East India Company, for tyranny and sedition, and his subsequent public torture, the loss of his wealth, the exile of his family, and his ultimate exoneration. Danna Agmon’s gripping microhistory is a vivid guide to the "Nayiniyappa Affair" in the French colony of Pondicherry, India. The surprising and shifting fates of Nayiniyappa and his family form the basis of this story of global mobilization, which is replete with merchants, missionaries, local brokers, government administrators, and even the French royal family.

Agmon’s compelling account draws readers into the social, economic, religious, and political interactions that defined the European colonial experience in India and elsewhere. Her portrayal of imperial sovereignty in France’s colonies as it played out in the life of one beleaguered family allows readers to witness interactions between colonial officials and locals. Students and scholars of the history of colonialism, religion, capitalism, and law will find Agmon’s narrative of European imperialism of great interest.

Praise for the book:

"A Colonial Affair is a compelling illustration of the ways in which insights from other disciplines, in this case anthropology, can deepen our understanding of the nature and dynamics of the social, economic, political, and other interactions that were an integral component of the colonial experience in India and elsewhere."

- Richard B. Allen

"A Colonial Affair is highly readable and just the perfect length for a course book. It will generate fruitful discussions not just of substance, such as the respective natures of colonies and empires, but also of method. We can learn a great deal by parsing a single ‘scandal’ from a variety of angles." - Catherine Desbarats

"This smart, nuanced, and well-researched investigation reveals the role of powerful Tamil brokers within the fractious commercial and spiritual enterprise of French India. Danna Agmon foregrounds the role of indigenous brokers in French attempts to establish their Indian Ocean trading base. A lively microhistory founded in legal records, A Colonial Affair animates and analyzes the larger problem of imperial authority in an intricate and often overlooked corner of empire. An informative and engaging read!" - Sue Peabody

"Danna Agmon's dazzling study of French India at the turn of the eighteenth century highlights facets of the encounter between Europe and India that we have often missed. It suggests the possibilities of a different kind of colonialism to that which eventuated under the English. It also tells a rattling good yarn." - David Washbrook 

Further information is available here.

Davis on Commercial Law in Medieval India

Donald R. Davis, University of Texas at Austin, has published The Dharma of Business: Commercial Law in Medieval India with Penguin. From the press:

Business law in medieval and early modern India developed within the voluminous and multifaceted texts called the Dharmashastras. These texts laid down rules for merchants, traders, guilds, farmers, and individuals in terms of the complex religious, legal, and moral ideal of dharma. This exciting book provides a new perspective on commercial law in this period. In addition to a description of the substantive rules for business, the book reinterprets the role of business and commerce within the law generally and demonstrates that modern assumptions about good business practice could benefit from the insights of this ancient tradition. It thus makes a compelling case for the relevance of the dharma of business to our own time.

 Here's the Table of Contents:

• 1: How to Read a Dharmasastra
• 2: Business Law in Context
• 3: Relationships as the Foundation of Commerce
• 4: Why Government is Necessary for Business
• 5. Virtue in Business

Further information is available here.

Shahani on Partition refugees in Bombay

Uttara Shahani (Cambridge University) has published "Refugee Legal Challenges to Bombay Government's Land Requisition Housing Scheme: Nation-making in Partitioned India" in Economic & Political Weekly 53:4 (27 Jan. 2018), 73-79. Here is the abstract:

Partition refugees who arrived in India challenged the laws that various provincial governments enacted to "regulate" and "rehabilitate" them. By looking at one of the earliest and key cases concerning writs that emerged out of Sindhi refugee legal challenges to the Bombay government's land requisition scheme of 1947-48, this article suggests that partition refugees helped to shape the legal and constitutional landscape of newly independent India. 

Further information is available here.

Sullivan & friends on religious freedom

We're getting caught up on the past few years of the University of Chicago Press' Law and Society book series. Edited by Winnifred Fallers Sullivan (Indiana University Bloomington), Elizabeth Shakman Hurd (Northwestern University), Saba Mahmood (University of California, Berkeley), and Peter G. Danchin (University of Maryland), Politics of Religious Freedom came out in 2015. Here is the abstract:

In a remarkably short period of time, the realization of religious freedom has achieved broad consensus as an indispensable condition for peace. Faced with widespread reports of religious persecution, public and private actors around the world have responded with laws and policies designed to promote freedom of religion. But what precisely is being promoted? What are the cultural and epistemological assumptions underlying this response, and what forms of politics are enabled in the process? 

The fruits of the three-year Politics of Religious Freedom research project, the contributions to this volume unsettle the assumption—ubiquitous in policy circles—that religious freedom is a singular achievement, an easily understood state of affairs, and that the problem lies in its incomplete accomplishment. Taking a global perspective, the more than two dozen contributors delineate the different conceptions of religious freedom predominant in the world today, as well as their histories and social and political contexts. Together, the contributions make clear that the reasons for persecution are more varied and complex than is widely acknowledged, and that the indiscriminate promotion of a single legal and cultural tool meant to address conflict across a wide variety of cultures can have the perverse effect of exacerbating the problems that plague the communities cited as falling short.

The second section of the book should be of special interest to LHB readers:

PART 2. History 

Preface Elizabeth Shakman Hurd 

Chapter 8. The Problem with the History of Toleration Evan Haefeli 

Chapter 9. Religious Minorities and Citizenship in the Long Nineteenth Century: Some Contexts of Jewish Emancipation  David Sorkin

Chapter 10. Varieties of Religious Freedom and Governance: A Practical Perspective Robert W. Hefner 

Chapter 11. Religious Freedom between Truth and Tactic Samuel Moyn 

Chapter 12. Religious Freedom, Minority Rights, and Geopolitics Saba Mahmood 

Chapter 13. Ceylon/Sri Lanka: The Politics of Religious Freedom and the End of Empire Benjamin Schonthal 

Chapter 14. Liberty as Recognition Nandini Chatterjee

Further information is available here.

Weekend Roundup

• Here's an op-ed we missed last week, from USA Today: Amanda Tyler (Berkeley Law) on the Trump travel ban and the lessons to be drawn from Japanese American internment.

• UPDATE: Here's another one from USA Today: Christopher W. Schmidt (Chicago-Kent/American Bar Foundation) on "what Trump-era protestors can learn from the lunch-counter sit-ins of 1960."

• From Process, the blog of the OAH: Gabriel Loiacono (University of Wisconsin, Oshkosh) on "Using Poor Laws to Regulate Race in Providence in the 1820s." (h/t @hidehirota)

• A Mankato, MN, law firm, Farrish Johnson, marks the 125th anniversary or its founding with a series of historical posts on its website.   

• John Oliver, president of the Historical Society of Hartsville, Tenn., on Andrew Jackson as a young lawyer.

• A new issue of Common-place is out. It includes Katherine Gaudet (University of New Hampshire) on "how American society handles the collateral damage of capitalism," as manifested by bankruptcy law in an eighteenth-century novel.

• Those who follow the Frank May detective series, by Lawrence Friedman (Stanford University), will be pleased to know that a new installment is now out: The Body in the Yard (Quid Pro Books).
• There's also a new mystery series set in 1920s Bombay featuring Perveen Mistry, a female Parsi lawyer. Sujata Massey's The Widows of Malabar Hill has plenty of legal historical plot twists.
• Also on South Asia, a recent blogpost by Kalyani Ramnath, Princeton University traces legal histories across the Bay of Bengal at the Archives of Economic Life in South Asia blog.

• Here’s a recording of Tyler Stovall, UC Santa Cruz, deliver his Presidential Address at the 132nd Annual Meeting of the American Historical Association, “White Freedom and the Lady of Liberty.”

• The National History Center’s next Congressional briefing is on the history of the Higher Education Act.  It will be held on Friday, February 16, 2018 from 11:30 am-12:30 pm in Rayburn House Office Building, Room 2060.

• The deadline for the 2018 Summer Institute on Conducting Archival Research of the History and Public Policy Program at the Woodrow Wilson International Center for Scholars in Washington has been extended to Sunday, February 18, 2018.

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

Khorakiwala on judicial iconography

Rahela Khorakiwala (Jawaharlal Nehru University) has published "Legal Consciousness as Viewed through the Judicial Iconography of the Madras High Court," Asian Journal of Law and Society (pub. online 8 Jan. 2018), 1-23. The article takes a historical interest in the architecture and statuary of the court. Here is the abstract: 

The Madras High Court located in Chennai, India, was established in 1862 when India was under colonial rule. It continues to exist in post-independence India after merging into the Indian legal system. In this study, I argue that the architecture and judicial iconography of the Madras High Court building reflects a recurring historical tension between Indian and British concepts of justice. This is continually reflected in the semiotics of the legal space of this high court which in turn influences the legal consciousness of the court personnel who utilize this
space. This architecture and iconography of the Madras High Court constitutes, preserves, and reinforces the ambivalent legal consciousness of those who created, occupy, and visit this space. The contemporary legal consciousness of the court personnel is thus seen to have deep historical roots. 

Further information is available here. 

Weekend Roundup

• "On Sunday, Jan. 21 at 4:30 p.m., Greenwich Library partners with the Yale Alumni Association of Greenwich to bring Yale Professor Rohit De to Greenwich Library. De will discuss India’s Living Constitution. The event will be held in the Library’s Cole Auditorium.”  H/t: Greenwich Sentinel.  

• The Washington Post's "Made by History" section recently featured several commentaries on immigration policy, including a piece by Hidetaka Hirota (CUNY) on how "keeping the Irish poor out of America helped shape our restrictive immigration policies."

• The Historical Society of the DC Circuit has announced the opening, twenty years after his death, of its oral history of Charles R. Richey (1923-1997), a Nixon appointee, in 1971, to the US District Court for the District of Columbia.  The Association of Trial Lawyers of America named him Outstanding Federal Trial Judge in 1979.  According to the Historical Society website, “Poverty shaped him....  His parents were so poor that the best they could afford for Christmas was a used basketball. In his first year at Case Western Reserve Law School, he worked five jobs, including at a funeral home, to make ends meet. He only took courses whose books he could afford.”  Judge Richey's oral history is available here.

• Michael Stolleis has posted an appreciation of Marie Theres Fögen, a Romanist and Byzantine legal historian who edited Rechtshistorisches Journal and directed the Max Planck Institute for European Legal History.

• Over at Concurring Opinions, Ronald K. L. Collins devotes one of his First Amendment News posts to legal history, including Leonard Levy, Murray Gurfein, and Gilbert Roe.

• On Monday, January 22, Georgetown Law’s Sheryll Cashin presents her book Loving: Interracial Intimacy in America and the Threat to White Supremacy, in the Washington History Seminar.

• C-SPAN will air two panels sponsored by the National History Center at the recently concludied annual meet of the American Historical Association, “History and Public Policy Centers” and “Documenting the History of the First Federal Congress.”  Check here for listings.

• Stanford Law turns 125 this year.  Here's news of the celebration.

• ICYMI:  Another reason why we still love New Zealand: “I am not the first woman to multitask.” "Journey Back in Time at the Municipal Archives," with the New York Law Journal.

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

Thiruvengadam on the Indian Constitution

Out this month with Hart is The Constitution of India: A Contextual Analysis by Arun K. Thiruvengadam, Azim Premji University. The book takes a historical approach to understanding India's Constitution. From the press: 

This book provides an overview of the content and functioning of the Indian Constitution, with an emphasis on the broader socio-political context. It focuses on the overarching principles and the main institutions of constitutional governance that the world's longest written constitution inaugurated in 1950. The nine chapters of the book deal with specific aspects of the Indian constitutional tradition as it has evolved across seven decades of India's existence as an independent nation. Beginning with the pre-history of the Constitution and its making, the book moves onto an examination of the structural features and actual operation of the Constitution's principal governance institutions. These include the executive and the parliament, the institutions of federalism and local government, and the judiciary. An unusual feature of Indian constitutionalism that is highlighted here is the role played by technocratic institutions such as the Election Commission, the Comptroller and Auditor General, and a set of new regulatory institutions, most of which were created during the 1990s. A considerable portion of the book evaluates issues relating to constitutional rights, directive principles and the constitutional regulation of multiple forms of identity in India. The important issue of constitutional change in India is approached from an atypical perspective. 

The book employs a narrative form to describe the twists, turns and challenges confronted across nearly seven decades of the working of the constitutional order. It departs from conventional Indian constitutional scholarship in placing less emphasis on constitutional doctrine (as evolved in judicial decisions delivered by the High Courts and the Supreme Court). Instead, the book turns the spotlight on the political bargains and extra-legal developments that have influenced constitutional evolution. 

Written in accessible prose that avoids undue legal jargon, the book aims at a general audience that is interested in understanding the complex yet fascinating challenges posed by constitutionalism in India. Its unconventional approach to some classic issues will stimulate the more seasoned student of constitutional law and politics.

Further information is available here. 

Margolies & McClure on Transnational Frontiers

Edited by Jaime Moreno Tejada (Chulalongkorn University, Thailand) and Bradley Tatar (UNIST, South Korea), Transnational Frontiers of Asia and Latin America since 1800 (Routledge, 2017) includes two articles of legal historical interest.

The first is by Daniel S. Margolies, Virginia Wesleyan College: "Spatiality, jurisdiction, and sovereignty in early Latin American approaches to the Law of the Sea," 85-97. An excerpt:

Jurisdictional claims over oceanic spaces in the immediate postwar period deserve close attention, since the oceanic spaces proximate to sovereign coastlines were a central focus of global competition for control of seabed resources and the ability to construct and regulate the overall jurisdictional order of the post-World War II world system. Latin American nations were at the center of this moment of political-economic competition and legal innovation, particularly Mexico, Argentina, Chile, and Peru. These nations individually and forcefully pursued expansive sovereignty and jurisdictional claims on the offshore continental shelf....The purpose of this chapter is to explore the contingent involvement of...Latin American states in this project of reconceptualizing and restructuring global ocean spaces as new varieties of sovereign and jurisdictional space, or what can be conceptualized as new or freshly expanded state space. 

The second article is by Alastair McClure, McGill University: "State building and problematic geopolitical spaces in South Asia: The Himalayas and the extradition treaty of 1855," 98-110. A passage from the opening:

In the midst of...state building drives of the nineteenth century, the Himalayan border between colonial India and Nepal...remained a relatively unmanageable terrain...[As] ruling powers began to take steps towards modern statehood, the protection of trade, control of movement, and concerns surrounding rebellious networks became increasingly important issues. Once it was clear that neat lines of sovereignty could not be drawn across the Himalayan border, the region became a site of power play between these emerging neighboring states and the individuals that transgressed the thresholds. These issues of security and power consistently spilled over ill-defined boundaries as criminals and men of "bad character" resided in or traveled through this borderland to escape punishment....Piecing together information from the correspondence between the Resident of Nepal and the British Government of India, this chapter seeks to offer insight into the "specific cultures of governance" possessed by these states...The chapter will seek to outline how the priorities of Nepal and colonial India converged and clashed through attempts to pacify this region, particularly in relation to the formation of laws of extradition and the policing and maintenance of their borders.

Further information on the book is available here and on Google Books here. 

Sen on Terra Nullius in the Andamans

Uditi Sen, Hampshire College has published "Developing Terra Nullius: Colonialism, Nationalism, and Indigeneity in the Andaman Islands" in Comparative Studies in Society and History 59:4 (2017), 944-73. Here is the abstract: 

This article explores the legal structures and discursive framings informing the governance of one particular “backward” region of India, the Andaman Islands. I trace the shifting patterns of occupation and development of the islands in the colonial and postcolonial periods, with a focus on the changes wrought by independence in 1947 and the eventual history of planned development there. I demonstrate how intersecting discourses of indigenous savagery/primitivism and the geographical emptiness were repeatedly mobilized in colonial-era surveys and postcolonial policy documents. Postcolonial visions of developing the Andaman Islands ushered in a settler-colonial governmentality, infused with genocidal fantasies of the “dying savage.” Laws professing to protect aboriginal Jarawas actually worked to unilaterally extend Indian sovereignty over the lands and bodies of a community clearly hostile to such incorporation. I question the current exclusion of India from the global geographies of settler-colonialism and argue that the violent and continuing history of indigenous marginalization in the Andaman Islands represents a de facto operation of a logic of terra nullius.

Further information is available here. 

A conversation about law's priorities

Comparative Studies in Society and History has come out with an online discussion, Priorities of Law: A Conversation with Judith Scheele, Daniel Lord Smail, Bianca Premo, and Bhavani Raman. All four scholars have published articles in CSSH over the past decade. Now, they interact in this blogpost. 

Here is the set-up:

...we invite four CSSH authors...to talk about law as a kind of evidence, one that tells us about other aspects of social life. In many of our best essays on law, it would seem that legality is shaped by something else, and the point of analysis is to understand how law interacts with a second or third factor. It might be gender, community formation, material culture, or ideas of power and truth. Often, law does not account for as much as it should. The analyst has access to a rich body of legal documents, but in treating them as evidence, it turns out that these materials point to (or belong to) discursive fields that are above the law, or beyond it, or that simultaneously call for and contradict legal decisions. The special relationship between legalism and other modes of interaction can be pervasive, even formative, without being easy to model or understand. 

In short, much of society and history remains oddly adjacent to law. Law seems always to be set apart, no matter how intimately entangled it is with the rest of life. The inadequacy of legal procedures, and their necessity, is related to this distance, which is discernible in old archival records and in ethnographic observations of contemporary legal practice. Our four interlocutors agree, for instance, that law is a specialized activity, that it involves rule-making and breaking, and that, despite its enduring ties to government, law can develop against or apart from state institutions and their interests. Law insists on its own significance and, in many cases, makes disrespect for its protocols a punishable offence. Indeed, law’s priority—in the double sense of its importance and its basis in historical precedent—pushes the conversation toward problems of origin and grounding: when is law really law, what is it ultimately based on, and who can decide? 

...We are invited to think of law as a field of mediating concepts that are variously expressed in objects (palm leaf manuscripts and websites), words (sworn oaths and public declarations), sensibilities (honor, humiliation, probity), and statuses (household head, slave, guest). We are asked to consider law as a vehicle of moral display, in which fines and damages are paid in a proud attempt to assert membership and social value. Law is compared to a coral reef, a body of materials sedimented and alive, growing and calcifying. The process, we are told, has an almost necessary relationship with formality, with texts, technicalities, and legitimating props, all of them weaponized in competitive attempts to impose the best, most authoritative forms of law. In the end, the conversation suggests that law falls prey, forever and inevitably, to its own reliance on authenticity, as its practitioners and subjects forge legal documents, swear false oaths, and bring their own extra-judicial values and social forms into the very heart of law.

You can follow the full conversation here. 

Shani on Citizenship & Democracy in India

Out this month with Cambridge University Press is How India Became Democratic: Citizenship and the Making of the Universal Franchise by Ornit Shani, University of Haifa. From the publisher: 

How India Became Democratic explores the greatest experiment in democratic human history. It tells the untold story of the preparation of the electoral roll on the basis of universal adult franchise in the world's largest democracy. Ornit Shani offers a new view of the institutionalisation of democracy in India, and of the way democracy captured the political imagination of its diverse peoples. Turning all adult Indians into voters against the backdrop of the partition of India and Pakistan, and in anticipation of the drawing up of a constitution, was a staggering task. Indians became voters before they were citizens - by the time the constitution came into force in 1950, the abstract notion of universal franchise and electoral democracy were already grounded. Drawing on rich archival materials, Shani shows how the Indian people were a driving force in the making of democratic citizenship as they struggled for their voting rights.

Praise for the book:

This is a subtle and impressive work of scholarship, which breaks new ground in the history of modern India. Using the rich, previously neglected, archive of the Election Commission, Ornit Shani documents how multi-party democracy based on adult franchise was established in a large, diverse, divided, and desperately poor country. The research is deep and thorough, the analysis robust and thought-provoking, the writing clear and often vivid. All those interested in modern India, as well as in the history of democratic practice more generally, would profit from a close reading of this book. -Ramachandra Guha

Table of Contents after the jump.

Jaffe on Gandhi, Lawyers & the Court boycott

James Jaffe, University of Wisconsin, has published "Gandhi, Lawyers, and the Courts' Boycott during the Non-Cooperation Movement" in Modern Asian Studies 51:5, 1340-68.

Here's the abstract:

This article analyses the role of the legal profession and the evolution of aspects of Indian nationalist ideology during the Non-Cooperation Movement of 1920–22. Very few legal professionals responded to Gandhi's call to boycott the British courts despite significant efforts to establish alternative institutions dedicated to resolving disputes. First identified by leading legal professionals in the movement as courts of arbitration, these alternative sites of justice quickly assumed the name ‘panchayats’. Ultimately, this panchayat experiment failed due to a combination of apathy, repression, and internal opposition. However, the introduction of the panchayat into the discourse of Indian nationalism ultimately had profound effects, including the much later adoption of constitutional panchayati raj. Yet this discourse was then and remains today a contested one. This is largely a legacy of Gandhi himself, who, during the Non-Cooperation Movement, imagined the panchayat as a judicial institution based upon arbitration and mediation. Yet, after the movement's failure, he came to believe the panchayat was best suited to functioning as a unit of village governance and administration.

Narayan on Widows and Anglo-Hindu law

In 2016, Rochisha Narayan, Yale-NUS College, Singapore, published "Widows, Family, Community, and the Formation of Anglo-Hindu Law in Eighteenth-Century India" in Modern Asian Studies 50:3, 866-97. Here is the abstract:

Late eighteenth-century colonial agrarian and judicial reforms had a direct
impact on women from elite and non-elite backgrounds. Informed by
British liberal ideologies and upper-caste Brahmanical norms, colonial policies
marginalized women’s access to, and control over, resources in the emergent
political economy. In this article, I reconstruct histories of the ways in which
Anglo-Hindu law compromised women’s status as heirs, businesswomen, and
members of society who wielded social capital with other community groups.
Focusing on widows in Banaras who commandeered their property disputes,
I illustrate that pre-colonial precedents of case-resolution under the Banaras
rulers, and practices of ‘forum shopping’ by disputants themselves, shaped
the widows’ approach to the colonial courts. Colonial judicial plans being
incommensurable to everyday life, the courts incorporated pre-colonial forms
of dispute handling and maintained a flexible approach to the practice of colonial
law under the supervision of an Indian magistrate for a period of time. These
characteristicsmade the courts popular among local society in the Banaras region.
However, British officials, insistent on applying abstract scriptural laws, aligned
customary practice to the dictates of Anglo-Hindu law. This article shows that the
narrow legal subject position available to widows under scriptural law reordered
their relationships with family and community networks to their disadvantage.

Chatterjee on women, monks, and coverture

In 2016, Indrani Chatterjee, University of Texas at Austin, published "Women, Monastic Commerce, and Coverture in Eastern India circa 1600-1800 CE" in Modern Asian Studies 50:1, 175-2016. Here's the abstract:

This article argues that economic histories of the transition to colonial economics
in the eighteenth century have overlooked the infrastructural investments that
wives and widows made in networks of monastic commerce. Illustrative examples
from late eighteenth-century records suggest that these networks competed with
the commercial networks operated by private traders serving the English East
India Company at the end of the eighteenth century. The latter prevailed. The
results were the establishment of coverture and wardship laws interpellated
from British common law courts into Company revenue policies, the demolition
of buildings. and the relocation of the markets that were attached to many of
the buildings women had sponsored. Together, these historical processes made
women’s commercial presence invisible to future scholars.

Inaugural Stein Prize to Sommer for "Polyandry and Wife-Selling in Qing Dynasty China"

[We have the following announcement from the 2017 Annual Meeting of the ASLH.]

The 2017 Stein Book Award winner is Matthew H. Sommer, Stanford University, for Polyandry and Wife-Selling in Qing Dynasty China: Survival Strategies and Judicial Interventions (University of California Press, 2015).

Matthew Sommer’s Polyandry and Wife-Selling in Qing Dynasty China is a masterful study of the marriage, sexual, and reproductive strategies of the rural poor. Drawing on twenty years of research and over 1,200 cases from central and local Chinese archives, Sommer’s book explores the prevalence of two legally prohibited and morally contra-normative practices: wife-selling and the marriage of one woman to multiple men. Husbands who could not support their wives and children sometimes brought in another man as an extra spouse in return for work or financial support. At the other end of the spectrum, a husband sometimes sold his wife to another man, who took her and her children under an agreement. The book shows why the rural poor pursued these strategies and why their villages tolerated them. It also reveals that magistrates charged by the state with enforcing a Confucian code of female chastity pragmatically accommodated the practices in the face of rural suffering. Sommer artfully weaves a narrative of gendered history from below. He shows that we cannot make a clean distinction between marriage and trafficking, or between marriage and prostitution. Sex work was in fact integral to marriage, and women’s sexual labor should be treated in this light. There is something here for everyone: law situated in the context of illegal and quasi-legal customary practices, female agency in a patrilineal and even murderously male-focused society, and real insight into the meaning of sex work, concubinage, marriage, remarriage, and brideprice (or dower) versus dowry. Sommer pushes back against gender histories that portray Chinese women only as victims, although he acknowledges that women’s agency does not make this a happy story. This powerful and concentrated study of non-elite behavior will be of lasting significance not only for the field of Chinese legal history, but also for social and gender history, as well as for the history of sex, marriage, violence, and the family.

Honorable mentions: went to Jessica Marglin for Across Legal Lines: Jews and Muslims in Modern Morocco (Yale University Press, 2016), and to Li Chen for Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural Politics (Columbia University Press, 2016).

The members of the Committee on the Peter Gonville Stein Book Award were Mitra Sharafi, chair, University of Wisconsin; Sally Gordon, University of Pennsylvania; Paul du Plessis, University of Edinburgh; Michael Grossberg, Indiana University; Kristin Mann, Emory University; Sara McDougall, John Jay College of Criminal Justice; Bianca Premo, Florida International University; and Taisu Zhang, Yale Law School.

Cheesman on the Rule of Law & Burma

In 2016, Nick Cheesman, Australian National University published "Rule-of-law Lineages in Colonial and Early Post-colonial Burma" in Modern Asian Studies 50:2, 564-601. Here is the abstract:

These days the rule of law is often invoked in Burma. Although its contemporary
salience is partly a consequence of recent global trends, the rule of law also has
lineages in the country’s colonial and early post-colonial periods. To examine
these lineages, this article distinguishes between its procedural and substantive
conceptions. Whereas the latter conception recognizes the subjects of law as
freely associating equals, the former is compatible with a range of political
practices, including those that are undemocratic. The records of decisions in
criminal cases before Burma’s superior courts during the period of British
domination suggest that some semblance of procedural rule of law did exist, and
that it was compatible with the rule of colonial difference. Out of this procedural
rule of law a nascent, substantive type emerged during the early years of
democratic life in the post-colony, before the onset of military dictatorship. The
article concludes that more effort to structure interpretations of the rule of law in
history might better enable discussion about the concept’s continued relevance.