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

Ceci n'est pas un chameau

In writing my book Fluid Jurisdictions: Arabs and Colonial Law in Southeast Asia (Ithaca: Cornell University Press, 2020), I approach legal history as a series of ‘portals.’ Each legal system and each legal device opened up a world of possibilities. The more a legal system is used, the deeper the sovereign ruler’s jurisdictions and vice versa. Likewise, each legal device such as a power of attorney echoes other similar or commensurable devices such as a wakala across legal systems and cultures further extending its utility across different jurisdictions. A series of portals connected the western end of the Indian Ocean to the eastern end allowing users to jump across huge spaces to enact various actions ranging from transferring economic power to granting a divorce. By generating links tied to institutional legal bureaucracies between otherwise disjointed points, they broadened the orbits of economic production and family responsibility. The use of colonial legal portals in particular came at high cost for most people because colonial legal systems tend to hold people captive. Before going through a portal, one had options, but once one passed through a door to colonial jurisdictions, it was hard to leave for myriad reasons.

 

I marvel at how little was opaque when it came to law in the eyes of my historical actors - the diasporic Arabs who originated from Hadhramaut in Yemen who seemed to adeptly navigate English common law, Dutch civil law and colonial reformulations of Islamic law in Southeast Asia. They created a scattered accumulation of legal documentation which we inherit today that reveal new-fangled colonial legal systems at every turn that because laws differed from island to island even as they came under a single jurisdiction at times in the vast archipelago in Southeast Asia. Colonial subjects legal practitioners were creating and discovering their own legal systems in ‘real time.’ Just like how I dwell on laws, legal classifications, legal documents, these people in the past also took time to dwell on the same things in multiple languages and idioms with higher stakes of course. To dwell is the first step towards a commitment, a willingness to engage with something strange.

 

Although I eventually turned to legal history as the main framework for my book, my original question focuses on the spaces in Southeast Asia to illuminate what truly happened in specific locations with particular jurisdictions. My starting question a decade ago was “why did Southeast Asian port-cities whose histories are often exalted for being mixed remain ethnically and socio-economically so divisive?” For example, Muslim subjects (later citizens) were divided ethnically even when classified as one community by colonial and national bureaucracies. It is tempting perhaps to merely blame European colonialism for deepening societal rifts in many ways but this is inadequate. I became intent on discovering the exact contours of the relationship amongst colonial subjects within the new colonial environments in the nineteenth century. As I dug further in the archives, I found that the diasporic peoples I was tracing were rooting themselves in Southeast Asia, intertwining their roots with that of colonial jurisdictions which deepened over time with the added weight of subjects’ expectations. Territorial jurisdictions within maritime Southeast Asia became paramount in the stories I tell although personal jurisdictions tied to older forms of sovereignty still traveled within individuals who continued to make unexpected connections across vast geographical expanses under oppressive rule.

 

To open a door, to dwell, to take root – that is the history of law in the colonies.

In the photograph on the cover of my book is a life-sized camel with a jubilant expression made out of wood, cloth and possibly metal on wheels accompanying a procession of Arabs in Surabaya located in Java who were commemorating the inauguration of Dutch Queen Wilhelmina in 1898 whose portrait is on the left. The Arabs in the foreground had their swords drawn as was customary at parades, weddings and special occasions. Amongst them, I spotted one of my main historical actors, the Kapitan Arab (head of the Arabs) of the Surabaya Arab community from the Bobsaid clan, a name I have encountered only in Surabaya. Sech Hasan bin Abdulla Bobsaid stood apart from his community slightly in front of them with his face to the camera. Clearly, he was the one who led the Arab delegation at this parade, flanked by members of his community, and the ecstatic camel and more subdued elephant replicas. The camel embodies this new creature in town – colonial legal forms which were mobile, tractable, reimagined versions of older laws moving forward into the twentieth century. My blog posts this month will focus on other aspects of this phenomenon.

 --Nurfadzilah Yahaya

Empires of Vice: A First Book with Multiple Audiences

It is a pleasure to contribute to the Legal History Blog. My first book, entitled Empires of Vice: The Rise of Opium Prohibition across Southeast Asia was published recently. Throughout the month of June, I’ll be sharing a set of posts about this book, dwelling on the multiple audiences that I hope it may “speak” to.

As Dan Ernst mentioned in his kind introduction, I received my Ph.D. in political science, currently teach at an interdisciplinary school oriented toward international affairs and policy, and have written a book in the Histories of Economic Life series of Princeton University Press. Like many interdisciplinary creatures, I find it both exciting and challenging to articulate how and why my work matters to whom.

Empires of Vice is a book for political scientists, historians, specialists of Asian Studies, and policy makers, in overlapping but different ways. It is a book about the inner life of a bureaucratic state (that urges political scientists to be more curious about how the nitty-gritty ways that states actually govern). It is also a book about the anti-opium turn of multiple European empires across Southeast Asia during the late 19^th and early 20^th centuries (that gives reasons for historians to pay more attention to a place and process of change often run roughshod over in prevailing narratives about empires and opium that focus mainly on the British empire, India, and China). And Empires of Vice is also a book about how colonial legacies have shaped Southeast Asia's illicit economies and punitive drug laws today, which more broadly addresses normative challenges and policy implications for transnational problem-solving. 

Each of my posts will elaborate on these points. In addition, I plan to incorporate brief reflections on the practical aspects of “speaking” to different audiences in our current moment.

I write a time when the COVID-19 epidemic continues to unfold globally, making travel, in-person gatherings, conferences, and many conventional ways of presenting scholarship not possible. It is also an impassioned time in the United States where I live, with resounding calls for social change, anxious aspirations for and collective action aimed at profoundly refashioning the existing order. It thus feels like an especially difficult and selfish time to have a new book out. At the same time, it is also feels like an especially important time to think about alternative modes of virtual presentation that may very well become a new norm; to figure out ways to be clear about relevance, in the sense of being explicit about when and how one’s scholarship may (or may not) speak to ongoing events without detracting from its value. 

I have benefitted immensely from wonderful examples of scholars sharing their new books through podcasts (see Claire Edington’s Beyond the Asylum with the New Books Network), online interviews (see Durba Mitra’s Indian Sex Life with Notches), blogposts (see Jill Hasday’s Intimate Lies and the Law with the Legal History Blog) and other forms of virtual presentation (see this online book party for Arunabh Ghosh’s Making it Count). I hope to add to this growing digital archive, by sharing what I wish I had known in advance of some of the podcasts, interviews, short essays that I have done recently: seemingly mundane practical details that ended up mattering a lot for expressing ideas and communicating through different types of media (zoom, phone chats, written scripts), with different types of interlocutors (interviewers as my own students, colleagues, total strangers), and for different audiences (across disciplines and beyond the academy). I’ll also be linking to recently published books by people I admire, especially first-time authors in legal history, histories of empire, political science, and Southeast Asian studies.

I’ll wrap up this first post with an invitation. I’d love to learn from others with first books with multiple audiences, and also welcome suggestions from more seasoned authors and colleagues with more experience ushering their books into the virtual world. 

In my next post, I’ll be writing with legal historians in mind as an audience, highlighting how Empires of Vice explores the inner life of bureaucracies and its use of administrative archives for British and French colonial opium monopolies across Southeast Asia. I’ll also dwell on preparing for my interview with The Docket, the digital imprint of Law and History Review. 

—Diana Kim

Author’s Photograph.
Card Catalogue at Archives nationales d’outre-mer (Aix-en-Provence, France)