Funk on Oathtaking in American Law

Kellen Funk, Columbia Law School, has posted The Swearer's Prayer:

Police Court, 1912 (NYPL)

At the time elite Americans abandoned or modified Christian theologies of perdition, American procedural law relied ever more strongly on the traditional link between law and the theology of divine punishment: the testimonial oath. While conventional histories of American evidence law tell a rather straightforward modernization story of a move from premodern sacral modes of prooftaking to rational forensic modes of examination, this paper shows that oathtaking did not diminish under modern law reform but significantly expanded with the influence of New York's code of 1848. For the first time in America, procedure codes required all pleadings to be sworn by the parties, and all parties and interested witnesses were made competent to take the oath and testify on the stand. Lawyers at first expected the dread of cross examination to deter perjury, but they quickly adjusted their theories in practice to detect lying under oath, which they believed had become rampant under the codes. The lawyers' faith in their ability to detect truth were stymied as racialized witnesses came before the bar. In order to account for racial disqualifications on testimony in a world increasingly open to party testimony (and perjury), lawyers revived an older theology of perdition, swirling together supposedly premodern and rational modes of investigation well into the twentieth century.

--Dan Ernst

Barclay on Judical Religious Exemptions

Stephanie H. Barclay, BYU Law School, has posted The Historical Origins of Judicial Religious Exemptions, which is forthcoming in the Notre Dame Law Review:

The Supreme Court has recently expressed a renewed interest in the question of when the Free Exercise Clause requires exemptions from generally applicable laws. While scholars have vigorously debated what the historical evidence has to say about this question, the conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise — a sea change in the American approach to judicial review when compared to the English common law.

This Article, however, questions that assumption and looks at this question from a broader perspective. When one views judicial decisions through the lens of equitable interpretation, one finds historical evidence of widespread judicially created exemptions that have been hiding in plain sight. Indeed, the judiciary’s ability to modify statutes to cohere with higher law principles like constitutional rights was widely accepted in the early Republic. Though the judiciary did not always use modern language of exemptions, this was functionally what judges were doing on a large scale throughout the country and across a host of personal rights. The mode of analysis courts used to create these equitable exemptions also provides an important historical antecedent for modern strict scrutiny analysis.

An understanding of wider historical judicial practices helps avoid the trend of treating free exercise judicial remedies as an island in the law, and it also provides additional support for an original understanding in favor of religious exemptions. Thus, contrary to the conventional view, this Article demonstrates that judicially created religious exemptions are well within our constitutional traditions of judicial review, and may have more historical support than the Court’s current approach.

--Dan Ernst

Max Planck Studies in Global Legal History of the Iberian Worlds

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.  DRE]

The Max Planck Institute for European Legal History has a new publications series: Max Planck Studies in Global Legal History of the Iberian Worlds (MPIW) will present legal historical research on the Iberian worlds of the early modern and modern periods. Its volumes will cover not only regions that were part of the Spanish and Portuguese empires or stood in direct contact with them, but also examine the globalisation and localisation of normative knowledge throughout Europe, America, Asia and Africa. A particular emphasis lies on the investigation of cultural translation processes and phenomena of multinormativity. The series, edited by Thomas Duve, is published in Open Access, and in print as a hardcover edition by Brill.

The first volume now published - Knowledge of the Pragmatici: Legal and Moral Theological Literature and the Formation of Early Modern Ibero-America - is devoted to a long underestimated genre of normative literature that was of great significance for the formation of normative orders in early modern Ibero-America: small handbooks written for practical use. These could contain legal texts, but moral theological works and confession manuals were also among these widely used media, which were particularly important for the everyday practices of norm production.

The definition of this genre, as well as its function, dissemination and use from the 16th to the 18th century are the focus of the eleven contributions to this volume, which brings together the results of a collaborative research project (SFB 1095). A number of contributions focus on the methods of norm generation in the early modern period, in particular the role of pragmatic literature in these processes and the practices of epitomisation characteristic of this genre. The volume also includes studies on important authors (such as Martín de Azpilcueta) and on the circulation of books and knowledge. Further chapters analyse the presence and use of pragmatic literature in regional contexts from Mexico to South America.

The authors, almost all of whom are members of the MPIeR, come from Argentina, Brazil, Colombia, Germany, Italy, Peru and Spain. The volume, edited by Thomas Duve and Otto Danwerth, has just been published in Open Access; the hardcover version will become available at the end of April.  More information on the website of the MPIeR or on brill.com.

Witte and Latterall on Establishment in Massachusetts

John Witte and Justin Latterell, Emory University School of Law, have posted The Last American Establishment: Massachusetts, 1780-1833, which appears in Religious Dissent and Disestablishment: Church-State Relations in the New American States, 1776-1833, ed. Carl H. Esbeck and Jonathan Den Hartog (Columbia, MO: University of Missouri Press, 2019), 399-424:

This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens during this period agreed that religion was an essential source of morality, and that the Constitution should respect and encourage diverse religious beliefs and practices, at least among Protestants. But controversial issues including religious test oaths, church membership rules, and the use of taxes to support Congregationalist Churches created sharp political divisions. In 1833, the Eleventh Amendment to the Massachusetts Constitution moved away from religious establishment. It made church membership and funding entirely voluntary; granted all religious societies the right to hire their own clergy, to build their own churches, and to manage their own membership rolls; promised equal protection of the law to believers of all sects and non-believers, alike; and ensured that individual members of those sects could exit without incurring liability for contracts subsequently made by the other members of that sect.

--Dan Ernst

Gerber on the Pilgrims, Law and Religion

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted Law and Religion in Plymouth Colony, which appears in the British Journal of American Legal Studies 8 (2019): 167191:

2020 marks the 400th anniversary of the planting of Plymouth Colony. Although the literature about Plymouth is voluminous, the discussion about law and religion has been inappropriately superficial to date. This Article addresses the Pilgrims’ conception of law on matters of religion and the new insights into the Pilgrims’ story that can be ascertained by focusing on law.

“Law” has been defined in many different ways by many different people throughout history. Aristotle, Cicero, Thomas Aquinas, and other proponents of natural law argued that law is the exercise of reason to deduce binding rules of moral behavior from nature’s or God’s creation. The renowned English positivist John Austin, in contrast, maintained that law is the command of the sovereign. To Friedrich Karl von Savigny and other proponents of the so-called historical school, law is the unconscious embodiment of the common will of the people. To the philosophical school, law is the expression of idealized ethical custom. The dominant contemporary view seems to be that law is the reflection of social, political, and economic interests.

For the Pilgrims of Plymouth Colony, law was both the memorialization of their commitment to the Word of God and an instrument for exercising social control so as to effectuate that commitment. The Pilgrims, of course, used law to regulate the more mundane aspects of life as well. Indeed, quantitatively speaking, more laws were enacted by the Pilgrims that addressed the day-to-day activities of life in Plymouth Colony than memorialized the Pilgrims’ commitment to eternal glory in the afterlife, but the latter was unquestionably more important, qualitatively speaking, than the former. In the oft-quoted words of a young William Bradford, “to keep a good conscience, and walk in such a way as God has prescribed in his Word, is a thing which I must prefer before you all, and above life itself.”

--Dan Ernst

Weekend Roundup

• With the help of Michael J. Wishnie and his clinic students at Yale Law School, a powerhouse group of legal historians has submitted an amicus brief to the U.S. Supreme Court in Department of Homeland Security v. Thuraissigiam. Signers include Lauren Benton, Barbara Aronstein Black, Paul Brand, Kevin Costello, Christine Desan, Lisa Ford, Eric Freedman, Robert Gordon, Thomas Green, Paul Halliday, Hendrik Hartog, Elizabeth Papp Kamali, Stanley Katz, David Lieberman, Michael Lobban, Bernadette Meyler, Eben Moglen, Hannah Weiss Muller, James Oldham, Wilfred Priest, Jonathan Rose, David J. Seipp, and John Fabian Witt.  

• In the op-ed pages of the Los Angeles Times: Sarah Barringer Gordon (University of Pennsylvania) and Kevin Waite (Durham University) on "California's Forgotten Slave History."

• From the Washington Post's "Made by History" section: Mary Ziegler (Florida State University College of Law) on how it came to be that "both sides in the abortion fight now claim to be for women’s equality"; Monica Kristin Blair (Ph.D. candidate, University of Virginia) on "What the Supreme Court missed about Wednesday’s religious-schools case"; Andrew Urban (Rutgers University) on what the deportation of an Iranian student shows about "the unchecked power of Customs and Border Protection"; Reva Siegel (Yale Law School) and Stacie Taranto (Ramapo College of New Jersey) on "What antiabortion advocates get wrong about the women who secured the right to vote"; and more.

• The Ipse Dixit podcast has posted an episode on antitrust history, featuring Christopher L. Sagers (Cleveland-Marshall School of Law).  

• HNN's interview of Chilton Varner, the president of the Supreme Court Historical Society, is here.

• Martti Koskenniemi presents "What is the History of International Law a History of?" to the  EuroStorie research seminar at the University of Helsinki on January 31.  More.

• Via HNN, here is a report on an American Historical Association panel on the history of presidential misconduct, with Kathryn Olmstead, Kevin M. Kruse, Jeremi Suri, and James M. Banner, Jr., based on the book, Presidential Misconduct: From George Washington to Today, ed. Banner (New Press, 2019). 

• Andrew Delbanco, the author of The War before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War, speaks at the FDR Presidential Library at 2:00 p.m. on Sunday, February 9, 2020.

• A response to Guest blogger David S. Schwartz's guest blogposts here in December--by Michael Ramsey on the Originalism Blog here, with a response to the response by David Schwartz here.

• ICYMI:  A new exhibit on Gideon v. Wainwright at the Historical Museum of Bay County (Florida).  Brenda Wineapple in WaPo: why Salmon Chase is not a fit role model for John Roberts when presiding over an impeachment trial.  Histories of pettitfogging from NPR and Kellen Funk.  Sheri Chinen Biesen on film censorship from the 1930s to the 1950s in the OAH’s American Historian.  Drake Law hosts the ABA/Library of Congress traveling exhibit, A 100 Years After The 19th Amendment: Their Legacy Our Future.

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

Arnold on heresy trials in medieval England

John H. Arnold (University of Cambridge) has published the following article: "Voicing Dissent: Heresy Trials in Later Medieval England," Past & Present 245:1 (Nov. 2019), 3-37. Here is the abstract:

Recent work on medieval heresy has emphasized the ‘constructedness’ of heresy by orthodox power, thus undermining the coherence of heretical sects and tending to suggest that those tried as heretics were essentially unwitting victims. This article examines the evidence from the entire range of surviving Lollard trials, and argues that we can see consciously ‘dissenting’ speech alongside the standard theological positions associated with (and perhaps imposed upon) Lollardy. In each area of dissent anticlerical, sceptical, disputational and rebellious a wider cultural context is explored, demonstrating that the language of dissent is not limited to ‘Lollardy’; at the same time however it is argued that it is precisely through the voicing and reception of such wider referents that a heretical movement comes to exist. The article traces trends in medieval speech through which specific opinions and beliefs are voiced as a challenge, and the linguistic and social contexts within which they give rise to wider meanings—including collective identifications. Thus, whilst we may wish to foreground the impositions of power and orthodoxy that ‘made’ heresy, we should not make ‘heretics’ disappear completely. Through the records of prosecution, we can still hear something of the voices of those who chose to voice dissent; and we can give recognition to that choice as a form of dissenting agency—dependent also however on the reception and interpretation of those voices by neighbours, witnesses and inquisitors.

Further information is available here. 

--Mitra Sharafi

Saltzman on Law, Spirituality and Concealment in Early Medieval England

Benjamin A. Saltzman, Assistant Professor of English Language and Literature at the University of Chicago, has published Bonds of Secrecy: Law, Spirituality, and the Literature of Concealment in Early Medieval England (University of Pennsylvania Press):

What did it mean to keep a secret in early medieval England? It was a period during which the experience of secrecy was intensely bound to the belief that God knew all human secrets, yet the secrets of God remained unknowable to human beings. In Bonds of Secrecy, Benjamin A. Saltzman argues that this double-edged conception of secrecy and divinity profoundly affected the way believers acted and thought as subjects under the law, as the devout within monasteries, and as readers before books. One crucial way it did so was by forming an ethical relationship between the self and the world that was fundamentally different from its modern reflex. Whereas today the bearers of secrets might be judged for the consequences of their reticence or disclosure, Saltzman observes, in the early Middle Ages a person attempting to conceal a secret was judged for believing he or she could conceal it from God. In other words, to attempt to hide from God was to become ensnared in a serious sin, but to hide from the world while deliberately and humbly submitting to God's constant observation was often a hallmark of spiritual virtue.

Looking to law codes and religious architecture, hagiographies and riddles, Bonds of Secrecy shows how legal and monastic institutions harnessed the pervasive and complex belief in God's omniscience to produce an intense culture of scrutiny and a radical ethics of secrecy founded on the individual's belief that nothing could be hidden from God. According to Saltzman, this ethics of secrecy not only informed early medieval notions of mental activity and ideas about the mind but also profoundly shaped the practices of literary interpretation in ways that can inform our own contemporary approaches to reading texts from the past.

An endorsement:

“Highly original, Bonds of Secrecy reveals something that has been hidden in plain sight throughout a wide variety of texts and makes a significant impact on our understanding of historical and narrative motivations. Benjamin A. Saltzman succeeds in clearing away presentist mental furniture to reveal what secrecy meant to Anglo-Saxons who understood it to be inseparable from divine omniscience.”—Leslie Lockett, The Ohio State University

--Dan Ernst

Berkovitz's "Law's Dominion"

[We have word of the following publication.  DRE]

Jay R. Berkovitz, Law's Dominion: Jewish Community, Religion, and Family in Early Modern Metz.  Brill Academic Publishers. Pp. xi + 404. Soft cover.  ISBN:  978-90-04-41740-3 

Law’s Dominion is a detailed study of Jewish communal autonomy in the century prior to the French Revolution.  Set in the city of Metz, this new examination of a vibrant prerevolutionary community draws on a wide spectrum of unknown or underutilized legal sources that tell a story about communal governance, religion, and family that has not been told before. Concentrating on the community’s leadership, public institutions, and judiciary, Law’s Dominion challenges the commonly held assumption that Jewish life was in a steady state of decline before the French Revolution. To the contrary, it presents a portrait of a robust community that integrated religious values and civic consciousness, interacted with French society, and showed remarkable signs of collaboration between Jewish law, general law, and the French judicial system.

The focus of Law’s Dominion is the emergence of “the rule of law” as the basic principle of Jewish social and political organization. Law served as the community’s core cultural value and as the foundation for the relationship of the Jews to the state and the surrounding society. Through the process of juridification—the institutionalization of law and judicial frameworks—vast areas of communal life were subsumed under the authority of the law, particularly as the community took greater notice of external legal and judicial systems. Building on the author’s previous works, Law’s Dominion offers new evidence of how practitioners of Jewish law, as well as its consumers, navigated the Jewish and French legal systems. Communal registers of the Metz Kahal, judicial records of the rabbinic court and Metz Parlement, rabbinic responsa literature, and the French translation of Jewish law commissioned by French authorities furnish a wider framework and  broader context for the analysis of Jewish law, legislation, and public policy. By focusing on prevailing norms, mechanisms of change, and emerging patterns of legal culture, Law’s Dominion seeks to understand how rabbinic and lay leaders struggled to meet challenges to their authority.

Central to the inquiry undertaken in this new volume is the question of how religion functioned in the early modern period and the degree to which it served the goals of social cohesion and corporate identity. Religion continued to exert a formative, if occasionally contested, impact on the values embraced by communal leaders and on the boundaries that defined relations with the state and society. Rituals embodied modes of thinking about historical origins, about interactions with the surrounding culture and society, and about identification with particular cultural traditions.

In addition to embodying the foregoing themes, legal texts pertaining to family offer entrée into a web of culture and relationships for which there is virtually no other documentation. The majority of cases that came before the Metz Beit Din were related, either directly or indirectly, to inheritance, guardianship of children, marital property, sexuality, and the participation of women in the judicial process. Rulings in these areas, and the legal mechanisms that evolved in response to changing social and economic conditions, contain images of women and family that are strikingly at variance with representations conveyed in prescriptive legal sources alone.

Emerging from this analysis is a new narrative that reconsiders central themes of pre-modern Jewish history:  the nature and scope of Jewish communal autonomy; the relations between the Jews and the state; Jewish interaction with the surrounding society and culture; the multifaceted nexus between acculturation and modernization; lay-rabbinic relations; the role of religion in early modern culture; and transformations in family life.

In sum, Law’s Dominion seeks to elucidate the complicated role of law in the life of a community that faced significant internal and external challenges to its precarious political condition, religious ethos, and cultural identity.

Farahat on Islamic Jurisprudence

Omar Farahat, McGill University has published The Foundation of Norms in Islamic Jurisprudence and Theology with Cambridge University Press. From the publisher:

In this book, Omar Farahat presents a new way of understanding the work of classical Islamic theologians and legal theorists who maintained that divine revelation is necessary for the knowledge of the norms and values of human actions. Through a reconstruction of classical Ashʿarī-Muʿtazilī debates on the nature and implications of divine speech, Farahat argues that the Ashʿarī attachment to revelation was not a purely traditionalist position. Rather, it was a rational philosophical commitment emerging from debates in epistemology and theology. He further argues that the particularity of this model makes its distinctive features helpful for contemporary scholars who defend a form of divine command theory. Farahat's volume thus constitutes a new reading of the issue of reason and revelation in Islam and breaks new ground in Islamic theology, law and ethics.

Further information is available here.

--Mitra Sharafi

Weekend Roundup

• The University of Kentucky College of Law is hosting this year’s Kentucky Law Journal Symposium, “Written in Stone: American Monuments and Monument-Protection Law,” on November 1.  More. 

• The Franklin D. Roosevelt Presidential Library and Museum presents an exclusive pre-broadcast film screening and discussion of a new national public television documentary Summoned: Frances Perkins and the General Welfare, on Sunday, November 3, 2019 at 2:00 p.m.

• New from Law and History Review and Cambridge Core: “The Citizen Complains”: Federal Compensation for Property Lost in the War of 1812, by Craig B. Hollander.

• New from the American Journal of Legal History and OUP Journals: ‘The Great Britain of the South’: the Law of Contract in Early Colonial New Zealand, by Warren Swain.

• In South Asian legal history news: there was a good crop of legal history papers at the 13th Annual South Asian Legal Studies Workshop in Madison last weekend (program here).  Plus this and this at South Asian Legal History Resources on women in the legal profession over the past century.

• Update: The conference on Status and Justice in Law, Religion, and Society (organized by Timothy Lubin and Kameliya Atanasova) will be taking place at Washington and Lee University soon--on Nov.1-3. The program is here.

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

Stephens' Governing Islam

In 2018, Julia Stephens (Rutgers University) published Governing Islam: Law, Empire, and Secularism in Modern South Asia with Cambridge University Press. From the publisher: 

Governing Islam traces the colonial roots of contemporary struggles between 
Islam and secularism in India, Pakistan, and Bangladesh. The book uncovers the paradoxical workings of colonial laws that promised to separate secular and religious spheres, but instead fostered their vexed entanglement. It shows how religious laws governing families became embroiled with secular laws governing markets, and how calls to protect religious liberties clashed with freedom of the press. By following these interactions, Stephens asks us to reconsider where law is and what it is. Her narrative weaves between state courts, Islamic fatwas on ritual performance, and intimate marital disputes to reveal how deeply law penetrates everyday life. In her hands, law also serves many masters - from British officials to Islamic jurists to aggrieved Muslim wives. The resulting study shows how the neglected field of Muslim law in South Asia is essential to understanding current crises in global secularism.

Praise for the book:

 "This book is nothing less than a landmark in its lucid, subtle, and persuasive arguments about the transformation of Islamic law in its encounter with colonial legal discourses and institutions. Basing herself on an archive of extraordinary breadth, Stephens revises old assumptions about Muslim law and about the consequences of colonial governance at every turn. This analysis of the past illuminates a present in urgent need of fresh understanding." -Barbara D. Metcalf

"Governing Islam is a masterful and compelling book that explores modern South Asia's Muslim legal history through ideas about religion, economy, gender, custom, colonialism, and socialism. Using primary sources in multiple languages, Julia Stephens reveals the many layers of law for Muslims. The result is simply superb - a fascinating portrait of vernacular, colonial, and post-colonial legal cultures, all intertwined and with plenty of intriguing twists." -Mitra Sharafi 

"A major work of scholarship that brings together the history of law, religion and family in British India to tell the story of South Asian secularism. Erudite and sophisticated in tone this is a much-needed monograph at a time when the idea of secular India faces its gravest threat." -Seema Alavi

Watch Prof. Stephens' 2015 interview on the book project on Yale's The MacMillan Report. 

Further information about the book is available here.

--posted by Mitra Sharafi

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:

Gerber on Colonial Pennsylvania's Holy Experiment

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted Law and the Holy Experiment in Colonial Pennsylvania, which appeared in the NYU Journal of Law & Liberty 12 (2019): 618-717:

Religious liberty is a core component of America’s legal culture. William Penn, the Quaker founder and proprietor of colonial Pennsylvania, played an indispensable role in ensuring that it is. Indeed, Thomas Jefferson — the author of one of the most celebrated religious liberty laws in American history, the Virginia Statute for Religious Freedom of 1786 — described Penn as “the greatest lawgiver the world has produced, the first in either ancient or modern times who has laid the foundation of govmt in the pure and unadulterated principles of peace of reason and right.” Jefferson was correct. After all, the commitment to liberty of conscience that characterized colonial Pennsylvania traced directly to Penn’s vision, example, and determination: Pennsylvania enacted more laws about religious tolerance than any other British American colony, both before and after Penn’s death. Delaware, which Penn also owned and which constituted the “lower counties” of Pennsylvania until it became an independent state in 1776, likewise enacted religiously tolerant laws even when Penn permitted it to govern itself with a separate assembly after 1704. Although generations of scholars have explored the political and social history of Penn’s “Holy Experiment,” no one has examined how colonial Pennsylvania used law to ensure its success. This article endeavors to do that through an exegesis of Pennsylvania’s charter, colonial constitutions, statutes, and judicial decisions.

--Dan Ernst

Welcome, Fahad Bishara!

In October 2019, Fahad Bishara, Assistant Professor of History at the University of Virginia will be guest blogging here. 

Prof. Bishara specializes in the economic and legal history of the Indian Ocean and Islamic world. His  book, A Sea of Debt: Law and Economic Life in the Western Indian Ocean, 1780-1950 (Cambridge University Press, 2017) is a legal history of economic life in the Western Indian Ocean, told through the story of the Arab and Indian settlement and commercialization of East Africa during the nineteenth century. It won the J. Willard Hurst Prize (awarded by the Law and Society Association), the Jerry Bentley prize (awarded by the World History Association), and the Peter Gonville Stein book award (given by the American Society for Legal History). 

Prof. Bishara is currently working on two projects. The first narrates 500 years of world history from the deck of an Indian Ocean dhow, and takes on issues of global capitalism, international law, empire, mobility, and scale in historical writing. The second explores the Indian Ocean trade in dates and uses it as a platform for examining the dynamics of a transregional bazaar economy in the 19th and early 20th centuries, but also sets that story against the backdrop of a longer connected history of the Gulf and Indian Ocean.

Welcome, Fahad Bishara!

--Mitra Sharafi

An Essay Collection on US Church-State Relations

Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776-1833, edited by Carl H. Esbeck and Jonathan J. Den Hartog, is available from the University of Missouri Press on November 1st but may be ordered now at a prepublication discount for $30.  Use code DRD2019 here or when calling 800-621-2736.

The American Revolution set in motion a round of constitution making in the colonies, several of which soon declared themselves sovereign states and severed all remaining ties to the British Crown. In forming these written constitutions, the delegates to the state conventions were forced to address the issue of church-state relations. Each colony had unique and differing traditions of church-state relations rooted in the colony’s peoples, their country of origin, and religion.

This definitive volume, comprising twenty-one original essays by eminent historians, law professors, and political scientists, is a comprehensive state-by-state account of disestablishment in the original thirteen states, as well as a look at similar events in the soon-to-be-admitted states of Vermont, Tennessee, and Kentucky. Also considered are disestablishment in Ohio (the first state admitted from the Northwest Territory), Louisiana and Missouri (the first states admitted from the Louisiana Purchase), Maine (carved from Massachusetts), and Florida (wrestled from Spain under U.S. pressure). The volume makes a unique scholarly contribution by recounting in detail the process of disestablishment in each of the colonies, as well as religion’s constitutional and legal place in the new states of the federal republic.

An endorsement:

“Myths, half-truths, and downright errors surround popular perceptions of the American separation of church and state. This outstanding book, with its first-rate roster of historians and legal scholars, demonstrates that American church disestablishment proceeded state by state, in many different ways and over a lengthy period of time. It will be of great interest to historians of the early United States and may be even more important for those who wrestle with challenging church-state questions in our own day.” —Mark Noll, professor of history, University of Notre Dame.

--Dan Ernst

Weekend Roundup

• On the New Books Network, Derek Litvak, a Ph.D. student in the department of history at the University of Maryland, interviews Matthew Crow, Associate Professor of History at Hobart and William Smith Colleges, about his book Thomas Jefferson, Legal History, and the Art of Recollection (Cambridge University Press, 2017). 

• On September 3, the 124th anniversary of his birth, the Harvard Law School held a symposium on Charles Hamilton Houston.  A full report in Harvard Law Today and a link to a recording of the symposium are here.

• Thanks to Brian L. Frye, we just noticed the open source casebook Legal History: History of American Economic Regulation (Spring 2015), by Kenneth Mack, Harvard Law School, who happens to have been one of the speakers at the aforementioned symposium.

• We note belatedly that the Wheeling Academy of Law and Science Foundation and other sponsors held the symposium "Women in Labor History” last weekend in Wheeling, WV.

• ICYMI: John Locke on “Reasons for Tolerateing [sic] Papists Equally with Others" (WSJ via HNN).  John Fabian Witt on Tony Kronman on renaming Yale's Calhoun College and Kronman's response (Yale Daily News).  William Dalrymple in the NYT on the East India Company as The Original Evil Corporation.   Colin Gordon, University of Iowa, in the Jacobin on The New Deal State and Segregation.

• In WaPo’s “Made by History,” Jamie Pietruska, Rutgers University, on Why President Trump’s Sharpied weather map was likely a crime--and should be.

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

Lattman on Bodin's De la Démonomanie des Sorciers

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.]

Christopher Lattmann, Der Teufel, die Hexe und der Rechtsgelehrte. Crimen magiae und Hexenprozess in Jean Bodins De la Démonomanie des Sorciers (Studien zur europäischen Rechtsgeschichte 318) Frankfurt am Main: Klostermann 2019.  390 p., 69,00 €, ISBN 978-3-465-04389-8

Jean Bodin is known above all as the author of the Six livres de la République (1576) and the founder of the theory of sovereignty. Most modern readers, however, are less familiar with his demonology of 1580, which was also a bestseller at the time - not least because witchcraft law was hardly standardised in early modern France. In De la Démonomanie des Sorciers (1580), Bodin discussed the nature of witchcraft and gave instructions for the strict legal prosecution of the crimen magiae. Christopher Lattmann's study is the first to provide a detailed examination of this controversial legal work from the perspective of legal history. Bodin understood witchcraft as a phenomenon that resulted from the interaction of God, devil and man. His view of the world is reflected in his material witchcraft law, above all in his treatment of the various witchcraft offences: from entering into a pact with the devil to participating in the Witches' Sabbath or using maleficent magic. Lattmann demonstrates the influences of Mosaic, Roman and ecclesiastical law as well as of contemporary demonology on Bodin's work. Against the background of French criminal procedural law, he shows that Bodin established a special summary procedure for witch trials that differed from the regular inquisition procedure. Since Bodin could not base himself on any existing French law for this purpose, he drew on the doctrines of foreign criminal jurists. Lattmann thus shows how Bodin's work originated in a European legal sphere and became an important contribution to European criminal law in the 16th century.

–posted by Dan Ernst

Conference: Status and Justice in Law, Religion and Society

A conference on “Status and Justice in Law, Religion, and Society” will be held at Washington and Lee University School of Law, November 1-3, 2019. It will include lots of interest for legal historians. The organizers are Timothy Lubin and Kemilya Atanasova, both of Washington and Lee University. Clifford Ando (University of Chicago) and Winnifred Fallers Sullivan (Indiana University) will give keynote lectures on citizenship and the legacy of the Antonine constitution and on religious status under secular law, respectively. The list of presenters is here. An excerpt from the conference description: 

This interdisciplinary conference aims to bring together historians of religious, ancient, and medieval law systems from around the world with scholars of modern legal systems, on the hypothesis that comparative discussion can throw new light on the role of status-considerations in shaping how individuals experience and use the law, in defining what counts as a fair or just outcome, and in changes to the legal landscape in times of social change.  It may be that the role of statuses (both legal and societal) in premodern and religious legal orders may hold lessons for understanding the role of statuses in the law of republican polities, despite their aspiration to ensure equality of individuals before the law.

Further information is available here.

-posted by Mitra Sharafi

Sharafi on rule of law and constitutionalism in India

Our blogger Mitra Sharafi, University of Wisconsin, has posted the paper, "Parsi Legal Culture, Constitutionalism, and the Rule of Law" on SSRN. The piece is forthcoming in a volume edited by Nawaz B. Mody. It began life as the conclusion to Sharafi's book, before being removed and expanded into its own separate article. Here's an abstract:

Parsi legal culture has played an important role in the constitutional life of modern India, helping nationalists pivot from extra-legal resistance to the business of running a state. This article suggests that Parsi legal culture reinforced constitutionalism and the rule of law in India. As ideals, the latter two concepts impose restraints on the exercise of power. During the late colonial period, elite Parsis led the early "constitutionalist" phase of the Indian National Congress movement (1885-1919) and insisted on working for change through existing state processes and structures. Early Congress leaders Dadabhai Naoroji, Pherozeshah Mehta, and Dinsha Wacha were products of Parsi legal culture. They were turning outward--for the benefit of all Indians--the law-focused strategy that had worked so well during the preceding half-century for their own community. Their approach was abandoned as the nationalist movement became a mass movement circa 1920 under Gandhi's leadership. The values of Parsi legal culture and the Congress constitutionalists were relegated to the back burner from the 1920s until the late 1940s. However, they were brought back to life upon independence, particularly in the Constituent Assembly that created the Indian Constitution (1947-50) and in the interpretation of the Indian Constitution after 1950. The early Congress model of "constitutional agitation"fed into what B. R. Ambedkar would call India's "constitutional morality." Both required the relinquishment of "the bloody methods of revolution" and of Gandhian civil disobedience alike. Early independent India could re-activate constitutionalism and the rule of law as ideals because these ideas were preserved readymade within a particular politico-legal tradition, albeit one that had fallen out of favor in the decades before independence. This tradition was heavily influenced by Parsi legal culture.

This article also answers the question of whether rule-of-law values were inescapably colonial: they were not. A history of tension within the colonial state highlights the distinction between those who believed there had to be restraints on the exercise of power, and those who wanted to rule without law. Debates among colonial state actors and the harnessing of rule-of-law values by the early constitutionalists reflected the distinction between the projects of colonialism and the rule of law. The British initially used the rule of law to justify colonialism because it was there, neatly packaged and ready to ship, in metropolitan thought and political culture. They underestimated the concept's autonomy and its potential to eat away at the foundations of empire. This insight also addresses the question: how did a population that achieved such affluence and success under British rule reposition itself in decolonisation mode? In fact, there was no necessary contradiction between Parsi legal culture and the rejection of colonial rule. Through its embrace of rule-of-law values and constitutionalism, Parsi legal culture helped build a solid foundation for the newly independent polity.

Further information is available here and here.

--posted by Mitra Sharafi