Johnson on late medieval English legal cultures

Tom Johnson (University of York) has published Law in Common: Legal Cultures in Late-Medieval England with Oxford University Press. From the publisher: 

There were tens of thousands of different local law-courts in late-medieval England, providing the most common forums for the working out of disputes and the making of decisions about local governance. While historians have long studied these institutions, there have been very few attempts to understand this complex institutional form of 'legal pluralism'.

Law in Common provides a way of understanding this complexity by drawing out broader patterns of legal engagement. Tom Johnson first explores four 'local legal cultures' - in the countryside, in forests, in towns and cities, and in the maritime world- that grew up around legal institutions, landscapes, and forms of socio-economic practice in these places, and produced distinctive senses of law.

Johnson then turns to examine 'common legalities', widespread forms of social practice that emerge across these different localities, through which people aimed to invoke the power of law. Through studies of the physical landscape, the production of legitimate knowledge, the emergence of English as a legal vernacular, and the proliferation of legal documents, the volume offers a new way to understand how common people engaged with law in the course of their everyday lives.

Drawing on a huge body of archival research from the plenitude of different local institutions, Law in Common offers a new social history of law that aims to explain how common people negotiated the transformational changes of the long fifteenth century with, and through legality.

Here's the Table of Contents:

Introduction: Local Legal Cultures and Common Legalities in Late-Medieval England 

Part I: Local Legal Cultures 

• 1: Rural Legal Culture: Ordaining Community 

• 2: Urban Legal Culture: Institutional Density 

• 3: Maritime Legal Culture: Expertise and Authority 

• 4: Forest Legal Culture: Accounting for Vert and Venison 

Part II: Common Legalities 

• 5: The Legal Landscape 

• 6: The Economy of Legitimate Knowledge 

• 7: Legal English and the Vernacularization of Law 

• 8: Common Legal Documents 

Conclusion: Towards a Common Constitution 

Bibliography

Further information is available here. 

--Mitra Sharafi

Burset, "Why Didn't the Common Law Follow the Flag?"

Christian Burset, a Ph.D. candidate at Yale University and currently a Golieb Fellow at New York University School of Law, has posted "Why Didn't the Common Law Follow the Flag?" The article is forthcoming in the Virginia Law Review (2019). Here's the abstract:

This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British Empire selectively transplanted English law to the colonies it acquired during the eighteenth century. The extent to which each colony received English law depended on a political decision about what kind of colony policymakers wanted to create. Eighteenth-century observers agreed that English law could turn any territory into an anglicized, commercial colony on the model of Britain's North American settlements. Preserving preexisting laws, in contrast, would produce colonial economies that enriched the empire as a whole but kept local subjects poor and politically disadvantaged. By controlling how much English law each colony received, British officials hoped to shape its economic, political, and cultural trajectory. This historical account revises not only our understanding of how the common law spread but also prevailing ideas about law's place in development policy today.

The full article is available here.

Heuschert-Laage on Mongolian legal history

We recently mentioned the new journal, Buddhism, Law & Society. Here is a legal history article from its inaugural issue: Dorothea Heuschert-Laage, University of Bern, "Negotiating Modalities of Succession: The interplay between different legal spheres in eighteenth-century Mongolia," Buddhism, Law & Society 1 (2015-16): 165-94. Here's the abstract:

For 18th-century Mongols living under Qing rule, the imperial state was not the only source of law. Among the rules acknowledged to have binding character were Buddhist legal traditions, customary legal practices as well as rights and duties emanating from dependencies and prerogatives. Yet, the existence of these different legal practices and codes raises many questions about the specific way these different realms of law were interwoven, how Mongols used them and how they could be acting in different spheres of law at the same time. On the basis of archival material, this paper discusses how in the 18th century people switched between different regulatory orders, but also demonstrates that since legal disputes often—maybe even regularly—occurred in more than one legal realm at the same time, it is not always possible to determine where the one sphere began and the other ended. To address complexity of this legal environment, this paper draws on theoretical approaches from legal anthropology, especially research on legal pluralism. I begin with some general remarks on the legal situation in Qing-dynasty Mongolia and the relationship between the law of the Qing state, Buddhist law and local legal conditions. Then, I address two legal cases from the late 18th century that will illustrate how individual litigants and courts chose between different fields of legal reasoning. I argue that the wide spectrum of legal actors within this complex legal environment both enabled and compelled people to switch between different spheres of law.

The Challenges of Comparative Law and Transnational History

One of the ever-impressive aspects of working on transnational legal history is encountering the careers of many pioneering international lawyers. For an academic, one is struck by the polymath capabilities of those who moved between legal cultures and traditions well before the easy access of information that the internet has allowed.

What these internationalized careers help convey is that transnational law, and thus transnational legal history, is always concurrently engaged in comparative law. Distinct bodies of law formally divorced from any particular nation state, say WTO dispute resolution, are ever a hybrid amalgam of various national traditions, in construction and more so in practice.

In my own graduate education, I came to this realization first through the work of Yves Dezalay and Bryant Garth. Their first book, Dealing in Virtue, highlighted both this polymath quality in early international arbitrators and that the focal function of their abilities was not so much to practice professionally in distinct national settings (though many did) but to be able to navigate the linguistic and practical challenges of transnational spaces where these influences collided.

During my research for Futility, I came to appreciate this for many of the missionaries I studied. The term “cosmopolitan” is often used quite superficially, and today can simply denote a well-funded travel itinerary that substitutes taxi driver conversations for cultural immersion. By contrast, I was taken with, and without any personal religious sentiment, the serious intellectual rigor with which many dedicated missionaries confronted their transnational, inter-cultural challenges.

Even though I would come to be critical of the overall impact of missionaries on Sino-American relations, I could find little fault with the reflexive positions many missionaries eventual came to. John Nevius was one example who challenged my own preexisting assumptions about the critical cosmopolitanism of missionaries, and who was considered an iconoclast in Chinese missionary circles for his committed focus on local ownership and criticisms of naïveté about unequal power relationships in inter-cultural contexts

Wu Jinxiong (Wiki)

For Chinese actors, this type of relative sophistication was matched by difficulties navigating stark power asymmetries both with outside actors and their own domestic regimes. In the context of law, this led many lawyers to struggle with representational strategies at home while trying to critically understand the foreign legal systems and ideas they engaged with. A key example here was Wu Jingxiong (吳經熊) or John Wu, a Catholic convert who wrote throughout his career on Asian and Western legal systems in critical juxtaposition. Wu also actively engaged as a liberal minded reformer within the authoritarian Guomingdang regime who putatively governed Chinese from the late 1910s to the late 1940s. His life was a decidedly transnational one, but at its core one of a comparative lawyer.