Thursday, January 31, 2019

Thank you, Tamar Herzog!

Many thanks to Tamar Herzog for her thoughtful guest posts on European legal history and many other things in January 2019! For your convenience, here they are all in one place:
Please join us in thanking Professor Herzog. Stay tuned for a continuing line-up of great guest bloggers in 2019.

Bessler's "The Baron and the Marquis"

John D. Bessler, University of Baltimore Law School, has published The Baron and the Marquis: Liberty, Tyranny, and the Enlightenment Maxim That Can Remake American Criminal Justice, with Carolina Academic Press:
The Baron and the Marquis explores the history of the maxim that articulates what is now known as the parsimony principle. That maxim: any punishment that goes beyond necessity is “tyrannical.” First articulated by Baron de Montesquieu and later publicized by the Italian criminal-law theorist, the Marquis Beccaria, that maxim shaped the American and French Revolutions and set the dividing line between tyranny and liberty. Thomas Jefferson believed only absolute necessity justified punishment, and the French Declaration of the Rights of Man and of the Citizen (1789) similarly allowed only “strictly and obviously necessary” punishments. In The Baron and the Marquis, award-winning author John Bessler shows the maxim’s modern-day implications for capital punishment, prolonged solitary confinement, and mass incarceration. The book argues that unnecessary punishments violate the U.S. Constitution’s Eighth Amendment as “excessive” and “cruel and unusual.”

Gordon on Lawyers and Access to Justice in the United States

The Winter 2019 issue of Dædalus is devoted to Access to Justice.  One of its (open access) contributions is Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History, by Robert W. Gordon, Stanford Law School:
Ideally, justice is a universal good: the law protects equally the rights of the rich and powerful, the poor and marginal. In reality, the major share of legal services goes to business entities and wealthy people and the prestige and prosperity to the lawyers who serve them. This essay deals with the history of access to justice – chiefly civil justice – and with the role of lawyers and organized legal professions in promoting and restricting that access. In the last century, legal professionals and others have taken small steps to provide access to legal processes and legal advice to people who could not otherwise afford them. By doing so, they have inched closer to the ideals of universal justice. Though the organized bar has repeatedly served its own interests before those of the public, and has restricted access to justice for the poor, it has been a relatively constructive force.
H/t: Harvard Law Today

Wednesday, January 30, 2019

Gajzl & Murrell's Digital Estimate of 17th-Century Legal Culture

The economists Peter Grajzl, Washington and Lee University, and Peter Murrell, University of Maryland, have posted Estimating a Culture: Bacon, Coke, and Seventeenth-Century England:
We use machine learning to estimate the features of early seventeenth-century English culture, applying structural topic modeling to the works of Francis Bacon and Edward Coke. The estimated topics reflect a core set of cultural ideas spanning legal, political, scientific, and methodological themes. Legal topics are highly connected, revealing an advanced structure of common-law thought that straddles areas of ostensibly disparate legal scholarship. The methodology of the common law is used to structure principles that are applied to debates both inside and outside law. Interconnections between topics uncover a distinctive approach to the pursuit of knowledge, embodying both Coke's legal methodology and Bacon's epistemology. Similarities between Bacon and Coke overshadow differences when conditioning on intended audience and time of authorship. Our estimated topics are constitutive elements of an emerging culture that reflected a legacy of common-law thought and that provided the core intellectual paradigm as England began its early ascent.

Morris L. Cohen Student Essay Competition

[We have the following announcement.]

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Cengage Learning, announces the Eleventh Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Cengage Learning and present his or her paper in a national webinar.

Winning and runner-up entries will be invited to submit their entries to Unbound, the official journal of LH&RB. Past winning essays have gone on to be accepted by journals such as N.Y.U. Law Review, American Journal of Legal History, University of South Florida Law Review, William & Mary Journal of Women and the Law, Yale Journal of Law & the Humanities, and French Historical Review.

The entry form and instructions are available at the LH&RB website.  Entries must be submitted by 11:59 p.m., April 15, 2019 (EDT).

Sarkar on Bombay Factory Law

Aditya Sarkar, University of Warwick, has published Trouble at the Mill: Factory Law and the Emergence of the Labour Question in Late Nineteenth-Century Bombay with Oxford University Press. From the publisher: 
The book uses the Factory Acts of the late nineteenth century as an entry point into the early history of labor relations in India, specifically the mill industry of Bombay. It unites legal and social history in a manner which differs from most social histories of labor, and offers a new perspective on the constitution of industrial relations in colonial India.
The Factory Act passed by the Government of British India in 1881 produced the first official definition of 'factories' in modern Indian history as workplaces using steam power and regularly employing over 100 workers. It imposed certain minimal restrictions upon the freedom of employers in a limited range of industrial workplaces and invested factory workers, most explicitly children, with a slim set of immunities and entitlements. In 1891, the Factory Act was amended: factories were redefined as workplaces employing over 50 workers, the upper age limit of legal "protection" was raised, weekly holidays were established, and women mill-workers were brought within its ambit. In its own time, factory law was experienced as a minor official initiative, but it connected with some of the most potent ideological debates and political oppositions of the age.
This book takes these two pieces of labor legislation as an entry point into the history of "industrial relations" (the term did not yet exist in its present sense) in colonial India, in the last quarter of the nineteenth century combining the legal and social history which diverges from most studies of Indian workers. It identifies an emergent "factory question" built on the problem of protective labor legislation. The cotton-mill industry of Bombay, long familiar to labour historians as one of the nodal points of modern Indian capitalism, is the principal focal point of this investigation. While this is a book about law and regulation, it is neither a legislative nor a policy history. While it is preoccupied with the history of factory legislation, it does not offer a full narrative that takes this as its "object". And while the book focuses on Bombay's cotton mills, it contains significant departures both from the city and its major industry. A number of questions which have only rarely been thematized by labour historians--the ideologies of factory reform, the politics of factory commissions, the routines of factory inspection, and the earliest waves of strike action in the cotton textile industry--are raised in this book.
Table of Contents after the jump:

Tuesday, January 29, 2019

On Scholarship and Productivity – a Farewell to the Legal History Blog and a Confession

Back in June 2018, when Mitra Sharafi invited me to be a guest blogger for a month, she mentioned, among other things, that she would love a post with tips on research productivity. I did not want to end this blogging experience without complying with her wish.  

Twenty-five years after I defended my dissertation and with some twenty-or-less years before I retire, what have I learned about research and writing? 

The first thing is that, although intuitively we tend to think that focusing on smaller things and a shorter time span would enable a greater efficiency, this is usually untrue. In my own experience, the larger and wider you look, the quicker you understand what you see. This was a lesson my driving teacher taught me when I was sixteen years old. She explained that if I looked right in front of the wheels (which was what I naturally wanted to do) I would see nothing; but that if I looked to the horizon I would see everything. I am sure she did not mean to give me a life-long advice, but her wisdom guides me (also) as I imagine, plan, or execute, new projects. 

Looking to the horizon requires, among other things, to ignore the most obvious and the most travelled route. I know Robert Frost warned us that the routes we take may not make as huge a difference as we would like to believe, but not being certain where I was going paradoxically allowed me to better listen to the archives. I listened not to what they told me about the past, but also to what they said about my research question. Was it a valid question? Should it be asked differently? How can it be divided into pieces and what should be included? At least twice the archives told me to abandon the search altogether or they suggested that the project I was pursing was of little interest. It was a hard lesson to learn, but I ended up obeying. 

Knowing when to stop was a fundamental issue. Many years ago, as an MA student, my then mentor gave me the advice that when nothing surprises me any longer, it is time to leave. I follow his recommendation religiously, even as I tremble at the thought that an amazing discovery may be waiting for me in the next bunch of papers, which I will never read. 

Efficiency at the archives is one thing; another is to overcome the first blank page of a new project. There are days in which I can write, and days that are useless. I try to come to terms with these fluctuations, knowing that there is little I can do to change them. When I get really stuck I go swimming. Swimming allows me a concentration, which I cannot otherwise obtain. 

Over the years, I learned to avoid peer review. I realize this may be an unnecessary confession, but there is nothing that I like or find useful about peer review. Peer reviewers sometimes know more than you, or as much as you do, but often they do not. Some are generous and engage with your argument, but others want to impose their ideas. I know peer review is supposed to ensure a certain quality across the board and maybe sometimes it does, but in my own experience it mostly produces leveling.  While it guarantees serious and responsible scholarship, it disrupts attempts at doing things differently. Perhaps because I was educated in Paris, as I matured in the American academic system I kept asking myself whether revered French academics such as Foucault, Derrida, or Braudel, would have ever passed a proper peer review. I am convinced they would not. Nonetheless, our scholarly world is better because of what they proposed. Their insights were transformative even if their method was too new, their facts too shaky, and their tendency to generalize too extreme. 

I also believe it is important to remember that there are many ways to think about productivity. The most obvious is to measure it by the number of books and articles. Another is by evaluating the divergence between them, and the degree by which they respond to different questions, methodologies, areas, or subjects of expertise. What kinds of linguistic and archival competence is required is another important point, as well as whether sources are available online or demand dislocation, where to, and how user-friendly are the deposits. 

Beyond all these considerations, the greatest lesson I learned is that, although we tend to think about productivity as a personal achievement, in earnest, it often depends on the individuals and institutions around us. Teaching in universities with excellent students, interesting colleagues, great libraries, and comfortable office space, facilitates things tremendously. So does having many sabbaticals, preferably, many more than the term usually implies. A supportive domestic and social environment is crucial. We often give thanks to our families and friends because of what they had endured while we did research and writing. I am thankful to them on this account, but I am mostly grateful for the conversations they facilitated. I found dialogues with my twin boys surprisingly illuminating. When they were younger, I needed to explain things simply; when older, my aim was to make them more complex. But, as I dragged them across countries and continents, I learned a new art of explaining and discovered new ways to think about what I believed I already knew. 

There is a famous saying that behind every successful man there is a great woman. Fortunately, I belong to a generation that can also affirm the contrary. I am certainly privileged to be backed by a great man. It is to him, that great man who listens, shares, discusses, assists, reads, and advises, that I dedicate this last piece.

Comparative Legal History: A Research Handbook

Edward Elgar has published Comparative Legal History, edited by Olivier Moréteau, Louisiana State University, Aniceto Masferrer, University of Valencia, and Kjell A. Modéer, University of Lund.  It is the latest in Elgar's series of Research Handbooks in Comparative Law.
The specially commissioned papers in this book lay a solid theoretical foundation for comparative legal history as a distinct academic discipline. While facilitating a much needed dialogue between comparatists and legal historians, this research handbook examines methodologies in this emerging field and reconsiders legal concepts and institutions like custom, civil procedure, and codification from a comparative legal history perspective.
TOC is here.

CFP: ASCL 2019

[We have the following CFP.]

The American Society of Comparative Law (ASCL) has just issued a call for proposals for (1) concurrent panels and (2) a works in progress conference to be held in association with the ASCL 2019 Annual Meeting, which will be held at the University of Missouri School of Law between Thursday, October 17, and Saturday, October 19, 2019.  The event is open to ASCL and non-ASCL members.

The theme of the Annual Meeting is “Comparative Law and International Dispute Resolution Processes” and will feature presentations on how comparative law affects various types of cross-border conflict, including but not limited to litigation, arbitration and mediation.  Concurrent panels and works in progress papers need not fall within this general theme, although of course they may.  Multilingual panel proposals will be considered as part of ASCL's mission to foster plurilingualism.

Information on the event, including the call for panel proposals and works in progress submissions, is available [here].  Proposals will be accepted until May 20, 2019.

Monday, January 28, 2019

An International Workshop on the History of Commercial Law

[We have the following report of a conference held at the University of Bergen (Norway) last August]

Conference Report: International Workshop on the History of Commercial Law: Approaches and Methodological Challenges, University of Bergen Faculty of Law, August 24th and 25th, 2018

On August 24th and 25th, 2018, the International Workshop on the History of Commercial Law was held at the Law Faculty of the University of Bergen (Norway), hosted by prof. Søren Koch of the Research Group for Legal Culture, Legal History and Comparative Law. Many experts in the field of commercial law and its history, from Scandinavia, the United Kingdom and the rest of the European continent participated in the conference.

The event was divided into five sessions: an introductory session was followed by separate sessions on the history of commercial law in the Middle Ages, the Early Modern period and the 19th century. A session on comparative methodology concluded the event, in which a total number of 12 papers were presented.

A Third Interlude: Presenting the Same Book to Different Audiences

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

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

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

Prak on citizens without nations

Maarten Prak, Universiteit Utrecht, has published Citizens without Nations: Urban Citizenship in Europe and the World, c.1000-1789 with Cambridge University Press. From the publisher: 
Citizens without NationsCitizenship is at the heart of our contemporary world but it is a particular vision of national citizenship forged in the French Revolution. In Citizens without Nations, Maarten Prak recovers the much longer tradition of urban citizenship across the medieval and early modern world. Ranging from Europe and the American colonies to China and the Middle East, he reveals how the role of 'ordinary people' in urban politics has been systematically underestimated and how civic institutions such as neighbourhood associations, craft guilds, confraternities and civic militias helped shape local and state politics. By destroying this local form of citizenship, the French Revolution initially made Europe less, rather than more democratic. Understanding citizenship's longer-term history allows us to change the way we conceive of its future, rethink what it is that makes some societies more successful than others, and whether there are fundamental differences between European and non-European societies.
Praise for the book:

"A profoundly original book. Prak shows how much of what historians and social scientists think they know about citizenship and the rise of democratic politics is simply wrong. Uncovering the errors that have blinded so many, he proceeds to construct a historically grounded foundation for a new understanding of the meaning of citizenship that instructs us about the past and the present." - Jan de Vries

"This is a major contribution to emancipating citizenship from the nation. Tracing varieties of citizenship before its invention as nationality, Prak makes a compelling case for understanding citizenship as a practical activity without binary oppositions: European versus non-European, urban versus rural, or national versus international. The result is a riveting narrative, forcefully inviting us to think differently and historically about citizenship." -Engin Isin

"This is a large, richly researched, provocative study which repositions the pre-modern city, its citizens and agencies, at the centre of the European political stage. It is a brilliant exemplar of the New Urban History, setting European developments in a broad global perspective." -Peter Clark

"In this wide ranging and bold book, Maarten Prak offers a penetrating analysis of urban citizenship in pre-modern Europe. He both revises a Weberian narrative about the distinctiveness of western European civic institutions in comparison to those in Asia and the Americas and undoes assumptions about the superiority of national citizenship post-1789.'" -Martha Howell 

Further information is available here