Wednesday, September 4, 2019

An Introduction: Finding a Common Thread

My sincere thanks to Mitra, Karen, and Dan for the opportunity to write for the Legal History Blog this month. For me, the timing could not be better. I am delighted to be embarking on a sabbatical year. It is my first leave fully devoted to my second project, on reputation, and I hope to use the blog to share insights and challenges as I draw together the research that I’ve been conducting piecemeal over recent years. Today, I will introduce my work. In subsequent posts, I plan to use examples from the material to reflect on methodology: research scope; representativeness and the difficulties of selection; and, finally, grappling with biases in source material.

From Refugees to Reputation: Or, From Project One to Project Two

Britannia’s Embrace studied the history of British refuge for foreign nationals from the Huguenot diaspora of the seventeenth and eighteenth century through the mass migration of Eastern European Jews at the turn of the twentieth century. I argued that, at a time when laws did not restrict movement in or out of the country, Britons across the political spectrum came to identify refugees as a clear subset of charitable cases. Refugees were, by virtue of their persecution, not only particularly deserving of humanitarian assistance, but – as Britons increasingly argued – had a distinct right to asylum. In practice, this refuge depended on empire, on access to seemingly more open (if not “empty”) territory for the foreigners’ long-term resettlement. As these spaces became less viable, officials and aid workers alike began to hedge on what had become a proud national practice. The story was one of the rise and fall of British refuge, and one of the dynamic relationship between humanitarianism and human rights claims that continue to shape the treatment of refugees today.

                                             (Benjamin West, John Eardley Wilmot, 1812, Google Art Project, 
                                             Yale Center for British Art.)

There are different schools of thought about choosing a second project. I have heard suggestions of simply moving a first project further in time or expanding the chronology, or shifting to a related focus – e.g. moving from a history of refuge to international aid, like a study of the Red Cross (a turn I once considered). For better or worse, I have followed none of these suggestions, though I continue to anchor my work in Britain and to use the (very) long-nineteenth century as my starting point. I could point to a number of libel and slander cases that cropped up in my research on refugees. Refugees, too, relied on their ability to offer (or have offered of them) a compelling story – a spotless reputation. But this was not the bridge I took from one project to the next.

I am drawn to the exploration of quasi-rights and explore the contexts in which those quasi-rights evolve: refuge is not a right in modern parlance (asylum-seeking is); reputation, when mentioned, is usually treated as a secondary right, a caveat to the freedom of expression. Such “quasi-rights” are difficult to pinpoint. I like that their histories require a more catholic methodology to understand the changing social values behind their development. I have tended to call myself a cultural historian in this pursuit. Cultural history has been my intellectual base since my undergraduate years. Conceptual history might be a more accurate description.

Beyond Sticks and Stones

Focusing on defamation law – slander and libel – Beyond Sticks and Stones examines debates over the law as well as its usages to assess what has been seen as something of a quasi-right to reputation in the British context. Blackstone called reputation an “absolute right” in the 1783 edition of his Commentaries on the Laws of England. Though we rarely speak of it in these terms today, twentieth-century conventions recognize a similar responsibility. The 1966 UN Covenant on Civil and Political Rights, for example, protects freedom of expression so long as that expression does not diminish an individual’s standing in their community. In Britain, the discussion is far more pointed and with pressing cause: British libel law is notoriously effective for plaintiffs pursuing their defamers. London has become the “libel capital of the world,” “libel tourism” a thriving business for lawyers, celebrities and politicians alike at the cost of a “chilling effect” on the media and freedom of the press [1].

This state of things is rooted in centuries of ongoing handwringing over the problem of defending personal reputation and attempts to assess whether and how civil law should assist the defamed, as well as who deserved protection. Beyond Sticks and Stones aims to tell this longer history of contest over the means of making reputation modern that included – and extended far beyond – attacks on the iconic aristocratic duel. Unsurprisingly, one finds sustained conversation about the defamation of individuals in the battle for a freer press. Unexpected, to me at least, was a regular acceptance, among politicians, lawyers, and journalists alike, that defamation law was the necessary price to pay for a freer press: censure, rather than censorship. This was a formula that remained powerful from the 1790s at least through the 1960s. The question was, then, how best to modernize laws that were (and remained) imperfect at best.   

My research has me immersed in samples of cases from 1780-2000, currently numbering more than 600 and counting, as well as political and legal tracts, parliamentary debates, newspaper editorials and correspondence, and etiquette manuals. The range of this material can be dizzying and cannot in its entirety be dumped into a single manuscript, to be sure! I will reflect on scope and case selection in subsequent posts. Broadly, though, the manuscript is divided chronologically as well as thematically. Early chapters explore, respectively, the cultural location of reputation in a world that seemed poised to reject its defenses as antiquated; the making of personal reputation as a caveat to freedom of the press; and social use of the law in negotiations over community authority and critique. The later chapters take a case-study approach, examining the boundaries between personal reputation and that of groups and of the state. While ostensibly distinct, in practice these kinds of reputation overlapped. The chapters will, in turn, foreground gender and the sexual slander of women; group defamation – or, the protection of individual v. community; and biography, reputation and the (post)imperial nation. A final, concluding chapter will set the discussion of personal reputation within a context of international publication and European convention since c. 1970. Ever the nineteenth-century historian at heart, I doubt I will refrain from highlighting antecedents, though finding the proper balance will be a matter of time, reflection, and revision.

A Request

I benefit from significant work in areas related to my study [2]. The benefit of research leave is having the space for drawing comparisons as I write. Feel free to email reading suggestions.


[1] William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1, p. 130; "Be Reasonable," Times (19 May 2005), p. 19. The Times Digital Archive; Mayes, Tessa, et al. "Call for change on libel laws," Times (16 Dec. 1999), p. 23. The Times Digital Archive.

[2] There is, of course, an older literature on the liberty of the press and the media, as well as newer classics on privacy and secrecy in the modern era. See, for example, William Wickwar, The Struggle for Freedom of the Press, 1819-1832 (London: George, Allen, Unwin, 1928); Deborah Cohen, Family Secrets: Shame and Privacy in Modern Britain (New York: Oxford University Press, 2013); and David Vincent, I Hope I Don't Intrude: Privacy and its Dilemmas in Nineteenth-Century Britain (Oxford: Oxford University Press, 2015). There are also fantastic studies of honor and sexual honor, especially, in the early modern period, and essential texts on reputation and community in colonial South Asia, South Africa, and Australia, as well as in the American South: for example, Kirsten McKenzie’s Scandal in the colonies: Sydney and Cape Town, 1820-1850 (Carlton, Vic.: Melbourne University Press, 2004) and Mitra Sharafi’s Law and Identity in Colonial South Asia (Cambridge: Cambridge University Press, 2014).

--Caroline Shaw