Friday, September 25, 2020

Tel Aviv University Law and History Workshop

 [We have the following announcement.  DRE]

Tel Aviv University Law and History Workshop, Fall 2020, Thursdays, 14:15 - 15:45.  Organized by Rachel Friedman, Ron Harris & Assaf Likhovski.

Nov. 5, 2020, Jedidiah Kroncke, University of Hong Kong Faculty of Law, The Harvard Model as Domestic and International Export: A Translocal Movement of Elite Legal Integration

Nov. 12, 2020, Yair Lorberbaum, Bar Ilan University Faculty of Law, The Rise of Halakhic Religiosity of Mystery and Transcendence [paper and discussion in Hebrew]

Nov. 19, 2020, Aviram Shahal, Michigan Law School, From Konstitutzya to Huka: The Adoption of a Hebrew Term for a Constitution [discussion in Hebrew]

Nov. 26, 2020, Vanessa Ogle, University of California, Berkeley, Department of History, "Funk Money:" The End of Empires, the Expansion of Tax Havens, and Decolonization as an Economic and Financial Event

Dec. 3, 2020, Rowan Dorin, Stanford University, Department of History, The Bishop as Lawmaker in Late Medieval Europe

Dec. 10, 2020, Geraldine Gudefin, American University Department of History & Tel Aviv University, Berg Institute, "An Innocent Candor that Left No Doubt as to her Sincerity": East European Jewish Women and Jewish Law in Early 20th-Century American Courts"

Dec. 17, 2020, Emily Kadens, Northwestern Law School, "The Dark Side of Commerce: Trust, Reputation, and Cheating in Early Modern England."

Dec. 24, 2020, Idit Ben Or, Tel Aviv University Safra Center, Non-Governmental Currencies in Early Modern England: A Legal Analysis [discussion in Hebrew]

Dec. 31, 2020, Julie Cooper, Tel Aviv University, Department of Political Science, The Zionist Critique of Spinoza's Politics [discussion in Hebrew]

Jan. 7, 2020, Adam Lebovitz, Cambridge University Faculty of History, Freedom of the Press between the American and French Revolutions

*** All sessions of the workshop will take place on Zoom.  We have a limited number of slots available in each session for visitors.  Anyone who is interested in participating in a particular session must register in advance by sending an email to ***

Behrens on the Absent Justice Matthews

Jennifer L. Behrens, J. Michael Goodson Law Library, Duke Law, has posted The Empty Chair: Reflections on an Absent Justice, which has been published as Green Bag Almanac & Reader 131-142 (2020):

Stanley Matthews (LC)
This article examines a January 1888 letter to U.S. Supreme Court Chief Justice Morrison Waite from Associate Justice Stanley Matthews. Justice Matthews requested time away from the notoriously overworked Court’s session in order to attend the funeral of Dr. Peter Parker, renowned medical missionary and diplomat. The piece presents biographical sketches of Justice Matthews and Dr. Parker, and considers the historical context of the potential absence on the late nineteenth-century Court’s operations. 

 --Dan Ernst

Thursday, September 24, 2020

Korporowicz and friends on English legal history

 A volume edited by Łukasz Jan Korporowicz (University of Lodz, Poland), Studies in English Legal History, came out earlier in 2020. It is vol.91 (2020) of Acta Universitatis Lodziensis. Here is the line-up: 

  • Łukasz Jan Korporowicz, "Studies in English legal history. An introduction"
  • Cerian Charlotte Griffiths, "Researching eighteenth-century fraud in the Old Bailey: reflections on court records, archives, and digitisation"
  • J. Patrick Higgins, "More in common (law) than originally thought? A theoretical first comparison of the Magna Carta and the Księga Elbląska"
  • Łukasz Jan Korporowicz, "Rome and Roman law in English antislavery literature and judicial decisions"
  • Michael Stuckey, "John Mitchell Kemble’s Anglo-Germanic legal historiography"
  • Tomasz Tulejski, "Samuel Rutherford – the monarchy of law or the monarchy of saints?"
  • Thomas Glyn Watkin, "Efficacy, impact and English legal history"

Further information is available here.

--Mitra Sharafi

Ramsey on Originalism and Birthright Citizenship

Michael D. Ramsey, University of San Diego School of Law, has posted Originalism and Birthright Citizenship, which is forthcoming in volume 109 of the Georgetown Law Journal:

The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?

The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.

But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.

--Dan Ernst

Wednesday, September 23, 2020

Barzun on MacKinnon

Charles L. Barzun, University of Virginia School of Law, has posted Catharine MacKinnon and the Common Law:

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.

This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

--Dan Ernst

Tuesday, September 22, 2020


One thing peculiar about land is that we are predisposed to encounter it as if it was always there, seemingly naturalized from the outset without a beginning. Because histories are built upon land, its own history is obscured by later infrastructure, quickly escalating the complexity of the territory. My current book project tentatively titled Overflow - History of Land Reclamation in the British Empire focuses on the history of seaward land reclamation which entails the formation of artificial land surfaces that extend outwards over the sea using advanced geo-engineering techniques. I was motivated by the avid land reclamation that occurred in Singapore which increased in land size by 23% from 587 square kilometers in 1974 to 725 square kilometers today (slightly larger than DC metropolitan area). 

Intensive land reclamation transformed coastal areas from the late nineteenth century. Colonial governments were initially drawn to the supposed lack of ambiguity concerning the status of reclaimed land - there was little possibility of indigenous inhabitants or prior landowners of reclaimed territory so authorities were theoretically free to plan without any resistance. A territorial blank slate was the ultimate goal of colonial officials after all. But the prohibitive costs of land reclamation projects make it a last resort in expanding territory. While local colonial governments eagerly embarked on such projects, higher authorities within the imperial hierarchy based in London often asked “Is this really necessary? and “could something else be done instead?” to ensure that cheaper options were explored first. Land reclamation efforts were extremely expensive, and often completely debt-financed and thus formed risky undertakings involving huge volumes of sand, specialized equipment and vehicles, costly research into the suitability of soil and sand with its particular characteristics, labour, logistical coordination, and resettlement of people who lived in areas adjacent to reclamation sites. In Hong Kong, private enterprise was historically powerful and initiated reclamation projects. Armenian businessman Catchick Paul Chater founded property developer company Hong Kong Land which reclaimed 59 acres of land in the colony between 1889 and 1903 for example. The interests of long-established dock companies such as Butterfield and Swire, and Jardine and Matheson were aligned with that of the colonial government in the late nineteenth century although they drifted apart in the first half of the twentieth century. While businesses entrenched themselves in the area of the port, successive government administrations sometimes differed greatly from their predecessors to the extent of breaking ranks with previous policies. In addition, while the cost of reclamation was relatively low during the early years since landfill was made up of rock and soil found in abundance near sites, it became progressively expensive because fills are not easily available anymore and the sea to be reclaimed was deeper. The Admiralty too weighed in, anxious about encroachment to existing dockyard facilities. 

As land reclamation became popular throughout Empire, the coastal feature known as the foreshore which is neither wet nor always dry due to the ebb and flow of the incoming tide gained prominence. As a buffer zone, the foreshore was valuable because it provided entry to the sea. From 1830s onwards, the British government granted ownership rights to foreshores in parts of the British Isles opening them up further to construction and development but these rights were suspended in Empire. Historically, denizens of undeveloped waterfronts had survived and thrived on it because they occupied cheap land. Increasingly from the late nineteenth century onwards, the foreshore became more prized throughout Empire as a gateway to land reclamation which brought a new enemy on the horizon for residents in coastal regions - coastal development. Even when they were compensated by government authorities, rising land prices post-reclamation meant that they were unable to buy their own property back in order to live there again. Something about control over watery spaces, a relatively new form of domination, resists risk assessment necessary for compensation requests. This “hydroborder,” to borrow Isabel Hofmeyr’s term, “where the ‘normal’ anxieties of the boundary were exacerbated by ecological uncertainty” serves as the fulcrum for change.

Hofmeyr, Isabel. “Provisional Notes on Hydrocolonialism.” English Language Notes. 57, 1 (April 2019): 11-20.

--Nurfadzilah Yahaya

Parrillo on Delegated Rulemaking and Federal Taxation in the 1790s

Nicholas R. Parrillo, Yale Law School, has posted A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, which is forthcoming in volume 121 of the Yale Law Journal (2021):

The Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested they are open to the sweeping theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking’s constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics’ main response has been that these early statutes don’t count, because they fall into areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: non-coercive legislation (e.g., giving benefits) or foreign-affairs legislation.

This Article finds that the originalist critics of
Oliver Wollcott, Jr. (wiki)
rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counter-example missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the “direct tax” of 1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties’ respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was “worth in money”—a standard that the legislation stated but did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with power to divide the state into districts and to raise or lower the assessors’ valuations of all real estate in any district by any proportion “as shall appear to be just and equitable”—a phrase undefined in the statute and not a term of art. The federal boards’ power to revise valuations en masse in each intra-state tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal tax burden within the state it covered.

This Article is the first study of the federal boards’ mass revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, the nation’s fourth-largest city, by 100 percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method; (c) had a major political aspect, as the federal boards were inheriting the contentious land-tax politics that had previously raged within the state legislatures, pitting the typical state’s rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards’ power was consistent with original meaning, or, alternatively, with the Constitution’s liquidated meaning. Vesting administrators with discretionary power to make politically-charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution into practice.

More broadly, this Article is the first in-depth treatment of the 1798 direct tax’s administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution’s first two decades. It is remarkable that today’s passionate debate on whether the administrative regulatory state violates the framers’ Constitution has so far made no reckoning with this endeavor.

--Dan Ernst

Monday, September 21, 2020

Robinson, Mäkinen, Slotte, & Haara, eds., "Rights at the Margins: Historical, Legal and Philosophical Perspectives"

Earlier this year, Brill released Rights at the Margins: Historical, Legal and Philosophical Perspectives, edited by Jonathan Robinson (independent scholar), Virpi Mäkinen (University of Helsinki), Pamela Slotte (Åbo Akademi University), and Heikki Haara (University of Helsinki). A description from the Press:

The essays in this volume explore the ways rights were available to those in the margins of society. By tracing pivotal judicial concepts such as 'right of necessity' and 'subjective rights' back to their medieval versions, and by situating them in unexpected contexts such as the Franciscans' theory of poverty and colonization or today's immigration and border control, this volume invites its readers to consider whether individual rights were in fact, or at least in theory, available to the marginalized. By focusing not only on the economically impoverished but also those who were disenfranchised because of disability, gender, race, religion or infidelity, this book also sheds light on the relationship between the early history of individual rights and social justice at the margins.
Contributors: Wim Decock, Heikki Haara, Virpi Mäkinen, Alejandra Mancilla, Julia McClure, Ilse Paakkinen, Mikko Posti, Jonathan Robinson, John Salter, Pamela Slotte, and Jussi Varkemaa. 

More information, including the TOC, is available here

H/t New Books in Law.

-- Karen Tani

Saturday, September 19, 2020

Weekend Roundup

  • Thanks to Kaneesha R. Johnson for the pointer to this oral history of Pauli Murray by Genna Rae McNeil and the Southern Oral History Program. 
  • New from ASLH online: "The Southern and Western Prehistory of 'Liberty of Contract': Revisiting the Path to Lochner in Light of the New History of American Capitalism," by Gabrielle E Clark.  Abstract here.
  •  Paul Finkelman, the president of Gratz College, was interviewed on the history of slavery and law at Gustavus Adolphus College.
  • The University of Texas at Dallas announces the hiring of S. Deborah Kang, and Yale University announces the hiring of ASLH President Lauren Benton.

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

Friday, September 18, 2020

VanderVelde and Chin on the Reconstruction Congress and the "Chinese Question"

Lea S. VanderVelde, University of Iowa College of Law, and Gabriel Jackson Chin, University of California, Davis School of Law, have posted Sowing the Seeds of Chinese Exclusion as the Reconstruction Congress Debates Civil Rights Inclusion, from Tsinghua China Law Review 12 (2020):185-233:

Frank Leslie's Weekly (1872)(LC)
 During Reconstruction, Congress amended the Constitution to fundamentally reorder the legal and social status of African Americans. Congress faced the challenge of determining how Chinese people would fit in to the emerging constitutional structure. This article draws on a method of digitizing the Congressional Globe to more broadly explore the arguments about Chinese rights and privileges during Reconstruction. Unlike African-Americans, Chinese were part of an international system of trade and diplomacy; treatment of other people of color was understood as a purely domestic question. In addition, while a core feature of Reconstruction was ending the enslavement of African-Americans and overruling Dred Scott by making Africans Americans born in the U.S. citizens and granting them eligibility for naturalization, for Chinese, Congress chose to leave in place racial restrictions on naturalization, which had existed since 1790. This rendered them perpetual foreigners in America. With regard to labor rights, by abolishing slavery, Congress intended to raise up the freedmen, giving African Americans a chance to work on equal terms with other citizens. In the main, Congress continued to treat the Chinese people as constitutive of the so-called “Chinese question,” a nominalization that ascribed to them features of caste, from which there was little possibility of upward mobility. Congress recognized that some Chinese workers in the U.S. who were building railroads or working in mines might be subject to labor exploitation from bosses and from jobbers, sometimes white and sometimes Chinese. However, rather than intervene to liberate Chinese laborers through laws that would free them from involuntary servitude, and give them fair terms on which to compete, Congress eventually moved in another direction: excluding the Chinese altogether in 1882.

--Dan Ernst

Thursday, September 17, 2020

Abrams on the Mail Fraud Statutes

Norman Abrams, UCLA Law School, has posted Uncovered: The Legislative Histories of the Early Mail Fraud Statutes:

The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime—that is, not made a crime because it serves to protect direct federal interests against harm, but rather as an auxiliary to state crime enforcement. Mail fraud is also a crime that scholars, judges and lawyers have viewed as not having any significant legislative history linked to its original enactment in 1872, nor to its two early revisions in 1889 and 1909.

This paper uncovers and elaborates on legislative history details related to each of those three legislative enactments and, along the way, presents a more nuanced view of the status of mail fraud as the original federal auxiliary jurisdiction crime.

 --Dan Ernst

Osgoode Society's "Evenings of Canadian Legal History"

The Osgoode Society for Canadian Legal History has announced "An Evening of Canadian Legal History,” a monthly lecture series to be conducted on-line via Zoom at 5:30 pm on designated Wednesdays.

September 23
Professor Jim Walker, “Legacies: The Impact of Black Activism on the History of Rights in Canada”

October 21
Professor Nina Reid-Maroney, "Vigilance:  Black Activism and Chatham’s Demarest Rescue, 1858"

November 18
Anna Jarvis and Filippo Sposini Present their Research

--Dan Ernst

Wednesday, September 16, 2020

Calabresi and Godi on Italian Constitutional History

Steven G. Calabresi and Matteo Godi have published Italian Constitutionalism and Its Origins in the Italian Law Journal 6:1 (2020): 23-53:

Focusing on the evolution of constitutional thought in Italy is key to understand not only Italy’s current legal order, but also constitutionalism more generally. In Italy, there has not been a true rupture point between the pre-unitary legal systems and the new constitutional order; a comprehensive study of Italian constitutional law, then, cannot do away with the preceding legal orders as modern textbooks do. And a study of modern constitutionalism cannot ignore Italy’s contribution: centuries of attempts at constitutionalizing, detached from any meaningful revolutionary vacuum. This Article sets out to fill that gap by focusing on the little known, three-centuries-long history of Italian constitutionalism, and it does so by offering many previously unpublished English translations of Italian constitutions. Part II discusses the genesis of modern constitutional thought in Italy. It focuses, in particular, on the Draft Constitution of Tuscany (1787); the Second Constitution of the Cisalpine Republic (1798); and the Constitution of the Kingdom of Italy (1802). Part III analyzes the Albertine Statute, the most famous pre-modern Italian constitution, first enacted in 1848 by the Kingdom of Piedmont and Sardinia and later extended to the entire nation following the unification of Italy in 1861. Part IV briefly focuses on the 1948 Constitution of the Italian Republic – Italy’s current constitutional document. Part V extrapolates from this history in order to make a few normative claims. A brief conclusion follows.

--Dan Ernst

Johnson on soothsayers and legal culture in medieval England

 Tom Johnson (University of York) has published the following article: "Soothsayers, Legal Culture, and the Politics of Truth in Late-Medieval England," Cultural and Social History (published online on 31 Aug. 2020). Here's the abstract: 

Soothsaying or divination has generally been understood by historians within the context of magic, popular culture, and lay religion. This article considers what it might be able to tell us about legal culture in late-medieval England. It argues that soothsayers not only offered people an alternative to the pursuit of justice in law-courts, but also different means of conceiving what justice was: they did not necessarily aim at the conclusion of peace between parties, but rather claimed to unveil the truth. Elaborating this comparison, it argues that this casts a different light on the publicity of late-medieval legal culture.

Further information is available here.

--Mitra Sharafi 

Tuesday, September 15, 2020

David's "Kinship, Law and Politics"

Joseph E. David, Sapir Academic College, Israel, has published Kinship, Law and Politics: An Anatomy of Belonging in the Law in Context series of Cambridge University Press:
Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentieth-century statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wide-ranging and fluid notions of belonging can be.
Some endorsements:

'Not since Charles Taylor have scholars seen such a profound inquiry into the sources of selfhood and the nature of belonging in community. Joseph David draws on a stunning range of ancient and modern, familiar and forgotten figures to probe the depths of human nature and our essential bonds of marriage and family, friendship and faith, property and state. This is interdisciplinary and interreligious scholarship of the highest caliber.'

John Witte, Jr. - Director of the Center for the Study of Law and Religion, Emory University

'Joseph David’s book is an immensely erudite and deep exploration of the meaning of belonging and identity. David’s brilliant examination of the belonging and identity in their different layers and in diverse historical settings, is of fundamental importance to the understanding of the complexity of the concept and the vital role it plays in contemporary political and cultural life.'

Moshe Halbertal - New York University

--Dan Ernst

Haksgaard on the Homestead Rights of Deserted Wives

Hannah Haksgaard, University of South Dakota Knudson School of Law, has posted The Homesteading Rights of Deserted Wives: A History, which is forthcoming in the Nebraska Law Review:
Mrs. Faro Caudill, Ironing (NYPL)
During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.
–Dan Ernst

Monday, September 14, 2020

McClure on whipping in colonial India

 Alastair McClure (University of Hong Kong) has published "Archaic Sovereignty and Colonial Law: The reintroduction of corporal punishment in colonial India, 1864-1909," Modern Asian Studies 54:4 (2020), 1712-47. Here's the abstract: 

The judicial and summary punishment of whipping—absent from the Indian Penal Code (IPC) of 1860—was passed into law through Act No. VI of 1864. This legislation, tacked on as an appendage to the IPC, invested the judge with wider discretionary powers to administer violence across Indian society. In this case what emerged was an evolving attempt to enlarge the colonial state’s capacity for quotidian violence, targeting certain bodies to reaffirm, manage, and police the social hierarchies upon which colonial sovereignty depended. In the context of a slow imperial movement away from the cast-iron distinctions that had been made between groups in the early nineteenth century—distinctions that had, among other things, supported a legally enforced system of slavery—new methods to mark the value of different bodies were created. The events of the 1850s, in particular the rebellion of 1857-1858, saw the re-emergence of the colonial idea that certain bodies could withstand violence, and that violence itself could be used to create economically productive colonial societies, in debates around penal law and punishment. This article will trace this history through formal legal restrictions and informal legal cultural practices in relation to corporal punishment in colonial India. Over the course of the period under study, this legislation introduced into law what one official termed ‘the category of the “whippable”’. Charting the changing shape of this legal category along lines of race, gender, caste, class, and age, the article will argue that a logic of exceptionality, channelled here through the application of judicial violence, attempted to structure and manage Indian society in complicated ways.

Further information is available here

--Mitra Sharafi

Religious Normativity in Early Modern New Granada

[We have the following announcement from our friends at Max Planck.  DRE]

Religious Normativity in Early Modern New Granada

Ecclesiastical institutions and actors played key roles in the formation of normative orders in early modern  Ibero-America. Their legal historical importance is now discussed in case studies focusing on New Granada - a region which included today's Colombia, Venezuela and Ecuador - from the 16th to the 19th century. This is the subject matter of the most recent volume of the series Global Perspectives on Legal History (GPLH), edited by Pilar Mejía, Otto Danwerth and Benedetta Albani (Max Planck Institute for European Legal History).

The nine chapters of this Spanish-language volume explore the relationship between different types of religious normativity as well as their local adaptations in the archdiocese of Santafé and peripheral dioceses. With respect to the colonial period, they deal, for example, with language policy and activities of various religious orders (Dominicans and Jesuits), conflicts between regular and secular clergy, the role of educational centres (colegios and conventos) as well as with financial aspects of parish administration. Further contributions are devoted to the 19th century: in addition to the role of oaths in legal proceedings, the state-church relationship during the processes leading to independence and in Republican times both in Colombia and Venezuela is examined afresh.

The present volume is the third in a four-book series exploring the contribution of ecclesiastic institutions to normative orders in early modern Ibero-America. The first two books examined the viceroyalties of New Spain and Peru, respectively. The final volume (2021) will focus on Portuguese America (Brazil) and thus provide comparative material to the studies of Hispano-America.

More information on the volume [here].

The Fowl Affair, or How I Temporarily Swore off Puns

I once wrote about a chicken that refused to die and called the article “The Fowl Affair.” Not everyone was amused, and I was told to go with a different title by one of the editors. I was attached to the title because the idea was hatched in a graduate class years before publication. The professor who taught the class neither encouraged nor discouraged it which I took as tacit approval though he did warn me not to present the paper at lunchtime talks. The title had been a constant companion through my postdoctoral years as I drafted and revised the article so I definitely considered digging my heels in. The article won a prize from the journal and I acquiesced.
    Although common in journalism and marketing, puns are not without controversy in academic publishing. Of course, there is such a thing as going too far. The main criticism of puns in scholarly work is that they are clever but more often than not, seldom move beyond self-congratulations. Anti-punsters believe they rarely illuminate anything or push the conversation forward although as fortuitous homonyms, they are hardly any different than metaphors which academics have embraced wholeheartedly as heuristic devices. Humor in puns make people cringe and groan, irritated at the distraction or even, perceived deflection. Droll at best, puns are indeed lesser than tropes which could be explored at length as turns of phrases. By contrast, puns tend to end conversation because to explain them would destroy the fun in them. Because of this, I myself refrain from puns in my book although one of my manuscript reviewers mentioned (in a positive light so likely, a lover of puns) that there were indeed puns so I might be a natural punster after all.
Puns are delightful. They are whimsical and grant a reprieve from the serious dreariness of scholarly work at times. A pun is as an expression that achieves emphasis or humour by contriving an ambiguity, two distinct meanings being suggested either by the same word or by two similar-sounding words, according to the Oxford Dictionary of Literary Terms. Because legal history often addresses topical issues with urgency and immediacy, they could add much-needed levity to our writing. Law review articles are already notorious for being punny – here’s a sample list of delicious titles. My personal favorite is the title of a book by Rebecca J.H. Woods The Herds Shot Around the World: Native Breeds and The British Empire, 1800-1900 (2017).
Puns are supposedly untranslatable although ironically people revel in multilingual puns all the time taking advantage of similar-sounding words in many languages simultaneously. The two languages I am learning at the moment, Persian and Mandarin Chinese, are particularly full of puns. Even within one language, puns are by their very nature interdisciplinary since they exist in several domains at the same time because they layer meaning, humor and irony in a single or few words. Puns suggest evidence and expression of a hidden connection—between mind and material, ideas and things, knowing and nomenclature, and who would not want to be sensitized to these connections. The knowing recognition we get from our audience is very satisfying too and bonds us deeper with one another. I have since returned to puns as my previous post attests.

--Nurfadzilah Yahaya

ASLH Virtual Mini-Conference

 [We are only just getting around to posting here the following information, which has been up on the website of the American Society for Legal History for some time.  DRE]

The ASLH program committee has organized an exciting short program of online panels to be held on November 13-14, 2020. You can find the schedule below.  The mini-conference will be free to attend. Information about registration and virtual attendance will be posted here soon.  All times are U.S. Eastern Standard Time.

American Society for Legal History, Virtual Mini-Conference November 13-14, 2020

Friday, November 13, 2020

10:30-12:00: Panel 1 – The Everyday Materials of Colonial Legal Spaces

Kalyani Ramnath, Harvard University

“Half Real: Space, Imagination and the Juzgado de Indios in Spanish America”
Bianca Premo, Florida International University

“Paper, People, Cloth: Mixed Courtrooms and Materiality in Colonial Indonesia”
Sanne Ravensbergen, Leiden University

“Out of Bounds in the Circum-Caribbean”
Laurie Wood, Florida State University

“Policing the Countryside in Colonial Mexico: Native Law, Custom, and Jurisdiction”
Yanna Yannakakis, Emory University

1:00-2:30: Panel 2 – Documenting Identity in the Atlantic World, 1600–1800: A Conversation

Nathan Perl-Rosenthal, University of Southern California
Hannah Muller, Brandeis University

“Licenses in Servitude, Military Service, and Slavery: Views from the Lower Courts”
Sonia Tycko, Oxford University

“‘That no such Alien shall depart…without previously obtaining a Passport’: identification and documentation under the Aliens Acts, 1793-1794”
Hannah Muller, Brandeis University

“Between Land and Sea: Maritime Identification Documents and Terrestrial Legal Regimes”
Nathan Perl-Rosenthal, University of Southern California

Susan Pearson, Northwestern University

2:45-4:15: Panel 3 – The Preyer Prize Panel

“‘Los Hijos Son La Riqueza Del Pobre:’ Postwar Mexican Child Migration and the Making of Domestic (Im)migrant Exclusion, 1940-1965”
Ivón Padilla-Rodriguez, Columbia University

Barbara Welke, University of Minnesota

“Policing the ‘Police State’: Detention, Supervision, and Deportation During the Cold War”
Smita Ghosh, University of Pennsylvania

Lucy Salyer, University of New Hampshire

2:45-3:15: Panel 4 – Roundtable: Publishing Legal History Books in the Coronavirus Era

Wendy Strothman, The Strothman Agency
Reuel Schiller, Hastings College of the Law/Cambridge University Press
Michael Lobban, London School of Economics/Cambridge University Press
Tim Bent, Oxford University Press
Debbie Gershenowitz, University of North Carolina Press

Saturday, November 14, 2020

10:30-12:00: Panel 1 – Jefferson, Madison, and the Challenge of Abolition in the Era of the Haitian Revolution

“Slavery in the Era of the Founders”
Annette Gordon-Reed, Harvard University
Peter Onuf, University of Virginia

“Caribbean Migrants and the Non-enforcement of the 1807 Ban on the Slave Trade”
Rebecca Scott, University of Michigan
Andrew Walker, Kenyon College

Malick Ghachem, Massachusetts Institute of Technology

1:00-2:30: Panel 2 – Presidential Address & Prize Announcements

Lauren Benton, Yale University

Sunday, September 13, 2020

Ho on Administrative Law in Tang Dynasty China

 [We have the following announcement from the Chinese University of Hong Kong.  DRE]

Greater China Legal History Seminar Series: Feeding the Emperor – Administrative Law in Tang Dynasty China by Prof. Norman P. Ho (Online)

The Tang Liu Dian (hereafter, “TLD”), compiled in 738–739 A.D. during the Tang dynasty, is an important administrative law code which lists out in great detail every Tang dynasty government office, as well as various official positions and their functions and obligations. The TLD is of great historical significance—it is regarded as the earliest fully extant administrative law code from China, and it served as a model administrative law code for subsequent dynasties, including the Ming and Qing dynasties. This seminar will examine Tang dynasty administrative law, as set forth in the TLD, through the specific lens of how the emperor was fed and will analyze Tang administrative regulations on feeding the emperor. This seminar will describe the specific agencies and officials who were responsible for feeding the emperor, as well as their specific functions and structures as provided by the TLD. Relevant rules in the Tang Code ?? (i.e., the Tang dynasty penal code) will also be discussed to provide a complete picture of the regulatory apparatus behind the task of feeding the emperor. Ultimately, from this examination of Tang administrative law through the emperor’s food service agencies and offices as set forth in the TLD, this seminar will also set forth some general observations regarding Tang dynasty administrative law and will argue that one of the key roles of administrative law in the Tang was to further enhance and protect the prestige, image, and power of the emperor.

Prof. Norman P. Ho is a Professor of Law at the Peking University School of Transnational Law (STL) in Shenzhen, PRC. His research interests broadly are in legal theory and legal history, and he writes specifically in the areas of premodern Chinese legal history and legal theory, comparative jurisprudence, property theory, and Asian-American jurisprudence. He has served as a visiting professor at the National University of Singapore Faculty of Law and a visiting fellow in the Center for Chinese Law (HKU Faculty of Law). Prior to joining the STL faculty, Norman practiced in the Hong Kong offices of Morrison & Foerster and Slaughter and May, where his practice focused on capital markets and private equity transactions. He received his J.D. degree from NYU School of Law and his undergraduate and graduate degrees in Chinese history from Harvard University.

CPD credits are available upon application and subject to accreditation by the Law Society of Hong Kong (currently pending).

Register here by 5pm, 17 September 2020 to attend the seminar.

Saturday, September 12, 2020


In the eastern end of the Indian Ocean, the hardening of racial boundaries from the second half of the nineteenth century onwards occurred under the aegis of a globalized imperial system. According to Dutch classification, every non-white person in the Netherlands Indies was part of a European empire. The vast majority of Indies population were of course Dutch subjects, but there were people relegated to the category of ‘Foreign Orientals.’ For example, Malays were often labeled ‘Britisch-Maleiers,’ even if in Dutch territory simply because the Malay peninsula, identified as place of origin for all Malays, had fallen under British influence in the closing decades of the nineteenth century. By the early twentieth century, Chinese subjects who originated from Taiwan were recognized as Japanese because the territory was colonised by Japan in 1895. South Asian populations in the Dutch colony on the other hand were alternatingly labelled ‘Britisch-Indiers,’ ‘Klingaleezen’ and ‘Bengaleezen.’ Because Dutch colonial censuses were not diligently undertaken, we do not know the proportion of the South Asian population throughout the colonial period; the only systematic colonial census published in 1930 put the population at 1-3% depending on their location in the vast archipelago. Evidently, urban areas in Padang, Medan and Surabaya had enough South Asians for them to have their own quarters with their own community heads.
    Yet the much older category of ‘mooren’ predated these categories, appearing in both VOC (Dutch East India Company) records and Dutch colonial government records before 1850 especially. Who were these ‘mooren’ exactly? A clue is provided by the fact that the term ‘klingaleezen’ was sometimes substituted for ‘mooren.’ By using the term ‘mooren,’ Dutch authorities linked South Indian Muslims with other Muslims much further away in Spain (who once ruled them) a few centuries before. But this link excluded non-Muslims from Malabar and parts of southern India. The ‘Hindoe-Klingaleezen’ were a “neglected” people the Dutch should pay more attention to, a Dutch newspaper lamented in 1918, which suggest that on its own, the term only referred to Muslims. Also, why did “Bengaleezen,” a label that applied to all Indians from northern India regardless of origin, remain a distinct but undifferentiated category too? Although nearly all references to ‘mooren’ after 1800 refer only to the Indian subcontinent, the term emerged out of Dutch experience in Sri Lanka from 1640 to 1796 referring to Muslims of Tamil descent who were living in Dutch Ceylon who were of mixed ethnicity. “But more likely, if not certain, is that they are descended from the 'Mooren,' or so-called Klingaleezen of the Malabar coast,” the reporter of Sumatra Courant noted in September 1871. They came mainly for trade, another reporter wrote in De Locomotief in 1873. The term, in other words had many layers some of which were shed by the Dutch colonial government who took over from the defunct VOC in 1800. By subsequently connecting the ‘mooren’ classification with the subcontinent only, the Dutch government got round the awkwardness of taking over corporate VOC rule by dint of forgetting their association with Dutch Ceylon by implying that those earlier ‘mooren’ are an artefact of an era that had recently ended. 'Mooren' in Netherlands Indies on the other hand were supposedly from the subcontinent instead. The question remains as to how the klingaleezen identified themselves since their voices are rarely found in the archives but in September 1927, a group classified as klingaleezen wrote to the colonial government requested that they not be referred as such anymore since the term is humiliating. The term “kling” had evolved into a racial slur by then in parts of Southeast Asia.
    The category of ‘Britisch-Indiers’ was taken literally. In 1886, the British government in India requested that the Dutch government accept the appointment of a ‘British-Indian Protector’ from the Straits Settlement of Penang to oversee south Indian immigrants (referred to as klingaleezen) in Deli in northeast Sumatra, the site of many tobacco plantations. The south Indian coolies who traveled to work in these plantations were not only claimed by British as subjects but made to sail from southern India to British Penang first before looping back to Deli across the Straits of Malacca although their passage was paid by plantation owners in Sumatra. Dutch authorities were aghast that their authority did not suffice, but British capital buoyed the Dutch tobacco industry and the advantage of having an interpreter in the form of the Protector enticed them to accept the appointment. This arrangement aligned with their imperialistic view of governance.
    Slightly up north, Siam challenged this conception of a world organized according to empires in the late nineteenth century as an independent nation not colonized by Europeans who nonetheless increasingly determined its borders. Through copious inter-imperial correspondence between Bangkok, Singapore and Batavia, the Dutch took it upon themselves to police the presence of Chinese, Malays and South Asians in Siam. The obsession led to the proliferation of “reispas” (travel pass) and travel certificates issued by Dutch consulates, both of which functioned as some kind of proto passport and visa, instruments that first emerged in the colonial world as the late Adam McKeown pointed out in his vast oeuvre. 
    Generally, it was impossible for most people to move freely in the Asia-Pacific region. Ultimately, colonial classification was an inscription practice obsessed with legibility and smoothness although normative confusion between categories persisted by design. Everything was coded and was capable of being endlessly recoded. While much of mobility research is preoccupied with the association between origins and destinations, we know we can move while staying still because one mechanism for mobility is paradoxically dispossession.

Weekend Roundup

  • Congratulations to Samantha Barbas, University at Buffalo Law, on her receipt of an NEH grant for a "sociolegal history of New York Times Co. v. Sullivan."  More.  
  • As a faculty member at Georgetown University faculty, this one shouldn't have surprised me, but it did.  @dbqur
  • The CFP for the next conference of the Society for Historians of American Foreign Relations, to be held in a hybrid format in Arlington, VA, June 17-20, 2021, is here.
  •  The United States Capitol Historical Society announced that its 2020 National Heritage Lecture, delivered virtually on September 14, 2020, will be a discussion of “one of the most far-reaching accomplishments of mid-20th century American government: The comprehensive and strategic investment in our transportation infrastructure.”   The Supreme Court Historical Society and the White House Historical Association are also sponsors of the event.  More.
  • ICYMI: A review of James Whitman’s Hitler’s American Model (Concord Monitor).  Danielle Allen on The Flawed Genius of the Constitution (Atlantic)
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 11, 2020

Lee to Lecture on Contagious Diseases and the Rule of Law in the British Empire

[We have the following announcement from the Transnational Legal History Group Seminar of the Centre for Comparative and Transnational Law of the Chinese University of Hong Kong.  DRE]

‘Protecting Women and Morals? Contagious Diseases Laws and the “Rule of Law” Ideal in the British Empire, 1886-1899’ by Dr. Jack Jin Gary Lee (Online)

What does it mean for liberal empires to invoke the rule of law, on the one hand, and to expand their
control over subject populations, on the other? This article examines debates over the freedom of women during the repeal of the Contagious Diseases (CD) ordinances by the Protection of Women and Girls ordinances in the directly ruled colonies of Hong Kong and the Straits Settlements (Singapore, Penang and Malacca). Originating in Hong Kong, CD laws were used to contain the spread of venereal diseases among soldiers and other populations across the modern British empire. Officials employed these laws to police prostitution and subject working-class, “native” women to medical surveillance. While the compulsory medical examination of women ended with the repeal of CD laws across the British Empire, the Straits Settlements and Hong Kong continued to regulate prostitution for the protection of “native” women and their freedom, revealing the peculiar significance of the “rule of law” under liberal imperialism. In a historical ethnography of the “rule of law” ideal, Dr. Jack Jin Gary Lee demonstrates how officials utilized its central premise of individual liberties as a comparative frame of evaluation to formulate a racially differentiated mode of gendered sovereignty.

Dr. Jack Jin Gary Lee’s research and teaching examines the significance of culture, law and politics in social processes of state-making and governance. He is working on a book on the significance of law and race in the making of “direct rule” in the modern British Empire. Focusing on the re-constitution of Jamaica and the Straits Settlements (Singapore, Penang and Malacca) as Crown Colonies in the latter half of the nineteenth century, this project examines the workings (and postcolonial legacies) of liberal imperialism in relation to colonies marked as plural societies. Notably, Lee’s dissertation on this topic won the University of California, San Diego’s 2018 Chancellor’s Dissertation Medal (Social Sciences).

Register here by 5pm, 22 September 2020 to attend the seminar.

Wong on the abolition of concubinage in Hong Kong

Max W. L. Wong (University of Hong Kong) has published Chinese Marriage and Social Change: The legal abolition of concubinage in Hong Kong with Springer. From the press: 

This book provides a comparative account of the abolition of concubinage in East Asia, offering a new perspective and revised analysis of the factors leading to – and the debates surrounding  – the introduction of a new Marriage Reform Ordinance in Hong Kong in 1971. It uses this law as a platform to examine how the existence of concubinage – long preserved in the name of protecting Chinese traditions and customs — crucially influenced family law reforms, which were in response to a perceived need to create a ‘modern’ marriage system within Hong Kong’s Chinese community after the Second World War. This was, by and large, the result of continued pressure from within Hong Kong and from Britain to bring Hong Kong’s marriage system in line with international marriage treaties. It represented one of the last significant intrusions of colonial law into the private sphere of Hong Kong social life, eliminating Chinese customs which had been previously recognised by the colonial legal system’s family law. This book contextualizes the Hong Kong situation by examining judicial cases interpreting Chinese customs and the Great Qing Code, offering a comprehensive understanding of the Hong Kong situation in relation to the status of concubines in Republican China and other East Asian jurisdictions. It will be of particular interest to teachers and students of law, as well as researchers in gender studies, post-colonialism, sociology and cultural studies.

 Further information is available here.

--Mitra Sharafi

Thursday, September 10, 2020

Tidmark to Lecture on the London Fire Courts

 [We have the following announcement.  DRE]

The Selden Society with the Four Inns of Court presents The Fire Courts: Successfully Delivering Justice in a Time of Plague and Fire, by Jay Tidmarsh, Notre Dame Law School, 21 October 2020, 5.30pm.  Click Here to Book.

1665 had been a devastating Plague Year. 1666 was going that way and then the Great Fire destroyed seven eighths of London. The international scene was bleak. Samuel Pepys despaired of London ever being rebuilt.

And yet, within ten years modern London had risen from the ashes, and with London’s resurgence the foundation for continued rise of the British Empire had been laid. Professor Jay Tidmarsh of Notre Dame Law School will explore the social and economic impact of the Great Fire and explain how a six-section Act of Parliament, which erected a novel Fire Court to cut a path through the tsunami of legal disputes that threatened the timely rebuilding of London, played a central role in the City’s redevelopment. Drawing on research into the London Fire Court as well the Southwark Fire Court established after the Great Southwark Fire of 1676, the lecture will also explore lessons for modern times: the circumstances under which government intervention can foster resilience and the ways in which the judiciary can be a key partner in recovery from disaster.

The Selden Society and the Inns of Court have joined forces to establish a new series of annual lectures open to scholars, students and the general public to show the relevance of a wider understanding of Legal History. This first talk on the genesis and impact of the Fire of London Disputes Act 1666 and how Fire Courts helped the City of London and other communities recover in a surprisingly short time is designed to have particular salience in our present uncertain times.

Davies on 1916 and the Supreme Court

Ross E. Davies, George Mason University Antonin Scalia Law School, has posted A Changed Court, 2020 Green Bag Almanac 193:
On June 10, 1916, U.S. Supreme Court Justice Charles Evans Hughes resigned from the Court so that he could campaign full-time for the Presidency of the United States on the Republican ticket. The move turned out, eventually, to be a double blessing for sitting President Woodrow Wilson of the Democratic Party. First, in the summer, Wilson nominated John H. Clarke — like Wilson, a Democrat and a Progressive — to replace Hughes at the Court. Clarke was promptly confirmed and commissioned, and he took office on July 24. Second, in the autumn, Wilson ran for reelection and defeated Hughes on November 7. And it was, in addition, a busy year for speculation, staff changes, and sentimental expressions at the Court.
--Dan Ernst

Wednesday, September 9, 2020

Burset on advisory opinions

 Christian Burset (Notre Dame Law School) has an article coming out in vol. 74 of the Vanderbilt Law Review, forthcoming in 2021. Here's the abstract posted on SSRN for "Advisory Opinions and the Founders' Crisis of Legal Authority" (Notre Dame Legal Studies Paper No.200826):

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only in the United States, but also in England and British India—became opposed to advisory opinions in the second half of the eighteenth century. The death of advisory opinions was a global phenomenon, rooted in a crisis of common-law authority.

Early modern English judges had routinely advised the Crown. This advisory role was politically fraught but doctrinally unproblematic thanks to a jurisprudential orthodoxy that treated judges’ opinions as evidence of a preexisting common law. Although this declaratory theory survived into the nineteenth century (and beyond), it began to fragment after 1750, as lawyers began to disagree about the nature of precedent. Those disagreements generated new pressure to clarify the weight of different kinds of legal authority. Most lawyers intuited that advisory opinions were less authoritative than decisions arising from litigation. But because bench and bar lacked a common theory of legal authority, they were unable to articulate a shared understanding of what respect was due to judges’ extrajudicial pronouncements. As a result, advisory opinions became dangerous, because the judges who issued them could not control how future readers might treat them. In response, judges sought to limit their advisory activity—first in England, then in British-controlled Bengal, and finally in the United States, whose judges inherited Britain’s contested and dynamic understanding of judicial power.

Further information is available here.

--Mitra Sharafi 

Tuesday, September 8, 2020

McIntyre and Milne on "Alien" Power in Australia

 Joe McIntyre and Sue Milne, University of South Australia School of Law, have posted The Alien and the Constitution: The Legal History of the ‘Alien’ Power of the Australian Commonwealth:

The identity of a body politic is inevitably intertwined with that of the excluded other. The quintessential political ‘other’ is the ‘alien’. The express constitutional power to regulate ‘naturalisation and aliens’ in s51(xix) has come to be seen as the hook upon which to hang the Commonwealth’s power to regulate Australian nationality and citizenship. Given the Australian colonies were obsessed with exclusions, and the Commonwealth’s roll-out of the White Australia policy as one of its first legislative priorities on immigration, this connexion between alienage and immigration (and thus eventually citizenship) appears inevitable. It is, however, historically wrong. This article argues that the scope and purpose of the ‘aliens power’ has been miscast, and that as a matter of history its true analogue was the races power, not immigration. The power was designed to regulate the domestic disabilities of aliens (and the removal of those disabilities through naturalisation), just as the races power regulates the disabilities of particular classes of persons. Moreover, and contrary to subsequent jurisprudence, the meaning of ‘alien’ at Federation was clear and unambiguous. This article unpicks the history records to understand this purpose and meaning at Federation in a way that challenges our contemporary understanding of Australian identity.

--Dan Ernst

Monday, September 7, 2020

CFP: Unauthorized European Migrations to the United States

 We have the following Call for Papers:

Unauthorized European Migrations to the United States

        We solicit proposals for papers that explore unauthorized European migrations to the United States. We anticipate a university press will publish the papers as a volume edited by Danielle Battisti, Associate Professor of History at the University of Nebraska at Omaha and S. Deborah Kang, Associate Professor of History at the University of Texas at Dallas. Prior to the publication of the volume, the editors and organizers will convene at the University of Nebraska for workshops and a conference pertaining to the volume.        

         The conference and volume will afford scholars from the United States and the world to explore the origins, nature, and significance of irregular European migration flows to the United States from the nineteenth century to the present. In so doing, we aim to expand our current understanding of the history of illegality in the United States. The volume intends to examine how and why thousands of European migrants adopted illicit migration strategies to circumvent restrictionist immigration laws; excavate the roles of race and racism in the production and representation of European illegality; explore the impacts of illegality on the shaping of migrant politics, social worlds, and domestic lives; illuminate the development of US laws, policies, and institutions pertaining to the policing of undocumented immigration; and describe the impacts of these migrations on European sending states, among other topics.

         We welcome scholarly papers based on archival research as well as conceptual pieces that think critically about theory and terminology. Papers might focus on a specific European migrant group or examine unauthorized European migrations to the United States in a comparative context.  Those comparisons might consider European migrants in relation to other migrant groups; or may situate unauthorized European migration in a transnational or international context.  Interdisciplinary perspectives are welcomed.

         We seek submissions from scholars in the United States and abroad and of any rank or affiliation. By November 15, 2020, please send project proposals of 500-800 words and a one-page CV to Danielle Battisti ( and S. Deborah Kang ( The proposal ought to describe the research project and its connection to the themes of the volume and the conference. If selected, authors should be prepared to submit full papers (approximately 8000 words with notations) for review by September 1, 2021.    

Please circulate to your networks and colleagues. 

-- Karen Tani

Stanford Center for Law and History Workshop 2020-21

The Stanford Center for Law and History has announced the lineup for its 2020-2021 workshop:

Oct. 6, 2020: Lisa Surwillo, Stanford Iberian and Latin American Cultures

Trafficked from Free Soil: María de Jesús and 19th Century Spanish Cuba

Oct. 20, 2020: H. Timothy Lovelace, Jr., Duke Law

Foreign Interference in US Elections is Nothing New

Oct. 27, 2020: Michelle McKinley, University of Oregon Law

Bound Biographies: Transoceanic Itineraries and the Afro-Iberian Diaspora in the Americas

Jan. 19, 2021: Magdalene Zier, Stanford Law and History

Crimes of Omission: State Action Doctrine and Anti-Lynching Legislation in the Jim Crow Era

Feb. 2, 2021: Ari Bryen, Vanderbilt Classical and Mediterranean Studies

Law and/as Flesh: Provincial Aristocrats and the Law in the Eastern Roman Empire

Feb. 23, 2021: Kimberly Welch, Vanderbilt History and Law

“Eulalie Mandeville’s Money:” Black Moneylenders and Economic Citizenship in the Antebellum U.S. South

April 20, 2021: Anne Twitty, University of Mississippi History

Remaking Bondage: The Persistence of Unfreedom in the Northwest Territory

April 27, 2021: Rohit De, Yale History

Decolonization, Diasporas and the Origins of Emergency Lawyering

May 11, 2021: Nathaniel Hay, Stanford History and Yale Law

Patenting the Guillotine: Intellectual Property Law in Revolutionary France

--Mitra Sharafi

Sunday, September 6, 2020

Constitutional History Chair at VMI

[The following announcement appeared on H-Net.  DRE]

The Virginia Military Institute seeks a tenure-track associate or full professor for a newly endowed chair in United States Constitutional History, to begin in August 2021. Candidates should be well-prepared to develop and teach a new, core-curriculum, upper-division introduction to United States Constitutional history. Core curriculum courses are required of all cadets.

The normal teaching load of nine credit hours per semester includes six credit hours of the new upper-division course in Constitutional History plus three credit hours per semester of an upper-division elective course as mutually agreed with the department head. Enrollments in all courses are capped at 21 or fewer students per section.

This position includes significant administrative duties related to the new course and to VMI’s commitment to ensuring that our graduates possess a thorough grounding in the principles and substance of the United States Constitution. The successful candidate will oversee other faculty teaching the course, represent the course as a member of VMI’s Core Curriculum Oversight Committee, and coordinate extracurricular speakers and events.

Minimum requirements include an earned Ph.D. in United States history and substantial teaching   experience bearing directly on the United States Constitution and its history. The most attractive applicants will have a genuine interest in developing and overseeing a core curriculum course, and significant experience managing both people and resources. We seek a colleague enthusiastic about joining a vibrant teaching department, and expect all our faculty members to maintain active research interests in their topical specialty. The successful candidate, whether hired at the associate or full professor level, will enjoy an accelerated tenure and (if applicable) promotion clock.

Preliminary Skype interviews with long-list candidates will precede fuller interviews. Normally, the department invites finalists for full-time faculty positions to VMI for two days of meetings, interviews, and tours. Due to the pandemic, this may not be possible. While we will bring candidates to VMI if conditions allow, we are prepared to interview finalists for this position during November or early December via videoconference, to include a teaching presentation via Canvas to a pilot upper-division course in the “American Civic Experience.”

VMI is a public, four–year, undergraduate military college of approximately 1,700 students, about half of whom accept commissions as officers in the armed forces upon graduation. Teaching excellence in a liberal arts setting is our first priority.  Faculty members who are United States citizens wear uniforms and adhere to military customs, but military experience among the faculty is neither required nor expected. For more information about VMI and the Department of History, please visit our web site at .

Applicants must complete an online state application and submit letters of interest, curricula vitae, and an unofficial transcript of all graduate course work on-line [here].

In addition to the materials submitted online, applicants should have three letters of recommendation (including comments on teaching) and samples of scholarship not readily available in electronic format sent directly to: U.S. Constitutional History Search Committee, Department of History, Virginia Military Institute, Lexington, VA 24450. Please do not mail hard copies of letters of interest, curricula vitae, or application forms directly to the department.

Applications will be accepted until midnight, 12 October 2020.

In a continuing effort to enrich its academic environment and provide equal education and employment opportunities, VMI encourages women, minorities, disabled individuals, and veterans to apply. AmeriCorps, Peace Corps, and other national service alumni are also encouraged to apply. VMI will provide reasonable accommodation to qualified individuals with documented disabilities to ensure equal access and equal opportunities with regard to employment, educational opportunities, programs and services.

Saturday, September 5, 2020

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.