Hoffman on Competition Law and Canadian Identity

C.P. Hoffman, FreeState Justice, has posted “The Mother of Combines”: Representations of the United States in Early Canadian Discourse on the Combines Problem and the Formation of Canadian National Identity, which is forthcoming in the Canadian Journal of Law & Society:

Nathaniel Clarke Wallace (wiki)

In late 1887, Canada was swept up in a fervor over the impact and scope of so-called “combines”, a blanket term used to cover price-fixing schemes, pool agreements, trusts, and other cartel and monopoly arrangements. The public debate that ensued ultimately led to the passage in 1889 of the Anti-Combines Act, the world’s first modern competition statute, enacted a year prior to the United States’ more famous Sherman Antitrust Act. But while in this case Canada acted before its neighbor to the south, the United States remained omnipresent in public and parliamentary debates on the combines problem. Canadian discourse referred to the United States in at least four ways during the combines debates: as a benchmark against which the Canadian economy and the combines problem should be judged; as a model for potential legal action, as a potential economic liberator through the power of free trade; and as the very source and propagator or the combines problem. Canadians thus alternately presented the United States as savior or devil, as paragon or antithesis. The result was a paradox of a sort: Canadians borrowed American ideas in order to avoid becoming American.

–Dan Ernst

Cromwell Dissertation Prize to Tycko

We have word that the William Nelson Cromwell Dissertation Prize, awarded by the trustees of the William Nelson Cromwell Foundation on the recommendation of the Advisory Committee on the Cromwell Prizes of the American Society for Legal History, has gone to Dr. Sonia Tycko, Oxford University,  for “Captured Consent: Bound Freedom of Contract in Early Modern England and English America.”  From the recommendation of the ASLH committee:

In an extraordinarily creative and imaginative dissertation, "Captured Consent: Bound Service and Freedom of Contract in Early Modern England and English America," Sonia Tycko explores the repeated appearance of consent as part of the meaning of compulsory service in the early modern period. … Tycko forces us to reconsider the very foundations of consent and contract and makes a signal contribution to the historiography on contract, labor, and freedom. Tycko also offers nuanced readings of an impressive array of primary sources and reveals the social realities against which a vocabulary about contract arose in particular labor relationships, from indentured servitude to military impressment to kidnapping. She mines documents that others might skim and brings to the surface the way in which the very words betray underlying power dynamics. The important transatlantic lens persuasively establishes her argument as part of larger seventeenth-century English assumptions, in Great Britain and the British colonies. This dissertation rewards the reader on every page-and, impressively, becomes even more interesting on rereading. Tycko's dissertation serves as a model of the well-crafted and carefully executed dissertation in legal history.

–Dan Ernst

CFP: Asian Legal History

 [We have the following announcement and CFP.  DRE]

 The Transnational Legal History Group of the Centre for Comparative and Transnational Law (CCTL) and the University of Law - Hue University will be jointly organizing a conference on the theme of Asian Legal History at the University of Law - Hue University, Hue, Vietnam, on 24-25 July 2021. Convened by Bui Ngoc Son and Christopher Roberts, Assistant Professors at CUHK LAW, the conference aims to bring together a diverse and interdisciplinary group of scholars, researchers, and graduate students to share their research findings on topics relating to legal history in Asia.

Confirmed Keynote Speakers:

Andrew Harding, Visiting Research Professor, National University of Singapore, Faculty of Law
Pip Nicholson, Dean, William Hearn Professor of Law, Melbourne Law School
Radhika Singha, Professor of Modern Indian History, Jawaharlal Nehru University
Lutz-Christian Wolff, Dean, Wei Lun Professor of Law, CUHK LAW

Call for Papers:

The organizers invite proposals for individual papers and panels. Submissions on any subject, providing it pertains to legal history in Asia, will be considered. General topics may include:

The historical evolution of common law, civil law, and socialist law traditions in Asia;
Legal pluralism and jurisdictional clashes;
Dynastic law;
Colonial law;
Customary law and village law;
Buddhist Law, Confucian Law, Hindu Law, and Islamic Law;
The history of a particular area of law (constitutional law, property law, criminal law, etc);
Theoretical and methodological issues involved in studying Asian legal history.

The conference organizers are particularly interested in papers addressing the following subjects:

Asian approaches to and impacts upon the historical development of international law;
Transnational legal history;
The relationship between metropolitan and colonial approaches to law;
The history of law, gender and sexuality;
The evolution of, and contestations around, legal positivism;
The history of law schools and of the formation of the judiciary and of members of the legal profession;
The history of public order law;
The history of law and violence.

Individual paper proposals should include a 300-word abstract and the author’s contact information.  Panel proposals should include a 300-word description of the panel, 300-word abstracts of three to four individual papers, contact information for each person on the panel, and contact information for the chairs of the panel.

Registration Fee: HK$ 200 per participant.  Conference organizers will provide two lunches, one dinner, and refreshments. Participants are responsible for their own travel and accommodation costs.

Important dates:

5 October 2020: Online abstract submission opens
15 December 2020: Abstract submission deadline
15 February 2021: Notification of acceptance
15 March 2021: Registration opens
30 April 2021: Early registration and payment closes
25 June 2021: Regular registration and payment closes
24-25 July 2021: The conference takes place

Please submit the abstracts via online form by 15 December 2020. For enquiries, please contact the CCTL at cctl.law@cuhk.edu.hk.

"The Public's Law" Symposium: Emerson Responds

 [This is the third of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  The series begins here, with my summary of the book and continues with Noah Rosenblum's comment.  What follows is the response of Blake Emerson, Assistant Professor of Law at UCLA.  DRE.]

It is an honor to have the opportunity to continue discussing The Public’s Law here on the Legal History Blog. The author-meets-readers panel that Dan Ernst, Anne Kornhauser, Noah Rosenblum, and I participated in at the American Society for Legal History Conference was a great occasion to discuss the book with scholars whose work and insights shaped the argument. Here I’d like to continue that conversation, focusing on a few key issues: the motivation for the book, the role of Hegelian ideas in American Progressivism, and the promise of studying legal history from a normative perspective.

"The Public's Law" Symposium: Rosenblum Comments

[This is the second of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  My summary of the book on that occasion is here.  Below is a slight revision of the comment Noah A. Rosenblum delivered at session.  Mr. Rosenblum is a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law.  DRE.]

Blake Emerson's The Public's Law is a significant intervention that deserves the attention of legal historians in particular.  It was born as a dissertation in political theory.  But we should not hold that against it.  Except for its last chapter, the work is completely given over to history.  Although framed as a normative argument of historical recovery, it intervenes in two important historical debates of special interest to our community.  First, The Public's Law suggests a new dimension to the world of "Atlantic Crossings" in the late 19th and early 20th century that intellectual historians like James Kloppenberg and Dan Rodgers helped frame nearly 30 years ago.  And second, it contributes to ongoing conversations about how we understand the nature and development of the administrative state-and so speaks to both political historians interested in the history of the Progressive Era, the New Deal, and the Civil Rights years, and legal historians writing the new history of administration and administrative constitutionalism.  I'll have more to say about these historiographical interventions later.  For now, I just want to hammer on this book's relevance for legal history.  The Public's Law is more explicit about its normativity than most historians like.  And, because of the disciplinary divisions of the academy, it comes dressed up as a book that's more for philosophers or lawyers.  But it is decidedly a book that intellectual, political, and legal historians will have to grapple with.

I'd like to focus this contribution on three specific arguments advanced in The Public's Law.  Ernst's post has already explained how Emerson traces the way German Hegelianism worked its ways into the thought of leading Progressive reformers, and, through them, into some of the basic structures of American government.  I want to zero-in on three moments in this progression, and highlight how the argument advanced in The Public's Law challenges our received understandings: (1) first, its account of the meaning and ramifications of Hegelianism, (2) second, its description of the legacy of the Hegelian reception in the United States, and (3) third, its reading of the New Deal and the Civil Rights reforms.

Emerson's "The Public's Law": An LHB Symposium

[The annual meeting of the American Society for Legal History last November included an author-meets-readers session on Blake Emerson’s The Public’s Law: Origins and Architecture of Progressive Democracy (Oxford University Press, 2019).  At it, I summarized the book.  Anne Kornhauser, Associate Professor in the History Department of the City College of New York and Associate Professor of History at the CUNY Graduate Center; and Noah Rosenblum, a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law, provided comments, to which Emerson, Assistant Professor of Law at UCLA, responded.

[We will link to Kornhauser's revised and extended comment when it appears in the New Rambler Review.  This post is my summary of the book.  Rosenblum's comment and Emerson's response will appear in future posts.  DRE]

In Thinking Like Your Editor (2002), Susan Rabiner and Alfred Fortunato suggested a strategy for injecting narrative tension into serious nonfiction.  An author begins by describing some problem that has been bugging her and then explains that the book represents her search for an answer.  If the author does  that much properly, the reader will think, “You know, now that she mentions it, that problem has been bothering me, too.  I’m not exactly sure where her search would take me, but she seems to be a smart cookie who'll have interesting things to say along the way.  I’ll tag along and see whether she finds her answer.”  Narrative tension, then, is provided by the author’s search for an answer.

Emerson’s problem, speaking generally, is the political legitimacy of the administrative state in a democratic United States. The book resulting from his search for an answer has an introduction, a conclusion, and four chapters.  He uses three methodologies: (1) intellectual history (in Chapters 1 and 2); (2) institutional history (in Chapter 3); and (3) what Emerson calls “normative reconstruction” (in Chapter 4).  The answer he arrives at is a kind of bureaucracy that brings the people into the state, new forms of deliberative democratic control within administration itself."  The deliberation is not so much “formally equal, contracting persons” as “relational beings whose identities, interests, and values are formed in joint discourse and action.”  It is a relational state based on the belief that “the conditions of freedom” require that people actively determined the principles and policies by which they were bound.  The result is “the public’s law.”

Comparative Legal History

[We have the following announcement.  DRE]

Comparative Legal History is an international and comparative review of law and history. It was established in 2013, and it is the official journal of the European Society for Comparative Legal History.

The Journal welcomes articles, which explore 'internal' legal history (doctrinal and disciplinary developments in the law) or 'external' legal history (legal ideas and institutions in wider contexts). Rooted in the complexity of the various Western legal traditions worldwide, the articles can also investigate other laws and customs from around the globe. Comparisons may be either temporal or geographical, and both legal and other law-like normative traditions will be considered.

Scholarship on comparative and trans-national historiography, including trans-disciplinary approaches, is particularly welcome.

Further information on how to submit here.

Rg 27

[Rg 27, that is, volume 27 of Rechtsgeschichte - Legal History (2019), is now available from the Max Planck Institute for European Legal History, both in print (Verlag Klostermann) and online in Open Access on the journal's new website.  Here is the editors’ introduction.]

A close associate of the Max Planck Institute for European Legal History for many years, the first article in the new issue of the Rg is also one of António Manuel Hespanha's very last publications. Unfortunately, he passed away only a few weeks before the publication of this issue. His contribution summarises the prosopographical work on Portuguese lawyers of the early modern period that have been carried out in the last three decades. The second essay in the Research section is by Jean-Louis Halpérin. It deals with the surprising connection of criminal law and the law of nations at German-speaking universities from the 16th to the early 20th century - long before the advent of international criminal law.

The starting point of the first thematic topic (Focus "Tridentine Marriage") is the Council of Trento (1545-1563). Ten authors examine the effects and implications of the marriage law reforms enacted by the council in a variety of different regions around the world (Europe, Pakistan, Japan, the Philippines, Latin America) up to the 19th century. To mark the 100th anniversary of the Weimar Constitution, the Focus section "Translating Weimar" addresses its transnational resonance. Five contributions analyse local perspectives from Asia, Latin America and the Common Law World.

This year's Forum takes a closer look at two books, namely the handbooks on legal history published last year by Oxford University Press. Focusing on specific themes related to their own research interests, researchers from our institute have reviewed the volumes and offered their own comments to the discussion on the status of the discipline.

Luckily, the book review section treats more than just two books. As always, the books have been published within the past two years and are discussed in order to facilitate the transfer of knowledge beyond linguistic, regional and historical borders.

Finally, Anette Baumann shares her observations on the evidentiary inspection practices of the Reichskammergericht (1495-1806), and she has selected a number of inspection maps (Augenscheinkarten) to illustrate the print edition of the journal.

--posted by Dan Ernst

AJLH 59:3

American Journal of Legal History 59:3 (September 2019) is out.  Here’s the TOC:

‘To Stay the Murderer’s Hand and the Rapist’s Passions, and for the Safety and Security of Civil Society’: The Emergence of Racial Disparities in Capital Punishment in Jim Crow New Orleans
Jeffrey S Adler

American Treatise Writers and the Nineteenth-Century Debate on Marriage with a Deceased Wife’s Sister in Transatlantic Context   
Angela Fernandez
 
The Development of the ‘Modern’ Criminal Law of Evidence in English Law and in France, Germany and the Netherlands: 1750–1900   
R G Bloemberg

Book Reviews

Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America
Kyle G Volk

Whitman, James Q. Hitler’s American Model: The United States and the Making of Nazi Race Law   
Joseph A Ross

Elizabeth Stordeur Pryor, Colored Travelers: Mobility and the Fight for Citizenship before the Civil War   
Kristin O’Brassill-Kulfan

--Dan Ernst

LHR 37:3: Originalism and Legal History

After Anat Rosenberg's article “Amongst the Most Desirable Reading”: Advertising and the Fetters of the Newspaper Press in Britain, c. 1848–1914, Law and History Review 37:3 (August 2019) is given over to the symposium, Originalism and Legal History: Rethinking the Special Relationship.  As the editor, Gautham Rao, explains,:

At its best, the dialogue between historians and orginalist theorists and practitioners has produced some fascinating ruminations on the possibility of textual determinacy and the transformation of legal and politician language from the eighteenth century to the present.  At its worst, the dialogue has devolved into an "interdisciplinary turf war" without an exit plan.

The principal contributions are:

Two Early Dutch Translations of the United States Constitution: Public Meaning in a Transnational Context, by Michael Douma

Interpreting Article II, Section 2: George Washington and the President's Powers, by Lindsay M. Chervinsky

“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism, by Aaron R. Hall

Common Law Confrontations, by Bernadette Meyler

Originalism and the Academy in Exile, by Paul Baumgardner

Originalism and the Law of the Past, by William Baude and Stephen E. Sachs

Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning, by Saul Cornell

Method and Dialogue in History and Originalism, by Logan Everett Sawyer

The issue concludes with The Closing of the Constitution, Kevin Arlyck’s review essay on Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.

--Dan Ernst

Sethna, Davis and friends on travel for abortion

Out with Johns Hopkins University Press is Abortion Across Borders: Transnational Travel and Access to Abortion Services, edited by Christabelle Sethna, University of Ottawa and Gayle Davis, University of Edinburgh. Many of the chapters are historical in approach, focusing on travel for abortion since the 1960s. From the press: 

Safe, legal, and affordable abortion is widely recognized as an essential medical service for women across the world. When access to that service is denied or restricted, women are compelled to carry unwanted pregnancies to term, seek backstreet abortionists, attempt self-induced abortions, or even travel to less restrictive states, provinces, and countries to receive care.

Abortion across Borders focuses on travel across domestic and international boundaries to terminate a pregnancy. Christabelle Sethna and Gayle Davis have gathered a cadre of authors to examine how restrictive policies force women to move both within and across national borders in order to reach abortion providers, often at great expense, over long distances and with significant safety risks. Taking historical and contemporary perspectives, contributors examine the situation in regions that include Texas, Prince Edward Island, Ireland, Australia, the United Kingdom, and Eastern Europe. Throughout, they take a feminist intersectional approach to transnational travel and access to abortion services that is sensitive to inequalities of gender, race, and class in reproductive health care.

This multidisciplinary volume raises challenging logistical, legal, and ethical questions while exploring the gendered aspects of medical tourism. A noticeable rollback of reproductive rights and renewed attention to border security in many parts of the world will make Abortion across Borders of timely interest to scholars of gender and women's studies, health, medicine, law, mobility studies, and reproductive justice.

Table of Contents after the jump: 

Siems on Malicious Legal Transplants

Mathias M. Siems, Durham University Law School, has posted Malicious Legal Transplants, which is forthcoming in Legal Studies 38 (2018): 103-119:

It is frequently assumed that legal transplants can help law makers in choosing the best ideas from elsewhere in the world. However, this paper suggests that there can also be cases of "malicious legal transplants." This analysis is based on three paradigmatic examples of such type of transplant. The paper explains why such transplants emerge and how they may be prevented. This discussion fills a gap in the normative debate about legal transplants: while it is valuable to identify good models, it is equally important to understand how the impact of malicious ideas can be prevented.

Coffey's "Drafting the Irish Constitution"

Donal K. Coffey, Senior Research Fellow, Max Planck Institute for European Legal History, has just published Drafting the Irish Constitution, 1935–1937: Transnational Influences in Interwar Europe, with Palgrave Macmillan:

The second of two volumes, this book situates the drafting of the Irish Constitution within broader transnational constitutional currents. Donal K. Coffey pioneers a new method of draft sequencing in order to track early influences in the drafting process and demonstrate the importance of European influences such as the German, Polish, and Portuguese Constitutions to the Irish drafts. He also analyses the role that religion played in the drafting process, and considers the new institutions of state, such as the presidency and the senate, tracing the genesis of these institutions to other continental constitutions. Together with volume I, Constitutionalism in Ireland, 1932–1938, this book argues that the 1937 Constitution is only explicable within the context of the European and international trends which inspired it.

We’ll note when the (chronologically) first volume is out!

Balachandran, Pant and Raman on Indian legal histories

Aparna Balachandran (University of Delhi), Rashmi Pant (Nehru Memorial Museum and Library), and Bhavani Raman (University of Toronto) have co-edited a volume entitled Iterations of Law: Legal Histories from India, published by Oxford University Press. From the publisher:

This volume reflects a recent transformation of the concerns of social scientists regarding the legal history of South Asia. While, earlier, historians looked at the results rather than the performance of law, the concerns later shifted to unravelling the socioeconomic and political contexts that shaped law-making and its practice. Iterations of Law advances these new perspectives on legal history from South Asia. Going beyond an area studies rubric to critically engage with recent work in colonial and transnational legal history, the essays in this volume utilize both archival and everyday records to interrogate the relationship between the discipline of history and the institution of law.

The contributors to this volume include both young and established scholars who address the enacted and performative aspects of law that illuminate how rights are inscribed into a hierarchical order, a process that is often elided and fragmented by jurisdictional contexts. Their essays focus on complex moments in the life of the law when rights or claims simultaneously inaugurate a new economy of power and authority. Through these chapters, it becomes possible to interrogate the framing of legal regimes 'from below' and treat the law as a process that entails constant exchange, conflict, and adjustment between the rulers and the governed.

Here is the Table of Contents:

Introduction Iterations of Law: Legal History from India - Aparna Balachandran, Rashmi Pant, and Bhavani Raman

1. The Life of Law in Modern India: A Present History of the Matha Court - Janaki Nair

2. Speaking in Multiple Registers: Property and the Narrative of Care - Rashmi Pant

3. Violence and the Languages of Law - Neeladri Bhattacharya

4. Law in Times of Counterinsurgency - Bhavani Raman

5. Petition Town: Law, Custom, and Urban Space in Early Colonial South India - Aparna Balachandran

6. 'To Mount or Not to Mount?' Court Records and Law-Making in Early Modern Rajasthan - Nandita Sahai

7. Power, Petitions, and the 'Povo' in Early English Bombay- Philip Stern

8. Of Truth and Taxes: A Material History of Early Stamp't Paper- Shrimoyee Ghosh

9. Public Finance and Personal Law in Late-Colonial India- Eleanor Newbigin

Further information is available here.

The Challenges of Comparative Law and Transnational History

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

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

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

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

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

Wu Jinxiong (Wiki)

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

Bishara on Debt in the Indian Ocean

Out this month with Cambridge University Press is A Sea of Debt: Law and Economic Life in the Western Indian Ocean, 1780-1950 by Fahad Bishara, University of Virginia. From the press:

In this innovative legal history of economic life in the Western Indian Ocean, Bishara examines the transformations of Islamic law and Islamicate commercial practices during the emergence of modern capitalism in the region. In this time of expanding commercial activity, a mélange of Arab, Indian, Swahili and Baloch merchants, planters, jurists, judges, soldiers and seamen forged the frontiers of a shared world. The interlinked worlds of trade and politics that these actors created, the shared commercial grammars and institutions that they developed and the spatial and socio-economic mobilities they engaged in endured until at least the middle of the twentieth century. This major study examines the Indian Ocean from Oman to India and East Africa over an extended period of time, drawing together the histories of commerce, law and empire in a sophisticated, original and richly textured history of capitalism in the Islamic world.

Here is the Table of Contents:

Prologue 

1. Life and debt 

2. Inscribing obligation 

3. Paper routes 

Interlude 

4. Translating transactions 

5. Making Africa Indian 

6. Muslim mortgages 

7. Capital moves 

8. Unravelling obligation 

Epilogue

Full information is available here.

Subjectivity, Intent and Impact: The Gordian Knot of Empathy and Interpretation

One ideal of early anthropology was that long-term ethnographic research could fully map the social structure and meanings of a specific cultural space. The ethnographer could then give total context for any individual action or social practice, and thus interpret such with a capacity beyond either naïve outsider or self-interested insider. While the realism of this ideal would be progressively deconstructed over time, it spawned a durable holism that recognized the deep interconnection of all material and symbolic contexts.

This holistic aspiration has been recurrently challenged as anthropologists came to recognize the often global interconnections and engagements which permeated the presumed isolation of even “remote” cultural spaces. Anthropology turned to increasingly complex social theories to try and reconcile the way in which its empirical subject became unmoored from static spaces and times, and eventually encompassed the most intensely internationalized settings. As a result great concern emerged for the practice of interpretation far removed from the methodological confidence of anthropology’s pioneering works. And the treacherous pitfalls of writing across stark asymmetries in power, often about people unable to equally represent themselves, even inspired claims that modern anthropology had paralyzed itself through a fetishization of the personal act of writing itself.

It is much more difficult to delineate the general trend of history as discipline, even at this high level of generality. Certainly, interpretation is at the core of archival research, and debates over sources and their meanings have roiled history as an academic practice. No self-critical historian treats their textual sources as a direct portal into the soul of their subject, and the focus of much graduate historical training is the general education required to provide context for documentary interpretation.

But I would advance that the anthropological engagement with history reflects a much greater uncertainty about interpretation, as well as a general theoretical concern with how time itself is structured as a social practice. In my own turn from ethnography to history, I felt this disciplinary anxiety acutely as I tried to reconstruct the creation of a cultural ideology, what I call American legal internationalism, that was formed in spaces both fully transnational and only lightly touched by global forces. Moreover, this ideology was premised on cross-cultural interpretations of the character of foreign peoples and their legal institutions. A further complication was that the driving force of this ideology was literal lawyer-missionaries who carried with them a presumption that their own good intentions would positively impact another society.

One highly influential book in my process of wrestling with these issues was Fredrik Barth’s Ethnic Groups and Boundaries, which theorized about how social identities were formed and reformed through increasingly intense interactions with social “outsiders.” Moreover, in the context of law such cross-cultural judgments had been central to patterns of degradation and subjection in pre-modern empires and modern imperialism alike. This trepidation led me to the writings of the recently passed Tzvetan Todorov, who in his The Morals of History grappled with the ethics of practicing history, especially when intimately tied to cross-cultural engagements.

No episode in the development of historical anthropology outlines these tensions better than the controversy over the arrival and death of James Cook in Hawai’i. In barest form, Cook arrived in Hawai’i for the third time in 1779 during the indigenous Hawaiians celebration of the god Lono. A month later, Cook was killed while attempting to take the local king ransom, and then ritually preserved. The details in-between and their meaning became the grist for one of the public controversies in modern anthropology between Marshall Sahlins and Gananath Obeyesekere.

What Are You?: Producing A First Book Amid Disciplinary and Geographic Migrations

Before I start laying out my blogging agenda for the next month, I wanted to extend my thanks to the LHB team for the invitation. As I will discuss later, my finding a home in the legal history world was an unplanned but fortuitous turn in my career. Over the years, this blog has helped to showcase for my own consumption not only the quality but also the diversity of scholars working under the legal history rubric.

Today, I want to provide a short road map of my upcoming blogs. Each of these will draw on one way in which producing my first book, The Futility of Law and Development: China and the Dangers of Exporting American Law, intersected with my background as a comparativist and as an anthropologist.

In the course of producing a first book that was only inspired by my doctoral dissertation, I routinely had difficulty describing exactly what my book “is” in a disciplinary sense. I have at times said it is comparative, international or transnational legal history; and all these labels are to some degree true. It is a book that primarily involves events in a foreign setting, China, but is most directly, from my view, a work of American legal history. Furthermore, answering the question at the heart of the book led me to engage with legal history, but also religious and diplomatic history. And throughout these encounters my training as an anthropologist influenced how I read, interpreted, and synthesized the sources I drew on from disparate archives and literatures. All of which was deeply impacted by my own autobiographical migrations, both in a disciplinary and a geographic sense.

So over the coming weeks I will present six posts on these themes:

1)    The Affinities and Disjunctures of History and Anthropology

2)     Subjectivity, Intent and Impact: The Gordian Knot of Empathy and Interpretation

3)     Functionalism and Synthetic History

4)     The Challenges of Comparative Law and Transnational History

5)     Empire and Imperialism: (Mis)Framing Cross-Cultural Engagements

6)     The Young Interdisciplinary Scholar in a Global Academic Market

In these posts I will advance a variety of claims related to how I came to think about my own method and perspective as a scholar. But I should say that comments and criticisms are more than welcome. I believe myself lucky to have been brought into legal history during a time when so much productive novelty and ingenuity is opening and re-opening exciting avenues of research. But coming to grips with how to do well what is novel is recurrent scholarly challenge, and I am still far from having worked it all out myself!

Bruinsma and others on Transnational Crime

Histories of Transnational Crime (Springer, 2015) edited by Gerben Bruinsma, Netherlands Institute for the Study of Crime and Law Enforcement, came out last year. From the publisher: 

Histories of Transnational Crime provides a broad, historical framework for understanding the developments in research of transnational crime over the centuries. This volume provides examples of transnational crime, and places them in a broad historical context, which has so far been missing from this field of study. The contributions to this comprehensive volume explore the causes and historical precursors of six main types of transnational crime: -piracy -human smuggling -arms trafficking -drug trafficking -art and antique trafficking -corporate crime. The historical contributions demonstrate that transnational crime is not a novel phenomenon of recent globalization and that, beyond organized crime groups, powerful individuals, governments and business corporations have been heavily involved. Through a systematic historical and contextual analysis of these types of transnational crime, the contributions to this volume provide a fundamental understanding of why and how various forms of transnational crime are still present in the contemporary world. In the past two decades, the study of transnational crime has developed from a subset of the study of organized crime to its own recognized field of study, covering distinct societal threats and requiring a particular approach.

TOC after the jump.

Koga on Law & Empire in East Asia

Yukiko Koga (Assistant Professor, Hunter College) has published an article that reflects a legal anthropologist's approach to legal history. Here is the abstract for "Between the Law: The Unmaking of Empire and Law's Imperial Amnesia" in Law & Social Inquiry 41:2 (2016), 402-34:

Asian victims of Japanese imperialism have filed lawsuits against the Japanese government and corporations since the 1990s, which became prime sites for redress decades after Japan's defeat in World War II. As this ethnography demonstrates, this process paradoxically exposes a legal lacuna within this emergent transnational legal space, with plaintiffs effectively caught between the law, instead of standing before the law. Exploring this absence of law, I map out a post-imperial legal space, created through the erasure of imperial and colonial subjects in the legal framework after empire. Between the law is an optic that makes visible uneven legal terrains that embody temporal and spatial disjuncture, rupture, and asymmetry. The role of law in post-imperial transitions remains underexplored in literatures on transnational law, legal imperialism, postcolonialism, and transitional justice. I demonstrate how, at the intersection of law and economy, post-imperial reckoning is emerging as a new legal frontier, putting at stake law's imperial amnesia.