In 1893, legislation in the Cape Colony raised the age of consent to sexual intercourse from twelve to fourteen. Only twelve years later, however, did colonial administrators extend the law to the predominantly African districts in the eastern region of the colony. A reconstruction of the political debates surrounding the law, and its eventual extension, illuminates the relationship between understandings of childhood and race in the Cape. By the late 19th century, the comparison of Africans to children had become the governing metaphor for the “native question”; but this metaphor contained fundamental ambiguities. Debates over the age of consent forced Cape politicians to confront the racial and chronological boundaries of childhood innocence, and thus to articulate more precise theories of racial difference itself. Rural elites upheld a vision of hierarchy calibrated by wealth and social knowledge as well as race. Reformers sought to protect the innocence of white girls, in part to defend against racial degeneration, but disagreed over the inclusion of black girls. Meanwhile, even liberal social purity advocates hesitated to extend the law to the eastern districts, where “native law and custom” seemed not only to offer more protection but also to undermine claims of European superiority.

The essence of the contract of employment is the performance of service in exchange for wages. As such, labor assumes a commodity form—a capacity that is bought and sold in labor markets. But because labor cannot be separated from its bearer, and is not produced for the market, it has been widely recognized as a special or fictive commodity that has been the subject of a distinct legal regime. Historically, that distinct regime—here referred to as employment law—has served both disciplinary and protective functions. On the one hand, it assists employers to extract from the worker the value of the labor they have purchased, while on the other it protects workers against unacceptable exploitation. While these functions are a constant, the scope and techniques of legal discipline and protection vary over time and place, as does the balance between them, depending on such factors as the development of social relations of production, the balance of power between workers and employers, dominant ideologies, etc. In the fulfillment of these functions, law has encountered a series of recurring dilemmas that stem structurally from labor's special commodity status and socially and politically from conflicts between workers' and employers' interests.

Like revolutionaries throughout the modern world, Americans built a new, stable legal order on property confiscated from their enemies. Early in the American War for Independence, colonial governments collapsed, British courts closed, and ordinary people took the law into their own hands. They created committees that enforced harsh, revolutionary justice. But remarkably, by the end of the War, they were able to develop the stable legal institutions of new governments.

The scholarly debate over the meaning of the Second Amendment and the scope of gun regulation has been marred by ideological distortions. Michael Bellesiles, an ardent supporter of collective rights theory, argued that state control over weapons was virtually unlimited. Now Robert Churchill, a champion of individual rights theory, stakes out an equally bold position. In his view, a distinct and separate right to keep arms evolved under American law. According to this new variant of individual rights theory, the state might regulate bearing arms, but it was prohibited from regulating the right to keep arms.

The paper addresses the perpetual discontent evoked by the concept of legal pluralism, one which, in turn, brings about incessant efforts to “rethink” it. We suggest that one of the sources of this discontent is the erroneous view that legal pluralism is a theory, and the consequent misguided expectations that it should provide scholars of law and society with causal hypotheses and explanations. We argue that legal pluralism is not a theory but a research perspective, and, as such, is not meant to provide us with explanatory propositions, but rather to increase our awareness of the plurality and inter-relationality of socio-legal spheres and of the implications thereof. We further identify—and briefly discuss—the four core principles of a pluri-legal perspective: plurality, relationality, power, and agency. Taken together, these four premises constitute a manifesto of sorts for a pluri-legal perspective.

In eighteenth-century, colonial Sri Lanka, the Dutch church kept extensive registers of the local population. These “school thombos” contain individual registration of baptism, marriage, school attendance and death. This article argues that the school thombos reveal moral control over family life by the Dutch East India Company and the Dutch Reformed Church, while offering locals a legal and religious identity to employ in negotiating the Dutch colonial bureaucracy. These rarely studied registers shed new light on Sri Lankan family history and the practices of Dutch colonialism. What do they tell us about conjunctures of locals with colonial religion in eighteenth-century Sri Lanka? The school thombo was an instrument used to register and regulate family life, with specific functions and uses by different actors. This article explores the format, objectives and use of the school thombo. Why was the school thombo created and who were registered in these sources? What were the micro practices of drawing up the school thombo? The article is supported by several case studies that illustrate how the school thombo found its way into family life while demonstrating the value of written identities.

Cardin Le Bret, councillor of state during the ministry of Richelieu, is sufficiently distinguished to have merited two monographs in modern historiography. The basis of his renown is not his official deeds, however, but his political writings. Moreover, within the large corpus of those writings (630 folio pages, published three times), one treatise alone raises him from obscurity: De la Souveraineté du Roy, first published in 1632. And finally (to allot Le Bret the least that is due him), the fame of that treatise owes less to the perspicuity of its author than to the timeliness of its subject. It is one of the first comprehensive treatments of sovereignty to appear after Jean Bodin ‘invented’ that concept in his Six livres de la République (1576). Le Bret's treatise could thus provide important evidence of the status of ‘sovereignty’ in legal and political discourse two generations after Bodin.

It is conventionally believed that neutral legal principles required antislavery judges to uphold proslavery legislation in spite of their moral convictions against slavery. Under this view, an antislavery judge who ruled on proslavery legislation was forced to choose, not between liberty and slavery, but rather between liberty and fidelity to his conception of the judicial role in a system of limited government. Focusing on the proslavery Fugitive Slave Act of 1850, this article challenges the conventional view by arguing that the constitutionality of the fugitive act was ambiguous; meaning that neutral legal principles supported a ruling against the fugitive act as well as a ruling in favor of it, and that prominent antislavery judges were influenced to uphold the act by a belief that doing so was necessary in order to preserve the Union.

As a form of social control, undercover tactics played an important state-building role during the Nineteenth Century, in both the United States and France. Yet undercover policing played this role very differently in France than in the US, which made do with a less developed surveillance capacity at all levels of government. The instability of successive French regimes encouraged French political authorities to expand their use of infiltration and to privilege high policing purposes of undercover tactics over the crime-fighting purposes favored by local elites. And while nineteenth-century France, like the United States, often governed through delegations of authority to local elites, French authorities jealously guarded undercover tactics as their exclusive prerogative. As a result, undercover tactics became a marginal crime-fighting tactic in nineteenth century France, becoming identified primarily with the state's surveillance of its political opponents. In the United States, by contrast, the private sector was able to deploy undercover tactics against suspected criminals, organized labor, political radicals, and purveyors of vice. Though the private sector readily accepted delegations from the public sector, the direction of influence also ran in the opposite direction, from the private sector to the state, as American private sector used undercover tactics to replace, bypass, and harness state institutions in ways that their French counterparts could not. In the United States, the private sector's use of undercover tactics came to shape public policing, as prominent detectives entered government and brought their tactics with them, and as Progressive era reformers took up the undercover tactics pioneered by private detectives, modeled them for the state through public-private partnership, and used them to set the anti-corruption, anti-radical, and anti-vice enforcement agenda of government. If French undercover tactics helped to build the French state from the inside out, by consolidating the state's hold over territory and attempting to control disorder and dissent, American undercover tactics became a vector of private sector influence that helped build the state from the outside in by shaping both investigative means and ends at all levels of government.

This article explores the legal and judicial vulnerability of male youth in Buenos Aires, Argentina between 1853 and 1912, years that correspond to the codification of criminal law and the passage of the first age of consent laws. Using 65 sodomy and rape cases, it traces the courts' changing treatment of males who suffered sexual assault. It argues that a traditional revulsion of sodomy, a cultural preoccupation with female sexuality, official concern with the social order, and the preoccupations of classical and positivist criminologists ensured the liminality of male youth in both the law and the courts. Judicial authorities only started to regard prepubescent boys as innocent in the first decade of the twentieth century. By highlighting how age, innocence and gender were only mutually constituted in the twentieth century, this article makes a significant contribution to literature on the emergence of modern notions of childhood and innocence. Historians have shown how categories such as class, ethnicity, filiation and natal status worked to include or exclude certain groups from this classification in modern Latin America, this work reveals how central both age and gender norms and expectations were to the belated integration of boys.

This article adds to the growing literature about how the Supreme Court's decisions in the Insular Cases affected the residents of the U.S. territories. It focuses on the territory of Guam, which lacked juries in both criminal and civil trials until 1956–nearly sixty years after the island became a U.S. possession. Residents of Puerto Rico, Hawaii, and the Virgin Islands had limited jury trials, but Guam was left out due to its strategic military significance as well as racialized ideas about the capabilities of Chamorros, the native inhabitants of the island. This article recovers the struggle by Guamanians to gain jury trials. It argues that independence movements, like those in the Philippines and Puerto Rico, were not the only forms of resistance to American empire. Through petitions, court challenges, and other forms of activism, Guamanians pushed for jury trials as a way to assert local agency and engage in participatory democracy. For them, the Insular Cases were not just abstract rulings about whether the Constitution followed the flag; they deeply affected the administration of justice on the ground for ordinary Guamanians.

Many legal scholars consider the colonial period irrelevant to the subsequent history of American law. In 1936 Roscoe Pound defined the ‘formative era’ in American law as the post-revolutionary era, and legal historians have been bound by that periodization ever since. More recently, Grant Gilmore, in his book The Ages of American Law, began his first age, the ‘age of discovery’, at approximately 1800; Gilmore claimed that American lawyers had the opportunity at that time to create an American law essentially from scratch. Morton J. Horwitz further strengthened the reigning assumptions regarding the unimportance of the legal history of colonial America in his influential book The Transformation of American Law 1780–1860. In Horwitz's view, what marks the American legal system is the instrumental use of law to promote social change, particularly to further commercial interests, and this aspect of the law did not exist until the early nineteenth century.

In both the United States and Western Europe in the mid-nineteenth century, forensic physicians engaged in bitter jurisdictional disputes with members of well-established legal professions, within the context of long-standing judicial institutions. In Russia, by contrast, the emergent medical and legal professions—both critical of the autocracy and state institutions in which they worked—joined forces in their attempts to fundamentally transform the autocratic system and its judicial institutions, based on claims of technical and professional expertise. As such, the development of forensic-medical expertise took a path that differed from the Western model. In Russia, forensic physicians reacted to and influenced the evolution of bureaucratic state structures. Consequently, medical professionals sought to increase—rather than minimize—their role within the state's legal system in order to transform an otherwise arbitrary judicial process along the lines of “scientific rationality” and “objectivity.”

Eugenius Aristides Nisbet played a critical role in Georgia's secession from the United States. Elected as a delegate to Georgia's 1861 secession convention, Nisbet introduced a resolution in favor of severing ties with the Union, and he led the committee that drafted his state's secession ordinance. Nisbet was a trained lawyer who had served on the Georgia Supreme Court, and his legal training shaped the way that he viewed secession. He believed that the Constitution did not give states the right to dissolve the Union; instead, this power rested solely in the people, and he framed the resolution and ordinance accordingly. Thanks in part to Nisbet, it was the “people of the State of Georgia” who “repealed, rescinded and abrogated” their ratification of the Constitution in 1788.

In his 1950 movie Rashomon, the famed Japanese director Akira Kurosowa presented a tale of a deadly crime that took place in a grove, which was witnessed by four individuals. Each of these individuals then proceeded to report what they saw in mutually contradictory ways. The movie has since received the ultimate honor of having a phrase coined in popular culture to describe its central message. The “Rashomon effect” is used to describe those occasions when a single event is perceived in contradictory, although perhaps equally plausible, ways by the different witnesses on hand, telling us at least as much about the internal dynamics within the witnesses to the event as about the event itself.

Michael Lobban shows how dissatisfaction with the law-equity split in English civil justice predated the Judicature Act reforms by two generations at least (one could argue two-and-a half centuries or more—periodization fails quickly). Lobban links the first modern debates over fusion to high legal politics on the one hand and to the more intricate internal problems of evidence, procedure, and jurisdiction on the other. Lawyers of the earlier Victorian age found the Chancery system bequeathed to them by Lord Eldon to be intolerable on two counts: it represented Old Corruption or monopolistic private control of public offices and it exacted heavy costs in procedural inconvenience, cost, and delay. Lobban does not see ideology such as Benthamite philosophy driving the rationalization of Chancery doctrine and institutions though he does not dismiss this factor entirely.

In 1890, Sultan Ali of Zanzibar declared in writing that “we wish by every means to stop the slave trade.” Statements like these, in addition to the actual passing of anti-slavery legislation, call into question the generally accepted scholarly understanding that the sultans of Zanzibar only agreed to pass and enforce anti-slavery legislation because they were under duress from European, mainly British, powers, who negotiated favorable political and economic benefits in return for (gradual) abolition. A close analysis of the sources tells a more complicated story of both collaboration and conflict between the Zanzibari sultans, their subjects, and the British agents. Moreover, each sultan had distinctive political and religious beliefs, as well as individual personal experiences and outlooks. This paper explores the anti-slavery legislation passed under three sultans of Zanzibar: Barghash bin Said (1870–1888) who prohibited the transport of slaves by sea in 1873, Ali bin Said (1890–1893) who passed the Slave Trade Prohibition Decree of 1890, and Hamoud bin Mohammed (1896–1902) who passed the Abolition Decree of 1897. By analyzing draft treaties and correspondence before and after the passing of legislation, this paper argues that the sultans and their advisors were not devoid of ideological interest in ending slavery; and that British agents and explorers in the region were too hastily hailed as abolitionists.

This article analyses the place of the legal procedure known as requerimiento (requirement) in the social life of late medieval Castile. Drawing on archival sources from the fourteenth and fifteenth centuries, it examines how Castilians deployed the requerimiento and what meanings and functions this procedure assumed, particularly in processes of conflict-management. While much has been written about the requerimiento as a ritual of conquest in Spanish America, the place of this procedure in the legal culture of late medieval Castile has received little scholarly attention. By examining how the requerimiento operated within the world of civic disputes in Castilian villages and towns, this study brings to light a rather unknown background for the more familiar requerimiento, the colonial ritual of the sixteenth century.

Susan Reynolds's article is a culmination and a turning point. It builds on several approaches to medieval law and culture, of which two strike me as especially important. One is a study of legal history as a domain of human activity, especially habitual or routine activity, pursued by a wide range of social groups. The other is a search for the meaning and the criteria of the enormous transition during the central Middle Ages, which Christopher Dawson at the dawn of this subject, and Robert Bartlett in its currently definitive moment, have identified as “the making of Europe.” The first subject exists above all thanks to the work of Reynolds herself, while the second is an outcome of a number of quite distinct scholarly trajectories, spanning several generations. Apart from some suggestive and implicit links, those two subjects have, over the past quarter century, been pursued separately. Reynolds's article brings them together.