This is an introduction to a scholarly forum that is an outcome of the workshop entitled Cultural Expertise in Ancient and Modern History held in Oxford in July 2018 and aims to make explicit the interdisciplinary components of cultural expertise from a historiographical perspective in order to open up the discussion to the history of law.

In her work on the bourgeois male of the nineteenth century, Carol E. Harrison argues that “Although French law made no distinction between male and female associations, administrative practice ignored women in groups.” Most historians accept this point of view—that French administrators generally ignored the associational activities of women, and, indeed, most female groups appear to have garnered little notice from authorities. While Annie Grange suggests that this may be because so few female as-sociations existed throughout much of the nineteenth century, Catherine Duprat has uncovered numerous female societies, especially sociétés de bienfaisance, many of which received more generous treatment from municipal and national officials than their male counterparts. However, she suggests that their official “silence”–the absence of general assemblies and frequent publications, as well as their careful cultivation of the traditional, non-threatening image of dames de charité—kept these associations largely out of public view. Furthermore, for the most part, those female associations that did exist lacked visible political and financial clout.

When Thomas Jefferson assessed the pros and cons of legalizing divorce before the American Revolution, he came out firmly on the side of divorce. “No partnership,” he declared, in a rationale that prefigured the Declaration of Independence, “can oblige continuance in contradiction to its end and design.” Among the few misgivings he had, however, was the problem of dividing marital assets, and while he was convinced a man could get a wife at any age, he was concerned that a woman beyond a certain age would be unable to find a new partner. Yet he envisioned divorce as a remedy for women. A husband, he noted, had “many ways of rendering his domestic affairs agreeable, by Command or desertion,” whereas a wife was “confined & subject.” That he assessed divorce as a woman's remedy while representing a client intent on blocking a wife's separate maintenance is not without irony. Still, in a world where the repudiation of a spouse was a husband's prerogative, he believed that the freedom to divorce would restore “to women their natural right of equality.”

As Daniel Hulsebosch and Ruth Paley show in their perceptive and helpful comments, Somerset's Case raises questions about several dimensions of the nature of British imperial slavery. As to those dimensions, we share considerable common ground. I agree with Paley that racism was an important element in the treatment of black slaves in England and in its colonies. Hulsebosch is correct that in the late eighteenth century protecting liberty in England by keeping England free from slavery could co-exist with the willingness or desire to maintain colonial slavery. However, as discussed below, the significance of the Somerset decision goes beyond racism and metropolitan protection.

Nowhere in legal history has the nexus between past and present received more attention in recent years than in the study of slavery. The memory of slavery has become a field of study in itself, and competing histories of slavery have animated contemporary legal and political debates. Today, new histories of capitalism have further illuminated the central role of slavery and the slave trade in building the modern Atlantic world. Across Europe, the United Kingdom, Africa, the Caribbean, and the United States, new memorials, museums, and commemorations of slavery and abolition have brought new kinds of public engagement to the slave past. In the era of Black Lives Matter, understanding the connections between that past and the present day has never seemed more important, and historians are struggling with the question of how to engage the present in a historically nuanced way. One kind of engagement between past and present, among historians, lawyers, and activists, has been to draw connections between slavery in the past and in the present.

In the late eighteenth century, American law treated oath-taking as an invocation of divine vengeance for sworn falsehoods. Prospective witnesses who did not believe in God or hell were not allowed to testify. But this strict evidentiary rule survived only a few more decades. Gradually at first, and then with growing speed, the theological underpinnings of oath-taking eroded across the United States in the early nineteenth century. The story of this transition, only vaguely appreciated in the current literature, illuminates and weaves together several important strands of nineteenth-century social and legal history. The common-law rule, it turns out, came into escalating conflict with American religion, particularly after a liberal offshoot of Calvinism began rejecting the existence of hell. By prevailing founding-era standards, being unable to testify did not impede or punish the exercise of religion, allowing the rule to survive an initial volley of legal challenges. But as reform efforts mounted, a neutrality-based view of religious liberty and an egalitarian conception of civil privileges began to supplant the earlier constitutional settlement. By the mid-nineteenth century, evidence rules throughout the United States no longer required belief in hell, and almost half of the states allowed atheists to testify. This transition also prompted the first widespread rethinking of American evidence law, shifting its foundational principle from reliance on the inviolability of oaths to confidence in the jury's fact-finding capacity, and laying the groundwork for further liberalization in the 1850s and 1860s that allowed testimony from black witnesses and from interested parties. Moreover, the controversy about religion-based exclusions led to a new understanding that barring testimony from particular minority groups effectively denied those groups the protection of the law.

Academics have traditionally associated capital punishment most closely with authoritarian regimes. They have assumed an incompatibility between the death penalty and the presumably humane values of modern liberal democracy. However, recent scholarship on the United States by David Garland has suggested that a considerable degree of direct democratic control over a justice system actually tends to favor the retention and application of the death penalty. The reason why the United States has retained capital punishment after it has been abolished in other Western nations is not because public opinion is more supportive of the death penalty in America than in Europe or in Canada. Rather, it is because popular control over the justice system is greater in the United States than in other countries and this strengthens the influence of America's retentionist majority. However, the experience of the United States in this regard has not been unique. The same link between democratic control and retention of the death penalty can be seen in the history of the effort to abolish capital punishment in France. In 1908, a bill in the Chamber of Deputies (the lower house of the French Parliament) to abolish capital punishment was defeated, in large part because of strong opposition from the public. In 1981, majority public opinion in France still favored retention of the death penalty, but in that year, the nation's Parliament defied popular sentiment and outlawed the ultimate punishment. Historians have so far provided little insight into why abolition succeeded in 1981 when it failed in 1908. The explanation for the different outcome appears to have been the greater degree of influence public opinion exerted over the nation's justice system at the turn of the twentieth century than at its end.

This symposium issue is first and foremost about crossing boundaries. The people readers have met in these pages—enslavers and enslaved, traders and purchasers, abolitionists and insurrectionaries—were mobile, and their mobility had consequences. The slave traders who changed flags as they moved across international waters are only the most visible exemplars of this phenomenon. Crossing geographic borders often meant crossing boundaries of race and status as well. All of these articles in one form or another address the question of what it means to cross lines: between “slave” and “free,” “legal” and “illegal,” “past” and “present.”

On January 24, 1913, the trustees of the Dalcho School, a segregated, all-white public school in Dillon County, South Carolina, summarily dismissed Dudley, Eugene, and Herbert Kirby, ages ten, twelve, and fourteen, respectively. According to testimony offered in a subsequent hearing, the boys had “always properly behaved,” were “good pupils,” and “never …exercise[d] any bad influence in school.” Moreover, the boys’ overwhelmingly white ancestry, in the words of the South Carolina Supreme Court, technically “entitled [them] to be classified as white,” according to state law. Nevertheless, because local whites believed that the Kirbys were “not of pure Caucasian blood,” and that therefore their removal was in the segregated school's best interest, the court, in Tucker v. Blease (1914), upheld their expulsion.

The theory of just war in medieval canon law and theology has attracted to it a large body of scholarship, and is recognized as an important foundation for Western approaches to the study of ethics in war. By contrast, the tradition on war in medieval Roman law has not received much attention, although it developed doctrines that are distinct from those in canon law and theology. The oversight is notable because medieval Roman law on war influenced subsequent tradition, forming with canon law the essential basis for early modern legal thought on war and peace. While the main canonistic contributions to legal theory on war came in the twelfth and thirteenth centuries, Roman jurists added new opinion in the fourteenth and fifteenth centuries, which can be related to the political life of Italy and to the growth of the independent cities. By the fourteenth century, Roman lawyers (or civilians) often considered licit war from a secular and pragmatic perspective, and associated a right of war with sovereignty. Here, I would like to trace the development of this theory, from roughly 1250 to 1450, and particularly a view that sovereigns licitly judged the justice of their own causes, as a remedy for a lack of superior authority.

This article traces how Ottoman interpretations and uses of Islamic law adapted to deal with non-Muslim rebellions between roughly 1769 and 1830. Drawing on Ottoman fatwas (legal opinions), bureaucratic registers, sultanic decrees, and chronicles, as well as British diplomatic records, it argues that the Ottoman state actively reinterpreted its commitment to the Islamic legal tradition in order to forge the law of rebellion into a weapon against both foreign and domestic enemies. The Ottomans first used declarations of rebellion to mobilize military forces against its imperial rivals, then to discourage and suppress domestic dissent, and finally to deny rebels’ sovereignty under international law. In doing so, the Sublime Porte effectively redefined sovereignty by interleaving Islamic and international concepts. The article places this development in global context, arguing that it resembled legal moves made by Atlantic states as they dealt with the Age of Revolutions. At the same time, this story shows how the Ottoman state’s commitment to Islamic law, and its employment of officially authorized scholars to interpret that law, could both license and constrain state policy. The Islamic legal tradition was flexible, but also meaningful. Interpretation occurred at different levels, and was done by different actors. While the state had significant latitude, it faced limits arising from the substance of the law and the process of interpretation itself.

Statelessness continues to trouble today's international legal and political spheres. Despite the International Convention Relating to the Status of Stateless Persons, the stateless remain an unwelcome presence and awkward anomaly within an international human rights regime still fundamentally dominated by the nation state structure. In 1945, Marc Vishniak wrote that the stateless were “… restricted in their rights more than any other people and constitute the weakest chain in the link of human rights.” Hannah Arendt, who was herself a Jewish refugee from Germany, placed the enigma of the stateless in an even more central philosophical position. Whereas Visniak emphasized the problematic and marginalized legal status of the stateless within the dominant international paradigm, Arendt proposed a re-imagining of the international legal order, a vision that would prioritize a solution to the situation of the stateless, especially stateless Jews, by “somehow or other restoring to them the inalienable rights of man.” For Arendt, Jewish former citizens of Germany, stripped of their nationality by the Nazi regime, occupied a newly paradoxical situation as empowered and voluntary Heimatlos, precisely because they now rejected the standard legal normativity of the state/citizen template. Arendt found historical support for her argument about statelessness as both abnormal within dominant international legal thinking, and at the same time strangely empowering, with regard to the situation of the mainly Jewish refugees displaced during World War I. They had fallen outside the protections offered by new succession countries at the end of that conflict, very often by their own decision to refuse incorporation as citizens of the emergent nation states. These Jewish apatrides discovered “privileges and juridical advantages in statelessness.” For Arendt, Jewish former citizens of Germany at the end of World War II further embodied a move toward conceptualizing a new international paradigm wherein rights could be sought beyond the traditional bounds of a state-based legal order, precisely because those bounds had been irrevocably shattered by the state itself.

In 1885, in the midst of the North-West Resistance in which Indigenous people took up arms against the colonial Canadian state, three Cree men executed an elderly Cree woman. At their trial for murder, the defendants were found guilty. They avoided execution because colonial authorities became convinced that they believed that their victim was a wendigo, a cannibal spirit. Killing a wendigo was justified under Cree law and so, argued one judge, the defendants lacked the mens rea necessary to sustain a murder conviction. The history of this case shows the limits of colonial legal jurisdiction and sovereignty. Scarce resources, hostile territory and Indigenous resistance hampered the colonial state's efforts to consolidate its legal control over the Canadian frontier. This essay notes the importance of these forces, but also argues that common law jurisprudence itself could impair the ability of the state to hold Indigenous defendants criminally responsible. Colonial officials regularly invoked the idea that Indigenous people adhered to different legal and normative orders in order to illustrate their supposed inferiority. However, this official recognition of the legal pluralism of the North-West could undermine a defendant's responsibility and cut against efforts to assert the exclusive jurisdiction of Canadian criminal law.

Taking a chiefly quantitative approach to Jewish women's litigation at the Exchequer of the Jews between in the period 1219–81, this article represents the first exploration of Jewish women before the law in medieval England. It contends that, far from enjoying a level of ‘legal sexual equality’ not available to Christian women, Anglo-Jewish women at the Exchequer of the Jews in fact shared many of their experiences of (secular) law and justice with their Christian counterparts. This contention is possible in part because of the greater interest, over the last decade, in pre-modern European women's litigation and the realisation that Christian women of all classes were able to navigate their way around judicial systems in ways that confounded any theoretical legal disadvantages they may have faced. The article variously examines the number of Jewish women litigating at the Exchequer of the Jews, their roles in court and representation in the records, and the types of litigation in which they took part. It demonstrates that if we are ever to seek a holistic view of the operation of legal jurisdictions in medieval England, our knowledge must include the experiences of Anglo-Jewish women.

In the early 1970s, the executives of the First National Bank of Boston spent hundreds of thousands of the bank's dollars on ads opposing statewide efforts to raise their personal income taxes. When frustrated Massachusetts legislators banned this sort of corporate spending, the executives sued, arguing that “corporations have the same First Amendment rights as individuals.” In First National Bank of Boston v. Bellotti, the Supreme Court held for the first time that the First Amendment protects all political speech, even ads paid for by a corporation. Surprisingly, the first corporation to take advantage of this decision was not the bank, but the city of Boston--a municipal corporation that spent nearly a million dollars on a new referendum in the fall of 1978.

This article discusses the history of the 1978 referendum, one pitting municipal corporations against business corporations. It argues that the referendum and the discourse surrounding it made it intuitive for Bostonians that all corporations, banks and cities, are representative institutions. Corporations can “speak” only by spending money, and the leaders of Boston and the bank justified spending other people's money by pointing to the internal elections that put them in office. But voters were skeptical of the argument that “corporate democracy” alone could guarantee that elected executives spoke with the consent of the people they purported to represent. The article offers a novel contribution to the historiography of modern business and politics: a legal history of how corporations--municipal and financial--became politicized in the wake of evolving First Amendment free-speech doctrine.

This paper aims to consider four elements of Burmese constitutional history between 1946 and 1948. The first section considers the negotiations between Burma and the United Kingdom and argues that the debate about whether Burma wanted Dominion status has overlooked the crucial transitional government period. The second section gives a brief overview of the drafting process, paying particular attention to the links between the Indian Constituent Assembly in Delhi and Rangoon. The third section outlines the comparative influences on the Burmese Constitution using the digital humanities and illustrates that the biggest foreign influence was the Irish Constitution of 1937. The final section looks at the Burmese political leadership after World War II along two dimensions—at a nationalist level and at an elite level—and traces some of the links between Burma and Ireland.

Despite the recent rebirth of scholarly interest in the law of slavery, Kenneth Stampp's The Peculiar Institution contains the best twentieth century overview of the internal law of slavery in the antebellum South. Nevertheless, Stampp's interpretation leaves unresolved the ‘dilemma’ that he argues also puzzled slave masters, legislators, and magistrates: How the law could recognize slaves both as ‘property’ and as ‘persons.’ To Stampp, the ‘dual character of the slave’ was an irreconcilable contradiction:

…there was no way to resolve the contradiction implicit in the very term ‘human property.’ Both legislators and judges frequently appeared erratic in dealing with bondsmen as both things and persons.

Although Stampp states that, ‘the slave's status as property was incompatible with his status as a person,’ he concludes that ‘throughout the antebellum South…legally, the slave was less a person than a thing.’

King James I stated the official position of the English governing elite on gun ownership succinctly. When it was suggested that more of England's subjects should enjoy the right to hunt and own firearms, James responded that “it is not fit that clowns should have these sports.”

Discussion of early American gun laws begins with consideration of the English legal heritage. In the last few years, adherents of the self-described “standard model” of the meaning of the Second Amendment have constructed a paradigm of an uninterrupted tradition of legally sanctioned individual gun ownership in America. Such a construction starts with the idea that the British brought an acceptance of the universal ownership of firearms with them to the Americas. That cultural norm gave form to the meaning of the Second Amendment, which institutionalized an individual right to bear arms for purposes of personal and communal defense and as a security against a tyrannical government. This history matters greatly to these scholars in establishing an original intent in the Second Amendment to protect an individual's right to own guns.

As Asher Maoz insightfully points out, governmental involvement in the ascertainment of historical truth—whether in court, by commission of inquiry, or in other ways—is directed at securing approval of a particular historical narrative, as a step toward imposing that narrative, to a greater or lesser extent, on those who disagree with it. This “official version” exists not only for the sorts of questions presented by the cases Maoz discusses, but also with respect to auto accidents, crimes of passion, and all the other historical reconstructions that form the substrate of “facts” upon which legal conclusions and enforceable judgments are predicated.