In recent decades, the rule of law has not been commonly associated with Afghanistan. Instead, its politics have been more likely to be framed in terms of lawlessness and ungovernability. But this trope does not do justice to Afghanistan's longer history of statehood or experiences of constitution-making. Over the course of the twentieth century, Afghan leaders drafted seven constitutions (in 1923, 1931, 1964, 1976, 1980, 1987, and 1990). These constitutions represented leaders’ attempts to assert their legitimacy and enforce their vision of an Afghan nation-state. This article sheds fresh light on Afghan elites’ top-down framing of Afghan national identity through ethnolinguism, exploring the legalization of Pashto as both an official and national language in Afghanistan's constitutions. Reformers intended Pashto to transgress community, kinship, and regional boundaries and act as a source of unity (though one in which ethnolinguistic minorities had little say). Tracing Afghanistan's constitutional history from 1923–90, this article reveals language as a constitutional arena for debating Afghan modernity and identity. As such, this article integrates Afghanistan into legal histories of South Asia while emphasizing how Afghan constitutionalists engaged in the process of law-making as a means of expressing Afghanistan's own independence and ideas of modernity.

This article explores how colonial law in India interacted with the construction of caste rank (varna) between 1860 and 1930. It specifically tracks contestations over Kayasthas’ legal varna rank in northern and eastern India through various inheritance disputes, threading them together to shed light on how courts sought to anchor their interpretations of Hindu law around the Indian jurisprudential conceptions of varna. It examines the successes and failures of Kayasthas to have favorable legal rulings that would uphold their status as “twice-born”/dvija, demonstrating that colonial law was limited in its ability (and often indifferent) to construct caste ranks. Inconsistent ruling in provincial courts pushed Kayasthas to seek taxonomic recognition as “twice-born” in the colonial census, demonstrating how colonial law and taxonomy intersected in novel ways. This article argues that by taking a novel approach to Indian social history through the prism of law, we can enrich our understanding of how modern notions of caste and social rank were constructed in colonial India.

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding era texts that draws on the best inter-disciplinary methods available. Reading legal texts historically will require originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues is a separate task from the process of uncovering the legal meaning of Founding era constitutional texts. Deciding what, if any relevance, such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.

In 1939, at the end of almost two decades of statewide want and despair, Oklahoma adopted the community property system “to save state residents on their federal income tax.” Between 1939 and 1947, Oklahoma and four other states openly and unabashedly exploited the Supreme Court's creation of what amounted to a tax loophole for the nation's wealthy; several more states seriously considered doing the same. In 1930, the Court had ruled that the community marital property regime of eight western states permitted their married couples to split family income between spouses, so that each spouse reported half of that income for federal income tax purposes. As a result of the federal government's progressive income tax bracket structure, in most cases this split meant that more of the family's income would be taxed in lower tax brackets. Thus, a property regime that was purely a creation of state law had the effect of reducing residents' federal tax obligations.

A commentator noted in 1881 that Irishmen regarded jury service as “the greatest burden that can be inflicted upon them … they would be delighted if trial by jury was suspended tomorrow.” He later added, “[o]f course an enormous outcry would be raised about it in the national press, and in public meetings; but jurors … would give anything in the world not to serve … because it is the terror of their lives.” Much has been written about the poor state of the nineteenth-century Irish jury system, and it is certainly true that for various social, economic and political reasons, in comparison with that in England, the Irish system appears to have operated in a way that fell somewhat short of ideal. This article seeks to provide an understanding of the realities facing the jurors themselves, and will examine their experiences of the justice system before, during, and after the trial.

For almost a month in 1877, the Russian public was engrossed in one of the largest nonpolitical trials in the history of Russian law. An alleged criminal organization dubbed the “Jacks of Hearts Club” (Klub chervonnykh valetov) involved 48 defendants in addition to several who had died or managed to escape, as well as more than 300 witnesses. The charges included dozens of episodes of fraud and forgery committed between 1866 and 1875, in addition to one murder and one count of sacrilege. Even more sensational was the fact that the group of defendants belonged to “respectable” society, among them wealthy merchants, landowning nobles, and even a member of the aristocratic Dolgorukov family. In the Russian popular lexicon, a “Jack of Hearts” became enduring shorthand for a personable young swindler of upper-class origins. Over the years, the story grew in the telling, with some of the legends travelling from author to author, such as the story of Pavel Speier, the alleged leader of the club who supposedly tricked a naïve English tourist into “buying” the official residence of the Moscow governor general on Tverskaia Street.

A conscientious reading of the rich historical literature on the American Legal Realist movement would provide no suggestion that any of the academic writers and other commentators in that movement ever gave the slightest attention to international law.1 It is entirely understandable that the Realists should be remembered as having been concerned exclusively with the analysis and reform of domestic jurisprudence and legal process; for there was only one exception, in this regard, and this was the Stanford law professor Joseph Walter Bingham. Bingham (1878-1973) is a figure who has been almost entirely neglected by historians of legal thought.2 And yet he was one of the earliest American legal commentators to promote an iconoclastic, reformist approach to the common law and American constitutional law. His writings in the 1910s and 1920s, as will be discussed further here, were important early-day contributions to the development of what would become the central canon of Legal Realism. His uniqueness among the Realists rests in the fact that he would go on to play a prominent part in contending for a basic reform in international law during the decades that followed.

I am glad that the Review has provided a Forum for advancing discussion of the “rapidly evolving field of Second Amendment scholarship,” as Richard Uviller and William Merkel so aptly describe it. The field is evolving so rapidly, in fact, that I had no chance to consult their excellent book on the subject when writing this article. Having now had the luxury—and great benefit—of reading it in preparing my reply to their comments, I can only cheer them on for the way that book and their remarks in the Forum advance the common goals we seek: to replace an ahistorical quotation-hunting with a meticulous examination of “the collateral expressions of the founders and their contemporaries to find the most likely purposes and assumptions underlying the text” of the Second Amendment.

Lindsay Farmer's argument that, in seeking to replace the common law with legislation, and in striving for a novel systematization of the relationship between civil and penal law, the criminal law commissioners of 1833-45 transformed the understanding of criminal law in relation to government is a powerful one. It is to some degree an inferential argument, positing that a reading of Bentham's theory of legislation allows us to understand the commissioners' work better, since Bentham “makes explicit many of the broader political assumptions that guided the commissioners and allows us to understand the precise nature of their codification project.” It is worth asking therefore how far the commissioners were informed by Benthamic ideas and what they understood their task to be.

There has been a great deal of confusion in recent years in regard to what we mean by “truth.” Although confusion and debate over determining the truth is hardly novel for either philosophers or common folks, the issue of “truth” and how we might know it (or produce it) has been quite the rage these last twenty years among historians, legal scholars, and postmodern would-be theorists. Plausibility, coherence, elegance, and consistency over time and within a community are just a few among the current yardsticks. These have, in both their rule-bound and unfettered forms, nudged aside inherited liberal (and marxist) conceptions of “correspondence theory,” which held that there is something really true out there—our task being to get as close to it as we can.

In “Mind of a Moral Agent,” Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends?

Shortly after the beginning of his reign in 1201, Duke Henry I the Bearded of Silesia confirmed the past acquisitions of two major Cistercian monasteries in his province—the houses of Lubiąż and Trzebnica—with three long charters in which he described and explained the past transfers of individual holdings to the abbeys, clarified doubts and controversies about them, and added endowment to the estates of each monastery. Both communities were endowed with wealthy areas of settlement and revenue that had prior to the creation of their estates been held under knightly, ducal, and ecclesiastical lordship.

The jurists of the classical period of Roman private law (50 B.C.—250 A.D.) encountered a variety of legal problems arising from the activity of those employed in the city's building industry. This segment of the Roman economy was prosperous and busy. Yet, despite the Romans' zeal for construction, a detailed description of how building projects were organized has proved illusive. This is the result of two factors. First, the Romans, unlike the Greeks, tended not to preserve on stone details about the actual construction of their edifices. A second, more general cause is found in the nature of construction as an enterprise. Although building furnishes a basic need, the demand for it is episodic and unstable. Forces of labor and supplies of materials are procured in response to specific commissions. In addition, there are many possible ways in which these productive forces can be organized, and building is typically characterized by a high degree of diversity in regard to methods of organization. For these reasons, builders and building have not been particularly accessible topics for researchers. It is only in the juristic sources that we get a relatively full picture of the activities of builders at Rome.

In belle époque France, criminal juries were criticized as too tolerant of crime and too lenient to effectively punish criminals. While the French institution of the jury was under attack by magistrates and other elites, mixed sex juries provided an alternative model. Jury reformers advocated the introduction of mixed-sex criminal juries in France in order to render better verdicts and reduce crime, especially in the areas of infanticide and abortion. The French National Assembly debates over proposed legislation, however, stalled over political concerns with women's truncated citizenship rights. Historical analysis of the types of arguments deployed in this jury reform debate (including archival documents, parliamentary records, and press sources) reveals that reform proponents argued that gender difference-especially in terms of morality and psychology-justified women's admission to juries, particularly in cases of infanticide and abortion. The operation of an unofficial “women's jury” (jury féminin) between 1905 and 1910 in Paris demonstrated women's judicial decision-making capacity. Analysis of this citizens' jury documents the development of a feminist critique of the legal treatment of domestic violence, reproductive freedom, and marriage law publicized in the early twentieth century. This research contribution posits grounds for the re-periodization of feminist legal history as viewed through this case study of women's claims to jury service in Third Republic France.

The basic colonial encounter involved a colonizing power and colonized locals. Some colonial situations were more complex, involving a third element: settlers of nonlocal stock originating in an ethnos, or nation, different than that with which the colonizer was identified. Two prominent examples from the annals of the British Empire are the French inhabitants of Nouvelle France after France ceded it to the British in 1763, and the Dutch inhabitants of the Cape Colony after the British conquest of 1806. The British typically permitted such settler populations to retain at least parts of the laws to which they were accustomed, which laws were often based on the laws of the settlers' jurisdiction of origin. As regards settler use of English law, the English sometimes provided for the application of parts of it to non-British settlers, while blocking such settlers' attempts to use other parts. The part of English law most commonly applied to non-British colonial subjects, both settlers and natives, was commercial law, in order to facilitate commerce between different parts of the Empire. The parts least commonly applied to such inhabitants were family law, land law, and the law of inheritance.

In 1788, a Dutch-born minister in upstate New York named Lambertus De Ronde translated the U.S. Constitution into Dutch. Five years later, a legal scholar in the Netherlands, Gerhard Dumbar, produced another Dutch translation of the U.S. Constitution. De Ronde's translation was printed on at least two separate occasions in 1788, and scores of editorial changes between the two printings demonstrate that De Ronde was working to make the text appealing and understandable to his audience. Dumbar, however, disparaged De Ronde's translation for its amateurish character. Dumbar claimed, furthermore, that a legal education, and not experience in an American context, was essential for understanding the Constitution. In an analysis of the context and language of these two early Dutch translations of the Constitution, this article contributes new perspectives on the transnational character and influence of the U.S. Constitution. This article argues that for the Dutch in New York, debates about ratification and interpretation of the U.S. Constitution, were as much concerned with local character and transnational currents as with national politics.