When the British East India Company (EIC) conquered the West Himalaya region in the 1810s, it faced a critical challenge commonly encountered by colonial empires: determining the extent of intervention in intracommunity criminal matters among colonized subjects. This article examines the archived correspondence of colonial officials regarding this challenge and scrutinizes the various arguments made for and against intervention. It shows that the alterity of the subject population was strategically employed by both sides of the debate, who simultaneously promoted contradictory agendas: for those advocating intervention, alterity rendered involvement in criminal matters necessary and just, whereas those averse to intervention employed the very same notion to justify the opposite stance. This dual usage is explained by exposing the contemporary ideas about criminal justice that underlay each of these positions: that criminal law should represent the general will of society, and that it must be executed by a centralized power so as to maintain public order. While these two tenets are commonly perceived as supporting one another, the analysis reveals their decoupling in colonial settings. The debates of EIC officials thus demonstrate how the colonial setting distorts ideas foundational to modern criminal law systems, casting doubt over whether they were ever truly in harmony to begin with.

This article makes the case for recognizing the connection between the Poor Law and the Adoption of Children Act 1926. A child who received welfare under the Poor Law could be de facto adopted by the guardians as early as the late-nineteenth century. Very little is known about this type of de facto adoption which is a significant gap because over 10,000 children were adopted in this way, and it provided the basis for latter de jure adoption. This article initiates the process of filling this gap by exploring archival resources to determine why children were de facto adopted under the Poor Law before the introduction of de jure adoption in 1926. Understanding this form of de facto adoption is important because it was justified as a mechanism of child protection, but this article contends it was another form of punishment designed for families experiencing material deprivation which directly influenced the law on de jure adoption in England. By establishing the connection between the 1926 Act and its Poor Law predecessor, the de jure adoption framework can be contextualized within its wider social history which is embedded in class conflict and distrust toward impoverished families.

From a comparative perspective, this paper argues that early Chinese empires lacked the concept of talion or tort law when malicious violence or intent became factors. Instead, wrongdoers were required to pay fines to the government or received punishment as hard labor for the state. Victims not only could not receive compensation but were sometimes punished along with the offender if their loss was perceived as a loss to the empire. I argue that the absence of corrective justice in criminal cases can be traced back to the philosophical underpinnings of the body politic, a prominent discourse in early China that viewed the emperor and the people as a single, organic entity. When people were conceived of as constituting a unified, singular entity, criminal actions against an individual were interpreted as damage to the empire. Therefore, punishments for offenders were designed to compensate the empire, not the individual. Furthermore, in the context of the body politic, the suffering of both victims and offenders was regarded as metaphysically equal, which justified frequently pardoning culprits on a large scale to secure harmony within the empire. Originally, the body politic was employed to admonish and criticize the throne, urging the emperor to align his interests with the well-being of his people, but in practice, it compromised the practice of justice.

A long tradition of comparative scholarship has succeeded to establish the impact of Roman legal environment on rabbinic law making during the first two centuries CE, particularly in the field of family and status. Yet, the specific channels for acquiring this knowledge have hitherto remained a matter of conjecture. This paper argues that the rabbis were exposed to the contents of the current legal handbooks. Tractate Qiddushin (on betrothal) of the Mishnah includes two peculiar units: the first (1.1–5) regarding forms of acquisition and the second (3.12) on the status of newborns. Both units appear in key points in the tractate and exhibit striking structural and conceptual similarities to extended portions of the Roman school tradition regarding the laws of status, as handed down in Gaius’ Institutes and Pseudo-Ulpian's liber singularis regularum. It is therefore suggested that these units provide the earliest literary attestation already around the turn of the third century CE for the dissemination of Roman legal education among non-Roman provincials in the East, who sought to adjust their local practices into Roman-like legal structures.

Recent authorities emphasize the longstanding inclusion of the Isle of Man in the territorial extent of English/British parliamentary legislation. This aligns with views of the territorial ambition of ministers of the crown and members of parliament in their operation of parliament's role in receipt of petitions and especially in the shaping of legislation. While contemporary authorities on Channel Island law, especially those in the islands themselves, are more cautious about the territorial extent of such legislation, it remains, at least by implication, the norm to assert that all of these territories, now Crown Dependencies, could be included by express provision in English/British statute law, and that there might be strong assumptions of inclusion even when they were not expressly named. The evidence for the period before 1640 does not tend to support these arguments. Instead, the Anglo-centric instincts of the English parliament from the mid-fourteenth century to the 1530s are clear. And even in the 1530s and 1540s, in legislation spurred by jurisdictional and administrative imperatives in ecclesiastical matters, as a result of the Break with Rome, there was only tentative and limited change to the territorial extent of English law.

Using newspaper coverage of women's and girl's property offences in minor English and Irish courts, I analyze courts’ use of Catholic convent institutions between 1930 and 1959. Coverage of minor local hearings offers access to everyday cases, where boundaries between moral and legal transgression were blurred. I explore three interlocking themes in newspaper reports. First, those courts sent to convents were punished, at least in part, for breaching prevailing gendered moral norms. Second, judges represented convents as sites of moral reform; justifying convent detention by reinforcing gendered notions of damaged female agency. Finally, judges sent women and girls to convents even when they publicly resisted. In these ways, courts reinforced reliance on convents for gendered “moral reclamation.” In the conclusion, I explore the argument's implications for state reckoning with historical abuses in institutions like Ireland's Magdalene laundries, showing how abolition feminist legal histories can pose new questions about relationships between law and the experience of mass incarceration.

The legislative coalition responsible for passing the 1964 Civil Rights Act did not set out to use busing as a means to end school segregation. When it came time to implement relevant portions of the law, however, busing became the primary method for reversing “separate but equal” education. In this paper, we provide a legislative policy history detailing the unanticipated, but nearly two-decade long, congressional battle over busing. Through a detailed examination of congressional hearings, floor debate, and roll-call votes, we shed light on the collapse of the pro-civil rights coalition responsible for the landmark achievements of the early 1960s. In its place emerged a new, bipartisan, and interregional bloc of lawmakers—led by southern Democrats and Republicans but joined by a pivotal group of (ostensibly liberal) northern Democrats—who were opposed to efforts by the Supreme Court and administrative state to end school segregation in the North as well as the South.

Until today, not only the general public but also scholars of colonialism and imperialism debate about the extent to which Europeans were aware of the centrality of racial discrimination for colonialism and empires. Those who stress that racism was the foundation of European colonialism appear to be anachronistic. However, as this essay demonstrates, at least the British of the late nineteenth century were well-aware of the constitutive character of racial discrimination for their Empire. During the “constitutional panic” which the proposal of the Ilbert Bill in 1883 caused, the arguments exchanged in newspapers, town hall meetings and parliamentary debates revealed the racist foundation of British India. One contemporary observed “the unhappy tendency of this controversy to bring into broad daylight everything which a wise and prudent administrator should seek to hide.” This essay seeks to bring into broad daylight once again what has been widely forgotten or ignored. Statements in Parliament expressing that it was “perfectly impossible and ridiculous, so long as we retained our hold on India, to give Native races full equality” testify for explicitness of the debate. Analyzing the arguments against the Ilbert Bill, which sought to introduce full racial equality in the judiciary, serves for better understanding the foundation of British India.

This article recovers a lost era of Sino-American constitutional imagination surrounding the drafting of the 1946 Republic of China Constitution. It examines the transnational dynamics that led the Constitution's initial drafter, Zhang Junmai or Carsun Chang, to travel to the U.S. in 1945 to ostensibly study the ideas of Thomas Jefferson then ascendant in New Deal constitutional rhetoric. Recovering this episode recontextualizes Chang's early and late life as one of China's cosmopolitan intellectuals emerging from its contentious post-1911 dynastic politics who shaped China's engagement with evolving institutions of the modern international legal order. This recontextualization broadens and revises extant accounts of Chang's engagement with the 1946 constitutional drafting process by challenging accepted understandings of Chang's personal and intellectual trajectory and illuminating how the geopolitics of the Chinese Civil War intersected with presumptions about the overseas projection of American constitutional values increasingly embedded in twentieth-century American internationalism. Herein, Chang's long-standing interest in Jefferson's constitutional ideals was reshaped by the strategic considerations he faced situated between his consistent criticism of Guomindang leader Chiang-Kai Shek and Chang's suddenly heightened status among American political leaders. His near year-long stay in the U.S. before the 1946 drafting process involved many little known but determinative turns, including the role of a subset of Roosevelt and Truman Administration officials actively enamored with Jefferson's own study of Confucianism. The article also details the telling contours of Chang's post-1949 life as a political exile in the United States. Ultimately, this recovered episode demonstrates the pervasive and impactful nature of transnational dynamics in modern Sino-American relations which blur the line between national and international legal history. Most broadly, the fallout from the 1946 drafting process and the varied Chinese interpretations of thinkers like Jefferson reflect the mid-twentieth century transition of America from a global symbol of constitutional revolution to a global symbol of racialized empire. Recapturing this era thus also has implications for originalist-styled constitutional arguments made in contemporary Taiwan as well as for evaluating the international dimensions of Jefferson's problematic domestic legacy.

In English testamentary history, there is a clear divide between Anglo-Saxon and Anglo-Norman testamentary practice, with the primary difference being that in the latter case, heritable land could not be bequeathed. Once the transfer of land required the livery of seisin, a practice introduced during the reign of Henry II (1154–89), it was not possible for a gift of land to take effect upon the death of the owner, and the royal courts did not consider the intention to dispose of a tenement, as expressed in a will, sufficient in itself to complete the transfer. Nonetheless, an examination of extant wills from the period 1180–1300 demonstrates that some testators (or indeed beneficiaries) may have thought that bequests of land were possible or even enforceable. How do these wills fit into the legal framework of the time? If a bequest could not be enforced in the royal courts, what reasons might someone have for attempting to make one, and how might they try to ensure that the bequest held?

This study is the first to explore the creation of the Tribunaux repressifs indigènes (Native repressive tribunals, TRIs), a novel jurisdiction of exception promulgated at the turn of the twentieth century in colonial Algeria. The TRIs were the product of several intersecting historical processes that took shape over the last quarter of the nineteenth century: first, this period witnessed intense settler security panics marked by genuine anxiety that Algeria might succumb to uncontrollable banditry and mass uprisings. During this same period, colonial “sciences” couched in burgeoning race theory intersected with juridical knowledge-production to form a new legal discourse on assimilation. The TRIs were advanced using this new grammar of race-bound legal relativism, reimagined as consistent with republican universalism. This ascendant juridical epistème dovetailed with debates over the both indeterminate and overdetermined nature of sovereignty in Algeria, whose land was juridically and administratively “Frenchified,” yet whose Muslim (by definition non-citizen) colonial subjects remained excluded from access to civil rights or protections. A doctrine of racialized exception was invented and codified in the unfolding of an impassioned juristic and public debate. The TRIs were legitimized—and endured—thanks to a doctrinal rationale applied retroactively: that for Muslim colonized subjects, exception was the rule.

The article was inspired by Justice Alito's selective and often misleading use of the medieval history of abortion law to justify the overturning of Roe v. Wade. Hoping to offer a corrective view of the larger conversation about abortion during the premodern era, this article hopes to drive home a number of points. First, modern authorities need to acknowledge that the word “abortion” (aborsus) meant something different then than it does now. Second, at its origins, abortion was conceived as a crime against husbands, and thus it falls into a larger body of misogynous law designed to protect men and their heirs from women who exploited their reproductive potential to trick men out of their rightful inheritance. And third, medieval laws against those who provided abortions labeled them as witches or poisoners. Medieval laws about abortion are thus intertwined with fears of the devil and of the woman's body as poison.

The analysis delves into the complex legal intricacies surrounding the establishment of South Slavic state entities post-World War I, as international law of the time didn't fully encompass modern legal instruments defining international relations subjects. Nonetheless, legal arguments affirm the statehood of the State of SCS, formed within the former Austro-Hungarian Empire through legitimate representative bodies, despite lacking formal international recognition. The Croatian state transitioned governance under the National Council of SCS without abolishing its institutions. The analysis of the “December 1st Act” highlights procedural violations during the forming of the Kingdom of SCS, indicating a deviation from authorized scope, though it did not render the new state's government illegitimate. The negotiating process favored Serbian authorities, evident in the “Vidovdan” Constitution, yet it doesn't suffice to claim the State of SCS was annexed by the Kingdom of Serbia. Legally, there's little ambiguity, but disputes in international legal rulings and interpretations uncover internal political tensions and external pragmatic influences.

The 1892 collision between the British merchant ship Ravenna and the Japanese torpedo boat Chishima generated a three-year legal debate over jurisdiction in territorial waters. Challenging the conventional notion that the coastal State enjoyed full sovereignty over its maritime territory, this article argues that contested jurisdiction in territorial waters was ubiquitous at the turn of the twentieth century. In addition to imperialism, which played a pivotal role in transforming the coastal waters of semi-colonial countries into overlapping legal zones, political speculations and the absence of a uniform legal standard also put the coastal State's assertion of maritime sovereignty into question. On the one hand, semi-colonial states, such as the Meiji government, sometimes strategically avoided asserting maritime sovereignty when they deemed it appropriate for national interests. On the other hand, there was also a wide cleavage of opinions among Western powers regarding coastal jurisdiction. Scrutinizing the entangled currents of imperialism, political speculations and maritime laws in the Chishima case, this article contributes to the burgeoning scholarship on the polycentric oceanic world by displaying the rarely discussed contested jurisdiction in territorial waters before World War II.

The twentieth-century processes of legal modernization rendered transformations to the concept of authority and its public perception. This article builds on the complex Weberian articulations of these transformations to analyze a contemporary contentious debate concerning the establishment of a Rabbinical Court of Appeals, in Mandatory Palestine, between 1918 and 1921. This initiative, imposed by the British government and supported by non-religious Jewish leaders, raised a heated controversy between two rabbinical figures—Haim Hirschnson of Hoboken, New Jersey, and Ben-Zion Uziel of Jaffa. Based on a close reading of their texts, juxtaposing them to Weberian conceptualizations of modern authority, and contextualizing them in particular historical circumstances, I argue that both rabbis comprehended the appellate mechanism as transforming the concept of rabbinical authority. By instituting appellate courts, authority shifts from its “charismatic” or “traditional” form to a “legal” institutional-based form. They harshly disagreed, however, if this transformation is a positive development in the modernization of Jewish law, or, on the contrary, will have a detrimental impact on the public's trust in the judiciary. The rabbinical articulations of these Weberian themes, as I suggest to interpret their texts, shed light on the application of the Weberian theory of bureaucracy to the judicial system and legal profession and also provide illuminating insights into the analysis of current church-law relationships, in Israeli law and elsewhere.

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and birthplace were mostly evidence of conformity. In the early nineteenth century, officials in multiple jurisdictions began prioritizing positive law above natural law and transformed parentage and birthplace into competing principles for assigning nationality. This movement crystallized in 1860 when Charles Demolombe introduced jus soli and jus sanguinis to nationality law as competing, ostensibly ancient legal traditions. The framework spread quickly because it was a useful way to assign nationality despite states’ conflicting approaches to political membership. Yet, as its role in United States v. Wong Kim Ark (1898) helps illustrate, the invented tradition has also obscured our understanding of more complex historical dynamics.

Together Cæsar and Cotton left an immense trove of English state papers on all matters of subjects. While Cæsar spent much of his lifetime as an officer of state, e.g., Master of the Rolls, they both devised innumerable works of great value. For instance, both he and Cotton expounded upon the issue of the post-nati and other arguments made in the conferences on the union with Scotland in Parliament. With their cessation in 1607, Cæsar undertook his most significant follow-up work: “That neither any General Statute nor Nativity only make a Man (whose Parents were Strangers) to be a Natural Subject in any Country.” Later duplicated by Cotton in Titus, F. IV., the intricacies of its two pages remained long-guarded in the private possession of such great men as Lords, Secretaries of State, and Prime Ministers. Only two centuries after Cæsar commenced its work did it come full circle to the British Museum—itself, ironically, formed from the seized library of Cotton. As for legal precedent, it is unique in that its broad historical scope predated the complexities of England's permanent royal colonies in America. During this period, every regnant—except for Charles I and James II—would assent unto major naturalization or alien statutes during their reign, all of which remained common law throughout England, the Empire, and America until, at the least, 1863.

In 1923, Haudenosaunee leader Deskaheh Levi General traveled to Geneva and launched a campaign for Indigenous statehood at the League of Nations. Drawing on a not-so-distant imperial past, the campaign was a novel attempt to use international law to assert Indigenous sovereignty. The Haudenosaunee claim hinged on a seemingly impossible conceit: that an independent native polity might persist within the borders of a settled state. The League of Nations’ primary institutional frameworks for grappling with other such problematic sovereignties were minority treaties and the mandate regime. But the Haudenosaunee case, which hinged on the persistence rather than the novelty of sovereignty, fit within neither paradigm. Their campaign illuminates a larger crisis of legal legibility that characterized Indigenous-settler relations from the mid-nineteenth to the mid-twentieth centuries. By reading Indigenous history into international legal history, this paper shows how Haudenosaunee people leveraged older norms of imperial relationality in their engagements with international law. In doing so, it revises a persistent genealogical account of the history of Indigenous human rights in favor of a more capacious narrative of Indigenous internationalism.

This article republishes a series of documents concerning citizenship rights for African Americans who were abroad. Twice during the 1850s the U.S. Secretary of State (William L. Marcy) issued instructions to consuls where he spelled out the relationship between race and citizenship for individuals who were beyond the borders of the United States. Because citizenship was not clearly defined the antebellum period, either in law or practice, the Secretary's guidance offers an important set of documents that scholars from a variety of fields can incorporate into their scholarship and teaching.

In 1788, Andrew Jackson acquired an enslaved woman named Nancy. According to most accounts, Nancy followed Jackson from Jonesborough, Tennessee to Nashville and lived out the rest of her days at the Hermitage. Except she did not. A close review of the legal record suggests that Nancy never made it to Nashville and either left Jackson somewhere along the Wilderness Road or died at his hands trying to escape. Her act of resistance, this article posits, may have profoundly affected Jackson's views of race and sex on the southern frontier.