JOURNAL: Law and History Review XLI (2023), No. 1

  

(image source: CUP)

The Making of Modern US Citizenship and Alienage: The History of Asian Immigration, Racial Capital, and US Law (Hardeep Dillon)
DOI 10.1017/S0738248023000019 (OPEN ACCESS)
Abstract:

This article unravels an important historical conjuncture in the making of modern US citizenship and alienage by drawing on the state's regulation of naturalization as it relates to Asian immigration in the early twentieth century. My primary concern is to examine the socio-legal formations that constructed the thick distinctions between the modern US citizen and alien along the lines of racial difference and racial capital. Specifically, this article argues that Asian immigration to the United States remade the modern US citizen and alien in two significant and interconnected ways. First, it underscores how the adjudication of race in US courts and connected political campaigns re-mapped race in the United States and sharpened the racialization of Asia and Europe in profound ways that ultimately produced immigrants from southern, central, and eastern parts of Asia as the modern US alien. Second, the debate over Asian immigrants’ eligibility to naturalize refashioned legal status as a normative avenue to sustain a regime of racial capital. It cast citizenship as a legal avenue for White men and families to acquire and protect a proprietary interest in citizenship and recast some Asian immigrants as permanent aliens in a period when alienage came to signify disposable immigrant labor. The article concludes by distinguishing how the struggle for US citizenship by Asian immigrants frames the epistemological parameters and political vocabulary of immigration and naturalization reform.

Legal Limbo and Caste Consternation: Determining Kayasthas’ Varna Rank in Indian Law Courts, 1860–1930 (Hayden J. Bellenoit)
DOI 10.1017/S0738248023000056 (OPEN ACCESS)
Abstract:

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.

The Redefinition of Clandestine Marriage by Sixteenth-Century Lutheran Theologians and Jurists (Paolo Astorri)
DOI 10.1017/S073824802300010X (OPEN ACCESS)
Abstract:

Within the medieval Catholic Church, the term ‘clandestine betrothal’ was associated with the absence of witnesses, solemnities, and other formalities. Parental consent was not a legal requirement for betrothal or marriage, which was based on the free decision of the spouses. However, Martin Luther held that the will of the parties was not sufficient, because the couple was joined by God, and God’s will was reflected in parental consent. Luther intended the parents to be a public authority, and he therefore proposed a different definition of clandestine marriage that combined the absence of witnesses with the lack of parental approval. Medieval canonists had enumerated numerous types of clandestine betrothal. However, in their treatises, the jurists Johannes Schneidewin, Conrad Mauser, and Joachim von Beust translated Luther’s definition into legal terms, reducing the types of clandestine betrothal to only two. The first type, absence of witnesses, continued to be regulated by canon law, with some exceptions. The second, lack of parental approval, was governed by Roman law reinterpreted according to Scripture. Cardinal Bellarmine criticized this definition as confused, prompting the Lutheran theologians Paul Tarnov and Johann Gerhard to reply that ‘clandestine’ had acquired a new meaning: violation of the law imposing parental approval.

How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927–34 (Katharina Isabel Schmidt) 
DOI 10.1017/S0738248023000020 (OPEN ACCESS)
Abstract:

Hermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.

Creating Law through Regulating Intimacy: The Case of Slave Marriage in Nineteenth-Century New York and the United States (Lauren Feldman)
DOI 10.1017/S0738248023000032 (OPEN ACCESS)
Abstract:

 This article argues that American jurists fashioned new understandings about the capacity of states to legislate about marriage through regulating the intimate lives of enslaved and newly freed individuals. This article does so through analyzing the creation and impact of a little-studied 1809 law in New York that legalized the marriages of enslaved people—while individuals were still enslaved—as part of the state's process of gradual emancipation, which occurred from 1799 to 1827. In New York, by legalizing enslaved people's marriages, jurists privatized financial liabilities within soon-to-be freed families. The law stood at odds with national juridical understanding about marital regulation. Jurists in the early republic were uncertain about whether states could legislate about matrimony. Southern states after the Civil War then cited and replicated New York's logic in legislating to legalize the marriages of freedpeople, similarly privatizing financial claims within families. In the cases of both New York and national emancipation, jurists, in choosing privatization, foreclosed possibilities for a different or broader vision of state support for freedpeople, such as reparations. After making marital laws about slavery, both New York and Southern states created and/or tightened their marriage laws, further inscribing understandings of the marital family into American governance. This piece contributes to historiographies of slavery, the American state, and intimacy.

Concrete Leviathan: The Interstate Highway System and Infrastructural Inequality in the Age of Liberalism (Teal Arcadi) 
DOI 10.1017/S0738248023000044 (OPEN ACCESS)
Abstract:

This article explores how the construction of the National System of Interstate and Defense Highways prompted litigation that altered the course of administrative law and governance from the 1960s onward. By that time, the construction of the interstate system had become synonymous with the destruction of neighborhoods and parks bulldozed to make way for the “concrete monsters,” as some came to call the interstates. Ensuing protests—“freeway revolts”—pressed for altered construction practices and participatory roles for citizens and communities in the state building process underway. This article explores the legal consequences of interstate highway protest, and advances two arguments. First, freeway revolts brought distinctive reforms to the practices of modern American state building, particularly when they produced the canonical Supreme Court case Citizens to Preserve Overton Park v. Volpe (1971). Second, despite the reformist inclinations present in Overton Park, the case created an unequal legal and physical landscape of state building. Contrasting Overton Park with Nashville I-40 Steering Committee v. Ellington (1967), a case dealing with racial discrimination and community destruction, reveals the mechanics of a legal regime that cemented racial and class hierarchies in place across long horizons of space and time via the interstate system's durable, nation-spanning asphalt limbs.

“No Quixotry in Redress of Grievances”: How Community Abatement of Public Nuisances Disappeared from American Law (William B. Meyer) (OPEN ACCESS)
DOI 10.1017/S0738248022000566
Abstract:

Before 1859, the right of any member of the public to abate a public nuisance existed unchallenged in American law as a judicially recognized form of popular justice. In that year, the decision in Brown v. Perkins, authored by Massachusetts Chief Justice Lemuel Shaw, restricted the right to those who had suffered particular injury. The decision grew out of a suit for damages by the owner of an illegal saloon, which had been sacked by a local mob. Reversing what Shaw himself had said in his charge to the jury in the same suit in the preceding year, it had little grounding in earlier American case law. Shaw's prestige and the apparent demands of public policy, however, helped win courts over to the new doctrine in relatively short order. The change was most enthusiastically promoted by judges and scholars of conservative leanings disturbed by the threat of popular excess and most resisted by those of more radical inclinations. It paralleled American law's broader shift in the same period toward centralized regulation and the constitutionalization of rights and powers.

Re-Reading Morant Bay: Protest, Inquiry, and Colonial Rule (Jonathan Connolly)
DOI 10.1017/S0738248022000578 (OPEN ACCESS)
Abstract:

The 1865 Morant Bay Rebellion figures prominently in scholarship on modern Britain, colonial Jamaica, and the British Empire, as a milestone of post-emancipation protest, a turning point in British race-thinking, and a focal point for debates on martial law and British justice. This article presents a new interpretation of the rebellion’s legal and political significance. Focused on processes of formal inquiry, I argue that legal analysis reshaped the political “moral” of the event. For the rebellion’s participants and some British observers, Morant Bay challenged the practice of colonial rule. But beginning with the royal commission of inquiry called to investigate the suppression, formal inquiry displaced the systemic critique that had largely motivated the uprising. Focused increasingly on the nature of martial law and culminating in the criminal prosecution of Jamaica’s colonial governor, legal debate and analysis transformed the scandal’s moral center and turned Morant Bay into a new justification for further and more centralized imperial control. In developing these arguments, the article examines law’s capacity to read, write, and exclude competing narratives of empire. In so doing, it contributes to scholarship on scandal and legitimation, and offers a new interpretation of a seminal nineteenth-century debate on the use of martial law.

Review article

Genuine Concern for Animals in England's Nineteenth-Century Animal Protection Movement: The Case Against Reductionist Interpretations (Angela Fernandez, Review of Diana Donald, Women Against Cruelty: Protection of Animals in Nineteenth-Century Britain)
DOI 10.1017/S073824802300024X
(OPEN ACCESS)

Book review 

• Carlton F. W. Larson, The Trials of Allegiance: Treason, Juries, and the American Revolution New York: Oxford University Press, 2019. Pp.424. $40.95 hardcover (ISBN 9780190932749) (Susan Brynne Long)
• Lisa Kloppenberg, The Best Beloved Thing is Justice: The Life of Dorothy Wright Nelson New York: Oxford University Press, 2022. Pp. 216. $39.95 hardcover (ISBN 9780197608579); ebook (ISBN 9780197608609) (Patricia I. McMahon)
• Wolfgang P. Müller, Marriage Litigation in the Western Church, 1215–1517 Cambridge, UK; New York, NY: Cambridge University Press, 2021. Pp. viii, 270. $99.99 hardcover (ISBN-13: 978-1108845427). doi:10.1017/9781108955812 (Charles Donahue, Jr.)
• Yue Du, State and Family in China: Filial Piety and Its Modern Reform Cambridge: Cambridge University Press, 2021. Pp. 312. Hardcover £ 75.00 (ISBN: 9781108838351). doi:10.1017/9781108974479 (Qiliang He)
• Radha Kumar, Police Matters: The Everyday State and Caste Politics in South India, 1900–1975 Ithaca and London: Cornell University Press, 2021. Pp. 241. $19.95 paperback (ISBN 9781501761065). (Partha Pratim Shil)

Read the full issue here.