JOURNAL: American Journal of Legal History LXIII (2023), No. 2

 

(image source: OUP)

SPECIAL SYMPOSIUM ISSUE: STATUS IN ANCIENT AND MEDIEVAL LAW

Status in Ancient and Medieval Law: Introduction (Timothy Lubin)
DOI 10.1093/ajlh/njad018
Abstract:

Legal systems past and present classify people in ways that entail particular rights, obligations, capacities, and incapacities. Historically, statuses have distinguished between free, freed, and unfree; citizen and alien (and statuses in between); membership in legally recognized religious, ethnic, tribal, or racial groups; marital and other family statuses (spouse, divorcee, dependent, heir, etc.); and many others. Henry Sumner Maine, the nineteenth-century comparative legal historian, proposed that ‘the movement of the progressive societies has hitherto been a movement from Status to Contract’.1 He envisaged history, at least in the West, as a progressive detachment of individual rights and capacities from the involuntary, inherited statuses connected with family and tribe. Yet in spite of a trend toward liberal individualism in modern secular states, status distinctions still permeate law, though they are usually conceived of and discussed in narrowly circumscribed, compartmentalized forms: status of citizen, immigrant, or alien; minor, dependent, or adult; married or domestic partner; heir; corporate person; member of the military or the clergy; and ‘personal status’ under various colonial or postcolonial regimes. It is rare to see anyone address in broad terms the continuing salience of status in modern Anglo-American legal contexts, though there are exceptions.

Empire, Status, and the Law (Clifford Ando)
DOI 10.1093/ajlh/njad019
Abstract:

One phase in the long history of Roman citizenship ended in 212 CE, when the emperor Caracalla granted citizenship to all free-born residents of the empire. This moment subsequently came to be understood as inevitable, as though the juridical unification of the world had been the project of empire all along—and virtually all subsequent European empires have been implicated in the legacy of that tradition. But the history of Roman citizenship is neither unitary nor continuous. This article interrogates processes of juridification in the relationship between citizenship and empire. Some of these concern the Roman citizen body itself, which on one reading was gradually transformed from a collective of self-ruling agents to a community of economic actors. Others concern the effects on alien political and religious communities of the appearance of Roman tribunals as courts of the second instance. The legacies of Roman citizenship in modern forms of subjectivity should be understood against this complex history.

Metics and Freedmen: Conflicts of Social and Juridical Status in the Classical and Hellenistic Greek World (Elizabeth A Meyer)
DOI  10.1093/ajlh/njad020
Abstract:

Ancient Greek city-states, or poleis, had a bewildering number of terms for people who lived in them. In Athens, freedmen seem to be assimilated juridically to the status of metics (resident aliens), although socially there were ways of both denigrating freedmen and obscuring the distinction between metic and freed. Elsewhere we can see that under some circumstances distinctions between metic and freed were made, but not in ways that point to strong juridical differences. By looking at the development of both statuses historically, I propose that the juridical assimilation occurred in Athens because metic status was created first, in an historical context in which distinctions between citizens and foreigners was crucial: an imperial power with a strong economy was attracting many foreigners to the mother city. This line drawn between citizens and foreigners was expressed through the law in both the fifth and fourth centuries BCE. But the social perception of metics changed in the fourth century, for historical reasons deriving from the assimilation of metics and freed into one category. Other areas of the Greek world with both metics and freedmen may have assimilated the two statuses initially, but over time split them apart.

Religious Endowments in Ancient India and the Institutionalization of Brahmin Caste Status (Timothy Lubin)
DOI  10.1093/ajlh/njad023
Abstract:

Giving to worthy recipients has been meritorious public piety in India at least since the Mauryan empire. Most consequential were grants in perpetuity of land or capital as a ‘religious foundation’ for monks or Brahmins, conferred by means of a charter (śāsana). Grants to Brahmins typically created or supported an agrahāra, a residential enclave with attached farmland and villages, on terms analogous to those of grants to Buddhist or Jaina mendicants or monasteries. In these records (attested since the beginning of the Common Era), rulers cede their claims to certain normal obligations of subjects, such as tax revenue, compulsory labor, and billeting or provisions for officers of the state, and they often give the beneficiaries authority over internal legal administration. This article examines the implications of the fiscal and juridical autonomy conferred in such grants in providing state recognition and institutional support of Brahmins’ sacred status as a religious profession and a privileged caste.

Belief as Status: Premodern Islamic Law, Duties, and the Martyr Conundrum (Adnan A. Zulfiqar)
DOI  10.1093/ajlh/njad022
Abstract:

The normative universe of the premodern Islamic legal tradition revolves around duties. These duties are determined by an individual’s status both as an autonomous entity and as part of the collective. The duties one owes and those that one is owed, are primarily constructed around belief. Belief, and its absence, function as the primary vehicles for affirming or denying an individual’s place within the moral community. In the jurists discourse on warfare, during the fifth AH/eleventh CE and sixth AH/twelfth CE centuries, we find an illustrative example of how belief dictates the duties that must be performed. Who is obligated to fight, who must be fought, and what obligations are owed in death all depend, though not exclusively, on the belief status of the relevant actors. In the process jurists constructed status hierarchies based on belief and, as in the case of martyrs, negotiated a delicate balance between preserving the sacredness of belief status and accounting for the pragmatic requirements of the battlefield.

The Matter of Personae in Medieval Italy (Melissa Vise)
DOI 10.1093/ajlh/njad021
Abstract:

This article hunts for the medieval understanding of juridical persona in the courtrooms of communal Italy (c.1250–1450). While corporate personae have been the long-favored subject of inquiry for both medieval and modern scholars, the ontological predecessor of the corporate persona, the juridical persona, remains undertheorized. The gap is surprising given that (i) the concept is central to other formative legal notions of standing, status, and identity and (ii) medieval legal practice’s erstwhile penchant was to gloss and re-gloss every word of its central texts. By considering cases of gestural blasphemy brought before both civic and ecclesiastical courts, this article discovers the multiple and context-specific meanings for persona at law. These shifting definitions hover around a theological impossibility: a material quality to divine persons that could render them subject to injury and defendable in court. I contend that the legal utility of the term persona rested in its ability to bridge conceptual gaps like that created in the prosecution of blasphemy. Persona was left definitionally both one and many for good legal reason.

ARTICLE

‘Our Practice Has a Superiority:’ Debt Enforcement, Bills of Exchange, and Credit in Eighteenth-Century Glasgow (Hunter Harris)
DOI 10.1093/ajlh/njad011
Abstract:

This article explores the relationship between the Scots law of bills of exchange, debt enforcement procedures, and credit in the eighteenth century. Compared to England, Scots law’s procedures for recovering debts on obligations were faster, cheaper, and more efficient. These legal provisions are under-appreciated in the current literature on bills of exchange. Scots law’s superiority meant that the provision of medium-value credit in urban economies often occurred through written obligations. Using a new archival data set of nearly 300 bills of exchange from Glasgow, this article demonstrates how Glaswegians used those instruments. It finds that elements of the law of obligations traditionally stressed in the literature, namely negotiability, do little to explain the use of credit instruments in Glasgow. Instead, it was Scots law’s quick recovery procedures that account for their patterns of use. The data shows that inland bills did not commonly pass from hand to hand but instead were held as proofs of debt that could quickly be enforced. The advantage of Scots law in this area did not go unnoticed by contemporaries, and unsuccessful attempts at legal reform in the Victorian era sought to introduce the Scottish rules to the English system. This article joins a growing literature in turning scholarly focus away from the negotiable properties of bills, and shows the importance of expedited enforcement procedures for understanding the Scots credit system. It suggests that paying closer attention to procedural law and differences between jurisdictions can advance research agendas on the relationship between law and economic development.

BOOK REVIEWS

•  Eric L Muller, Lawyer, Jailer, Ally, Foe: Complicity and Conscience in America’s World War II Concentration Camps (Gabriel J. Chin)
• Brent Salter, Negotiating Copyright in the American Theatre: 1856–1951 (Oren Bracha)

Read the full issue with Oxford Journals.