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30 June 2025

ADVANCE ARTICLES: Law & History Review [OPEN ACCESS]

 

(image source: Cambridge Core)


The Twentieth-Century Origins of the Medieval Lex Mercatoria Thesis (Jake Dyble)
DOI 10.1017/S0738248025100709
Abstract:

This article reappraises the early intellectual formation of the medieval “lex mercatoria” thesis: the idea that the international merchants of medieval Europe (or perhaps beyond) enjoyed a universal, autonomous, and customary body of commercial law created and administered by themselves. The debate over its existence, raging for at least 120 years, shows no signs of slowing, in part because the idea is of undoubted usefulness to both proponents (so-called “mercatorists”) and critics. The article offers a new account of the origins of this idea and looks to disaggregate different mercatorist conceptions. Revising the conventional genealogy that traces the theory through the work of Berthold Goldman to the nineteenth-century German scholar Levin Goldschmidt, who is much misunderstood in Anglophone scholarship, it argues that the idea’s powerful re-emergence in the second half of the twentieth century was mediated through two distinct channels, one centred around the British-German jurist Clive Schmitthoff and the other around the British historian William Mitchell. The latter yoked Goldschmidt’s emphasis on the medieval merchant class as a source of legal innovation to a thoroughly Anglophone concept: the “law merchant”. Critics, however, have engaged primarily with Schmitthoff’s conception, whose “strong” mercatorist argument was not only unusually forthright but reoriented the debate to focus on commercial law’s supposed autonomy from the law of territorial states, an even less plausible proposition in historical terms.

How Kantian is Kelsen’s Early Theory of International Law? (Wojciech Engelking)
DOI 10.1017/S0738248025100904
Abstract:

In this article, the author examines the influence of Immanuel Kant’s philosophical ideas on Hans Kelsen’s early theory of international law. He situates Kelsen’s work within the post-World War I context, where Kant’s vision of perpetual peace significantly impacted the creation of international organizations. The article delves into Kelsen’s seminal work “Das Problem der Souveränität und die Theorie des Völkerrechts,” exploring how Kelsen’s pure theory of law parallels and diverges from Kant’s concepts. While Kelsen’s ideas were shaped by Kantian philosophy, particularly in promoting a lawful international order, Kelsen transcended Kant by developing a more rigorous, epistemologically grounded legal theory. The author argues that Kelsen’s adaptation of Kantian principles reflects both a continuation and transformation of Kant’s vision, tailored to the political and cultural challenges of early 20th-century Europe.

Properties of Empire: Contests over the Commons on Newfoundland's French Shore, 1763–83 (Arianne Sedef Urus)
DOI 10.1017/S0738248024000245
Abstract:

France ceded territorial claims to Newfoundland to Britain in the 1713 Treaty of Utrecht, but French fishermen retained rights to operate seasonal cod fisheries along a stretch of coastline known as the French Shore. The treaty was one of several laws formalizing the property regime based on the commons that emerged among European fishermen in the sixteenth and seventeenth centuries. Several demographic and geopolitical changes converged after the Seven Years’ War (1756–63) to raise the question of whether French fishing rights on the French Shore were exclusive or concurrent with British fishing rights on that coast. Treaty and customary law seemed at odds on this question, forcing fishermen, merchants, naval officers, and ministers to articulate what constituted property and how property should be conceived if an interimperial commons were to work. The conflicts that transpired highlighted how they answered these questions differently. Agents of the state tended to promote the commons while some British subjects tried to create a real property regime from below. Disputes over real property formation on the French Shore show another dimension of the early modern enclosure process, demonstrating both the role of the commons in empire and the challenges of resource management in an interimperial space.

British Imperial Constitutional Law and the Zionist Campaign against the Legislative Council in Mandatory Palestine (Maya Kreiner)
DOI 10.1017/S0738248025000070
Abstract:

This article examines the role of British imperial constitutional law in the Zionist campaign against establishing a Legislative Council in Palestine during the early 1930s. At the time, the British government sought to introduce limited self-government in Palestine through a parliamentary institution that would include both locals and British officials. However, the Zionist leadership opposed this initiative, fearing that a representative institution reflecting the country’s demographics would threaten the development of the Jewish National Home. This article explores the Zionist engagement with the British imperial constitutional experience within its campaign against the Legislative Council, emphasizing the strategic application of British constitutional law by two Zionist officials, Leo Kohn and Chaim Arlosoroff. Through this case, the article highlights the influence of British constitutional law on interactions between national movements and the British Empire. It argues that the British imperial system offered an adaptable and flexible political framework. The Zionists’ attentiveness to this flexibility not only sheds light on the interplay between Zionism and the British Empire during the mandatory period but also underscores the place of constitutional flexibility in political debates within the British Empire.

“The Problem Can Be Solved Only by Those Imbued with a Socialist Sense of Justice!”: Social Conflict and the Lower Courts in the German Democratic Republic (Ville Erikkilä & Luisa Gries)
DOI  10.1017/S0738248025000082
Abstract:

The article concentrates on the massive project of popularizing the court system and penal practice in the German Democratic Republic (GDR) in the 1960s. From then on, the GDR transferred a considerable amount of jurisdiction to collectives, which were further assigned the task of adjudicating “close to the people” within and alongside the existing legal system. We will analyze how the government, with this project, managed to translate the ideological task of sanctioning the inner-state enemy into existing legal concepts and how it used law as a means to advance its political aims. By focusing on the judicialization of politics in the GDR, the article examines the legal history of the GDR as an important example in the broader and pressing phenomenon of the relationship between law and authoritarian politics.

Innovation in the Courts: Ellis and Jeffery Hart Bent in New South Wales—an Analysis of Minute Books (Paula Jane Byrne) 
DOI 10.1017/S0738248024000233
Abstract:

Close reading of documents produced by the early courts in New South Wales show two young men, formerly barristers at the Northern Assizes, innovating in their court rooms. Such innovation derived from their merchant background rather than the traditions of mercy or paternalism of the Assizes. In such innovations colonial agents were empowered and could shape the workings of the courts themselves. Minutes of the court show the impact of new kinds of elites generated by wealth built on slavery on the courts in the colonies and the subsequent flowering of subcultures.

General Will or Public Order? The Debate on Criminal Justice Policy in Early Colonial Himalaya, 1815–1816 (Irit Ballas & Arik Moran)
DOI  10.1017/S0738248025000069
Abstract:

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.

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