JOURNAL: Law and History Review XXXVIII (2020), No. 1 (Feb)

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Select Intertwined Itineraries: Debt, Decolonization, and International Law in Post-World War II South-Asia (Kalyani Ramnath)
Abstract:

This Article brings a Tamil-speaking Chettiar widow and a Dutch scholar of international law - two seemingly disparate characters - together through a footnote. Set against the background of decolonizing South and Southeast Asia in the aftermath of World War Two, it follows the judgment in a little-known suit for recovery of debt, filed at a district-level civil court in Madras in British India, which escaped the attention of local legal practitioners, but made its way into an international law treatise compiled and written in Utrecht, twenty years later. Instead of using it to trace how South Asian judiciaries interpreted international law, the Article looks at why claims to international law were made by ordinary litigants like Chettiar women in everyday cases like debt settlements, and how they became “evidence” of state practice for international law. These intertwined itineraries of law, that take place against the Japanese occupation of Burma and the Dutch East Indies and the postwar reconstruction efforts in Rangoon, Madras and Batavia, show how jurisdictional claims made by ordinary litigants form an underappreciated archive for histories of international law. In talking about the creation and circulation of legal knowledges, this Article argues that this involves thinking about and writing from footnotes, postscripts and marginalia - and the lives that are intertwined in them.

Introduction: Why a History of Cultural Expertise? (Livia Holden)

The Indian Panchayat, Access to Knowledge and Criminal Prosecutions in Colonial Bombay, 1827–61 (James Jaffe)
Abstract:

Throughout the mofussil of the Bombay Presidency British judges and magistrates called upon panchayats, that is, caste or village councils, to help them administer justice. By the mid-nineteenth century, panchayats were being deployed by British justices not only to offer their advice to judges attempting to decide a case, but much more frequently to investigate crimes, including murder, assault, robbery, arson, forgery, rape, and property disputes. Moreover, the active participation of the panchayat in the administration of criminal law varied as much in form as in function. In different scenarios, the panchayat functioned as a coroner's court, a criminal investigation team, and a general witnessing agent for the courts. With very few exceptions, they almost always appear in a supporting role on the prosecution side of any case offering their opinions on the crime in question in written form. Judges, for their part, appear to have relied quite heavily upon these recommendations and there are very few instances in which the panchayat's opinions were either ignored or rejected. There thus developed a hybrid system of justice whereby judges and magistrates adapted, transformed, and incorporated the expertise and knowledge of the ‘customary’ panchayat to suit the needs of British governance and legal administration.

Cultural Expertise in Iran: From the Pahlavi Dynasty to Contemporary Diasporas (Soudabeh Marin)
Abstract:

This paper suggests the use of cultural expertise as encompassing concept that can account for the natural cultural competence developed in Iran. In earlier times, Zoroastrian law was first based on religious norms and the primary theological division between sins and offenses. Iranians had to adapt to different legal systems: customary law, religious law and secular law. Priests, jurists, judges, officials and translators were the main cultural “experts” and mediators between the people and the normative institutions. The introduction of imami legal theories and jurisprudence in the 16th century together with the reinforcement of the secular political power engaged Iran in a stabilized judicial context ruled by shiʿi scholars, qāzis and mujtahids. In 1919, as a consequence of the new French inspired Constitution, the Ministry of Justice, in order to train a new generation of judges, magistrates and justice personnel, set up a law school. Professors, who can be considered as cultural experts, contributed to the acculturation process initiated in the judicial system. Examples of his continuous struggle are recounted in Ostad Elahi's (1895-1974) memoirs, relating the difficulty Iranians had to accept the change, both cultural and psychological, initiated by the modernization and westernization program put into operation (1911-1935).

Historians at the Court: How Cultural Expertise in Qing Law Contributes to the Invention of Hong Kong “Chinese Customary Law” (Jérôme Bourgon)
Abstract:

This paper relies on the narrative of a renowned historian of Qing law from China mainland who has been called by Hong Kong High Court in 2007, to witness as an expert in “Chinese customary law.” At the opening of the trial, he recognized one well-known and estimated colleague from Taiwan in the expert engaged by the other party. During one week, these two legal historians called up a vast array of knowledge in Chinese history, culture, and law, to ensure the triumph of their party. The contest opposed the representatives of two branches of a same lineage who claimed their right to manage the lineage common wealth. As both were collaterals with dubious link with the original lineage, experts engaged in sophisticated arguments to make their cause prevail. Successively were adduced lineage registers the tabooing of fathers and emperors' personal name in the Chinese tradition, the degree of kinships as represented by “mourning charts” included in the Qing penal code. Even though it was “privately settled” before any judicial decision, this case raises questions on the very nature of “Chinese customary law”, and the role of “cultural expertise” at Common law in a Chinese environment.

Judging the Communist Past: Historians and Cultural Expertise in Polish Administrative Courts (Stanisław Burdziej)

Abstract:

Since 1989, cultural expertise has emerged as a crucial factor in navigating Poland's communist past. The use of cultural expertise provided by historians was institutionalized in 1999, when the Institute of National Remembrance was created and charged with prosecuting Nazi and communist crimes, as well as assisting with the belated decommunization. Expert historians are requested by courts and other institutions to provide opinions in cases ranging from alleged collaboration with communist secret services, withdrawal of veteran status bestowed to soldiers of communist military units fighting the Polish resistance movement, awarding compensation to victims of German concentration and labour camps, to changing names of places named after prominent Party activists. Using this expertise requires the courts to understand the intricacies of recent Polish history, such as the operational methodology and archival practices of communist secret services, or the complex interplay of motives to collaborate (or not) with foreign oppressors. In this paper, the new salience of historical expertise for the Polish courts is analysed within the framework of Honneth's (1995) ‘struggle for recognition’ and Haldemann's (2008) work on the symbolic role of courts in transitional justice contexts.

Expert Testimony in the Social Sciences: A Historical Overview of Contemporary Issues (Lawrence Rosen)
Abstract:

In this brief reconsideration of the roles experts may play in legal proceedings - and concentrating on the role of social scientists in particular - it may, therefore, be useful to revisit some very familiar issues and to address some seemingly peripheral matters that are nevertheless quite central to the way we think about the involvement of experts in legal cases. For purposes of introducing some of these issues it may be helpful to focus on three interrelated concerns: the ascertaining of expert qualifications, the role of evidentiary procedure, and the extra-judicial use of social information.

 Accounting for Colonial Legal Personhood: New Intersectional Histories from the British Empire (Antoinette Burton)
Abstract:

In this comment on the special issue, Burton situates the essays in the scholarship of 1980s and 1990s as well as very recent scholarship on age of consent laws. She notes patterns — including processes of abstraction and transnational circulation — that shaped the cases gathered here. She points as well to the stakes of prioritizing gender and conjugality in scholarship on legal imperial regimes of all kinds

Withholding Consent to Conjugal Relations within Child Marriages in Colonial India: Rukhmabai's Fight (Kanika Sharma)
Abstract:

Married at the age of eleven, Rukhmabai refused to go and live with her husband who had filed a suit for restitution of conjugal rights against her in 1884. This paper analyses the transplantation of the notion of restitution of conjugal rights into Hindu personal law in India at a time when child marriage was rife and there was no minimum age of marriage. Within this context Rukhmabai's case symbolises an important interjection in its attempt to posit lack of consent to an infant marriage as a defence against suits for restitution of conjugal rights. This marked a shift from female consent being understood as a question of physical maturity alone, to a claim of intelligent consent and the capacity to withhold such consent within an unconsummated marriage arranged in the girl's infancy. While analysing these notions of consent within colonial law the paper also closely scrutinises Rukhmabai's public writings to recover one of the earliest published Indian female views on the need for marital consent.

Intimate Violence in Colonial Bengal: A Death, a Trial and a Law, 1889–1891 (Tanika Sarkar)

Abstract:

Much excellent work has been done on the colonial Act X of 1891. Yet, three important contexts have largely gone missing. One is the framework of colonial Personal Laws where the practice of infantile marital cohabitation was embedded till it migrated to criminal laws. Unless we comprehend how the framework constrained judicial decisions and legal interventions, no single law can possibly make full sense. There were highly acrimonious public debates, too, especially in Bengal and Bombay Presidencies, that significantly shaped the Act. Legal reform in the field of gender, I argue, grew more out such debates than from colonial initiatives.

Cultures of Sex, Laws of Difference: Age of Consent Law and the Forging of a Fraternal Contract on the Margins of the Nineteenth-Century British Empire (Nafisa Essop Sheik)

Abstract:

In the British colony of Natal, laws governing sex for settlers were concerned with reproduction and sexual respectability, which were the grounds for imagining difference amongst imperial populations only recently assembled under colonial jurisdiction. Age of consent laws arose out of these contingencies rather than out of any concern with a liberal politics of social reform. Consequently, colonial age of consent laws governing white settlers bore only superficial resemblance to metropolitan legislative reforms such as age of consent laws. Instead, the Natal state's practices of law-making recognized three discrete and divergent moral economies of sex in the colonial laws governing white settler citizens, Native law which governed the lives of Africans and the consolidated body of laws governing Indian immigrants. In this young colony, not only did ‘age of consent’ laws have to be newly made, but they were conceived separately and contained by ‘colonial law’, ‘Native custom’ and ‘Indian custom’. The sexuality of young white woman was coded in colonial rape laws and used to draw lines of civilizational difference between settler citizens and their Others. For these others, relating sex to exceptional marriage customs excluded from legal codes of civilized common practice was how the state worked to assert difference.

The Problem of African Girlhood: Raising the Age of Consent in the Cape of Good Hope, 1893–1905 (Elizabeth Thornberry)

Abstract:

In 1893, legislation in the Cape Colony raised the age of consent to sexual intercourse from twelve to fourteen. Only twelve years later, however, did colonial administrators extend the law to the predominantly African districts in the eastern region of the colony. A reconstruction of the political debates surrounding the law, and its eventual extension, illuminates the relationship between understandings of childhood and race in the Cape. By the late 19th century, the comparison of Africans to children had become the governing metaphor for the “native question”; but this metaphor contained fundamental ambiguities. Debates over the age of consent forced Cape politicians to confront the racial and chronological boundaries of childhood innocence, and thus to articulate more precise theories of racial difference itself. Rural elites upheld a vision of hierarchy calibrated by wealth and social knowledge as well as race. Reformers sought to protect the innocence of white girls, in part to defend against racial degeneration, but disagreed over the inclusion of black girls. Meanwhile, even liberal social purity advocates hesitated to extend the law to the eastern districts, where “native law and custom” seemed not only to offer more protection but also to undermine claims of European superiority.

“Precocious Girls”: Age of Consent, Class and Family in Late Nineteenth-Century England (Laura Lammasniemi)

Abstract:

A fixed legal age of consent is used to determine when a person has the capacity to consent to sex yet in the late Victorian period the idea became a vehicle through which to address varied social concerns, from child prostitution and child sexual abuse to chastity and marriageability of working-class girls. This article argues that the Criminal Law Amendment Act (CLAA) 1885, the Act that raised the age of consent from thirteen to sixteen, and its application were driven by constructions of gender in conjunction with those of social class and working class family. The article firstly argues that CLAA 1885 and related campaigns reinforced class boundaries, and largely framed the working class family as absent, thereby, requiring the law to step in as a surrogate parent to protect the girl child. Secondly, the paper focuses on narratives emerging from the archives and argues that while narratives of capacity and protection in particular were key concepts behind reforms, the courts showed limited understanding of these terms. Instead, the courts focused on notions resistance, consent, and untrustworthiness of the victim, even when these concepts were not relevant to the proceedings due to victims' young age.

Vernacularizing Justice: Age of Consent and a Legal History of the British Empire (Ishita Pande)

Book reviews:

• Johanna Ransmeier, Sold People: Traffickers and Family Life in Northern China, Cambridge, MA: Harvard University Press, 2017. Pp. 408. $51.50 hardcover (ISBN 9780674971974 (Xiaoping Cong)
• Jens Meierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi Law, New York: Oxford University Press, 2018. Pp. ix + 437. $61.00 hardcover (ISBN 9780198814412) (Peter C. Caldwell)
• Philip Girard, Jim Phillips, and R. Blake Brown, A History of Law in Canada-Volume One-Beginnings to 1866, Toronto: The Osgoode Society for Canadian Legal History and University of Toronto Press, 2018. Pp xvii + 904. $120.00 (Canadian) hardcover (ISBN 9781487504632) (Jonathan Swainger)
• Tamar Herzog, A Short History of European Law: The Last Two and a Half Millennia, Cambridge, MA: Harvard University Press, 2018. Pp. vi + 289. Paperback $18.95 (ISBN 9780674237865) (Mia Korpiola)

Read the full issue on Cambridge Core.