JOURNAL: Law and History Review XXXLVIII (2020), No. 2

(image source: CUP)

Litigants in the English “Court of Poor Men's Causes,” or Court of Requests, 1515–25 (Laura Flannigan)

Abstract:

The early-Tudor English government oversaw the rise of various centralised courts offering the king's subjects access to extraordinary justice in their private suits. One such new arena was the ‘Court of Requests’, an early equity or conscience court long overshadowed in histories of the period by the better-known courts of Star Chamber and Chancery. This article analyses the little-studied Requests archives to ask who sued there and when/why the court became associated with specifically poor men's causes. Focusing on the formative decade of ‘popularisation’ between 1515 and 1525, it finds that whilst litigants appear to have been largely from the lower sectors of society compared to their counterparts in the other conciliar courts, most petitioners opted for imprecise, rhetorical and non-static descriptions of their relative poverty – defined not just economically, but also in terms of age, property, and kin – in comparison to their opponents, appealing to the specific interpretation of conscience in Requests. The article thus scrutinises the methodologies we use for uncovering the demography of early-modern central courts, and has implications for understanding litigants' legal strategies, recorded identification as distinct from self-identification, and the theory and practice behind commonly-held ideals about the provision of royal justice for the ‘poor’.

 Law, Language and the Printing Press in the Reign of Charles I: Explaining the Printing of the Common Law in English (Ian Williams)
Abstract:

The printing press had the potential to break the common lawyers' monopoly of legal knowledge. Early-modern England witnessed debates about the desirability of wider dissemination of legal learning. Previous scholarship has identified the long-term trend to increased printing of the law in English, focusing on ideological debates between lawyers and other key actors. Only selected texts and types of material were made available to the wider public before the 1620s. From the later 1620s a wider range of material which had hitherto existed only in manuscript was printed in English. Knowledge of the common law became more commonly available. This article identifies this crucial moment and explains the change. Rather than the ideological questions which are discussed in the existing literature, more mundane causes are identified for the legal profession's reduced control over the transmission of legal knowledge: a shift to the use of English by lawyers themselves, and a loss of professional control over manuscripts. The paper therefore demonstrates an important methodological point: understanding and assessing the history of legal printing requires engagement with older methods of transmitting the law.

Law of Nations Theory and the Native Sovereignty Debates in Colonial India (Zak Leonard)
Abstract:

Beginning in the 1840s, high-ranking officials within the East India Company began a concerted effort to confiscate and annex princely states, citing misrule or a default of blood heirs. In response, metropolitan reformers and their Indian allies orchestrated a sustained legalistic defense of native sovereignty in the public sphere and emerged as vocal opponents of colonial expansionism. Adapting concepts put forth by both law of nations theorists and contemporary jurists, they sought to preserve longstanding treaties and defend the princes' exercise of internal sovereignty. The colonial government's failure to adequately define the basis of its modern “paramountcy” invited such creative maneuvering. Reformist opposition to the annexation of Awadh, the dispossession of the Nawab of the Carnatic, and the confiscation of Mysore demonstrates that international law did not simply function as a Eurocentric tool of subordination, but could also provide a bulwark against colonial depredations.

Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South Asia (Priyasha Saksena)
Abstract:

The article examines the relationship between colonialism and international law by focusing on late nineteenth century debates surrounding the sovereignty of the “princely states” of colonial South Asia. The princely states were ruled by indigenous rulers and were not considered to be British territory, but remained subject to British “influence;” as a result, there were numerous controversies over their legal status. During the course of jurisdictional disputes, a variety of interested players - British politicians, colonial officials, international lawyers, rulers and advisors of princely states - engaged in debates over the idea of sovereignty to resolve questions of legal status, the extent of rights and powers, and to construct a political order that supported their interests and aspirations. I focus on legal texts written by British international lawyers and colonial officials as well as material relating to two jurisdictional disputes (one between the state of Travancore and the British Government and another between the state of Baroda and the British Government) to trace two versions of sovereignty that were articulated in late nineteenth century South Asia - unitary and divisible. In doing so, I argue that international law, and the doctrine of sovereignty in particular, became the shared language for participants to debate political problems and a key forum for the negotiation of political power.

Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903–58 (Rabiat Akande)
Abstract:

Emerging critiques of mainstream accounts of secularism reveal the imbrication of the sacred and the secular in ‘secular’ states. In the context of colonial Northern Nigeria, this sacred-secular entanglement, which took the form of the co-option of Islam for the colonial ‘secular’ enterprise, did not leave Islam unchanged. Co-opting Islam for the colonial project necessitated the making of an Islamic Law amenable to the colonial state. With a focus on criminal law, this article narrates the making of a British Colonial Islamic law in Northern Nigeria through the unprecedented expansion of siyasa. Departing from orthodox accounts of Islamic law's reification in colonial Northern Nigeria and heterodox assertions of its erosion by the colonial state, this article argues that neither the reification nor the erosion accounts illuminates the relationship between the colonial state and Islamic law. To show how the colonial state could assert secularism while co-opting Islam, this article presents a narrative of reform that foregrounds the following questions: Who had (and exercised) the power to decide what Islamic law was? How was the exercise of this power justified? How did the exercise of this power fit with the broader colonial project of governing religious difference? What were the consequences of these processes for Islamic law, institutions and colonial subjects?

Book reviews:

•  Stephan Dusil, Wissensordnungen des Rechts im Wandel: Päpstlicher Jurisdiktionsprimat und Zölibat zwischen 1000 und 1215. Leuven: Leuven University Press, 2018. Pp. xii + 629. €135.00 hardcover (ISBN 9789462701526); €95.00 paper (ISBN 9789462701335); €71.00 ebook (ISBN 9789461662853). (Atria A. Larson)
• Charlene M. Eska, A Raven's Battle-Cry: The Limits of Judgment in the Medieval Irish Legal Tract Anfuigell. Leiden: Brill, 2019. Pp. xiv + 338. $119.00 hardcover (ISBN 9789004391987) (Joe Wolf)
• Zachary Chitwood, Byzantine Legal Culture and the Roman Legal Tradition, 867–1056. New York: Cambridge University Press, 2017. Pp. 236. $105.00 hardcover (ISBN 9781316861547). (Paolo Angelini)
• Francesca Trivellato, The Promise and Peril of Credit: What a Forgotten Legend about Jews and Finance Tells Us about the Making of European Commercial Society. Princeton, NJ: Princeton University Press, 2019. Pp. xiv + 405. $45.00 hardcover (ISBN 9780691178592); $27.99 ebook (ISBN 9780691185378). (Rowan Dorin)
• James E. Lewis Jr., The Burr Conspiracy: Uncovering the Story of an Early American Crisis. Princeton, NJ: Princeton University Press, 2017. Pp. viii + 713. $35.00 hardcover (ISBN 9780691177168); $21.95 paper (ISBN 9780691191553). (R. B. Bernstein)
• Michel Gobat, Empire by Invitation: William Walker and Manifest Destiny in Central America. Cambridge, MA: Harvard University Press, 2018. Pp. 384. $41.00 hardcover (ISBN 9780674737495). (Timo Schaefer)
• Philip Thai, China's War on Smuggling: Law, Economic Life, and the Making of the Modern State, 1842–1965. New York: Columbia University Press, 2018. Pp. 408. $60.00 hardcover (ISBN 9780231185844). (Diana S. Kim)
• Julian Lim, Porous Borders: Multiracial Migrations and the Law in the U.S.–Mexican Borderlands. Chapel Hill: University of North Carolina Press, 2017. Pp. xv + 302. $32.50 hardcover (ISBN 9781469635491). (Felice Batlan)
• Ken I. Kersch, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism. New York: Cambridge University Press, 2019. Pp. xviii + 407. $84.99 hardcover (ISBN 9780521193108); $34.99 paper (ISBN 9780521193109). (Logan Everett Sawyer)

Source: CUP.