JOURNAL: Law and History Review XLII (2024), No. 2 (May)

 

(image source: CUP)

Legal Pluralism as a Category of Analysis (Jessica Marglin, Mark Letteney) [OPEN ACCESS]
DOI 10.1017/S0738248023000196 
Abstract:

A debate has raged for decades over legal pluralism and its value for the study of law. Much of this back and forth has resolved to a fight over what law “is” and push-and-pull between legal centrists and pluralists. This introductory essay proposes a new framework for thinking about legal pluralism. Turning away from the centrist/pluralist binary, we instead ask what work legal pluralism as a category of analysis can do. The debate, we suggest, is a fundamental methodological disagreement about the normative work that categories of analysis do and the costs that historians should be willing to pay to reap the benefits of theoretically sophisticated frameworks of analysis which are interoperable between times and places. The debate about legal pluralism, we argue, can be productively reframed as a question about the benefits and drawbacks of the legal pluralist framework.

Legal Pluralism's Other: Mythologizing Modern Law (Caroline Humfress)  [OPEN ACCESS]
DOI 10.1017/S0738248023000172 
Abstract:

This article interrogates the concept of legal pluralism, as it currently tends to function within contemporary legal and historical scholarship. It argues that the concept of legal pluralism cannot ‘liberate’ positivist analytical legal theory from monist (municipal, state-centric, etc.) straightjackets, but rather itself presumes the primacy of centralized state-issued law—at the same time as masking that primacy within a pluralist discourse. The concept of legal pluralism should be properly understood—and analyzed—as part of the mythology of modern law, not as an alternative to it. The first two sections develop this argument via a critical tour of legal-pluralist historiography, focusing on 1986 to the present day. The final section then moves on to explore what is at stake for the pre-modern historian when they apply (modern) concept(s) of legal pluralism to try to explain the multiplicity of legal orders that they invariably encounter in their own source material.

Legal Pluralism from History to Theory and Back: Otto von Gierke, Santi Romano, and Francesco Calasso on Medieval Institutions (Emanuele Conte) [OPEN ACCESS]

DOI 10.1017/S0738248023000159 
Abstract:

This paper considers the historical contexts in which theories of legal pluralism grew and developed between the final third of the nineteenth century and the first half of the twentieth century. Theories of the state as a pluralistic system, as opposed to the absolute supremacy of state-made law, were the focus of German legal historical scholarship in the late nineteenth century, represented by the towering figure of Otto von Gierke. Gierke's image of a pluralist German Middle Ages largely influenced legal scholarship in Europe, even affecting the Italian scholar Santi Romano, whose book on the “legal order” has been considered a milestone in the construction of pluralist legal theories. Once passed from a legal historian like Gierke to a theorist like Romano, the model of a pluralist legal order returned to legal historiography, inspiring the innovative historical interpretation of medieval law proposed by Francesco Calasso. Gierke was a conservative, right-wing socialist, and Romano was a fascist and counselor of the fascist Italian government. Calasso, on the contrary, was a liberal opponent of the fascist regime. The three versions of legal pluralism, then, decline the same basic vision in three different ways, being influenced by the political contexts in which the three authors operated.

The Rise of the Indigenous Jurists (Clifford Ando) [OPEN ACCESS]
DOI 10.1017/S0738248023000135 
Abstract:

Numerous Roman grants to local communities of the right to use local law survive in contemporaneous copies starting in the second century BCE. Contemporaneous with these grants of autonomy, Rome urged institutional changes that reconstituted local elites as aristocracies of office. By contrast, evidence that individuals identified themselves as experts in local law survives in bulk only starting in the second century CE. The paper urges that the superimposition of Roman courts as courts of the second instance created a role in local polities for expertise in local law in mediation with these Roman courts, and that local elites sought to monopolize this role and the technocratic prestige that it brought.

Jurisdictional Politics and Institutional Change (Lauren Benton, Adam Clulow) [OPEN ACCESS]
DOI 10.1017/S0738248023000147 
Abstract:

Challenging the common assumption that legal misunderstanding was pervasive, this article analyzes jurisdictional politics as an element of “interpolity law”—a broad framework for legal interactions across polities and regions in the early modern world. It draws on recent research on jurisdictional politics to show how such an approach allows historians to avoid some of the familiar pitfalls associated with studies of legal pluralism. This approach provides clear methodological advantages over the study of global legal history as a function of multi-normativity. Political communities across the globe centered on internal and external conflicts on the nature and reach of legal authority. By focusing on jurisdiction as a touchstone of legal action and tracing how legal authority was produced through conflict, our approach treats legal pluralism as a valuable descriptive term rather than an analytical framework. The study of jurisdictional politics portrays state authority as potentially one among many forms of legal authority, and it brings into sharp focus continuities within and across pluri-political regions. By tracking broad institutional shifts that occurred when empires and states moved to assert power over multi-jurisdictional orders, the perspective informs new narratives about trajectories of regional and global legal order.

The Uses and Abuses of Legal Pluralism: A View from the Sideline (Tamar Herzog)
DOI 10.1017/S0738248023000160 
Abstract:

This text takes issue with how present day debates regarding legal pluralism affect our vision of the past, as well as limit the horizons of possibilities in the future. It suggests that the genealogy of these debates determined what would be seen, and what ignored, and that, as a result, it has privileged some aspects, while forgetting the importance of others.

Rethinking the Rethinking of Legal Pluralism: Toward a Manifesto for a Pluri-Legal Perspective (Ido Shahar & Karin Carmit Yefet) [OPEN ACCESS]
DOI 10.1017/S0738248023000184 
Abstract:

The paper addresses the perpetual discontent evoked by the concept of legal pluralism, one which, in turn, brings about incessant efforts to “rethink” it. We suggest that one of the sources of this discontent is the erroneous view that legal pluralism is a theory, and the consequent misguided expectations that it should provide scholars of law and society with causal hypotheses and explanations. We argue that legal pluralism is not a theory but a research perspective, and, as such, is not meant to provide us with explanatory propositions, but rather to increase our awareness of the plurality and inter-relationality of socio-legal spheres and of the implications thereof. We further identify—and briefly discuss—the four core principles of a pluri-legal perspective: plurality, relationality, power, and agency. Taken together, these four premises constitute a manifesto of sorts for a pluri-legal perspective.

The Edicts of the Praetors: Law, Time, and Revolution in Ancient Rome (Lisa Pilar Eberle) [OPEN ACCESS]
DOI  10.1017/S0738248023000500 
Abstract:

This paper revises current understandings of judicial edicts in ancient Rome—the annually published texts in which Roman magistrates set out the formulae according to which they would institute trials during their year in office. While standard accounts see these edicts as the work of legal specialists, heretofore neglected sources for how contemporaries talked about these texts suggest that they were indeed the work of the magistrates that issued them. At times these magistrates formulated new provisions; for the most part they selectively drew on past edicts, not least to accommodate the demands of their friends and clients. These patterns in compositional practice can only be understood within the framework of Roman political culture. More importantly, in their annually changing published form judicial edicts emerge as crucial objects in the construction of time in ancient Rome. Arguably, they constituted a legal practice that could encompass revolution—at least for a year.

The Carried-Off and the Constitution: How British Harboring of Fugitives from American Slavery Led to the Constitution of 1787 (Timothy Messer-Kruse)
DOI 10.1017/S0738248024000038
Abstract:

Accounts of the factors that led to the drafting of the U.S. Constitutional Convention have focused on Congress' failures to levy taxes, regulate commerce, and provide security against internal unrest and foreign encroachments. Left out from history are the attempts of the founders to force Britain to return thousands of escapees from slavery they sheltered. Patriot state leaders tried to coerce the return of all fugitives from slavery evacuated with the British army by blocking payment of debts to England in violation of the Treaty of Paris. Such actions ultimately caused the breakdown of the agreement and exposed the structural inability of the Congress to enforce the terms of a duly ratified treaty over intransigent states. Ultimately, the issue of the “carried off” and with it the nation's ability to conduct foreign policy, was the paramount issue that could only be resolved by a fundamental restructuring of the federal structure of government.

Free Black Witnesses in the Antebellum Upper South (Eric Eisner) [OPEN ACCESS]
DOI 10.1017/S0738248023000408 
Abstract:

While every slave state except Louisiana limited free Black testimony in cases involving whites, and most barred it completely, several jurisdictions with slavery, including three in the Upper South—Delaware, Maryland, and D.C.—allowed at least some free Black testimony in cases involving whites at least some of the time. Historians and legal scholars have largely overlooked the phenomenon of free Black testimony in the South, outside of Louisiana. In this article, I argue that courts in the Upper South allowed some free Black testimony in cases involving whites in part because allowing (limited) Black testimony enabled courts to access the truth (slightly) more freely, thereby increasing the law's legitimacy. The exceptions to the general bar against Black testimony in cases involving whites also demonstrate the diversity of legal trends in the antebellum Upper South. In Maryland, the space for free Black testimony shrank. In D.C. and Delaware, it grew. But Southerners long contested the relationship between race and law. Competing pressures to administer a well-functioning legal system and to maintain racial hierarchy exerted force on the white elite. Southern elites, even before the great convulsion of the Civil War, sometimes divided on how best to administer a white supremacist legal regime.

Disobedient Children, Hybrid Filiality: Negotiating Parent–Child Relations in Local Legal System in Republican China, 1911–1949 (Shumeng Han & Xiangyi Ren)
DOI 10.1017/S0738248023000512 
Abstract:

The principle of filial piety underpinned both parent–child relations and, more broadly, Qing legal and social order. Entering the turbulent years of the Qing–Republic transition, filial piety went through substantial changes. Drawn from the local legal archives in Jiangjin county, Sichuan, this research traces the transformation of filial piety in legal practice during the first half of the twentieth century. It argues that two overlapping processes—legal reforms and nation-state building—synergized to restructure the meaning of filial piety from a largely integrated principle in Qing, which bridged the gaps between filiality and loyalty to the emperor and between personalized morality and imperial state legitimacy, to divergent new interpretations of filial piety, including the individualist filial piety, nationalist filial piety, legal filial piety, and sentimental filial piety. Each new interpretation inherits only part of its original meaning and incorporates newly introduced legal knowledge of legal equality and property ownership. The article concludes that various, sometimes contradictory interpretations of filial piety indicate the Republican legal reforms as an in-between, dynamic spectrum of legal change with vigorous negotiations among different legal actors and knowledge regimes.

Human Rights at the Edges of Late Imperial Britain: The Tyrer Case and Judicial Corporal Punishment from the Isle of Man to Montserrat, 1972–1990 (Christopher Hilliard & Marco Duranti) [OPEN ACCESS]
DOI 10.1017/S0738248023000494 
Abstract:

In Tyrer v. United Kingdom (1978), the European Court of Human of Human Rights ruled that judicial corporal punishment contravened Article 3 of the European Convention on Human Rights, which proscribed “degrading treatment or punishment.” The case unfolded at a formative moment in British legal activism, as left-wing civil-liberties lawyers who had been wary of human rights discourse began taking cases to Strasbourg. The case also involved tactical challenges for British politicians and government lawyers. The case originated on the Isle of Man, which is close to the British mainland but constitutionally not part of the United Kingdom: it is a “crown dependency” with its own executive, legislature, and judiciary, and it persisted with judicial corporal punishment long after the practice had been abolished in Great Britain. By convention, the British government respected the island's laws and criminal-justice policies, but Britain was responsible for the island's compliance with international agreements—including the European Convention on Human Rights. How the British government dealt with the Isle of Man during and after the litigation had direct implications for a host of other small territories in what remained of the British empire—in particular, Britain's remaining Caribbean territories. The Tyrer case's protracted endgame was an object lesson in how much Britain's “unwritten” constitution depends on negotiation, manipulation, and avoiding the overt exercise of powers that might crumble upon use.

An Instrument of Military Power: The Development and Evolution of Japanese Martial Law in Occupied Territories, 1894–1945 (Kelly Maddox) [OPEN ACCESS]
DOI 10.1017/S0738248023000524 
Abstract:

The Imperial Japanese Army imposed martial law (gunritsu) in areas occupied during each of the full-scale conflicts it fought between 1894 and 1945. This article traces changes and continuities in the purpose, function, and content of martial law during the First Sino-Japanese War, the Russo-Japanese War, and the Asia-Pacific War to advance our historical knowledge of a much-understudied aspect of Japanese warfare. In so doing, it details the development and evolution of martial law as an instrument of military power showing how regulations were also influenced by and, therefore, tended to reflect the different wartime priorities and macro-level policies of the (military) leadership. It also highlights that the character of martial law remained largely unchanged and reveals that many of the legal practices utilized during the Asia-Pacific War were rooted in earlier conflicts. It ultimately argues, however, that wartime context and immediate military objectives took precedence over any longer-term political ambitions in Asia and, more crucially, over the welfare of civilians under occupation.

“Above the Written Law”: Iran-Contra and the Mirage of the Rule of Law (Alan McPherson)
DOI 10.1017/S0738248024000063
Abstract:

Why have scandalous sprees of lawbreaking by U.S. government officials proven so seductive yet so difficult to prosecute? This article takes the Iran-Contra scandal of the Reagan–Bush era as an instructive case study and red flag in the attitudinal erosion of the belief in the rule of law among American conservatives. Before the scandal broke, officials and legal counsels willfully mis-interpreted a clear prohibition to fund counter-revolutionaries and fabricated a post-facto presidential permission in order to sell weapons to Iran without congressional oversight. Congress's assumption that government officials would obey its statutes resulted in neither wrongdoing being punishable by criminal sanctions. Conservatives therefore argued that ends justified neglecting certain laws while also denying they had broken any laws. Prosecutors found themselves compelled to prosecute Iran-Contra's defendants over more prosaic crimes such as lying and stealing rather than more abstract and damaging ones. President George H. W. Bush's pardon of Iran-Contra defendants contributed to an impunity that further eroded the American rule of law to this day.

Read the full issue here.