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Female Perseverance in the Courtroom: Gendered Litigation Patterns in Early Modern Brabant and Limburg (Klaas Van Gelder) [OPEN ACCESS]
DOI 10.1017/S0738248026101862
Abstract:
This article contributes both methodologically and substantially to the debates on uses of justice in early modern Europe and, more specifically, about how and to what extent women asserted their rights in the courtroom. The approach is quantitative, with an analysis involving three courts in the duchies of Brabant and Limburg during the seventeenth and early eighteenth centuries: the princely Council of Brabant as well as the local aldermen’s benches of the towns of Vilvoorde and Tienen. Systematically determining the proportion of women at the beginning of court cases (through the court rolls and distribution books) and comparing it to the proportion at the end of the proceedings (through the judgment books) reveals remarkable gender patterns: When women decided to go to court, they were more likely than men to litigate until a final judgment was rendered. Moreover, they sued on a narrower range of issues than men, with a preponderance of cases on inheritance, annuities, and debts. The explanation for this perseverance in court may be that women were less able to use informal forums for conflict resolution, or—more likely based on the sources that form the basis of this contribution—that they experienced a greater need to prove their rights than men.
From Exclusion to Protection: Chinese Merchant Capital in the Philippines Under US Law and Empire, 1921–1926 (Jilene Adelina Chan Chua) [OPEN ACCESS]
DOI 10.1017/S0738248026101837
Abstract:
Scholarship about the Chinese Question has largely understood it as a “coolie” question, but what if it was reframed in terms of merchants? Well-studied US anti-Chinese laws like the 1882 Chinese Exclusion Act targeted working-class rather than elite Chinese, like merchants and students. But in 1921, the US-controlled Insular Government in the Philippines enacted a statute known as the Chinese Bookkeeping Act (Act No. 2972), marking a moment when US Chinese exclusion laws were directed toward businessowners. The act banned Chinese-language record-keeping and affected merchants ranging from small storeowners to multi-millionaire tycoons. A group of Chinese merchants in the Philippines sued the colonial government and appealed their case to the US Supreme Court, which ruled the Bookkeeping Act unconstitutional in 1926. For the “coolie” Chinese question, the US Supreme Court said “yes” to exclusion, but for the merchant Chinese question, the Court said “no.” The Court’s rejection of a merchant Chinese exclusion became part of the Philippines’ transformation into a US colony. In relation to a patriotic Filipino capital and unmarked Euro-American capital, Chinese capital won rights even as it was framed within US law as “alien” by American and Filipino judges and politicians and, surprisingly, by the Chinese merchants themselves.
Keeping It (Too Much) in the Family: Annulment by Reason of Affinity in Eighteenth-Century Venice (Celeste McNamara) [OPEN ACCESS]
DOI
Abstract:
Although divorce was increasingly available through religious and civil courts in 18th-century Europe, the Catholic Church still considered marriage indissoluble. Thus, the only legal route out of a marriage was annulment. Historians have noted several strategies for annulments in premodern Europe, most often claims of lack of consent. One less common but interesting way to seek annulment was to claim affinity by fornication, in which one spouse claimed a premarital sexual relationship with a close relative of the other. Couples could also make a similar claim of a violation of public honesty, in which a person was originally betrothed to one person but then married their close relative. Both constituted impediments to marriage according to canon law. In 18th-century Venice, the Patriarchal tribunal heard a steady stream of these cases. Couples, along with their families, friends, and neighbors, provided detailed testimony to the tribunal to attain annulments. This article argues that the narrative structures and testimonies in these cases demonstrate that 18th-century Venetians thought that bad marriages should not be indissoluble, in spite of the Catholic Church’s refusal to allow divorce, and were willing to push the boundaries of truth to work around the legal restrictions they faced.
Love or Law: Viking Foundations of Medieval English Dispute Settlement (Jake A. Stattel) [OPEN ACCESS]
DOI 10.1017/S0738248026101850
Abstract:
In prominent legal historical works, Michael Clanchy and Stephen D. White constructed an important paradigm for medieval dispute settlement by adapting the phrase “law and love” from the Anglo-Norman Leges Henrici Primi. Yet, rarely has this aphorism’s background been explored. This article argues that “love or law” has roots in Viking-Age Scandinavia, where this Old Norse terminology represented a unique dynamic of dispute resolution revolving around harsh “law” pressuring parties to make “love” settlements outside of court. Contrasting sharply with Anglo-Saxon disputing norms centered on formal compensation tariffs, “love or law” found its way to England’s tenth-century Danelaw, first recorded in the Wantage Code. This alliterative pair continues in English writings, while “love-days” become a major cultural feature, and more broadly, the dynamic of threateningly punitive “law” inducing “love” agreements appears in action within early common law case records. In ways that recollect Icelandic and Danelaw practices, negotiated compensation occurring “under the shadow of law” may have been a major feature of medieval English dispute as hinted by our surviving sources. Scandinavian dispute concepts, occasionally coined by unique “love or law” vocabulary, may have had a subtle yet profound influence on some of the grounding assumptions of English common law.
Filling the Legal Void: Missionaries as Legal Actors in Regulating Monogamous Unions in the Congo Free State (1885–1908) (Ilaria Masseroni) [OPEN ACCESS]
DOI 10.1017/S0738248026101916
Abstract:
In the Congo Free State, where the administration of Leopold II concentrated on economic exploitation and largely neglected family law, Belgian missionaries assumed functions the state left unattended. This article examines how they became legal actors in the regulation of marriage between 1885 and 1908, imposing monogamy as a condition of Christian and civilized life against the widespread practice of polygamy. Officiating marriages, keeping civil registers, adjudicating disputes over dowry, and organizing Catholic villages where monogamous unions were institutionalized, missionaries operated as intermediaries between the colonial administration and Congolese communities, their authority resting at once on canon law and on the practical demands of governance. Drawing on missionary periodicals, correspondence, decrees, and administrative records, the study reconstructs a legal role that has received little scholarly attention, situating it within debates on legal pluralism and vernacular imperial constitutionalism that treat law as a fluid practice articulated by diverse actors rather than a fixed body of metropolitan rules. By placing missionaries at the center of colonial lawmaking, the article shows how religion and law were interwoven in the making of the colonial state, even as local communities resisted and reshaped the norms imposed upon them. In conclusion, this study reveals the complexities of missionary involvement in colonial governance and offers new insights into the intersection of law, religion, and colonialism in Central Africa.
Law and Justice in the Court of the Marshalsea of the King’s Household, 1509–1547 (Jonathan McGovern) [OPEN ACCESS]
DOI 10.1017/S0738248026101941
Abstract:
The court of the marshalsea, which originated in the late thirteenth century, exercised jurisdiction over a circular area of twelve miles’ radius centered on the king’s current residence. This article offers the first scholarly discussion of this mysterious court in the reign of Henry VIII. It begins by discussing the court’s criminal jurisdiction and its judicial procedure in felony cases, explaining the significance of a 1542 statute that expanded and clarified its jurisdiction over serious crimes committed within the palace precinct. The article then analyzes the court’s civil jurisdiction and suggests reasons why its officers may have been willing to stretch jurisdictional rules in cases of trespass. Next, the article discusses what is known about the personnel of the court, charting the rise of the under-steward of the marshalsea (referred to as steward from 1539) as its chief controlling officer. I show that by 1542, the court’s jurisdiction had become trifurcated into a plea side, an rdinary criminal side, and a “palace” criminal side. Reforms to the court in the reign of Henry VIII illustrate a general process of judicial regularization that occurred in the early sixteenth century. The regularization of legal institutions during Henry’s reign was a “reformation from within” that promised to be far less destructive than the “reformation from without” forced on the marshalsea and other legal institutions under the Stuarts.
The Founding as Ideology (Aaron Hall) [OPEN ACCESS]
DOI 10.1017/S0738248026101886
Abstract:
The “Founding” is a keyword in the United States’ constitutional vocabulary. Across popular politics, public law, and civic culture, it signifies a closed moment of constitutional creation—and often much more. Invocations commonly involve vague yet powerful significations about constitutional authority, memory, and meaning-making. Particularly as “originalist” judicial and academic writing leans on these submerged qualities, it is worth asking: what is the Founding? This Article proposes a conceptual answer in historical context. Through a close study of contours of antebellum constitutionalism, it argues for understanding the Founding as an ideology that committed Americans to venerate and defer to an authoritative, originary constitutional era. Forged as citizens grappled with the politics of slavery, the Founding structured language and perception, motivated action and inaction, and delimited boundaries of political possibility. This Article studies two essential sites of inculcation apart from formal power—civic ceremonies and educational practices—to sketch the structure of the constitutional Founding as ideology. Then, it outlines how that ideology authorized constitutional actions of voting, legislating, judging, protesting, and seceding. In conclusion, the Article suggests that its analysis models a broader framework for interpreting the diffuse materials of constitutional life across periodizations of constitutional history. Approaching the Founding as ideology can allow scholars to better see how its relative authority over time and the purposes to which it has been directed have shaped American constitutional experience.
Writing Women into the Constitution: Gendered Citizenship and Reproductive Autonomy in Republican China (Yu Liu) [OPEN ACCESS]
DOI 10.1017/S0738248026101801
Abstract:
This article reinterprets the constitutional history of Republican China by foregrounding women as active participants in constitution-making and critique. While the Guomindang (KMT) portrayed constitutions as instruments to conclude the Nationalist Revolution, proclaiming gender equality as already achieved and subsuming women’s rights under nationalist and eugenic imperatives, feminist actors engaged constitutional discourse as a strategic arena for political struggle. Drawing on writings, petitions, and debates from the 1930s to the 1940s, the article shows how women transformed reproductive labor, maternal welfare, and birth control into constitutional questions central to the meaning of citizenship. Through birth control clinics, Women’s Constitutional Research Associations, and lobbying for quotas, equal pay, maternity protections, and property rights, feminists treated the constitution not as a fixed text but as an opportunity to reshape institutional design and challenge structures that perpetuated gendered exclusion. Their critiques exposed the biopolitical logics embedded in eugenic policy, marriage regulation, and maternalist ideology, while their proposals articulated a competing vision of constitutionalism that sought to use legal reform as leverage for broader transformation. Situating the Chinese case alongside global examples of bottom-up constitutional engagement, the article argues that women’s activism produced a distinctly gendered form of popular constitutionalism. It highlights both the possibilities and limits of pursuing equality through constitutional reform within an ascendant party-state and underscores the enduring tension between constitutional governance and women’s reproductive autonomy.
Time Out of Joint: Raymond Carré de Malberg and the Referendum in the Public Law of the Third Republic (Amnon Lev) [OPEN ACCESS]
DOI 10.1017/S0738248026101783
Abstract:
The article examines the state theory of French public lawyer Raymond Carrré de Malberg. It argues that he responds in a highly original way to a crisis of public law government that is tied to the emergence of the social sciences and to the democratization of society. The analysis ties Carré de Malberg’s attempt to salvage the idea of public law government to his reflections on the referendum, which he will reject as incompatible with the regime of the Third Republic, only to rehabilitate it in his late work. The analysis brings to light a depletion of the ideological resources of public law government, which speaks to a European-wide crisis of public law. As we shall show, it also speaks to an overarching crisis of a bourgeois society that had channeled its power through the legislature but realized that this organ of government would not continue to be the seat of power in society.
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