OPEN ACCESS JOURNAL: C@hiers du CRHIDI 41 (2018) [Gens de robe, gens de guerre : ordre public et ordre social; Actes des Journées Internationales de Bruxelles, Société d'histoire du droit et des institutions des pays flamands, picards et wallons 2016]

(image source: ULiege)

Contents:

En mémoire de Philippe Annaert (Éric Bousmar, Stanislas Horvat, Catherine Lecomte & Emese K. E. von Boné)

De quelques aspects juridiques et sociétaux des sépultures des soldats dans l’ancienne Rome (Arnaud Paturet)
Abstract:

Despite of their military condition and the relation to death resulting from their profession, the funeral rites of Roman soldiers were similar to those of civilians as part of a unified ideology regarding death that implied that the status of tombs was unique. Graves were all considered religious places or res religiosae because they contained dead bodies. Of course mass deaths caused difficulties due to the necessity to identify each individual. Indeed, the burial process implied ideally to identificate the dead to promote his memory. The graves were usually located not far from the cantonment sites, but some deceased planned to repatriate their bodies to their homeland to facilitate family worship. Finally, soldiers who died in combat could be honored with a cenotaphium or empty tomb whose legal status remains controversial.

Rétablir l’ordre au comté de Bourgogne. L’action des réformateurs d’Eudes IV en 1337 et 1343-1344 (Sylve Le Strat-Lelong)
Abstract:

Eudes IV, at the same time duke and count of Burgundy from 1330 to 1349, instituted twice “réformateurs” in the county, judges and investigators in charge of correcting the abuses of the officers in the domain. He introduced into the province a French royal practice, which he himself used in his duchy. The judicial power of these commissioners was mainly exercised over provosts, brought to all excesses and penalized by heavy fines. It also extended to ordinary litigants and could replace that of Parliament. The operation, not only financially very profitable for the prince, also had a great symbolic load, allowing this one to assert his power in Franche-Comté in a troubled context of noble opposition. Therefore, it amply participated in the construction of the State implemented by Eudes IV in the county of Burgundy during his reign.

Recherche sur le conseiller-commissaire au parlement de Flandre (Renaud Limelette)
Quand la robe se révolte : la désobéissance des magistrats du parlement de Flandre aux ordres de Louis XIV (Sébastien Dubois)

Abstract:

After he gained an important part of the Southern Netherlands in 1668, Louis XIV created a sovereign court in Tournai to administer justice in the newly conquered territories. The court obtained the title of parliament in 1686 and its jurisdiction evolved as a consequence of the numerous wars and treaties in the late 17th and early 18th centuries. Because of the War of Spanish Succession, the parliament moved to Cambrai in 1709 and in Douai in 1714. Although the monarch had solemnly promised to maintain the local particularities in the capitulation acts of the main cities, he insidiously attempted to introduce the French legal rules into the judicial practice of the northern territories of the kingdom. Justice is a fundamental institution allowing gradually the assimilation of conquered territories, just as army, administration or Church. Thus the criminal ordinance of 1670 was sent to the court in order to amend the rules of criminal procedure and other statutes came to impose the repressive policies to be followed. Historiography generally presents the parliament of Flanders’ magistrates as obedient to the royal power. However judicial archives revealed two examples of manifest disobedience to Louis XIV’s orders. Applying the ancient customs of the Netherlands is here a good way for the councillors to give priority to their financial interests.

Les différents types de fief dans la principauté de Liège suivant Charles de Méan (Benoît Lagasse)

Abstract:

This text speaks about the different kinds of feudal goods in the principalty of Liège. To achieve this goal, the two first observationes of Charles de Méan’s biggest book are analyzed. These observationes are then compared with other sources of the law of Liège. Finally, the law of Liège is compared with the law of other countries within the same geographic area in order to determine the specificity of the law of Liège.

Joseph-Marie Portalis (1778-1858) et la liberté de la presse vers 1820 (Raphael Cahen)

Abstract:

Joseph-Marie Portalis (1778-1858) had been a diplomat, a judge and a deputy. Since his emigration in the Holstein, he was enthusiast about German philosophy and Kantianism. As a moderate conservative he was in favour of reform respecting the spirit of the time and the French Charte of 1814. That can be well analysed regarding the law upon the freedom of the Press of 1828 which carry his name.

La neutralité permanente de la Belgique et l’histoire du droit international : quelques jalons pour la recherche (Frederik Dhondt)

Abstract:

The mandatory status of Belgium’s “permanent” neutrality (1830-1919) is an object of legal as well as historical research. Narratives in both disciplines often link an attitude of abstention in armed conflict and a certain impetus for the advancement of the cause of international law and institutions. However, any analysis should start from the conceptual pedigree of permanent neutrality. The instauration of a “permanent” neutrality cannot be seen but as a derogation, or at best a transformation of the concept of “voluntary” neutrality, established in early modern state practice. Neutrality cannot be conceived without an ongoing conflict between two third states. Rendering the restrictions of voluntary neutrality permanent, even when no conflict between third parties is around, equals restraining the sovereign freedom of an actor in the international system. Abstention, impartiality and military credibility were imposed on Belgium. As a counterparty, the Great Powers undertook a collective guarantee. In reality, only the United Kingdom displayed its determination to intervene in case of a violation of Belgium’s (European) territory. The vague and uncertain legal aspects (joint or individual guarantee, limited to civilised nations ?) and the movements of a political chessboard in constant flux fragilized what should have been a protection or a certainty, rather than a source of worries. Diplomatic practice should be reinterpreted using this legal, conceptual and historical explanatory grid, close to the actors’ preoccupations.

De la caserne aux maisons closes : la réglementation de la prostitution au profit de l’institution militaire (1900-1939) (Hélène Duffuler-Vialle)

Abstract:

From the Revolution to 1946, France was reglementarist, i.e. prostitution, thought of as a necessary evil, was regulated by local regulations, harmonized by ministerial injunctions. While prostitution clients are generally not subject to any specific treatment by the regulatory authority, military clients are an exception. Indeed, some regulatory provisions concern them. This clientele is considered particularly vulnerable in a context of Nation in Danger where syphilis represents a national risk. At the end of the 19th century and until 1916, a policy of preventive sex education was organized among soldiers, where chastity was presented as the best guarantee. Pragmatically, the brothel is considered the best way to control the sexuality of soldiers and prevent them from contracting venereal diseases. Thus, on one hand, the military institution fights against clandestine prostitution and, on the other hand, obstructs the establishment of an abolitionist or semi-abolitionist system in the few cities that try to install it. Regulation was adapted to military needs and from 1916 onwards, there was no longer any question of revising the system but of strengthening its prophylactic effectiveness. In this context, the military authority is occasionally called upon to deal with specific legal issues : is there a right of access to brothels for the military ? Do women in prostitution have the right to refuse clients ? What about racial discrimination ?

This issue contains the peer reviewed versions of the papers presented at the International Days 2016 of the Society for Legal and Institutional History of Flanders, Picardy and Wallonia, organised by the Committee for Legal History of the Royal Flemish Academy of Belgium for Sciences and the Arts, the Royal Military School, the Vrije Universiteit Brussel (CORE), the Université libre de Bruxelles (CHDAJ) and the Université Saint-Louis (Centre de Recherches en Histoire du Droit et des Institutions), see earlier on this blog.

The fulltext of all articles can be consulted here.

(source: Standen en Landen blog)

CALL FOR PAPERS: American Society for Legal History Annual Meeting (21-24 November 2019, Boston) (DEADLINE: 15 March 2019)

(Source: ASLH) 

We learned of the Call for Papers for ASLH’s annual conference. Here the call:

Call for Papers

The Program Committee of the ASLH invites proposals for complete panels and individual papers for the 2019 meeting to be held November 21-24 in Boston. Panels and papers on any facet or period of legal history from anywhere in the world are welcome.  We encourage thematic proposals that transcend traditional periodization and geography.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows and scholars from abroad.

 Panel proposals should include the following: a c.v. with complete contact information for each person on the panel, including chairs and commentators; 300-word abstracts of individual papers; and a 300-word description of the panel.

The Program Committee also welcomes other forms of structured presentation for a 90-minute slot, including author-meets-reader (up to 2 book authors, with 2-3 commentators), lightning round (1-2 chairs, 8-12 presenters for a few minutes each on projects in a related field at any stage of development), skills/pedagogical workshop (chair, 3-4 presenters), or roundtable format (1-2 chairs, 3-4 presenters). Sufficient information following the general guidelines for panel proposals should be provided for the Committee to assess the merits of the presentation.

Individual paper submissions should consist of an abstract, a draft paper (where possible), and a c.v. Given the number and high quality of panel and other complete sessions submitted, individual papers are much less likely than full sessions to be accepted.  Would-be individual paper submitters are encouraged to connect with other scholars (through H-Law, etc.) to coordinate the submission of complete session proposals.

The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. Please provide a program title, the intended length of program, a program description, a c.v. and contact information for each presenter, and any information technology requirements. The Program Committee is available to consult with organizers of such symposia as they develop their proposal.

As a general matter, we will not be able to accommodate special scheduling requests, so prospective presenters, chairs, and commentators at the main conference should plan to be available on Friday, November 22, and Saturday, November 23.  Prospective participants may submit proposals for multiple sessions, with the understanding that, absent exceptional circumstances, no individual may appear more than once on the final program in any capacity. The Program Committee strives to include as many participants as possible and will work with session organizers to identify suitable replacements for any sessions from which a participant has to withdraw.

The Program Committee encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

The members of the Program Committee are Ari Bryen, Lyndsay Campbell, Li Chen, Kristin Collins, Hendrik Hartog, Kenneth Mack, Renisa Mawani, Sara McDougall, Richard Ross, and Michael Willrich. The co-chairs of the Program Committee are Professors Michelle McKinley (michelle@uoregon.edu) and Daniel J. Sharfstein (daniel.sharfstein@vanderbilt.edu).

All program presenters must be current members of the Society by the date of the Annual Meeting. All proposals must be submitted through the ASLH website, which will be available to take submissions shortly. Please visit http://aslh.net for updates and additional information.

The deadline for submissions is March 15, 2019.

Host an ASLH Conference

The American Society for Legal History’s Standing Committee on Annual Meetings invites proposals to host or sponsor (in full or in part) a future Annual Meeting. Interesting venues, affordable hotel rates, tax exemption for out-of-state non-profits and reasonable funding support for meeting events are highly favored in site selection. Contact the committee’s chair, Joanna Grisinger at Northwestern University, by <email>

More information here

SSRN PAPER: Matthew C. MIROW on Léon Duguit and the Social Function of Property in Argentina

(image source: IIDA)

Abstract:

Despite its early introduction to Argentina in 1911, the doctrine of the social function of property was not quickly appropriated into the Argentine legal system. Only after a period of more than thirty-five years did this concept of property find expression in this country through the Constitution of 1949, the Peronist constitution drafted under the guidance of the Arturo Enrique Sampay. Duguit's writings formed part of a broader understanding of the social function of property that was informed by various scholars and sources, and particularly by works on Christian humanism and the social doctrine of the Roman Catholic church. Although mentioned in the debates of the Argentine Constitution of 1949, Duguit was only one of a variety of sources employed by advocates of the doctrine, and his direct influence in the area was significantly less than one might expect considering the historical link between his lectures in Buenos Aires and the creation of the doctrine.

Read the paper here.

(source: Law & Humanities Blog)

BOOK: Donald R. KELLEY, Historians and the Law in Postrevolutionary France [Princeton Legacy Library] (Princeton: Princeton University Press, 2016 [1984], 196 p. ISBN 9780691639970, 24 GBP

(image source: Princeton)

Book abstract:

In the Romantic fascination with Europe's past, scholars of Restoration France proposed to reconstruct their national traditions with more attention to social and cultural factors than older-fashioned political historians had shown. Donald R. Kelley examines a major feature of this new history": the convergence of the profession of law and the study of history between 1804 and 1848.

On the collection:

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

More information with the publisher.

BOOK: Rémi FABRE et al., eds., Les défenseurs de la paix 1899-1917 (Rennes: Presses Universitaires de Rennes, 2018). ISBN 978-2-7535-7546-2, €35.00

(Source: PUR)

Presses Universitaires de Rennes has published a book on the défenseurs de la paix in the two decades before the outbreak of World War I.

ABOUT THE BOOK

Les défenseurs de la paix apparaissent comme un élément essentiel de l’histoire politique et intellectuelle du début du XXe siècle mais aussi de la Grande Guerre. Cet ouvrage s’efforce de les « retrouver » en présentant autour d’eux une pluralité d’éclairages, et en restituant la pleine dimension internationale de leurs activités. Les limites chronologiques choisies permettent d’envisager tant la menace de la guerre dans la paix que l’espérance de la paix dans la guerre. Au tableau d’un « avant-guerre » glissant inexorablement vers l’abîme est préférée une présentation moins téléologique, qui prend davantage en compte les forces qui œuvrèrent au maintien de la paix.

ABOUT THE EDITORS

Rémi Fabre est professeur émérite à l’université Paris-Est Créteil, CRHEC.

Thierry Bonzon est maître de conférences à l’université Paris-Est Marne-la-Vallée, ACP.

Jean-Michel Guieu est maître de conférences à l’université Paris-1 Panthéon-Sorbonne, SIRICE.

Elisa Marcobelli est docteur en histoire contemporaine (EHESS).

Michel Rapoport est professeur honoraire à l’université Paris-Est Créteil, CRHEC.

The table of contents can be found here

More information here

JOURNAL: Comparative Legal History VI (2018), No. 2

(image source: Routledge)

Contents:
Editorial (Heikki Pihlajamäki & Matthew Dyson)

Comparative cultures of accountability: the Scottish Exchequer and the Audit Chamber of Holland between 1477 and 1515 (Maurits den Hollander) (open access)
Abstract:

This comparative paper describes the spread of a new culture of probatory accountability in North-western Europe through the study of the Scottish Exchequer and the Audit Chamber of Holland between 1477 and 1515. It allows to re-evaluate persisting views of an inefficient and archaic Scottish Exchequer, as opposed to the ‘Weberian ideal’ of the Burgundian bureaucracy. Both institutions primarily had a fiscal goal, the auditing of accounts, while archival and judicial tasks supported this process. Through a study of the format of important series of these accounts as well as their marginalia, it has been revealed that by 1515 the daily practices surrounding the auditing process in Scotland and Holland showed important similarities. These cases serve to portray that through the auditors’ work, a new written culture of accountability spread among all governmental officials in either Scotland or Holland.

At the end, the creditors win: pre-insolvency proceedings in France, Belgium and the Netherlands (1807–c1910) (Dave De ruysscher) (open access)
Abstract:

In nineteenth-century France, Belgium and the Netherlands, laws imposing pre-insolvency proceedings had different goals. In a first stage, from around 1810 until about 1860, continuity of businesses in distress was not a policy consideration. Rather, legislators purported to give the creditors early control over the insolvent’s estate, which was most often liquidated. Debtor-in-possession features were mostly conceived of as a temporary reward for cooperation; lowered requirements for re-entry in the market after the winding-up of their business were another advantage for cooperating debtors. This was the same in the three aforementioned countries. In the 1870s and 1880s, the French and Belgian legislators created new pre-insolvency proceedings, which allowed debtors to keep their assets. In the Netherlands, fixed-term moratoriums prevented such an approach. Yet, also in Belgium and France, the exemption of secured creditors hampered the feasibility of compositions, and a goal of saving firms in financial peril.

The long reach of English law: a case of incidental transplantation of the English law concept of vicarious liability into Thailand’s Civil and Commercial Code (Adam Reekie & Srutchada Reekie)
Abstract:

Thailand’s Civil and Commercial Code, introduced in 1925, represents a voluntary major legal transplantation by which Thailand adopted a complete new code based on foreign models. This article traces the development of Section 425, which confers liability on employers vicariously for the wrongful acts of their employees, and reveals that the concepts present in the stated sources of the provision do not match those represented by the section in its final form. Rather, the concepts hint at another source, unstated and hitherto uncredited as a source of this part of the Code, the English law doctrine of vicarious liability. This conclusion sheds new light on the complex process of legal transplantation and legal reform in Thailand during the early twentieth century, challenging the orthodox view, and has wider implications for those considering the societal factors which guide and shape legal reform.

Techniques of empire by land law: the case of the Italian colonies (nineteenth and twentieth centuries) (Elisabetta Fiocchi Malaspina)
Abstract:

Land ownership and property registration played a special role in Italian colonialism, in which public and private interests mingled amidst the ambitions of colonising and economic exploitation. Through the legal system of land registration one can examine how European states, here in the context of Italy, used their colonies to adapt and experiment with the legal frameworks of land ownership. As will be shown in the article, what happened in the colonies might have been impossible to carry out in the European context. In the colonies the options varied between implementing a particular European land law used by a European state in its colonies, duly modified or updated, and a compromise between the already-existing land ownership structure and the European land law. The knowledge acquired by implementing different legal frameworks of landownership and land registration in the colonies conversely influenced the legal systems applied in continental Europe.

Book reviews:
System, order and international law: the early history of international legal thought from Macchiavelli to Hegel (Frederik Dhondt)

The causes of war, volume II: 1000 CE to 1400 CE (Jenny Benham)

Byzantine Legal Culture and the Roman Legal Tradition, 867-1056 (Barbara Biscotti)

Conceiving a nation, Scotland to AD 900 (Anthony Smart)

BOOK: Antoine BOULANT, Le tribunal révolutionnaire - Punir les ennemis du peuple (Paris: Perrin, 2018). ISBN 9782262070199, € 23.00

(Source: Mollat)

Perrin has published a new book on the Tribunal révolutionnaire de Paris (Revolutionary Period).

ABOUT THE BOOK

Le 10 mars 1793, la Convention nationale institue un tribunal criminel destiné à réprimer « toute entreprise contre-révolutionnaire » et « tout attentat contre la liberté, l'égalité, l'unité, l'indivisibilité de la République ». Installé dans le Palais de justice de l'île de la Cité, il fait comparaître plus de quatre mille personnes pendant seize mois, et en condamne près des deux tiers à la peine capitale. Le Tribunal révolutionnaire de Paris est sans conteste la plus célèbre des juridictions d'exception qui furent mises en place sous la Terreur pour punir les ennemis - réels ou supposés - de la jeune République. Dominé par la figure de son accusateur public, Fouquier-Tinville, il est devenu le symbole de l'arbitraire politique et judiciaire du jacobinisme au pouvoir. S'appuyant sur les travaux les plus récents et de nombreux documents inédits, le présent ouvrage renouvelle en profondeur nos connaissances sur son histoire. Tout en proposant un récit détaillé des grands procès politiques, en particulier ceux de Marie-Antoinette, des Girondins et de Danton, Antoine Boulant offre une analyse de la composition, du fonctionnement et de la logique d'une juridiction entièrement soumise au pouvoir politique, progressivement entraînée dans une spirale meurtrière.

ABOUT THE AUTHOR

Docteur de l'université Paris-Sorbonne et titulaire d'une thèse consacrée aux agents secrets du ministère des Affaires étrangères sous la Terreur, Antoine Boulant est l'auteur de nombreux travaux relatifs à l'histoire politique, institutionnelle et militaire du XVIIIe siècle, de la Révolution et de l'Empire. Il a notamment publié, avec Arnaud de Maurepas, Les Ministres et les Ministères du siècle des Lumières.

More information here

CALL FOR APPLICATIONS: Stanford Center for Law and History, Fellow (DEADLINE: 15 February 2019)

(Source: Stanford Law)

We learned of an application for a position as Fellow at Stanford’s Center for Law and History. Here the application:

Stanford Law School seeks to hire the best talent and to promote a safe and secure environment for all members of the university community and its property. To that end, new staff hires must successfully pass a background check prior to starting work at Stanford University.

The Center:

The Stanford Center for Law and History, directed by Professor Amalia Kessler, brings together faculty and students from across Stanford University’s many schools and departments (and beyond) to participate in a broad range of conferences, workshops, and lectures devoted to examining the multifaceted interrelationships between law and history (without geographic, temporal, or other subject-area limitations). For details of the Center’s various programs, please see: https://law.stanford.edu/stanford-center-for-law-and-history/ 

The Goal:

This fellowship is intended for people who have recently completed (or will soon complete) their training in law and history and who seek thereafter to pursue their first tenure-track academic position at the intersection of the two fields.

The Fellowship:

The Stanford Center for Law and History is a residential fellowship that provides an opportunity to conduct research in the dynamic environment of Stanford University. We prefer two-year fellowships to help the fellow complete a significant body of independent scholarship, but we are willing to consider one-year terms. We expect that fellows will dedicate most of their time to pursuing their proposed research projects, and the fellowship is designed to ensure meaningful mentorship from faculty within both the Law School and the History Department. Fellows will also devote some time to organizing and implementing other Center activities, including an ongoing workshop series and an annual conference. The fellowship provides a significant opportunity to become part of a lively law-school-wide community of individuals with an interest in academia through attending weekly faculty lunch seminars and by participating in activities with the other fellows at Stanford Law School to learn more about one another’s scholarship and about academic life more generally. Fellows are also encouraged to attend and participate in the broad range of lectures and workshops available within the broader university, including inter alia, the History Department and the Stanford Humanities Center.

For the 2019-2020 fellowship, we will provide a workspace, a competitive salary, and a generous benefits package. Applicants who have completed (or are soon to complete) both a J.D. and a Ph.D in history are strongly preferred. The fellowship is expected to start around August 1, 2019, but there is some flexibility as concerns the exact start date.

The Application Process:

All applicants should apply through the Stanford Careers website (direct link: http://m.rfer.us/STANFORDLMV3oc) and should include the following: (1) a CV; (2) a sample of academic writing; (3) a research proposal of no more than five double-space pages (briefly outlining past work but focused primarily on research to be undertaken during the fellowship); and (4) official transcripts of all academic work pursued in college, as well as in graduate programs. In addition, (5) applicants should provide two letters of recommendation, to be emailed directly by the recommenders themselves to Cheyenne Pico at cpico@law.stanford.edu

All applications should be submitted no later than Friday, February 15, 2019.

Stanford University is an Equal Opportunity Employer.

Consistent with its obligations under the law, the University will provide reasonable accommodation to any employee with a disability who requires accommodation to perform the essential functions of the job.

More information here

JOURNAL: Journal of Modern Intellectual History, Forum "Law, Empire and Global Intellectual History" (July 2018)

(image source: Cambridge Core)

Introduction (Mililnda Banerjee & Kersten Von Lingen, "Law, Empire and Global Intellectual History: An Introduction"):

In recent years, there has been a deepening convergence between scholarship on global intellectual history and on legal history. To take just one example, a recent book on international law, by Arnulf Becker Lorca (2014), carries “global intellectual history” in its subtitle—a stance related to the author's emphasis on the constitutive role in the field of non-European legal actors.1 A sustained reflection on the convergence between legal studies and global intellectual history, however, still remains a desideratum, at least in the sense that we do not yet have even a basic platform where scholars with different space/time and (trans-) cultural specialization come together to reflect on how studying legal concepts gains from global intellectual history. This forum, which results from a conference organized at Heidelberg University in 2016, attempts a preliminary intervention here. The introductory remarks are not meant to be conclusive; they invite responses.

"Property and Political Norms: Hanafi Juristic Discourse in Agrarian Bengal" (Andrew Sartori)

This article explores the reception of discourses about land and property in Islamic jurisprudence in colonial Bengal. I argue that Hanafi fiqh provided a sophisticated conceptual repertoire for framing claims to property that agrarian political actors in Muslim Bengal drew upon. Yet the dominant framework for understanding property claims in postclassical jurisprudence was ill-fitted to claims of the kind that agrarian movements in colonial Bengal were articulating. As a result, twentieth-century agrarian movements in the region spoke the language of fiqh, but nonetheless inhabited the ideological landscape of a much broader twentieth-century world of political aspirations and norms.

"Sovereignty as a Motor of Global Conceptual Travel: Sanskritic Equivalents of “Law” in Bengali Discursive Production" (Milinda Banerjee)

How may one imagine the global travel of legal concepts, thinking through models of diffusion and translation, as well as through obstruction, negation, and dialectical transfiguration? This article offers some reflections by interrogating discourses (intertextually woven with Sanskritic invocations) produced by three celebrated Bengalis: the nationalist littérateur Bankimchandra Chattopadhyay (1838–94), the Rajavamshi “lower-caste” peasant leader Panchanan Barma (1866–1935), and the international jurist Radhabinod Pal (1886–1967). These actors evidently took part in projects of vernacularizing (and thereby globalizing through linguistic–conceptual translation) legal–political frameworks of state sovereignty. They produced ideas of nexus between sovereignty, law, and “divine” lawgiving activity, which resemble as well as diverge from notions of political theology associated with the German jurist Carl Schmitt. Simultaneously, these actors critiqued coercive impositions of state-backed positive law and sovereign violence, often in the name of globally oriented concepts of “ethical”/natural law, theology, and capacious forms of solidarity, including categories like “all beings,” “self/soul,” “humanity,” and “world.” I argue that “sovereignty,” as a metonym for concrete practices of power as well as a polyvalent conceptual signifier, thus dialectically provoked the globalization of modern legal intellection, including in the extra-European world.

"Legal Flows: Contributions of Exiled Lawyers Toward the Concept of ‘Crimes Against Humanity’ During the Second World War" (Kerstin Von Lingen)

This article addresses the normative framework of the concept of “crimes against humanity” from the perspective of intellectual history, by scrutinizing legal debates of marginalized (and exiled) academic–juridical actors within the United Nations War Crimes Commission (UNWCC). Decisive for its successful implementation were two factors: the growing scale of mass violence against civilians during the Second World War, and the strong support and advocacy of “peripheral actors,” jurists forced into exile in London by the war. These jurists included representatives of smaller Allied countries from around the world, who used the commission's work to push for a codification of international law, which finally materialized during the London Conference of August 1945. This article studies the process of mediation and the emergence of legal concepts. It thereby introduces the concept of “legal flows” to highlight the different strands and older traditions of humanitarian law involved in coining new law. The experience of exile is shown to have had a significant constitutive function in the globalization of a concept (that of “crimes against humanity”).

"Liberalism, Cultural Particularism, and the Rule of Law in Modern East Asia: The Anti-Confucian Essentialisms of Chen Duxiu and Fukuzawa Yukichi Compared" (Kiri Paramore)

How and why are universalist modes of political thought transformed into culturally essentialist and exclusionary practices of governance and law? This article considers this question by analyzing the interaction between Confucianism and liberalism in East Asia. It argues that liberalism, particularly as it was used in attacking Confucianism, was instrumental in embedding ideas of cultural particularism and cultural essentialism in the emergence of modern political thought and law in both China and Japan. Both Confucianism and liberalism are self-imagined as universalist traditions, theoretically applicable to all global societies. Yet in practice both have regularly been defined in culturally determined, culturally exclusivist terms: Confucianism as “Chinese,” liberalism as “British” or “Western.” The meeting of Confucian and liberal visions of universalism and globalism in nineteenth-century East Asia provides an intriguing case study for considering the interaction between universalism and cultural exclusivism. This article focuses on the role of nineteenth-century global liberalism in attacks upon the previous Confucian order in East Asia, demonstrating the complicity of liberalism in new, culturally essentialist and particularist constructions of governance and law in both China and Japan.

"Autonomy and Decentralization in the Global Imperial Crisis: The Russian Empire and Soviet Union in 1905–1924" (Ivan Sablin & Alexander Semyonov)

This article brings the case of imperial transformation of the Russian Empire/Soviet Union into global discussions about empire, nationalism, and postimperial governance, and highlights the political and legal imaginaries that shaped this transformation, including their global and entangled character. This article argues that the legal and political discourses of decentralization, autonomism, and federalism that circulated at the time of the imperial crisis between the Revolution of 1905 and the adoption of the Soviet Constitution in 1924 contributed to the formation of an ethno-national federation in place of the Russian Empire, despite both the efforts of the Bolsheviks to create a unitary state, and the expectations of a different future among contemporary observers. At the same time, the postimperial institutional framework became a product of political conjunctures rather than the legal discourse. Its weakness before the consolidating party dictatorship made the Soviet Union a showcase of sham federalism and autonomism.

"Jewish Modern Law and Legalism in a Global Age: The Case of Rabbi Joseph Karo" (Roni Weinstein)

During the late sixteenth and early seventeenth centuries, Rabbi Joseph Karo composed two major Jewish codes of law: the Beit Yosef, and its abridged version, Sulchan ‘Aruch. Though several centuries of legal discussion and scholarship have passed since their publication, these double codes of law were never superseded. This codification project defined the axial place of law in Jewish tradition. I argue that it responded to changes in legal processes and the enforcement of law that simultaneously transformed early modern Europe and the Ottoman world. Transcontinentally connected changes in political institutions—the formation of a centralized Islamic empire in the Ottoman case, and the formation of centralized states in Europe—dramatically redefined the role of law and legal codification in the forging of state power and community identities. The resultant belief among Sephardi rabbis, including Karo, that changes in Jewish legal tradition were now needed, prompted a redefinition of Jewish legal culture, whereby law (a gradually centralized conception of it) began to be seen as the foundation of Jewish religious heritage and ethnic identity. Despite the absence of state backing, early modern transformations in Jewish law were thus part of comparable changes taking place in the European and Islamic legal worlds.

Find the full issue on Cambridge Core.

(source: ESILHIL Blog)

BOOK: Jean HO, State Responsibility for Breaches of Investment Contracts (Cambridge: Cambridge University Press, 2018). ISBN 9781108415842, £ 95.00

(Source: Cambridge University Press)

Cambridge University Press has published a book on the history of the law of state responsibility for breaches of investment contracts.

ABOUT THE BOOK

There is a wealth of material that shapes the law of State responsibility for breaches of investment contracts. First impressions of an unsettled or uncertain law have thus far gone unchallenged. But unchallenged first impressions point to the need for a detailed study that investigates and analyses the sources, the content, the characteristics, and the evolution of this law. The argument at the heart of this monograph is that the law of state responsibility for breaches of investment contracts has carved a unique and distinct trajectory from the traditional route for the creation of international law, developing principally from arbitral awards, and mimicking, to a considerable extent, the general international law on the protection of aliens and alien property. This book unveils the remarkable journey of the law of state responsibility for breaches of investment contracts, from its origins, to its formation, to its arrival at the cusp of maturity.

Carves out the special law on investment contract protection from the general law of state responsibility, enabling participants and observers of international investment law to apply a bespoke body of rules to contractual disputes between foreign investors and host states

Explores unknown origins of contractual protection in international law through original archival research, showing how history exerts an important influence on the modern practice of investment contract protection

Discusses the future of investment contract protection from legal and political developments providing alternative perspectives on the legitimacy and longevity of international investment law

ABOUT THE AUTHOR

Jean Ho, National University of Singapore

Jean Ho, FCIArb, is Assistant Professor of Law at the National University of Singapore, where she lectures and supervises on diverse aspects of international investment law. Prior to academia, Dr Ho practiced in investor-state dispute settlement. She is a Member of the Investment Treaty Forum of the British Institute of International and Comparative Law, and an Expert on the UNIDROIT Working Group on Land Agricultural Investment Contracts. Dr Ho is also a co-author of International Investment Law and Arbitration: Commentary, Awards and Other Materials (Cambridge, 2018).

TABLE OF CONTENTS

1. Power and principle in the origins of contractual protection

2. Arbitral awards and the generation of international law

3. State responsibility and the core standard of treatment

4. State responsibility and expropriation

5. State responsibility and internationalisation

6. The emerging international law on investment contract protection

7. The future of international investment contract claims.

More information here

CONFERENCE: Politics and the Histories of International Law (Heidelberg, 15-16 February) – Programme

(Source: MPI for Comparative Public Law and International Law)

The Max Planck Institute for Comparative Public Law and International Law has published the programme for the conference Politics and the Histories of International Law. More information can be found here 

15 – 16 February 2019, MPIL, Heidelberg, Germany

Time	Friday, 15 February 2019
08.00-09.00	Registration and Coffee
09.00-10.00	Welcome Address by Anne Peters, Randall Lesaffer and Emmanuelle Tourme Jouannet Keynote Opening by Sundhya Pahuja
10.00-10.30	Break
10.30-12.30 Session I	Panel Ia: Slavery, Slave Trade and the Law of the Sea (Chair: Raphael Schäfer)	Panel Ib: International Law before and beyond the West (Chair: Luigi Nuzzo)	Panel Ic: Vulnerability and International Law (Chair: Robert Stendel)
	Anne-Charlotte Martineau, The Politics of Writing on Slavery and International Law	Emiliano Buis, The Politics of Anti-Politics: Mainstream Histories of International Law and the Paradox of Antiquity	León Castellanos-Jankiewicz, Nationalism and Early International Right
	Parvathi Menon, Protecting Empire in Slave Colonies	Salina Belmessous,  Indigenous Peoples and International Law	Karin Loevy, Histories of International Law as Windows to Law’s Politics: Dicey, Humanitarianism and the Jews
	Stefano Cattelan, Law and Politics, the Genesis of the Law of the Sea	Radhika Jagtap, Developing an Anticolonial Historiography of International Law from a Social Movements’ Perspective	Momchil Milanov, One Hundred Years of Soli(dari)tude: The Making of the Refugee Status and the Politics of Humanitarianism
		Sebastian Spitra, New Narratives for a Critical History of World Cultural Heritage	Ignacio de la Rasilla del Moral, Women’s Historical Invisibility in International Law
12.30-13.30	Lunch
13.30-15.30 Session II	Panel IIa: The Politicization of Western Legal History (Chair: Miloš Vec)	Panel IIb: The Politics of Legal History in the Books (Chair: Annabel Brett)	Panel IIc: The Laws of War in Context  (Chair: Rüdiger Wolfrum)
	Jan Lemnitzer, Bringing Politics Back in: What the ‘Turn to Practice’ Means for the Writing of Histories of International Law	Paolo Amorosa, The Politics of the International Legal Canon: Revisiting the Legacy of the Carnegie Classics Series	Hirofumi Oguri, Taming Politics in the Historiographies of International Law: Between Naïve Positivism and Agnosticism
	Thibaut Fleury Graff, Henry Wheaton and the Powers of History: Justifying the Power of the US Federal Government in the 19thCentury by Rewriting the History and Contents of International Law	Julia Bühner, Let There be Light – Histories Hidden in the Shadow of Francisco de Vitoria	Rotem Giladi, Rites of Affirmation: Progress and Immanence in International Humanitarian Law Historiography
	Maria Adele Carrai, W. A. P. Martin as a Legal Historian and the Politics of History in Late Qing-China	Deborah Whitehall, The Politics of Writing the History of International Law as a Treatise	Claire Vergerio, Inventing the History of the Laws of War: The Revival of Alberico Gentili in the late 19th Century
	Angelo Dube / Lindelwa Mhlongo, The Forgotten Continent? Interrogating Africa’s Contribution to the History and Development of International Law		Amanda Alexander, The Politics of the Depoliticized Civilian
15.30-16.00	Break
16.00-18.00 Session III	Panel IIIa: The Politics of the Use of Force and the Function of Peace  (Chair: Anthony Carty)	Panel IIIb: Legitimacy, Security and Sovereignty in International Legal History  (Chair: Inge Van Hulle)	Panel IIIc: The Role of International Legal History before International Courts and Tribunals (Chair: Thomas Duve)
	John Hursh, What is a Threat to the Peace? Historical Assessment and Shifting Legal Meaning	Michael Mulligan, Politics and the Histories of International Law: International Law and the Spectre of Legitimacy	Gustavo Prieto, Mixed Claim Commissions in Latin America During the 19th and 20th Centuries
	Thilo Marauhn / Marie-Christin Stenzel, Narratives of Peace as Justifications for the Use of Force: Henry A. Kissinger and the Long Peace of the 19th Century	Ríán Tuathal Derrig, The Psychoanalytic New Haven School: A Case Study of Interwar Legal Science	Jakob Zollmann, Searching for History in Law. The Polish-German Mixed Arbitral Tribunal after 1919
	Hendrik Simon, In the Shadow of War and Order. Historical Reflections on the Interrelationship between Political and Scholarly Practices of Justifying War	Etienne Henry, Soviet Praxis of Collective Security in the League of Nations Era	Valeria Vázquez Guevara, A Critical Re-Description of the History of Truth Commissions
	Katie Szilagyi / Jon Khan, There Might Come Soft Rains: Technological Determinism, International Law, and the Age of Intelligent Machines	Mikhail Antonov, The Rise of the Sovereignty Argument in Russian Approaches to International Law	Michel Erpelding, International Law and the European Court of Justice: The Politics of Avoiding History
20.00-23.00	BRILL Conference Dinner with Keynote by Jacob Katz Cogan
Time	Saturday, 16 February 2019
08.30-09.00	Coffee
09.00-11.00	Plenary Session (Chair: Randall Lesaffer) Nehal Bhuta, Histories of/in International Law  Jean d’Aspremont, Critical Attitudes in Historiographical International Legal Studies Aoife O’Donoghue / Henry Jones, Histories of International Law and Self-Reflection within the Discipline Madeleine Herren, Aliens, Race and Law: A History of the Odd Ones Out
11.00-11.30	Break
11.30-12.30	Concluding Observations by Matthew Craven and the Editors