From Masters of Slaves to Lords of Lands: The Transformation of Ownership in the Western World
James Q. Whitman, Cambridge University Press (November 2024-online, print forthcoming)
Today we think of land as the paradigmatic example of property, while in the past, the paradigmatic example was often a slave. In this seminal work, James Q. Whitman asserts that there is no natural form of ownership. Whitman dives deep into the long Western history of this transformation in the legal imagination – the transformation from the ownership of humans and other living creatures to the ownership of land. This change extended over many centuries, coming to fruition only on the threshold of the modern era. It brought with it profound changes, not only in the way we understand ownership but also in the way we understand the state. Its most dramatic consequence arrived in the nineteenth century, with the final disappearance of the lawful private ownership of humans, which had been taken for granted for thousands of years. (Click to Purchase)
Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857–1922
Alastair McClure, Cambridge University Press (November 2024)
Trials of Sovereignty offers the first legal history of mercy and discretion in nineteenth and twentieth-century India. Through a study of large-scale amnesties, the prerogative powers of pardon, executive commutation, and judicial sentencing practices, Alastair McClure argues that discretion represented a vital facet of colonial rule. In a bloody penal order, officials and judges consistently offered reduced sentences and pardons for select subjects, encouraging others to approach state institutions and confer the colonial state with greater legitimacy. Mercy was always a contested expression of sovereign power that risked exposing colonial weakness. This vulnerability was gradually recognized by colonial subjects who deployed a range of legal and political strategies to interrogate state power and question the lofty promises of British colonial justice. By the early twentieth century, the decision to break the law and reject imperial overtures of mercy had developed into a crucial expression of anticolonial politics. (Click to Purchase)
Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition
Marie-Amelie George, Cambridge University Press (May 2024)
In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled that same-sex couples had the fundamental right to marry. In the span of two generations, American law underwent a dramatic transformation. Though the fight for marriage equality has received a considerable amount of attention from scholars and the media, it was only a small part of the more than half-century struggle for queer family rights. Family Matters uncovers these decades of advocacy, which reshaped the place of same-sex sexuality in American law and society – and ultimately made marriage equality possible. This book, however, is more than a history of queer rights. Marie-Amélie George reveals that national legal change resulted from shifts at the state and local levels, where the central figures were everyday people without legal training. Consequently, she offers a new way of understanding how minority groups were able to secure meaningful legal change. (Click to Purchase)
Execution, State and Society in England, 1660–1900
Simon Devereaux, Cambridge University Press (October 2023)
This book provides the first comprehensive account of execution practices in England and their extraordinary transformation from 1660 to 1900. Agonizing execution rituals were once common. Male traitors were hanged, disembowelled while still alive, then decapitated and quartered. Female traitors were burned alive. And common criminals slowly choked to death beneath wooden crossbeams erected at the margins of towns. Some of their bodies were either left to rot on roadside gibbets or dissected by anatomy instructors. Two centuries later, only murderers and traitors were executed – both by hanging – and they died alone, usually quickly, and behind prison walls. In this major contribution to the history of crime and punishment in England, Simon Devereaux reveals how urban growth, and the unique public culture it produced, challenged and largely displaced those traditional elites who valued the old ‘Bloody Code’ as an instrument of their rule. (Click to Purchase)
Nothing More than Freedom: The Failure of Abolition in American Law
Giuliana Perrone, Cambridge University Press (May 2023)
Nothing More than Freedom explores the long and complex legal history of Black freedom in the United States. From the ratification of the Thirteenth Amendment in 1865 until the end of Reconstruction in 1877, supreme courts in former slave states decided approximately 700 lawsuits associated with the struggle for Black freedom and equal citizenship. This litigation – the majority through private law – triggered questions about American liberty and reassessed the nation’s legal and political order following the Civil War. Judicial decisions set the terms of debates about racial identity, civil rights, and national belonging, and established that slavery, as a legal institution and social practice, remained actionable in American law well after its ostensible demise. The verdicts determined how unresolved facets of slavery would undercut ongoing efforts for abolition and the realization of equality. Insightful and compelling, this work makes an important intervention in the history of post-Civil War law. (Click to Purchase)
Monitoring American Federalism: The History of State Legislative Resistance
Christian G. Fritz, Cambridge University Press (January 2023)
Monitoring American Federalism examines some of the nation’s most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution’s ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy. (Click to purchase)
Vernacular Law: Writing and the Reinvention of Customary Law in Medieval France
Ada Maria Kuskowski, Cambridge University Press (October 2022)
Custom was fundamental to medieval legal practice. Whether in a property dispute or a trial for murder, the aggrieved and accused would go to lay court where cases were resolved according to custom. What custom meant, however, went through a radical shift in the medieval period. Between the twelfth and thirteenth centuries, custom went from being a largely oral and performed practice to one that was also conceptualized in writing. Based on French lawbooks known as coutumiers, Ada Maria Kuskowski traces the repercussions this transformation – in the form of custom from unwritten to written and in the language of law from elite Latin to common vernacular – had on the cultural world of law. Vernacular Law offers a new understanding of the formation of a new field of knowledge: authors combined ideas, experience and critical thought to write lawbooks that made disparate customs into the field known as customary law. (Click to purchase)
The Science of Proof: Forensic Medicine in Modern France
E. Claire Cage, Cambridge University Press (August 2022)
The Science of Proof traces the rise of forensic medicine in late eighteenth- and nineteenth-century France and examines its implications for our understanding of expert authority. Tying real life cases to broader debates, the book analyzes how new forms of medical and scientific knowledge, many of which were pioneered in France, were contested, but ultimately accepted, and applied to legal problems and the administration of justice. The growing authority of medical experts in the French legal arena was nonetheless subject to sharp criticism and scepticism. The professional development of medicolegal expertise and its influence in criminal courts sparked debates about the extent to which it could reveal truth, furnish legal proof, and serve justice. Drawing on a wide base of archival and printed sources, Claire Cage reveals tensions between uncertainty about the reliability of forensic evidence and a new confidence in the power of scientific inquiry to establish guilt, innocence, and legal responsibility. (Click to Purchase)
The Dreadful Word Speech Crime and Polite Gentlemen in Massachusetts, 1690–1776
Kristin A. Olbertson. Cambridge University Press (March 2022).
This book, the first comprehensive study of criminal speech in eighteenth-century New England, traces how the criminalization, prosecution, and punishment of speech offenses in Massachusetts helped to establish and legitimate a social and cultural regime of politeness. Analyzing provincial statutes and hundreds of criminal prosecutions, Kristin A. Olbertson argues that colonists transformed their understanding of speech offenses, from fundamentally ungodly to primarily impolite. As white male gentility emerged as the pre-eminent model of authority, records of criminal prosecution and punishment show a distinct cadre of politely pious men defining themselves largely in contrast to the vulgar, the impious, and the unmanly. “Law,” as manifested in statutes as well as in local courts and communities, promoted and legitimized a particular, polite vision of the king’s peace and helped effectuate the British Empire. In this unique and fascinating work, Olbertson reveals how ordinary people interacted with and shaped legal institutions.
Unraveling Abolition Legal Culture and Slave Emancipation in Colombia
Edgardo Perez Morales. Cambridge University Press (January 2022)
Unraveling Abolition tells the fascinating story of slaves, former slaves, magistrates and legal workers who fought for emancipation, without armed struggle, from 1781 to 1830. By centering the Colombian judicial forum as a crucible of antislavery, Edgardo Pérez Morales reveals how the meanings of slavery, freedom and political belonging were publicly contested. In the absence of freedom of the press or association, the politics of abolition were first formed during litigation. Through the life stories of enslaved litigants and defendants, Pérez Morales illuminates the rise of antislavery culture, and how this tradition of legal tinkering and struggle shaped claims to equal citizenship during the anti-Spanish revolutions of the early 1800s. By questioning foundational constitutions and laws, this book uncovers how legal activists were radically committed to the idea that independence from Spain would be incomplete without emancipation for all slaves.
Truth and Privilege Libel Law in Massachusetts and Nova Scotia, 1820-1840
Lyndsay Campbell. Cambridge University Press (December 2021)
Truth and Privilege is a comparative study that brings together legal, constitutional and social history to explore the common law’s diverging paths in two kindred places committed to freedom of expression but separated by the American Revolution. Comparing Nova Scotia and Massachusetts, Lyndsay Campbell examines the development of libel law, the defences of truth and privilege, and the place of courts as fora for disputes. She contrasts courts’ centrality in struggles over expression and the interpretation of individual rights in Massachusetts with concerns about defining protective boundaries for the press and individuals through institutional design in Nova Scotia. Campbell’s rich analysis acts as a lens through which to understand the role of law in shaping societal change in the nineteenth century, shedding light on the essential question we still grapple with today: what should law’s role be in regulating expression we perceive as harmful?
Pain, Penance, and Protest Peine Forte et Dure in Medieval England
Sara M. Butler. Cambridge University Press (November 2021).
In medieval England, a defendant who refused to plead to a criminal indictment was sentenced to pressing with weights as a coercive measure. Using peine forte et dure (‘strong and hard punishment’) as a lens through which to analyse the law and its relationship with Christianity, Butler asks: where do we draw the line between punishment and penance? And, how can pain function as a vehicle for redemption within the common law? Adopting a multidisciplinary approach, this book embraces both law and literature. When Christ is on trial before Herod, he refused to plead, his silence signalling denial of the court’s authority. England’s discontented subjects, from hungry peasant to even King Charles I himself, stood mute before the courts in protest. Bringing together penance, pain and protest, Butler breaks down the mythology surrounding peine forte et dure and examines how it functioned within the medieval criminal justice system.
Imperial Incarceration Detention without Trial in the Making of British Colonial Africa
Michael Lobban. Cambridge University Press (August 2021)
For nineteenth-century Britons, the rule of law stood at the heart of their constitutional culture, and guaranteed the right not to be imprisoned without trial. At the same time, in an expanding empire, the authorities made frequent resort to detention without trial to remove political leaders who stood in the way of imperial expansion. Such conduct raised difficult questions about Britain’s commitment to the rule of law. Was it satisfied if the sovereign validated acts of naked power by legislative forms, or could imperial subjects claim the protection of Magna Carta and the common law tradition? In this pathbreaking book, Michael Lobban explores how these matters were debated from the liberal Cape, to the jurisdictional borderlands of West Africa, to the occupied territory of Egypt, and shows how and when the demands of power undermined the rule of law. This title is also available as Open Access on Cambridge Core.
The Laws of Alfred The Domboc and the Making of Anglo-Saxon Law
Stefan Jarasinski, Lisi Oliver. Cambridge University Press (May 2021)
Alfred the Great’s domboc (‘book of laws’) is the longest and most ambitious legal text of the Anglo-Saxon period. Alfred places his own laws, dealing with everything from sanctuary to feuding to the theft of bees, between a lengthy translation of legal passages from the Bible and the legislation of the West-Saxon King Ine (r. 688–726), which rival his own in length and scope. This book is the first critical edition of the domboc published in over a century, as well as a new translation. Five introductory chapters offer fresh insights into the laws of Alfred and Ine, considering their backgrounds, their relationship to early medieval legal culture, their manuscript evidence and their reception in later centuries. Rather than a haphazard accumulation of ordinances, the domboc is shown to issue from deep reflection on the nature of law itself, whose effects would permanently alter the development of early English legislation.
Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana
Alejandro de la Fuente andAriela J. Gross.Cambridge University Press (January 2020). Available via Cambridge and Amazon.
How did Africans become ‘blacks’ in the Americas? Becoming Free, Becoming Black tells the story of enslaved and free people of color who used the law to claim freedom and citizenship for themselves and their loved ones. Their communities challenged slaveholders’ efforts to make blackness synonymous with slavery. Looking closely at three slave societies – Cuba, Virginia, and Louisiana – Alejandro de la Fuente and Ariela J. Gross demonstrate that the law of freedom – not slavery – established the meaning of blackness in law. Contests over freedom determined whether and how it was possible to move from slave to free status, and whether claims to citizenship would be tied to racial identity. Laws regulating the lives and institutions of free people of color created the boundaries between black and white, the rights reserved to white people, and the degradations imposed only on black people.
Reviews
‘At a moment when ‘Send Them Back’ has reemerged as a nativist rallying cry, Becoming Free, Becoming Black is a brilliantly lucid guide to the deep history of how race and ethnic origin came to be potent ciphers for civic belonging. … De la Fuente and Gross show that brutality lay not merely in the imposition of slavery, but in the creation of racial regimes ranking black bodies even once freed from bondage. If enslavement is construed as an external political constraint, the project of freedom becomes focused on unshackling bodies from those confines. But if white means free and black means slave, then political status is embodied, innate and inescapable. … To this day, the legacy of free-but-not-full-citizen delimits quietly powerful hierarchies in our varying capacities to travel, vote, mix socially, run a business, hold public office, and intermarry. This indispensable book shows how knowing the past might aid us to intelligently reform our future.’
Patricia J. Williams – Columnist, The Nation Magazine
‘In this incisive and spell-binding study, Alejandro de la Fuente and Ariela Gross meticulously investigate the archives of the ‘legal regimes of slavery and race’ in the culturally disparate locations of Cuba, Louisiana, and Virginia, thus exposing the differences and similarities between Spanish, French, and English approaches to manumission and interracial relationships. In addition, the authors brilliantly focus on the bottom up efforts of the enslaved to gain freedom, thus exposing how these ‘unpredictable twists and turns’ established the meaning of blackness in law. Not only an important legal analysis, Becoming Free, Becoming Black tells many fascinating stories of heroic efforts to attain freedom through legal regimes.’
Henry Louis Gates, Jr – Alphonse Fletcher University Professor, Harvard University
‘Becoming Free, Becoming Black is a brilliant study of the making of race in the New World. Deeply researched, insightful, and smoothly written, this book is a major contribution to the scholarly literature on slavery and the way it shaped, and was shaped by, attitudes about people of African descent.’
Annette Gordon-Reed – Charles Warren Professor of American Legal History, Harvard University, and author of The Hemingses of Monticello: An American Family
‘In Cuba of 1860, many persons of color who purchased their freedom lived alongside slaves; while In Louisiana and Virginia free people of color had almost disappeared, and to be black was to be enslaved. The difference was in the law and custom regulating freedom – law made by many hands, including those of slaves themselves. This book, based on meticulous archival research and brilliantly reasoned and written, is comparative legal history at its finest.’
Robert W. Gordon – Stanford University
‘To what can we attribute the distinct racial ideologies that emerged in different slaveholding societies in the Americas? In this rich and innovative comparative study, Ariela Gross and Alejandro de la Fuente emphasize the role of the emergence of communities of free persons of African descent, and their evolution over time. Although elites in all three societies sought to attach sharp social distinctions to color, the authors find that ‘the association between blackness and enslavement, whiteness and freedom, remained less strict and precise in Cuba than in Virginia and Louisiana.’ As slavery itself was abolished, these prior differences laid the groundwork for divergent experiences of access to the rights of citizenship. This is a provocative and important book.’
Rebecca J. Scott – Charles Gibson Distinguished University Professor of History and Professor of Law, University of Michigan
‘Becoming Free, Becoming Black provides crucial insights into the ways that conceptions of race and power varied across the Americas in the era when slavery was at its most widespread. It is a valuable window on the ways that the system maintained itself, and on the resistance that, although often unsuccessful, showed the persistence of the will to resist under even the most horrendous conditions.’
John Foster Source: Souciant Magazine
Felony and the Guilty Mind in Medieval England
Elizabeth Papp Kamali. Cambridge University Press (July 2019). Available via Cambridge and Amazon.
This book explores the role of mens rea, broadly defined as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century – the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors’ determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word ‘felony’ itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, was willed in a way not constrained by necessity, and was evil or wicked in its essence.
Reviews
‘Probing the boundaries of popular conceptions of mens rea, Kamali draws on a remarkable array of non-legal sources, from homilies and theological treatises, to poems, ballads, and romance literature. In so doing, Kamali becomes one of the few legal historians to analyze the law with respect to the culture that produced it. The result is an engrossing study of medieval England’s justices and jurors and the cultural pressures that influenced their verdicts.’
Sara M. Butler – King George III Professor in British History, Ohio State University
‘No one who reads Elizabeth Papp Kamali’s study of mens rea in the operation of medieval English justice can come away unimpressed. It is founded on a thorough exploration of the legal sources, but it is profoundly enriched by the author’s brilliant exploitation of literary sources. Taken together, both sorts of texts allow Professor Kamali to uncover more than we have ever known of the mentality of English judges, jurors and, criminals alike. Her book is in every way a tour de force.’
William Chester Jordan – author of From England to France: Felony and Exile in the High Middle Ages
‘Elizabeth Papp Kamali’s compelling analysis of felony trials demonstrates how a masterful engagement in religious and literary sources illuminates and enriches our understanding of the formal legal world in the later medieval period – its actors, its processes, its rules and, particularly, its outcomes. This ground breaking book deserves to be read for a very long time indeed.’
Alice Taylor – King’s College London
‘Kamali’s book is not just a tour de force. It is a scholarly treat, brilliantly marrying legal and literary history. Medievalists with any interest in law should rush to read it.’
James Whitman – Ford Foundation Professor of Comparative and Foreign Law, Yale University
‘Kamali explores how medieval juries acted on their ‘understanding of culpability situated in the heart and mind’ as they judged defendants accused of homicide and other serious crimes. Her deep archival research in judicial records and examination of literary and religious texts reveal the depth and breadth of the medieval understanding of mens rea, or guilty mind, which undergirded the concept of liability … Recommended.’
L. C. Attreed Source: Choice
‘Using an impressive range of sources – administrative, jurisprudential and literary – she supplies a definitive survey of the means and devices by which juries struggled to dispense justice in criminal cases, over the century after 1215 … promise[s] a bright future, not only for [Kamali] but for the ongoing study of medieval law.’
Nicholas Vincent Source: History
Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire
Sam Erman. Cambridge University Press (November 2018). Available via Cambridge and Amazon.
Almost Citizens lays out the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898. As America became an overseas empire, a handful of remarkable Puerto Ricans debated with US legislators, presidents, judges, and others over who was a citizen and what citizenship meant. This struggle caused a fundamental shift in constitution law: away from the post-Civil War regime of citizenship, rights, and statehood, and toward doctrines that accommodated racist imperial governance. Erman’s gripping account shows how, in the wake of the Spanish-American War, administrators, lawmakers, and presidents together with judges deployed creativity and ambiguity to transform constitutional meaning for a quarter of a century. The result is a history in which the United States and Latin America, Reconstruction and empire, and law and bureaucracy intertwine.
Reviews
‘More than a century after the United States announced its rise to world power by vanquishing Spain in the ‘splendid little war’ of 1898 and acquiring distant island possessions, the American colonial experiment in Puerto Rico endures as a test of the promise of American citizenship. Sam Erman reconstructs the first years of this experiment, exploring the understandings and misunderstandings that led Congress to grant citizenship and an elected legislature to the people of Puerto Rico in 1917. His deeply researched narrative sheds new light on how the destinies of the United States and its new colony became intertwined – a process that prefigured the continuing clamor for full and equal United States citizenship for the Puerto Ricans.’
José A. Cabranes – United States Circuit Judge and author of Citizenship and the American Empire
‘Erman’s exploration of debates over the annexation and governance of Puerto Rico tells a powerful and long-overlooked story of constitutional transformation.’
Christina Duffy Ponsa-Kraus – author of Foreign in a Domestic Sense
‘Erman tells the story of Puerto Rico and the invention of a new constitutional category – ‘unincorporated territories’ – in a compelling narrative that interweaves politics, constitutional controversy, and the lives of Puerto Rican activists.’
John Witt – Yale University, Connecticut
‘Sam Erman’s superb book illuminates the political and constitutional origins of the world’s largest colony, Puerto Rico. His deep research and lively writing provide a ready, and altogether chastening, explanation for the fact that, a full century after the Jones Act awarded citizenship to all Puerto Ricans, all too many mainlanders, including the President, scarcely credit the reality that the island and its beleaguered citizens are truly part of a united American community with equal entitlement to our solicitude.’
Sanford Levinson – author of An Argument Open to All: Reading ‘The Federalist’ in the 21st Century
‘Almost Citizens shows off both [Erman’s] range and his substantial chops as a historian: the book is deeply researched and densely footnoted, but Erman’s writing is also lively and lucid, and he has an eye for catchy stories and compelling characters. Most importantly, he has recovered a crucial history of the struggle over democracy, rights, race, and gender in America, a set of conflicts we have not left behind.’
Andrew Lanham Source: The New Republic
‘This book by a US law professor about the fate of Puerto Rican aspirations to citizenship and then to statehood after the 1898 annexation up until this day, proves revealing … ‘The empire that dared not speak its name’ – as Erman says, with a certain grace – was characterized by ambiguity and inconsistency, sending equivocal signals and resisting the constitutional provisions for equal rights and the calls for statehood. US triumphalism and racism has prevailed at the expense of inclusive, democratic impulses.’
Source: El Nuevo Dia
‘Erman melds meticulous archival research with the acuity of a serious constitutional lawyer in tracing his constitutional history of empire.’
Jedidiah Kroncke Source: The Journal of Things We Like (Lots)
‘In the US, citizenship is almost meaningless, and Constitutional protections are even less significant. In 1899, access to the benefits of the US was controlled by those in power rather than guaranteed by American founding documents. Almost Citizens traces the development of legal thought and application in the US transition from post-Civil War recovery to imperial power. … the American civilizing mission was undergirded by Democrats’ racism; Republicans’ hollow commitments to liberty; varying Puerto Rican goals of protection, citizenship, statehood, and independence; and American insecurity in the face of new imperial opponents. This toxic mixture enabled lawmakers to promise and reject citizenship almost simultaneously, while the Supreme Court actively carved a trail of ambiguity, leaving Congress and the executive branch to craft a piecemeal imperial policy. Erman’s detailed analysis of American colonial administration and legal argument makes for a distressing, fascinating read. Recommended.’
J. L. Meriwether Source: Choice
‘… Almost Citizens makes an important contribution to the study of the history of the extension of US citizenship to Puerto Rico and the debates over the development of a new expansionist tradition.’
Charles R. Venator-Santiago Source: Journal of American Ethnic History
Armed with Sword and Scales: Law, Culture, and Local Courtrooms in London, 1860–1913
Sascha Auerbach. Forthcoming with Cambridge University Press (February 2021). Available to pre-order via Cambridge University Press and Amazon.
In the mid-eighteenth century, author and magistrate Henry Fielding adjudicated cases of theft, assault, and public disorder from his London home on Bow Street. By the middle of the nineteenth century, Fielding’s modest ‘police office’ had expanded to become the most prolific court system in Britain and the cornerstone of criminal and civil justice in the metropolis. Sascha Auerbach examines the fascinating history of this institution through the lens of ‘courtroom culture’ – the combination of formal statute and informal custom that guided everyday practice in the London Police Courts. He offers a new model for understanding the relationship between law, culture, and society in modern Britain and illuminates how the local courtroom became a crucial part of everyday life and thoroughly entangled with popular representations of justice and morality.
Advance Reviews:
‘This lively social history of the London courtroom treats it as a space of encounter between the modern self and the modern state. British law-and-order values were shaped by Victorian ‘courtroom culture’ and the ordinary people – including working-class women – for whom it served as a site of both contest and community.’
Antoinette Burton – University of Illinois, Urbana-Champaign
‘An authoritative and engaging study of a key institution of the modern British state, whose importance has been largely overlooked. The book takes an admirably expansive view, looking at how the stipendiary courts functioned, how they were portrayed and how they served different constituencies, including those of gender and class.’
Jennifer Davis – Emeritus Fellow, Wolfson College, University of Cambridge
‘Victorian police courts were sites of education, disputation, score-settling and problem-solving, where moral prescriptions and life lessons were issued, contested, and avidly chronicled by a growing local press. Sascha Auerbach’s authoritative, deftly written and entertaining account shows how central and significant this little-understood institution was to the lives of the working class of Victorian London.’
John Davis – The Queen’s College, University of Oxford
‘An ambitious study of Victorian and Edwardian crime and criminal law, focused on the least studied, but crucially important, summary ‘police’ courts: their magistrates, their clientele, and their audiences. Triangulating from the perspectives offered by criminal statistics, parliamentary reports, and particularly the popular and elite press, the book seeks to explain the ‘courtroom culture’ of a critical institution that mediated class relations. It shows how newspaper representations of summary justice, driven largely but not entirely by commercial competition, evolved during great changes in Victorian society and London’s municipal government.’
Douglas Hay – Professor Emeritus, Law and History, York University
Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America
Between 1822 and 1857, eight Southern states barred the ingress of all free black maritime workers. According to lawmakers, they carried a ‘moral contagion’ of abolitionism and black autonomy that could be transmitted to local slaves. Those seamen who arrived in Southern ports in violation of the laws faced incarceration, corporal punishment, an incipient form of convict leasing, and even punitive enslavement. The sailors, their captains, abolitionists, and British diplomatic agents protested this treatment. They wrote letters, published tracts, cajoled elected officials, pleaded with Southern officials, and litigated in state and federal courts. By deploying a progressive and sweeping notion of national citizenship – one that guaranteed a number of rights against state regulation – they exposed the ambiguity and potential power of national citizenship as a legal category. Ultimately, the Fourteenth Amendment recognized the robust understanding of citizenship championed by antebellum free people of color, by people afflicted with ‘moral contagion.’
The First Modern Risk: Workplace Accidents and the Origins of European Social States
During the late nineteenth century, many countries across Europe adopted national legislation that required employers to compensate workers injured or killed in accidents at work. These laws suggested that the risk of accidents was inherent to work and not due to individual negligence. By focusing on Britain, Germany, and Italy during this time, Julia Moses demonstrates how these laws reflected a major transformation in thinking about the nature of individual responsibility and social risk. The First Modern Risk illuminates the implications of this conceptual revolution for the role of the state in managing problems of everyday life, transforming understandings about both the obligations and rights of individuals. Drawing on a wide array of disciplines including law, history, and politics, Moses offers a fascinating transnational view of a pivotal moment in the evolution of the welfare state.
Endorsements:
‘Based on detailed work in three countries and languages, this book looks broadly and comparatively at how governments dealt with workplace accidents in the nineteenth century, one of industrialization’s earliest dilemmas. With both empirical substance and theoretical sophistication, it also illuminates the more general problem of the contemporary state first undertaking what is now its foremost task, managing modernity’s ever-growing risks.’
–Peter Baldwin, University of California, Los Angeles
‘In this masterful and path breaking study, Moses identifies the genealogical origins of European social states in the neglected sphere of workplace accidents and the social policies that governments adopted to address what they came to recognize as the ‘first modern risk’. Weaving together a stunning array of research – from law and moral philosophy to state theory and citizenship studies – this book charts the shifting responsibility for the inevitable perils of industrial capitalism, from the personal agency of freedom of contract to state management of an increasingly social distribution of risk. This is a book as timely as it is profound. As neoliberalism’s unremitting assaults on today’s social states have given rise to brutalizing levels of inequality, nothing could be more urgent than our learning from Moses’ deep analysis of the social and political conditions that once created and sustained national commitments to egalitarian social rights.’
–Margaret Somers, University of Michigan
Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia
On July 4, 1791, the fifteenth anniversary of American Independence, John Crane, a descendant of prominent Virginian families, killed his neighbor’s harvest worker. Murder in the Shenandoah traces the story of this early murder case as it entangled powerful Virginians and addressed the question that everyone in the state was heatedly debating: what would it mean to have equality before the law – and a world where ‘law is king’? By retelling the story of the case, called Commonwealth v. Crane, through the eyes of its witnesses, families, fighters, victims, judges, and juries, Jessica K. Lowe reveals how revolutionary debates about justice gripped the new nation, transforming ideas about law, punishment, and popular government.
Endorsements:
Advance praise: “In Murder in the Shenandoah, Jessica K. Lowe deftly investigates a deadly brawl to illuminate the legal culture of the new nation’s most influential state, shortly after the American Revolution. Filled with plot twists, surprising revelations, colorful characters, and rich insights, this book will reward anyone interested in the roots of American criminal law.” –Alan Taylor, author of American Revolutions: A Continental History, 1750–1804
Advance praise: “Elegantly written and copiously sourced, Jessica K. Lowe’s book is a must-read for specialists and students alike. Lowe upends the accepted notion that southerners went outside the law to resolve conflicts because of the culture of honor that was inextricably embedded in slavery. She uses criminal law to open a window into social change in postrevolutionary Virginia and to set the stage for antebellum-era conflicts in imaginative and unexpected ways.” –Victoria Saker Woeste, American Bar Foundation
Advance praise: “Jessica K. Lowe’s beautifully crafted account of murder and justice powerfully illuminates the reconstruction of criminal law in the early American republic. Lowe skillfully turns the story of a single Virginia killing into a compelling meditation on how people, high and low, struggled over the meaning of equality and the rule of law in the aftermath of revolution. A formidable piece of scholarship, Murder in the Shenandoah is also a gem of historical narration and analysis, at once tough-minded and humane.” –Sean Wilentz, author of The Rise of American Democracy: Jefferson to Lincoln
Advance praise: “Professor Lowe has produced a volume that is both a murder mystery and a mini-treatise on the history of criminal law in colonial Virginia. Hard-nosed legal history has seldom been presented in such fascinating, readable form. Behind the legal story is an equally important story of social change in early Virginia. Lowe knows her Virginia law, and applies to it the questions of a modern historical sensibility. Readers will be surprised and intrigued by this admirable volume.” –Stanley Katz, Princeton University Center for Arts and Cultural Policy Studies
Advance praise: “In Jessica K. Lowe’s poetic telling of a murder trial in the Shenandoah Valley on Independence Day in 1791, we see how issues of class, violence, and the rule of law came together to lead to the execution of a Virginia patrician. Lowe’s beautifully written book shows the law in motion. Wage workers, slaves, jurors, and the legal and planter elite all cross her stage as the values of democracy made a new American law.” –Alfred L. Brophy, author of University, Court, and Slave: Proslavery Thought in Colleges and Courts and the Coming of Civil War
Birthright Citizens: A History of Race and Rights in Antebellum America
Before the Civil War, colonization schemes and black laws threatened to deport former slaves born in the United States. Birthright Citizens recovers the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses. They faced formidable opposition, most notoriously from the US Supreme Court decision in Dred Scott. Still, Martha S. Jones explains, no single case defined their status. Former slaves studied law, secured allies, and conducted themselves like citizens, establishing their status through local, everyday claims. All along they argued that birth guaranteed their rights. With fresh archival sources and an ambitious reframing of constitutional law-making before the Civil War, Jones shows how the Fourteenth Amendment constitutionalized the birthright principle, and black Americans’ aspirations were realized. Birthright Citizens tells how African American activists radically transformed the terms of citizenship for all Americans.
Endorsements:
“Beautifully written and deeply researched, Birthright Citizens transforms our understanding of the evolution of citizenship in nineteenth-century America. Martha Jones demonstrates how the constitutional revolution of Reconstruction had roots not simply in legal treatises and court decisions but in the day to day struggles of pre-Civil War African-Americans for equal rights as members of the national community.”
–Eric Foner, Columbia University
“Martha Jones’s ‘history of race and rights’ utterly upends our understanding of the genealogy of citizenship. By showcasing ordinary people acting on their understanding of law’s potentialities, Jones demonstrates the vibrancy of antebellum black ideas of birthright citizenship and their impact on black political and intellectual life. Written with verve, and pulling back the curtain on the scholar’s craft, Birthright Citizens makes an important contribution to both African American and socio-legal history.”
–Dylan Penningroth, University of California, Berkeley
“Birthright Citizens gives new life to a long trajectory of African Americans’ efforts to contest the meaning of citizenship through law and legal action. They claimed citizenship rights in the courts of Baltimore, decades before the concept was codified in the federal constitution – ordinary people, even the formally disfranchised, actively engaged in shaping what citizenship meant for everyone. Martha Jones takes a novel approach that scholars and legal practitioners will need to reckon with to understand history and our own times.”
–Tera Hunter, Princeton University
“Birthright Citizens is a brilliant and richly researched work that could not be more timely. Who is inside and who is outside the American circle of citizenship has been a fraught question from the Republic’s very beginnings. With great clarity and insight, Jones mines available records to show how one group–black Americans in pre-Civil War Baltimore– sought to claim rights of citizenship in a place where they had lived and labored. This is a must-read for all who are interested in what it means to be an American.”
–Annette Gordon-Reed, Harvard University
“In this exacting study, legal historian Martha Jones reinterprets the Dred Scott decision through a fresh and utterly revealing lens, reframing this key case as just one moment in a long and difficult contest over race and rights. Jones mines Baltimore court records to uncover a textured legal landscape in which free black men and women knew and used the law to push for and act on rights not clearly guaranteed to them. Her sensitive and brilliant analysis transforms how we view the status of free blacks under the law, even as her vivid writing brings Baltimore vibrantly alive, revealing the import of local domains and institutions – states, cities, courthouses, churches, and even ships – to the larger national drama of African American history. Part meditation on a great nineteenth-century city, part implicit reflection on contemporary immigration politics, and part historical-legal thriller, Birthright Citizens is an astonishing revelation of the intricacies and vagaries of black struggles for the rights of citizenship.” –Tiya Miles, author of The Dawn of Detroit: A Chronicle of Slavery and Freedom in the City of the Straits
In the News:
Jones discussed birthright citizenship and the fourteenth amendment in Time, the Atlantic, and NPR in October 2018.
This book focuses on the post-Civil War treason prosecution of Confederate President Jefferson Davis, which was seen as a test case on the major question that animated the Civil War: the constitutionality of secession. The case never went to trial because it threatened to undercut the meaning and significance of Union victory. Cynthia Nicoletti describes the interactions of the lawyers who worked on both sides of the Davis case – who saw its potential to disrupt the verdict of the battlefield against secession. In the aftermath of the Civil War, Americans engaged in a wide-ranging debate over the legitimacy and effectiveness of war as a method of legal adjudication. Instead of risking the ‘wrong’ outcome in the highly volatile Davis case, the Supreme Court took the opportunity to pronounce secession unconstitutional in Texas v. White (1869).
Endorsements:
“The genius of Nicoletti’s work is that the Davis case provides a window into the persistent belief in American minds (even in the North) that secession was possible. That belief made the trial and execution of Davis that much more problematic than scholars have seen. Nicoletti backs up these claims with unsurpassed knowledge of legal proceedings and impressive research.”
–William Blair, Director of Richard Civil War Era Center and Walter L. and Helen P. Ferree Professor, Penn State University, and author of With Malice Toward Some: Treason and Loyalty in the Civil War Era
“Cynthia Nicoletti tackles a hugely important topic: the post-Civil War resolution of the legal status of the Confederacy. The prosecution of Jefferson Davis squarely posed the question whether the Confederacy had become a separate country by seceding. If it had, southerners insisted there could be no treason. If it had not, many of the war powers asserted by the North would be called into question. Nicoletti brilliantly tracks the efforts of jurists and politicians to work through momentous questions about the American constitutional order.”
–John Fabian Witt, Yale Law School, Connecticut, and author of Lincoln’s Code: The Laws of War in American History
“Nicoletti’s beautifully written book studies a crucially important trial that never happened. She situates Davis’s treason case in the wider context of public discussions about how to treat officials of the former Confederacy and what to do about secession. Law, as Nicoletti argues, was not separate from other aspects of life in this period; it was deeply implicated within them and, thus, inseparable from them.”
–Laura Edwards, Peabody Family Professor of History, Duke University, North Carolina and author of A Legal History of the Civil War and Reconstruction: A Nation of Rights
Reviews:
George Rutherglen reviewed Secession on Trial in December 2017 for the Virginia Law Review (v. 103, pp 72-93). You can read the review online here.
D. Schultz reviewedSecession on Trial for Choice Reviews v. 55 no. 7 (March 2018).
Henry Cohen reviewed the book in the May 2018 The Federal Lawyer.
Peter Charles Hoffer reviewed the book in the Spring 2018 Civil War Book Review.
Al Trophy reviewed the book for The Journal of the Civil War Era in September 2018.
Sovereignty, International Law, and the French Revolution
The advent of the principle of popular sovereignty during the French Revolution inspired an unintended but momentous change in international law. Edward James Kolla explains that between 1789 and 1799, the idea that peoples ought to determine their fates in international affairs, just as they were taking power domestically in France, inspired a series of new and interconnected claims to territory. Drawing on case studies from Avignon, Belgium, the Rhineland, the Netherlands, Switzerland, and Italy, Kolla traces how French revolutionary diplomats and leaders gradually applied principles derived from new domestic political philosophy and law to the international stage. Instead of obtaining land via dynastic inheritance or conquest in war, the will of the people would now determine the title and status of territory. However, the principle of popular sovereignty also opened up new justifications for aggressive conquest, and this history foreshadowed some of the most controversial questions in international relations today.
Endorsements:
“When the right of peoples to self-determination creates an international law immediately to the advantage of the French Revolution and ultimately for our present world, a brilliant paradoxical book explaining how French Revolution was a key experiment for our modernity.”
-Jean-Clément Martin, Université Paris 1 Sorbonne
“Kolla’s bold and thought-provoking study transforms our view of the French Revolution’s importance for international law. Kolla persuasively argues for positive advances, rooted in the doctrine of popularity sovereignty, and for an indirect “ripple” effect which provided an important foundation for the decisive nineteenth-century advance in international law.”
-Professor Hamish Scott, Oxford University
“Kolla makes a major contribution towards the development of modern international law. By combining political narratives with legal analysis he sheds new light on the impact of revolutionary ideas, in particular with relation to popular sovereignty, on international relations and their legal organization.”
-Randall C. H. Lessafer, Tilburg Law School
“In this brilliant and thoughtful study of international law during the French Revolution, Kolla presents a fascinating history of the principle of national self-determination, as it developed over a century before Woodrow Wilson brought this idea to Versailles. Kolla’s book will be of great interest to historians of modern Europe, political theorists, and legal scholars.”
-Dan Edelstein, Stanford University
Reviews:
Joshua Meeks reviewed Kolla’s book for H-Net in February 2018.
Richard Harding reviewed Sovereignty, International Law, and the French Revolution in H-France Review v. 18 (May 2018) no. 116.
Tax Law and Social Norms in Mandatory Palestine and Israel
This book describes how a social-norms model of taxation rose and fell in British-ruled Palestine and the State of Israel in the mid-twentieth century. Such a model, in which non-legal means were used to foster compliance, appeared in the tax system created by the Jewish community in 1940s Palestine and was later adopted by the new Israeli state in the 1950s. It gradually disappeared in subsequent decades as law and its agents, lawyers and accountants, came to play a larger role in the process of taxation. By describing the historical interplay between formal and informal tools for creating compliance, Tax Law and Social Norms in Mandatory Palestine and Israel sheds new light on our understanding of the relationship between law and other methods of social control, and reveals the complex links between taxation and citizenship.
Endorsements:
“Likhovski has written a fascinating account of the development of taxation in a region that has long struggled with shifting rulers and divided populations. This book is more than just the definitive history of taxation in Israel. It is a case study on the cultural and sociological underpinnings of tax law itself.”
–Steve Bank, University of California, Los Angeles
“This brilliant book tells the story of how tax law in Mandatory Palestine was transformed from an intimate institution relying on the voluntary cooperation of taxpayers to a formal system enforced by lawyers. It is a must-read for anyone interested in the nature of law and in how to make a legal system that necessarily depends on voluntary cooperation achieve its goals.”
— Reuven Avi-Yonah, Irwin I. Cohn Professor of Law, University of Michigan
“Once more, Assaf Likhovski has demonstrated his keen understanding of law and its social function in Ottoman and mandatory Palestine as well as the state of Israel. This volume solidifies Assaf Likhovski’s position as one of the most formidable and important scholars of the legal history of Israel.”
— Michael Stanislawski, Columbia University, New York
“Assaf Likhovksi has written an absolutely fascinating book. His exploration of the rise and fall of what he aptly calls the ‘intimate fiscal state’ uses taxation to provide a prism on the history of late Ottoman and British-ruled Palestine, as well Israel. Everyone interested in the relationship between law and society, the history of taxation, the subject of tax avoidance, and the history of Israel will want to read this brilliant work.”
–Laura Kalman, University of California, Santa Barbara
Orit Rozin reviewed Likhovski’s book for the Journal of Interdisciplinary History v. 49 no. 1 (Summer 2018).
Taming the Past: Essays on Law in History and History in Law
Robert W. Gordon (Cambridge University Press, June 2017). Available via Cambridge University Press or Amazon. Listen here as Professor Gordon discusses his book.
Lawyers and judges often make arguments based on history – on the authority of precedent and original constitutional understandings. They argue both to preserve the inspirational, heroic past and to discard its darker pieces – such as feudalism and slavery, the tyranny of princes and priests, and the subordination of women. In doing so, lawyers tame the unruly, ugly, embarrassing elements of the past, smoothing them into reassuring tales of progress. In a series of essays and lectures written over forty years, Robert W. Gordon describes and analyses how lawyers approach the past and the strategies they use to recruit history for present use while erasing or keeping at bay its threatening or inconvenient aspects. Together, the corpus of work featured in Taming the Past offers an analysis of American law and society and its leading historians since 1900.
Endorsements:
“Robert W. Gordon has been one of the preeminent commentators on the rapid rise of American Legal History as a discipline. Each of these essays, written over the past forty years, constitutes an important example of his unequalled influence over the dramatic development of the field.”
–Morton Horwitz, Charles Warren Professor of American Legal History, Emeritus
“The sparkling essays of one of the preeminent legal historians of our era are now collected in one place, where they can talk with each other. Here we see the vintage apercus that make us laugh aloud at Gordon’s wit and nod our head at his wisdom. So, for example, we see Gordon discussing ‘Willard Hurst’s benign, if also rather insistent, influence;’ talking about how ‘dead paradigms … never really get killed off [in law], but hang around and Dracula-like, rise from their coffins to stalk the earth;’ observing that E. P. Thompson ‘almost never (save when exposing an opponent as an ignorant twit) showed off how hard he had been working;’ and pointing out that ‘history does not make a good domestic pet.’ This book is a real treat!”
–Laura Kalman
“Once an arcane backwater, mostly located in the backrooms of law schools, disconnected from the main themes of academic legal study, legal history has become a site of core controversies, ones that everyone involved with the study of law had to engage with. Legal history is where scholars from emerging fields of ‘non-legal’ history – including historical studies of gender, of race, and of market capitalism – found the scholarly perspectives that made possible exciting new work about law. The writings of Robert W. Gordon helped guide how it all happened. American scholarship owes him a debt of gratitude. And it is good that a new generation will be introduced to his analytic clarity, to his wisdom, and to his attractive voice, through this accessible edition.”
–Hendrik Hartog, Princeton University
“For four decades, Robert W. Gordon has provoked, inspired, and nourished the writing of critical legal histories. I can still recall the exhilaration of reading him as a student. This indispensable volume collects classics and little-known essays that will engage first-time and returning readers with unsettling questions about the ways we understand law’s history and authority.”
–Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School
By extending the chronological parameters of existing scholarship, and by focusing on legal experts’ overriding and enduring concern with ‘“-dangerous-”’ forms of common crime, this book offers a major reinterpretation of criminal-law reform and legal culture in Italy from the Liberal (1861–1922) to the Fascist era (1922–1943). Paul Garfinkel argues that scholars have long overstated the influence of positivist criminology on Italian legal culture and that the kingdom’s penal-reform movement was driven not by the radical criminological theories of Cesare Lombroso, but instead by a growing body of statistics and legal research that related rising rates of crime to the instability of the Italian state. Drawing on a vast array of archival, legal and official sources, the author explains the sustained and wide-ranging interest in penal-law reform that defined this era in Italian legal history while analyzing the philosophical underpinnings of that reform and its relationship to contemporary penal-reform movements abroad.
Garfinkel’s Criminal Law in Liberal and Fascist Italy received the 2017 Helen and Howard R. Marraro Prize for best book on Italian History.
Endorsements:
“Professor Garfinkel’s book is one of those rare works of original scholarship that succeeds in covering both the Liberal and Fascist eras in Italian history at the national level. By concentrating on common crime rather than political crimes, he has developed an extremely original thesis that challenges the established interpretations of jurisprudence in the nineteenth and twentieth centuries.”
-Anthony Cardoza, Loyola University Chicago
“Paul Garfinkel’s vivid account of the development of Italian criminal justice from the perspective of prominent criminal law practitioners relies on a stunning array of sources to craft a convincing argument. An insightful contribution to the study of European law and society, the book offers an important counterpoint to prevailing historiography.”
–Maura Hametz, Old Dominion University
Eloquently written, and with a welcome focus on the treatment of ordinary rather than political crime, Garfinkel’s ground-breaking book persuasively challenges scholarly understandings of the ideas and debates inspiring penal reform in Liberal Italy and the first decade of Mussolini’s fascist regime.
-Dr. Jonathan Dunnage, Swansea University
“This elegantly written and widely researched study of criminal law in liberal and fascist Italy challenges the widely accepted view that Italy’s 1930 criminal law code was fascist, positivist and anti-liberal in inspiration. Engaging with the wider de- bates on the relationship between liberalism and fascism, Paul Garfinkel’s conclusions will attract the attention of scholars in many different fields.”
-John Davis, University of Connecticut
Reviews:
R.J.B Bosworth of Jesus College, University of Oxford, reviewed Criminal Law in Liberal and Fascist Italy for European History Quarterly (vol. 47, issue 4) in 2017. You can read the review online here.
Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600–1700
Fractional Freedoms explores how thousands of slaves in colonial Peru were able to secure their freedom, keep their families intact, negotiate lower self-purchase prices, and arrange transfers of ownership by filing legal claims. Through extensive archival research, Michelle A. McKinley excavates the experiences of enslaved women whose historical footprint is barely visible in the official record. She complicates the way we think about life under slavery and demonstrates the degree to which slaves were able to exercise their own agency, despite being ensnared by the Atlantic slave trade. Enslaved women are situated as legal actors who had overlapping identities as wives, mothers, mistresses, wet-nurses and day-wage domestics, and these experiences within the urban working environment are shown to condition their identities as slaves. Although the outcomes of their lawsuits varied, Fractional Freedoms demonstrates how enslaved women used channels of affection and intimacy to press for liberty and prevent the generational transmission of enslavement to their children.
Endorsements:
“This is, without a doubt, one of the richest, most complex and well-researched studies of urban slavery in colonial Latin America. McKinley brings acute legal knowledge, both of the content of law and of its performative practice, to a study of enslaved men and women. The archival wealth here, plus the author’s ability to tell a compelling yarn, produce an engaging and scholarly tome.”
–Karen B. Graubart, Associate Professor, University of Notre Dame
“Michelle McKinley has written a book that embodies the richness of recent Latin American legal history and also transcends that literature. Fractional Freedoms is rooted in heroic work in recondite and intractable archives in Europe and in the Americas. It is shaped by an incredibly sophisticated historical imagination, and is also filled with really interesting and well told stories about the negotiations and the local lives of enslaved Africans in early modern Lima. There are surprises on every page. For anyone interested in the global history of slavery, which by rights should be every serious student of history, this is the state of the art.”
–Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Princeton University
“This is a first-rate piece of original, archive-based scholarship. It is a meticulous and extremely thoughtful examination of women’s lives under slavery in and around Lima, Peru, a part of the Americas few connect with this institution. What really sets this book manuscript apart is the author’s razor-sharp understanding and clear explanation of the colonial legal system. This book is a fully accessible social history that … contributes substantially to the growing history of the African diaspora.”
–Kris Lane, Scholes Professor, Tulane University
Reviews:
Susan Hogue Negrete reviewed Fractional Freedoms in October 2017 in H-LatAm. You can read her review here.
Lea VanderVelde reviewed Fractional Freedoms in November 2017 in Law and History Review Volume 35, Issue 4. You can read the review here.
H-Law published Lyman Johnson’s review of Fractional Freedoms in December 2017. You can read that review on H-Net here.
About the Author:
Michelle McKinley is the Bernard B. Kliks Professor of Law. She teaches Immigration Law and Policy, Public International Law, International Criminal Law, and Refugee & Asylum Law. Professor McKinley attended Harvard Law School, where she was Executive Editor of the Harvard Human Rights Journal and graduated cum laude in 1995. Professor McKinley also holds a Masters Degree in Social Anthropology from Oxford University.
McKinley has extensively published work on public international law, Latin American legal history, and the law of slavery. Her articles appear in the Law and History Review; Slavery & Abolition; Journal of Family History, Berkeley Journal of Gender, Law & Justice; Identities: Global Studies in Culture and Power; Yale Journal of Law and the Humanities, and Unbound: Harvard Law Journal of the Legal Left, among others. She has been granted fellowships for her research from the American Council of Learned Societies, the National Science Foundation, the National Endowment for the Humanities, the American Philosophical Society, and the Newberry Library. She was awarded the Surrency Prize in 2011 for her article, “Fractional Freedoms: Legal Activism & Ecclesiastical Courts in Colonial Lima, 1593-1700.” In 2014, she was a fellow in residence at Princeton University’s Program in Law and Public Affairs, where she completed a book on enslaved women in colonial Latin America using courts to litigate their claims to liberty.
Prior to joining the academy, Professor McKinley was the former Managing Director of Cultural Survival, an advocacy and research organization dedicated to indigenous peoples. She is also the founder, and former director, of the Amazonian Peoples’ Resources Initiative, a community based reproductive rights organization in Peru, where she worked for nine years as an advocate for global health and human rights.
See Professor McKinley’s page on the University of Oregon’s School of Law website for more information.
States of Dependency: Welfare, Rights, and American Governance, 1935-1972
Who bears responsibility for the poor, and who may exercise the power that comes with that responsibility? Amid the Great Depression, American reformers answered this question in new ways, with profound effects on long-standing practices of governance and entrenched understandings of citizenship. States of Dependency traces New Deal welfare programs over the span of four decades, asking what happened as money, expertise, and ideas traveled from the federal administrative epicenter in Washington, DC, through state and local bureaucracies, and into diverse and divided communities. (more…)
Women and Justice for the Poor: A History of Legal Aid, 1863–1945
Women and Justice for the Poor: A History of Legal Aid, 1863-1945 re-examines our fundamental assumptions about the American legal profession, and the boundaries between “professional” lawyers, “lay lawyers,” and social workers. Putting legal history and women’s history in dialogue, it demonstrates that nineteenth-century women’s organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. By the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately the meaning of justice for the poor. (more…)
In this book, Stefan Jurasinski offers a rich new insight into the nature of law and society in Anglo-Saxon England through a close study of penitential texts, written in the vernacular for priestly use. As these texts bear witness, Anglo-Saxon England’s code of norms was more complex than has often been assumed by historians who have only made use of the legislative codes of Anglo-Saxon kings. The vernacular penitentials gave expression to norms that were not voiced by royal legislation but which must have enjoyed the status of customary law. Jurasinski’s close examination of the content of these texts across a number of chapters offers us new insight into the nature of Anglo-Saxon norms in such diverse areas as slavery, marriage and welfare. It also gives greater insight in to Anglo-Saxon notions of intention and guilt than is to be found in the secular texts.
Law and Identity in Colonial South Asia: Parsi Legal Culture 1772-1947
This book explores the legal culture of the Parsis, or Zoroastrians, an ethnoreligious community unusually invested in the colonial legal system of British India and Burma. Rather than trying to maintain collective autonomy and integrity by avoiding interaction with the state, the Parsis sank deep into the colonial legal system itself. From the late eighteenth century until India’s independence in 1947, they became heavy users of colonial law, acting as lawyers, judges, litigants, lobbyists, and legislators. They de-Anglicized the law that governed them and enshrined in law their own distinctive models of the family and community (more…)
The Workplace Constitution from the New Deal to the New Right
From 1938 until 1943 – before the German occupation and accompanying Holocaust – Fascist Italy drafted and enforced a comprehensive set of anti-Semitic laws. Notwithstanding later rationalizations, the laws were enforced and administered with a high degree of severity and resulted in serious, and in some cases permanent, damage to the Italian Jewish community. Written from the perspective of an American legal scholar, this book constitutes the first truly comprehensive survey of the Race Laws in the English language. Based on an exhaustive review of Italian legal, administrative, and judicial sources, together with archives of the Italian Jewish community, Professor Michael A. Livingston demonstrates the zeal but also the occasional ambivalence and contradictions with which the Race Laws were applied and assimilated by the Italian legal order and ordinary citizens. (more…)
Before Eminent Domain: Toward a History of Expropriation of Land for the Common Good
In this concise history of expropriation of land for the common good in Europe and North America from medieval times to 1800, Susan Reynolds contextualizes the history of an important legal doctrine regarding the relationship between government and the institution of private property. Before Eminent Domain concentrates on western Europe and the English colonies in America. As Reynolds argues, expropriation was a common legal practice in many societies in which individuals had rights to land. It was generally accepted that land could be taken from them, with compensation, when the community, however defined, needed it. She cites examples of the practice since the early Middle Ages in England, France, Germany, Italy, and Spain, and from the seventeenth century in America. Reynolds concludes with a discussion of past and present ideas and assumptions about community, individual rights, and individual property that underlie the practice of expropriation but have been largely ignored by historians of both political and legal thought. (more…)
Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries
James Donovan takes a comprehensive approach to the history of the jury in modern France by investigating the legal, political, sociocultural, and intellectual aspects of jury trial from the Revolution through the twentieth century. He demonstrates that these juries, through their decisions, helped shape reform of the nation’s criminal justice system. From their introduction in 1791 as an expression of the sovereignty of the people through the early 1900s, argues Donovan, juries often acted against the wishes of the political and judicial authorities, despite repeated governmental attempts to manipulate their composition. High acquittal rates for both political and nonpolitical crimes were in part due to juror resistance to the harsh and rigid punishments imposed by the Napoleonic Penal Code, Donovan explains. In response, legislators gradually enacted laws to lower penalties for certain crimes and to give jurors legal means to offer nuanced verdicts and to ameliorate punishments. Faced with persistently high acquittal rates, however, governments eventually took powers away from juries by withdrawing many cases from their purview and ultimately destroying the panels’ independence in 1941. (more…)
Domestic Secrets: Women and Property in Sweden, 1600-1857
Between the seventeenth and nineteenth centuries, women’s role in the Swedish economy was renegotiated and reconceptualized. Maria Agren chronicles changes in married women’s property rights, revealing the story of Swedish women’s property as not just a simple narrative of the erosion of legal rights, but a more complex tale of unintended consequences. A public sphere of influence–including the wife’s family and the local community–held sway over spousal property rights throughout most of the seventeenth century, Agren argues. Around 1700, a campaign to codify spousal property rights as an arcanum domesticum, or domestic secret, aimed to increase efficiency in legal decision making. New regulatory changes indeed reduced familial interference, but they also made families less likely to give land to women. The advent of the print medium ushered property issues back into the public sphere, this time on a national scale, Agren explains. Mass politicization increased sympathy for women, and public debate popularized more progressive ideas about the economic contributions of women to marriage, leading to mid-nineteenth-century legal reforms that were more favorable to women. Agren’s work enhances our understanding of how societies have conceived of womens contributions to the fundamental institutions of marriage and the family, using as an example a country with far-reaching influence during and after the Enlightenment. (more…)
Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930
Skilled workers of the early nineteenth century enjoyed a degree of professional independence because workplace knowledge and technical skill were their “property,” or at least their attribute. In most sectors of today’s economy, however, it is a foundational and widely accepted truth that businesses retain legal ownership of employee-generated intellectual property. In Working Knowledge, Catherine Fisk chronicles the legal and social transformations that led to the transfer of ownership of employee innovation from labor to management. This deeply contested development was won at the expense of workers’ entrepreneurial independence and ultimately, Fisk argues, economic democracy. By reviewing judicial decisions and legal scholarship on all aspects of employee-generated intellectual property and combing the archives of major nineteenth-century intellectual property-producing companies–including DuPont, Rand McNally, and the American Tobacco Company–Fisk makes a highly technical area of law accessible to general readers while also addressing scholarly deficiencies in the histories of labor, intellectual property, and the business of technology. (more…)
Catalonia’s Advocates: Lawyers, Society, and Politics in Barcelona, 1759-1900
Offering a window into the history of the modern legal profession in Western Europe, Stephen Jacobson presents a history of lawyers in the most industrialized city on the Mediterranean. Far from being mere curators of static law, Barcelona’s lawyers were at the center of social conflict and political and economic change, mediating between state, family, and society. Beginning with the resurrection of a decadent bar during the Enlightenment, Jacobson traces the historical evolution of lawyers throughout the long nineteenth century. Among the issues he explores are the attributes of the modern legal profession, how lawyers engaged with the Enlightenment, how they molded events in the Age of Revolution and helped consolidate a liberal constitutional order, why a liberal profession became conservative and corporatist, and how lawyers promoted fin-de-siècle nationalism. From the vantage point of a city with a distinguished legal tradition, Catalonia’s Advocates provides fresh insight into European social and legal history; the origins of liberal professionalism; education, training, and the practice of law in the nineteenth century; the expansion of continental bureaucracies; and the corporatist aspects of modern nationalism. (more…)
The Inception of Modern Professional Education: C. C. Langdell, 1826-1906
Christopher C. Langdell (1826-1906) is one of the most influential figures in the history of American professional education. As dean of Harvard Law School from 1870 to 1895, he conceived, designed, and built the educational model that leading professional schools in virtually all fields subsequently emulated. In this first full-length biography of the educator and jurist, Bruce Kimball explores Langdell’s controversial role in modern professional education and in jurisprudence. (more…)
Beyond the Prison Gates: Punishment and Welfare in Germany, 1850-1933
Germany today has one of the lowest incarceration rates in the industrialized world, and social welfare principles play an essential role at all levels of the German criminal justice system. Warren Rosenblum examines the roots of this social approach to criminal policy in the reform movements of the Wilhelmine and Weimar periods, when reformers strove to replace state institutions of control and incarceration with private institutions of protective supervision. (more…)
Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830
According to the traditional understanding of American constitutional law, the Revolution produced a new conception of the constitution as a set of restrictions on the power of the state rather than a mere description of governmental roles. Daniel J. Hulsebosch complicates this viewpoint by arguing that American ideas of constitutions were based on British ones and that, in New York, those ideas evolved over the long eighteenth century as New York moved from the periphery of the British Atlantic empire to the center of a new continental empire. (more…)
Slavery on Trial: Law, Abolitionism, and Print Culture
America’s legal consciousness was high during the era that saw the imprisonment of abolitionist editor William Lloyd Garrison, the execution of slave revolutionary Nat Turner, and the hangings of John Brown and his Harpers Ferry co-conspirators. Jeannine Marie DeLombard examines how debates over slavery in the three decades before the Civil War employed legal language to “try” the case for slavery in the court of public opinion via popular print media. (more…)
One of the major questions facing the world today is the role of law in shaping identity and in balancing tradition with modernity. In an arid corner of the Mediterranean region in the first decades of the twentieth century, Mandate Palestine was confronting these very issues. Assaf Likhovski examines the legal history of Palestine, showing how law and identity interacted in a complex colonial society in which British rulers and Jewish and Arab subjects lived together. (more…)
The Anti-Rent Era in New York Law and Politics, 1839-1865
A compelling blend of legal and political history, this book chronicles the largest tenant rebellion in U.S. history. From its beginning in the rural villages of eastern New York in 1839 until its collapse in 1865, the Anti-Rent movement impelled the state’s governors, legislators, judges, and journalists, as well as delegates to New York’s bellwether constitutional convention of 1846, to wrestle with two difficult problems of social policy. One was how to put down violent tenant resistance to the enforcement of landlord property and contract rights. The second was how to abolish the archaic form of land tenure at the root of the rent strike. (more…)
Michelle McKinley is the Bernard B. Kliks Professor of Law. She teaches Immigration Law and Policy, Public International Law, International Criminal Law, and Refugee & Asylum Law. Professor McKinley attended Harvard Law School, where she was Executive Editor of the Harvard Human Rights Journal and graduated cum laude in 1995. Professor McKinley also holds a Masters Degree in Social Anthropology from Oxford University.