Richard P. Boast
This chapter examines the connections between the field of legal history and the various ways in which claims against states by indigenous groups are adjudicated and resolved. It focuses on ‘indigenous’ and ‘settler’ relationships, and on redress mechanisms in Australia and New Zealand. In both cases, the establishment of such mechanisms arose out of political and legal conjunctures within each country, and owed little to developments in international law. The Waitangi Tribunal in New Zealand and the Native Title Tribunal in Australia have very different functions, utilize different kinds of expert evidence, and operate in very different political and constitutional settings. While both bodies require expert evidence typically provided by non-indigenous specialist researchers, the required expertise in each case is different: anthropology in the Australian case, and history in New Zealand.
This chapter examines the scholarship in the new and growing field of study of Islamic animal law. It starts by defining the field of animal law generally and then explaining what makes animal law scholarship Islamic. Turning to Islamic animal law, the chapter first explains the origins of the field and then discusses contemporary Islamic animal law scholarship, which dates to the early-twenty first century and has focused on questions of purity and the dog; causing animals harm; anthropocentricism; and slaughter and the designation of halal. The chapter concludes by identifying promising areas for future scholarship.
John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari‘a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari‘a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ‘ibadat.
Book history, understood broadly as the analysis of written communication, interacts with legal studies in two main areas: first, legal rules frame the production and dissemination of books or written documents (in many cultures); second, books and written documents can act as meaningful objects within the legal sphere. This chapter focuses on the second area and shows by way of examples how taking the materiality of the book as a starting point can help to uncover cultural structures linked to the law. The chapter demonstrates the potential of this approach by focusing on a period in which books with legal contents radically changed their function: the Middle Ages in Europe, with their shift from writing down customs in the vernacular as a means of preservation to actual law books used as works of reference. As can be shown, the design of legal manuscripts played an important role in this process of codification. But not only law books are elements of the legal sphere: the chapter also outlines the function of books in legal rituals with religious implications as well as the merging of “law” and “literature” in some medieval manuscripts. Finally, the chapter draws attention to the opportunities book history offers for research into intercultural relations and into the change of legal culture in the digital age.
H. Timothy Lovelace Jr.
In 1976, Derrick Bell, a former lawyer for the NAACP Legal Defense and Educational Fund, wrote about the inability of modern civil rights litigation to advance real racial justice. His willingness to dissent from civil rights orthodoxy would radically reshape the study of race, law, and history. The result would lead to the creation of critical race theory. This chapter begins by examining the role of historical analysis in the development of critical race theory. It then explores how legal historians of the civil rights movement imported insights from critical race theory to develop three decades of movement scholarship. Next, it charts new scholarly directions for both critical race theorists and legal historians. The chapter concludes with reflections on how legal history and critical race theory have influenced contemporary struggles for racial justice.
Leora Bilsky and Rachel Klagsbrun
This chapter attempts to depict in broad brushstrokes the development of the term ‘cultural genocide’, its connection to the term ‘genocide’, and what this can teach us about the relationship between law and history. The puzzle that the crime of genocide posits, in a nutshell, is this: how is it that a crime that was originally designed to deal with a new historical occurrence—a systemic attempt to completely erase a cultural group—turned from an encompassing concept of genocide to one limited to its physical and biological aspects? How was the cultural essence of genocide reduced to attack on ‘cultural heritage’ and then detached from the international crime of genocide and relegated to human rights and minority law under the control of nation-states?
This article offers a survey of modern scholarship on the role of custom in the Islamic legal tradition. It begins with a definition of the concept of custom and also the relationship between the two Arabic terms used for custom, ‘urf and ‘ada. The relationship of custom to other terms such as sunna, ‘amal, and istihsan is also explored. The second, and main, part of the article traces the different approaches to the study of custom in Islamic legal studies and examines the development of these approaches. Four themes or debates are identified as the main contexts within which custom has been discussed: the origins of the Sunna of the Prophet and the early development of Islamic law; relationship between theory and practice; sources of Islamic law; and legal change. The article concludes with a summary and suggestions for future research.
This chapter explores some of the ways that legal historical research has been conditioned by the concept of culture. It argues for the importance of understanding key terms of analysis in light of their intellectual history. No matter how we draw the distinction between law and culture, legal historical research becomes skewed when we presume that we are able to distinguish law from culture without attending to the intellectual and institutional history that made law and culture understandable as opposed entities separated into distinct domains. Legal historians must proceed inductively, but they also need to expand their analysis dialectically through a genealogy that conceives law and culture not as natural kinds but as inherited ideas.
Catherine L. Fisk
This chapter begins with a brief survey of different interdisciplinary approaches to the historical study of law. It then explores the growth of both halves of the law & society dyad. It explains how that growth put pressure on the conjunctive metaphor that has long been used to describe the relationship between law and that which stands outside law, whether it be society, economy, polity, or something else. It suggests that the nature of law & society approaches to history has a great deal to do with what practitioners of the historical study of law conceptualize as being required by the ampersand, or by whatever other metaphor one might put in its place.
Laura F. Edwards
This chapter explores two related themes embedded within the relationship between legal history and social history, focusing on the nineteenth century to highlight conceptual points that also apply more generally to other periods. First, it argues the field of legal history takes a broader understanding of the law than other historical fields. Moving beyond the written records, legal officials, and designated institutions usually associated with the law’s presence and influence, legal historians extend law into the realm of social history. As that scholarship shows, law flourished in many institutional contexts and even in rural byways and city streets, where it structured broad-reaching economic and cultural dynamics as well as the ordinary relationships of daily life. Second, the chapter argues that legal history changes our view of social history by exposing the law’s presence in places and relationships that most historians imagine to be far from remotely legal.
The tremendous social inequalities provoked by the laissez-faire model of state led to the advent of the ‘Social Question’ and socialism, and finally to state intervention in social matters. First, during the interbellum period, in Soviet Russia, the Fascist and Nazi regimes, and only after 1945 in democratic states where a consolidated welfare state model developed, until in the 1980s its cost began to grow untenably, and governments started cutting taxes and reducing social spending. The welfare state has impacted European legal systems in crucial aspects like the ‘constitutionalization’ of social rights; the appearance of collective bargaining as a source of law; the creation of specific procedures to solve labour conflicts, as the mixed council of workers and employers or the creation of specific public social jurisdictions; and, finally, scholarly social law, that started in Weimar Germany, and later expanded to the UK and most European law schools.
This chapter takes the phrase ‘legal history as political history’ as gesturing at two existing, perhaps by now classic debates. One is the question of political history’s meaning, or its differentiation from social or cultural history. The other is the relationship between law and politics, especially regarding the Critical Legal Studies view of that relationship. The chapter begins by briefly considering these preliminary questions. It then advances a suggestion about what to look for when trying to understand legal history as political history. It suggests that there is a body of legal history being written and published today, not generally considered as a group or in any way related, that would be considered profitably as political history. The common feature for this work is that it shows change over time in the way law functions.
As the linguistic/cultural turn of the last fifty years has begun to ebb, sociolegal and legal-humanist scholarship has seen an accelerating return to materiality. This chapter asks what relationship may be forthcoming between the “new materialisms” and “vibrant matter” of recent years, and the older materialisms—both historical and literary, both Marxist and non-Marxist—that held sway prior to post-structuralism. What impact might such a relationship have on the forms, notably “spatial justice,” that materiality is assuming in contemporary legal studies? To attempt answers, the chapter turns to two figures from more than half a century ago: Gaston Bachelard—once famous, now mostly forgotten; and Walter Benjamin—once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued two trajectories of inquiry: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of the prime elements—earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The chapter argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law and the humanities, old and new materialisms can be brought into a satisfying conjunction that simultaneously offers a poetics for spatial justice and lays a foundation for a materialist legal historiography for the twenty-first century.
This chapter suggests two broad and distinctive directions that could benefit the field of queer legal history. The first direction relates to the historical circumstances in which queerness presented a ‘hard case’ for those charged with making or enforcing law, sometimes strengthening their existing understandings of law and the legal system, but in other instances provoking a crisis of administration and adjudication or even a jurisprudential paradigm shift. This first direction, in other words, probes the ways in which queerness challenged the law of police officers, politicians, advocates, judges, and legal theorists, beyond law simply disciplining queerness. The second direction points to the profound gaps in queer legal history when it comes to thinking comparatively between different jurisdictions or transnationally across their bounds. It highlights how queerness in legal history might usefully be taken, and take us, beyond jurisdictional domains.
This chapter examines what the U.S. Constitution says about the right to bear arms. It begins with an overview of the changing meaning of the right to bear arms in American history, along with the English origins of the right to bear arms. It then considers the origins of the Second Amendment before turning to a discussion of the right to bear arms during the antebellum period, with emphasis on the emergence of the first gun laws aimed expressly at the problem of gun violence and the first cases focused on evaluating such laws in constitutional terms. It also explores the emergence of a federal Second Amendment jurisprudence during the Civil War and Reconstruction and the debate over gun rights versus gun control, and concludes by citing how the dynamics of that debate was influenced by the massacre at Sandy Hook Elementary School in Newtown, Connecticut, in December 2012.
This chapter explores the work and influence of Roscoe Pound who offered sociological jurisprudence in response to transatlantic-inspired threats to the future of the common law. At issue was the rise of social science as an alternative, civil-law-affiliated, administrative paradigm that simultaneously threatened the academic interests of the law schools, the professional concerns of the bar, and the core constitutional principles of judicial supremacy. Within this context, Pound selectively drew on European social legal theory with the goal of saving the common law from itself. The project consisted of two primary proposals for reform, one focused on the universities, the other on the courts. Through the injection of social-scientific content into legal pedagogy and research, sociological jurisprudence forged a socio-legal paradigm that together with lowering the barriers separating law from society also ensured that law would continue to exist as a distinct field of inquiry in the universities and beyond. Where the courts were concerned, sociological jurisprudence answered pressures for radical curtailment of judicial review with a narrow, formalist, construction of the deficiency at the core of the Lochner Court’s reasoning. It was a problem definition that successfully served to deflect direct attacks on judicial supremacy. Largely hidden going forward has been the extent to which the constitutional battle lines of the early twentieth century were drawn between rival, common law- and civil-law-based paradigms of administrative governance.