Hermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.

This article explores how colonial law in India interacted with the construction of caste rank (varna) between 1860 and 1930. It specifically tracks contestations over Kayasthas’ legal varna rank in northern and eastern India through various inheritance disputes, threading them together to shed light on how courts sought to anchor their interpretations of Hindu law around the Indian jurisprudential conceptions of varna. It examines the successes and failures of Kayasthas to have favorable legal rulings that would uphold their status as “twice-born”/dvija, demonstrating that colonial law was limited in its ability (and often indifferent) to construct caste ranks. Inconsistent ruling in provincial courts pushed Kayasthas to seek taxonomic recognition as “twice-born” in the colonial census, demonstrating how colonial law and taxonomy intersected in novel ways. This article argues that by taking a novel approach to Indian social history through the prism of law, we can enrich our understanding of how modern notions of caste and social rank were constructed in colonial India.

This article argues that American jurists fashioned new understandings about the capacity of states to legislate about marriage through regulating the intimate lives of enslaved and newly freed individuals. This article does so through analyzing the creation and impact of a little-studied 1809 law in New York that legalized the marriages of enslaved people—while individuals were still enslaved—as part of the state's process of gradual emancipation, which occurred from 1799 to 1827. In New York, by legalizing enslaved people's marriages, jurists privatized financial liabilities within soon-to-be freed families. The law stood at odds with national juridical understanding about marital regulation. Jurists in the early republic were uncertain about whether states could legislate about matrimony. Southern states after the Civil War then cited and replicated New York's logic in legislating to legalize the marriages of freedpeople, similarly privatizing financial claims within families. In the cases of both New York and national emancipation, jurists, in choosing privatization, foreclosed possibilities for a different or broader vision of state support for freedpeople, such as reparations. After making marital laws about slavery, both New York and Southern states created and/or tightened their marriage laws, further inscribing understandings of the marital family into American governance. This piece contributes to historiographies of slavery, the American state, and intimacy.

This article unravels an important historical conjuncture in the making of modern US citizenship and alienage by drawing on the state's regulation of naturalization as it relates to Asian immigration in the early twentieth century. My primary concern is to examine the socio-legal formations that constructed the thick distinctions between the modern US citizen and alien along the lines of racial difference and racial capital. Specifically, this article argues that Asian immigration to the United States remade the modern US citizen and alien in two significant and interconnected ways. First, it underscores how the adjudication of race in US courts and connected political campaigns re-mapped race in the United States and sharpened the racialization of Asia and Europe in profound ways that ultimately produced immigrants from southern, central, and eastern parts of Asia as the modern US alien. Second, the debate over Asian immigrants’ eligibility to naturalize refashioned legal status as a normative avenue to sustain a regime of racial capital. It cast citizenship as a legal avenue for White men and families to acquire and protect a proprietary interest in citizenship and recast some Asian immigrants as permanent aliens in a period when alienage came to signify disposable immigrant labor. The article concludes by distinguishing how the struggle for US citizenship by Asian immigrants frames the epistemological parameters and political vocabulary of immigration and naturalization reform.

In eighteenth-century, colonial Sri Lanka, the Dutch church kept extensive registers of the local population. These “school thombos” contain individual registration of baptism, marriage, school attendance and death. This article argues that the school thombos reveal moral control over family life by the Dutch East India Company and the Dutch Reformed Church, while offering locals a legal and religious identity to employ in negotiating the Dutch colonial bureaucracy. These rarely studied registers shed new light on Sri Lankan family history and the practices of Dutch colonialism. What do they tell us about conjunctures of locals with colonial religion in eighteenth-century Sri Lanka? The school thombo was an instrument used to register and regulate family life, with specific functions and uses by different actors. This article explores the format, objectives and use of the school thombo. Why was the school thombo created and who were registered in these sources? What were the micro practices of drawing up the school thombo? The article is supported by several case studies that illustrate how the school thombo found its way into family life while demonstrating the value of written identities.

This paper aims to consider four elements of Burmese constitutional history between 1946 and 1948. The first section considers the negotiations between Burma and the United Kingdom and argues that the debate about whether Burma wanted Dominion status has overlooked the crucial transitional government period. The second section gives a brief overview of the drafting process, paying particular attention to the links between the Indian Constituent Assembly in Delhi and Rangoon. The third section outlines the comparative influences on the Burmese Constitution using the digital humanities and illustrates that the biggest foreign influence was the Irish Constitution of 1937. The final section looks at the Burmese political leadership after World War II along two dimensions—at a nationalist level and at an elite level—and traces some of the links between Burma and Ireland.

This article examines Persian-language orders—parwanas—issued by regimes that succeeded the Mughal Empire in South Asia, to European trading companies. Focussing in particular on the mid-eighteenth-century exchanges between the Nizam of Hyderabad; the Nawab of Arcot; and the French Compagnie des Indes, we see how Mughal-style parwanas, or sub-imperial orders, previously used to give instructions or to make or withdraw grants, were transformed into a form of political currency. They were now used to exchange military and fiscal resources between South Asian state-builders and militarised European corporations, and to secure political legitimacy for all within a putative Mughal imperium. Moreover, the legal fiction of Mughal sovereignty led to a grants race, such that rivals—European and South Asian—sought more and more parwanas, while also querying the legitimacy of authorities that issued them. The very fragility of the Mughal empire and the lability of the political landscape in eighteenth-century South Asia was thus generative of prolific Persian legal documentation, as well as its rewiring to novel uses. European empire-builders negotiated this legal landscape with only partial literacy, consequently fetishizing the material aspects and ceremonial accompaniments of Persian legal documents, and according them power beyond their immediate substance.

“They look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death,” Jonathan Swift famously wrote of the fictional island of Lilliput in Gulliver's Travels. Appearing as an epigraph of Edward Balleisen's Fraud: An American History from Barnum to Madoff, it invites comparison of Lilliput with the United States, not least because it is paired with a 2007 quotation from the former Federal Reserve Chairman Alan Greenspan, who was rather more philosophical about fraud. As the world teetered on the edge of economic crisis, he wrote it off as a regrettable but inevitable part of “the way human nature functions,” suggesting that “what successful economies do is keep it to a minimum.” Looking backward, Balleisen finds greater ambivalence in the historical record, as a matter of both human psychology and American law. From the nation's founding, he observes, “the country's lionization of entrepreneurial freedom has given aid and comfort to the perpetrators of duplicitous schemes.” But this is not to say that they have been allowed to act with impunity. To the contrary, their creative deceptions have inspired a wide array of anti-fraud initiatives, operating “at the leading edge of regulatory innovation.” In chronicling these conflicting and conflicted pursuits of profit and justice over the course of two centuries of American history, Balleisen brilliantly elucidates an enduring dilemma of governance: how to promote ingenuity without undermining “‘the capital of confidence upon which all progress depends.’”

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

In the fall of 1989, the queer community became embroiled in a fierce debate over whether to press for marriage rights. Two attorneys from Lambda Legal, a leading gay and lesbian rights organization, set out the competing considerations in the pages of Out/Look, a community magazine. Tom Stoddard, the then-executive director, argued that the movement should prioritize marriage rights because that strategy provided the surest path to equality. Paula Ettelbrick, Lambda's Legal Director, disagreed. She conceded that marriage provided “the ultimate form of acceptance” and “an insider status of the most powerful kind.” That fact, however, was the problem. Gays and lesbians, she argued, should not be focused on assimilating to the mainstream, but rather should pursue justice for those who were different.

In 2021, Anna Lvovsky published Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall with the University of Chicago Press. The book studies gay communities’ confrontations with criminal law in the mid-twentieth-century United States. Lvovsky, a professor of law and affiliate professor of history at Harvard University, pays particularly close attention to law enforcement practices that aimed to police homosexuality, as well as “the gay world's confrontations with the law.” What results is a complex story of regulation and contestation that spans several decades, which is poised to not only influence how historians understand the policing of sexual difference, but also push forward understandings of the United States war on crime and the inter-related rise of the carceral state.

In this article, we explore the “probate regime,” an administrative field of government activity of legally transferring, taxing, and administering bequests. As an example, we study the changes of the Egyptian probate regime in a longue durée perspective, with a focus on the nineteenth century when Egypt was a sub-Ottoman “khedivate.” We argue that the rationalization and expansion of the previously Ottoman administration of bequests, unlike Western bureaucracies, retained religious norms in the 1850s-1860s. In the context of Egyptian legal transformation, the change in the probate regime represents a case when Islamic norms became contested between administrative bodies of the government and the Muslim judge (qadi). Drawing on novel archival research in Egypt and elsewhere, we first consider the institutions of the Ottoman probate regime (probate judge, fees, and a probate bureau). Next, we zoom in on the way the khedivial probate bureau became a large, de-Ottomanized, Muslim administration of death by the 1870s in a partnership between khedives and local jurists. The khedives also considered the orphans’ wealth under the care of the bureau a source of government capitalism. Despite the abolishment of the probate bureau in 1896, the khedivial transformation ensured that Muslim principles remained normative during the British occupation which ushered in a new division of law into “religious” and “civil” legal domains.

Northern Brazil experienced consequential socio-economic and legal transformation by the mid-eighteenth century in the context of imperial reforms. If the region relied for decades on the enslavement of Indigenous Americans, the Portuguese crown banned the practiced in 1755. To develop a plantation economy, the monarchy created a trading company responsible for shipping unprecedented number of enslaved Africans. This article discusses ruptures and continuities on the enslavement of Indigenous Americans. It focuses on one city, São Luís, and makes extensive use of Catholic sources (baptisms and marriages), notarial records, and legal cases. The article analyzes the connection between mechanisms that allowed the resilience of slavery (or forms that resembled slavery) and attempts to claim and preserve freedom or autonomy, in this case the strategic use of the índio status. The article develops two of those mechanisms: social dependencies created within the households and the use of socio-racial classifications by the colonial society. I make two interconnected arguments. First, I propose a bottom-up process of Indigenous slavery abolition. Indigenous workers were savvy litigants and they fought for their place as mobile wage laborers within the city. Second, in that moment of socio-economic and legal transformations, slaveholders developed vernacular practices stressing black maternal origins to slaves.

During the 1830s, the Bushranging Act and the Vagrancy Act were crafted to prevent crime, revolt and insurrection in the colony of New South Wales. These statutes contained exceptional methods to police and control colonial populations and suspended legal safeguards designed to protect the population from abuses of power. Supporters of the laws argued that extreme measures were necessary due to the emergency of the occasion. Understanding the Bushranging Act and the Vagrancy Act’s enactment and operation, as well as the purposes they were designed to serve and the liberties they infringed to achieve these ends requires attention to local circumstance. A fine-grained analysis, rooted in the peculiarities of life in colonial New South Wales and anchored by the law’s operation on the ground is needed to understand the malleability of British law at this place and at this time. In this article, I argue that rather than a select criminal contingent, the New South Wales’ authorities increasingly feared that the composition of the colony threatened their colonial enterprise. The Bushranging Act of 1830 and the Vagrancy Act of 1835 contained wide coercive and discretionary powers to mitigate the extent of this threat.

This article studies the registration practices of land and property on palm leaf deeds (olas) in Sri Lanka, in relationship to the advent of paper land grants (giftebrieven) under the Dutch East India Company (VOC)’s rule in the long eighteenth century. A database of about 2500 Dutch land grant deeds and translated olas, ranging from 1685 to 1795 are contextualised via judicial records of Dutch civil courts, where (translated) olas were regularly used as evidence. Not only does this allow us to track the geographical encroachment of Dutch power over coastal Sri Lanka as part of a colonial transition, but at the same time shift the perspective to study which individuals and communities on the island engaged with Dutch land bureaucracy. In doing so, we showcase the continued importance of traditional ola deeds and (pre-)colonial registers for both local land owners and the colonial bureaucracy itself, regardless of the Dutch government’s push for paper, attempted to delegitimise the local ola recordings, and acts of symbolic violence to infringe on both the materiality as well as the perceived importance of palm leaf deeds. In the long eighteenth century several paper and palm leaf realities coexisted in Sri Lanka and at times conflicted, entangled, and convoluted within and outside the bureaucratic institutions to form what ‘material pluralism’ within a larger context of legal pluralities.

Unlike whipping, which was quickly abolished following independence, India has continued to hold tightly to the noose’s rope and remains a retentionist country to our present day. Notably, though the number of executions would fall dramatically in the first decades of India’s postcolonial history, the list of crimes made punishable by death has grown ever longer in recent years. Rather than positing the continued presence of the death penalty as an anachronism ill-suited for a modern democracy, this article takes seriously the legal and discursive developments that allowed the most infamous of penal institutions to travel safely across India’s twentieth century. From something that begun as a distilled expression of racialised colonial state power, like many other state institutions during this period, the death penalty would undergo a series of changes to remain relevant amidst new organizing political principles of representative democracy and popular will. Moving from the first formal efforts at abolition in the 1920s, through constitutional assembly debates in the 1940s, and Supreme Court judgements between 1967-83, the article positions capital punishment as a product of both deep colonial inheritances, and a particular process of postcolonial translation. Becoming fully couched in the language of popular sentiment by the culmination of this legal transformation, this violence would become well-positioned to grow within a national political culture increasingly organised around majoritarian expressions of national belonging.

Historians use a wide range of terms to talk about premodern partner choice conflicts, ranging from rape to ravishment and elopement. This variety largely stems from the ambiguity and multivalence of some terms frequently used in medieval England, like the intensely scrutinized term raptus. Through a study of the language used in late medieval legal texts and judicial records from the Low Countries, this article shows that medieval Flemish had a specific term to describe an offense not captured by any other term available, namely schaec. Authorities clearly distinguished between schaec, that is the seizure of women for marriage, and rape, the seizure of women for sex. Yet, the Low Countries’ multilingual legal culture as well as the ambiguity that was inherent to many abductions with marital intent, continued to make it difficult for judges to label the cases they encountered as rape or schaec.

The process of law enforcement helped to shape the state in the Middle Ages. This article uses an extensive array of court records to provide the first detailed account of royal efforts to police the illegal export of wool in mid-fourteenth century England, when the wool trade was subjected to unprecedented levels of taxation and discussed in moral, as well as fiscal, terms. It shows that these efforts remained heavily centralized in terms of both personnel and institutional form when many other areas of royal law enforcement were becoming increasingly devolved. The article then situates this centralized enforcement form within contemporary criticisms of royal taxation, the place of the royal courts in the wider legal geography of commercial regulation, and the localized dynamic underpinning many legal processes. It argues that the enforcement process was shaped and, indeed, blunted by a critical debate over the extent of royal power and its place within England’s “moral economy.” By situating the regulation of the wool trade in this series of regulatory and economic contexts at a particularly important moment in the development of the late medieval tax state, this article reveals wool smuggling to be a subject of wider significance to historians interested in the nature and—particularly—the limits of royal power and royal law in medieval England.