This article examines the role of British imperial constitutional law in the Zionist campaign against establishing a Legislative Council in Palestine during the early 1930s. At the time, the British government sought to introduce limited self-government in Palestine through a parliamentary institution that would include both locals and British officials. However, the Zionist leadership opposed this initiative, fearing that a representative institution reflecting the country’s demographics would threaten the development of the Jewish National Home. This article explores the Zionist engagement with the British imperial constitutional experience within its campaign against the Legislative Council, emphasizing the strategic application of British constitutional law by two Zionist officials, Leo Kohn and Chaim Arlosoroff. Through this case, the article highlights the influence of British constitutional law on interactions between national movements and the British Empire. It argues that the British imperial system offered an adaptable and flexible political framework. The Zionists’ attentiveness to this flexibility not only sheds light on the interplay between Zionism and the British Empire during the mandatory period but also underscores the place of constitutional flexibility in political debates within the British Empire.

Witness testimony in a judicial setting is commonly viewed as a form of evidence—a means to inform a judicial body of relevant facts in a given case. In this perspective, witnesses are merely instrumental to the process of adjudication. While this viewpoint provides a useful account of how we think of witness testimony in courts today, it is illsuited to the way witnesses and their role were perceived in the ancient world. Drawing on a cross-cultural analysis of ancient and late antique texts, the article recovers a different perception of the role of witnesses that once prevailed in the societies that gave rise to Western civilization. According to this alternate view, witnesses were not seen as passive providers of information but rather as active agents with the power to adjudicate—a role that we would now associate with judges. The article offers a new conceptualization of this historical transformation, outlining two paradigms that can help us critically examine the implied assumptions about the role of witnesses in adjudication: “the instrumental paradigm,” which is dominant in contemporary thought, and “the authoritative paradigm,” emerging from ancient texts, wherein witnesses held a far more authoritative role than the contemporary understanding suggest. The study argues that the instrumental paradigm reflects a radical transformation in the meanings of testimony and witness as legal concepts—a shift that marks an unexamined revolution in the history of legal thought.

The article was inspired by Justice Alito's selective and often misleading use of the medieval history of abortion law to justify the overturning of Roe v. Wade. Hoping to offer a corrective view of the larger conversation about abortion during the premodern era, this article hopes to drive home a number of points. First, modern authorities need to acknowledge that the word “abortion” (aborsus) meant something different then than it does now. Second, at its origins, abortion was conceived as a crime against husbands, and thus it falls into a larger body of misogynous law designed to protect men and their heirs from women who exploited their reproductive potential to trick men out of their rightful inheritance. And third, medieval laws against those who provided abortions labeled them as witches or poisoners. Medieval laws about abortion are thus intertwined with fears of the devil and of the woman's body as poison.

Our aim is to illuminate the persistent problem of evidence in cases of sexual violence in conflict zones by investigating the relationship between archival practices and processes of legal redress. This special issue consists of six essays, with contributors drawn from the disciplines of history and law. In temporal terms, the cases range from the seventeenth century to the late twentieth century; spatially, they address conflicts in Africa, Asia, Europe, and the United States. The case studies each offer an overview of “their archive,” explain its creation and limitations, and address its political logic and uses. As we interrogate archives, where evidence of sexual violence is located, it is critical that we note three things. First, to understand the nature and political construction of the archive. Second, to use this insight to interpret and assess the nexus of power relations within which historical and contemporary actors operate. Finally, to remember the inescapable limits of the evidence that shape the pursuit of justice, past or present.

As part of the seventeenth colonial conflagration, known as “Wars of the Three Kingdoms,” incidents of sexual violence—stripping, castration, mutilation, rape, gang rape, and reproductive violations—occurred against women and some men across Ireland. The historical and legal evidence for this violence was recorded in witness statements that form part of an archive, known as the “1641 Depositions.” This article examines this extraordinary archive, now housed in Trinity College Dublin and published online, especially the witness testimony provided by Protestant women. It explores how sexual violence was reported and then politicized. Though testimony that related to sexual violence was rarely used in the courtroom, Protestant propagandists—from the seventeenth to the twentieth centuries—manipulated these accounts to instill fear and justify retribution.

This article reappraises the early intellectual formation of the medieval “lex mercatoria” thesis: the idea that the international merchants of medieval Europe (or perhaps beyond) enjoyed a universal, autonomous, and customary body of commercial law created and administered by themselves. The debate over its existence, raging for at least 120 years, shows no signs of slowing, in part because the idea is of undoubted usefulness to both proponents (so-called “mercatorists”) and critics. The article offers a new account of the origins of this idea and looks to disaggregate different mercatorist conceptions. Revising the conventional genealogy that traces the theory through the work of Berthold Goldman to the nineteenth-century German scholar Levin Goldschmidt, who is much misunderstood in Anglophone scholarship, it argues that the idea’s powerful re-emergence in the second half of the twentieth century was mediated through two distinct channels, one centred around the British-German jurist Clive Schmitthoff and the other around the British historian William Mitchell. The latter yoked Goldschmidt’s emphasis on the medieval merchant class as a source of legal innovation to a thoroughly Anglophone concept: the “law merchant”. Critics, however, have engaged primarily with Schmitthoff’s conception, whose “strong” mercatorist argument was not only unusually forthright but reoriented the debate to focus on commercial law’s supposed autonomy from the law of territorial states, an even less plausible proposition in historical terms.

This essay explores a key stage in the legal history of the concepts of consent and guilt in cases of rape, namely in twelfth-century canon law in the work of Gratian and the early canonists who commented on his Decretum. It substantially revises the account that currently exists in scholarship and explains that confusion between raptus and rape and a limited read of the Decretum have combined to provide a problematic picture in which, it has been claimed, neither Gratian nor broader medieval canon law took rape seriously as an offence. The essay focuses on the underexplored Causa 32 in the Decretum and discusses how Gratian very directly addressed forced coitus in that section of his text, both condemning it and exonerating women of all guilt who are forced to have sex without their consent. Gratian and the decretists ended up changing the discourse on rape, in part through their treatment of both Lucretia of Roman legend and an early Christian martyr, Lucia. Their considerations, which intersected with theology, resulted in a legal principle that a raped wife cannot be charged with adultery. Since their considerations could also be applied to any rape victim, their work is important for the development of rape law and legal notions of consent.

Kenya's first post-colonial government, under Prime Minister Jomo Kenyatta, came to power in December 1963 having adopted emergency powers and security legislation that had been used in the colonial suppression of the Mau Mau rebellion. Kenyan nationalists opposed this authoritarian and often draconian legislation in the 1950s for its abuses of human rights and excesses of state powers. This article explains how Kenya's nationalists came to accept and adopt this legislation, illiberal emergency powers becoming a key element in the protection of the fragile bureaucratic-executive state after 1963. An account is given of how colonial security officers used emergency powers in the counterinsurgency against the Mau Mau. In the decolonization process, the continuing activities of Mau Mau's Kenya Land and Freedom Army, the shifta secessionist movement in the Northern Frontier District, and political opposition from within the Kenya African National Union (KANU) party threatened Kenyan stability. To combat these challenges, colonial officers and nationalists alike agreed to retain colonial security laws, especially the Preservation of Public Security Ordinance. The legacies of colonial law therefore remain prominent in Kenya's security legislation and have been used as recently as 2023 to deal with perceived threats to the bureaucratic-executive state.

The years immediately following the issue of Magna Carta and the death of John were of fundamental importance in determining the trajectory of the nascent common law legal system. Although the existence of the Bench had functionally been permanently established under chapter seventeen of Magna Carta, the central royal court faced an uncertain future under conciliar rule and in the aftermath of extensive civil conflict. The extensive extant records of the common law fines made to initiate actions in the Bench as recorded the Fine Rolls offer a window into the roles played by the court in relation to litigants, within the wider structure of royal governance, and in relation to a rapidly evolving legal system. An analysis of these sources can therefore both illuminate the early workings of the common law legal procedures and characterize the demand for royal justice that survived the First Barons’ War before continuing to grow across the thirteenth century. What emerges is a picture of a judicial system at the onset of a period of rapid development and widespread demand that would come to lay the foundation for the massive expansion of royal justice that was to follow throughout the reign of Henry III and beyond.

France ceded territorial claims to Newfoundland to Britain in the 1713 Treaty of Utrecht, but French fishermen retained rights to operate seasonal cod fisheries along a stretch of coastline known as the French Shore. The treaty was one of several laws formalizing the property regime based on the commons that emerged among European fishermen in the sixteenth and seventeenth centuries. Several demographic and geopolitical changes converged after the Seven Years’ War (1756–63) to raise the question of whether French fishing rights on the French Shore were exclusive or concurrent with British fishing rights on that coast. Treaty and customary law seemed at odds on this question, forcing fishermen, merchants, naval officers, and ministers to articulate what constituted property and how property should be conceived if an interimperial commons were to work. The conflicts that transpired highlighted how they answered these questions differently. Agents of the state tended to promote the commons while some British subjects tried to create a real property regime from below. Disputes over real property formation on the French Shore show another dimension of the early modern enclosure process, demonstrating both the role of the commons in empire and the challenges of resource management in an interimperial space.

This article offers a forensic analysis of one key archive of sexual violence: The official record of a congressional investigation of the Ku Klux Klan and federal trials of Klan members in the years immediately after the American Civil War. The 13 volumes constitute the single most important source of victim testimony on white supremacist violence and are used widely by historians. It also presents daunting problems of interpretation particularly with respect to sexual violence. This analysis challenges historians’ traditional accounts of the Klan as overly reliant on the Republican party narrative that it constituted the terrorist arm of the Democratic party intent on suppressing black men’s new constitutional right to vote.

As I argue here, the Klan’s campaign of terror aimed at something far more, as the routine deployment of sexual violence against women reveals. Sexual regulation was the very core of white supremacy. The representation of the Klan in the official record—its signature acts, motives, and victims—was shaped not by the patterns of the violence itself but by the objectives of the investigation in the battle over public opinion and political strategy. In time and place, I argue, the narrow framing of Klan violence around electoral politics involved real costs to black women victims of the Klan with respect to the protection of their civil and political—or human—rights.

When the British East India Company (EIC) conquered the West Himalaya region in the 1810s, it faced a critical challenge commonly encountered by colonial empires: determining the extent of intervention in intracommunity criminal matters among colonized subjects. This article examines the archived correspondence of colonial officials regarding this challenge and scrutinizes the various arguments made for and against intervention. It shows that the alterity of the subject population was strategically employed by both sides of the debate, who simultaneously promoted contradictory agendas: for those advocating intervention, alterity rendered involvement in criminal matters necessary and just, whereas those averse to intervention employed the very same notion to justify the opposite stance. This dual usage is explained by exposing the contemporary ideas about criminal justice that underlay each of these positions: that criminal law should represent the general will of society, and that it must be executed by a centralized power so as to maintain public order. While these two tenets are commonly perceived as supporting one another, the analysis reveals their decoupling in colonial settings. The debates of EIC officials thus demonstrate how the colonial setting distorts ideas foundational to modern criminal law systems, casting doubt over whether they were ever truly in harmony to begin with.

From a comparative perspective, this paper argues that early Chinese empires lacked the concept of talion or tort law when malicious violence or intent became factors. Instead, wrongdoers were required to pay fines to the government or received punishment as hard labor for the state. Victims not only could not receive compensation but were sometimes punished along with the offender if their loss was perceived as a loss to the empire. I argue that the absence of corrective justice in criminal cases can be traced back to the philosophical underpinnings of the body politic, a prominent discourse in early China that viewed the emperor and the people as a single, organic entity. When people were conceived of as constituting a unified, singular entity, criminal actions against an individual were interpreted as damage to the empire. Therefore, punishments for offenders were designed to compensate the empire, not the individual. Furthermore, in the context of the body politic, the suffering of both victims and offenders was regarded as metaphysically equal, which justified frequently pardoning culprits on a large scale to secure harmony within the empire. Originally, the body politic was employed to admonish and criticize the throne, urging the emperor to align his interests with the well-being of his people, but in practice, it compromised the practice of justice.

To those living through them, the Elizabethan and early Stuart years of England’s history seemed unusually riven by plots and conspiracies. Protestants feared the public effects of the private machinations of the Scottish queen and her supporters, of Jesuits, and of perfidious “papists” more generally. Catholic polemicists countered with narratives of dark deeds done by men who subverted rather than served the Crown: “secret histories” circulated that warned of William and Robert Cecil, the earl of Leicester, and others undermining the public state of the realm.1 Very real conspiracies by men such as the Earl of Essex and Guy Fawkes fostered fears of others. From the hard and hungry 1590s, protests against enclosures and lack of food became so common and concerning that the authorities contrived to brand some such riots as the products of treasonous conspiracies that threatened not just particular landlords or grain merchants but the public at large.2 Over the early seventeenth century, fears of covert machinations by both the poor and the powerful only increased, culminating in the fear that King Charles himself had become a pawn in a Catholic conspiracy that endangered the lives and liberties of his subjects.3 Talk of plots and conspiracies—real and imagined—abounded in an increasingly divided and discordant political culture, seen as threatening a “public” they arguably helped to create.

The essay deals with the rape component of the Muslim Turkish massacres of Christian Armenians, Greeks and Assyrians during the years between 1894 and 1924 and the pertinent archival sources. During the three bouts of massacre, amounting to staggered genocides, in 1894–1896, 1915–1916 and 1920–1924, in which the Muslim Turks, under Ottoman imperial governments and, subsequently, under Ataturk’s Nationalist/republican rule, murdered some two million Christians, tens of thousands of Christian women were raped and/or forcibly abducted to Muslim households and Islamized. While almost all Turkish official records of these events have been destroyed or slicked away, archives in the West - US, German, French and British state archives and archives of missionary societies then operating in Asia Minor - are open to researchers and abound with materials that describe and analyze the massacres and the rapes and abductions that accompanied them. The essay lays out what happened and why, and how researchers have traced what happened.

In this article, the author examines the influence of Immanuel Kant’s philosophical ideas on Hans Kelsen’s early theory of international law. He situates Kelsen’s work within the post-World War I context, where Kant’s vision of perpetual peace significantly impacted the creation of international organizations. The article delves into Kelsen’s seminal work “Das Problem der Souveränität und die Theorie des Völkerrechts,” exploring how Kelsen’s pure theory of law parallels and diverges from Kant’s concepts. While Kelsen’s ideas were shaped by Kantian philosophy, particularly in promoting a lawful international order, Kelsen transcended Kant by developing a more rigorous, epistemologically grounded legal theory. The author argues that Kelsen’s adaptation of Kantian principles reflects both a continuation and transformation of Kant’s vision, tailored to the political and cultural challenges of early 20th-century Europe.

The article interrogates testimonies of sexual violence against women, like rape, abduction, forced conversion, and forced marriage, during the partition of India in 1947. Unlike sites of violence such as Rwanda, there were no commissions set up either by the successor governments in India or Pakistan or by international agencies to investigate the massacres. Partition violence does not easily fit into the usual frames of genocide or ethnic cleansing used in academic writing on conflict. In the absence of identifiable perpetrators and villains of the partition violence, members of a community were perpetrators wherever they dominated and victims where they were few. The archive for this article consists of statements by survivors and observers of the massacres to the local authorities; for example, army officers and social workers supervising the “recovery” of abducted women or running refugee camps. Interviews were conducted with survivors of the partition many years later, which are generally marked by silence about sexual violence. Questions arise about the meager testimonies and the bias in the archive regarding selection, collection, and publication. Ethical issues abound, including the selective appropriation of testimonies for political ends. Were women silent because disclosure would invite stigma, or is it that trauma is expressed by silence? And finally, how do survivors move toward closure?

Over the course of the eighteenth century, Russian rulers released dozens of decrees about petitions. First, the decrees regulated the format of petitions, emphasizing their formulaic nature and moving them away from the personal appeals with supplication and abasement that were present in earlier centuries. These decrees recognized that petitions were essential to the administrative functioning of the imperial Russian state but saw them as akin to forms or applications. Second, the decrees stated firmly that petitioners should not approach the ruler directly. In part, these decrees reflect the rulers’ irritation at being endlessly bothered by personal requests, but Russia’s rulers also gave a more serious justification for the ban on personal appeals: they had established the rule of law, which meant that their subjects did not need to bother them personally and instead should clearly know other authorities—courts, governors—to address for aid. While efforts to change the format of petitions largely succeeded, efforts to curtail petitions directly to the ruler largely failed. That failure likely reflects several factors: inefficiencies in the judicial or administrative system, contradictory laws that still made space for petitions because they were useful, and because they held the promise of getting help quickly.

This article makes the case for recognizing the connection between the Poor Law and the Adoption of Children Act 1926. A child who received welfare under the Poor Law could be de facto adopted by the guardians as early as the late-nineteenth century. Very little is known about this type of de facto adoption which is a significant gap because over 10,000 children were adopted in this way, and it provided the basis for latter de jure adoption. This article initiates the process of filling this gap by exploring archival resources to determine why children were de facto adopted under the Poor Law before the introduction of de jure adoption in 1926. Understanding this form of de facto adoption is important because it was justified as a mechanism of child protection, but this article contends it was another form of punishment designed for families experiencing material deprivation which directly influenced the law on de jure adoption in England. By establishing the connection between the 1926 Act and its Poor Law predecessor, the de jure adoption framework can be contextualized within its wider social history which is embedded in class conflict and distrust toward impoverished families.

The article concentrates on the massive project of popularizing the court system and penal practice in the German Democratic Republic (GDR) in the 1960s. From then on, the GDR transferred a considerable amount of jurisdiction to collectives, which were further assigned the task of adjudicating “close to the people” within and alongside the existing legal system. We will analyze how the government, with this project, managed to translate the ideological task of sanctioning the inner-state enemy into existing legal concepts and how it used law as a means to advance its political aims. By focusing on the judicialization of politics in the GDR, the article examines the legal history of the GDR as an important example in the broader and pressing phenomenon of the relationship between law and authoritarian politics.