A Separate Peace? The Politics of Localized Law in the Post‐Revolutionary Era

Law is often seen as peripheral to Southern life before the Civil War, and the South as an outlier in the American legal history of that era. In The People and Their Peace (2009), Laura Edwards demonstrates the profoundly legal nature of Southern society and takes an important step toward integrating the legal history of the South with that of the nation. Edwards identifies two dueling legal cultures in North and South Carolina between 1787 and 1840—the law of local courts, which she terms localized law, and the state law of professionalized lawyers and reformers. She argues that white women, slaves, and the poor fared better in localized law—which was based on notions of popular sovereignty and the flexible rubric of restoring “the peace”—than in state courts, which were steeped in a national culture of individual rights that led to more restrictive results. This essay questions Edwards's dichotomy between local law and state law and her depiction of the popular content of localized law, while building on Edwards's innovations to suggest a new direction for Southern legal history.     

His master’s voice: H.L.A. Hart and Lacanian discourse theory

H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact, Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law: subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content. Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory, he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore, be supplemented by other sources. Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience: obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.

Making Law in Mid-Eighteenth-Century England: Legal Statutes and their Application in the Justicing Notebook of Phillip Ward of Stoke Doyle

This article analyses the notebook of an eighteenth-century magistrate, Phillip Ward. As Ward was especially diligent in recording the rationale behind his decision-making, it offers some unique insights into the summary process. The article considers the nature of the business that Ward dealt with and the amount of discretion he exercised in making his decisions. Throughout it draws upon the growing body of work on the role of the magistracy in the eighteenth century while also engaging with the long-standing debate about the use of the law in the period. Importantly, since Ward was operating before Richard Burn published the first edition of his guide for JPs this particular magistrate drew upon his own legal experience and his father's extensive law library. So while Ward was not making up the law as he went along he was working out how to apply it to the hearings that came before him. Thus this article will be of interest to historians of crime and the law as well as those interested in the social relations of the period.     

Turning the Tables on Legal History: Parker's Common Law,History, and Democracy in America

Parker's Common Law, History, and Democracy in America joins an ongoing effort to turn the tables on “law and …” by replacing the familiar question “What can history, sociology, and cultural studies tell us about law?” with a new line of inquiry asking “What can law teach us about the reach and limits of disciplinary thinking?” In his study of the reception of common law into nineteenth‐century American jurisprudence, Parker unearths a notion of time based on stability and repetition that challenges the dominant modernist and historicist approach to the writing of law and history. Parker, however, shies away from drawing the full implications of this move and it remains unclear whether, in the final analysis, he escapes the spell of legal historicism.     

From Public Sociology to Public Philosophy: Lessons for Law and Society

The late Philip Selznick's final book, A Humanist Science, examines the role of values and ideals in the social sciences, including the study of law and society. Throughout his academic career, Selznick was committed to what he called “legal naturalism,” a sociological version of the natural-law perspective, while his critics continue to adhere to various forms of positivism. But the age-old opposition between natural law and legal positivism today may be giving way to the quest for public sociology—a sociology that promotes public reflection on significant social issues and thus functions as a moral and political force. A Humanist Science ends with a strong plea for public philosophy. Public philosophy overlaps with public sociology but is a much stronger concept. Selznick's message of public philosophy may be another of his enduring contributions to the field of law and society.     

‘I Would Prefer Not To’: Giorgio Agamben, Bartleby and the Potentiality of the Law

In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to fulfil the law, and what form of political task this would entail.     

Schauer's Anti‐Essentialism

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties (a position he calls legal anti‐essentialism), and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti‐essentialism is a defensible position fails, because his one main argument (the cognitive science argument) is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument (the family resemblance argument) is false.     

Two generations of Sutherland’s white-collar war crime data and beyond

Edwin Sutherland published his famous White Collar Crime in 1949 where he excoriated leaders of American firms for their war crimes. The names of all corporations were deleted, however, from the book by the threat of legal action. The unabridged version was published in 1983 when the Sutherland files at Indiana University were unsealed. These files can now be compared with both the 1949 and 1983 book, as well as with other evidence of corporate war crimes during World War II.     

Cyrille Fijnaut: a pioneer from the low countries

ABSTRACT

Inspired by American pioneers in the field of police research like Jerome Skolnick, Cyrille Fijnaut resigned in 1969 as a police lieutenant from the police force in the city of Tilburg, the Netherlands in order to create the opportunity to study criminology and philosophy at the KU Leuven in Belgium. At the same university, he wrote in the years 1974–1978 his Ph.D. dissertation on the political history of policing in Europe since the Napoleonic Era. This thesis became the starting point of a rich career as a professor of criminology and criminal law at the Erasmus University Rotterdam, the KU Leuven, Tilburg University and NYU Law School (Global Law School Programme). Over the years, he became an internationally renowned expert in the fields of police and judicial cooperation, organized crime and terrorism, and the transatlantic history of criminology and the criminal justice system. In these and other fields he wrote some 50 books and edited some 50 volumes, and published more than 400 articles in academic and professional journals. In addition, he was one of the founding fathers of the Belgian journal of criminology and criminal law Panopticon and the European Journal of Crime, Criminal Law and Criminal Justice. He also served as an expert in some of Dutch and Belgian committees of inquiry, e.g. the committee that investigated the safety and security problems of Pim Fortuyn, the Dutch politician who was killed in May 2002. The Dutch government rewarded him with a Knighthood in the Order of the Dutch Lion, and the Belgian government appointed him Commandeur in the Crown Order.     

Decision-Making for Life Apart

… he (the layman) can understand the basic character of the English way of legal thinking, he can identify himself with it and, above all, can make his peace with it by retaining once and for all a solicitor as his legal father confessor for all contingencies of life (Max Weber, Economy and Society, 1922¹). The tendency in England and Wales is to use a solicitor's office as the automatic first port of call without first becoming aware of the range of services and the range of options which are available to separating and divorcing couples (Looking to the Future, 1995, para 7.3).     

‘Mutual aid is present in every crisis’: An Interview with Dean Spade

The Covid-19 pandemic unravelled a crisis of the modern state, and its legal institutions on the one hand, and on the other hand of our interpretive frames—both philosophical and scientific. It is here that the idea and practice of mutual aid gains significance, both to think about how we can respond to acute crises of planetary scales as well as to the crisis of critique in the discipline of law. The task of mutual aid is not to rehabilitate law out of its crisis or to restore conditions and systems back to a state prior to a crisis. This is because, as Dean Spade says in this interview, ‘they are not broken systems needing to be fixed. They are working exactly as they were designed to work, constantly sharpening violence against targeted populations and enriching a very few people.’ Spade—Wismer Professor of Gender and Diversity at the Seattle University School of Law and a founder of the Sylvia Rivera Law Project—is a key scholar-activist voice on mutual aid in North America and Europe. He is author, most recently, of Mutual Aid: Building Solidarity During this Crisis (And the Next). In this conversation with Oishik Sircar, Spade discusses his theoretical and political influences, how he relates the idea of crisis to critique, his sobering assessment of the limitations not only of law reform but of the role of legal education in radical transformation, his own understandings of mutual aid, his favourite words, why and how he does not see himself only as a legal scholar-activist, and his vision of hope and hopelessness in times of acute and intense crises.

     

The Great Rabbit Massacre – A “Comedy of the Commons”? Custom, Community and Rights of Public Access to the Links of St Andrews

In the US courts and legal scholars have rediscovered the English doctrine of custom. In her essay ``The Comedy of the Commons: Custom, Commerce, and Inherently Public Property', Professor Carol Rose argues that customary uses of recreation lands should be upheld by courts because the highest value of such land is achieved by keeping them open to the public. Rose relies in her argument on the English doctrine of custom, but the doctrine of custom legitimates local not public use. British legal history, however, provides an example of such a ``public' common in the Links of St Andrews. In the case Dempster v. Cleghorn, the golfing public sought to vindicate their customary right to the maintenance of golfing ground as it had been ``in all times past'. This article examines the case of Dempster, and the consequent riot, and asks whether it was a ``comedy of the commons'. It concludes that despite ten years of litigation and the extirpation of the Dempsters' warrened rabbits, the case nevertheless is a ``comedy of the commons' that provides a model of the meditation of public use by local custom and community. This revised version was published online in August 2006 with corrections to the Cover Date.     

Judicial precedents in civil law systems: A dynamic analysis

This paper uses a simple dynamic model to describe the evolution of judicial decision making in civil law systems. Unlike the common law systems, civil law jurisdictions do not adopt a stare decisis principle in adjudication. In deciding any given legal issue, precedents serve a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Generally speaking, when uniform case law develops, courts treat precedents as a source of “soft” law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law. Although civil law jurisdictions do not allow dissenting judges to attach a dissent to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent among the judiciary. These cases influence future decisions in varying ways in different legal traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law. The evolution of case law under these doctrines of precedents is modeled, considering the possibility for consolidation or corrosion of legal remedies and the permanence of unsettled case law.     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

Psychosis and the Law: Legal Responsibility and Law of Symbolisation

This paper argues for the practical importance ofpsychoanalysis for criminology, an importancewhich finds its raison d'être in thenecessity that a subject be response-able for there tobe full legal responsibility. In recognising therequirement for a certain linguistic constellation tobe in evidence – namely that there be a subject ofenunciation who is able to answer for what hearticulates at the level of his statement – thecorrespondence between legal responsibility and thelaw of symbolisation, Lacan's term for theOedipus complex, is addressed. Starting from thefictitious structure of truth and its corollary, thefact that `truth is grounded on the fact that itspeaks', the unconscious emerges as a grammaticalapparatus for the production of meaning. The logic ofexception, indexed on the signifier of theName-of-the-Father, is exposed as the mechanism forthe operation of this grammatical apparatus as it isbrought to bear on the trace of subjective division.I then demonstrate the importance of division for thesubject of law by presenting the deleterious effectsof the dysfunctional grammar of psychosisthrough a study of President Schreber's Memoirs and his use of grammatical devices in orderto institute a constitutional democracy in the realmof God – and thus submit the Father to his Name.     

Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context

This article recasts our understanding of the Federal Constitutional Court's Solange decision by tracing its lineage within the domestic context and as part of a new history of EU law. The external dynamic of the decision, a moment of judicial discourse between two of Europe's highest panels, has been the focus of many studies. Much rarer are attempts to embed the decision within its internal context: the struggle within the German legal academy to accept the primacy of EU law. Central to this contextualisation is the reinvigoration of the ‘structural congruence’ theory of Herbert Kraus, which long shaped the German reception of EU law. This article recounts Kraus' theory, tracing the struggle for the German legal consciousness between three positions: constitutionalists, traditionalists, and the congruence advocates. While Hallstein's constitutionalism is most closely associated with Germany's early Europhilia, even he admitted by 1975 that Kraus had won the day.     

The Juristic Study of Law's Formal Character

Abstract. The author summarizes the essential elements of a general theory he is developing which he calls “The Formal Character of Law.” He explains that law's formal character is a potentially major branch of legal theory that is still relatively unexplored. In his view, it is possible to identify formal attributes in (1) legal rules, (2) other basic legal constructs such as interpretive method, the principles of stare decisis, legal reasons, and legislative and adjudicative processes, and (3) a legal system viewed as a whole. For example, a legal rule has, in varying degrees, such formal attributes as generality, definiteness, and simplicity. (Other constructs have other formal attributes.) Such attributes are formal in the sense that they apply to or accommodate highly variable content and do not prescribe or proscribe content. Of course, legal phenomena have other characteristics besides their formality. The author's main technique for developing his theory is to address a common set of questions to the varied formal attributes of (l), (2), and (3) above. Among other things, the answers to these questions further explicate how law is formal, demonstrate that law is not merely a means of serving problem-specific policy but also serves formal values (which may sometimes trump or limit policy), treats the relations between form and content—specially how good form begets good content and bad form bad content, explores the design and implementation of appropriate formality—its “anatomy and physiology,” and analyses the “pathology” of legal form including not only the “formalistic” (the overformal), but also the “sub-stantivistic,” and shows how the overall theory is important both jurisprudentially and in practical ways.     

Jurist in Context: William Twining in Conversation with David Sugarman

This discussion derives from extended conversations between William Twining and David Sugarman in which William talks about his latest book, Jurist in Context: A Memoir (JIC). JIC recounts the development of William's thoughts and writings, addressing topics central to his life and research. The dialogue conveys and extends the arguments on a selection of the topics addressed in the book, engaging with issues of particular interest to readers of this journal. Here, William adds a more personal commentary to his formal publications. The conversation facilitates reflection on issues such as law teaching and legal scholarship; the meaning, use, and limitations of ‘law in context’; and the role and character of jurisprudence. It also offers a fascinating window on the development of, and the struggles surrounding, legal education and academic legal thought over the second half of the twentieth century and the early part of the twenty-first.     

At the Court of the Strange God

This article revisits the decision of the Australian High Court in Mabo (No. 2)for the purpose of determining what, in the legal thought displayed in the judgments, makes the category of sovereignty exclusive of the sovereignty of aboriginal peoples. Having regard to the téchnē of legal thought, it locates this exclusion in the substitution of nation for property relations of class, sex and race and, more specifically to sovereignty as a category of a still colonial law, in denial of the partiality of the standpoint of legal thought. This article proposes the need in Australia to attend to, thoughtfully, a fantastic and reconciliatory moment in the idea of sovereignty. This revised version was published online in July 2006 with corrections to the Cover Date.     

A Welcome Conversation: Toward a New Historiography of Intellectual Property

This essay considers what tools should be used to study the legal history of intellectual property. I identify three historiographical strategies: narration, contest, and formation. Narration identifies the diverse “narrative structures” that shape the field of intellectual property history. Contest highlights how the inherent instability of intellectual property as a legal concept prompts recurrent debates over its meaning. Formation recognizes how intellectual property historians can offer insight into broader legal history debates over how to consider the relationship between informal social practices and formalized legal mechanisms. I consider Kara W. Swanson's Banking on the Body: The Market in Blood, Milk and Sperm in Modern America (2014) in light of these historiographical strategies and conclude that Swanson's book guides us to a new conversation in the legal history of intellectual property law.