Legitimacies, Indian Identities, and the Law: The Politics of Sex and the Creation of History in Colonial New England

In an early-eighteenth-century legal contest on Chappaquiddick Island, Massachusetts, an Indian leader, Jacob Seeknout, appealed a ruling that under-mined his political authority. Seeknout's lawyer, Benjamin Hawes, crafted an argument that intertwined the sexual legitimacy of Seeknout's ancestors with his political legitimacy; at the same time, Hawes also linked Indians'collective chastity as a "nation" to their sovereign status. This paper examines the economic, religious, criminal, and historical contexts of this argument, exploring the history of Indians'conjugal practices and their reinvention as the criminal acts of fornication. The case illustrates some of the diverse sources of early American law, links between these legal structures and colonialism, and the importance for scholars of attending to the local level in exploring the power of colonial law to shape new racial identities.     

比较法制史:中国法律史学研究的新视角

“比较法制史”无论是作为一种学科分类 ,还是一种重要的方法论 ,长久以来一直引起人们的关注。早期的法制史学者不仅在中国法制史教学与科研中运用比较法制史的方法 ,还在《比较法制史》的教材编写上作了有益的尝试。在新中国的法制史学科发展历程中 ,学者们也很重视比较法制史。 2 1世纪中国法律史学的发展应着眼于全球化 ,及时转换研究视角 ,尽快构建比较法制史的理论体系 ,发挥其在中国法律史教学与研究中的积极作用 ,以提高法律教育的质量。     

Cape Legal Idioms and the Colonial Sovereign

A crucial element of sovereignty politics concerns the role that juridical techniques play in recursively creating images of the sovereign. This paper aims to render that dimension explicit by focusing on examples of crime-focused law and colonial rule at the Cape of Good Hope circa 1795. It attempts to show how this law helped to define a colonial sovereign via such idioms as proclamations, inquisitorial criminal procedures, and case narratives framing the atrocity and appropriate punishment for crimes. Referring to primary texts of the time, the paper explores how procedures and narratives of Cape law were also deeply involved in fashioning specific images of the sovereign in whose name it claimed to operate.     

A Short History of the British Critical Legal Conference or,the Responsibility of the Critic

The article offers a brief history of the Critical Legal Conference and the emergence of general jurisprudence as a main theoretical school in legal scholarship. It charts the aesthetic, ethical and the current political phase of the school. In the current situation of economic and political crisis, the intellectual and the critic is called to abandon the facile position of neutrality and assume the responsibility of resistance and radical change.     

Laboratories of Statehood: Legal Intervention in Colonial Africa and Today

The immense body of contemporary work aimed at ‘promoting the rule of law’ is often accused of ‘neo‐imperialism’. Yet, despite many points of contiguity between past and present legal interventions, the charge is overbroad and rarely illuminating. This article attempts to move beyond polemic to track concrete historical and structural forerunners of today's rule of law work. Focusing mainly (though not exclusively) on late imperial British endeavours, it traces colonial legal interventions over time, the techniques adopted (and rejected), the shifting normative bases of legitimacy, and moments of strategic recalibration in the face of resistance. Three broad attitudes towards law across the period are (provisionally) characterised as ‘regulative’, ‘constitutive’ and ‘institutive’ moments. In each phase, the Powers treat colonial territories as laboratories of statehood, within which experiments are conducted to locate the optimal configuration of law. In conclusion some counterparts to these moments in today's ‘rule of law’ activities are identified.     

另一重视角--近代以来英美对中国法律文化传统的研究

近代著名学人王国维先生尝说 :“诗人对宇宙人生 ,须入乎其内 ,又须出乎其外。入乎其内 ,故能写之 ;出乎其外 ,故能观之。入乎其内 ,故有生气 ;出乎其外 ,故有高致。”〔 1〕 这话说的虽然是文学写作 ,但其他学术研究大抵也有着相同的道理。我们炎黄子孙 ,生于斯、长于斯 ,要研究自己的文物典籍 ,入乎其内应当不会太难。可是要让我们完全超脱出来 ,摆脱各种感情上的瓜葛 ,俯视高瞻 ,那就不是件易事了。这就是苏轼所说的“不识庐山真面目 ,只缘身在此山中”的道理所在。相反 ,欧西人士 ,与我们远隔重洋 ,容易超脱 ;文化背景迥异 ,观察我们的…     

The Sex Right: A Legal History of the Marital Rape Exemption

How did the American legal elite come to reject the husband's privilege to rape his wife. What is the significance of that rejection. This essay traces theories justifying the marital rape exemption from the 17th century, focusing on the period focusing World War II. The history illustrates how the postwar legal elite's limited progressivism created inconsistent arguments that left the exemption open for attack, an attack that came from within the 1970s feminist movement. Radical feminist rhetoric about sexuality, rape, and marriage pulled away the last layer of theoretical support for the exemption and denounced the sex right it left exposed underneath. Connections in the 1970s, both literal and conceptual, between radical feminists and the legal elite allowed the feminist movement to discredit the exemption within that elite. To interpret the significance of that rejection, I consider how legal language affects people's senses of self. I argue that legal words like "rape,""marriage," and "husband" validate and inform people's, specifically husbands', identities in marriage. By changing the meanings of those legal words, legal reform can eventually change human behavior.     

Queer Legal History: A Field Grows Up and Comes Out

This essay examines recent scholarship on the legal history of sexuality in the United States. It focuses on Margot Canaday's The Straight State: Sexuality and Citizenship in Modern America (2009) and Marc Stein's Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010). It also reviews recent work on the history of marriage, including Sarah Barringer Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) and George Chauncey's Why Marriage? The History Shaping Today's Debate Over Gay Equality (2004), and the history of military law Defending America: Military Culture and the Cold‐War Court Martial (2005), by Elizabeth Lutes Hillman. The essay argues that this scholarship is significant because it offers a different view of sex and power than the one derived from the early writing of Michel Foucault. “Queer legal history” treats the liberalism of the 1960s‐1970s as sexually discriminatory as well as liberatory. It underlines the exclusions that were part of public policy under the federal G.I. Bill and the New Deal welfare state.     

中国法史及法史学研究反思——兼论学术研究的规律

中国法史及法史学的研究自上世纪初形成以来,在法学界或为炙手可热的学科,或为可有可无的冷门。这种冷热两极现象的背后,反映的是对学术目标的多种误读。比如,盲目地主张创新,单纯地强调学术服务于时势,本末倒置地将学科完善视为学术的目的等等。正是这种学术目标的误读,导致中国法史研究长期纠缠于方法的争论而忽视基础问题的研究。纠正学术目标误读的方式在于充分认识并尊重学术研究的规律,对基础问题的研究应在传承中创新;培养学人的独立品格,逐渐改善人云亦云的学风;将学科视为学术研究的途径而不是目的,以促进而不是桎梏学术研究的发展。     

History is Past Politics: A Critique of the Legal Skills Movement in England and Wales

In the past thirty years legal practice changed so significantly that afundamental response was demanded of legal education. Making legalskills a compulsory component in the vocational stage was an incompleteresponse. It addressed the technical competence of lawyers but leftsignificant gaps in professional preparation in terms of content andmethodology. By focusing on the educational and pedagogic implicationsof the skills curriculum the clinical movement contributed to these gaps.The Lord Chancellor's Advisory Committee on Legal Education andConduct has facilitated the consideration of a curriculum organizedaround a more imaginative integration of legal skills in order to beginto tackle these failings and prepare lawyers for the new economic andsocial challenges facing them. Solutions, however, must permeate everystage of legal education, requiring unprecedented levels of co-operationand interaction between the profession and the academy.     

侵权法的经济学理论：一个思想史的札记

"法律与经济学"理论运动在40多年的时间里成为当今美国主流法学流派之一,这在法律思想史上实属罕见。法律与经济学对法学和法律的冲击是全方位的,通过以"思想史的角度"对法律与经济学之"侵权法理论"展开讨论,重点表现在科斯的成本理论、卡拉布雷西的规则理论和波斯纳的侵权法经济分析理论。