Kluwer Law Online is an international scholarly platform dedicated to publishing high-quality, peer-reviewed research at the intersection of Law and Economics. The journal provides an academic forum for researchers, legal scholars, economists, policymakers, judges, practitioners, and graduate students seeking innovative perspectives on contemporary legal and economic issues. The journal recognizes that modern legal systems and economic institutions are deeply interconnected. Legal frameworks shape economic development, market efficiency, investment, innovation, and international trade, while economic analysis helps evaluate the effectiveness, fairness, and societal impact of legal rules and public policies. By integrating these two disciplines, the journal aims to promote interdisciplinary research capable of addressing complex global challenges. World Competition Journal covers competition and antitrust policy and issues in law and economics at the global level. Editors and contributors include highly regarded academics, practitioners, and members of the judiciary, as well as top-ranking competition law officials. Each issue brings readers up to date on trends in such aspects of competition as the following: • interaction of public and private cartel enforcement; • independence of competition authorities; • damages claims; • bid rigging; • tax incentives; and • parent company liability. The articles included in every issue are of the highest quality, evidence of the fact that World Competition has become essential reading for practitioners and academics in the field. Its aim has always been to cover all aspects – every angle – of competition and antitrust. ISSN: 1011-4548 ISSN (online): 1875-8436
Harmonization of Electronic Collaterals with Jurisprudential Foundations and Sharia Principles in Iran's Banking System(A Comparative Study of Traditional Collateral Contracts with Electronic Capabilities)
This study aims to investigate the possibility of harmonizing electronic collaterals with jurisprudential foundations and Sharia principles in Iran's banking system. Given the rapid development of financial technologies and the emergence of digital assets, the traditional legal system of collaterals based on concepts such as physical possession (qabd), tangibility (ʻainiyat), and physical value (māliyat) faces serious challenges. Using a descriptive‑analytical method and relying on library resources and a comparative study in Imāmīyah jurisprudence and Iranian statutory law, this research analyzes the compatibility of electronic collaterals with Sharia standards. The findings indicate that concepts such as "virtual possession," "constructive possession," and "customary possession" can replace traditional physical possession and fulfill the essential condition for the validity of the mortgage contract (rahn).
A Comparative Analysis of the Independence of the Supervisory Authority over Pre-charge Detention in Iranian and English Law; Challenges and Solutions
The pre‑charge detention stage (custody) represents the most critical phase in the criminal justice process, as the suspect is isolated from the outside world and remains within the sovereign domain of the police. Ensuring fundamental rights at this stage depends less on statutory texts and more on the existence of an "independent supervisory authority" capable of balancing the exigencies of crime detection with the protection of individual liberties. Utilising a descriptive‑analytical method and a comparative approach, this research explores the independence of these authorities within the legal systems of Iran and England. In English law, following the enactment of the Police and Criminal Evidence Act (PACE 1984), the supervisory model is based on administrative‑professional oversight. The "Custody Officer," who is legally required to remain independent from the investigative team, is responsible for overseeing the lawfulness of detention; however, their organisational affiliation with the police force poses challenges to their structural independence. Conversely, the Iranian legal system emphasises a judicial oversight model, where the Prosecutor and the Investigating Judge (Bāzpors) serve as the primary authorities supervising law enforcement officers (Ẓābiṭān). The findings of this study indicate that the fundamental challenge in Iranian law is the "overlap of duties" and the conflict of interest arising from the integration of the prosecution and supervisory roles within the Prosecutor's Office
Feasibility of Attributing Crimes Caused by Artificial Intelligence to Human Agents from the Perspective of Imāmīyya Jurisprudence
Artificial intelligence, as one of the leading technologies of the contemporary era, has created unprecedented challenges for legal and jurisprudential systems. Among the most significant of these challenges is the question of attributing criminal responsibility for acts committed by intelligent systems. Given that in Imāmīyya jurisprudence the default principle is the non‑responsibility of non‑humans, this research employs an analytical‑descriptive method to examine the feasibility of attributing crimes caused by artificial intelligence to human agents. The findings indicate that, based on Imāmīyya jurisprudential foundations such as the rule of lā yaḍman illā mā ʻamila (no liability except for one's own action), the rule of iqdām (initiative), and the rule of tasbīb (causation), criminal responsibility can be attributed to human agents at three levels: first, programmer liability for defective system design; second, user liability for improper exploitation; and third, supervisor and owner liability for failure to exercise necessary oversight. Additionally, secondary rulings such as lā ḍarar (no harm) and nafy al‑ʻusr wa al‑ḥaraj (negation of hardship) can be effective in limiting or expanding the scope of responsibility. Conversely, in cases where the intelligent system possesses complete autonomy and no human intervention exists in the commission of the crime, attributing responsibility to humans faces difficulties, necessitating reconsideration of jurisprudential foundations or the utilisation of new institutions such as strict liability or compensation funds.
Jurisprudential and Legal Analysis of Smart Contracts and Challenges to Their Validity in Iranian Law
Blockchain‑based smart contracts have created a fundamental transformation in contract law. This study, employing a descriptive‑analytical method and a comparative approach, examines the jurisprudential and legal foundations of these contracts and the challenges to their validity in Iranian law. The main question is to what extent smart contracts comply with the general principles and rules of contracts in Imāmī jurisprudence and Iranian law, and what obstacles exist in the way of their legal validity. The findings show that from a jurisprudential perspective, smart contracts can be analysed within the framework of rules such as "the believers are subject to their terms" (al‑muʼminūn ʻinda shurūṭihim), "obligation to contracts" (al‑ʻaqd sharīʻat al‑ʻāqidīn), and the obligation to fulfil contracts (luzūm al‑wafāʼ bi‑l‑ʻuqūd), although challenges such as gharar (ambiguity/excessive risk), lack of genuine consent, and conditions contrary to Sharia are raised. From a legal perspective, the most important challenges to the validity of these contracts include: lack of explicit legal recognition, the need to establish the coordination of the inner will with the outward expression (intent and consent), the difficulty of proving claims, the impossibility of unilateral termination in some cases, and conflict with mandatory rules (qawāʻid āmirah). The present study, through comparative analysis of the approaches of leading legal systems (the United States and the European Union) and by citing valid jurisprudential principles, offers solutions for recognising and validating smart contracts in the Iranian legal system.
Designing a Model for an Artificial Intelligence Crime Compensation Fund Based on Jurisprudential Principles
The rapid advancement of artificial intelligence technology has created new challenges in the field of civil and criminal liability. One of the most important challenges is how to compensate for damages caused by crimes committed by intelligent systems. This research aims to design a model for an AI crime compensation fund based on jurisprudential standards. The research method is qualitative, employing content analysis of jurisprudential and legal texts. The findings indicate that, by invoking jurisprudential rules such as "la darar," "tasbib," and "ghurur," the Sharia foundations of the proposed fund can be established. The proposed model comprises three levels of participants (manufacturers, users, and intelligent systems), financial resources (fines, insurance, and taxation), and a compensation mechanism (a capped system). The findings indicate that the fund is jurisprudentially feasible and that enacting relevant legislation in this field is necessary.
The Impact of Security‑Oriented Policies on the Structure and Process of Special Economic Crimes Trials in the Iranian Legal System
Special proceedings for economic crimes, as one of the tools of contemporary criminal policy, play a decisive role in ensuring economic security and public trust. However, the dominance of security‑oriented approaches in this type of proceeding has created serious challenges regarding the observance of fair trial principles. This study, using a descriptive‑analytical method, aims to explain the foundations of special proceedings, examine the impact of security‑oriented policies, and assess the degree of compliance with fair trial principles. The findings indicate that special proceedings for economic crimes are based on distinct foundations including expedited proceedings, efficiency, and prevention of the flight of the accused and the dissipation of assets. However, security‑oriented policies have transformed the structure and process of special proceedings by restricting the right to effective defence, limiting access to counsel, reducing the publicity of hearings, and restricting the possibility of appeal. As a result, the practices of special proceedings for economic crimes comply only to a limited extent with the key requirements of fair trial principles (such as the presumption of innocence, the right to defence, publicity, and the right to appeal) and in many cases deviate from the standards of these principles. This study, by presenting a balanced framework, provides solutions for legislative reform and improvement of judicial practice to maintain a balance between the requirements of economic security and fair trial guarantees.
“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.’”
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.
From Slaves to Índios: Empire, Slavery, and Race (Maranhão, Brazil, c.1740–90)
Abstract 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.
A New Foundation for Freedom of Movement in an Age of Sovereign Control: The Liberal Jurisprudence of August Wilhelm Heffter
Abstract This article addresses how a once influential but now obscure jurist addressed a potential paradox in liberal thought—between democratic control over borders and transnational rights—as it arose in the mid-nineteenth-century, amid advocacy against authoritarianism and for free trade and movement, on the one hand, and the increasing calling into question of natural law theories that may have best facilitated free movement, on the other. While scholarship has increasingly shown how the boundaries between periods of natural law and positivist hegemony are difficult to distinguish, specific tensions in the mid-nineteenth-century called for an approach that preserved free movement in light of the growing appeal of empiricism and state sovereignty. In this context, August Wilhelm Heffter proposed that states were bound by higher law as a consequence of their free decision to enter international communities: these communities’ purpose, he wrote, bred customary laws facilitating interstate interaction. Heffter’s approximation of “natural” law in a more positivist context and his use of the period’s “customary” logic helps account for his influence not only in periods of free trade and movement’s ascendancy but also the survival of forms of his thought into periods of sovereigntist reaction against them. It therefore holds potential to address what scholarship has termed today’s “liberal paradox” between democracy and migration better than approaches that emphasize a more complete return to natural law.
Beyond Somerset?: Slavery and the Temporality of Law
This article revisits the legal-historical significance of Somerset’s Case (1772) by engaging with Holly Brewer’s argument about the temporality of slavery law in the British Empire. Whereas earlier historians interpreted Somerset as a clarification of English law’s previously uncertain stance toward slavery, Brewer contends that English legal institutions had already played an active role in producing and legitimizing slavery during the late seventeenth century. In particular, she identifies cases such as Butts v. Penny (1677) as precedents through which the English crown and courts helped construct a legal framework that recognized enslaved persons as property. From this perspective, Somerset should be understood not as the resolution of legal ambiguity but as a reversal of an established trajectory in English legal thought. By examining how historians and historical actors have interpreted these precedents, the article highlights the importance of temporality, precedent, and historical interpretation in shaping the legal history of slavery. The history of slavery law thus emerges as a field defined by contested understandings of the past and by debates over which legal precedents should govern the present.
Heart Transplants, Legislating Death, and Disruptive Anti-Apartheid Advocacy
Abstract In December 1967, South African surgeon Christiaan Barnard astonished the world by becoming the first to successfully transplant a human heart. In the months that followed, a French Anti-Apartheid Committee proposed an international law to prohibit the harvest of prisoners' organs as French activists combined human rights and legal strategies to question the legality and ethics of Barnard's success. From a South Africa eager to present itself as modern and technologically advanced came an attempt to legislate use of organs from “living donors” in unspecified “authorized institutions.” In physicians' professional discussion of donor selection at an international heart transplantation symposium that Barnard convened in Cape Town, capital punishment figured as a proxy for race. Moving between South Africa, France and the United States, this article examines anti-apartheid activism, legislative innovation, and heart surgeons' attempts to normalize cerebral death and increase donors that followed the medical breakthrough in Cape Town, South Africa. It contributes to human rights history by showing how the French Anti-Apartheid Committee drew on transnational advocacy networks and legal strategies that predated the Universal Declaration of Human Rights, emphasizing collective over individual rights, deploying strategies of rupture, and actively pursuing a racially conscious, anticolonial solidarity.
The Surveillance State and the Surveillance Private Sector: Pathways to Undercover Policing in France and the United States
Abstract As a form of social control, undercover tactics played an important state-building role during the Nineteenth Century, in both the United States and France. Yet undercover policing played this role very differently in France than in the US, which made do with a less developed surveillance capacity at all levels of government. The instability of successive French regimes encouraged French political authorities to expand their use of infiltration and to privilege high policing purposes of undercover tactics over the crime-fighting purposes favored by local elites. And while nineteenth-century France, like the United States, often governed through delegations of authority to local elites, French authorities jealously guarded undercover tactics as their exclusive prerogative. As a result, undercover tactics became a marginal crime-fighting tactic in nineteenth century France, becoming identified primarily with the state's surveillance of its political opponents. In the United States, by contrast, the private sector was able to deploy undercover tactics against suspected criminals, organized labor, political radicals, and purveyors of vice. Though the private sector readily accepted delegations from the public sector, the direction of influence also ran in the opposite direction, from the private sector to the state, as American private sector used undercover tactics to replace, bypass, and harness state institutions in ways that their French counterparts could not. In the United States, the private sector's use of undercover tactics came to shape public policing, as prominent detectives entered government and brought their tactics with them, and as Progressive era reformers took up the undercover tactics pioneered by private detectives, modeled them for the state through public-private partnership, and used them to set the anti-corruption, anti-radical, and anti-vice enforcement agenda of government. If French undercover tactics helped to build the French state from the inside out, by consolidating the state's hold over territory and attempting to control disorder and dissent, American undercover tactics became a vector of private sector influence that helped build the state from the outside in by shaping both investigative means and ends at all levels of government.
Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions
Abstract This article traces how Ottoman interpretations and uses of Islamic law adapted to deal with non-Muslim rebellions between roughly 1769 and 1830. Drawing on Ottoman fatwas (legal opinions), bureaucratic registers, sultanic decrees, and chronicles, as well as British diplomatic records, it argues that the Ottoman state actively reinterpreted its commitment to the Islamic legal tradition in order to forge the law of rebellion into a weapon against both foreign and domestic enemies. The Ottomans first used declarations of rebellion to mobilize military forces against its imperial rivals, then to discourage and suppress domestic dissent, and finally to deny rebels’ sovereignty under international law. In doing so, the Sublime Porte effectively redefined sovereignty by interleaving Islamic and international concepts. The article places this development in global context, arguing that it resembled legal moves made by Atlantic states as they dealt with the Age of Revolutions. At the same time, this story shows how the Ottoman state’s commitment to Islamic law, and its employment of officially authorized scholars to interpret that law, could both license and constrain state policy. The Islamic legal tradition was flexible, but also meaningful. Interpretation occurred at different levels, and was done by different actors. While the state had significant latitude, it faced limits arising from the substance of the law and the process of interpretation itself.
Using Topic-Modeling in Legal History, with an Application to Pre-Industrial English Case Law on Finance
Abstract We argue that topic-modeling, an unsupervised machine-learning technique for analysis of large corpora, can be a powerful tool for legal-historical research. We provide a non-technical introduction to topic-modeling driven by the presentation of an example of how researchers can use the data that topic-modeling produces. The context of the example is pre-industrial English caselaw on finance. We generate new insights on the timing of pertinent legal developments, the linkages of law on finance to other areas of law, and the relative importance of common-law and equity in the emergence of law and legal ideas relevant to finance. We argue that topic-modeling has the potential to bridge traditional legal history and economics, increasing the influence of the former on the latter, which is overdue. The output of topic-modeling includes the data required to generate a quantitative macroscopic overview of the flow of legal history. These data can be used in many ways in subsequent legal-historical research. Epistemologically, topic-modeling offers an escape from the temptations of Whig history and opens up new avenues for inductive analysis characteristic of traditional historical research.
Slavery, Law, and Race in England and its New World Empire
Abstract This paper responds to Holly Brewer's article “Creating a Common Law of Slavery for England and its New World Empire.” Brewer traces a process begun by Charles I, in collaboration with his appointed judges, to legalize the buying and selling of people in England and its Empire. Brewer's work is a much-needed reconstruction of the legal precedents that transformed people into chattel, enabling the business of slavery in the seventeenth and eighteenth centuries. Yet race does not receive any engagement as a category of analysis. Missing is an account of the historical processes whereby laws about slavery contributed to racial formation. Although the global expansion of the British Empire coincided with a new emphasis on rule of law and equality before the law, bound labor and persistent questions of race, gender, status, age, nation, and boundary called attention to the contradictions embodied in Enlightenment thought and its proclaimed universal values.
Do Not Harm the Decorum”: Mixed Courts and Cloth in Colonial Indonesia
Abstract In this article four photographs of mixed law courts (landraad) in nineteenth-century colonial Indonesia are approached as a window to study the materiality and meaning of cloth in courtrooms. The photos grant access to a careful colonial curation as well as complex Javanese hierarchies that were translated onto and through cloth, and its colors and patterns. Batik sarongs, tablecloths, head scarves, robes and gowns, coats and turbans reveal a courtroom of semiotic richness and plurality where different actors were signaling different messages to multiple audiences. This emphasis on cloth contributes to an emergent and rich discussion on the importance of objects in the study of law and empire, that has primarily focused on the materiality of paper and other objects of lawmaking. In the mixed court of the landraad, it was cloth that spoke louder than words and paper. This article emphasizes that in a mixed court the display of a plural world and jurisdictional layering, complicating the binary between direct and indirect colonial rule, was more important than a monolithic reflection of state law. Cloth was crucial to the display of this plural world and used as a way to impose, maintain, alter, insert oneself in or resist colonial rule.
Taking the Courts to the Fields: Law, Violence, and Agrarian Custom in Colonial Oaxaca, Mexico
Abstract This article, part of the forum “The Everyday Materials of Colonial Legal Spaces,” analyzes how Spanish law intersected with longue-durée Indigenous histories to pattern performative judicial violence in disputes over boundary lands separating Indigenous communities. During the late seventeenth and eighteenth centuries when population growth and expansion and commercialization of the livestock industry put pressure on Indigenous lands, Native judicial officers used their coercive power and symbols of judicial authority to physically enter boundary lands and shape the course of legal disputes. By combining legal and extralegal procedures, Native officials developed customary patterns of judicial practice and performance proper to their own jurisdiction in which objects invested with political, sacred, and quotidian meaning figured centrally. Staffs of office and whips wielded by Native authorities as emblems of Indian administrative and legal jurisdiction represented one category of the everyday materials of law. Clothing, farming implements, and livestock afforded other tools with which Indigenous farmers and authorities made legal claims. When reading land disputes alongside criminal cases of land invasions across Oaxaca’s judicial archives, it becomes clear that Native officials and farmers used these objects to struggle over territory and authority in cycles of litigation, land titling or contracts of joint-possession, and violence that often endured for decades or centuries, forming an enduring facet of agrarian custom in the region.
The Reconstruction of Federalism: Foreign Submarine Telegraph Cables and American Law, 1868–78
Abstract In the wake of the Civil War, Americans contested the relationship between the federal government and states. Conflict over federal authority played out in concrete and surprising terms in a controversy that erupted in 1868 surrounding regulation of international telegraphy. The debate, which has remained largely unexamined, centered on whether a state could authorize a foreign company to land a submarine telegraph cable on American shores without Congress’s permission. Scholars have scrutinized consequences of the revision of federalism for individuals’ rights but have devoted less attention to implications for the nation’s international relations and commerce. The regulation of foreign cables, however, proved a key testing ground for the federal government’s efforts to assert sovereignty before both state authorities and other nations during Reconstruction. The episode revealed varied alliances and sources of opposition that emerged amid attempts to project federal power. It also reflected many Americans’ growing expectations of an expanded role for the national government in commerce and the international sphere—a position the federal government realized only haltingly. Intractable problems of federalism contributed to congressional inaction. While undertaking the formidable work of reconstructing the Union, the United States government struggled to delineate the physical boundaries of its authority.
The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis
Abstract At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.
Wool Smuggling and the Royal Government in England, c.1337–63: Law Enforcement and the Moral Economy in the Late Middle Ages
Abstract 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.
They Call it Schaec in Flemish”: The Language of Abduction with Marital Intent in the Late Medieval Low Countries
Abstract 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.
Protecting the Colony from its People: Bushranging, Vagrancy, and Social Control in Colonial New South Wales
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.
The Probate Regime: Enchanted Bureaucracy, Islamic Law, and the Capital of Orphans in Nineteenth-Century Egypt
Abstract 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.
The Medico-Legalization of Sex in the Nineteenth-Century United States
The rising field of medical jurisprudence in common law from late eighteenth century has led to a rearrangement of authority and epistemic power between lay and expert witnesses, in favor of the latter. Although the law had long relied on testimony from members of the community to establish the legal fact of a person's sex, the legal procedure of fact-making started to rely instead on the opinions of doctors, surgeons, and medical practitioners. This article closely reads medical jurisprudence books, U.S. case law, and U.S. newspapers from the nineteenth century to describe this expansion of medical experts’ authority to establish the legal fact of sex in vague cases. The article describes the spread of medico-legal technics of sex classification in three arenas of U.S. law: the law of marriage and divorce, cross-dressing, and defamation. The practice of legal sex classification was thus absorbed into medical expertise, and the meaning of sex in the law transformed from a socio-physical construct to a medical one. The mid-nineteenth-century decline of medical jurisprudence subsequently pushed the practice of sex classification outside the realm of law and into the jurisdiction of the medical profession, thus leaving sex classification mainly to doctors.
Genteel Culture, Legal Education, and Constitutional Controversy in Early National Virginia
This article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers who could lead the state's legislature and its courts. In this sense, educational reform was genteel rather than democratic in its basic assumptions. The article examines the central figure of George Wythe and explores his influence on Virginia's leading men, including Thomas Jefferson and St. George Tucker. It delves into the student experience in Wythe's law office and at the College of William and Mary, the success of educational reforms in the central courts, and the effects on Virginia's constitutional development. The college-educated lawyers who came to dominate the legislature in the early nineteenth century used their training for politics. As these lawyers sought to strengthen the institutions their party controlled, they drove the development of constitutional doctrines like federalism and separation of powers.
The Politics of Libel: Thomas Erskine, Freedom of the Press, and Transatlantic Legal Culture, c. 1780–1830
This article analyzes how the multidirectional movement of legal and popular printed texts, newspapers, letters, and citizens contributed to the political and legal influence of individual lawyers across the Atlantic. It is based on a case study of leading common law barrister and Whig MP Thomas Erskine (1750–1823). It examines the dissemination of Erskine's legal and political arguments, and other publications in support of freedom of the press and the constitutional importance of trial by jury in libel trials. Erskine's Country Whig politics, key role in the passage of the 1792 Libel Act, and support for American independence were admired by American lawyers, diplomats, and politicians. His disinterested public service as an advocate meant he personified the ideal of a patriot lawyer that underpinned the classical republican model of law, citizenship, and politics on both sides of the Atlantic. Erskine's powerful, often emotive forensic rhetoric was equally admired as part of a shared transatlantic legal culture, linking law, politics and literature. The speeches were reprinted and widely circulated in edited collections, texts on oratory, trial reports, newspapers, and periodicals; key arguments were also referenced in legal treatises on libel. Hence, parts of his most significant speeches in English libel trials came to be regarded as “usable” legal texts studied by students and re-cited by American defense lawyers in court.
Legal Pluralism, Arbitration, and State Formation: The Rise and Fall of Philadelphia's Quaker Court, 1682–1772
Legal centralization in British America was characterized by the passing of arbitration from the community level to the colonial courts. As a consequence, when the 1765 Stamp Act raised the cost of court business, colonists were at a loss for alternatives. This paper addresses the question of why, at this point, colonists did not return to earlier, non-state forms of arbitration. It offers an explanation by providing a detailed empirical study of an alternative American legal forum: the Philadelphia Quaker monthly meeting. While busy arbitrating disputes in the early colonial period, it declined from around 1720. Contrary to what might be expected, this decline was not the consequence of state efforts to marginalize competing institutions. Rather, the local Quaker population abandoned their community legal forum in favor of the public courts. This was likely due to the Quaker court's reliance on reputation-based instruments for enforcement. As Philadelphia's population grew, the meeting's practice of pressuring culprits into compliance through public shaming lost its edge. Accordingly, Friends moved their legal business to the public courts. The paper contributes to the debates on the legal pluralism of empires, the history of arbitration, and state formation in the Atlantic.
Beyond “Death Do Us Part”: Spousal Intestate Succession in Nineteenth-Century Hispanic America
In colonial Hispanic America, widows and widowers were in an unfavorable position if their spouse died without a will, only inheriting from them if the deceased left no blood relatives to the 10th degree of kinship. This article examines the extent to which the intestate position of the surviving spouse improved in the new civil codes of the sixteen republics, and how their approaches were influenced by the circulation of ideas. It finds that in all except one the spouse came to be favored over the extended family. If the deceased left children, two approaches developed with respect to the inclusion of spouses: where they obtained an unconditional right to an inheritance share equal to a child, and where their inheriting depended on their relative poverty or need. These reforms took place in concert with the rise of the centrality of the conjugal unit as the focus of affection, loyalty, and responsibilities, and prior to such reforms in Europe. The countries that went furthest in elevating the position of spouses, Venezuela and Argentina, were those most deeply influenced by the ideas and changes fostered by liberalism
A True Copy? Documents and the Production of Legality in the Bombay Inam Commission
This essay examines the role of Indian-language documentation in the production of legality in colonial western India, focusing on the workings of the Bombay Inam Commission (1852-1863). It situates legal validation of claims to tax-free land revenue within the broader process of securing, organizing, classifying, and registering Marathi- and Persian-language documents. Combating the effects of rain, dirt, and pests on old state records often sold as “waste paper,” the Inam Commission deployed material interventions to secure a legal archive for verifying individual claims to property. While such evidence weighed heavily in the evaluation of the testimony and corroborating documents of an individual claimant’s case-file, questions of writing also shaped the legal reasoning of the Commission. Inquiries about any given document’s conformity to or deviation from conventional style figured prominently in judgments about its authenticity. The scribe Sayyid Usman’s investigation in 1856 of a date in a Persian document attributed to the Mysore ruler Tipu Sultan struggled to establish the parameters of conventional style against the plurality of entangled regimes of property. I argue that a material approach to writing allows us to better understand the imperfect and dispersed production of legal truth in imperial settings.