Habeas corpus arrived in the Hawaiian Kingdom in the 1840s and 1850s when it appeared in the kingdom's legislative proceedings, in the 1852 Constitution, and in a published legal decision. However, a description of the transmission and transplantation of a common-law concept to a particular place in the Pacific Ocean does little to explain how people in the kingdom used habeas corpus. Habeas corpus circulated widely in the kingdom between 1852 and 1892. Did the application of the writ in Hawai'i change the conceptual architecture of habeas corpus? Legal historians have several different methods to find out how habeas corpus functioned and how judges, lawyers, and litigants molded the writ's legal identity. Reading the published judicial opinions preserved in print volumes or subsequently digitized in databases provides a window into the way judges construed habeas corpus. The archival records of the legal cases illuminate how local lawyers and ordinary litigants wielded habeas corpus to achieve their goals. In addition to these traditional methods of legal and historical research, computer code identifies conceptual patterns in a digitized corpus of the kingdom's legal decisions. Each of these methods—close reading, archival research, and computational analysis—represent different angles on the operation and legal content of the writ.

This article examines the jurisprudence of the Swedish Supreme Court during WW2 in disputes between exiled Jewish business owners and the Nazi-appointed administrators of their companies over the rights to the enterprises’ assets in Sweden. Contrary to assertions in previous scholarship, this article argues that the judgments of the Supreme Court were dictated neither by moral indignation in the face of the treatment of Jews in the Third Reich, nor by political considerations in a time of war. Instead, they were based on principles of private international law that predated, and outlived, the Third Reich. The outcome of the cases hinged upon whether the claim to Swedish assets arose before or after the date when the enterprise was placed under forced administration. If before, the claims of the Jewish owners were in principle successful; if after, they were not. This reasoning was well in line with both previous and subsequent case law on confiscations effected abroad. The article therefore concludes that the Swedish Supreme Court's judgments on Jewish assets in Sweden should be viewed not as outflows of extrajudicial considerations, but rather as failures to recognize political or ethical responsibility.

After WWII, a new form of Europeanism emerged in legal history that gained momentum from European unification. This article explores the emergence of this new narrative as part of the process of exile from totalitarianism and its connection with the reestablishment of the European intellectual and political order after the war. The purpose is to explore the parallel afterwar processes of narrative and normative change and the influences and connections between them. It focuses on a specific historical case, the turn toward Europe, its legal heritage and human rights in the post-war era writing of legal history, especially in the writings of Paul Koschaker, Franz Wieacker, and Helmut Coing, and its linkages to the simultaneous process of European integration. It explores a new argument about the interlinkage between narrativity and normativity as cognitive processes that rely on the creation and sustaining of belief, and the ideas of legitimacy and identity construction.

When Henry II (1154–1189) ascended the English throne, centralization of administration became a key theme of his government and judicial reform a key theme of centralization. Throughout his reign, Henry enlarged royal jurisdiction over pleas of land by providing, by means of royal writs, jury trial before the king's justices as an alternative to judgment in the seignorial courts. The assize of novel disseisin (1155 x 1166) led the way for the assizes utrum (1164), mort d'ancestor (1176), and darrein presentment (post 1179), and for the Grand Assize (c. 1179) and writs of dower. Henry also centralized and tightened royal jurisdiction over criminal pleas through the Assize of Clarendon (1166) and reform of the appeal of felony.

Until recently there was a depressing consensus about Scottish legal history in the medieval and early modern periods. It was accepted that in the twelfth and thirteenth centuries the Scots had gone some way to building a legal system on the model found in contemporary England, involving the holding of courts in the localities by sheriffs and justiciars on ayres, the use of royal writs or brieves to commence litigations, and the determination of cases by juries or assizes. The fullest account of Scottish law, Regiam Majestatem, was based on the twelfth century English text Glanvill. The wars and other skirmishes with England which began in 1296 and continued into the sixteenth century brought an end to the development of the ‘Scoto-Norman’law and legal system however. Cut off from its basic inspiration and lacking either a central court structure or a legal profession, Scots law regressed throughout the later middle ages. Demands for better justice led the king by the end of the fifteenth century to establish a group of royal councillors to hold judicial sessions or sittings at which such complaints might be heard. The councillors—the lords of council and session—might be either ecclesiastics or laymen; the former were more numerous and possessed greater legal skills. The procedure of the emerging court thus followed that of the ecclesiastical courts and the substantive law which developed was also canonical and civilian in character. By the mid-sixteenth century the Session was established as the main civil court in Scotland and Scots law had made a fresh start, severed from its original roots.

The language of the common law has a life and a logic of its own, resilient through eight centuries of unceasing talk. Basic terms of the lawyer's specialized vocabulary, elementary conceptual distinctions, and modes of argument, which all go to make “thinking like a lawyer” possible, have proved remarkably durable in the literature of the common law. Two fundamental distinctions—between “real” and “personal” actions and between “possessory” and “proprietary” remedies—can be traced back to their early use in treatises of the first generations of professional common law judges and in reports of courtroom dialogue from the first generations of professional advocates in common law courts. Together these distinctions give the clearest indications that the early common law professions borrowed the vocabulary and techniques of Roman and canon law. Moreover, they play an important role in the ongoing historical debate over English legal concepts of property ownership.

What is the relationship between judging and understanding? Does the process of understanding undermine our ability to judge? Or maybe the contrary is true, that judgment is possible only when its subject is understandable? If judgment requires distance and understanding requires empathy (overcoming distance), is there an inherent impossibility in trying to judge the Holocaust by trying to understand it? Language itself betrays a sense in which understanding and judgment conflict. The popular saying tout comprendre c'est tout pardonner rings true in our everyday experiences. What are we to do when the subject of our inquiry is of such moral magnitude that understanding becomes a duty we owe to ourselves, and yet any progress in understanding seems to be meaningless if it does not enhance our capacity of judgment. The two thoughtful responses by David Luban and Lawrence Douglas to my essay “Judging Evil in the Trial of Kastner” are directed at disentangling this complex relationship between judgment and understanding. Luban asks for more judgment. Douglas insists on more understanding.

Susan Carle has given us a fascinating, thoroughly researched, and well-argued examination of the early history of the modern civil rights movement. She frames her inquiry of this rarely investigated period in terms of the tension between the NAACP's litigation tactics during the early part of the twentieth century and the professed ethics of the establishment lawyers who authored and approved these controversial measures. How, she asks, could leading corporate lawyers such as Charles Boston justify authorizing the NAACP's concerted campaign to solicit plaintiffs and create test cases while at the same time serving on ethics committees that expressly condemned such practices?

The current historical consensus is that English common law was somewhat confused, but that coerced servitude was legal in England before 1772, and certainly in its empire, where English law on slavery did not reach, because it was “beyond the line” of English justice. The common law is characterized by an effort to see continuity and consistency, and historians (despite our natural desire to track change) often look for those patterns too. Such efforts to provide a consistent overview of an England that was free and colonies that created slavery on their own—have obscured the vibrant struggle over slavery within the English judicial system—the common law—over more than a century. Not only did the common law on slavery change profoundly during the seventeenth and eighteenth centuries: the common law became an instrument of crown policy. It did so within a federal empire, wherein colonial legal norms had to adhere, in crucial ways, to that common law. English high court judges thus provided the legal foundation for an imperial common law of slavery that allowed people to be deemed absolute property. That definition of people as property was closely connected to absolutism, both in theory and practice. In theory the absolute power of kings over subjects was connected to that of masters over slaves. In practice, the crown's use of the courts to create laws without parliamentary consent (to bypass parliament) also increased crown revenue and thus their independence from parliamentary control. These powerful legal mechanisms made it possible to “recover” enslaved people as assets for debts, a legal definition that was essential for a market in people to function sucessfully. This history reveals the absolutist character of early capitalism, and the extent to which the character of capitalist development depends on the legal rules that define markets and justice.

In October 1934, agents from the Chinese Maritime Customs Service received a hot tip that an otherwise unremarkable village off the coast of Shandong was hiding valuable contraband. A search party dispatched to investigate verified the claim after raiding several homes and uncovering sixty-nine bags of sugar. Seeking to add to this already sizeable haul, agents then scaled the walls of another home and discovered ten more bags hidden in the backyard. This time, however, they were met by incensed homeowner Yu Guangbo, who charged at the intruders with a pitchfork and seriously injured an officer when he tried to seize a handgun. His resistance was fierce but, ultimately, futile. Outnumbered, Yu was quickly subdued, beaten, and bound. Left alone in the village temple, he untied himself the next day before reporting his harsh treatment to a local court and inaugurating a lawsuit that would last almost a decade.

The early-Tudor English government oversaw the rise of various centralised courts offering the king's subjects access to extraordinary justice in their private suits. One such new arena was the ‘Court of Requests’, an early equity or conscience court long overshadowed in histories of the period by the better-known courts of Star Chamber and Chancery. This article analyses the little-studied Requests archives to ask who sued there and when/why the court became associated with specifically poor men's causes. Focusing on the formative decade of ‘popularisation’ between 1515 and 1525, it finds that whilst litigants appear to have been largely from the lower sectors of society compared to their counterparts in the other conciliar courts, most petitioners opted for imprecise, rhetorical and non-static descriptions of their relative poverty – defined not just economically, but also in terms of age, property, and kin – in comparison to their opponents, appealing to the specific interpretation of conscience in Requests. The article thus scrutinises the methodologies we use for uncovering the demography of early-modern central courts, and has implications for understanding litigants' legal strategies, recorded identification as distinct from self-identification, and the theory and practice behind commonly-held ideals about the provision of royal justice for the ‘poor’.

As the nineteenth-century French state expanded its borders in North Africa and incorporated what came to be Algeria into France, French King Louis-Phillipe, President and then Emperor Louis Napoleon Bonaparte, and various ministers of war, governors general for Algeria, and other advisors and government officials all faced the question of how and if to naturalize the territory's inhabitants as French citizens. Recent literature on the French use of law to classify and control populations in Africa has focused on the French colonial administration. This article emphasizes instead the role courts played in sorting out the legal contradictions created by French colonialism, by using the Jews in Algeria as an example. The existing precedent of the Jews' forced de-corporation and naturalization in France made their collective religious rights in Algeria particularly problematic, and cases in the Algerian and French courts highlighting the anomalous legal status of Algerian Jews eventually led to Jewish, but not Muslim, naturalization by decree in 1870. This new interpretation of Jewish naturalization in French Algeria highlights the philosophical problem that Jewish collective rights forced the French courts and French state to confront, and the barriers to resolving it.

The years between 1890 and 1937 traditionally have been viewed as a period of extreme judicial activism with respect to economic regulation, a time during which courts, both state and federal, interfered on a grand scale with legislative reform agendas. Fueled by the constitutional theories of Thomas Cooley and Christopher Tiedeman, the story goes, the courts became bastions of laissez-faire constitutionalism, relying on doctrines of substantive due process and liberty of contract to invalidate legislative efforts to redress social and economic inequality.

The southern part of the African continent has, for nearly a hundred and fifty years, been witness to a set of epic struggles to create within it a single unified state and, within that, forms of citizenship that are both identifiably “South African” and more or less collectively owned. The never-ending nature of these twinned tasks has echoes in contemporary mantras about the healthiness of “nation-building,” just as surely as the underlying anemia remains manifest in the name of a place and a people that are, arguably, still more of an expression of geography than a reflection of a collectively lived experience. Perhaps it is significant that it was only a decade after the discovery of diamonds, in the late 1860s, that these struggles first took on recognizably modern political forms. An early attempt to promote federation among the dominant white settlers was, however, thwarted by the still largely separate identities of the two British coastal colonies (the Cape and Natal) and two inland Afrikaner-Dutch or “Boer” republics (the Orange Free State and the Zuid Afrikaansche Republiek) that sprawled over southern Africa—enveloping, albeit imperfectly, their distinctive and very different indigenous African, imported Asian, and Colored (people of mixed descent) laboring populations.

The ubiquity and endurance of Justice Holmes as a figure of historical interest has begun to rival the prominence of Holmes during his lifetime. It seems that each time the direction of American scholarship takes a new turn, a group of scholars emerges with some ‘fresh’ thoughts on Holmes; it seems that no matter how much Holmes has been dissected or analyzed, he provides commentators with something new to write about. The appearance of a series of scholarly assessments of Holmes in the 1980s provides another example of this phenomenon. In an article published in 1982 I noted that four lectures and symposia had been devoted to Holmes since 1980; in addition, two books devoted entirely to Holmes, another in which Holmes figures prominently, and a series of law review articles on Holmes have appeared in the decade. Once again the scholarly process of generational revisionism has included Holmes. In seeing themselves and their work anew commentators have also seen the image of Holmes in altered form.

The Civil War, by abolishing chattel slavery, launched a revolutionary era in American constitutionalism during which lawmakers debated what liberty, dependency, and good governance would mean in the new nation. Although historians have made a convincing case for the significance of legal developments in the 1870s and 1880s, they have not focused much attention on the problem of children's rights in the age of slave emancipation. This is largely due to the assumption that the history of children's rights did not begin until the U.S. Supreme Court's landmark decisions in Brown v. the Board of Education (1954) and In re Gault (1967). This article, however, builds on the work of scholars, such as Joseph Hawes and Mary Ann Mason, who have demonstrated that the ideas and practices central to the modern children's rights movement of the late twentieth century have deep roots in American history. I argue that a sophisticated conception of children's rights existed in the late nineteenth century and investigate how lawmakers in Illinois articulated it through their attempts to define the “rights” of “dependent children.”

This article examines the intersection between extraterritoriality--privileges afforded to European subjects in the Islamic Mediterranean--and various forms of state membership. To capture the multiplicity and instability of state membership, I introduce the phrase “legal belonging”--a neutral, umbrella term that encompasses a wide range of bonds between individuals and states (usually referred to as subjecthood, nationality, or citizenship). Adopting the methods of global legal history, I look at how laws regulating legal belonging responded to the extraterritorial context of the Mediterranean in both European and Middle Eastern states. In so doing, I offer an alternative to the centrifugal narrative of modernization, which presumes that modern citizenship was invented in Europe and then exported to the Islamic world. Instead, I contend that the evolution of legal belonging on both sides of the Mediterranean developed in response to the challenges and opportunities presented by extraterritoriality. The article consists of two cases studies: first, I look at the regulation of legal belonging in Tunisia, the Ottoman Empire, and Morocco, arguing that this legislation responded to the challenges posed by extraterritoriality. Second, I examine the influence of extraterritorial regimes on the nationality of Algerians under French colonial rule.

Sixteen-year-old Acre resident Mustafa Naif, suspected of having sex with another man, stated before the police investigator on June 30, 1943, “I know Mustafa Zaharan and is my friend and mate, I used to love him and he used to love me, and that this man had a sexual intercourse with me twice with my consent and free will, because he loves me and I love him.”1 By the time of his trial, approximately a month later, Mustafa Naif must have realized this was the “wrong” story to tell. He recanted his statement and denied knowing Mustafa Zaharan or having anything to do with him. His denial might have been another manifestation of love, as an admission of guilt would have led to his friend's conviction on a sex offense. For his lover's sake, then, Mustafa Naif might have renounced his original romantic version. Indeed, his friend was acquitted as a result of the contradictory statements; however, Mustafa Naif was charged with perjury and was convicted after pleading guilty.

In the wake of the demolition of the Berlin Wall and the erection of the Maastricht Treaty, intense debate rages over all factors contributing to both unity and diversity in Europe. While issues circulating around markets, currency, and national sovereignty receive greater play in the media, the discussion of parallel issues of European legal unity has been more longstanding. The case can be made that Europe (with the exception of England) has long had a great degree of legal unity. The Roman civil law and the canon law of the church, with some texts of feudal law, became a common learned law, the ius commune, developed and disseminated in the universities in the Middle Ages. This written legal heritage spread from Italian schools, beginning with Bologna, and was “received” in Germany, France, Spain, and even Scotland in the course of the sixteenth century. It was displaced finally with nineteenth-century codifications of national law, which strove to enshrine the legislatively enunciated genius and uniqueness of the nation.