Academics have traditionally associated capital punishment most closely with authoritarian regimes. They have assumed an incompatibility between the death penalty and the presumably humane values of modern liberal democracy. However, recent scholarship on the United States by David Garland has suggested that a considerable degree of direct democratic control over a justice system actually tends to favor the retention and application of the death penalty. The reason why the United States has retained capital punishment after it has been abolished in other Western nations is not because public opinion is more supportive of the death penalty in America than in Europe or in Canada. Rather, it is because popular control over the justice system is greater in the United States than in other countries and this strengthens the influence of America's retentionist majority. However, the experience of the United States in this regard has not been unique. The same link between democratic control and retention of the death penalty can be seen in the history of the effort to abolish capital punishment in France. In 1908, a bill in the Chamber of Deputies (the lower house of the French Parliament) to abolish capital punishment was defeated, in large part because of strong opposition from the public. In 1981, majority public opinion in France still favored retention of the death penalty, but in that year, the nation's Parliament defied popular sentiment and outlawed the ultimate punishment. Historians have so far provided little insight into why abolition succeeded in 1981 when it failed in 1908. The explanation for the different outcome appears to have been the greater degree of influence public opinion exerted over the nation's justice system at the turn of the twentieth century than at its end.

Statelessness continues to trouble today's international legal and political spheres. Despite the International Convention Relating to the Status of Stateless Persons, the stateless remain an unwelcome presence and awkward anomaly within an international human rights regime still fundamentally dominated by the nation state structure. In 1945, Marc Vishniak wrote that the stateless were “… restricted in their rights more than any other people and constitute the weakest chain in the link of human rights.” Hannah Arendt, who was herself a Jewish refugee from Germany, placed the enigma of the stateless in an even more central philosophical position. Whereas Visniak emphasized the problematic and marginalized legal status of the stateless within the dominant international paradigm, Arendt proposed a re-imagining of the international legal order, a vision that would prioritize a solution to the situation of the stateless, especially stateless Jews, by “somehow or other restoring to them the inalienable rights of man.” For Arendt, Jewish former citizens of Germany, stripped of their nationality by the Nazi regime, occupied a newly paradoxical situation as empowered and voluntary Heimatlos, precisely because they now rejected the standard legal normativity of the state/citizen template. Arendt found historical support for her argument about statelessness as both abnormal within dominant international legal thinking, and at the same time strangely empowering, with regard to the situation of the mainly Jewish refugees displaced during World War I. They had fallen outside the protections offered by new succession countries at the end of that conflict, very often by their own decision to refuse incorporation as citizens of the emergent nation states. These Jewish apatrides discovered “privileges and juridical advantages in statelessness.” For Arendt, Jewish former citizens of Germany at the end of World War II further embodied a move toward conceptualizing a new international paradigm wherein rights could be sought beyond the traditional bounds of a state-based legal order, precisely because those bounds had been irrevocably shattered by the state itself.

In Romans 13:5, St. Paul famously announced that Christians must obey law not only for fear of punishment, but also “for conscience sake.” Early modern Protestants and Catholics agreed that violations of laws that bound conscience, if unrepented, threatened damnation. But not all law obligated conscience. Natural law typically did. So did Jesus's injunctions and God's moral law revealed in the Old Testament, but not His judicial law governing civic affairs or His ceremonial law regulating Jewish religious observance. Human laws about things indifferent, matters neither commanded nor forbidden in scripture and nature, presented the most complicated case. Disobedience to only certain classes of human laws—but not all—imperiled the soul. Catholics and Protestants fiercely debated how to distinguish rulers’ ordinances that bound conscience from those that did not. This article explores the principles that animated the dispute and the methods used for linking human law to the fate of the soul or challenging that connection.

In the aftermath of the Civil War, state judges lost their long-held right to inquire into the legality of federal detentions, and habeas corpus—once almost solely the business of state courts—was largely transformed into a federal remedy. We argue that the wartime furor surrounding underage enlistees was a key factor in driving this legal change. Scholarship on the use of habeas corpus during the war generally concentrates on cases involving freedom of speech or political association, but thousands of parents and guardians also petitioned Union authorities and state courts to retrieve minor children who had enlisted without their consent. Angrily demanding that the military discharge such youths, they portrayed control over the personhood and labor of minor children as fundamental to American liberty. At the same time, state court judges fought to retrain jurisdiction over such cases as a critical check on federal and military power. We illuminate these conflicts by drawing on a rich array of sources that capture the competing perspectives of federal and state court judges, Lincoln Administration officials, elected representatives, military officers, parents and guardians, and minors themselves. In the process, we show the halting and contested transformation of habeas corpus, the outcome of which ultimately redefined the relationship between American citizens and their government, preventing aggrieved parents from using state courts to safeguard their rights against federal and military authorities, and blocking state courts from querying the legality of federal detentions of any kind.

King James I stated the official position of the English governing elite on gun ownership succinctly. When it was suggested that more of England's subjects should enjoy the right to hunt and own firearms, James responded that “it is not fit that clowns should have these sports.”

Discussion of early American gun laws begins with consideration of the English legal heritage. In the last few years, adherents of the self-described “standard model” of the meaning of the Second Amendment have constructed a paradigm of an uninterrupted tradition of legally sanctioned individual gun ownership in America. Such a construction starts with the idea that the British brought an acceptance of the universal ownership of firearms with them to the Americas. That cultural norm gave form to the meaning of the Second Amendment, which institutionalized an individual right to bear arms for purposes of personal and communal defense and as a security against a tyrannical government. This history matters greatly to these scholars in establishing an original intent in the Second Amendment to protect an individual's right to own guns.

The Supreme Court's decision in Lochner v. New York (1905), invalidating an act limiting working hours for bakers as a violation of contractual freedom, has come to symbolize an era in constitutional law. The period covers the years from the end of the Gilded Age through the Progressive Era. Its chief characteristic, according to its critics, is the judiciary's hostility to progressive labor legislation. Statutes intended to protect vulnerable classes from the ravages of industrialization were routinely defeated in the courts. Progressives pioneered an interpretation in which Lochner became a leading “anticanonical” case, wrongly deploying the doctrine of substantive due process to shield inherited distributions of wealth and power. The time is long past when scholars characterized the era as a product of judges' reactionary commitments to laissez-faire or, worse, to Social Darwinism, following Justice Holmes's quip, dissenting in Lochner, that “the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Contemporary scholars have reconstructed the period's jurisprudence, finding in it a principled commitment to a conception of justice grounded in the Founding. The most widely accepted explanation, developed by Gillman's influential study, is that substantive due process embodied a principle of neutrality requiring courts to distinguish the authentic public aims of legislation from illegitimate attempts to advantage some classes at others' expense. An alternative explanation is that judges, drawing on the theory of natural rights, developed the doctrine of substantive due process to limit government's discretion to encumber prepolitical rights to private property and liberty of contract.

Until recently, North American labor law historiography has been dominated by the view that the legal regime regulating trade unions and collective bargaining has passed through three stages of development: repression, toleration, and promotion. This evolutionary narrative served the function of justifying current collective bargaining schemes by showing them to be the progressive realization of political and industrial pluralism. Confidence in the narrative, however, is eroding. In part, this is fuelled by the crisis of the current collective bargaining regime. It no longer appears to be able to deliver the goods. Not coincidentally, critical scholars have also chosen this moment to scrutinize the Whiggish history produced by writers committed to the Wagner Act model and have found it wanting.

This article situates the ‘personal law’ in late colonial India in the nineteenth-century genealogy of the idea of ‘family law.’ In doing so, it also looks at a case between Indian Muslim spouses before the judge and Islamic modernist Syed Mahmood. Involving the doctrine of the restitution of conjugal rights, the case was conducted in the shadow of a question about whether marriage was a status or contract that had a much wider resonance in the late nineteenth-century Anglo-common law world. The overall goal of the article is to critically reconsider a common view about legal modernization in the long nineteenth-century Islamicate world as a process of domesticating the Islamic sharīʿa tradition to the sphere of family affairs and personal status. Working along a distinct path from other new scholarship that is moving past this thesis, I suggest that domestication should be seen as part of what some have called the globalization of classical legal thought after 1850. Because the era of domestication continued to be an important point of reference for later exponents of political Islam the article also argues that seeing the categories of personal law and family law genealogically has implications for the problem of translation that has often made scholars reticent about striking an equivalence between ‘Islamic law’ and sharīʿa (or beyond the Islamicate world, between ‘modern law’ and Afro-Asian juridical tradition).

One overriding concern I have with Susanna Blumenthal's insightful and stimulating article, “The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law,” is whether there is anything sufficiently distinctive about Scottish Common Sense philosophy that justifies the role Blumenthal ascribes to it. In a representative passage, she writes:

Common Sense philosophy left would-be “moral managers” with a puzzle. If rational and moral faculties were innate and universal, what explained the great conflicts among men concerning matters of belief, manners, and morals … leading some to commit acts that were … patently irrational or downright evil? And to the extent that there was a common sense about the dictates of reason, propriety, and moral sense, why did some individuals act in defiance of them?

Despite the recent rebirth of scholarly interest in the law of slavery, Kenneth Stampp's The Peculiar Institution contains the best twentieth century overview of the internal law of slavery in the antebellum South. Nevertheless, Stampp's interpretation leaves unresolved the ‘dilemma’ that he argues also puzzled slave masters, legislators, and magistrates: How the law could recognize slaves both as ‘property’ and as ‘persons.’ To Stampp, the ‘dual character of the slave’ was an irreconcilable contradiction:

…there was no way to resolve the contradiction implicit in the very term ‘human property.’ Both legislators and judges frequently appeared erratic in dealing with bondsmen as both things and persons.

Although Stampp states that, ‘the slave's status as property was incompatible with his status as a person,’ he concludes that ‘throughout the antebellum South…legally, the slave was less a person than a thing.’

On May 2, 1771, John Hardaway of Dinwiddie County, Virginia posted a notice in the Virginia Gazette about a runaway slave. The notice was ordinary, blending in with the many advertisements for escaped slaves, servants, wives, and horses that filled the classified section of the Gazette in the eighteenth century. Like countless other advertisements posted in newspapers wherever slaves were held, Hardaway's advertisement read: “Run away from the subscriber, a dark mulatto man slave named Bob Colemand, 25 years old, tall, slim, and well made, wears his own hair pretty long, his foretop combed very high, a blacksmith by trade, claimed his freedom under pretense of being of an Indian extraction.”

As Asher Maoz insightfully points out, governmental involvement in the ascertainment of historical truth—whether in court, by commission of inquiry, or in other ways—is directed at securing approval of a particular historical narrative, as a step toward imposing that narrative, to a greater or lesser extent, on those who disagree with it. This “official version” exists not only for the sorts of questions presented by the cases Maoz discusses, but also with respect to auto accidents, crimes of passion, and all the other historical reconstructions that form the substrate of “facts” upon which legal conclusions and enforceable judgments are predicated.

Colonial regimes tended to change existing legislation and judicial structures, and to introduce new legal systems. When the previous legal system was partly upheld, and especially when a number of legal systems were already in effect, a complex and plural system would emerge, often with contradictory principles and normative assumptions. As a result, the colonial government faced inevitable dilemmas regarding the priorities it should grant to the different legal systems, and the means it should use to mediate conflicts among the different perspectives. Much has been written over the last few decades concerning the interrelation of colonial expansion and the transformation of law. The colonial government emphasized the necessity of changing existing legal systems, often portrayed as backward and unsuitable for the functioning of an empire and the global relations embedded in it. New colonial legislation was intended to achieve greater efficiency and the unification of colonial rule and to advance the “civilizing mission” by negating elements of existing traditions and introducing what the colonial rulers considered to be higher levels of morality. However, such changes ran the risk of being perceived as excessive intervention in the subordinated societies, and, therefore, might undermine the legitimacy of the colonial government.

Convicted felons at the Old Bailey and on assize in nineteenth-century England had no right of appeal. They had either to submit to their fate or, if they had the means, petition the Crown for a pardon. The legal avenues for redress were limited. A writ of error would lie to a superior court for legal errors that appeared on the face of the record but by the nineteenth century this was seldom used. More significantly, it was open for the trial judge to reserve questions of law for the informal and private consideration of all the common law judges. In their illuminating studies of this practice in the eighteenth and early nineteenth centuries, James Oldham and Randall McGowen elucidate the ways in which the judiciary used reserved cases to develop legal doctrine and to shape the operation of criminal justice. The trend toward increased formalization of procedure that they identify, culminated in 1848, when Parliament created the Court for Crown Cases Reserved (CCCR). The new court adopted the existing method of reserving cases, but was a court of record that sat and gave judgment in public. It became the highest judicial forum for the determination of questions of criminal law until 1908, when it was superseded by the Court of Criminal Appeal.

Legal fictions are often used to lubricate the machinery of jurisprudence. One of these is the idea that laws created to restrict the liberty of some individuals or class of individuals in order to protect the public good are in effect outcomes of tradeoffs between abstract universals, namely liberty and the public good. A three way relationship is imagined in which law, liberty, and the public good are in creative tension. The role of the law in this three way tension is further imagined to be the mediator where it serves to calibrate this tension in ways that are also assumed to legitimate the intended outcomes in practice. In particular, where the outcome is the prevention of harm, then laws that curtail liberty must be seen not just as measures for the public good, but rather as necessitated by the potential effects of the very harm itself. The justification for this view is often traced back to the views of nineteenth century political philosopher John Stuart Mill, who famously expressed this in terms that have become known as the “harm principle”; specifically that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

This is an essay about an incident that took place in the Province of Massachusetts Bay during the period 1772–1774, an incident that I will call the Affair of the Royal Salary. Close relative of the Stamp Act Crisis, The Boston Tea Party, even the Boston Massacre, the Affair of the Royal Salary similarly involved a clash between the forces of popular government and those of imperial government; like its better known cousins it is part of the story of the coming of the American Revolution in Massachusetts. In addition, since the Salary around which the Affair developed was intended for judges, the Affair of the Royal Salary is part of the history of judicial independence in Massachusetts.

Andrew J. Finch has taken issue in these pages with my interpretation of “clandestine” marriage in the later Middle Ages. He is certainly correct that the phenomenon of “clandestine” marriage in the high and late Middle Ages cannot be given a single explanation. As I said in the first piece that I wrote on the topic: “The cases provide evidence for the proposition that some people were genuinely confused about to whom they were married; that the Alexandrine rules were being used to defraud the innocent; and that they were being used by people to get out of marriages which had become intolerable for reasons quite unrelated to the Alexandrine rules.” And again: “while the reasons why the parties chose to marry informally rather than solemnly is in many cases obscure, there are some cases in which we may conclude that the parties chose informal marriage in order to escape pressure from their families or lords. Howard… and Homans… both suggest that the reason for informal marriage is that the Church was unable to enforce her rules on the ingrained marriage customs of the people. Turlan…, on the other hand, sees as I do informal marriage as a way of escaping both family and ecclesiastical pressure. The two views are not necessarily inconsistent. Varying motivations may have played a part in different places and times and among different individuals.”