As early as 1848, in the first public meeting on woman's rights, feminists raised the touchy issues of women's marital subjugation and divorce. They complained that the laws of marriage and divorce were framed for the benefit of men and to entrap women within the oppressive institution of marriage. Another controversial claim made at Seneca Falls—that to the ballot—went on to become the great organizing principle for women's campaigns for legal and political reform. But despite the bold beginning, divorce remained a complex and divisive issue for feminists throughout the century. Although legislatures in most states in the mid-nineteenth century were systematically liberalizing divorce laws, they could not lift the social stigma attached to it. Fearful of being branded as anti-marriage or anti-family, or believing in the permanency of marriage, many feminists spoke of divorce reluctantly, and never used their formidable organizing skills to launch a full-scale assault on laws restricting the dissolution of marriage.

The availability of the literature of the law, an aspect of legal culture rarely considered in twentieth century Canadian commentary on the ‘reception’ of imperial laws, must have had a great deal to do with the way that sources of law informed and reflected the developing jural values, doctrine, and methodology of the British North American provinces. Yet locally-prevalent versions of legal positivism, which find expression in formalistic, contemporary constitutional scholarship on transferral issues, have tended to suppress or render irrelevant inquiries into the way that such intellectual forces as law books actually affected the development of the legal culture of Upper Canada/Ontario.

Drawing on thirty freedom suits from nineteenth-century eastern Cuba, this article explores how some slaves redefined slaveholders' oral promises of manumissions by grace from philanthropic acts into contracts providing a deferred wage payout. Manumissions by grace tended to reward affective labor (loyalty, affection) and to be granted to domestic slaves. Across Cuba, as in other slave societies of Spanish America, through self-purchase, slaves made sustained efforts to monetize the labor that they did by virtue of their ascribed status. The monetization of affective work stands out amongst such efforts. Freedom litigants involved in conflicts over manumissions by grace emphasized the market logics in domestic slavery, revealing that slavery was a fundamentally economic institution even in such instances where it appeared to be intertwined with kinship and domesticity. Through this move, they challenged the assumption that slaves toiled loyally for masters out of a natural commitment to an unchanging master-slave hierarchy. By the 1880s, through court litigation and extra-judicial violence, slave litigants and insurgents would turn oral promises of manumission by grace into a blueprint for general emancipation. Through their legal actions, enslaved people, especially women, revealed the significance and transactional nature of care work, a notion familiar to us today.

The Supreme Court's decision in Roe v. Wade, arguably the most hotly debated in recent decades, has produced an impressive body of historical scholarship. The leading histories have focused on the evolution of the arguments and alliances that shape abortion debate today, rights-based prolife and pro-choice arguments, alliances between women's rights leaders and public health advocates, and the adoption of pro-choice positions by the Democratic Party and pro-life positions by the Republicans. This orientation is unquestionably a sensible one; rights-based arguments, in play before Roe, have come to dominate the debate after the decision. However, by emphasizing rights-based debate before the decision, the current scholarship has mostly missed a significant change in the rhetoric and coalitions on either side of the debate that was partly produced by Roe itself.

…he [that] is judged mute, that is dumme by contumacie…his condemnation is to be pressed to death, which is one of the cruellest deathes that may be: he is layd upon a table, and an other uppon him, and so much weight of stones or lead laide uppon that table, while as his bodie be crushed, and his life by that violence taken from him. This death some strong and stout hearted man doth choose, for being not condemned of felonie, his bloud is not corrupted, his lands nor goods confiscate to the Prince…

MH, a domestic cook who was 26 years of age, was charged with murdering her newborn infant in September 1931. MH had been “seeing a boy” who, she stated, “took advantage” of her on one occasion, procuring her consent to sexual intercourse by a promise of marriage. She claimed that she only realized she was pregnant during the later months of her pregnancy, but did not inform the father of her child. Her employer, suspecting that MH was pregnant, enquired on several occasions whether she could do anything to help, but MH did not admit her “condition.” Although her employer was aware that MH had no family or home to go to, she gave MH notice to quit her job. A couple of weeks later, MH gave birth in her bedroom at her employer's home; she did not call out for assistance or disturb the girl with whom she shared the bedroom. MH admitted in her statement that the baby cried after birth and that she “tied a white dress belt … around its neck to kill it,” adding: “I tied it [the belt] tight. I killed the child and I know I killed it.” Afterwards, MH put the body in a suitcase, cleaned up the bloodstains, and returned to work. The suspicions of her employer eventually lead to the discovery of the dead infant. The postmortem examination showed that the infant had been born alive, but had received no attention at birth; death was the result of strangulation. MH was acquitted of murder at the Central Criminal Court.

Whatever their other disagreements, most students of early modern judicial records agree that by the end of the sixteenth century England's criminal courts were busier than ever before. Studies by Joel Samaha, J.S. Cockburn, Keith Wrightson and J.A. Sharpe all point to an increase in the level of criminal prosecutions, and in particular to an increase in prosecutions for property crime. These changes in turn suggest a change in actual behaviour: apparently more people were stealing more often. Such a conclusion becomes more convincing when one recalls the state of the Elizabethan economy. By at least the 1580's the economic expansion of the sixteenth century was beginning to give way to crisis. England's society and economy suffered the combined effects of war, harvest failure, plague and industrial stagnation. Mortality and food prices rose, wages and employment opportunities shrank, and poverty became more pronounced.

In the wake of Foucault's provocative philosophical contributions to the study of discipline and punishment, social and legal historians no longer narrate penal history as a straightforward tale of moral and political progress. In its place is a schematic picture of a large-scale retreat from the body to the prison as the prime site of punishment. Historiographical proclivities perpetuate that image: early modernists tend to concentrate on the Bloody Code and similar régimes of terror, whereas historians of the twentieth century specialize in studies of regulatory modes of punishment and “normalization.” These latter works include histories of reformatories, family courts, social workers, psychiatric experts—in short the institutions and agents that best instantiate the reorientation toward disciplining the soul and governing the self. Scholars who study corporal and capital punishment in the twentieth century would seem to have nothing to add, other than to remark that there were exceptions in the wider history of penal change.

The Nineteenth Amendment to the Constitution had surprisingly little impact on women's citizenship or the American constitutional order. For seventy-two years, from 1848 until the passage of the Nineteenth Amendment in 1920, suffrage was the central demand of the woman rights movement in the United States. Women demanded the right to vote in the nineteenth century because they believed it would make them first class citizens with all the rights and privileges of other first class citizens. Both normatively and instrumentally, the suffragists believed that voting would secure equal citizenship for women by raising their civic status and allowing them to assert their political interests. Yet in many ways women were more politically efficacious in the years just prior to the passage of the Nineteenth Amendment than they were afterward. Further, their ability to claim rights from the courts and legislatures, on the basis of their new status as voting citizens, was limited.

As long as legal scholarship focused on traditional sources that were considered “distinctively legal,” a great variety of “legal texts” were consigned to scholars in other disciplines. Thus, Oliver Wendell Holmes, Jr. (1841–1932) and his classic work The Common Law (1881) appeared safely inside the categorical “box” identified as distinctively legal, while Louis Calhern's portrayal of Holmes and the film The Magnificent Yankee (MGM, 1950) fell outside.

In recent years, however, both the inside/outside distinction and the legal box metaphor have become increasingly suspect. Drawing upon post-structuralist theories, which highlight the discursive and representational dimensions of law, a variety of different projects seek to locate the diverse places at which legal rhetoric and imagery are constituted.

In 1898, the year Americans first sailed forth to fight in other countries to protect purported victims of imperialism, A. V. Dicey steamed into Harvard University to deliver his lectures on Law and Public Opinion in England. Like William Blackstone, Vinerian Professor before him, Dicey deployed a number of memorable epigrams to capture what seemed basic truths of his day. Dicey's assertion that ‘protection invariably involves disability’ appeared to state the obvious to Americans at the turn of the century.

In this essay I will consider how the United States Supreme Court embraced Dicey's epigram and translated it into decisions during the tenures of Chief Justices Fuller and White about the capacity of the individual in the United States to contract and care for himself.

This article reprises the Plenary Lecture from the American Society for Legal History Annual Meeting in New Orleans, Louisiana, in November, 2021. Witt presents the story of cases that are quintessential examples of the kind of broken success that law makes available and that legal history helps us see. In other words, these cases make visible that the at-best-tragic realization of ideals is built into the mechanisms of the law.

In July 2012, a landmark hearing before the High Court in London found that the British government had a case to answer concerning human rights abuses, including torture and rapes, allegedly perpetrated by British colonialists in Kenya, during the Mau Mau counterinsurgency of the 1950s. Among the four elderly Kenyan claimants in court that day was a Kikuyu woman, Jane Mara, whose testimony related the sexual abuses she had suffered. Jane had been only 15 years of age, in 1954, when she was accused of being a Mau Mau sympathizer, and along with other villagers, she was taken for interrogation. The experience Jane Mara recounted was horrific. Beaten repeatedly by her inquisitors, she was then pinned to the floor by four African guards who held her thighs apart, while another guard forced a glass bottle into her vagina, using the sole of his boot to direct the bottle deeply into her. The pain was excruciating, and Jane realized that the bottle had been heated. When this ordeal came to an end, she was compelled to sit and watch as the three other young women were subjected to the same torture.

When James Coolidge Carter died at age seventy-seven in 1905, a front page article in the New York Times declared, “It was admitted everywhere that he possessed one of the most thoroughly equipped legal minds which this country ever produced.” His friend Congressman William Bourke Cockran eulogized him on the floor of the United States House of Representatives as “a man recognized all over the world as the leader of the American bar.” Lawyer and diplomat Joseph H. Choate, another longtime friend, remarked in his memorial address at the Association of the Bar of the City of New York that Carter “had become at the time of his death one of [this nation's] best known and most valued citizens.”

In the early modern era, the business of England's criminal courts was founded upon charges brought and prosecuted by private individuals. And, as the English realized, private prosecutors posed a problem: how could the English ensure that private individuals would spend their own time and their own money in prosecuting an offender who had committed an offense against the peace of the realm? Parliament's solution was to proffer the carrot: sixteenth-century statute decreed that his prosecution of the thief was, in itself, action sufficient for the owner of stolen goods to recover those goods, while from 1692, statutes offered rewards to successful prosecutors of highway robbers, burglars, coiners, and other specified offenders. In contrast, England's magistrates wielded the stick, binding a plaintiff bringing an accusation of felony to prosecute an indictment against the alleged felon. As a result, private prosecutors of major offenses were both bribed and compelled to prosecute. Private prosecutors of more minor offenseswere neither bribed nor compelled to prosecute, and yet they did, nonetheless, prosecute indictments. Why?

Mirjan Damaška, in his 1973 comparative study of criminal procedure in the Anglo-American and continental traditions, asserts that “the continental non-adversary system of procedure is more committed to the search for truth than is the Anglo-American adversary system.” He reasons that the stronger procedural obstacles to truth-finding in the adversary system derive from a collective horror of convicting innocent people.

The use of anthropology and sociology for dispute resolution, law-making, and governance has been frequent throughout the history of law and anthropology. Anthropological expertise in the form of expert witnessing or expert information, has been one among the significant activities of applied anthropology. However, no concept such the one of cultural expertise was formulated to theorise the engagement of anthropologists and sociologists with law. This paper adopts an historical approach in order to understand why socio-legal studies have not developed a conceptualisation that encompasses the variety of the types of engagement of social scientists, and anthropologists in particular. It investigates the connection between law and culture in the history of anthropology of law since social evolutionism, and focuses in particular on legal pluralism. This paper suggests that the reasons for the late conceptualisation of cultural expertise lies on the one hand in the difficulty to define the dynamics between law and culture, and on the other hand in the specific development of legal pluralism vis-à-vis the state. This paper concludes with a reformulation of the concept of cultural expertise as an umbrella concept that encompasses the existing array of socio-legal instruments that use cultural knowledge for conflict resolution.

It is a belief almost universally shared that the Clandestine Marriages Act of 1753 gave parents absolute control over the marriages of their minor children, and that a failure to obtain parental consent rendered a marriage void. For almost seventy years this Act was in force, from its implementation on March 25, 1754, until it was repealed by the Marriage Act 1823. In this same period historians have discerned the rise of the affective family, characterized by marriage for love and by equality between all members of the family. The tension between these two ideas has resulted in some rather tortuous explanations being advanced in an attempt to reconcile affective individualism and parental power. But was the period between 1754 and 1823 as distinctive as has been assumed?

At the root of most land titles in America outside the original thirteen colonies sits a federal patent. The validity of government title, in turn, rests on “[t]he great case of Johnson v. M'Intosh,” which held that a discovering sovereign has the exclusive right to extinguish Indians' interests in their lands, either by purchase or just war. Yet both legal and historical scholarship on this “great case” is surprisingly thin. There are no studies examining the litigants or the actual acreage under dispute (surprising for a real property dispute). There are also a number of unanswered legal questions surrounding Chief Justice Marshall's opinion in M'Intosh, perhaps none more glaring than the failure to pin down the legal basis for the decision. This article endeavors to fill in these gaps.

Are lawyers professionals, constrained by public-service limitations on their work, or free-wheeling business people? So the current debate surrounding professionalism versus commercialism is articulated. All too often this controversy is grounded in overdrawn dualisms, a sort of Gemeinschaft-Gesellschaft: a golden age of the lawyer as public servant that has given way to the ethics of the marketplace. The starting point of this essay is that this way of thinking about the work of lawyers is unhelpful, as it encourages a belief in stark divisions between a pure realm of “lawyering” and the grubby world of “business,” and between the “public” and the “private” dimensions of lawyers' work. In practice, both lawyering and business and the public and private fields of lawyering are, and probably always have been, imbricated within each other. This article seeks to demonstrate this coalescence from historical materials.