The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and to consolidate state power. The study of these processes becomes national narratives, often in conversation with the former colonial power, which are disconnected from more general or regional trends. As Linda Colley's article in this issue illustrates, it is important to step back to view the constitution-making process from an Atlantic perspective that ties the Americas, North and South, into the area of study. The Age of Constitutions in the Americas must include Latin America and the Caribbean.

In his 1950 movie Rashomon, the famed Japanese director Akira Kurosowa presented a tale of a deadly crime that took place in a grove, which was witnessed by four individuals. Each of these individuals then proceeded to report what they saw in mutually contradictory ways. The movie has since received the ultimate honor of having a phrase coined in popular culture to describe its central message. The “Rashomon effect” is used to describe those occasions when a single event is perceived in contradictory, although perhaps equally plausible, ways by the different witnesses on hand, telling us at least as much about the internal dynamics within the witnesses to the event as about the event itself.

What societal factors prompt the shift from legal practices based upon oral or customary law to the development of new legal institutions predicated upon bodies of written law? Certainly the presence within a given society of a functional writing system, whether indigenously developed or cross-culturally borrowed, is a prerequisite for the creation of written law. Several scholars, however, notably anthropologists and sociologists, have argued that the mere presence of writing does not necessarily result in the immediate, or inevitable, development of certain sociopolitical institutions dependent upon the technological capacities that writing offers. These same scholars warn that assigning such a monocausal role to writing reduces the multifaceted complexity of a social phenomenon, such as the development of written law, to a teleological inevitability. Instead, many believe that writing provides what Jack Goody has called “potentialities” for types of developments and alternative configurations of social organization. That is to say, the technological capacities of writing provide the potential for specific institutional developments, such as the use of written law; however, for such potential to be actualized, there must first exist within the society an acknowledgement of a social need, with a concomitant consciousness that that need can best be satisfied through the implementation of a form of writing.

Approximately 50 years ago, R. R. Palmer published his two volume masterwork The Age of the Democratic Revolution. Designed as a “comparative constitutional history of Western civilization,” it charted the struggles after 1776 over ideas of popular sovereignty and civil and religious freedoms, and the spreading conviction that, instead of being confined to “any established, privileged, closed, or self-recruiting groups of men,” government might be rendered simple, accountable and broadly based. Understandably, Palmer placed great emphasis on the contagion of new-style constitutions. Between 1776 and 1780, eleven onetime American colonies drafted state constitutions. These went on to inform the provisions of the United States Constitution adopted in 1787, which in turn influenced the four Revolutionary French constitutions of the 1790s, and helped to inspire new constitutions in Haiti, Poland, the Netherlands, Switzerland, and elsewhere. By 1820, according to one calculation, more than sixty new constitutions had been attempted within Continental Europe alone, and this is probably an underestimate. At least a further eighty constitutions were implemented between 1820 and 1850, many of them in Latin America. The spread of written constitutions proved in time almost unstoppable, and Palmer left his readers in no doubt that this outcome could be traced back to the Revolution of 1789, and still more to the Revolution of 1776. Despite resistance by entrenched elites, and especially from Britain, “the greatest single champion of the European counter-revolution,” a belief was in being by 1800, Palmer argued, that “democracy was a matter of concern to the world as a whole, that it was a thing of the future, [and] that while it was blocked in other countries the United States should be its refuge.”

In 1522, Marie Quatrelivres, accused of adultery by her husband and found guilty, was condemned to be beaten with sticks on three Fridays and afterwards enclosed in a convent. The court allotted her husband 2 years to decide if he wanted to take her back. If he did not choose to reconcile with her, she was to be enclosed for life and lose all of her property. So wrote eminent jurist Jean Papon (1505–1590) in his collection of notable cases heard before the royal courts of France. Papon described a handful of other sixteenth century adultery cases similarly decided, and then cited a contemporary and fellow eminent jurist, Nicolas Bohier, as having stated that another common punishment for adultery in France was to cut off an adulterous woman's hair, tear her clothes, and parade her in shame throughout the town or city in which she lived.

Like many nineteenth-century travelers, Iqbal al-Daulah, a cousin of the Nawab of the Indian princely state of Awadh, navigated multiple legal systems as he migrated across Asia, Europe, and the Middle East. Living through the absorption of Awadh into the expanding British Empire, he eventually joined a community of Indian Shias in Ottoman Iraq, who regularly used British consular courts. While still in India, Iqbal al-Daulah composed a tribute in Persian and English to British justice. He described British courts in the following laudatory terms: “What Ease is afforded to Petitioners! The Doors of the numerous Courts being open, if any by reason of his dark fate, should be disappointed in the attainment of his desire, in one Court, in another he may obtain the Victory and Succeed.” Iqbal al-Daulah secured a sizeable pension and knighthood from the British government. However, at the end of his life, he had lost faith in British courts. In his will he lamented: “British courts are uncertain, stock in trade of bribery, wrong, delay…the seekers of redress, are captives of the paw of the Court officials; and business goes on by bribery not to be counted or described.” Despite Iqbal al-Daulah's words of caution, his friends and relatives became enmeshed in legal battles over his inheritance in British courts in India and Ottoman Iraq. In doing so, they joined the crowds of colonial subjects who flooded the courts, enduring expense and annoyance despite the prospect of uncertain outcomes.

The theory of just war in medieval canon law and theology has attracted to it a large body of scholarship, and is recognized as an important foundation for Western approaches to the study of ethics in war. By contrast, the tradition on war in medieval Roman law has not received much attention, although it developed doctrines that are distinct from those in canon law and theology. The oversight is notable because medieval Roman law on war influenced subsequent tradition, forming with canon law the essential basis for early modern legal thought on war and peace. While the main canonistic contributions to legal theory on war came in the twelfth and thirteenth centuries, Roman jurists added new opinion in the fourteenth and fifteenth centuries, which can be related to the political life of Italy and to the growth of the independent cities. By the fourteenth century, Roman lawyers (or civilians) often considered licit war from a secular and pragmatic perspective, and associated a right of war with sovereignty. Here, I would like to trace the development of this theory, from roughly 1250 to 1450, and particularly a view that sovereigns licitly judged the justice of their own causes, as a remedy for a lack of superior authority.

This article analyzes the targets of papal policies on Christians' relations with non-(Roman)Christians contained in canon law's On Jews, Saracens, and Their Servants in a historical period that has attracted comparatively little attention: the mid-thirteenth to the late fifteenth century. It argues the inherent ambiguity of the normative discourse on “proper” relations with “infidels.” On the one hand, popes and canonists faithfully preserved a taxonomy of otherness inherited from the church's ancient past. On the other hand, they often reduced all difference to the pastoral distinction between flock and “infidels.” The conflation of non-Christians occurred in multiple ways: through the explicit extension of a specific policy's targets, overt canonistic discussion, the tacit application of the law to analogous situations, or its simplification for use in the confessional. As a result, a number of policies aimed originally at a specific target were applied to all non-Christians. In the course of the later Middle Ages, a whole group of policies meant to define Christians' proper relations with others became potentially applicable against all non-Christians. In the words of a widely, if regionally disseminated, penitential work, all that was said of the Jews applies to the Muslims and all that was said of heretics, applies to schismatics.

Soon after Marc Kojo Tovalou Houénou hurried from his tour of the United States to the French West African colony of Dahomey in 1925 to be at his dying father's side, the French governor there launched an inquiry to find out whether Houénou was the French citizen he claimed to be. Houénou had been born in Dahomey in 1887, but had spent most of his life studying and residing in France. Alhough he had only returned to Dahomey briefly in 1921, with his father's death in 1925, Houénou wanted to claim what he saw as his rightful position as chef de famille or head of his extended family in Dahomey. With this title, Houénou would have gained administrative control over his father's expansive wealth in land and property in several towns in Dahomey, and would have been the official representative for his family, especially in interactions with the French colonial government. However, Houénou was already emerging as a thorn in the side of French colonial authorities because of a series of critical articles he had written in Paris about French colonialism. Therefore, when Governor Gaston Fourn found that Houénou had, in 1915, obtained his French citizenship rights, literally permission “to enjoy (jouir) the rights of French citizen,” why was the governor relieved?

Following Jacques Cartier's voyages up and down the St. Lawrence River in 1534, 1535–36 and 1541–42, French interest in the region surged. This interest was confined to the region's potential deposits of minerals, and then diverted realistically to the trade of furs, before ultimately, during the seventeenth century, it diversified to take into account the prospect of agricultural smallholding. So confined, this interest did not account for customary tenure and systems of property relations among indigenous inhabitants; generally these were matters avoided by merchants, traders, missionaries, and early settlers until the expediencies of settlement on the ground required otherwise. These were matters for which, in New France, the companies in charge devised no coherent policy. These were matters for which, at home, the French Crown was no beacon of advice either, meting out meager and inconsistent policies of empire before 1663, preferring instead to endorse trade monopolies while preparing for disputes with neighboring nations with competing designs to the New World.

Sometime during the middle of the nineteenth century, a correspondent from the interior of Oman wrote to the jurist Sa‘id bin Khalfan Al-Khalili (c. 1811–70) with an observation: “The Mazru‘is have wealth on the Swahili coast [al-Sawāḥil] and wealth in Oman.” This in itself was no surprise: the Mazru‘is, along with scores of other Arab clans, included a branch that had long since established its political authority in Mombasa, on the coast of what is now Kenya, but lately, the correspondent suggested, things had been changing. Members of the Mombasa Mazru‘is were now coming to Oman armed with wakalas (powers of attorney) from unknown scribes, for the sale of their familial properties in their ancestral homeland. “He [the Mazru‘i] sold what God likes from these properties and took the value… and the yield was separated from the property owners.” The people's acquiescence to the state of affairs was of particular surprise to the questioner. Days, months, and years went by, he noted, and the property owners (arbāb al-amwāl) did not seem the least bit interested in changing the system, “and the people, as you well know, come and go via this sea, from Oman to the Swahili coast, with confidence that they know [bi-ḥukm al-iṭma'ināna annahum ‘alamū].”

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.

From the 1880s, states and self-governing colonies in North and South America, across Australasia, and in southern Africa began introducing laws to regulate the entry of newly defined “undesirable immigrants.” This was a trend that intensified exclusionary powers originally passed in the 1850s to regulate Chinese migration, initially in the context of the gold rushes in California and the self-governing colony of Victoria in Australia. The entry and movement of other populations also began to be regulated toward the end of the century, in particular the increasing number of certain Europeans migrating to the United States. It is perhaps unsurprising, then, that Britain followed this legal trend with the introduction of the 1905 Aliens Act, although it was a latecomer when situated in the global context, and certainly within the context of its own Empire. The Aliens Act was passed in response to the persecution of Eastern European Jews and their forced migration, mainly from the Russian Empire into Britain. It defined for the first time in British law the notion of the “undesirable immigrant,” criteria to exclude would-be immigrants, and exemptions from those exclusions. The Aliens Act has been analyzed by historians and legal scholars as an aspect of the history of British immigration law on the one hand, and of British Jewry and British anti-Semitism on the other. Exclusion based on ethnic and religious grounds has dominated both analyses. Thus, the Act has been framed as the major antecedent to Britain's more substantial and enduring legislative moves in the 1960s to restrict entry, regulate borders, and nominate and identify “undesirable” entrants effectively (if not explicitly) on racial grounds.