ANZLS Program Now Available

Courtoom Scene, Sydney, 1817 (wiki)

The program for the 39th Annual Conference of the Australian and New Zealand Law and History Society, “an intensive 1 day world-wide gathering devoted to law in history” on December 9, is now available here.  The keynote plenary sessions are Joshua Getzler, Oxford University, on “Six Nations of the Grand River, military feudalism, and the roots of ‘honour of the Crown’”; Miranda Johnson, Otago University, on “Reckoning with a Pacific empire state: Race, nation, citizenship and the idea of New Zealand”; and a closing address by Dame Sian Elias, former Chief Justice of New Zealand.

--Dan Ernst

De and Evans in Legal Histories of Empire

 [We have the following announcement.  DRE]

Legal Histories of Empire Symposium: Rohit De and Catherine Evans

Please join us for the first of several planned symposia in 2020 and 2021 for Legal Histories of Empire and for the celebration of a special birthday of the founder of the Legal Histories of Empire Conferences.

Our speakers:

Rohit De: "Brown Lawyers, Black Robes: Decolonization, Diasporic Lawyers and Minority Rights"

Rohit De is Associate Professor of History at Yale University and is the author of A People's Constitution: The Everyday Life of Law in the Indian Republic (2018). As a Carnegie Fellow, he is currently working on a book on a history of rebellious lawyering and decolonization

Catherine Evans: “Civilization as Sanity in the Victorian Empire”

Catherine L. Evans is Assistant Professor at the Centre for Criminology and Sociolegal Studies at the University of Toronto. Her first book, Unsound Empire: Civilization and Madness in Late-Victorian Law, comes out next fall (Yale University Press, 2021).

Timezones:
New Haven/Toronto @ 4 pm on 30 October
Vancouver @ 1pm on 30 October
Sydney @ 7 am on 31 October
Auckland @ 9 am on 31October
London/Dublin @ 8 pm on 30 October
Singapore @ 4 am on 31 October

Registration: Free via Eventbrite [here].  Registration is required.  You will be emailed a Zoom link 36 hours before the event.

Owensby and Ross Interviewed on "Justice in a New World"

Every month or so the Toynbee Prize Foundation posts interviews with the authors of books on comparative and global history.  Just up is its interview of Brian Owensby and Richard Ross about their edited volume, Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America (2018).  Writes the moderator, Nicholas Sy, University of the Philippines Diliman:

How intelligible were colonial legal norms to indigenous Americans and how intelligible were indigenous legal norms to settlers? Responding to a historiography that describes either a dynamic of gradual understanding or a dynamic of continuing incomprehension, legal historians Professors Brian Owensby and Richard Ross have crafted the prodigious edited volume Justice in a New World. Resting on nuanced comparison, the volume argues for a less homogenizing view, and highlights instead the degree to which various indigenous communities were integrated into different early modern empires.

In our conversation, we discuss the genesis of their work and its key concepts. We also explore the different comparative axes along which we may examine both indigenous and settler notions of intelligibility.

--Dan Ernst

Moorings

In the eastern end of the Indian Ocean, the hardening of racial boundaries from the second half of the nineteenth century onwards occurred under the aegis of a globalized imperial system. According to Dutch classification, every non-white person in the Netherlands Indies was part of a European empire. The vast majority of Indies population were of course Dutch subjects, but there were people relegated to the category of ‘Foreign Orientals.’ For example, Malays were often labeled ‘Britisch-Maleiers,’ even if in Dutch territory simply because the Malay peninsula, identified as place of origin for all Malays, had fallen under British influence in the closing decades of the nineteenth century. By the early twentieth century, Chinese subjects who originated from Taiwan were recognized as Japanese because the territory was colonised by Japan in 1895. South Asian populations in the Dutch colony on the other hand were alternatingly labelled ‘Britisch-Indiers,’ ‘Klingaleezen’ and ‘Bengaleezen.’ Because Dutch colonial censuses were not diligently undertaken, we do not know the proportion of the South Asian population throughout the colonial period; the only systematic colonial census published in 1930 put the population at 1-3% depending on their location in the vast archipelago. Evidently, urban areas in Padang, Medan and Surabaya had enough South Asians for them to have their own quarters with their own community heads.
    Yet the much older category of ‘mooren’ predated these categories, appearing in both VOC (Dutch East India Company) records and Dutch colonial government records before 1850 especially. Who were these ‘mooren’ exactly? A clue is provided by the fact that the term ‘klingaleezen’ was sometimes substituted for ‘mooren.’ By using the term ‘mooren,’ Dutch authorities linked South Indian Muslims with other Muslims much further away in Spain (who once ruled them) a few centuries before. But this link excluded non-Muslims from Malabar and parts of southern India. The ‘Hindoe-Klingaleezen’ were a “neglected” people the Dutch should pay more attention to, a Dutch newspaper lamented in 1918, which suggest that on its own, the term only referred to Muslims. Also, why did “Bengaleezen,” a label that applied to all Indians from northern India regardless of origin, remain a distinct but undifferentiated category too? Although nearly all references to ‘mooren’ after 1800 refer only to the Indian subcontinent, the term emerged out of Dutch experience in Sri Lanka from 1640 to 1796 referring to Muslims of Tamil descent who were living in Dutch Ceylon who were of mixed ethnicity. “But more likely, if not certain, is that they are descended from the 'Mooren,' or so-called Klingaleezen of the Malabar coast,” the reporter of Sumatra Courant noted in September 1871. They came mainly for trade, another reporter wrote in De Locomotief in 1873. The term, in other words had many layers some of which were shed by the Dutch colonial government who took over from the defunct VOC in 1800. By subsequently connecting the ‘mooren’ classification with the subcontinent only, the Dutch government got round the awkwardness of taking over corporate VOC rule by dint of forgetting their association with Dutch Ceylon by implying that those earlier ‘mooren’ are an artefact of an era that had recently ended. 'Mooren' in Netherlands Indies on the other hand were supposedly from the subcontinent instead. The question remains as to how the klingaleezen identified themselves since their voices are rarely found in the archives but in September 1927, a group classified as klingaleezen wrote to the colonial government requested that they not be referred as such anymore since the term is humiliating. The term “kling” had evolved into a racial slur by then in parts of Southeast Asia.
    The category of ‘Britisch-Indiers’ was taken literally. In 1886, the British government in India requested that the Dutch government accept the appointment of a ‘British-Indian Protector’ from the Straits Settlement of Penang to oversee south Indian immigrants (referred to as klingaleezen) in Deli in northeast Sumatra, the site of many tobacco plantations. The south Indian coolies who traveled to work in these plantations were not only claimed by British as subjects but made to sail from southern India to British Penang first before looping back to Deli across the Straits of Malacca although their passage was paid by plantation owners in Sumatra. Dutch authorities were aghast that their authority did not suffice, but British capital buoyed the Dutch tobacco industry and the advantage of having an interpreter in the form of the Protector enticed them to accept the appointment. This arrangement aligned with their imperialistic view of governance.
    Slightly up north, Siam challenged this conception of a world organized according to empires in the late nineteenth century as an independent nation not colonized by Europeans who nonetheless increasingly determined its borders. Through copious inter-imperial correspondence between Bangkok, Singapore and Batavia, the Dutch took it upon themselves to police the presence of Chinese, Malays and South Asians in Siam. The obsession led to the proliferation of “reispas” (travel pass) and travel certificates issued by Dutch consulates, both of which functioned as some kind of proto passport and visa, instruments that first emerged in the colonial world as the late Adam McKeown pointed out in his vast oeuvre. 
    Generally, it was impossible for most people to move freely in the Asia-Pacific region. Ultimately, colonial classification was an inscription practice obsessed with legibility and smoothness although normative confusion between categories persisted by design. Everything was coded and was capable of being endlessly recoded. While much of mobility research is preoccupied with the association between origins and destinations, we know we can move while staying still because one mechanism for mobility is paradoxically dispossession.
 

--Nurfadzilah Yahaya

Lee to Lecture on Contagious Diseases and the Rule of Law in the British Empire

[We have the following announcement from the Transnational Legal History Group Seminar of the Centre for Comparative and Transnational Law of the Chinese University of Hong Kong.  DRE]

‘Protecting Women and Morals? Contagious Diseases Laws and the “Rule of Law” Ideal in the British Empire, 1886-1899’ by Dr. Jack Jin Gary Lee (Online)

What does it mean for liberal empires to invoke the rule of law, on the one hand, and to expand their
control over subject populations, on the other? This article examines debates over the freedom of women during the repeal of the Contagious Diseases (CD) ordinances by the Protection of Women and Girls ordinances in the directly ruled colonies of Hong Kong and the Straits Settlements (Singapore, Penang and Malacca). Originating in Hong Kong, CD laws were used to contain the spread of venereal diseases among soldiers and other populations across the modern British empire. Officials employed these laws to police prostitution and subject working-class, “native” women to medical surveillance. While the compulsory medical examination of women ended with the repeal of CD laws across the British Empire, the Straits Settlements and Hong Kong continued to regulate prostitution for the protection of “native” women and their freedom, revealing the peculiar significance of the “rule of law” under liberal imperialism. In a historical ethnography of the “rule of law” ideal, Dr. Jack Jin Gary Lee demonstrates how officials utilized its central premise of individual liberties as a comparative frame of evaluation to formulate a racially differentiated mode of gendered sovereignty.

Dr. Jack Jin Gary Lee’s research and teaching examines the significance of culture, law and politics in social processes of state-making and governance. He is working on a book on the significance of law and race in the making of “direct rule” in the modern British Empire. Focusing on the re-constitution of Jamaica and the Straits Settlements (Singapore, Penang and Malacca) as Crown Colonies in the latter half of the nineteenth century, this project examines the workings (and postcolonial legacies) of liberal imperialism in relation to colonies marked as plural societies. Notably, Lee’s dissertation on this topic won the University of California, San Diego’s 2018 Chancellor’s Dissertation Medal (Social Sciences).

Register here by 5pm, 22 September 2020 to attend the seminar.

Burset on advisory opinions

 Christian Burset (Notre Dame Law School) has an article coming out in vol. 74 of the Vanderbilt Law Review, forthcoming in 2021. Here's the abstract posted on SSRN for "Advisory Opinions and the Founders' Crisis of Legal Authority" (Notre Dame Legal Studies Paper No.200826):

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only in the United States, but also in England and British India—became opposed to advisory opinions in the second half of the eighteenth century. The death of advisory opinions was a global phenomenon, rooted in a crisis of common-law authority.

Early modern English judges had routinely advised the Crown. This advisory role was politically fraught but doctrinally unproblematic thanks to a jurisprudential orthodoxy that treated judges’ opinions as evidence of a preexisting common law. Although this declaratory theory survived into the nineteenth century (and beyond), it began to fragment after 1750, as lawyers began to disagree about the nature of precedent. Those disagreements generated new pressure to clarify the weight of different kinds of legal authority. Most lawyers intuited that advisory opinions were less authoritative than decisions arising from litigation. But because bench and bar lacked a common theory of legal authority, they were unable to articulate a shared understanding of what respect was due to judges’ extrajudicial pronouncements. As a result, advisory opinions became dangerous, because the judges who issued them could not control how future readers might treat them. In response, judges sought to limit their advisory activity—first in England, then in British-controlled Bengal, and finally in the United States, whose judges inherited Britain’s contested and dynamic understanding of judicial power.

Further information is available here.

--Mitra Sharafi 

Networks and Connections in Legal History

Just out from Cambridge University Press: Networks and Connections in Legal History, edited by Michael Lobban, London School of Economics and Political Science, and Ian Williams, University College London:

Network and Connections in Legal History examines networks of lawyers, legislators and litigators, and how they shaped legal development in Britain and the world. It explores how particular networks of lawyers - from Scotland to East Florida and India - shaped the culture of the forums in which they operated, and how personal connections could be crucial in pressuring the legislature to institute reform - as with twentieth century feminist campaigns. It explores the transmission of legal ideas; what happened to those ideas was not predetermined, but when new connections were made, they could assume a new life. In some cases, new thinkers made intellectual connections not previously conceived, in others it was the new purposes to which ideas and practices were applied which made them adapt. This book shows how networks and connections between people and places have shaped the way that legal ideas and practices are transmitted across time and space.

TOC after the jump. [DRE]
1. Introduction Michael Lobban and Ian Williams
2. Networks and Influences: Contextualising Personnel and Procedures in the Court of Chivalry. Anthony Musson
3. Men of law and legal networks in Aberdeen, principally in 1600-1650.  Adelyn Wilson
4. Calling Time at the Bar: First women barristers and their networks and connections. Judith Bourne
5. The Thistle, the Rose, and the Palm: Scottish and English Judges in British East Florida.  M. C. Mirow
6. 'The Bengal Boiler': Legal Networks in Colonial Calcutta.  Raymond Cocks
7. The White Ensign on Land: The Royal Navy and Legal Authority in Early Sierra Leone. Tim Soriano
8. A Broker's Advice: Credit Networks and Mortgage Risk in the Eighteenth-century Empire.  Julia Rudolph
9. Trans-Atlantic connections: The many networks and the enduring legacy of J.P. Benjamin. Catharine MacMillan
10. Interpretatio ex aequo et bono – the emergence of equitable interpretation in European legal scholarship.  Lorenzo Maniscalco
11. Shakespeare and the European Ius Commune.  R. H. Helmholz
12. Law Reporting and Law Making: the Missing Link in Nineteenth-century Tax Law.  Chantal Stebbings
13. John Taylor Coleridge and English Criminal Law. Philip Handler

Special issue: Constitutional Legacies of Empire

 The Northern Ireland Legal Quarterly has a special issue out on "The Constitutional Legacies of Empire," edited by Paul F. Scott (University of Glasgow). Here is the Table of Contents for vol.71, no.2 (summer 2020):

• Paul F. Scott, "Introduction: 'The Constitutional Legacies of Empire'"
• Jane Rooney, "Crown act of state and detention in Afghanistan"
• Courtney Grafton, "Foreign act of state and empire"
• Martin Clark, "'Something like the principles of British liberalism': Ivor Jennings and the international and domestic, 1920-1960"
• Devyani Prabhat, "Unequal citizenship and subjecthood: a rose by any other name...?"
• Donal K. Coffey, "Constitutional law and empire in interwar Britain: universities, liberty, nationality and parliamentary supremacy"
• T. T. Arvind and Daithí Mac Síthigh,"Constitutionalism in the periphery: revisiting the roots of self-rule movements in Ireland and India"
• Lindsay Stirton and Martin Lodge, "Constitutional legacies of empire in politics and administration: Jamaica's incomplete settlement"
• Paul F. Scott, "The Privy Council and the constitutional legacies of empire"
• Roger Masterman, "The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?"

The articles by Donal Coffey and Martin Clark are available for download on an open-access basis.

Further information is available here.

--Mitra Sharafi