Duggan's Essays on Medieval Canon Law

We’ve recently learned of the publication of A. J. Duggan, Popes, Bishops, and the Progress of Canon Law, c.1120–1234, ed. T.R. Baker (Brepols, 2020).   Anne J. Duggan is Emeritus Professor of Medieval History and Fellow of King’s College London; Travis R. Baker (D.Phil, Oxford, 2017) is a private scholar living in the Diocese of Orange:

This book considers the role of popes and bishops in the development of the law of the Church between 1120 and 1234. Although historians have traditionally seen the popes as the driving force behind the legal transformation of the Church in the twelfth and thirteenth centuries, the primary argument of this book is that the functioning of the process of consultation and appeal reveals a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia.

Bishops have always played a central role in the making and enforcement of the law of the Church, and none more so than the bishop of Rome. From convening and presiding over church councils to applying canon law in church courts, popes and bishops have exercised a decisive influence on the history of that law.

This book, a selection of Anne J. Duggan’s most significant studies on the history of canon law, highlights the interactive role of popes and bishops, and other prelates, in the development of ecclesiastical law and practice between 1120 and 1234. This emphasis directly challenges the pervasive influence of the concept of ‘papal monarchy’, in which popes, and not diocesan bishops and their legal advisers, have been seen as the driving force behind the legal transformation of the Latin Church in the twelfth and early thirteenth centuries. Contrary to the argument that the emergence of the papacy as the primary judicial and legislative authority in the Latin Church was the result of a deliberate programme of papal aggrandizement, the principal argument of this book is that the processes of consultation and appeal reveal a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia, in which the ‘papal machine’ evolved to meet the demand.

–Dan Ernst.  TOC after the jump.
Chapter 1: Jura sua unicuique tribuat: Innocent II and the advance of the learned laws
Chapter 2: ‘Justinian’s Laws, not the Lord’s’: Eugenius III and the learned laws
Chapter 3: Servus servorum Dei: Adrian IV’s contribution to canon law (1154-9)
Chapter 4: Alexander ille meus: The Papacy of Alexander III
Chapter 5: The Effect of Alexander III’s ‘Rules on the Formation of Marriage’ in Angevin England
Chapter 6: The Nature of Alexander III’s Contribution to Marriage Law, with special reference to Licet preter solitum
Chapter 7: Master of the Decretals: A Reassessment of Alexander III’s Contribution to Canon Law
Chapter 8: Making Law or Not? The Function of Papal Decretals in the Twelfth Century
Chapter 9: ‘Our Letters have not usually made law (legem facere) on such matters’ (Alexander III, 1169): a new look at the formation of the canon law of marriage in the twelfth century
Chapter 10: Manu Sollicitudinis: Celestine III and Canon Law
Chapter 11: De Consultationibus: the role of episcopal consultation in the shaping of canon law in the twelfth century
Chapter 12: The English Exile of Archbishop Øystein of Nidaros (1180-83)

Astorri on Lutheran Theology and Contract Law in Early Modern Germany

Here's a 2019 publication that we missed somehow: Lutheran Theology and Contract Law in Early Modern Germany (ca. 1520-1720) (Verlag Ferdinand Schoningh, 2019), by Paolo Astorri (post-doc at the Center of Privacy Studies, University of Copenhagen; faculty member at the Catholic University of Leuven). A description from the Press:

It is clear that the Lutheran Reformation greatly contributed to changes in theological and legal ideas – but what was the extent of its impact on the field of contract law? Legal historians have extensively studied the contract doctrines developed by Roman Catholic theologians and canonists; however, they have largely neglected Martin Luther, Philip Melanchthon, Johann Aepinus, Martin Chemnitz, Friedrich Balduin and many other reformers. This book focuses on those neglected voices of the Reformation, exploring their role in the history of contract law. These men mapped out general principles to counter commercial fraud and dictated norms to regulate standard economic transactions. The most learned jurists, such as Matthias Coler, Peter Heige, Benedict Carpzov, and Samuel Stryk, among others, studied these theological teachings and implemented them in legal tenets. Theologians and jurists thus cooperated in resolving contract law problems, especially those concerning interest and usury. 

H/t New Books Network, where you can find an interview with the author.

-- Karen Tani

Weekend Roundup

• In the op-ed pages of the New York Times: John Fabian Witt (Yale Law School) writes about how courts have historically responded to challenges to public health laws -- and how they are doing so today ("Republican Judges Are Quietly Upending Public Health Laws").

• In the Washington Post's "Made by History" section: Bruce J. Shulman (Boston University) on how "Court-packing — and other radical constitutional reforms — might save America"; Daniel S. Luck on how "Originalism threatens to turn the clock back on race"; and more.
  

• Via Religion & Politics: Ronit Y. Stahl (University of California, Berkeley) on "The Book of Ruth: Justice Ginsburg on Religious Freedom."
  

• The David Berg Foundation Institute for Law and History at Tel Aviv University has recently updated its bibliography of the history of Israeli law to expand its coverage down to 1977.  The compilers write that they have consulted Palestinian and Arabic-language sources and would be very happy to receive further references.
  

• We’ve previously noted that Linda Kerber will deliver the 2020 Charles Homer Haskins Prize Lecture from the College and Law at the University of Iowa at 3:00 PM Eastern Time on Wednesday, October 28 and our now please to pass along word that Constance Backhouse, ASLH delegate to the American Council of Learned Societies and a former ASLH president, and former ASLH Treasurer, Craig Klafter, nominated Professor Kerber was nominated for this prize.
  

• A recording of the 2020 Roger Trask Lecture of the Society for History in the Federal Government, delivered by Bill Williams, formerly Chief of the Center for Cryptologic History at the National Security Agency, is here.

• We just wanted to make sure you all knew about Aaron Sorkin’s The Trial of Chicago 7.  We still recall our viewing of the documentary William Kunstler: Disturbing the Universe, by the famous radical lawyer’s daughters.  

• The 14th Annual South Asia Legal Studies Workshop happened online this week, hosted by the University of Wisconsin Law School. It included a good crop of legal history papers (program here).

• "100 Years After the 19th Amendment: Their Legacy, and Our Future,” a traveling exhibit of the American Bar Association, opens at the University of Kentucky J. David Rosenberg College of Law on October 18.  Several events are planned, and the UK Law Library has created an accompanying website.  More.
  

• ICYMI: Jack Rakove on originalism and Judge Barrett (WaPo).  Sara Georgini, series editor for The Papers of John Adams, On the Peaceful Transfer of Power: Lessons from 1800 (AHA Perspectives).  Michael Koncewicz, Tamiment Library & Robert F. Wagner Labor Archives, on Loyalty and Duty in the Federal Bureaucracy, From Nixon to Trump (HNN).
  

• Update: Over at IEHS Online, the website of the Immigration and Ethnic History Society, Jane Hong interviews Lucy Salyer about Under the Starry Sky. (Also: it does have legs: I discussed Laws Harsh as Tigers in class this semester, too!  DRE.)
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Prifogle, "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971"

Emily Prifogle (University of Michigan Law) has posted "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971." Here's the abstract:

In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. This article uses Michigan as a case study to examine the informal safety net those rural women created and how it ultimately strengthened the very economic and legal structures that left agricultural workers vulnerable. From the 1940s through the 1960s, federal, state, and local law left large gaps in labor protections and government services for migrant agricultural laborers in Michigan. In response, church women created rural safety nets that mobilized local generosity and provided aid. These informal safety nets also policed migrant morality, maintained rural segregation, and performed surveillance of community outsiders, thereby serving the farmers’ goals of having a reliable and cheap labor force. 

The full article is available here. (h/t @WomenKnowLaw)

-- Karen Tani

A Lost World? Jewish International Lawyers and New World Orders

[We have the following announcement.  The full--and footnoted--call is here.  DRE]

 Call for proposals: A Lost World?: Jewish International Lawyers and New World Orders (1917-1951)

The International Law Forum of the Faculty of Law at the Hebrew University of Jerusalem together with the Leibniz Institute for Jewish History and Culture –Simon Dubnow, at Leipzig and the Jacob Robinson Institute at the Hebrew University of Jerusalem are inviting proposals for papers to be presented at an international conference to be held mostly or partly online on 24-25 May 2021 (depending on the prevailing public health conditions). The conference will include invited speakers and other participants.

Theme.  The first half of the 20th century featured two dramatic attempts to construct New World Orders following the two World Wars. These attempts included the establishment of ambitious international governance frameworks in the form of the League of Nations, the Permanent Court of International Justice and the International Labor Organization after the First World War and the United Nations Organization, the International Court of Justice and the Bretton Woods System after the Second World War. In parallel with these developments, landmark agreements were reached resulting in a radical transformation of the Westphalian state system, and, in particular, with regard to the relationship between states, individuals and groups. These agreements included other major instruments such as the post-World War One minority treaties, the Slavery Convention (1926), the Kellogg-Briand Pact (1928), the Geneva Conventions of 1929 and 1949, the London Charter (1945), the Genocide Convention (1948), the Universal Declaration of Human Rights (1948) and the Refugees Convention (1951). It can be argued that the norms and institutions established in this dramatic period revolutionized international law in diverse fields, ranging from international human rights law, through international criminal law and international humanitarian law, to international economic law.

Recent years have seen a sharp increase in historical research describing the unique contribution of prominent Jewish international lawyers to the development of modern international law. Among the prominent publications belonging to this genre one can mention Philippe Sands’ East West Street, focusing on the life and work of Raphael Lemkin and Hersch Lauterpacht (2017), Gilad Ben-Nun’s book on the Fourth Geneva Convention which highlights the contribution of Georg Cohn, Georges Cahen-Salvador and Nissim Mevorah (2020), James Leoffler and Moria Paz’s edited volume on the Law of Strangers (2019), James Loeffler’s Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (2018), Nathan Kurz’s, Jewish Internationalism and Human Rights after the Holocaust (2020) and Rotem Giladi’s publications on Israel and the Refugees and Genocide Convention (2015). A number of earlier works also touched upon multiple dimensions of the topic, including the contributions of prominent Jewish international lawyers, such as Hans Kelsen and Jacob Robinson, and on the relationship between the experience of being uprooted and interest in international law.

The conference seeks to invite lawyers, historian and academics from other relevant disciplines to take stock of this growing literature, that analyzes the contribution of Jewish international lawyers to the major developments in international law noted above, and to address the following questions: Can one truly speak of a “Jewish school” in international law? Or can one allude to a number of “Jewish schools” speaking in different voices? Can the contributions of Jewish international lawyers be distinguished from other contemporary trends shaped by migration and/or attachment to cosmopolitan ideals? If so, what are the main contours of this Jewish school(s)? How is it related to Jewish thought and experience generally or to the collective interests of the Jewish people in the relevant period? Does anything remain of this tradition in the 21st century? Has this tradition affected the approach to international law of Israel and international Jewish institutions? To what extent does the categorization of certain authors as “Jewish” do injustice to their own self identification as individuals or as nationals of specific countries? To what extent has the Jewish stance(s) toward international law changed since the creation of the State of Israel (and to what extent is there a Jewish-Israeli School (or schools) that are distinct from the Jewish school(s))? In particular, how may these questions be related to what some have seen as Israel’s skeptical stance towards many of the universal or cosmopolitan values articulated in the post-World War eras. Finally, can any contemporary lessons be drawn from this phenomenon and, if so, what are they?

Understanding the historic experience represented by the contribution of Jewish international lawyers in the period in question may also help researchers better understand contemporary attitudes towards international law as well as the feasibility of changing them.

The Call.  Researchers interested in addressing issues related to the themes of the conference are invited to respond to this call for papers with a 1-2-page proposal for an article and presentation, along with a brief CV. Proposals should be submitted by email to Mr. Tal Mimran, the coordinator of the International Law Forum (tal.mimran@mail.huji.ac.il) no later than 15 November 2020. Applicants should be notified of the committee's decision by 15 December 2020. Written contributions (of approx. 10-25 pages) based on the selected proposals should be submitted by 1  May 2021. The Israel Law Review (a Cambridge University Press publication) has expressed interest in publishing selected full length papers based on conference presentations, subject to its standard review and editing procedures.

Conference Academic Committee:
Eyal Benvenisti, Cambridge University/Hebrew University of Jerusalem
Tomer Broude, Hebrew University of Jerusalem
Dan Diner, Jabob Robinson Institute, Hebrew University
Elisabeth Gallas, Dubnow Institute
Rotem Giladi, Dubnow Institute
Philipp Graf, Dubnow Institute
Guy Harpaz, Hebrew University of Jerusalem
Moshe Hirsch, Hebrew University of Jerusalem
Yaël Ronen, Israel Law Review, Hebrew University of Jerusalem
Yuval Shany, Hebrew University of Jerusalem
Malcolm Shaw, Essex Court Chambers/Hebrew University of Jerusalem
Yfaat Weiss, Dubnow Institute

David's "Kinship, Law and Politics"

Joseph E. David, Sapir Academic College, Israel, has published Kinship, Law and Politics: An Anatomy of Belonging in the Law in Context series of Cambridge University Press:

Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentieth-century statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wide-ranging and fluid notions of belonging can be.

Some endorsements:

'Not since Charles Taylor have scholars seen such a profound inquiry into the sources of selfhood and the nature of belonging in community. Joseph David draws on a stunning range of ancient and modern, familiar and forgotten figures to probe the depths of human nature and our essential bonds of marriage and family, friendship and faith, property and state. This is interdisciplinary and interreligious scholarship of the highest caliber.'

John Witte, Jr. - Director of the Center for the Study of Law and Religion, Emory University

'Joseph David’s book is an immensely erudite and deep exploration of the meaning of belonging and identity. David’s brilliant examination of the belonging and identity in their different layers and in diverse historical settings, is of fundamental importance to the understanding of the complexity of the concept and the vital role it plays in contemporary political and cultural life.'

Moshe Halbertal - New York University

--Dan Ernst

How the Law Treats Hate

We have word of a Zoom conference,  How the Law Treats Hate: Antisemitism and Anti-Discrimination Reconsidered, sponsored by the University of Virginia’s Religion, Race and Democracy Lab, in partnership with UVA’s Jewish Studies Program and Karsh Center for Law and Democracy.  It takes place on September 10, 12:15 pm - 5:30 pm.

The global upsurge in antisemitism has triggered intense public debates about the role of law in combatting religious and racial hatred. This conference brings together leading scholars of law, history, and Jewish Studies to rethink pressing contemporary questions about antisemitism’s relationship to other forms of discrimination, the proper boundaries between hate speech and free speech, and the Jewish relationship to American civil rights and international law

--Dan Ernst