Published by De Gruyter

Volume 4 Issue 2 - Writing Legal History

July 2003

Issue of Theoretical Inquiries in Law

Contents
Journal Overview

Article

October 2, 2003

Introduction

Lawrence Friedman

October 14, 2003

`Exceptions to the General Rule': Unmarried Women and the `Constitution of the Family'

Ariela R Dubler

Abstract

Throughout the nineteenth and early twentieth centuries, judges and lawmakers sought to erase the visibility of unmarried women. In the public law arena, for example, legislators conflated women and wives for the purpose of the franchise, arguing that women did not need the vote because their husbands voted for them. In the private law arena, doctrines intended to guarantee support to unmarried women functioned by constructing single women's legal identities in relation to marriage, thereby suggesting that marriage could provide for all women's material needs. This essay argues that understanding the history of single women's legal rights is critical to understanding the legal construction of marriage as the dominant institution for regulating all women's private relationships to men and public relationships to the state. Denying single women's existence allowed the law to ignore the potential threat they posed to a marriage-centric socio-legal order. Legal and political changes in the early decades of the twentieth century, however, made it increasingly difficult for the law to deny the existence of unmarried women. As single women gained social prominence, nonlegal writers in the 1930s and 1940s produced a new genre of prescriptive and descriptive literature for and about women living outside of marriage. Unlike earlier legal texts, these works embraced single women as a permanent and visible part of society. Like their legal predecessors, however, these modern authors sought to minimize the threat posed by single women to the institution of marriage, pointing to single women as proof of marriage's modern, consensual, democratic nature.

October 2, 2003

Archetypal Trials and the Management of Dissent: Some Insights from Marketing Theory

Pnina Lahav

Abstract

Recent marketing theory uses the Jungian concept of the archetype to design strategies for the improvement of product selling. Mark and Pearson propose that archetypes such as the ruler, the hero, the outlaw, and the sage are useful in promoting a product. This article suggests that the concept of archetypes as well as myths such as the Prometheus myth and the myth of the expulsion from Paradise, when combined with the insights offered by Mark and Pearson, may help in understanding the management of trials of dissent as well. The article presents seven motifs that recur in trials of dissent and shows how they form a part of the phenomenon of the political management of dissent: (1) the demonization and otherization of defendants and their supporters; (2) the tendency to employ the charge of conspiracy and thus target a group rather than a single individual; (3) the bending of the laws of procedure; (4) the utilization of previously-untested substantive charges; (5) the appeal made by each side to an external principle or vision--typically, the government resorts to the law of necessity whereas the defense resorts to natural law or a vision of "true justice" (to counter the corrupt justice currently administered by those in power); (6) focus on the judge as manipulator of laws; and (7) the appellate court assuming the role of the ultimate sage, performing its task with balance and detachment. The appellate court may use softer rhetoric in an effort to minimize the damage to the appearance of legality. When it does so, the rule of law is reaffirmed as a concept that benefits all sides; there is thus unity in the commitment to the rule of law, not to patriotism or to identification with the government. In addition, an effort is made to reaffirm the maxim (myth) that the government is a government of law, not of men.

October 2, 2003

In a Wilderness of Tigers: Violence, the Discourse of English Colonizing, and the Refusals of American History

Christopher Tomlins

Abstract

This essay addresses the first century of English colonization of the North American mainland. Rather than narrate a familiar story of events--migration, settlement, the creation of viable Anglophone cultures amid hardship and danger--it pursues a less familiar track by examining the terms upon which English adventurers and their contemporaries understood the world they inhabited, the process of transatlantic expansion upon which they were engaged, and, in particular, the justifications they espoused for their appropriations of space from its existing inhabitants. My examination concentrates in particular on the conjoined discourses, literary and legal, in which the meanings of those terms are most clearly displayed. Through analysis of Shakespeare's early play Titus Andronicus (c. 1591), I demonstrate the salience of Tudor political economy--principally of sovereign power and invasion, of land and inhabitation, and of the city and barbarism--to the discourse of early-modern English colonizing. I show how the same complex of ideas animated the founding legal texts of English "settlement," revealed in the jurisdictional structures created and spaces occupied by the projectors of colonies. Finally, through reference to another foundational text, not of colonizing but of modern American legal history (Willard Hurst's Law and the Conditions of Freedom in the Nineteenth Century United States, published in 1956), I show the cardinal importance to contemporary America's historical self-construction of a refusal to acknowledge America's historical origins in a political economy of "colonization" and its violence, and its preference for a narrative of "energy" and "freedom" and their occlusion of violence.

October 2, 2003

The Historiography of Late Nineteenth-Century American Legal History

David M Rabban

Abstract

Although the treatment of history in late nineteenth-century American legal scholarship remains largely unexplored, two recent areas of research have discussed this subject tangentially. Historiographical critiques of the emphasis on doctrine by American legal historians typically maintain that late nineteenth-century legal scholars viewed history as disclosing an inevitable evolutionary progression from primitive to civilized forms. This "whiggish" approach, the critiques add, ignored the context and function of past law while apologetically justifying conservative existing law as autonomous scientific truth. Without addressing the historiographical critiques, scholarship about late nineteenth-century legal thinkers has touched on their historical research and assumptions, mostly in passing as part of inquiries about other subjects. Designed primarily to convey how both areas of research have contributed to the historiography of late nineteenth-century American legal history, this article concludes by drawing on my own extensive reading of the original sources. Sometimes in support but often in refutation of the existing secondary literature, my findings reveal that the late nineteenth-century scholars formed a distinctive and sophisticated American school of historical jurisprudence that merits further study. Often warning against the very faults ascribed to them by dismissive subsequent scholars, many viewed legal evolution as a contingent response to social change and urged substantial reform of existing law. The American school of historical jurisprudence, moreover, provides an important intellectual context for new insights into two giants of American legal thought, Oliver Wendell Holmes, Jr. and Roscoe Pound.

October 2, 2003

The (Un?)Bearable Liteness of E-Mail: Historians, Impeachment and Bush v. Gore

Laura Kalman

Abstract

Historians have recently used the Internet to circulate political statements about law. This paper explores the statements they issued against President Clinton's impeachment and President Bush's inauguration. It pays special attention to impeachment, comparing the position taken by historians with that taken by the law professors. While concluding that such statements can be useful, the author advises historians lacking the expertise to evaluate the positions taken in a statement to proceed carefully in signing it. She suggests that historians sign only such documents whose scholarship they have made a preliminary assessment that they could individually defend publicly. She also urges historians to craft statements that give the public a sense of the methods they use in interpreting the past.

October 2, 2003

Czernowitz, Lincoln, Jerusalem, and the Comparative History of American Jurisprudence

Assaf Likhovski

Abstract

Recent histories of American jurisprudence tend to ignore the fact that ideas that appeared in the United States often appeared simultaneously in Europe. Even those works that do not ignore the European context are content with tracing the influence or reception of European thought in America. This article suggests that another possible approach is to compare jurisprudential developments in the United States, Europe, and other places in order to reach more general, sociology-of-knowledge-like insights into the reasons why certain ideas appear at certain times and places. One concrete example is discussed: the rise of an interest in the distinction between formal and "living" law (or between "law in the books" and "law in action") in American and European jurisprudence in the first decade of the twentieth century. This distinction was central to the work of Roscoe Pound in the United States and the work of the Austro-Hungarian legal thinker Eugen Ehrlich. Pound and Ehrlich shared similar personal backgrounds. When they began advocating the study of informal law, both Pound and Ehrlich were teaching law in provincial towns (Czernowitz and Lincoln) situated on the frontiers of empires. Both towns were marginal places where different cultures clashed and where the legal culture of the center of the empire had only a tenuous hold. Scholars working in such an environment, it is argued, would tend to be more aware of the gap between formal state law and the actual norms governing the daily lives of people than scholars working at the center of an empire. The article offers additional support for this argument by looking at the scholarship of Guido Tedeschi, an Italian-Israeli legal scholar who taught at the Hebrew University of Jerusalem in the 1940s. The article concludes by calling for the study of the history of American jurisprudence from a comparative perspective, taking into account such issues as the interaction between center and periphery and between empire and provinces in more than one national context.

October 2, 2003

Trauma in Court: Medico-Legal Dialectics in the Late Nineteenth-Century German Discourse on Nervous Injuries

José Brunner

Abstract

This paper discusses a dialectic whereby the law not only influenced medical thinking in late nineteenth-century Germany, but also underwent medicalization of its own initiative. At the end of the 1880s, social legislation was crucial in initiating the German discourse on traumatic nervous disorders. By employing doctors as medical experts in court, the law also created a new experiential realm for doctors, altering their behavior toward patients and shifting their focus from therapy to investigation. However, in the wake of their experiences in court, doctors developed a dual etiology of traumatic symptoms, which included the law itself as a pathogenic element with the power to aggravate symptoms. Two medical views of law can be distinguished: some doctors claimed that it was the desire to receive the pensions offered under social legislation that induced workers to perpetuate and exaggerate their symptoms; others argued that since pension claims embroiled claimants in intimidating legal proceedings, the pathogenic effect of social legislation stemmed from fear rather than greed.

October 2, 2003

The Uses of History in Law and Economics

Ron Harris

Abstract

During the last quarter of the twentieth century, the humanities and social sciences have turned toward history, something that culminated in the 1990s, and this phenomenon was evident in law as well. However, until recently, law and economics, the most influential post-World War II jurisprudential movement, was a-historical in its methodology and research agenda. The first objective of this article is to call attention to this neglected characteristic of law and economics and to explain its causes by analyzing its intellectual origins, its methodological causes, and the nature of its interaction with other sub-fields of law and of economics. The second objective of the article is to identify a change-in-the-making and its characteristics. Law and economics scholars have turned to history more often and for new purposes in recent years. The article identifies the set of factors that brought about this turn to history. These factors include: a growing willingness to conduct empirical research; the integration of public choice analysis (which often led to the study of past legislation) into mainstream law and economics; preliminary comparative law and economics studies; a growing interaction between law and economics and new institutional economics; and the importation of the concept of path dependency and of greater awareness of past burdens from other quarters of economic theory. Finally, the article examines the concrete ways in which these developments are being realized, by pointing out the various uses of history evident in specific law and economics studies conducted in recent years. It suggests a classification of this growing literature into six distinct uses of history, four of them emerging only in recent years. The general aim of this article is to enhance awareness among law and economics scholars of the actual and potential uses of history. The article further seeks to connect law-and-economics historical studies to other relevant historical works so that the law and economics inquiry will not be conducted in a disciplinary vacuum. It thus calls to the attention of legal historians and economic historians the new literature published in the field of law and economics. Finally it is also directed at scholars interested in the intellectual history of jurisprudence and in the methodological turn to history in the social sciences.

October 2, 2003

Euthanasia and the Changing Ethics of the Deathbed

Shai Lavi

Abstract

During the course of the nineteenth century, a dramatic change took place in the way Americans die. The deathbed, formerly governed predominantly by religious tradition, gradually was being shaped by medical ethics and state law. By the end of the nineteenth century, not only had the physician replaced the priest as master of ceremonies at the deathbed, but the state, in the form of positive law, had begun to express an interest in regulating the treatment of the dying patient. This interest first emerged in the context of the late nineteenth-century public debate over the legitimacy of medical euthanasia, an issue passionately disputed to this day in America and other Western societies. The history of the deathbed in nineteenth-century America suggests that the intervention of the state in the regulation of dying is a relatively new phenomenon. This paper examines this history, thereby enabling us to explore a world in which the legal regulation of dying was still unthinkable and inviting us to contemplate the historical significance of this development. The paper traces the changes that occurred during the nineteenth century in deathbed ethics, concluding with proposals for regulating dying legally through euthanasia. It focuses on the most significant moments in the history of the nineteenth-century deathbed, outlining a three-stage transformation in deathbed ethics--from the realm of religion, to the jurisdiction of medical ethics, to positive law regulation--a movement that reflects a change not only in specific rules of deathbed conduct, but also a more decisive alteration of the entire normative system governing the deathbed and the entire experience of dying. The insight to the modus operandi of regulatory law that emerges in the paper can lead to a deeper understanding of the conditions of its possibility. Regulation is only possible if the phenomenon to be regulated undergoes a transformation through which it severs its connections with anything that cannot be regulated. Thus, the paper shows how a radical transformation in the way people die was necessary for regulation by state law to emerge.

October 2, 2003

Colonialism, Colonization and Land Law in Mandate Palestine: The Zor al-Zarqa and Barrat Qisarya Land Disputes in Historical Perspective

Geremy Forman, Alexandre Kedar

Abstract

This article focuses on land rights, land law, and land administration within a multilayered colonial setting by examining a major land dispute in British-ruled Palestine (1917-1948). Our research reveals that the Mandate legal system extinguished indigenous rights to much land in the Zor al-Zarqa and Barrat Qisarya regions through its use of "colonial law"--the interpretation of Ottoman law by colonial officials, the use of foreign legal concepts, and the transformation of Ottoman law through supplementary legislation. However, the colonial legal system was also the site of local resistance by some Palestinian Arabs attempting to remain on their land in the face of the pressure of the Mandate authorities and Jewish colonization officials. This article sheds light on the dynamics of the Mandate legal system and colonial law in the realm of land tenure relations. It also suggests that the joint efforts of Mandate and Jewish colonization officials to appropriate land and undertake "development" operations in the area were fueled by neither the interests of colonial rule nor those of Jewish colonization alone, but, rather, by the integrated impact of both forces.

About this journal

Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

Theoretical Inquiries in Law appears in several databases, including Lexis, Westlaw, LegalTrac, and HeinOnline.

At present, Theoretical Inquiries in Law is ranked third for "impact factor" by the Washington and Lee most cited legal periodicals list in the "Jurisprudence and Legal Theory" category, ahead of such journals as Law and Social Inquiry, Law and Society Review, Legal Theory, Canadian Journal of Law & Jurisprudence and Oxford Journal of Legal Studies.