In Between the Law and Literature: Time Traveling within Johnson v. M’Intosh (1823) and Octavia Butler’s Kindred (1979)

Editor's Note Natalie Havlin On March 8, 2018, marches in coordination with International Women's Day and the International Women's Strike took place across the world. In Spain, over 5.3 million women participated in a twenty-four-hour strike chanting, Sin nosotras, se para el mundo ("Without us, the world stops") (Vonberg and Perez Maestro 2018). In the Philippines, the radical women's movement GABRIELA led hundreds through Manilla to demand an end to exploitative labor practices (Cahiles 2018). At the march organized by la Coalición 8 de Marzo in San Juan, Puerto Rico, songwriter Chabela Rodríguez performed the song "Para construir otra vida" ("To build another life"), echoing march organizers' entreaty ¡Paramos para construir otra vida! ("Let us strike to build another life!"). In her performance, Rodríguez intoned, Somos manos amorosasmanos que amasan la vida.Las que tejen en las callesy en la casa dan comida.Sembradoras de esperanzay dispuestas a la lucha. (We are loving hands / hands that amass life. / Those who weave in the streets / and in the house they give food. / Sowers of hope / and willing to fight.)1 Rodríguez's compelling lyrics link a vision of gender and sexual justice with seeking liberation from the particular context of U.S. colonial rule [End Page 9] in Puerto Rico. Since 1898, the United States has maintained control over the Puerto Rican economy and further attempted to consolidate U.S. colonial rule through social policies and laws regarding sexuality, family life, racial segregation, language, and education (Findlay 2000). Most recently in 2016, the U.S. Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), a bill establishing a U.S. federal-appointed fiscal review board that includes devastating austerity measures such as privatizing government services and infrastructure (Bonilla 2018). Following Hurricane Maria in September 2017, the island's already fragile infrastructure has further eroded as a result of the PROMESA fiscal review board's decisions to cut wages and health-care benefits as well as privatize recovery efforts (Bonilla 2018). As of May 29, public-health analysts estimate that over 4,645 people died in Puerto Rico following Hurricane Maria due to the austerity and storm-impacted failures of infrastructure (Kishore et al. 2018). In response to this context, as Bárbara I. Abadía-Rexach notes in her contribution to Protest, Chabela Rodríguez voices a collective refrain among Puerto Rican feminist organizers that activates hope, self-determination, and mutual aid amid conditions of gender oppression and heterosexism enacted through and constitutive of colonial and state violence. In light of the struggle in Puerto Rico and other recent mobilizations as this issue goes to press—from the Great March of Return in Palestine and demonstrations for independence in Kashmir to ongoing digital campaigns such as #MeToo and #NiUnaMas—Protest provides a timely exploration of the tactics for liberation, survival, and decolonization developed by movements, artists, and individuals addressing social and material conditions of state and colonial violence in Canada, Chile, India, Kashmir, Kenya, Palestine, the Philippines, Puerto Rico, and the United States. As Elena L. Cohen, Melissa M. Forbis, and Deepti Misri clarify in their introduction, Protest moves beyond a focus on highly visible acts of protest, such as marches and demonstrations, to build a "new historical narrative" of the multiple registers and "repertoire of tactics" that individuals and groups engage to call for and build another world. From articles exploring Maphuche elders' narratives of struggle and LGBTQ Latinx migrants' practices for survival to feminist digital storytelling in Kenya and occupied Kashmir, a common refrain voiced by Protest contributors is that the varied modalities of feminist protest and struggles for freedom, not only address the particular contexts of the gendered and sexual dynamics of [End Page 10] occupation and oppression, but also creatively sustain ways of life targeted for repression and erasure. Like Chabela Rodríguez's invitation to San Juan march participants to join her in song and struggle, we might read Protest as inviting readers to participate in what contributor Rabab Ibrahim Abdulhadi terms a "call and response praxis." In the issue, guest editors invited Abdulhadi, Angela Y. Davis, and Charlene...

The inseparability of law and history is manifest when historical interpretation -an integral component of legal hermeneutics-results in juristic disagreement. This article is a foray into the shift from prohibition to permissibility of prisoner of war execution in early Islamic legal history that connects changing legal opinions to changing historiographical readings. Contemplating the contrast between historical and jurisprudential interpretations of historical events with legal implications will facilitate investigation of the interactions between historiography and legal discourse. Exploring a few questions will highlight the ambiguous, overlapping roles of historians and jurists as they construct (legal) histories: (1) Do historical narratives about all the battles that occurred during the Prophet's lifetime illustrate his legal practice concerning treatment of prisoners of war? (2) After the Prophet's death, how did Muslim jurists adjudicate this issue? (3) What legal reasoning did key Muslim jurists of the ‘professionalization’ period apply in permitting the execution of war prisoners? (4) What could explain the discrepancy between the chronologically earlier opinion (prohibiting prisoner execution) and the later, more dominant legal opinion (permitting prisoner execution)?

Legal history has been predominantly Euro-American for far too long. A quick glance at the programs of the annual meetings of the American Society for Legal History, British Legal History Conference, and the Biennial Conference of the European Society for Comparative Legal History confirms this. For example, the number of ASLH panels devoted to US constitutional law—even to First Amendment alone—is generally greater than the number of panels on the legal history of non-common law and non-civil law traditions. Legal history is more tilted towards Euro-America than most other sub-disciplines of history. And one can understand why. Civil law jurists traditionally looked back to old texts that require interpretation and provide the scholarly inspiration for the formation of new codes and national laws. Common law lawyers looked to the past for relevant precedents, ancient constitutions, and the effect of ancient forms of action on current law. Beginning in the middle of the 20th century, historically-oriented legal historians revolted against lawyerly legal history. But their historically motivated challenge was restricted to the same spatial grounds. They had to stick to Euro-American legal history in order to have adversaries, ie the previous generation's lawyerly legal historians, and to be relevant to legal discourse. And, moreover, legal discourse tended to be parochial and localized in the era of the nation-state and positivist national law. One field that reaches beyond Europe is the legal transplants literature. The civil law version traces the transplantation of Roman law throughout Europe and in the European empires, as well as the imposition of the modern French and German codes in their colonies and their voluntary adoption by independent states. The common law version of legal transplants literature investigates the transport of the common law by English settlers and governors to North America, India, Australia, and Africa. Post-colonial …

Among the many individuals and groups espousing affiliation with the Moorish Science Temple of America movement, some continue founding prophet Noble Drew Ali's emphasis on engaging in American citizenship as a religious duty, while others interpret the prophet's scriptures to lend authority to claims of being outside the jurisdiction of American legal authority. Such sovereign Moors, whose actions range from declaration of secession to rejection of drivers or marriage licenses, advance legal discourse rooted in historical narratives, tailor their legal thinking toward practical instruction and efficacious results, and appeal to etymology to further authorize their claims. Such sovereign Moorish legal discourse is best understood, following Catherine Wessinger's work on the Montana Freemen, as “magical,” and understanding the magical role played by legal texts and discourse within these communities can help scholars and legal professionals in their approach to and interactions with sovereign Moors.

This study focuses on the artistic strategies of representing historical past in two Afrofuturist novels: «Kindred» by Octavia Butler and «War Girls» by Tochi Onyebuchi. The author examines how these texts, rooted in distinct geographical and cultural contexts—African American and Nigerian—conceptualize the past as a constituent of collective memory, historical trauma, and cultural identity. Special attention is paid to the integration of the past into the structure of speculative fiction, its narrative functions, and its role in shaping future imaginaries. The comparison of the two novels reveals both shared tendencies within Afrofuturist writing and region-specific approaches to historical material and postcolonial or discriminatory experiences. The research employs comparative literary analysis, narratological tools, and the methodology of Postcolonial Studies. An anthropological perspective is applied to account for localized practices of collective memory, cultural coding, and divergences in historical narratives in Nigeria and the United States. The theoretical framework is informed by contemporary Afrofuturist scholarship. The past is interpreted as a narrative-generative element within the texts. This article presents the first comparative analysis in Russian literary studies of past representation in Afrofuturist fiction from Nigeria and the United States. It identifies a key distinction: in the U.S. Afrofuturist tradition, the past is portrayed as trauma requiring emotional reconstruction, whereas in the Nigerian tradition, it emerges as a cyclical history necessitating caution and reinterpretation. The study delineates divergent narrative strategies—from direct temporal immersion in the history of slavery (U.S.) to allusive transpositions of civil war into a futuristic setting (Nigeria). It demonstrates that speculative fiction operates in both contexts as a tool for cultural and political reflection. The findings contribute to refining the conceptual apparatus of Afrofuturist criticism and open new directions for Afrofuturist research within Russian humanities.

For a long time, the legal history of madness was a marginal topic of research within the field of studies into French colonial law and justice in the 19th and 20th centuries. For the past decade, however, studies of madness in a colonial context, on the African continent, have undergone both a thematic and methodological revival, as evidenced by the rise of specific, collective and multidisciplinary research programmes such as AMIAF (Aliéné mental et indigène. Histoire d’une double discrimination de statut en Afrique française—Insane and Native. A Legal History of a Double Discrimination of Status in French Africa) and MADAF (A History of Madness in West Africa: Governing Mental Disorder during Decolonisation [1940s-1970s]). The legal discourse and practices governing the mental alteration of populations colonised by France in Africa are at the heart of the research that has been carried out by the multidisciplinary team of the AMIAF programme since 2019. It appears vital to reflect on the sources that must be be drawn on when engaging in such research. What documents allow us to study the legal treatment of madness in a colonial context? How are we to index them, interrogate them, interpret them and cross-reference them with each other? What does their configuration tell us about the legal and administrative discourse and practices connected to madness (in particular that of the colonised populations)? In light of these concerns, this article examines the methodological challenges posed by the constitution of a corpus allowing us to study the legal and administrative treatment of madness in African territories formerly colonised by France. The sources at the heart of this contribution mainly come from the fonds of the Archives nationales d’outre-mer d’Aix-en-Provence, the Service historique de la défense de Toulon, and certain medical journals from the period under consideration devoted to medicine and colonial psychiatry. These constitute materials that are heterogeneous and dispersed, not just in geographical terms but also within the same archival fonds; they reveal a rupture in the legal treatment of madness in disparate contexts (arrests, internment procedures in accordance with the indigénat regime, complaints, reforms of the legislative framework, management of healthcare sites that existed prior to colonisation, financial issues, legal proceedings), independently of healthcare institutions, which go well beyond sanitary considerations, connecting instead with colonial policies, the maintenance of public order and financial issues.This article analyses these sources through the AMIAF digital library, which was designed and set up within the framework of its homonymous ANR research programme. Far from limiting itself to establishing a corpus of documents, this digital tool allows its users to analyse the documents hosted using new paths that permit them to sort and order these sources in original ways. The search and ordering methods offered by the AMIAF library include the “Index” and the “Tag Cloud.” Using these search tools, in particular the index of “Words of Madness” and the tag “Signs of Madness,” the article dwells on the vocabulary used by the players of colonial law in referring to the mental alteration of African populations, as well as the elements they used to detect it. Far from laying any claim to exhaustiveness or complete analysis in this field, these examples aim to reveal the benefits of carrying out research using this tool where the documents hosted are displayed and sequenced according to an order and criteria that allow the researcher to easily carry out new comparative analyses.

The Partisan’s Violence, Law and Apartheid: The Assassination of Matthew Goniwe and the Cradock Four Suren Pillay This dissertation is a study of an instance of political violence that took place during 1985 in the Eastern Cape province of South Africa, but which had a wider resonance across the country. It involved the killing of four prominent anti-apartheid activists, known as the Cradock Four, by a state security death squad. It is an instance of political violence that allows us to ask ontological questions about the relationship between law, rights and violence; colonial violence and the Cold War, as well as questions about the epistemologies that surround violence in relation to questions of justice. Revisiting this violence, as mediated through the Truth and Reconciliation Commission, this study asks: how does this violence relate to the law itself, since apartheid was after all explicit in its claim to being the product of a legal regime? It argues that we need to think about how this violence against the Cradock Four, committed by a ‘death squad’—and therefore orphaned through denial by both law and an official political narrative—related to the constitution of a South African political community, a political community we also have to remind ourselves, which had a colonial genealogy. To answer these questions I have traced the figures of Matthew Goniwe and his political comrades in two ways. The first half of the dissertation is a study of how they are fashioned in legal discourse – over time mainly as victims of human rights abuses through the Truth and Reconciliation Commission. The second half of the dissertation is a study of their constitution in political discourse, where they become transformed from activists to absolute enemies of the state. In my discussion of this latter transformation, I trace and wish to recover what has become a subaltern narrative: thinking about these activists as instantiations of the forms of what I have called ‘the natives revolt’, and therefore apartheid’s concrete enemy: they are reluctant urban native subjects; neither properly rural and neither properly urban. It is this subject which I argue, finally disrupts the colonial ambitions of apartheid.

The topic of the paper is creativity in legal translation. Legal discourse is unique for every legal system and it evolves into a unique and inherent entity hand in hand with the legal system it serves as a vehicle for communication. Accordingly, translating legal discourse means transferring thought patterns into another legal culture and consequently into another legal discourse. So far, research in the field of legal translation has focused almost exclusively on the comparative and descriptive analysis of original and translated texts disregarding how and why the particular decisions were made. All of this has proven to be very valuable, but does not provide a deeper understanding of the mindset behind the decisions of translators. The cognitive processes behind the legal translators’ decisions fueled by creative problem-solving remain undisclosed and leave us in the dark as to what links the translators’ choices to their cognition. Scrutinizing excerpts from common law precedent cases and law books translated by the Cypriot judges and used in a court decision reveals us what links their creativity to the possible discourse changes.

The patriarchal legal system and the socio-cultural institutions of the Islamic Republic of Iran (IRI) relegate Iranian women to second-class citizens. Yet, Canadian feminist texts such as Margaret Atwood's The Handmaid's Tale (1985) and Carol Shields's Unless (2002) have been translated into Persian, in 2003 and 2005 respectively. Moreover, they circulate freely and are found in Iran’s National Library. This seeming discrepancy needs a systemic and contextually-based explanation. Four questions guide my dissertation: What happens to the texts as they cross the cultural boundaries into the receiving society? Specifically, which features of feminist texts are most vulnerable to censorial interventions and what does that reveal about the interplay of the hegemonic theocratic-patriarchy and translation? Finally, how is the Persian translation of feminist texts even possible, given Iran’s legal, political and socio-cultural antagonism toward women’s autonomy? In other words, what factors mitigate such translations? To answer these questions, I outline the legal representation of women in the legal discourse and the socio-cultural attitudes towards women’s rights in Iran subsequent to the (1906-1911) Constitutional Revolution and the 1979 Revolution, which led to an Islamist government. I examine the impacts of the IRI’s androcentric legislations on women’s rights, and the censorship mechanisms on Persian and imported feminist literature. I explore the types and extent of resistance to censorship, and I study the representation of women in school textbooks, cinema and Persian literature to analyze the impact that the interaction between the legal discourse, censorship and resistance has on cultural products. I conduct a comparative text analysis using theories of feminist linguistics and descriptive translation studies (Toury 1995; Cameron 1985, 1995) to investigate the extent to which patriarchal mechanisms influence the translation of the two novels. The goal is to determine how the legal and socio-cultural discourses of the target society affect the form and meaning of the translation, and to identify translation strategies that undermine the very features that make a novel female-centric. I demonstrate how these translation strategies consistently produce target texts that conform to the state-sponsored patriarchal agenda, and synchronize with the gender values and norms of the IRI.

Law is Not or Must Not Be Just Verbal and Visual in the 21st Century: Toward Multisensory Law

This scholarly article investigates the evolution of the concept of history and its influence on the discipline of history. It begins with the medieval view of history as a source of moral lessons and progresses to Renaissance historicism, which emphasizes the contextual understanding of the past. It then explores the historical positivism of modernity, which seeks universal patterns and laws in history, followed by Marxist historical dialectics, which interprets the past as a class struggle. Subsequently, contemporary perspectives, such as cultural history, gender approaches, and global history, which broaden the understanding of history through new lenses, are addressed. In addition, the impact of digital technologies on the historical discipline is examined. A critical review of the various historical perspectives is undertaken, highlighting their contributions and limitations. This article underscores the importance of ongoing critical revision in the historical discipline to maintain its relevance and to consider ethical and political issues in historical narrative.

American Legal Realism and the Revitalization of Literary Realist History

Abstract: This essay analyzes the function of speculative fiction in the ecosystem of literary attempts to understand the imbrication of infrastructure with racial and colonial violence. While the task of making infrastructural violence apprehensible may seem more suited to realism (the literary mode designed to make legible "what is"), I trace a largely unrecognized strand in Johan Galtung's original theorization of structural violence to argue for the importance of "what is not": the potential realizations of human flourishing that are foreclosed by empire's infrastructural violence—potential realizations that can only be grasped through an act of speculation. I make this argument through a reading of Toni Cade Bambara's 1980 novel The Salt Eaters , which begins in a mostly realist mode that captures empire's violent distortions of Black and Native lives through infrastructural violence before transitioning into a more overtly speculative mode towards the end of the novel. Bambara's formal enactment of the speculative turn, I argue, evokes the potential realizations of Black and Native life that have been foreclosed by empire's infrastructural violence and entrains readers to see the world not just as it is, or as it could be, but as it might have been and might yet be. I close the essay with a discussion of the broader speculative turn in anticolonial Black women's fiction, suggesting that both the rise of speculative elements in more realist novels and the efflorescence of Black speculative fiction can be seen as deploying the affordances of speculation to capture the realities of colonial infrastructural violence in the US.

Finding ways of integrating law and legal practices into historical narratives is one of the most challenging fields of modern historiography. In the article to follow, the problems posed will be discussed on a historiographical and on a theoretical level. Firstly, I analyze the efforts social historians have undertaken in order to come to terms with law since the 1970s and discuss the extent to which their attempts to deal with legal matters differed from traditional legal history. Secondly, I explore the problematic relationship between law and historiography with reference to recent research in the field that is either influenced by the “performative turn” of the 1990s or by the flourishing area of global history. My findings indicate that while a considerable number of micro-historical studies on law and criminality now exist, macro-histories remain rather wary of approaches that stress the performative aspects of law. I conclude by highlighting the reasons making it such a complicated endeavor to write a new cultural history of law that aims at transgressing the boundaries of social as well as legal history. First of these is the enduring problem of the national boundedness of legal norms and structures. Another essential aspect is the question of language—are all historical descriptions of legal processes necessarily dependent on judicial logic and rhetoric? Finally, there is a problem of theory; what is the place of reference for a general historiography sensitive for legal aspects and legal practices.

The paper aims at unfolding the ideological underpinnings and the cultural-historical foundations of one of the latent basic assumptions of modern legal scholarship, which is the link between private law and the national idea. In particular processes of denationalisation triggered by European integration have led to resistance from Member States and a defense of the idea that law should remain national. This link is often ideally justified by the view that law is an expression of the cultural values embedded in the nation, which can be termed ‘Volksgeist’ theory. This particular view, which has long historical roots but is mainly entangled with the ideology of cultural nationalism, has now become generally accepted, albeit in a disguised form, in modern political and legal discourse. Combining insights from legal and political studies, the paper traces the circumstances that led to the affirmation of the national idea in private law, tracking that idea in legal history, in political theory and finally legal scholarship. It asserts that, notwithstanding the historical defeat of the most notorious manifestations of nationalism, several assumptions of cultural nationalism have become commonly accepted and can still be detected in the legal discourse. Résumé Le but de cet article est de présenter la dimension idéologique et historico-culturelle d’un des fondements tacites de la doctrine juridique moderne, à sa voir le lien entre le droit privé et la nation. Le processus de dénationalisation déclenché par l’intégration européenne a engendré une résistance de la part des états membres et la défense de leur droit national. La théorie du Volksgeist cherche notamment à expliquer ce lien entre la loi et la nation par le fait que la loi est une expression des valeurs culturelles propres à chaque nation. Bien qu’elle soit assimilée à l’idéologie du nationalisme culturel, cette idée a généralement été acceptée par la pensée politique et juridique moderne, quoique sous une forme souvent dissimulée. Cet article expose les circonstances qui ont conduit à une implantation de la pensée nationale dans le droit privé, sous l’angle de l’histoire du droit, de la pensée politique et dela doctrine, etenfinilsoutientque, malgré le revers historique subi par les expressions les plus dangereuses du nationalisme, plusieurs postulats du nationalisme culturel continuent à influencer le discours sur le droit en Europe. Zusammenfassung Dieser Beitrag zeigt die ideologische Dimension einer der grundlegenden Annahmen der modernen Rechtswissenschaft auf, und zwar die Verknüpfung des Privatrechts mit dem Nationalgedanken. Insbesondere die durch die europäische Integration ausgelösten Denationalisierungsprozesse führten zu Widerständen und der Verteidigung des nationalen Rechts, häufig mit der Begründung, dass das Recht ein Ausdruck von national verankerten kulturellen Werten sei. Solch eine Auffassung mag ‘Volksgeistdenken’ benannt werden. Trotz der Affiliation zu der Ideologie des kulturellen Nationalismus wurde diese Ansicht in der modernen Politik- und Rechtswissenschaft scheinbar akzeptiert. Der Beitrag umreißt die Umstände die die Verknüpfung des Privatrechts an den Nationalgedanken ermöglichten und verfolgt diese Auffassung in der Rechtsgeschichte sowie in der Politikund Rechtswissenschaft Europas. Es wird argumentiert, dass trotz der angeblichen Niederlage dieser Ideologie verschiedene Ansätze des kulturellen Nationalismus im europäischen Rechtsdiskurs noch indirekt aufzufinden sind.