Legal History Research Articles

Legal Historians of Russian Diaspora in 1920s—1930s

The article characterizes the activities and legacy of Russian legal historians who found themselves in emigration in European academic centers in the 1920s. Among these researchers are mentioned M. N. Yassinsky, G. V. Demchenko, F. V. Taranovsky, A. V. Soloviev, and M. V. Shakhmatov. It is shown that prior to the revolution, these scholars taught at various universities in Russia, and in emigration they occupied chairs at higher educational institutions in Yugoslavia and Czechoslovakia. The sources of the study include published works by the scholars, memoirs of emigrants, as well as archival materials of various types from storage facilities in Russia and Slovenia, which are being introduced into scholarly circulation for the first time. The analysis of sources revealed that their establishment in emigration was associated with certain difficulties. On the other hand, the experience gained in Russian universities in studying and teaching the history of Russian and Slavic law helped them integrate into the local academic environment. Only Taranovsky and Shakhmatov to some extent adhered to their previous themes in their scholarly activities, while other scholars changed theirs. It is concluded that this was due to a lack of access to sources and the demands of the courses being taught. At the same time, it is emphasized that there was ideological-methodological unity and awareness of belonging to a particular scientific community. The conclusion is drawn that pre-revolutionary schools of legal history continued to exist in the conditions of European emigration.

Land Dispute and Traditional Customs in the New Territories: Analysis of Tang Kwong Yu Tong Case

In this paper, one of the most important methodologies is the literature analysis, that is, the use of legal provisions and the original text of the judgment as the basis for the interpretation of the Tang Kwong Yu Tong case. Since the second half of the last century, a large number of scholars have been critical of the present-day land administration and traditions in Hong Kong, which have been regarded as a travesty of the law. However, an inquiry into the reasons for the existence of this custom in judicial practices requires not only legal analysis, but also consideration of the historical background. As a legal history paper, this paper will investigate the causes of land custom and the reasons for its continuation to the present day by combining case studies with historical knowledge. Despite the irrationalities and anachronisms of traditional land practices, these customs are bound to exist for a long period.

Fundamental principles of Roman law and their relation to legal argumentation

Modern philosophy of law defines the principles (foundations) of law as the initial conditions of law, the determinants of its content, on which law relies and which constitute its foundation. At the same time, most European countries use ancient Roman legal formulas in their modern legal systems, which evolved into maxims and became the basis of modern positive law in the form of principles. The establishment of general legal principles, concepts/ constructions is reflected in the legislation, doctrines and case law of most countries. In this article, we focused on the values and concepts formulated in the 1930s by the novelist and legal historian F. Schultz, including the principle of isolation/abstraction, the principle of simplicity and tradition, the principles of freedom and authority, the principle of humanity, the principle of loyalty/ good faith, the principle of security, and some others. These principles continue to be researched by Ukrainian and foreign scholars who supplement this list and study their impact on the legal systems of Ukraine and other countries.
 We emphasize that the principles were not formulated by Roman lawyers, for example, in the preamble to their own works or in a separate law or legal document. Roman law was casuistic, it mainly consisted of decisions made in individual cases. This is related to the peculiarities of legal argumentation in ancient Rome, which had a dual nature. On the one hand, they were determined by the rules of law, and on the other hand, they reflected a system of filling gaps in legal relations by applying the principles of law and the oratory techniques of lawyers of that time.
 Modern legal scholarship has tried to find and argue for the existence of general principles of Roman law development as a basis for making specific decisions, or because Roman lawyers sometimes used certain terms and concepts on which their decisions were based.

Digital History of Law: Principles of Methodology

Objective: to theoretically substantiate the basic principles of methodology of a new interdisciplinary area of socio-humanities – the digital history of law; to demonstrate the heuristic potential of digital technologies in legal historical sciences.Methods: the study is based on systemic, formal-logical, and comparative general scientific methods.Results: it is concluded that the methodology of the digital history of law is based, first of all, on the source-centric approach, which considers a source as a macro-object of humanitarian and social sciences, through which information exchange takes place (O.M. Medushevskaya’s concept of cognitive history). Secondly, it is based on the combination of traditional methods of legal history with digital techniques and technologies and methods based on them – within a research program of historical-legal (historical-juridical) source studies. The article attempts to summarize the existing digital technologies and techniques, as well as methods based on them, as applied to legal historical sciences; their heuristic potential is shown in case studies.Scientific novelty: for the first time in the Russian legal history science, the author substantiates the methodology of the digital history of law as an interdisciplinary field that studies the past of state and law using digital information and communication technologies and tools.Practical significance: under the shifts in socio-humanities (digital, linguistic, visual ones, etc.), which have become relevant in recent years, and the development of the digital type of social communication, methodological approaches to obtaining new knowledge are changing, new interdisciplinary branches of scientific knowledge are emerging, as well as new requirements for the qualification of researchers. The ongoing changes affect legal historical sciences: digital history of law is formed as an interdisciplinary area within digital humanities, at the confluence of history, legal science, and information science. The understanding and application of digital technologies and the scientific cognition methods based on them in legal historical research open up new opportunities for legal historians in determining the directions of their scientific research and obtaining new scientific results. This ultimately expands our understanding of historical and legal facts, phenomena and processes.

The Act of Nusyuz By A Wife As An Abortion of The Right To Maintain Mut'ah After Divorce

The aim of this research is to understand nusyuz as a reason for divorce in statutory regulations and the judge's considerations in deciding cases of granting mut'ah maintenance to a wife who is suspected of being nusyuz. This research method uses a normative method of analyzing or reviewing court decisions. The subject of the study is law which is conceptualized in a norm or rule that applies in society. Therefore, Normative legal research is focused on the analysis of positive law, principles, doctrine, legal discoveries, legal systematics, comparative or legal history. The results in the Marriage Law and in the Compilation of Islamic Law (KHI) do not specifically emphasize the condition of a wife's nusyuz as a justified reason for divorce, but implicitly this has been represented by 2 (two) other reasons, namely actions that are difficult to change. and constant disputes or quarrels. In this case, nusyuz's attitude certainly needs to receive attention and reprimand from those around him, especially from his partner himself. This is different if it turns out that the reprimand did not produce any results so it should be considered that the perpetrator of nusyuz has found it difficult to change for the better. In other words, such circumstances or conditions should give rise to a dispute between a husband and wife, where the dispute continues to occur over time, it will increasingly erode harmony in the household and be replaced by anger, violence or other harmful things so that it is legally justified to do a divorce.

Historical Study of Marriage Law Between the Norms and the Problematics

Purpose: This study aims to examine the history of marriage law between norms and problems in Indonesia. Methods: The method used in this research is qualitative legal history analysis with a juridical-normative approach. Data was obtained by searching literature regarding marriage in the context of legal history in Indonesia, including laws, regulations, historical documents, and other related literature. Result and Discussion: Law Number 1 of 1974 concerning Marriage is unification for the entire population of Indonesia, which is plural but also plural with a release clause by their respective laws and religions. Based on the history of the formation of Law No. 1 of 1974 from the Draft Law until its ratification, experienced pros and cons based on religious perspectives and women's rights, both in legislative, executive, and organizational institutions Implications of the Research: Based on the formation process, it is influenced and colored by the interests of specific interest groups, with religious elements very dominant in it. In practice, implementing Law No. 1 of 1974 raises legal problems in certain legal events, especially various legal events that comply with Law No. 1 of 1974, which are patriarchal and detrimental to women as wives. Originality/Value: This research highlights the unique contribution and added value of research to our understanding of the history of marriage law in Indonesia. This research occasionally explores the evolution of norms and problems in marriage law. It identifies essential patterns and practical implications through an in-depth approach to legal historical analysis.

Reject, Reject, Reject...Passed! Explaining a Latecomer of Emigrant Enfranchisement

Despite the extensive spread of external voting across the world, exceptions remain as some countries have not passed such regulations (e.g., Uruguay) or have passed them but lag implementation (e.g., Nicaragua). Others still took a long time to join the trend, possibly presenting a pushback to the commonly accepted notion of norm diffusion to explain migrant enfranchisement. We examine a latecomer by asking why Chile took so long to enfranchise emigrants. Classified as a liberal democracy with a century of legal history of foreign-resident voting, it repeatedly rejected proposed bills on external voting since 1971. Chile enacted external voting only in 2014, regulated it in 2016, and applied it in 2017. Through legal historical content analysis, we identify which political actors proposed the bills, when, and why each failed. Left and right-leaning actors gave normative, legal, and procedural reasons that resulted in rejection and stagnation at various institutional stages. This latecomer’s constitutional tradition, strongly focused on territory and territorial links, potentially sheds light on dozens of other country cases of late adoption of the external franchise.

Michael A. Olivas. Perchance to DREAM: A Legal and Political History of the DREAM Act and DACA.

Michael A. Olivas. <i>Perchance to DREAM: A Legal and Political History of the DREAM Act and DACA</i>.

The Tragedy of School Desegregation

Abstract The Crucible of Desegregation: the Uncertain Search for Educational Equality details the legal, social, and political history of school desegregation over the last century and half. The author describes the creation of the civil rights state, at the state and federal level, the continuing ambiguity of the term desegregation, the lack of support for mandatory reassignment by Black parents, the reluctance of school officials to apply for a termination of their court order, the effect of terminating school desegregation orders on racial balance and interracial exposure, and the failure of school desegregation to achieve the lofty goals its supporters pursued, of which eliminating the Black-white achievement gap was the most important.

Tagging Manorial Police Regulations in Medieval and Early Modern Flanders: Some Methodological Reflections

In the1990s, the team around Karl Härter and Michael Stolleis at the Max PlanckInstitute for European Legal History (today: the Max Planck Institute for LegalHistory and Legal Theory) developed a four-tier taxonomy to tag policeordinances in the Holy Roman Empire. This taxonomy contained some 1,200keywords, divided into 5 societal sectors, 25 regulatory areas, and c. 200police matters. The goal of this taxonomy was to enable comparative,interterritorial research. In our present research, we took this taxonomy,designed for princely legislation and ordinances promulgated in imperial towns,and applied it to a corpus of 109 medieval and early modern police regulations,containing thousands of legal provisions on all aspects of daily life in manorsin the county of Flanders. While the taxonomy was very helpful for analysingthese provisions, there were also some challenges related to the fact that wewere applying the taxonomy to another region and to another normative sourcetype. Given the continuing process of elaborating the taxonomy and the translation from Germaninto different languages, we argue that some coordination is necessary to avoidthat the meaning of the keywords gets lost in translation. Applying thetaxonomy is not a self-evident process. It is indispensable to have a users’guide and careful decision about translations to guarantee that the taxonomycan become a standard tool for tagging normative sources and enabling thecomparison of norms across territorial and linguistic borders.

Ian Ward. The Play of Law in Modern British Theatre

Ian Ward’s The Play of Law in Modern British Theatre offers readings of major dramatic works of the last half century, focusing on an array of legal themes and legal histories, from the constitutional crises of the English Civil War to sexual violence and violation in the age of technology.

"We Have a Right to Live in This Country": Reverend Moses Broyles and the Struggle for Social Justice and Racial Equality in Nineteenth-Century Indiana

ABSTRACT: Rev. Moses Broyles (1826–1882) ranks as a leading figure in Indiana's African American religious, political, racial, educational, and legal history. Born a slave in Maryland, he was sold as a child to John Broyles of Paducah, Kentucky, from whom he purchased his freedom in 1854. Thence he moved to Lancaster, Indiana, where he enrolled at the Eleutherian Institute. In 1857, he relocated to Indianapolis and joined the Second Baptist Church. Recognizing his oratorical skills and spiritual leadership, its members soon called Broyles as their pastor. As a bi-vocational minister, Rev. Broyles also taught at a private school for African American children and helped integrate Indianapolis High School. He was a fierce opponent of slavery who demanded equal rights and privileges for African Americans as U.S. citizens. Later, he served as a statewide leader in the Republican Party of Abraham Lincoln and Ulysses S. Grant even as he challenged Indiana's anti-Black laws.

Before Borders: A Legal and Literary History of Naturalization by Stephanie DeGooyer (review)

Before Borders: A Legal and Literary History of Naturalization by Stephanie DeGooyer (review)

Reconsidering Early Modern Jewry: Reflections on the Methodology of Legal History

Reconsidering Early Modern Jewry: Reflections on the Methodology of Legal History

Srednie veka kak ob"ekt issledovaniya yuridicheskoj nauki

This article is devoted to the study of the concept of “the Middle Ages” as a phenomenon of legal history of mankind through the currently existing scientific approaches to its interpretation: formal-chronological, socio-economic and socio-cultural or complex. Based on the latter approach, the authors draw attention to the expediency of singling out within the framework of historical-legal research a specific socio-legal approach to the definition of the analyzed concept. Within the framework of the article, the authors note on the basis of the analysis of historical and historical-legal literature the absence in modern historical-legal and historical science of a single stable understanding of the concept of “the Middle Ages”, and offer the author's definition of this term.

:Custom, Law, and Monarchy: A Legal History of Early Modern France

:<i>Custom, Law, and Monarchy: A Legal History of Early Modern France</i>

Krakowskie tradycje badań dziejów powszechnych epoki nowożytnej. Zarys problematyki: Półwysep Apeniński

The Italian issues, especially in relation to the modern era in the context of historical research, poses an extremely interdisciplinary character. Therefore, the outline of these issues must include research related not only to the political or military history of the countries located on the Apennine Peninsula but also to the concerns of the history of culture and science as well as the history of legal and political doctrines or historiographic reflection. These examinations should be also conducted in the areas of history of culture, legal and political history, and the history of the Church, and to a much lesser extent in the area of socio‑economic history and the history of wars. In the research carried out in all these fields, one also finds issues concerning Italy and Poland’s relations with the Italian states with parti-cular emphasis put on the Holy See and the Republic of Venice. Józef Andrzej Gierowski was the author of the only Polish synthesis of Italian history. This scholar and his academic output discussing the Italian issues (including the issue of an “early Enlightenment”) held a high position in the traditions of the research on the general history of the Apennine Peninsula in the modern era. The conclusions presented in his writings indicate research perspectives which still remain valid.

Recepcja i kontynuacja badań Józefa Andrzeja Gierowskiego nad historią Śląska

Among Gierowski's research, an important place was occupied by works on the past of Silesia. He started Silesian studies that fit into socio‑economic history. He also published syntheses and source editions devoted to the history of Silesia. His research was continued by Józef Lesz-czyński and Krystyn Matwijowski. Leszczyński continued and developed his reflection on the social and legal history of Silesia. Among them, he examined the problems of peasant revolts, the situation of the poorest in Silesia during the Thirty Years' War and after its end. He studied Polish‑Silesian relations in the 17th and 18th centuries. Matwijowski conducted research on the history of Pietism and the history of everyday life in Silesia and works devoted to the past of Lower Silesian towns. Gierowski's research is inspired by Jerzy Maroń, the author of a book devoted to the Thirty Years' War in Silesia, Leszek Ziątkowski, authors part of the history of Wrocław and books about the past of Jews in Silesia. Jacek Dębicki deals with the history of culture in Silesia. Daniel Wojtucki develops studies on socio‑cultural phenomena in Silesia and Lusatia.

Three Modalities of (Originalist) Fiduciary Constitutionalism

Abstract There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled ‘fiduciary constitutionalism’. Some have wanted to strangle this work in its cradle, offering an argument pitched ‘against fiduciary constitutionalism’, full stop. But because there are enough different modalities of fiduciary constitutionalism—and particularly originalist varieties of it at the center of recent critiques—it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This article develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.

The Abolition of Slavery in Africa's Legal Histories

AbstractThis introduction contextualizes the special issue's articles in the broader continental dynamics. It discusses the Eurocentric bias of the historiography and suggests that the view that Europe was responsible for the legal abolition of slavery in Africa should be nuanced and qualified. Some independent African polities abolished slavery before Europe's colonial occupation. Nowhere did European abolitionists encounter a tabula rasa: African polities had complex jurisdictions, oral or written, which formed the normative background against which slavery's abolition should be studied. To do so, however, it is misleading to imagine abolitionism as a unitary movement spreading globally out of Europe. What happened differed from context to context. Normative systems varied, and so did abolition's legal processes. This introduction examines the dynamics that led to the introduction and implementation of anti-slavery laws in African legal systems. It recenters the analysis of the legal abolition of slavery in Africa around particular African actors, concepts, strategies, and procedures.