Legal History Research Articles

Islamic Law, Islamic Legal History and the Possibility of Muslim Self-Government

Islamic Law, Islamic Legal History and the Possibility of Muslim Self-Government

The Private as a Core Part of International Law: The School of Salamanca, Slavery, and Marriage (Sixteenth Century)

In “Gender and the Lost Private Side of International Law,” Karen Knop argued that “recuperating private international law as a lost side of international law can open up counter-disciplinary research on gender in the history of international law.”1 In this essay, I use Knop's argument to revisit our understanding of the sixteen century “School of Salamanca”2 and its importance for international legal history from a gender perspective. I focus on the practice of jurists and theologians associated with the School of Salamanca in assessing the validity of marriages of newly converted Indigenous peoples in Brazil (negros da terra), and later the validity of remarriages of Indigenous people and enslaved Africans (negros da Guiné) who had already been married in places from which they had been forcibly removed.3 To do this, these jurists and theologians engaged in private international law (or conflict of laws) reasoning. A key question involved determining what law governed each marriage—was it ius gentium, natural law, or canon law? Examining their arguments, I argue, offers an instance of Knop's insight that recuperating private international law allows us to redress the invisibility of women in the history of international law. In my case study, not only do we better understand “how power operates through international legal concepts and institutions”4 in the private sphere of the family in the colonies, but also, and crucially, how “private international law make[s] visible the effects of colonial . . . law on gender relations and national identity at home,”5 to borrow Knop's words.

Gendering Public and Private International Law: Transversal Legal Histories of the State, Market, and the Family through Women's Private Property Rights

This essay takes up Karen Knop's challenge to reconstruct the oft-made distinction between private and public law by engaging private international law (PrIL) as a “lost side of international law.”1 To do so we interrogate the changing fortunes (literally) of women's private property rights in the long nineteenth century—a period characterized by the divestment and reinstatement of gendered rights in national law—focusing on the Nordics, Europe more broadly, and the Colonial world. Following Knop and other feminist legal scholars, and by engaging with questions of what Mariana Valverde calls “scale,”2 we bring women's property rights in conversation with international law. In doing so, we point to sites of engagement where the politico-economic structures of international law are lived, negotiated, reconfigured, and made real.3 We use scale to frame and inform our analysis bringing attention to how the “small” (micro) economics and politics of everyday life, women's labor, and gendered legal concerns, underpin and are an intrinsic part of the “large-scale” structures of international law. “All scales shifts,” Mariana Valverde notes, meaning that such “processes . . . br[ing] certain phenomena into focus that had previously been blurred or pushed to the background.”4 Recovering matters of women's history and everyday life, which, as Knop has argued are often “hiding in plain sight,” with a focus on women's property rights, brings to the fore the critical relationship between family/household, market, and the state, and the fundamental role international law has played in implementing a specific economic vision through the organization of gendered power relations.

The Still Raveled Legal History of Modern Abolition

The Still Raveled Legal History of Modern Abolition

Original Public Meaning and Pregnancy’s Ambiguities

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Organization that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment. This Article refutes these arguments on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common, expected, and impossible to distinguish from abortion. Women and their doctors lived these ambiguities. Nothing in the laws in 1868 changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

ОПРЕДЕЛЕНИЕ ГОСУДАРСТВЕННОЙ ИДЕОЛОГИИ СКВОЗЬ ПРИЗМУ КОНСЕРВАТИВНОЙ ПОЛИТИКО-ПРАВОВОЙ ДОКТРИНЫ

The article is devoted to the issues of defining state ideology through the prism of conservative political and legal doctrine. The authors note that one of the most important problems of modern Russian society is the search for a unifying state idea. However, no one creates an ideology from scratch; in its search, society uses the spiritual experience of previous generations. The connection of the concept of "ideology" with the concept of "state" reflects a social process in which an idea significant for the majority of the people is recognized and protected by the state as a guiding one. According to the authors, Russian society is currently in need of consolidating ideas more than ever. The dominance of liberal ideology leads to the atomization of society and leads it to a dead end. In this regard, the epoch of the XIX - early XX centuries is of interest, when the battles of Westerners and Slavophiles (liberals and conservatives) were fought not only in theory, but also in practice. The 19th century in the state and legal history of Russia is characterized by repeated attempts at liberal reforms, the formation of legal science focused on Western political and legal thought, the tendency to systematize knowledge about law, careful development of issues of legal technique, broad scientific generalizations, and the comparative method. The authors conclude that the conservative political and legal doctrine provides answers to many challenges of our time. It is time to recall the words of St. Theophan the Recluse: "The fundamental principles of Russian life are expressed in three familiar words: Orthodoxy, autocracy, nationality. That's what you need to keep! Russian Russian people will cease to be Russian when these beginnings change."

Writing the Legal History of Madness in French Africa (Late 19th Century–1960)

Writing the Legal History of Madness in French Africa (Late 19th Century–1960)

Sejarah Persempadanan Kelantan-Patani: Kesannya kepada Evolusi Ketamadunan Islam dan Politi Melayu Semenanjung The History of Kelantan-Patani Border Delineation: Its Effects to the Islamic Civilisational Evolution of Malay Peninsula Polities

The Kelantan-Patani border was determined through the Anglo-Siamese Treaty 1909. The treaty changed the previous border of the two states by giving the west bank of Golok River to Thailand (Patani), while giving the district of Jeli to Malaysia (Kelantan). This article intends to study a few objectives. They are inter alia, firstly to study the importance of rivers to Malay polities in general and to see its relations to Golok River. Secondly, this article studies the western part of Kelantan border before the 1909 treaty. Thirdly, this article also explains the border delineation process which was determined by the Anglo-Siamese 1909 Treaty. Fourthly, the article analyses the effects of Kelantan-Patani border delineation to the evolution of Malay Peninsula polities. The method of the research involves black letter law method and legal history method. Documents analysed include the Anglo-Siamese Treaty 1909, books, historical documents related to the negotiations in Kelantan-Patani border delineation process, as well as diplomatic correspondence between the British and Siamese officials. The study finds that the reorganisation process done by Britain and Siam did not only comprise the determination, acquisition and territorial losses by both powers, but also isolated Patani from other Malay Peninsula polities. Moreover, it brought unintended consequences due to the British failure in considering Malay civilisation and cultural factors in the process of determining the border delineation.

국민권익위원회 조직개편과 기능강화 방안 연구

Since the founding of the Republic of Korea, corruption has been a top policy issue for any regime, but no regime has been free from corruption. With the enactment of the Anti-Corruption Act, the Korea Independent Commission against Corruption was launched in 2002 and the Anti-Corruption and Civil Rights Commission(ACRC) was established in 2008, but the investigation of corruption awareness has been stalled and major corruption cases have repeatedly erupted. In the future, anti-corruption and integrity reform tasks will continue to be the top policy tasks. Therefore, the role of ACRC is still significant.
 The purpose of this study is to examine the organizational legal history and characteristics of the Anti-Corruption, Ombudsman and Administrative Appeals of ACRC's functions, and to examine the direction of reorganization by analyzing the correlation between functions. In addition, measures to strengthen the status and function of ACRC as a general agency for anti-corruption were summarized.
 ACRC was launched by the integration of the Korea Independent Commission against Corruption, the Ombudsman of Korea and the Administrative Appeals Commission in 2008 under the new government's 'Small Government' policy stance. However, it has been pointed out that the three functions of the Anti-Corruption, Ombudsman and Administrative Appeals do not function organically through chemical fusion due to the integration of the three institutions of a heterogeneous nature.
 Analysis of the correlation between the three functions shows that the Anti-Corruption and Administrative Appeals are heterogeneous, the Anti-Corruption and Ombudsman can be fused, and Ombudsman and Administrative Appeals are different, but on the contrary, there is a possibility of a positive correlation. Therefore, the direction of government reorganization, in which ACRC, a general agency for preventing corruption, separates Administrative Appeals function and leaves Ombudsman function, can be evaluated as positive. However, if the positive correlation between Ombudsman and Administrative Appeals is considered together, an alternative to separating not only the Administrative Appeals but also Ombudsman function can be considered. However, it is not simple to move on to the question of whether to make Ombudsman a separate organization or combine it with Administrative Appeals. Legislative policy discussions on the procedures and organizational design of Administrative Appeals ans Ombudsman functions need to be preceded.
 Apart from discussions on reorganization, ACRC has been criticized for its deterioration from the president to the prime minister, undermining its status, independence and political neutrality, and lacking practical authority to realize anti-corruption functions. In order to solve these problems and strengthen the overall anti-corruption function, it is proposed to establish an independent anti-corruption organization, to include the Chairperson of ACRC in the list of Confirmation Hearings, to grant investigation rights, and to improve the whistleblower protection system.

The Laws of Rollo as a Primitive Constitution for Normandy: Writing and Rewriting Legal History in France during the Seventeenth and Eighteenth Centuries

Abstract The laws of Rollo are regularly evoked in seventeenth- and eighteenth-century Norman historiography. As a result of a renaissance of interest in, and the study of, medieval Norman sources, notably the gestae of Dudo of Saint-Quentin and Guillaume of Jumièges, early modern jurists and historians located the legal particularism of Normandy in Rollo’s laws. They exploited these sources in order to preserve Norman rights and liberties and to use the history of their medieval origins to justify ongoing legal provincialism. But as the Revolution approached, the memory of Rollo’s laws also became an essential issue in emerging political and ideological debates, because they served as much to defend absolute monarchy as to challenge it.

The Legal Transplants of “Taiwan Area” with the Perspective of “One Country, Two System” Policy

The formulation of laws has its temporal and spatial background, and is constrained by political changes. The laws of “Taiwan area” area and main-land are different while the reason is Controversy and complex. The laws of “Taiwan area” area are related to the change of political regime. The legal systems formulated by different regimes come from the political demands of the ruling authorities. Therefore, the legal system of compulsory domination over “Taiwan area” has become special legal culture in the history of law. In the development of the legal system in “Taiwan area”, there are many elements of succession of the law. With regard to its pros and cons, with the gradual expansion of the internal legal history research, it has also been criticized and reviewed. This article intends to sort out the status of legal succession in “Taiwan area” and this topic. For the academic debate on whether the law will continue to be accepted or not, this article observes from “modernization theory” and “dependency theory” of the national development theories respectively. The author puts forward the view that laws in “Taiwan area” continue to be intertwined with complicated institutional changes and it should adopt a compromise approach.

COMPARATIVE ANALYSIS OF THE ACTIVITY OF COURTS WITH THE PARTICIPATION OF JURORS: ON THE EXAMPLE OF THE USA AND KAZAKHSTAN

he authors, based on a comparative analysis of the criminal procedure laws of the USA and Kazakhstan, studied the issues of the activity of courts with the participation of jurors. The choice of the US experience in considering criminal cases by a jury was not accidental, since the USA is the state to use a jury trial and already has its own legal history that is different from the UK. In the course of the analysis, the authors revealed three aspects such as the selection of jurors, the number of jurors, and the voting procedure during sentencing. The selection of jurors under US law has its advantages in comparison with the legislation of the Republic of Kazakhstan in terms of simplifying the selection and the right to refuse to participate as a juror. On the issue of the number of jurors, taking into account the US experience, we believe it is possible to reduce them from 12 to 9 and in some cases to 7 jurors. On the issue of majority voting or unanimous voting, based on the experience of the United States, we hold the opinion on the importance of voting by unanimous decision. Based on the positive experience of the USA, the authors proposed several amendments not only to the criminal procedure legislation of Kazakhstan but also to the Constitution of the Republic of Kazakhstan. Thus, the authors believe it is necessary to expand the category of criminal cases considered by a court with the participation of jurors, to improve the selection procedure and voting procedure. As well as the possibility of consideration of civil cases by a court with the participation of jurors. We believe all these amendments will have a positive effect in protecting the constitutional rights of citizens and building a rule-of-law state.

Making China’s Apex Court (1928-1948): Legal History as viewed from Newly Opened Diaries

This article aimed to contribute to the global conversation on consequential courts by examining the history of the Judicial Yuan, China’s apex court from the 1920s to the 1940s, in terms of how it was viewed in diary entries by Chiang Kai-shek, the predominant political leader, by Ju Zheng, the President of the Judicial Yuan, and by Xie Guansheng, the Minister of Judicial Administration. This article is the first to engage with the diaries of these political and judicial leaders at the highest level to explore key aspects of the legal history of the Republic of China. This article focused on the structural and functional evolution of the Judicial Yuan that resulted from the informal daily interactions between the judicial leaders and the leading political figure in China between 1928 and 1948. It is contended that these interactions not only affected the development path but also substantively reshaped the structure and power of the Judicial Yuan. Chiang’s personal deference to the President of Judicial Yuan’s legal expertise in constitutional designing helped smooth the integration of a bigger national apex court into the newly formed central government system. The later more dramatic interactions between Ju Zheng and Chiang created one driving force for the China’s national apex= court to survive through the extremely turbulent times during the 1930s and the 1940s.As a result, these two decades of changes in China’s apex court brought about a degree of creative institutionalization that laid a further basis for Chinese legal exceptionalism.

The influence of Roman law on the modern change of the legal paradigm

Roman law occupies a unique place in the legal history of mankind. It represents the highest degree in the development of law in ancient society and in the ancient world as a whole.
 It is distinguished, first of all, by an extremely wide coverage of the most diverse life relationships and situations. Various methods of protecting the interests of private owners, and even various participants in property turnover, were especially carefully developed in Roman law. It was the Romans, relying on all the previous world experience, including the countries of the East, who for the first time made individual private property, as well as other property rights and interests, the subject of skillful and perfect legal regulation. According to the results of Roman law, which was distinguished by the great development of its forms, the richest legal culture was formed, which became the common property of humanity in the following stages of the development of civilization.
 One of the elements of legal culture was Roman jurisprudence, which initiated both an independent science of law and professional legal education.
 The private law of Rome had a great influence on the subsequent history of law, and was adopted by many legal systems in the medieval era and in modern times. The achievements of Roman jurisprudence are also used in law and legal science even in those countries of the world where there is no division of law into public and private.
 The uniqueness of Roman law also lies in the fact that the Romans managed to create universal, rational legal formulas, which later formed the basis of European civilization. For the first time, law-making was separated from its religious-mythological beginning, and law acquired not only an independent meaning, but began to be considered as the basis of civil order, a way to ensure the progress of society.

Проблемы становления Древнерусского государства в трудах Александра Магнуса Фромгольда фон Рейца

The article notes the main points of the biography of one of the key figures of Russian historical and legal science — A. M. F. Reitz, and also analyzes the work he published in 1829, called “An Experience in the History of Russian Law”. The scientist examines the process of formation of state characteristics in the context of the evolution of tribal institutions under the influence of a number of external and internal factors (which are analyzed in this article). In particular, according to the scientist, evolution is determined by demographic processes; the growth of the population united by clan ties within the boundaries of one settlement entails the transformation of the patriarchal power of the tribe leader into the collegial power of clan elders. The scientist also points to acute social contradictions as one of the significant reasons for the emergence of the state.
 A. M. F. Reitz, developing ideas previously expressed by his predecessors Professors I. G. Neumann and I. F. G. Evers, sees not the individual power of the Grand Duke in the Old Russian state, like European monarchs, but collective suzerainty; questions the established point of view in Russian historiography about the establishment of the power of the eldest in the family in the early period of the existence of the Old Russian state.
 The scientist considers inheritance and will as the basis for the legitimate transit of power; power is retained within one clan and its transfer is regulated by rules similar to the rules of inheritance law. The scientist defined the Old Russian state by its form of government as an absolute monarchy and, following I. F. G. Evers, defined the Old Russian state by its territorial structure as a union state created through an agreement of princes, and not by a natural unification of territories. Ideas substantiated in the works of A. M. F. Reitz, found a response in the scientific creativity of the works of virtually all historians of Russian law.

“A shot reputation:” rape in colonial Australia and why it matters today

emotion that is a learned response and its effect on society. The roots of the framing of rape and sexual assault as we see it today in Australia go back to colonial times and the narratives of sexual crime executed in racy language that were freely circulated in Australian colonial press. The reports of Mount Rennie rape case by the frequency and “cross-cultural references invoked in discussing the crime achieved a singular level of cultural production which has far wider references than legal history” (Peers 1998). They gave birth to the debate of the “real rape” vs. “simple rape” as defined by Susan Estrich (1987) and marked Australian public discourse and public attitude toward rape until the present day. Thus, in November 2015 Michaelia Cash, Minister for Employment and Minister for Women claimed “We have a national crisis when it comes to violence against women in Australia” to which testify reports of the Australian Bureau of Statistics on women’s safety, National Student Safety report, all the way to Brittany Higgins’ story and the way it was dealt with in the media and within the legal system. As long as “One in seven young Australians say rape is justified if women change their mind” according to National Community Attitudes Towards Violence Against Women Survey (NCAS) there is still a lot to be done to change the cultural narrative of “real rape” so that rape does not go underreported and unpunished as women fear shot reputation.

Legal Analysis Of Successor Heirs In Positive Law And Islamic Law

This study is intended to find out more in the provisions in the compilation of Islamic law and Civil Law, on the status successor heirs. Because there is a slight difference, if in BW replacement is no limit, then in KHI explained that this replacement only comes to grandchildren course, therefore there is a contradiction between the provisions of the expert successor inheritance in the compilation of Islamic law with Civil Law (BW). The study was conducted qualitatively using the juridical-normative approach. Approach normative done by researching library materials includes research on the principles of law, Systematics law, comparative law and legal history. The Data obtained by the documentation technique is then performed inductive analysis, where after the data collected then the next step is to analyze the data that is a way to search and systematically organize records of results interviews, observations and more. The results of this study can be explained that the law of inheritance according to the compilation of slam law stated that grandchildren have the right to replace the position his parents died before heir, although the share of grandchildren is not always as big his parents. The share of grandchildren should not exceed the share other heirs equal to the one he replaced. As for provisions in the law of inheritance according to civil law that not only grandchildren have the right to take the place of people the old man who died but also a nephew and also siblings can be replaced by his children.

Professor of Kharkiv University A. M. Stoyanov as a historian of law

Introduction. The article highlights the main milestones of the professional development of Kharkiv University professor A. Stoyanov and his scientific activity in the field of history of law. It was found that modern researchers who, in the course of their scientific research, turned to the analysis of his works, for certain reasons, emphasize primarily the work of the scientist in the field of international law, but usually do not pay any attention to the extremely wide range of historical and legal research of the scientist, which in his scientific creativity, he himself took far from the last place in terms of importance and volume. This is what determined the topic of this article. Summary of the main results of the study. It is noted that one of the most interesting historical and legal works by A. Stoyanov's monograph "History of Advocacy among Ancient Peoples", in which the monuments of law and legal thought of Egypt, India, ancient Jews, Greeks and Romans were analyzed. The embryo of the Institute of Advocacy A. Stoyanov saw precisely in the ancient Greek synegory. His historical and legal studies "Historical analogies and points of intersection of new legislation with ancient law", "The beginnings of family law among primitive peoples", "Family law and inheritance among Jews" and published by the publishing house of Kharkiv University in separate brochures aroused considerable interest among scientists and students of that time, "Family, marriage, and the legal position of women according to the legislative monuments of India", "Customary law in the history of the most important states of Europe and especially France", "Customs of society and courts in France from the end of the 17th century. until 1789". A certain result of this stage of his studies of ancient law was the publication of the author's lectures devoted to the history of the legislation of the countries of the East. Some scientific research carried out by Professor Stoyanov at one time caused heated discussions and controversies. Among these, first of all, we can mention the work "Historical analogies and points of intersection of new legislation with ancient law", which was published in 1883 and was an extremely interesting attempt at diachronic comparative research, one of the first that was carried out in the universities of Eastern Europe. He was an ardent supporter of comparative and especially historical methods of studying legal institutions. He used them widely when writing his scientific works. The scientist published a significant part of his works in the journal "Notes of the Kharkiv University". One of the most interesting historical and legal studies, which has not lost its relevance even today, is the work "Criminal Law of Rome from the earliest times to Justinian inclusive", published here in 1895. Conclusion. The conclusion that A. Stoyanov was a bright representative of that generation of lawyers of the Kharkiv school, whose work created the foundation of the modern national science of the history of law. His works, which during the Soviet era were forgotten for ideological reasons and only briefly mentioned by researchers, contain many layers of valuable historical and legal information and deep scientific conclusions. The merits of the scientist in the future have yet to be fully assessed by the next generation of lawyers.

Bitcoin: The nexus between regulation and recognition

AbstractThe article analyses the current issues contributing to the volatility of Bitcoin as the reliability of this new technology diminishes, leading to increased unpredictability of its value. Legal efforts and literature regarding Bitcoin have primarily focused on protecting society from the illegal use of this digital technology, with little emphasis on integrating it as an asset. However, this article proposes that countries adopt Bitcoin-related legislation, incorporating recognition and regulation clauses to transform Bitcoin into a stable, less volatile and functional digital asset. In the context of legal history, primary legal domains, such as contracts, family, trade and others, have been integrated through recognition and regulation processes. Therefore, we argue that adopting Bitcoin-specific legislation that recognizes this new technology while comprehensively regulating the associated risks would enhance the coin's stability and reduce volatility, ultimately increasing trust among digital investors and users.

The Influence of External Actors on Human Rights Incorporation in the 1949 Federal Constitution of Indonesia

This article discusses how the incorporation of human rights provisionsin the 1949 Federal Constitution of Indonesia has been influenced by thepolitical constellation marked by the involvement of the Netherlands andthe United Nations (UN) as external actors. The study in this article isconsidered a socio-legal study in line with its interdisciplinary character,which could be specified as legal history research. The general conclusiondrawn shows that the settlement of disputes regarding the issue ofdecolonization through the Round Table Conference has conditionedthe incorporation of human rights into the 1949 Federal Constitution.It appears that from the clauses outlined in the Linggarjati Agreementand the Statute of the Netherlands-Indonesia Union, the 1949 FederalConstitution mutatis mutandis was conditioned to adopt constitutionalguarantees of human rights. In addition, the involvement of the UNindirectly makes the incorporation of human rights possible, as theUN was established with one of its main objectives to promote respectfor human rights.