Legal History Research Articles

“Up with the Brave”: Gender, Transgression and Judges’ Use of Catholic Convents in England and Ireland, 1930–1959

Abstract Using newspaper coverage of women's and girl's property offences in minor English and Irish courts, I analyze courts’ use of Catholic convent institutions between 1930 and 1959. Coverage of minor local hearings offers access to everyday cases, where boundaries between moral and legal transgression were blurred. I explore three interlocking themes in newspaper reports. First, those courts sent to convents were punished, at least in part, for breaching prevailing gendered moral norms. Second, judges represented convents as sites of moral reform; justifying convent detention by reinforcing gendered notions of damaged female agency. Finally, judges sent women and girls to convents even when they publicly resisted. In these ways, courts reinforced reliance on convents for gendered “moral reclamation.” In the conclusion, I explore the argument's implications for state reckoning with historical abuses in institutions like Ireland's Magdalene laundries, showing how abolition feminist legal histories can pose new questions about relationships between law and the experience of mass incarceration.

Peculiarities of Integration of the Population of Severodonetsk (LNR) into the Russian Federation: Regional and Confessional Aspects

In the context of the integration of the Lugansk and Donetsk People’s Republics into the political, economic and cultural space of the Russian Federation, the relevance of studying the history and issues of legal, social, and religious development of new entities within Russia is increasing. Based on historical analysis and data collected by the author during a trip to Severodonetsk in June of 2014, this article presents materials covering the regional and religious features of the area. A distinctive feature of Severodonetsk is that, since 2014, it has become the administrative center and received the status of capital of the Lugansk region of Ukraine. Later, the Ukrainian military-civil administration started working here, and the “SBU directorate for the Donetsk and Lugansk regions” was established. Since this period and up to the liberation of the city by the Russian Army in 2022, Severodonetsk has actively implemented a policy to suppress all pro-Russian movements.

The Cultural Code of Russia in Legal History Research

The article deals with a problem of Russian cultural code. The dominant value system as well as the corresponding legal ideology determine both the goal of existence and permissible state and citizen behavior limits in the process of goal achieving. The importance of education is asserted: it is not enough to provide the framework for “The Good” and “The Bad”. It is necessary to train the ability to think critically, to reject what is perceived as Evel. It is necessary to show how differences in value systems can be interpreted with deliberate evasion of the truth. The special Character of Russian national cultural code has been confirmed by History. For centuries Russian people used to percept right and law, freedom and responsibility, formal and actual equality in their own way. Legal relationship provides for the reciprocity of rights and obligations as an important guarantee of the state and society security.

Legal Transplants, Legal Survivals, and Legal Revivals: Towards a Reconceptualisation of The Circulation of Legal Forms in Time and Space

When Alan Watson introduced, back in the 1970s, the concept of a legal transplant, also known as a legal transfer, he revolutionised comparative law and comparative legal history by showing that most of legal development takes place through borrowing. However, his notion of a legal transplant conflates two quite different realities: on the one hand, the borrowing of legal forms from other, simultaneously existing legal systems (such as the transplant of the Swiss Civil Code to Atatürk’s Turkey) and, on the other hand, the rediscovery of old legal forms and their “borrowing” from long defunct legal systems (such as the rediscovery of Justinian’s Corpus Iuris Civilis by medieval lawyers in Western Europe, and the infusion of Roman ideas about contract law into existing customary rules). Although there are certain formal similarities between the two phenomena, this article will argue that they should not be conflated, especially given the sharp socio-legal difference between borrowing from a living legal system (with a functioning judiciary and legal academia) and the cultural appropriation of historical legal material for contemporary legal purposes. In this vein, the present paper – drawing on Theo Mayer-Maly’s concept of “return of juridical figures” and Tomasz Giaro’s concept of a legal “resurrection” or “borrowing from the past” – proposes to introduce a new notion of “legal revivals” and carefully delimits them from legal transplants, on the one hand, and legal survivals, on the other. One of the characteristic features of legal revivals is the use of the resources of legal history for the purposes of contemporary legal innovation.

冥界의 심판·응보 일화를 통해 본 宋代의 夫妾 관계

This study categorizes anecdotes related to concubines in Yijianzhi(夷堅志) and analyzes their narrative structures to examine the societal value orientation of the Song Period and the perceptions of people regarding concubines or husband-concubine relationships. Research on concubines in the Song Period has been actively conducted, primarily focusing on their legal status, obligations, and roles within the household from a legal history perspective, as well as reconstructing their daily lives and social positions from a social history perspective. This paper examines the psychology of the common people and the socially formed implicit agreements surrounding concubine and husband-concubine relationships in the Song Period, utilizing anecdotes of judgment and retribution in the underworld within Yijianzhi. Furthermore, it analyzes the limited positions of the husband, wife, and concubine as represented in the typified narrative structures. The anecdotes in Yijianzhi(夷堅志) related to concubines and their husbands can be categorized into several narrative types. These include warnings against literati(士人) who fail to uphold marital fidelity or recklessly take daughters from liangjia(良家) as concubines, judgments against primary wives(本妻) who abuse or kill their concubines or maidservants, and cases of concubines resisting their husbands when left with no other options due to their husbands’ change of heart. These recurring narrative patterns illustrate the conflicts surrounding concubines and the processes of resolution in Song Period, often through judgment of the underworld or karmic retribution in the form of death. Ultimately, what was expected of literati(士人) was the establishment and maintenance of proper marital relationships in accordance with societal norms. By remaining faithful to their wives or refraining from taking concubines from liangjia(良家), they contributed to social stability, aligning with “the rulers(治者)” intention and societal expectations of maintaining a “family order centered on the primary couple.” Primary wives(本妻) were expected to be tolerant and benevolent toward concubines. Rather than condemning jealousy itself, the focus was on punishing the abuse or murder of concubines resulting from jealousy. This reflects the social sentiment of the time, criticizing the reality that punishing primary wives for such actions was often difficult. For concubines, who had no alternative means of resistance against their husband’s betrayal or cruelty, their only options were suicide and becoming vengeful spirits or taking extreme measures such as poisoning their husbands. This highlights the restricted position of concubines in reality. Moreover, the husbands who indiscriminately took concubines often met tragic ends, reinforcing the notion that such actions would lead to retribution. By analyzing the narrative patterns and themes of karmic retribution in Yijianzhi(夷堅志), this study reveals the conflict structures surrounding concubines in the Song Period, the limited positions of the individuals involved, and the social expectations or exclusions imposed upon them. The societal demand for literati to maintain marital fidelity and to refrain from taking concubines from liangjia(良家), the societal demand for control and punishment of the primary wife's abuse of concubines, and the restricted agency of concubines who had no recourse against their husband's betrayal are all vividly illustrated through judgment of the underworld and karmic retribution in these stories.

“THE ABSOLUTE” AS A SUBJECT OF SCIENTIFIC PHILOSOPHY (PART 2)

The general purpose of our two-part study is to contribute to solving the problem of defining the subject of scientific philosophy. In the first part, the concepts of an absolutist nature, originating in the ideas of Aristotle, G. V. F. Hegel and F. Engels. It showed the insufficient validity and unconvincingness of absolutist concepts, in which the subject of scientific philosophy is more or less persistently declared to be the “absolute” (“universal”, “the world as a whole”, etc.) as a super-conceptual authentic being. In this second part of the study, an alternative point of view is proposed, namely, an updated (clarified) non-absolutist or scientific-positivist (rational-critical) way of solving the issue of interest to us. The proposed method goes back to some ideas about philosophy expressed in a rather disordered form by F. Nietzsche, M. Weber, R. Carnap. On its basis, we hope, a fairly effective critique of the concepts of our predecessors (A. L. Nikiforov) is carried out and, most importantly, the understanding is strengthened that the subject of scientific philosophy is the “absolute” (“universal”, etc.), which is considered not as a super-conceptual genuine reality, but only as a problematic concept due to its ambiguity. As an example of scientific philosophizing, that is, the substantive treatment of the “absolute” as a problematic concept (“essence”, “historical law”), K. Popper’s ideological constructions in epistemology and socio-political philosophy are demonstrated.

The Karasjok Case and its Significance for the Legal Survey in Finnmark

Abstract On the final day of spring 2024, the Supreme Court of Norway ruled in the Karasjok case, affirming the Finnmark Estate’s ownership rights. The Grand Chamber’s decision, passed by a narrow 6 to 5 margin, underscored divisions surrounding national property law, international Indigenous law, legal history, and Sámi customary law, which received less attention than usual in Norwegian case law. This article explores the judgment’s impact on the ongoing legal survey in Finnmark. While the ruling emphasizes national property law, it disappoints those seeking clear guidelines for future surveys. The Court’s differing opinions and explicit refusal to address potential ownership rights for individuals, village communities, or Sámi siidas create ample space for both legal disputes and further analysis. The author presents four possible outcome scenarios. Additionally, the significant minority opposing the application of ilo Convention No. 169 adds to the uncertainty regarding international law’s role in the survey process.

Risk and Capacity: Does the Mental Capacity Act Incorporate a Sliding Scale of Capacity?

The law places considerable weight on the question of whether a person has, or lacks, mental capacity. But approaches differ over whether and how capacity assessments should be sensitive to risk. Should a more stringent test be applied where risk is high? The question has generated considerable debate among bioethicists and jurists. In this paper, we review the literature and consider the standard of capacity defined in the Mental Capacity Act 2005 in England/Wales (MCA). While the MCA has been extensively discussed, the question of whether it adopts a ‘sliding scale’ for assessments of capacity has not been squarely addressed. We review the knotty legal history of the statute regarding this issue, and argue that the MCA is best understood as adopting neither a risk-ability nor a risk-evidence sliding scale. We show that the MCA nonetheless accommodates risk-sensitivity in capacity assessment in at least three different ways. The first derives the MCA’s approach to decision-specificity, the second from a risk-investment sliding scale, the third from what Law Commission once described as a ‘general authority’ for carers to act. We argue that the resulting approach steers around two objections that critics have levied against sliding scales for capacity assessment.

“A Slave in Nebraska” and Other Black Habeas Activism on the Gilded Age Plains

Abstract Drawing on court records, newspaper accounts, and a remarkable journal, this article presents a microhistory of Till, a Black teenager in rural Nebraska who became the subject of a well-publicized 1890 habeas corpus petition alleging his enslavement in violation of the Thirteenth Amendment. It contends that this proceeding should be understood as a freedom suit and that Till’s subsequent life should be understood as part of its legal history.

Legal Analysis Of The Effectiveness Of The Icsid Arbitration Institution As A Means Of Resolving Foreign Investment Disputes In Indonesia

Resolving disputes related to foreign investment is not as straightforward as one might think, as it involves investment disputes that engage two or more legal systems. Therefore, the resolution is not solely determined by the law applicable within the territory of Indonesia, but also takes into account the laws of other countries participating in the convention. When a settlement between the parties cannot be reached, the dispute can be resolved through an arbitration body designated by the parties to facilitate the resolution or through conventional judicial bodies in accordance with their authority as regulated by legislation. Alternative dispute resolution through arbitration will be more efficient and effective as it is achieved through deliberation and consensus or a win-win solution. This research is descriptive in nature, aiming to provide an overview or description of the law on divestment in foreign companies in Indonesia. As a descriptive study, a normative approach is used, focusing on the examination of legal principles, legal systems, vertical and horizontal synchronization of legislation, and legal history. The Bilateral Investment Treaty (BIT) serves as a legal basis that needs to be revised. The initial role of this agreement was to attract investors to enter Indonesia, with the hope of reaching a balanced agreement between the two countries. However, in practice, the BIT has become the foundation relied upon by foreign investors in Indonesia. The recommendation made in this study is that the Government of the Republic of Indonesia, in establishing Bilateral Investment Treaties, must include clear provisions so that the description of the agreement does not overlap with the positive law already established in Indonesia.

Demarcation problems in law and neurotechnology: persons, cyborgs and neurohackers

ABSTRACT Technology creates demarcation problems for law, with legal agents existing in a constant state of in-betweenness. Digital and biotechnologies challenge legal definitions by changing our understanding of what constitutes a 'person' and what constitutes a 'thing'. This similarly affects the boundaries between inner–outer, personhood–property, and subject–object distinctions. The result is a plethora of legal problems, as modern European private law theories are built upon these dualisms. For instance, the integration of technology with human minds disturbs the liberal foundations of personhood. Human–machine interactions challenge our concept of self, as technology becomes integral to both personal identity and how individuals experience the world. Traditional understandings of personality, property, privacy, and freedom prove inadequate when confronted with liminal categories such as human–machine symbioses and the figure of the ‘hacker’. However, this challenge is not unprecedented; European legal history offers numerous examples demonstrating that these boundaries were never truly stable. A key illustration is found in Roman law, where jurists developed a hybrid conception of subjectivity to address the practical legal problems of their era. This paper therefore examines neurotechnology, with particular attention to the figure of the hacker, to analyse the ontology of modern boundaries in private law.

Early Greek legal history and the Mycenaean sources

Legal historians of ancient Greece often begin with the Homeric poems as the earliest sources for a study of the emergence of normative order in Greece. By contrast, the large corpora of administrative records produced by the Mycenaean palaces from ca. 1450-1200 BC have aroused little interest in the legal historiography. Despite this, discussions of themes such as property, relations of obligation, and dispute resolution are prominent in the specialist Mycenaean literature, but often with uncritical and selective reliance on legal conceptions. This paper outlines several key problems for a legal historical approach to the Mycenaean evidence, through a critical consideration of the reasons why these sources have long been excluded by legal historians. It is argued that a legal historical approach must avoid applying formalist conceptions of law and legal categories to the Mycenaean evidence, and must engage with trends in specialist studies which have recognised a more limited role of the Mycenaean palaces in the broader economy. Following the example of recent critical histories of the production of normativity in other premodern contexts, this article outlines some key considerations for a legal history of the Mycenaean world and emphasises the broader social and economic context of the administrative practices which produced the documentary records. It is argued that the evidence should not merely be read from the perspective of the palace as the only centre of order, but that the records reveal limitations to the scope of palatial normativity, especially in the sphere of property relations where the local communities held considerable power. This article calls for future studies of the Mycenaean records to adopt a more pluralistic conception of the production of normativity, and to engage with trends in critical legal historiography.

Order, Language, and Property: Textual Formulae and Legal Relations in the Mycenaean Greek Land Records

Since the earliest Ancient Greek written records from the Mycenaean palaces (ca. 1450–1200 BC) contain no laws, contracts, or judicial decisions, some scholars have considered them unsuitable evidence for legal historical study. Yet this large body of administrative documents reveals much about the operation of the land regime and the interaction of property relations with the central power of the palaces. This article offers a treatment of the relationship between structures in language and normativity in the administrative records relating to land from Late-Bronze-Age Pylos, in particular focussing on a family of textual formulae constructed with the preposition pa-ro, which represents a derivative proprietary relation. By focussing on how the records represent the land regime through the use of this formula, and what inconsistencies in its use may tell us, this article explores how we can analyse textual strategies towards an understanding of the system of order in documentary sources. While the tablets are not formally ‘legal’ or normative sources, a study of strategic patterns in the structure of the texts, as well as their inconsistencies and limitations, together shows that normative and legal relations are indeed represented in the records, but appear to be more complex than what is written down. The technical language used by the Mycenaean administrators does not construct a perfectly applied system of abstractions, which has consequences for our understanding of power in the period, perhaps indicating that the complicated sphere of land relations operated partly beyond the palatial system of order. Through this case study this article proposes a method for a more critical approach to normativity in documentary records more generally. The approach outlined here for critically analysing formulae which carry legal meanings may be applied in other contexts using the evidence of ‘practice’, which has often been sidelined by legal historians in favour of normative or formal legal texts.

Haunting reform: older women, English Good Shepherd institutions and the Children Act 1948

ABSTRACT Relatively little has been written about the twentieth century legal history of English Catholic Magdalene institutions. This article focuses on the relationship between Good Shepherd institutions and child protection law after 1948. Before the Children Act 1948, the Good Shepherds’ work with teenagers was largely immune from state regulation or control. With the Act in force, the Home Office sought to modify the Good Shepherds’ disciplinary regime; in particular, by mandating that teenagers and adult women should live separately from one another. This article uses Home Office files in the National Archives to examine these reforms, with a particular focus on what surviving records can tell us about the lives of older women confined to Good Shepherd institutions for many years. Older women only appear at the margins of these records. Drawing on Avery Gordon’s theory of haunting, the article shows that these women have, nevertheless, left a mark on the archives of law reform. They can tell us something about state awareness of the harms of long-term confinement in Good Shepherd institutions, and about the sacrifices that often accompany processes of legal and institutional reform.

Access to justice policy: legal aid in post-war UK general election manifestos

ABSTRACT This paper explores access to justice policy in England and Wales. This is achieved through a legal history approach analysing the treatment of, an important element of such policy, legal aid in UK general election manifestos. The paper covers the period from 1945, with the creation of the welfare state and the introduction of a formal legal aid system. It focuses on the two main parties that have led all the governments of that period, the Conservative and Unionist Party (Conservatives) and the Labour Party (Labour). The paper charts the rise and fall of legal aid in the general election manifesto, documenting an access to justice policy that falls into two distinct eras of social democracy and neoliberalism.

Shaping Minds and Societies: The Legal History of Education in China

This paper seeks to present a legal study of the educational systems in China as well as to establish legal developments of laws and policies and its reforms within China’s educational systems. Starting with the imperial education laws based on the Confucianism which largely stressed the imperial order and helped to select bureaucratic officials, the discussion proceed with the education laws of the republican era, with founding of the People’s Republic of China (PRC) in 1949, and with the modern legal changes for education aimed at extending, equalizing and enhancing education. In the case of education, laws were passed and implemented mainly as social engineering policies to fight illiteracy; to incite an increased enrolment of children into primary schools, and to address inequity. Another major step was made in 1986 when the National People’s Congress adopted the Education Law regulating compulsory education as the right of every citizen, establishing nine year compulsory education, and placing education at the priority level of the state. In 1990s and 2000s, educational reform aimed at the improving parity between urban and rural schooling, development of technical and vocation education and training (TVET) higher education and private sector education (PSE). At the same time, curriculum content was made standardized to improve its quality, including rules for enhancing the quality of the teaching staff and for determining the rights and obligations of educational institutions. The government’s more recent of the Double Reduction Policy of 2021 is an attempt at relieving academic pressure and tackling the socioeconomic issues surrounding private tuition.However, the following factors are attained hence a mode of concern; There has been a continued trend in inequalities between the urban and the rural areas, education has not been universal and is still indifferent between the quality it provides to the students now and then, laws remain to be enacted due to China’s orientation of becoming more international and technologically intelligent. Thus, in the course of this paper, these current issues are discussed and the prospects for future development of education law in China are analyzed, focusing on the fact that, while maintaining the proper balance of state regulation, the state’s goals should correspond to the various orientations for the development of education for the population.

A paralegal institution: tribunals and the place of law in the framework of internment during the Second World War

ABSTRACT This article examines the emergence of tribunals as a system for legalising the internment of ‘enemy aliens’ in Britain and the United States during the Second World War. Reconstructing how these emergent quasi-judicial structures classified and reclassified civilians, it uncovers the moral uncertainties, legal frameworks, and bureaucratic dynamics that shaped the internment practices of democratic states. The history of these tribunals also sheds light on the long-term attitudes towards immigration and foreign influence in Anglophone societies. Debates on belonging, citizenship, and civil liberties within democratic societies often spanned a longer time period, reaching from the anti-immigration legislation of the 1900s to the globalisation of internment in the First World War, before culminating in the emergency measures of the Second World War. The article uses a multidirectional approach at the intersection of legal studies, biography, social and institutional history. By synthesising historical records, juristic analyses, and personal narratives, it elucidates how the tribunal systems navigated the complexities of intelligence assessments and public opinion dynamics. Furthermore, the comparison between British and American tribunal systems unveils both convergences and divergences in legal approaches and administrative practices. Considered within broader historical contexts, the tribunal system sheds light on the way legal frameworks both shaped and were shaped by wartime exigencies.

Comparison of Criminal Law in the Settlement of Criminal Cases Outside the Court Based on English, Netherlands, and Indonesian Laws

Comparative criminal law is an attempt to compare various legal systems, whether between nations, states or religions. The aim is to find differences and similarities between the systems, by providing research-based explanations of how the law functions and how juridical problems are solved in practice. In addition, non-legal factors that may have an influence will also be examined. A deeper understanding of this can only be gained through the study of legal history, so the science of comparative law requires the analysis of legal history. The benefits of comparative law include a better understanding of legal codification at national, regional and international levels. In addition, it helps in the harmonization of laws between international conventions and national laws. Comparative law is also important for determining general principles of law, especially for judges in international courts. These principles are essential for establishi ng general principles of law which are an important source of international law. The object of legal comparison in this research is the legal system or policy in countries that have more than one legal system, in this case, Indonesia, England and the Netherlands, which is carried out by comparing laws relating to the settlement of criminal cases outside the court

Marrying the Unbeliever: Gender, Law, and Disparitas Cultus in Early Modern Japan*

The marriage between a Christian and a non‐Christian has been a highly discussed topic in the history of the Catholic Church and canon law. This study aims to analyse the construction of knowledge concerning disparitas cultus by using a broad array of sources including moral theology, canon law, and missionaries' cases that circulated in different regions of the Iberian Empires. It examines theoretical discussions by theologians in Japan and other parts of the Iberian Empires, as well as case studies described by missionaries in Japan involving Japanese Christians married to non‐Christians. The focus lies on revealing the arguments used both for and against marriage with disparity of cults, and on demonstrating the existence of diverse arrangements of marital cohabitation beyond the theoretical debates held on by scholars in Europe and Asia. From the perspective of women's legal history, it explores the relativisation of paternal consent, religious beliefs and social practices of cohabitation, gender roles within such relationships, household compositions and human relations, all contributing to the numerous situations in which couples live in disparitas cultus. Lastly, this article showcases how missionaries' sources can offer fresh interpretations to women's history in sixteenth and seventeenth‐century Japan.

A common law power to dissect: a medico-legal history.

Some jurists claimed there was a common law power to dissect the human body prior to and outside of the Anatomy Act 1832. That power formed part of the privileges of physicians, surgeons, and apothecaries, and, accordingly, the common law to the extent it recognized those privileges. It is best evidenced in the late-nineteenth and early-twentieth centuries-most authoritatively by the Court of Queen's Bench in R v Price in 1884, the Québec Superior Court in Phillips v Montreal General Hospital in 1908, and the reasons of the inquiry into the conduct Dr William Ramsay Smith in 1903, but also in the comments of writers in law manuals until the mid-twentieth century. The existence of a common law power to dissect challenges narratives ordinarily told about the history of anatomy law specifically and the law of the dead generally. The power may also still exist if legislation in a jurisdiction has not displaced or substantially altered it. Through medico-legal history, the author argues that the medical lawyer can benefit from re-examining old doctrines. Heterodox elements in old doctrines suggest alternative possibilities for the law, allowing medical law's histories to be retold.