Thursday, November 13th
3:00-6:00 pm Registration
6:00-7:30 pm ASLH
Reception
7:30-10:00 pm Board of
Directors Meeting
Friday, November 14th
7:30-8:45 am Continental
Breakfast, Future Projects Committee Meeting
8:00 am-3:00 pm Registration
8:00 am-5:00 pm Book Exhibits
Session #1
8:30 am - 10:15 am
Political Histories of Legal Culture
Chair: Sandy Levinson, University of Texas
School of Law
Papers:
“Beyond Dispute: The Politics of Gender
and Class in EEOC v. Sears, 1968-86”1
Emily B. Zuckerman, Rutgers University, Department of History
“Partisanship by Any Other Name: The Taboo
Against Discussing Ideology in the Supreme Court Appointment Process”
David Greenberg, Yale University,
Departments of History and Political Science
Commentators: Mark Graber, University of
Maryland, Department of Political Science & Sandy Levinson
The Local Administration of Justice
Chair: Lawrence Friedman, Stanford Law
School
Papers:
“Justices behind the Curtain: Early Legal
Practitioners in Late Imperial China”2
Li Chen, Columbia University, Department of History
“The Native Courts as Mediator of Social
Change in Ibadan, Nigeria, 1893–1957”3
Omoniyi Adewoye, University of Ibadan, Nigeria, Department of History
“Divergent Destinies: Toward a History of
Constitutionalism and Democracy in India”4
Mithi Mukherjee, University of Colorado at Boulder, Department of
History
Commentator: Lawrence Friedman
Constitutional Theory and Practice in the
Anglo-American Eighteenth Century
Chair: John Murrin, Princeton University, Department
of History
Papers:
“Constitutional Lawyering before the Constitution”Mary Sarah Bilder, Boston College Law School
“Imperial Remix: From the Ancient Constitution to
Constitutional Law”
Daniel J. Hulsebosch, St. Louis University School of Law
“Separating Power: English Liberty as Constitutional
Model”David Lieberman, University of California, Berkeley School
of Law
Commentator: Barbara Aronstein Black, Columbia
University
Comparative Property Rights: North America and Australia
Chair: Carol Rose, Yale Law School
Papers:5
“Terra Nullius in North America,
Australia, and New Zealand”6
Stuart Banner, University of California, Los Angeles, School of Law
“From Individualism to Egalitarianism? The
History of Property Rights in the United States and Australia
Compared”7
Andrew Richard Buck, Macquarie University, Law School
“Comparative Legal History in the
Classroom: Opportunities and Challenges”8
Paul Kens, Southwest Texas State University, Political Science and
History
Commentator: Carol Rose
Family
Law in Nineteenth-Century England and the United States
Chair: Ariela Dubler, Columbia University
School of Law
Papers:
“‘They Might be Lawless’: Family, Law, and
Interracial Sex in Massachusetts”9
James Allegro, Case Western Reserve University, Department of History
“Untying The Knot: An Analysis of the
English Divorce and Matrimonial Causes Court Records, 1858-1866”10
Danaya C. Wright, University of Florida, Levin College of Law
“Elizabeth Cady Stanton: The Mother of
Modern Family Law”11
Tracy A. Thomas, University of Akron School of Law
Commentator: Ariela Dubler
Session #2
10:30 a.m. – 12:15 p.m.
American Legal Culture and Racial
Violence During the Progressive Era
Chair: Jane Dailey, Johns Hopkins
University, Department of History
Papers:12
“Racial Violence and the ‘Laws of War’ in
the Philippine-American War, 1899-1902”13
Paul A. Kramer, Johns Hopkins University, Department of History
“The Chicago Race Riots and Urban Legal
Culture, 1911-1922”14
Andrew Wender Cohen, Syracuse University, Maxwell School of
Citizenship and Public Affairs
“‘Lawlessness’ and Racial Violence on the
Texas Border, 1912-1921”15
Christopher Capozzola, Massachusetts Institute of Technology,
Department of History
Commentator: Jane Dailey
Athenian Judging/Judging Athenians
Chair: Kevin Crotty, Washington and Lee
University, Classics
Papers:16
“Emotion and Reason in the Judgments of
Athenian Jurors and Tragic Choruses”17
Victor Bers, Yale University, Department of Classics
“Assessing Guilt and Punishment in the
Athenian Jury System”18
Adriaan Lanni, Harvard University, Department of Classics
“Judging the Unspeakable: Wayward Desire
in Athenian Tragedy and Legal Oratory”19
Sheila Murnaghan, University of Pennsylvania, Department of Classics
Commentator: Kevin Crotty
Author Meets Reader: John Langbein, The Origins of Adversary Criminal
Trial
Chair: Thomas A. Green, University of
Michigan, Law/History
Readers:
Albert Alschuler, University of Chicago Law
School
David Lemmings, University of Newcastle, Department of History
Allyson May, Toronto, Canada
Response: John Langbein, Yale Law School
Aboriginal Governance in Canada: The
Struggle for Recognition
Chair: Sidney L. Harring, The City
University of New York, Law School
Papers:20
“Totemic Identity and Aboriginal
Governance”21
Darlene Johnston, University of Toronto,
Faculty of Law
“Infringement of the Aboriginal Peoples’
Inherent Right of Self-Government By The Parliament of Canada,
1867-1982”22
Kent McNeil, York University, Osgoode Hall Law School
“The Struggle for First Nations’
Self-Government and the Role of Parliamentary and Public Inquiries”23
Michael Posluns, The Stillwaters Group
Commentator: Sidney L. Harring
12:30-1:45 pm
H-Law Committee lunch; Law & History Review Committee lunch;
2003 Program Committee lunch
Session #3
2:00 p.m. – 3:45 p.m.
Localism in 20th Century
American Society
Chair: Hendrik Hartog, Princeton
University, Department of History
Papers:24
“Urban Policy and the Contradictions of
Federalism in Modern America”25
Wendell E. Pritchett, University of Pennsylvania Law School
“The Anti-Chain Store Movement and the
Ideology of Localism”26
Richard C. Schragger, University of Virginia School of Law
Commentators: David Barron, Harvard Law
School and Hendrik Hartog
New Tricks for Finding Old Law
Chair: Thomas P. Gallanis, Washington &
Lee University, School of Law and Department of History
Papers:
“Canon Law and other Continental European
Medieval Legal Sources on the Internet”
Ernest Metzger, Aberdeen University, School of Law
“Bracton, The Year Books, and The English
Reports”
David Seipp, Boston University School of Law
“The Avalon Project, Blackstone, and
American Constitutional Sources”
William Fray, Yale Law School
Commentator: Thomas P. Gallanis
Law Against Mob Law: Federal and State Perspectives in the Legal Fight
Against Lynching
Chair: Emma Coleman Jordan, Georgetown
University Law Center
Papers:27
“Legal Resistance to Lynching in Central
Texas, 1896-1905”28
William D. Carrigan, Rowan University, Department of History
“In Search of State Action: Federal
Efforts to Curb Lynching, 1898-1945”29
Christopher Waldrep, San Francisco State University, Department of
History
Commentators: Crystal Feimster, Boston
College, Department of History Michal Belknap, California Western
School of Law, and University of California, San Diego, Department of
History
Regionalism, Commerce, and Imperial Governance in Early America,
1600-1800
Chair: Steven Wilf, University of
Connecticut School of Law
Papers:30
“Regionalism in Early American Law”31
David Thomas Konig, Washington University in St. Louis, Department of
History and Law School
“Law and Commerce, 1660-1815”32
Claire Priest, Northwestern University School of Law
“Imperial Governance and Communications in
Early America”33
Richard J. Ross, University of Wisconsin, Madison, Law School and
Department of History
Commentators: Christine Desan, Harvard
Law School and Gregg Roeber, Pennsylvania State University, Department
of History
Session #4
4:45 p.m. – 6:00 p.m.
Plenary Session: Reconstruction of
Legal Order in Occupied Lands
The American South after the Civil War
Edward L. Ayers, University of Virginia, Department of History
Japan after World War II
John W. Dower, Massachusetts Institute of Technology, Department of
History
Germany after World War II
Charles S. Maier, Harvard University, Department of History
Saturday, November 15th
7:30-8:45 am
Continental Breakfast; Publications Committee breakfast; Hurst Committee
breakfast
8:00 am - noon
Registration
8:00 am - 4:30 pm Book
Display
Session #5
8:30 a.m. – 10:15 a.m.
Law, Violence, and Gender
Chair: Laurel Fletcher, University of
California, Berkeley, Boalt School of Law
Papers:
“Sociobiology or Cultural Defense?:
Reconsidering the Heat of Passion Excuse”
John Pettegrew, Lehigh University, Department of History and American Studies
“Domination and Resistance”
Adrienne Davis, University of North Carolina Law School
“The Subject of Freedom: Husbands and Wives”
Katherine Franke, Columbia Law School
Commentator: Laurel Fletcher
Problems of Proof: Evidence Law in England and America 1650-1900
Chair: Barbara Shapiro, University of
California, Berkeley, Rhetoric Department
Papers:
“The ‘Campden Wonder’ and the Problem of the
Missing Body”34
Bruce P. Smith, University of Illinois, College of Law
“Engine Troubles: Cross-examination and the
late-Victorian ‘License of Counsel’ Debates”35
Wendie Schneider, University of Iowa College of Law
“Identifying Knowledge: The Tichborne
Claimant and Conceptions of Evidence”36
Jennifer L. Mnookin, University of Virginia School of Law
Commentator: Barbara Shapiro
Nineteenth-Century Historical Jurisprudence in Comparative Perspective
Chair: James Q. Whitman, Yale University
Papers:
“The German Historical School: Variations On
A Theme by Savigny”
Mathias W. Reimann, University of Michigan, School of Law **
“The American School of Historical
Jurisprudence”
David M. Rabban, University of Texas, School of Law
“F.W. Maitland, Historical Jurisprudence and
the Rise of Sociology”
David Runciman, University of Cambridge
Commentator: James Q. Whitman
Postcolonial Legal Histories: Law, Culture, and Commensurability
Chair: Teemu Ruskola, American University,
Washington College of Law
Papers:37
“Legal Subjects, Market Agents: Culture and
the Legal Economy of ‘General Public Utility’ in Colonial India”38
Ritu Birla, University of Toronto, Department of History
“Law’s Empire: How the Code of the District
of Columbia Became the Law in the ‘District of China’”39
Teemu Ruskola, American University, Washington College of Law
“Dependent Citizens and Marital Expatriates”40
Leti Volpp, American University, Washington College of Law
Commentator: Thomas Keenan, Bard College,
Department of English
Liberty and Property: Legal Interpretations of Property Rights in
Revolutionary and Early National America
Chair: Gregory Alexander, Cornell Law
School
Papers:41
“The ‘Contest between Liberty and Property’:
Freedom Suits in the Revolutionary Era”42
Emily V. Blanck, Emory University, Department of History
“Taking ‘Notice of an Error in the Nature of
our Landholdings’: Historical Interpretations of Land Ownership in the
Virginia Commonwealth in the Virginia Commonwealth”43
Christopher M. Curtis, Iowa State University, Department of History
“Taking Liberties with Native American
Property: Creating a Moral Landscape through the Language of Land
Possession”44
Ellen Holmes Pearson, University of North
Carolina, Asheville, Department of History
Commentator: Gregory Alexander
Session #6
10:30 a.m. – 12:15 p.m.
Before and After Brown v. Board of Education
Chair: Mary Dudziak, University of Southern
California, Law School
Papers:
“The Role of History in Brown v. Board of
Education”45
Christopher W. Schmidt, Harvard University, History of American
Civilization
“Erasing The Badge of Inferiority:
Segregated Interstate Transport on the Ground and in The Courts,
1941-1960”46
Derek Catsam, Minnesota State University, Department of History
“Brown v. Board and Higher Education:
Federal Courts and Segregated Universities, 1948-1964”47
Peter Wallenstein, Virginia Polytechnic Institute & State University,
Department of History
Commentator: Michael Klarman, University of
Virginia Law School
Law and Reality in the Graeco-Roman World
Chair: Cynthia Patterson, Emory University,
Department of History
Papers:48
“Back to Citizenship – Reflections on the
legal status of Roman Prisoners of War”49
Rachel Feig Vishnia, Tel-Aviv University, Department of History
“Partly Slave, Partly Free: The Legal
Status of Manumitted Slaves Under Paramone”50
Rachel Zelnick-Abramovitz, Tel-Aviv University, Department of Classics
Commentator: Clifford Ando, University of
Southern California, Department of Classics
Liberty and Litigation in Comparative Perspective: England and
Mexico, 1550-1750
Chair: Brian Levack, University of Texas,
Department of History
Papers:52
“Marital Litigation in The Court of
Requests, 1542-1642”53
Tim Stretton, St. Mary’s University, Halifax, Department of History
“Whose Liberty? Habeas Corpus, 1550-1750”54
Paul Halliday, University of Virginia, Department of History
“‘That Which Your Majesty So Firmly Commands
Be Protected’: Liberty among Indians in 17th Century Mexico”55
Brian Owensby, University of Virginia, Department of History
Commentator: Brian Levack
Israeli Legal History: National Security and Arab Displacement in the
post-1948 Period
Chair: Nir Kedar, Bar-Ilan Faculty of Law
Papers:
“Violence and the Word Revisited: The Case
of the ‘Infiltrators’ before the Israeli Supreme Court, 1948-1954”56
Oren Bracha, Harvard Law School
“The Supreme Court and the Arab-Jewish
Conflict: Implications for the Jurisprudence of Land Expropriation”57
Yifat Holzman-Gazit, Bar Ilan University, School of Law
“From Arab Land to ‘Israel Lands’: The Legal
Dispossession of the Palestinians Displaced by Israel in the Wake of
1948”58
Alexandre Kedar, Haifa University, Law School
Commentators: Lama
Abu-Odeh, Georgetown University Law Center
and Raif Zreik,
Harvard Law School
The Rise of the Anglo-American Corporation: Alternative Paths and
Functions
Chair: Colleen Dunlavy, University of Wisconsin-Madison,
Department of History
Papers:
“Moral Shirking and the Rise of the Classic
Capitalist Firm in Britain, 1844-1914”59
Paul Johnson, London School of Economics, Department of Economic History
“From Partnership and Trust to Corporation:
Insolvency and Agency in the Late 18th and Early 19th Century”87
Joshua Getzler and Mike MacNair, Oxford Faculty of Law
“Institutional Foundations for Securities
Markets in the West”88
Mark Roe, Harvard Law School
Commentators: Paul Mahoney, University of
Virginia Law School and Colleen Dunlavy
Annual Luncheon
12:15 – 2:00 p.m.
Session #7
2:15 p.m. – 4:00 p.m.
Biography As Legal History: Ruth Bader Ginsburg and Jacobus TenBroek As
Historical Subjects
Chair: Joan Williams, Washington College of
Law, American University
Papers:60
“From Frontiero to Flatbush with
Justice Ruth Bader Ginsburg”
Jane S. DeHart, University of California, Santa Barbara, Department of
History
“From Disability to Welfare Rights: Jacobus
TenBroek on Discrimination”61
Felicia Kornbluh, Duke University, Department of History
Commentators: Pnina Lahav, Boston
University Law School and Mark Tushnet, Georgetown School of Law
Forfeitures and Penalties in the English Medieval Common Law
Chair: Janet Loengard, Moravian College,
Department of History
Papers:
“Statutory Forfeiture of Land for the
Non-Performance of Services: The Origins and Early History of the Action
of ‘cessavit per biennium’”
Paul Brand, All Souls College, Oxford
“Origins and Early History of the Penal
Bond”
Joseph Biancalana, University of Cincinnati College of Law
Commentator: Charles Donahue, Jr., Harvard
Law School
Law and Public Opinion in the Americas
Chair: Elizabeth Dale, University of
Florida, Department of History and Levin College of Law
Papers:62
“Public opinion is practically the paramount
law of the land: The Cilley-Graves Duel and the Antinomies of Antebellum
Anti-Dueling”63
Mark G. Schmeller, Syracuse University, Maxwell School of Citizenship
and Public Affairs
"Dueling Ritual as Customary Law in 19th and
20th Century Uruguay"
David Parker, Queen's University, Department of History
“White Husband, White Wives, ‘Mulatto’
Babies: Race, Divorce Law, and Public Opinion in 1830s North Carolina”65
Charles Rayburn and John Wertheimer, Davidson College, Department of
History
“Articulating Rights: Arguments Around
Criminal Libel in the Mid-Nineteenth Century”66
Lyndsay Campbell, University of California, Berkeley, Jurisprudence and
Social Policy
Commentator: Elizabeth Dale
New Histories of International Law
Chair: Benedict Kingsbury, New York
University School of Law
Papers:
“The Law of Nations in an Age of Global War,
1754-1763”
David Armitage, Columbia University, Department of History
“The Edges of Empire and the Limits of
Sovereignty: Guano Islands, 1856-1890”67
Christina D. Burnett, Princeton University, Department of History
“Untangling Colonialisms’ Claims on Natural
Resources”
Patricia Seed, Rice University, Department of History
Commentator: Benedict Kingsbury
Law and the Management of Risk in Modern America
Chair: James Wooten, SUNY-Buffalo Law
School
Papers:
“When All Else Fails: Government as a Risk
Manager in American History”
David Moss, Harvard University, Graduate School of Business
“The Accidental Republic: Contingencies and
Risks in the Remaking of American Law”
John Witt, Columbia Law School
“Insurance at the Crossroads: Cultural
Transformation, Late-Nineteenth Century Insurance Law, and the
Appropriation of Risk”
Roy Kreitner, Tel Aviv University Faculty of Law
Commentator: James Wooten
Session #8
4:15 – 6:00 p.m.
Law and Political Development in the
Progressive Era
Chair: Elizabeth Sanders, Cornell
University, Department of Government
Papers:68
“The Social Control of Business in the
Progressive Era”69
William J. Novak, University of Chicago, Department of History
“Speaking Law to Power”70
Michael Willrich, Brandeis University, Department of History
“Democracy and the Constitution in
Progressive America”71
William E. Forbath, University of Texas, Law School and Department of
History
Commentator: Elizabeth Sanders
Roundtable: Women Acting in Law
Moderator: Barbara Welke, University of
Minnesota, Department of History
Papers:
“Between Class and Gender: Last Wills and
the Notarial Practice in Seventeenth-Century Provincial Tuscany”
Giovanna Benadusi, University of South Florida, Department of History
“‘Feeling Like a State’: Elite Slaveholders
and Everyday Power in the Antebellum South”
Stephanie Camp, University of Washington, Department of History
“Courting Families: Litigation and the
Political Economies of Daily Life in Early Modern France”
Julie Hardwick, University of Texas, Austin, Department of History
“Power to Accuse? Rape, Women’s Voices, and
the Power of Whiteness in the Legal Record”
Lisa Lindquist Dorr, University of Alabama, Department of History
Roundtable: Historians in The Courtroom
Moderator: Donna C. Schuele, The California
Supreme Court Historical Society
“Historians as Expert Witnesses: An
Overview and Assessment”
John A. Neuenschwander, Carthage College, Department of History
“Telling Lies to the Supreme Court:
Reopening the Wartime Internment Cases”
Peter Irons, University of California, San Diego, Department of
Political Science
“The Practice of Forensic History: An
Example from the Land Grant Wars”
Peter Reich, Whittier Law School
“Postmodernist Jurisprudence, Postmodernist
History: Hard Lessons from an Expert Witness on Voting Rights”
J. Morgan Kousser, California Institute of Technology, Division of
Humanities and Social Sciences
Sunday, November 16th
8:00 -9:00 am
Continental Breakfast
Session #9
9:00 a.m. – 10:45 a.m.
Looking Back at the Legal Profession:
Lessons from the Past
Chair: Robert W. Gordon, Yale Law School
Papers:
“The Myth of Civic Republicanism:
Interrogating the Ideology of Antebellum Legal Ethics”72
Norman W. Spaulding, University of California, Berkeley, Boalt Hall
School of Law
“Rediscovering Julius Cohen and Rethinking
the Origins of the Business/ Profession Debate”73
Samuel J. Levine, Pepperdine University School of Law
“Gentleman’s Agreement: The Antisemitic
Origins of Restrictions on Stockholder Litigation”
Lawrence E. Mitchell, The George Washington University
Commentator: Robert W. Gordon
Smoke Screens, Sounds Uncouth and Black Rams: Women in the Spaces of the
Law
Chair: Susan Sage Heinzelman, University of
Texas, Austin, Department of English
Papers:
“Prostitution As A Smoke-Screen in a 4th
C. B.C. Lawsuit”74
Lesley Dean-Jones, University of Texas, Austin, Department of Classics
“Patriarchy as Usual: Women, Children, and
The Family Tribunal in Late Roman Law”75
Judith Evans Grubbs, Sweet Briar College, Classical Studies Department
“The ‘Sounds Uncouth’ of Westminster Hall:
Law, Women, and Commerce”76
Kathryn Temple, Georgetown University, Department of English
“Disturbing the Peace: Queen Caroline and
The Black Ram”77
Susan Sage Heinzelman
Commentator: The Audience
Economic Analysis of Legal History
Chair: Geoffrey Miller, New York University
Law School
Papers:
“Covenants and Conventions”78
Richard Brooks, Northwestern University Law School
“Adverse Selection in Market Sales of Roman
Slaves”79
Bruce Frier, University of Michigan, Classical Studies Department and
Law School
“The Value of Judicial Independence:
Evidence from Eighteenth-Century English Stock Prices”80
Dan Klerman, University of Southern California Law School
Commentator: John Wallis, University of
Maryland, Economics Department
Property and The Nineteenth-Century Constitution
Chair: Charles McCurdy, University of
Virginia, Department of History and Law School
Papers:
“The Limits of Sovereignty: Legislative
Property Confiscation in the Union and the Confederacy”81
Daniel W. Hamilton, New York University Law School
“The Role of Cherokee Women in Shaping
Marshall’s Trust Doctrine in the Cherokee Cases”82
Cynthia Cumfer, Reed College, History and Humanities
“Stability and Change in Antebellum Property
Law: State Courts and Judicial Takings”83
Polly Price, Emory University Law School
Commentator: Charles McCurdy
African Americans before the Bar in Nineteenth Century America: Court
Battles over Racial Segregation, Inheritance and Citizenship Rights,
1831-1888.
Chair: Sandra VanBurkleo, Wayne State
University, Department of History
Papers:
“Resisting the ‘Unjust Written Manacles for
the Free’: Challenging Racial Barriers in Nineteenth Century Ohio”84
Barbara Terzian, Ohio Wesleyan University, Department of History
“‘If They Should Choose Freedom’:
Testamentary Capacity and Vision of Freedom in Nineteenth Century
Kentucky”85
Yvonne Pitts, University of Iowa, Department of History
“She is a citizen of the United States for
only certain purposes: Gender Identity, Racial Status and the Legal
Struggle to Desegregate a Mississippi Steamboat”86
Sharon Romeo, University of Iowa, Department of American Studies
Commentator: Sandra VanBurkleo
1. In 1973, the Equal Employment Opportunity Commission
(EEOC) alleged that Sears, Roebuck & Co. discriminated against women
because its commissioned sales force was predominantly male. The
case became known for the expert witness testimony of two women’s
historians. Rosalind Rosenberg testified for Sears that women
wanted jobs that complemented their domestic obligations rather than
higher-paying positions. Alice Kessler-Harris testified for the
EEOC that Rosenberg universalized an assumption about white
middle-class women to women of color and working-class women. The
Court concluded that Sears’ practices reflected female preferences
rather than discrimination, which represented a defeat for efforts
to open male-dominated occupations to women. The decision sparked
a heated debate among feminist scholars and in the mainstream media.
In spite of how Sears is
remembered, the decision should be viewed in the broader context of
political changes in the 1970s and 1980s. Early on, the promise of
the Civil Rights Act led the EEOC to conduct industry-wide
investigations, with an eye toward revolutionary change in the
workplace. By the end of the lawsuit in 1986, changes in
presidential administration and political atmosphere had shifted the
EEOC’s agenda away from sweeping changes and toward remedies for
individuals.
The case can also be
explained by examining the parties involved. Rather than settle
with the EEOC, Sears’ aggressive corporate culture led it to fight
back. Women’s organizations that initiated the case lacked the
resources to follow through and became preoccupied with other
issues. The polarized debate prevented feminists from addressing
complex questions about the kind of employment women sought. The
role of working women in Sears was lost, exposing the class divide
between them and the middle-class feminists trying represent them.
By viewing this case from a broader perspective, it is possible to
recapture the women of Sears, as well as shed light on the shift
from the promise of far-reaching change to a weakened and
ineffective approach to equal employment opportunity.
2. This paper tries to analyze how private legal
practitioners (xingming muyou or "advisors behind the
curtain") shaped Chinese legal culture and judicial administration
during the Qing dynasty (1644 A.D. - 1911 A.D.). Since Qing local
officials were appointed primarily because of their excellence in
literary classics rather than administrative or legal expertise,
most of them relied upon private legal advisors to help perform
their judicial duty that had become increasingly complicated as
crimes and litigations soared over time, especially in the late
imperial period. While these private legal advisors played such an
indispensable role in the local administration of justice, scarce
scholarship has been devoted to studying their significance in
Chinese legal history.
Seeking to sketch out how
these early legal practitioners actually shaped Chinese legal
culture, this paper will examine their personal profile, legal
training, legal philosophy and judicial practice, against the
backdrop of changing official and popular discourses on their role
in judicial administration. Such an understanding of the unique
cultural, social, and institutional contexts in which these private
legal practitioners pursued their career and administered justice
will hopefully enable us to better appreciate certain salient
characteristics of Chinese legal tradition as well as the actual
operation of the judicial system in late imperial China.
3. “Native courts” in colonial Nigeria were judicial
institutions created by the British to allow members of the
indigenous population adjudicate cases under the supervision of
British administrative officers. The paper is a case study of such
courts in Ibadan city: how they facilitated the spread of English
legal ideas; how they functioned to enhance personal freedom and
individualism; in particular, how they elevated the status of women
in the society; and how they forced changes in social habits and
patterns of behaviour through criminal sanctions. From a
world-system perspective, it is clear from this study that native
courts in Nigeria facilitated the integration of the colonial estate
with the West by fostering among the local population a mental
outlook conducive to it.
One primary factor in this
development is the jurisprudential outlook of the English common
law. The basis of the common law is the assumption that society is
no more than a complex web of legal relationships between persons
(natural or juristic), regardless of their social status. It is this
jurisprudential outlook that the native courts tended to imitate in
matters of procedure and the “law” they were said to administer. The
pervasive influence of the supervising British administrative
officers (who knew nothing but the English common law) accentuated
this development.
As this study shows, the
courts were not subversive of all indigenous values. In spite of the
level of social change brought about through the Native courts in
Ibadan social life in the city continued to exhibit elements of
continuity with the past which the courts also endeavoured to
uphold.
4. In a globalizing world, as the urge and need to
spread constitutional democracy beyond the borders of the “west” has
grown, there is an increasing awareness among constitutional
scholars of the enormous difficulties that necessarily accompany
attempts to foster constitutional democracy in different parts of
the world. In this context, the success of the Indian experience in
constitutional democracy in the fifty years after India’s
independence from British rule has intrigued scholars, particularly
given the overwhelming diversity of the Indian population in terms
of religion, ethnicity, language, caste, etc. and the absence of a
developed capitalist economy. In contrast to the unstated but
largely unquestioned view that Indian constitutional democracy is
primarily a legacy left behind by British colonialism, my contention
in this paper is that the nature and viability of constitutional
democracies, specially in postcolonial countries, depends to a large
extent on the nature, strength and legacy of anti-colonial
resistance movements. In the unique case of India, I argue that
constitutionalism and democracy have had two separate and largely
divergent historical lineages, the first grounded in the idea of
justice as equity and articulated by the Indian National Congress in
its struggle against British colonialism, and the second articulated
by Gandhi in terms of the traditional Indian spiritual idea of
renunciative freedom, as opposed to the western discourse of
political freedom based on individualism. In this paper, I pursue
the contours and implications of this dual lineage.
5. The history of property is conventionally written and
taught as a subject delineated by modern national boundaries, as the
history of property law and property use in this or that country.
This is especially true in the United States, where there is a long
tradition of generalizing from the American experience to make
claims about the nature of property rights in the abstract. Yet if
there ever was a subject that cried out for a comparative historical
perspective, this is the one. The institution of property exists
everywhere, under differing local material conditions and differing
local legal regimes. To what extent, and why, has the history of
property differed across nations? Would a richer, more comparative
account of the history of property give rise to different
generalizations about the nature of property rights?
Our panel tries to begin
getting at these questions by looking at differences in the history
of property in North America and Australia. These are similar
places in some important respects. Both inherited the English law
of property. Both were settler colonies in which land had to be
acquired from indigenous people. Both were frontier societies for a
considerable part of their histories. Land loomed large in both
cultures (and indeed still does), both as a source of material
wealth and as a cultural icon. Despite all these similarities,
however, there have been some significant differences in the history
of property in North America and Australia. Why?
Two of our papers try to
answer this question with respect to particular aspects of the
history of property, one (Banner) on differences in the law
governing the acquisition of land from indigenous people, and the
other (Buck) on differences in the extent of state intervention (and
common beliefs about the extent of state intervention) in the
development of property rights. The third paper (Kens) turns to the
classroom, and investigates ways of teaching the subject, and
teaching comparative legal history generally, in both a substantive
and a logistical sense.
6. Terra nullius is such a basic and well-known fact of
Australian history that it is easy to lose sight of how anomalous it
was in the broader context of British colonization. The British had
been colonizing North America for two centuries before they reached
Australia, but they did not treat the North American colonies as
terra nullius. Instead they acknowledged North American Indians as
possessors of property rights, and generally acquired the Indians’
land in transactions structured as purchases. The British began
colonizing New Zealand a few decades after Australia, but they did
not treat New Zealand as terra nullius either. Instead they signed
a treaty explicitly recognizing the Maori as owners of the land.
The existence of terra nullius in Australia is thus something of a
puzzle.
My paper identifies three
reasons for Australia’s anomalous status. First, American Indians
and the Maori were farmers, while Aboriginal Australians were not.
According to then-conventional European anthropological thought,
agriculture presupposed property rights in land. Second, American
Indians and the Maori were more powerful military opponents than
Aboriginal Australians, so the cost of conquest to the settlers
would have been considerably higher in North America or New Zealand
than in Australia. Finally, North America and New Zealand were in
effect first colonized by small private groups, under very little
supervision from Britain. Members of these groups, too weak to
seize land by force and unconstrained by official imperial land
policy, often purchased land from indigenous people. By the time
the imperial government began paying much attention, most settlers
derived their land titles from an initial purchase from indigenous
people, and they formed a powerful political force for recognizing
indigenous people as landowners. Australia, by contrast, was first
colonized by a well-armed official expedition. The imperial
government was, in effect, present in Australia from the beginning,
which prevented the growth of a settler lobby in favor of
recognizing Aboriginal property rights.
7. In his book Legal Transplants, Alan Watson defended
Comparative Law as a separate academic discipline, defining it as:
“a study of the relationship, above all the historical relationship,
between legal systems, or between rules of more than one system.”
While many in the legal academy have resisted Watson’s defense of
comparative law as a separate discipline, legal historians, such as
Lauren Benton and Peter Karsten, who have focused on the historical
relationship between legal systems, have produced a body of exciting
work by adopting a comparative approach. In this paper, I will
explore the opportunities and challenges of the comparative approach
through a focus on the historical development of property rights in
the United States and Australia during the nineteenth century.
This paper emerges out of
the joint teaching project described by Professor Kens in his paper
in this panel. By focusing on the relationship between property law
and the political culture of two settler societies, it is also
designed to complement Professor Banner’s paper in this panel, which
has emerged from his research on the comparative history of
indigenous property rights in the common law jurisdictions of the
British Diaspora.
There is a long
historiographical tradition in the United States, which prioritizes
a “rugged individualism” over state intervention in explaining the
historical development of property law and the contours of debate
over property rights. By contrast, there is a long historiographical
tradition in Australia whereby the development of property law and
property rights is explained as a product of guided state
development often referred to as “colonial socialism”. By reference
to important case law in both jurisdictions, including such notable
American cases as Fremont v. United States (1854) and important
Australian cases such as Attorney General v Brown (1847), as well as
politically charged legislation, including the Robertson Land Acts
of 1861 in Australia and the mid-nineteenth Homestead Acts in the
United States, this paper will explore the myth and reality of these
historical shibboleths.
8. In 2000 a group of Canadians and Australians took
advantage of the potential of the Internet by offering a course in
comparative legal history (described in Law and History Review,
Summer 2000). Inspired by that group, Andrew Buck, of Macquarie
University, and I offered a comparative Internet based course in
Spring 2003. This presentation will describe our experience and
discuss both the opportunities and the challenges of teaching such a
course.
Even though the Canadian
and Australian group provided a model from which to work, we still
faced a number of challenges unique to our circumstances. Perhaps
the principle challenge was determining the substance of the
course. We decided to focus on the single issue of property
rights. We began with the general proposition that a conventional
view is that the American experience emphasized private property and
non-intervention of the state. In contrast, the history of property
rights in Australia is often presented as reflecting a high profile
of the state in control and distribution of property. Taking into
account our similar background in English common law as well as our
distinctive histories, we asked our students to explore the myth and
reality of these conventional views. A second challenge was dealing
with the logistics. The Internet allowed our students to
communicate, but it did not change such things as our semester
calendars and time zones.
The advantages of
participating in this project have been numerous. At the time I
write this proposal we have just started the course. Yet we have
already seen positive aspects in the form of support from our
institutions, enthusiastic students, and the possibilities of joint
publications in comparative legal history. For those, like me,
whose work has been limited to American constitutional and legal
history, the project also offers a wonderful avenue for
self-education.
9. Slavery and the law co-existed together in British
America in a creative relationship that informed how masters and
slaves lived, worked, and, most importantly, loved. This paper
re-evaluates the position of interracial sex and marriage in the
legal and cultural development of colonial Massachusetts. Whereas
some historians depict anti-miscegenation laws as an elite
instrument for regulating and dividing the sexual interests of
subordinate laboring peoples, this paper depicts these acts as a
flexible instrument of community development responsive to a a wide
array of social groups, including slaves, servants, and free
peoples. For the majority of colonial society, statutes baring
interracial sexual relationships affirmed a critical building block
of Puritan society, the marriage covenant, against the shifting
political and military circumstances of the late 1600s. More
particularly, anti-miscegenation law was part of a broader continuum
of regulations designed to affirm the patriarchal underpinnings of
the family against the perils of war with France and the
uncertainties of the Glorious Revolution. These laws proscribed the
boundaries of the Puritan community, but they also responded to the
sexual mores of its subjects, including white servants and African
slaves. Through their participation in the courts, slaves and
servants contributed new knowledge to the law, in turn altering the
movement to re-affirm the family against war and political tumult.
Laws banning interracial sex emerged as a result of the
back-and-forth dialogue between slaves, servants, and masters over
issues of sexual intimacy and marriage.
10. This paper is
an analysis of the petitions, answers, affidavits, and court docket
for the first nine years of the English divorce and matrimonial
causes court. It examines in detail the child custody, alimony,
gender, and class components of the court's first nine years. After
analyzing the petitions and court docket along gender lines for the
different causes of action (divorce, separation, annulment, and
restitution of conjugal rights), and their success rate by gender
and by age of the marriage, it then breaks down marriages by age and
speculates on a variety of causes for the different results and
considers how gender differences and power imbalances in
nineteenth-century society influenced the decisions of both men and
women to terminate their marriages.
11. Elizabeth
Cady Stanton is often described as the most significant woman
history has ever forgotten. Scholars in women’s studies and history
have only in the last decade begun to rediscover her important
contributions to the feminist movement. Missing from the
scholarship, however, is any analysis of the importance of her
contributions to the law, and in particular to the area of family
law. Stanton was a holistic legal thinker, arguing that women’s
suffrage alone was insufficient for equality, and advocating for
universal reform to the laws of the family, employment, and
community. This research intends to examine for the first time
Stanton’s writings on divorce, marriage, child support, custody and
domestic violence to find her prescriptions and theories for family
law. By exploring Stanton’s legal theories and contrasting them
with the theories of contemporary family law, the research will show
how Stanton advocated and demonstrated the modern idea of equality
for women within the family. The research hopes to show that
Stanton approached the law from a feminist legal perspective,
arguing for laws that reflected the actual experiences of women. By
revealing the historical underpinnings of feminist legal theory
beginning with Stanton, this research hopes to inform the continuing
debates over legal rights within the family.
12. This panel
will explore the connections between legal thought and racial
violence during the Progressive Era. Many scholars have noted the
sad alliances between segregationists and many turn-of-the-century
reformers. Jim Crow statutes appealed not only to rural white
Southerners, but also to urban professionals, who advocated public
regulation, clean government, and “scientific” theories of race.
But this broad schema does not fully explain the extensive racial
combat of this same period-imperialism, vigilantism, and rioting-
which seems counter to the Progressive faith in law as well as the
reformers’ perception of conflict as tragic and wasteful. Further,
this rubric often paints racial ideologies as the source rather than
a product of exclusion, separation, and combat. Looking at both
domestic and foreign affairs, the three papers in this panel will
discuss why Progressive understandings of law actually promoted an
intensification of racial violence and the continual reconstitution
of racial identities.
13. My paper
explores the role of racial ideology in the bounding and unbounding
of colonial violence during the Philippine-American War. The role
played by “race” in the conflict has long been known to historians,
many of whom first discovered the war during the civil rights and
anti-Vietnam War movements. But this role has been analytically
reduced to the notion that U. S. soldiers on occasion acted on
racist “attitudes,” especially pre-existing ones that they
reflexively “exported” to the Philippines or “projected” there, as
onto a blank screen.
This paper explores, to the
contrary, the contingencies of racial formation in a colonial
setting as part of two larger efforts: first, to demonstrate the
centrality of race to legal and moral categories of war and
violence; second, to write a transnational history of race in the
early 20th century. As I show, the U.S. soldiers who occupied
Manila in August 1898 during the Spanish-American War did not
racialize the Filipinos they encountered-either as soldiers or
civilians-in any coherent or consistent way. Situational novelty,
the delay of the Treaty of Paris negotiations and concerted efforts
by Filipinos to assert their statehood and “civilization” all led to
diverse U.S. assessments that included what might be called
“recognition”: of the Philippine Republic as a legitimate political
entity, and of Filipinos as a “civilized” people.
The cession of the
archipelago by Spain to the United States in December 1898 triggered
rising tensions in the Islands that erupted in war the following
February, when U. S. sentries fired on Filipino soldiers. The
outbreak of war itself unleashed a process of racialization, as
indicated by often stark changes in U. S. soldiers’ terminology
during the early weeks and months of the conflict. War itself did
not end the political struggle for recognition: for the first nine
months, the Republic’s military leadership chose a disastrous
strategy of conventional warfare with the self-conscious goal of
securing international support by fighting through “civilized”
means. In November 1899, however, the Philippine Army disbanded
into decentralized guerrilla units, moving the battle into more
remote, rural areas and relying on barrio-level recruitment, support
and intelligence.
The Filipino adoption of
guerrilla tactics, in turn, led to a radicalization of racial
perception among U. S. troops and officers in 1900-1901. Fighting
in unfamiliar tropical environments, unable to distinguish Filipino
peasants from soldiers, U. S. soldiers recast the conflict as a “war
of the races”; Filipino guerrilla tactics were “ethnologized,”
marked as the expression of inherent traits of “savagery” and
treachery in the population as a whole. As General Hughes put it in
late 1900, “the whole population has been rank insurrectos from hide
to heart…” This view was made policy in General MacArthur’s
December 1900 declaration, invoking the Civil War-era General Orders
No. 100, that those who waged guerrilla war “divest themselves of
the character of soldiers, and if captured are not entitled to the
privileges of prisoners of war.” MacArthur’s order, animated by
emerging racial forms, led to a totalization of U. S. violence: the
destruction of homes, livestock and other property of civilians; the
torture of civilians and prisoners; ultimately, instances of
indiscriminate killing.
Senate investigations into
wartime “cruelties” and Army court-martials ultimately yielded few
punishments. Chief among Army self-defenses was the argument that
Filipinos, being “savages” themselves, and having waged a “savage”
form of warfare, were not due the restraints of “civilized” war.
14. My paper
examines racial conflict in Chicago between 1911 and 1922,
investigating its roots in Progressive-era law, politics, and urban
legal culture. Previous authors have blamed the infamous Race Riot
of 1919 on the interaction of African-American migration, white
prejudice, and economic rivalries. This paper complicates such
interpretations by considering how local institutions-courts,
political parties, craft unions, and trade associations-helped
construct racial identities both before and after World War One.
The contemporary legal climate encouraged vigilantism rather than
any state management of race relations- either Jim Crow laws or
egalitarian policies guaranteeing equal access-and the result was
intense private violence.
Consider labor market
competition, one source of racial tension emphasized by many
historians. As black workers sought to earn a living, they
challenged white craftsmen’s dominance over the labor market. The
tradesmen did not, however, call for legal segregation, partly
because they rejected the principle of public regulation itself.
Defeated regularly in the courts, craft workers and employers
rejected judicial authority and projected a profound sense of their
own sovereignty. Unions and trade associations formed their own
systems of governance to stipulate wages, hours, prices, machinery,
and materials. Walking delegates administered these rules, gaining
compliance through strikes, boycotts, assaults, and bombings. Such
restrictions not only deflected modern technology, corporations, and
a national market, they also challenged elite faith in the rule of
law. But when judges pressured tradesmen to recognize the state’s
authority, they merely hardened the craftsmen’s belief in their own
jurisdiction.
White Chicagoans chose to
control race relations through a set of interlocking private groups,
including unions, associations, political clubs, and gangs.
Workers, for example, increasingly defined formerly race-blind
restrictions on the labor market in racial terms, specifically
barring blacks from union membership. Moreover, these organizations
physically punished blacks for crossing geographic and occupational
color lines. Assaults on African Americans closely resembled
attacks on open shop employers, price-cutters, and non-union workers
during the same period. For example, four months before the 1919
riot, a bomb exploded at the office of African-American real estate
entrepreneur Jesse Binga. Some observers believed the bombers
sought to intimidate black citizens who lived amidst whites. Others
claimed the Flat Janitors’ Union had punished Binga for employing
non-union men. In fact, these conclusions are complementary, for
residential segregation and economic exclusion were both components
of a broader effort by white craftsmen to control space and
commerce.
While judges offered
protection to corporate employers, they failed to defend black
access to jobs and housing. Left with few options, African
Americans responded by forming their own organizations, by finding
patrons like Mayor William Hale Thompson, and by retaliating against
their white rivals. These resistance strategies allowed migrants to
survive. But in defending themselves, blacks risked fulfilling
white preconceptions of them as allies of capital, thus
unintentionally perpetuating the cycle of private racial violence.
15. This paper
explores the boundaries of legal order and lawlessness in Texas in
the years of the Mexican Revolution as part of a broader
consideration of the relationship between racial violence,
modernity, and the law in the early twentieth century. This paper
examines several episodes in southern Texas to show not only how
vigilantism maintained a racial status quo, but also how south
Texans of Mexican heritage used the rhetoric of lawlessness to
challenge racial violence through legal institutions.
From the outset of the
Mexican Revolution, local, state, and federal authorities in the
United States thought of the revolution as a fundamentally lawless
event that threatened both the legal and racial orders of the border
region. The main section of the paper examines the response of
public officials in Texas and Washington to Mexican “banditry”
through the lenses of law and race. It explores the
connections-both theoretical and institutional-between General John
J. Pershing’s Punitive Expedition of 1916 and the vigilantism
carried out in the same period by Anglo South Texans in a wide range
of organizations that included the Texas Rangers. Authorities
consistently accused Mexican revolutionary groups of engaging in
vigilantism and racial violence, while denying that their own
activities fit the same definitions. Hypocritical? Yes. But not
only that.
Modernity is the key to
understanding why this position was not simple hypocrisy. By the
early twentieth century, law enforcement in Texas was conducted
primarily by professional police forces and the National Guard, and
many considered the Rangers to be an anachronism in a modernizing
society. Nevertheless, in Texas as elsewhere in the country,
longstanding traditions of popular enforcement of the law proved
difficult to dislodge. The paper situates the Texas Rangers in the
history of early twentieth-century vigilantism, including
consideration of the theoretical relationship between vigilantism
and voluntarism in a changing society. Battles over lawlessness and
legal order were also battles over modernity, the shape of modern
American citizenship in particular.
Even historians sympathetic
to the Texas Rangers acknowledge that at least five thousand people
died in episodes of racial violence along the border. But the
targets of vigilantism were not only victims: they also used the
concept of lawlessness as a tool against the Rangers. The second
half of the paper draws from their testimony, collected in 1919 by
the Canales Committee, a special investigative effort undertaken by
the Texas Legislature in response to border violence. The testimony
suggests that Mexicans and Mexican Americans found ways to navigate
a hostile legal system. The outcome, however, was mixed: although
the Rangers were reorganized in 1919 in the wake of the Canales
Investigation, the political violence that supported the racial
order did not disappear. The paper ends by considering some of the
ambiguities in early twentieth-century efforts to modernize systems
of social control to eliminate vigilantism. As physical violence
was slowly discredited and modern institutions of political
citizenship emerged, new forms of coercion emerged to mark the
boundaries of the racial order.
16. The jury
wielded formidable power in classical Athens. On about one hundred
fifty days a year, juries of ordinary male citizens typically
numbering between two hundred and five hundred rendered judgments in
cases that often concerned members of the political, economic, and
social elite. Litigants offered competing presentations that drew on
moral, social, and political norms as well as legal ones. Athenian
juries voted without deliberation, and without benefit of a judge’s
instructions as to the relevant law. There was no appeal from the
judgment of the people.
How did the Athenians
conceive of the task of legal judgment? What did they regard as the
proper criteria for such judgments? How was the process of judging
shaped by the cultural and political circumstances of classical
Athens? The papers on this panel explore these issues by examining
the process of judgment in the surviving lawcourt speeches and in
tragic theater. Bers argues that in statements of the chorus in
Greek tragedy we can see the poets’ dramatization of mental
processes--emotional and rational--in the work of the Athenian
juror. Lanni describes the process of jury decision making in the
surviving lawcourt speeches as an ad hoc calculation of moral desert
that encompassed evidence relevant to sentencing as well as to
guilt. Murnaghan finds in both the lawcourts and tragedy a cultural
constraint that limited the criteria of judgment: the refusal to
acknowledge female sexual desire.
Taken together, these papers
offer new insight into what has recently become a growth field in
classical scholarship: the nature of Athenian law and its relation
to Athenian democracy and society. In particular, the papers seek to
move beyond a narrow focus on the traditional sources for the
Athenian courts to exploit dramatic literature and non-legal
evidence for Athenian cultural norms. We believe that this research
into the relationship between law and society in Athens in the time
of its greatest intellectual and artistic flowering will be of
general interest to legal historians of all periods.
17. Although
forces far surpassing the human agents of the plays are nearly
always predominant in the plotting of Greek tragedy, a large portion
of the text is given over to the presentation of what might loosely
be termed “pleadings.” Through the spoken (less often sung) logos
that largely substitutes for physical enactments on the stage,
characters seek to justify actions already taken or weigh their
choices of prospective action. In the economy of tragic dramaturgy,
much attention is paid to explicit judgment of the mode and content
of these verbal performances. This paper explores not the arguments
themselves, the topic of much existing research, but the implicit
and explicit reactions of the chorus to the task of discerning truth
and evaluating pleadings (dikaia in the language of lawcourt
rhetoric). To a remarkable degree, the choruses are comprised of
slaves, women, and foreigners, those groups rigorously excluded from
the mass juries that are one hallmark of the Athenian courts.
Nevertheless, the poets regularly employed the chorus to dramatize
the competing rationales and emotional states at play in the minds
of jurymen empowered by the radical democracy of the fifth and
fourth centuries BC to make decisions of profound importance to
individuals and the city as a whole.
18. The Athenian
popular courts drew no distinction between evidence relevant to
guilt and evidence relevant to sentencing. Unlike the practice
generally employed in American courts of withholding from the trial
jury information about the likely penalty and arguments regarding
the appropriate sentence, Athenian litigants at trial regularly
discuss potential penalties and make what a modern would regard as
sentencing arguments-from comments about the defendant’s character
and prior record to appeals for mercy and discussion of the
disastrous financial consequences a conviction would have on the
defendant’s innocent family. The trial verdict thus encompassed much
more than a decision as to factual guilt, though the penalty was
formally determined by statute or through an additional sentencing
hearing in which the jury chose between the penalties suggested by
each litigant.
This paper examines the
effects of this broad notion of relevance on the nature of Athenian
justice. Defendants who used sentencing arguments at the guilt phase
had to adapt their arguments to maintain a coherent presentation
without conceding factual guilt. Athenian jurors were constantly
made aware of the violence inherent in their judicial decisions. The
breadth of argument during popular court trials led to largely ad
hoc, individualized judgments of moral desert. I argue that this
unusual approach reflects not only a normative belief in the
importance of contextual information in reaching a just decision,
but also a political commitment to insuring wide-ranging jury
discretion in Athens’ direct democracy.
19. In classical
Athens, the lawcourts and the tragic theater offered similar public
contexts for representing and judging transgressive actions. Both
types of performance concerned the dangerous subject of unsanctioned
behavior, and both presented that subject through recognized formal
conventions, evoking criminal actions in an acceptably selective and
indirect way.
This paper explores the
constraints found in both institutions on the presentation of
women’s sexual desire through a comparison of two well-known works
of Athenian literature: “Lysias I,” delivered by a man on trial for
the murder of his wife’s lover; and Euripides’ Hippolytus, in which
the plot is driven by the adulterous desire of its heroine, Phaedra,
for her stepson. In Lysias 1, the speaker presents his story as one
of rivalry between himself and his wife’s lover, reconstructing the
past as a contest between two male actors that anticipates the trial
itself. His wife’s troublesome desire is unacknowledged, and her
behavior is treated as the consequence of her corruption by his
rival. In the Hippolytus, Euripides reflects critically on the
inadmissibility of female desire, depicting it within the play and
exposing it as useless to bring about truth or the just resolution
of conflict. In an episode modeled on a trial, Hippolytus, falsely
charged with raping Phaedra, is prevented by an oath from mentioning
her desire for him; as a consequence, he is punished with death at
the hands of his father, Phaedra’s husband Theseus.
20. The legal
history of North America is interwoven with the relations between
the Aboriginal peoples and the European colonizers. From the time
the British and French first established settlements, disputes over
sovereignty and land have troubled these relations. This continues
to be so today, in both Canada and the United States. In Canada,
however, the courts have only recently begun to grapple with these
issues. The catalyst for much of this litigation has been the
Constitution Act, 1982, which recognized and affirmed the existing
Aboriginal and treaty rights of the Aboriginal peoples. As these
rights are based on their historical occupation of Canada and the
agreements they entered into with non-Aboriginal governments, the
legal significance of that occupation and those agreements is a
matter of vital, present-day concern.
The three papers that make
up this panel all focus on the matter of sovereignty or
self-government (as it is commonly known in domestic Canadian law).
A unifying theme in the papers is the Aboriginal peoples’ struggle
to maintain their auto