Literacy and the law in Lombard government

This article examines the Lombard law code as evidence for literate practices in government and society in seventh- and eighth-century Italy. The effectiveness of the code as an instrument of government is testified by the charter evidence, in which the precepts of the code are implicitly acknowledged or cited directly. Although largely the result of a necessary appropriation of late Roman property law, Lombard legislation and notarial practice applied further literate methods to document, and hence to validate, a range of transactions. The use of written law was not merely limited to male landowners, but affected Italo-Lombard society more widely, as is revealed by the evidence for women's property rights and manumission. The charter evidence and references within the code itself suggest that various uses of writing for governmental administration extended beyond the royal and ducal levels into local society.     

Iranian Journalism and the Law in the Twentieth Century

Although the first Persian language newspaper was published in Iran 170 years ago, Iranian journalism is a twentieth century creation, indeed a product of the 1906 Constitutional Revolution. The press played a significant part in the revolution, especially by promoting the demand for the rule of laws enacted by parliament, rather than decrees issued by the king or the religious leaders. Once a constitution had been declared, many journalists felt relieved of all restrictions and engaged in bitter, personal attacks on their opponents, including the monarch and his family. Many papers also opposed a press law that was passed soon after the revolution, arguing that it was meant to suppress their newly-gained freedom. Five more press laws have been passed in Iran since then, but the debate over press freedom and the rule of law in the country does not appear to be anywhere near resolution.     

Bringing the feudal law back home: social practice and the law of fiefs in Italy and Provence (1100–1250)

ABSTRACT

The Libri feudorum is a composite law book containing the customary laws of fiefs held in Lombardy which were codified in 1100–1250. Its function in shaping a late medieval ‘feudal vocabulary’ and, ultimately, modern models of feudalism was highlighted by Susan Reynolds and lies at the core of her anti-feudalism paradigm. This paper questions the disjuncture between social practice and learned law that underlies the paradigm, by analysing the context and making of the Libri feudorum and of legal writings associated with it – by Pillius de Medicina, Iacobus de Ardizone and Jean Blanc. By showing how practice could shape legal tools used by learned lawyers to frame fiefs and by reassessing the influence of the Libri feudorum on practice, the paper challenges the idea that fiefs were the outcome of professional or academic law and unveils aspects of the practical nature and intellectual dimension of lawyerly writing.     

论历史性权利在海洋划界中的作用

历史性权利在海洋划界中作用的法律基础既包括条约法也包括国际习惯法。历史性权利分属不同的法律基础,使其在海洋划界中发挥不同的作用。以《联合国海洋法公约》为代表的条约法,规定了历史性所有权或历史性海湾在领海划界中的优先作用,明确了历史性所有权、历史性水域在海洋划界争端解决程序中具有任择性例外的作用,并确立了历史性捕鱼权在群岛水域划界中具有特别适用的功能;而国际习惯法确立的历史性权利规则在海洋划界中的作用,虽然目前国际法上尚无明确规定,但在国际实践上,其主要以并行适用方式发挥作用。历史性权利在海洋划界中的不同作用,为未来我国与周边国家尤其是南海周边国家海洋划界提供国际适法导引。     

‘Your work is of no use to us…’: Administrative interests in ethnographic research (West New Guinea, 1950–1962)

Abstract

The extent of customary land in Samoa and the laws pertaining to its protection create a presumption of state dependence on the regulation of custom in effecting state policies within local contexts. The principal means of regulating custom in Samoa has been and continues to be through state court adjudication of conflicts over customary land and chiefly titles. The transitive nature of ‘custom’ and conceptions of ‘custom’ in Samoa created an opening for court influence in the construction of custom, if not custom's partial reinvention through the agency of the courts. This occurred principally through the courts’ privileging principles of English common law in confirming asserted land rights generally considered unenforceable at the time of Samoa's political partition. The courts re‐interpreted as customary, conceptions of land rights the colonial state's influence attempted to effect within Samoan society. But the source of the changes, and the courts’ role in promoting them, tended not to be equally reflected upon. To the extent such influence is ignored in analyses of Samoan land tenure and customary law, and reproduced within state policies and court adjudication of conflict, custom's social construction is left unexamined, assumed to be more general than it is, and likely to exacerbate tensions and conflict within Samoan society rather than reduce them.     

Not new but novel. Notes on the historiography of Byzantine law

Abstract

It is some time since the late Alexander Kazhdan undertook a private crusade under the title ‘Do we need a new history of Byzantine law?’ Of course his answer was in the affirmative. In one sense one would be unable to disagree; in another sense, however, one ought to answer that the history Kazhdan was asking for would not so much be new; rather it would be a novelty, as it had not been written before.     

Anarchy and Public Discourse: Emerson,Lincoln and the “Mobocratic Spirit” of the 1830s

Abstract

In January 1838, Emerson and Lincoln each gave a lecture on the public violence that reached a crisis with the killing of Elijah Lovejoy. For both men, mobbing represented instabilities in the process of democratization that had structural implications for public discourse. In his Lyceum Address, Lincoln argues that if mobbing became conventionalized it could legitimize an extralegal politics of force and coercion. To counterbalance the pressure he saw mobbing place on civil society, Lincoln asserts the importance of developing a culture of reverence for standards of civility in the public sphere. For Emerson, in his lecture “Heroism,” mobbing marked irrational but intentional efforts to suppress dissenting speech and thought. Especially through attacks on political reformers and other individualists, public violence distorted civil discourse and enforced both conformity and silence. For both Lincoln and Emerson, the experience of mob action challenging civil society in the 1830s marked the proximity of civil to uncivil discourse and influenced their responses to proslavery rhetoric in the 1850s. Though they reacted differently, each articulates the risks of allowing the threatened violence of proslavery rhetoric to co-opt the political structure so that civil discourse acted as a façade legitimizing mob rule.     

Newman and his Audiences: 1825–1845

This article examines Newman's communication with others in a variety of modes. It suggests there was a deliberate underlying theme of preaching in whatever he did, not only from the pulpit, where his skills were famous, but in virtually all his other forms of discourse, from letter-writing to his setting up of the "retreat" at Littlemore. He used whatever means were available, including marketing and journalism as well as scholarly work, to bring a concept of public witness to his mission. His social life, as evidenced in his generally scrupulously kept appointments diaries, is analysed to demonstrate that it too was part of his holistic approach. The suggestion is that Newman was much more aggressive and publicly aware than is generally recognized and that he combined an intense personal internalizing with active public performance in a wide range of spheres.     

The family as the foundation of political rule in western philosophy: a comparative analysis of Aristotle's politics and Hegel's philosophy of right

For both Aristotle and Hegel, the family is the foundation in which the universalized rule of law is validated according to the political structure of the 'Polis' or 'State' itself. This composite whole or structure of society (Ancient Polis/Modern State) is the political end of humanity for both philosophers, which in turn finds its primordial beginning in the family. For Aristotle, it is in the kingly rule of the household that the property-based distinction of citizenship is set for the rule of his ideal Polis. For Hegel, it is in the love affirmed through caring affection within the nuclear family that the dialectical framework for the freedom of civil society, and the rational unity of a congregational 'spirit' in the State, finds its foundation. For both thinkers, the family sets the base for a political theory that defines citizenship in a manner that transcends the particularities of kin bonds.     

Slaves, servants and wage earners: Free and unfree labour, from Grotius to Blackstone

This article provides an intellectual history of the status of wage earners as conceptualized within the natural law paradigm by European writers both on the Continent and in Britain. Historians of political discourse have mostly investigated the consequences of such a status for the political rights of labourers. This article shows that the crucial moves were made by different authors analysing the relation of servant to master either in the domestic sphere or in private contracts. The article further contends that that resulting deeply ambiguous analyses implied a far from complete personal freedom for wage earners. This had a decisive impact on different visions of commercial society in early modern times, and left a significant legacy for moderns.     

La persistance des relations pre-politiques entre agents de l'autorite et classes populaires pendant la revolution francaise (le discours public de l'autorite en situation d'emeute)

This article provides an intellectual history of the status of wage earners as conceptualized within the natural law paradigm by European writers both on the Continent and in Britain. Historians of political discourse have mostly investigated the consequences of such a status for the political rights of labourers. This article shows that the crucial moves were made by different authors analysing the relation of servant to master either in the domestic sphere or in private contracts. The article further contends that that resulting deeply ambiguous analyses implied a far from complete personal freedom for wage earners. This had a decisive impact on different visions of commercial society in early modern times, and left a significant legacy for moderns.     

Reading Comte across the Atlantic: Intellectual Exchanges between France and Brazil and the Question of Slavery

Summary

This article looks at a specific case of intellectual exchange by approaching Luís Pereira Barreto (1840–1923), a Brazilian medic who, having studied in Brussels in the 1850s, came into contact with Comte's positivism and with the ideas of his disciples. While in Europe, Barreto established a long-lasting friendship with Pierre Lafitte, and became a convert to Comte's Religion of Humanity. Upon his return to Brazil in 1864, Barreto sought to apply Comte's principles to Brazilian society and politics. Although Barreto's use of positivism extends beyond the issue of slavery and slave work, I will focus on this priest of humanity's considerations about positivism, social evolutionism, and Brazilian slavery. This will allow me to extrapolate some qualified conclusions about the nature of the intellectual exchange that occurred between Barreto and the French positivists, and the development of Brazilian positivism as a political philosophy and social theory which had to address the problem of slavery in the 1870s and 1880s.     

The fusion of law and ethics in cultural heritage management: The 21st century confronts archaeology

Abstract

Archaeologists around the world face complex ethical dilemmas that defy easy solutions. Ethics and law entwine, yet jurisprudence endures as the global praxis for guidance and result. Global legal norms articulate ‘legal rights’ and obligations while codes of professional conduct articulate ‘ethical rights’ and obligations. This article underscores how a rights discourse has shaped the 20th century discipline and practice of archaeology across the globe, including in the design and execution of projects like those discussed in the Journal of Field Archaeology. It illustrates how both law and ethics have been, and still are, viewed as two distinct solution-driven approaches that, even when out of sync, are the predominant frameworks that affect archaeologists in the field and more generally. While both law and ethics are influenced by social mores, public policy, and political objectives, each too often in cultural heritage debates has been considered a separate remedy. For archaeology, there remains the tendency to turn to law for a definite response when ethical solutions prove elusive.

As contemporary society becomes increasingly interconnected and the geo-political reality of the 21st century poses new threats to protecting archaeological sites and the integrity of the archaeological record during armed conflict and insurgency, law has fallen short or has lacked necessary enforcement mechanisms to address on-the-ground realities. A changing global order shaped by human rights, Indigenous heritage, legal pluralism, neo-colonialism, development, diplomacy, and emerging non-State actors directs the 21st century policies that shape laws and ethics. Archaeologists in the field today work within a nexus of domestic and international laws and regulations and must navigate increasingly complex ethical situations. Thus, a critical challenge is to realign approaches to current dilemmas facing archaeology in a way that unifies the ‘legal’ and the ‘ethical’ with a focus on human rights and principles of equity and justice. With examples from around the world, this article considers how law and ethics affect professional practice and demonstrates how engagement with law and awareness of ethics are pivotal to archaeologists in the field.     

唐代居住习俗与妇女地位初探

“夫随妻居”、已婚女性长住本家以及夫亡以后归宗,是唐代社会一种颇为流行的居住习俗。从民俗学和性别文化的视角来分析和考察不难看出,唐代社会所流行的这种居住习俗,应是女性人身较自由、女性权益得到一定保障以及女性在家庭生活中拥有较高地位的具体表现。     

When the rule of law met rule by the party: the conflicts between Baptist schools and the local Guomindang in Republican Suzhou

ABSTRACT

This study examines the relationship between the Guomindang (GMD) and the courts by focusing on the 1929 conflicts between the Suzhou Baptist schools and the local GMD party apparatus. The GMD regime supported the principle of rule by the party. At the local level, the GMD’s rise was often stymied by the independent judiciary whose judgments were based on the principle of the rule of law. The local party might not have been able to control the local court in the early years of the GMD regime, but it did steadily alter state-society relationships, as it could benefit from the local court’s commitment to the rule of law. For instance, the district court in Suzhou actively defended the principle of rule by the party in conflicts between Baptist schools and the local party because the GMD had made that principle the law of the land.     

政治和法治的钟摆——以国家观念(文化)史为视角

法治是人类经过长期的探索,才得以确立政府应该负责的一种信念。历史上,法治从对宗教自由和公德心的承认发展而来。国家在认可个人的宗教自由和公德心的同时规定了对自身的基本限制。西方现代法治进一步延伸了宪法控制政府行为的观念。法律制定是国家权力的明显体现,而被制定的法律是国家政策转化为行动的中介并对整个政府行为均具有约束力。这意味着政府当局不能采取任何与议会或宪法相抵触的行动,意味着法律优先于任何的、所有的其他政府手段,受到立法机关法律的、政治的首要性的支持。借助国家观念史的演进历史来分析,可以说明政治和法治的钟摆始终是在回答为什么必须使用国家权力,然后才是如何防止权力的滥用(即权力守法)这两个问题所代表的倾向之间摆动。     

Thailand’s Traditional Trinity and the Rule of Law: Can They Coexist?

Abstract

Thailand has seen considerable progress in the rule of law since the seminal 1997 constitution. Yet persistent political instability suggests that as yet the country does not think of the rule of law as binding. What is likely to happen in Thailand with the rule of law, and with governance generally? The argument advanced here is that rule of law principles must contend with the realisation that the traditional Thai trinity – nation, religion and king – has become an inviolable state ideology. Political actors, often aligned with the monarchy, have been using each element of the trinity to undermine both rule of law principles and democratic institutions. Now that long-serving monarch King Bhumibol (Rama IX) has been succeeded by his son King Varijalongkorn, it seems an appropriate time to examine current battles about the meaning of the rule of law and broader struggles for control between elites and popular groups based on competing visions for the state – a problem not only in Thailand but in the region as a whole.     

Rousseau,Pufendorf and the eighteenth-century natural law tradition

The relationship between the political theory of Rousseau and modern natural law continues to be the subject of debate, both with regard to Rousseau's faithfulness to the idea of natural law itself and regarding the precise extent of the debt he owed to his predecessors. In this article the author re-examines this relationship by focusing attention on what has been defined as the protestant tradition of natural law. In particular she concentrates on the political and theoretical exercise that Jean Barbeyrac had sought to perform by constructing a particular version of this tradition, namely that of using the science of natural law to promote a policy of tolerance between protestants and to justify the right of citizens to resist catholic sovereigns who denied them religious freedom, as well as the right of protestant countries to come to the aid of persecuted fellow believers. The thesis asserts that Rousseau was fully aware of this exercise, just as he was aware that some of Barbeyrac's ideas had been adopted and reworked by another illustrious Genevan, Jean-Jacques Burlamaqui, a member of the Small Council, to support anti-populist and antidemocratic politics in Geneva. Viewed in this way it is possible to perceive in Rousseau's political thought not so much a “first crisis” of natural law as an intention to reformulate this science from a republican perspective in order to derive rigorous principles of political law from it. And in developing his republican political theory Rousseau took up and overturned the analysis of democratic sovereignty carried out by Pufendorf, who in opposing the “pro-monarchist” excesses of authors such as Hobbes and Horn had unhesitatingly demonstrated the complete validity of democratic sovereignty.     

Michael Polanyi's Social/Political Order: Design for a Society of Explorers

Abstract

Michael Polanyi's fascinations throughout his lifetime were threefold: (1) science—specifically physical chemistry; (2) philosophy—specifically epistemology and ontology; and (3) political society, understood, in the British tradition, to include economics. In developing his recommendations for political society, Polanyi draws broadly upon insights and even concepts from his experiences and reflections in both science and philosophy. His search for meaning in all of his philosophical works provides for him the definition of what he considers the most important human endeavor and is that which the political order must strive to encourage and protect. In addition, the gratification he found in the collegiality and conviviality of scientific research, conducted most productively in what Polanyi identified as “societies of explorers,” suggested to him the diverse groups—as in science, “polycentrically” ordered—and engaged in all kinds of productive activities that came to represent, for him, the grassroots source of a society's creative vitality. Having come to appreciate the necessity of freedom for scientific discovery, freedom became a paramount value in the model he proposed for political society. But this freedom, he realized, had to operate within the boundaries of legal and moral constraint if it was not to dissolve into the oppressions of anarchy. So we find in Polanyi's model of political society a dynamic very similar to that which he had developed in his epistemology: an indwelling of tradition for the purpose of social stability but also a “breaking-out” of established ways to engage in creative endeavors. Similarly, as Polanyi had recognized higher and lower “orders” of existence in his ontology that were necessary for the “emergence” of more comprehensive and novel entities, “greater than the sum of their parts,” he provided for a similar vertical, or qualitative, “layering” in his social order. These insights, and more, that Polanyi draws from his scientific and philosophical reflections in the process of constructing his model of a political society are what I attempt to develop in this essay.