Legal learning and saintly authority in thirteenth-century hagiography: the Magna vita sancti Hugonis

Law is central to the construction of sanctity in Adam of Eynsham’s Magna vita of Hugh of Lincoln (1186–1200). Hugh had no formal training in canon law, and, beyond the Magna vita, there is no evidence to suggest that he was a particularly proficient judge. If that lack of legal training was not a problem in Hugh’s lifetime, it had become a more sensitive issue by c.1212, the date of the composition of the Magna vita. Rather than ignoring the law, or denying its importance, Adam attempted to demonstrate that Hugh received mastery of legal argument as a divine gift, and multiple miracles involve Hugh correcting legal scholars. Recognising these careful patterns of construction raises problems for reading Adam’s Magna vita. While Adam has traditionally been characterised as a truthful biographer, this reading suggests he was engaged in a more complex project of marrying sanctity to legal learning.     

Thick Decisions: Expertise,Advocacy and Reasonableness in the Federal Court of Australia

Drawing from the litigation around the Hindmarsh Island Bridge (especially Chapman v Luminis Pty Ltd 2001) this article provides an analysis of judicial responses to anthropological expertise. Sensitive to the institutional responsibilities of judges, as well as rules of evidence, procedures and legal causes of action, it examines the strategic representation and appropriation of anthropological knowledge and practice. In exploring the relations between law and expertise the article illustrates how their combination shapes outcomes. In the process it explains how the judge could have produced a range of (in)consistent outcomes through the modulation of legal categories and their relations with prevalent images of anthropological expertise. This analysis positions the article to critically reflect on some of the implications for anthropologists working in and around legal or quasi‐legal settings as well as those commenting on that participation.     

‘A Hazardous Task’: Britain and the 1961 Vienna Convention on Diplomatic Relations

In 2014, the Vienna Convention on Diplomatic Relations celebrated its fiftieth anniversary since its coming into force in 1964. Setting out the privileges and immunities accorded to diplomats and diplomatic missions, the negotiations of this convention were part of the United Nations' plan to strengthen the international rule of law. This article analyses the role of Britain, one of the major actors in the negotiation process. It explores how Britain's negotiation position was shaped by diplomatic realities of the 1950s, and the strategies used to ensure Britain's interests being reflected in the final convention. The focus will be on the overall political pressure that underlined Britain's negotiation position, in order to reveal the general UK position on the codification of diplomatic privileges and immunities. Despite the remarkably friendly atmosphere at the 1961 Vienna conference, Britain could not press through all its amendments which, through the concluding legislation process, protracted Britain's ratification process. The article shows while London was supporting the codification of international law, codification by convention was not its ultimate choice. Therefore, the subsequent legislation process was marked by an inter-departmental dispute between the Foreign Office and Treasury, inter alia, on the exemption of Scotch whisky from excise duties.     

Islam without Fuqahāʾ: Ibn al-Muqaffaʿ and His Perso-Islamic Solution to the Caliphate's Crisis of Legitimacy (70–142 AH/690–760 CE)

This paper seeks to advance the existing scholarship on Persian secretary and belles-lettrist, ?Abd Allāh Ibn al-Muqaffa? (d. 139/757) and his Risāla fī ’l-?a?āba (Epistle Concerning the Entourage). It argues that the Risāla, addressed to the second Abbasid caliph al-Man?ūr, set out to tackle the political ills of the caliphate, especially the crisis of political legitimacy. As the first documented articulation of the Islamic polity, the Risāla made a series of recommendations, including a proposal for legal codification that attempted to reinvent the caliphate by reuniting the institution's political and legal authority at the expense of private jurists (fuqahā?). The paper illustrates how Ibn Muqaffa?’s solution relied on a creative integration of Iranian and Islamic ideas of statecraft and legitimate rule. Ironically, this creative integration may have played a part in the Risāla’s failure to garner necessary support to effect change.     

Recent Books in the Field of Mediaeval Literature

In the Cantigas de Santa María, King Alfonso X unveils an intricate cultural, political, and economic system that defines the relationship between Christian society and religious minorities. This article illustrates that the Cantigas must be understood as an ideological instrument of cultural codification that reaffirms the established Christian social order in relation to three principal groups: heretics, Jews, and Muslims.     

Rights as Wrongs: Legality and Sacrality in Thailand

Abstract

Interviews with injury victims in northern Thailand (Lanna) conveyed a pervasive sense of injustice in their daily lives but a notable absence of the language of rights. Despite the proliferation of rights-based discourses, organisations, and institutions in Thai society, interviewees tended to disfavour the pursuit of rights because they believed that resort to the legal system would subvert Lanna traditional practices and would add to the bad karma that caused their suffering in the first place. This article traces fundamental contradictions in northern Thai concepts of justice arising from the imposition of “modern” systems of law and religion by the central Thai (at that time Siamese) government in the late nineteenth and early twentieth centuries. It views the legal modernisation project as a continuation of earlier efforts to impose central control over outlying regions by curtailing what were viewed as deviant cultural practices in order to weaken rival political, religious and legal traditions. The transformation of law in Lanna – from the Mangraisat tradition to a European-style legal framework – should therefore be viewed in conjunction with other cultural and political transformations initiated from Bangkok. Current expressions of disaffection and confusion about justice are rooted in this broader historical process.     

Book Reviews

Book reviewed in this article: Wolfgang Friedmann, Law in a Changing Society * 2nd edition * This review was written in August 1972. Scarcely a month later came the shocking news of Friedmann's death at the hands of three young thugs, a few blocks away from New York's Columbia University, where he was professor of international law. This event tragically underlines the very subject of his last work, namely, the importance of law in contemporary society. The world owes a debt of gratitude to Friedmann who left his native Germany as a refugee from the Nazi regime, and subsequently taught law and conducted legal research at several universities in Europe, Australia and North America. Frank McFadzean et al., Towards an Open World Economy. Report by an Advisory Group David Lane, The End of Inequality? Stratification under State Socialism     

Law,Principle, and the Theologico-Political History of Sovereignty

Abstract

This article takes it cue from the debate between Carl Schmitt and Erik Peterson regarding the possibility of political theology within Christianity, and in response, offers a conceptual-historical portrait of sovereignty and its juridical dimensions. Beginning with the introduction of Roman law into the medieval Church, the article traces the logic of “legal principle” as the basis of sovereign decision and how the form of legal distinctions adopted into canon law translate the Romanitas of law into the theory of papal sovereignty. By the Romanitas of law, that is to say the principle of sovereignty in law. The article then seeks to describe the conceptual translations of Roman politics and Stoic metaphysics into theological form and the logic of this translation into medieval natural law. The article concludes by evaluating how the civic theology of Rome is conceptually inherited by the politics and legal framework of sovereignty and returns to Peterson’s critique of Schmitt, arguing that political theology can be understood as a dynamic where politics is theologized, assuming that in the history of religion, theology and politics are never fully distinct to begin with.     

A. V. Dicey and English constitutionalism

The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – ‘the rule of law’ – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.     

Studying the Cannons of Punta Santa Anna,Spain: In Situ Conservation,Promoting Public Access,and Monitoring Iron Corrosion

The 2001 UNESCO convention for the Protection of Underwater Cultural Heritage (UCH) encourages and supports projects that would make accessible to the general public underwater cultural sites. Since 2010 the Catalonian Federation of the World Underwater Federation (FECDAS), have been developing outreach activities with the objective of promoting the protection of the UCH among recreational scuba divers. The purpose of this paper is to introduce one such project, the Punta Santa Anna in Blanes, Spain. This project has three objectives: the promotion of UCH to the general public, the in situ protection of this underwater archaeological site, and a case study on iron corrosion processes. FECDAS/CMAS will create an underwater archaeological park where recreational scuba divers will be able to visit some purposely selected archaeological iron cannons. To expose UCH to the general public will potentially affect the integrity of these artefacts. This risks potential damage and so, with the objective of minimizing potential threats, a series of protective measures and a systematic monitoring programme have been planned. The programme is designed to study the relationship between the underwater environment and the artefacts. The aim is to acquire a better understanding of the corrosion processes of iron objects present in marine underwater sites.     

Das Wissen der Schulden. Recht,Kulturtechnik und Alltagserfahrung im liberalen Kapitalismus

The Knowledge of Debt: Law, Media Technique, and Everyday Experience in Liberal Capitalism. Performing an object such as ‘the economy’ hinges on practices of formatting knowledge. The article proposes to look at such instituting moments in connection with social conflicts over the legitimate rules of exchange. This is exemplified by way of recounting the story of the codification of Swiss bankruptcy law in 1889. In order to homogenize the legal procedures of debt collection and bankruptcy, two subject categories were instituted: ‘merchants’ and ‘non-merchants’. These different categories were thought to account for the diverging temporalities and spaces of credit exchange in everyday economic life. The introduction of the commercial register, a media-technical apparatus, enabled a formal distinction between ‘merchants’ and ‘non-merchants’. However, this boundary was contested and proved to be porose.     

‘Because their patron never dies’: ecclesiastical freedmen,socio-religious interaction,and group formation under the aegis of ‘church property’ in the early medieval west (sixth to eleventh centuries)

In the early medieval west, patronate, as adapted from Roman law, was a fundamental category in determining the legal status of freedmen. In many cases it entailed a basic set of obligations. In an increasing number of situations, however, the patron became an ecclesiastical institution, since slaves and freed persons were often given to churches and monasteries. As ecclesiastical institutions regarded their patronal rights over freed persons as part of inalienable church property, the patronal relationship became permanent and inheritable. In Eastern Francia (the Rhineland and beyond) this transformed ecclesiastical freedmen into religiously defined social groups with potentially distinct aims, religious tasks, and organizational structures, and a shared notion of freedom. From the Carolingian period onward, it even became attractive to enter voluntarily into this status. It is argued here that with its underlying network of socio-religious relations, patronate over ecclesiastical freedmen and censuales can be better understood when considered as an element of a ‘temple society’.     

God,Justice and Society

Abstract

This non-evaluative overview of God, Justice, and Society: Aspects of Law and Legality in the Bible summarizes Jonathan Burnside’s introduction to biblical law and his demonstration of its value as a resource for modern legal issues     

Clinton,Congress, and Cuba Policy Between Two Codifications: The Changing Executive-Legislative Relationship in Foreign Policy Making

We examine the changing dynamics of institutional control over U.S. policy toward Cuba that have played out during the time between two codifications of Cuba policy: The 1996 Helms-Burton legislation that codified the long-standing embargo policy as law, and the 2000 bill that wrote travel restrictions into law. The study of who makes U.S. foreign policy has long been characterized by a debate over the respective roles of the president and Congress in this area, but-in theory, at least-Helms-Burton should have put an end to the scholarly debate about who makes Cuba policy: With codification, Congress does. But the practice of making Cuba policy has been more complicated than it might have first appeared in March 1996. We track the politics of Cuba policy between these two codifications and try to understand what they mean for who makes Cuba policy now, and speculate about what these dynamics may more generally mean.     

Legislating the Melanesian Way: Bernard Narokobi and the Law Reform Commission of Papua New Guinea

Abstract

A common criticism of Bernard Narokobi is that his vision of the ‘Melanesian Way’ was vague and imprecise. This article argues against this claim by describing the activities Narokobi undertook as the head of the Law Reform Commission of Papua New Guinea (1975–8). Using the example of his suggested revision of adultery laws, this article shows that Narokobi realized his abstract vision of the Melanesian Way in the most concrete and specific way possible: by attempting to reform the law. Much of Narokobi's legal reform work was unsuccessful, but a full understanding of his philosophy can only be achieved by reading his legal work alongside his published writings like The Melanesian Way.     

‘A Beautiful Fiction of Law’: Rhetorical Engagements with Terra Nullius in the British Periodical Press in the 1840s

This paper analyses two critiques of the jurisprudential basis of settler colonialism in Australia published in the early Victorian periodical press. Review articles in the North British Review and Fraser's Magazine in the 1840s deployed claims of legal sophistry to dispute the fiction that Australian colonies were settled, rather than conquered, and that the country was a terra nullius. By examining the politics and rhetoric of each article, the significance of legal ideology for both literature promoting colonization and humanitarian critiques of colonial policy is assessed. Through a combination of discourse analysis and intellectual history, the North British Review article is read as fusing Scottish Enlightenment concepts of social evolution with the rhetoric of sensibility to defend the existence of Indigenous rights to land and to argue for the degenerative implications of colonial social practices. Similarly, the Fraser's Magazine article offers an epitome of the place of law in colonial policy-making by invoking utilitarian and pragmatic approaches to law to rationalize doctrines of sovereignty and jurisdiction, minimizing legal protections for Aborigines while maximizing the legal powers of colonists. By tracing the use of jurisprudential rhetoric in reviews published in two leading metropolitan journals, the paper offers evidence that the literary sphere contributed to the emergent culture of colonial legality.