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Empire of the Rule of Law

Christian R. Burset, Redefining the Rule of Law: An Eighteenth-Century Case Study, 70 Am. J. Compara. L. 657 (2022).

There is a traditional narrative about law and legality that scholars have told, in various forms, since the late nineteenth century.1 In this telling, generalized, formal law emerged as an institutional response to sociopolitical flattening and socioeconomic distancing. As societies transitioned from “status to contract,” abandoning traditional hierarchies in favor of ideals of individual equality, formal equality before the law became more attractive.

Similarly, as economic activities expanded beyond the horizon of closely knit social networks, the institutional need for stranger-oriented transactions and collaboration created immense demand for formal legal institutions that supplied uniformity and reliability across highly diverse socioeconomic terrain.2 Correspondingly, new ideas of “law,” “legality,” and “the rule of law” emerged.

What has too often been missing from these narratives is a compelling account of the transition itself: how socioeconomic need translated into concrete political, intellectual, institutional change. The idea that demand produces supply over the long term may well be correct, but the specific mechanisms of that supply nonetheless deserve careful study, not least because it tends to affect the final institutional product in both form and substance.

In Redefining the Rule of Law: An Eighteenth-Century Case Study, Christian R. Burset provides a precisely argued, expertly documented, and intellectually sophisticated account of one such mechanism. Through an examination of legal-political dialogue in the eighteenth-century British empire, Burset demonstrates that the specific experience of colonialism generated much of the intellectual and political energy behind modern “rule of law” ideals that have gained both dialogical and institutional dominance in the Anglosphere.

While there was indeed a “rule of law” tradition that had been developed “organically” in Britain, it was a qualitatively “thicker” tradition that often indulged in nationalism and therefore emphasized British uniqueness. It was the British empire’s legal extension into its colonies, North American, Indian, and other, that decisively swung legal-political discourse towards a “thinner,” more abstract “rule of law” ideal that later become the paradigm for modern legality.

Burset’s account offers a clear “before and after” contrast. In the “before” paradigm, which his article traces to Whiggish discourses of the seventeenth century, “rule of law” was not the rule of any law that met generalized criteria, but rather a very specific ideal that was closely tailored to British institutional realities. In this formulation, the ideal had “three core features” (P. 664): first, it was “institutional specific,” in the sense that it identified not with abstract principles but with concrete British legal institutions such as juries, habeas corpus, and freehold land tenure. Second, it was often unabashedly nationalist, juxtaposing British law with negative comparisons to foreign systems. Sometimes, the “other” was the French, whose politicized judges were contrasted with supposedly neutral English juries. In other contexts, the “other” could be Spanish regimes or Asian ones. Sometimes, the comparison was not geographical but temporal, between Whig legality and England’s Stuart past.

Third and perhaps most importantly, the traditional ideal was “thick,” in the sense that it “incorporated substantive goals for society.” (P. 665.) The “rule of law” was not merely the dominance of formalized laws over amorphous politics, but more importantly the rule of good laws—laws that pursued the common good of all British subjects. Specifically, it meant the application of law to protect a measure of freedom, secure property, and equality for qualified subjects, and furthermore to promote Protestantism and the growth of industry. Law therefore became fundamentally intertwined with core religious, political and economic components of British identity.

Compared to this highly historically contextualized “before” paradigm, the “after” paradigm that Burset lays out hews much closer to modern ideals of abstraction and generalization. By the eighteenth century, a new, “thinner” ideal of the “rule of law” had become influential among legal commentators and political actors. Centering around notions of legal certainty and generalizability, this new ideal cast doubt on a number of traditional British legal institutions, including bills of attainder and even the use of judicial precedent itself.

Although not all traditional institutions appeared deficient under this new theory of law, enough did that, by the late eighteenth century, the dominant view among jurists was that British law was “defectively uncertain” (P. 672) and “potentially inconsistent with the rule of law.” (P. 678.) To be sure, ideals of certainty and generalizability played some role even in the traditional, thicker notion of “rule of law,” but there, they were negotiable aspirations, and could be occasionally diluted without perceived damage to the foundations of legality. (P. 677.) The new ideal essentially elevated them to the status of fundamental, inviolable principles, without which the entire enterprise of law and legality would collapse.

This meant, of course, that the new ideal had to drop some of the thicker components of the old ideal: given the perceived failings of traditional British legal institutions, overt nationalism gave way to more politically neutral perceptions of legal functionality. Theoretically, the new ideal would be able to accommodate concepts of the common good, but on that dimension, too, the British system was now recast as a work-in-progress. As a result, “rule of law” now became a thinner and more abstract concept, something anchored in intellectual principles rather than institutional reality.

But what mechanisms bridged this transition from before to after? Here, Burset’s article gestures towards a number of classic explanations, including the demand-supply narrative discussed at the outset of this review, but ultimately, Burset identifies the British colonial experience with legal pluralism as the indispensable force behind the shift. Starting in the eighteenth century, the British Empire began to accommodate more forms of legal pluralism in its colonies, choosing to recognize local laws and customs as legitimately enforceable rather than to force compliance with British law. Much of this was, of course, by sheer functional necessity: as became increasingly obvious with the territorial expansion of the empire, exporting British law to all of its corners required enormous amounts of fiscal and administrative investment, and all too often produced worse outcomes, in terms of socioeconomic order and compliance, than simply preserving local institutions. Correspondingly, British politics came to tolerate, even embrace a more decentralized mode of legal and political governance, thereby producing enormous amounts of institutional pluralism in the empire’s peripheries.

These on-the-ground realities demanded a certain amount of intellectual accommodation by jurists. If only traditional British law met “rule of law” standards, then the kind of legal pluralism that was now proliferating across the colonies clearly fell short of those standards, and in fact offered no hope of ever reaching them. This was a problematic idea for British elites to digest, committed as they were to the self-aggrandizing belief that they were exporting civilization and progress to the colonies.

Under these kinds of intellectual pressures, the new, “thinner” and more abstract ideal of “rule of law” as certainty and generalizability gained enormous appeal. It allowed legal and political commentators to characterize colonial legal pluralism simply as variations of “the rule of law,” thereby preserving the idea that empire and conquest were forces for progress and civilizational elevation. At the same time, this broader ideal synergized with a new, more cosmopolitan worldview among the British elite, in which they imagined themselves the masters of a universal global enterprise, rather than merely the guardians of a parochial local tradition.

Burset’s article echoes recent trends in legal history, international law, and comparative law, in which developments at the peripheries of empire have powerful feedback effects on its center. What distinguishes his account, however, is its extension of that feedback effect to the very core of British legal identity—not merely to specific institutions or politics, but to the very highest ideals of legal discourse. If “the rule of law” is the centerpiece of legal modernity, then at least one highly influential strand of its initial formation was built upon the experience of imperial expansion and governance.

This is a very powerful idea, one that Burset illustrates with due precision and empirical care. His core actors are, for the most part, familiar legal figures like Blackstone or Mansfield or major political figures like Mostyn or Hastings, but given the article’s focus on elite discourse, this is a fully defensible move. Within that rarefied sociopolitical world, the article excavates ideas and dialogues in a fairly muscular fashion, drawing out intellectual patterns, some extending across multiple decades, in a fairly direct and unapologetic fashion. Nonetheless, when the occasion calls for finesse and subtlety, such as in the temporal contrast between traditional and modern ideals of “rule of law,” the article generally supplies them with considerable skill.

One cannot help but wonder about the potential generalizability of Burset’s thesis: the experience of empire was a common one among eighteenth- and nineteenth-century Eurasian powers, and the move towards a more abstract ideal of law and legality was certainly not a uniquely British experience. One wonders, therefore, if the encounter with and toleration of institutional pluralism—something of a basic necessity for any aspirational imperial power, given the resource constraints of eighteenth-century states—had a similar effect elsewhere, pushing elite legal discourse across Eurasia, or at least Europe, in a more cosmopolitan and intellectually abstract direction. At least one other recent work on legal history, Natasha Wheatley’s The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty also points in this direction, offering an account of Hapsburg legal-political discourse as responding to experiences of institutional diversity created by empire.

Burset’s article also offers some fairly compelling insights at the level of political theory. It shows, for example, how ideological change in the realm of law occurred not in direct response to slow, gradual shifts in domestic socioeconomic circumstances, but rather to short bursts of major realignment in geopolitical position. The article does not exactly rule out the former, but it does illustrate the latter’s arguably superior political salience among British elites.

Moreover, it demonstrates the importance of internal coherence to political worldviews: to a large extent, the shift to modern “rule of law” ideals came as a result of elite ideas working themselves into a coherent, self-reinforcing whole, in which different components—about law, about imperial governance, about “Britishness”—tended to mutually support each other. Both of these insights resonate powerfully with recent research on the formulation and sustenance of political ideologies, in which ideological change happens in lurches rather than gradually, with long periods of self-entrenching cohesion in-between.3

In an era where much historical writing no longer speaks to broader issues of causality and theoretical mechanism, Burset’s article offers a refreshing divergence from the norm, tackling those issues head-on, but without sacrificing empirical richness or analytical care. It is a significant achievement, one that deserves widespread attention and engagement among the legal historian community and beyond.

  1. E.g., Max Weber, Economy and Society: An Outline of Interpretive Society (1978); Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (1944).
  2. These ideas have recently become particularly influential in the history of the corporation. E.g., Ron Harris, Going the Distance: Eurasian Trade and the Rise of the Business Corporation, 1400-1700 (2020); Taisu Zhang & John Morley, The Modern State and the Rise of the Business Corporation, 132 Yale L.J. 1970 (2023).
  3. E.g., David Armitage, The Ideological Origins of the British Empire (2000); Taisu Zhang, The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions (2023).
Cite as: Taisu Zhang, Empire of the Rule of Law, JOTWELL (March 1, 2024) (reviewing Christian R. Burset, Redefining the Rule of Law: An Eighteenth-Century Case Study, 70 Am. J. Compara. L. 657 (2022)), https://legalhist.jotwell.com/empire-of-the-rule-of-law/.

The Invention of the Abortionist

In the aftermath of Dobbs v. Jackson Women’s Health Organization, abortion is once again a crime in large swaths of the United States. Abortion opponents have taken a particularly keen interest in criminally punishing physicians and other abortion providers. Nicholas Syrett’s masterful study of the nation’s most famous “abortionist,” Madame Restell, is at once the story of a significant and poorly understood woman and an illuminating origin story of criminal abortion laws. Restell, née Anna Lohman, was born in England in 1812 immigrated to the United States, and became a single mother before at some point gaining medical training and reemerging as Madame Restell, an unapologetic and famous “female physician.”

Syrett offers a compelling portrait of Restell and the wide range of patients she served. The Trials of Madame Restell also tells the story of the reporters, anti-vice activists, and prosecutors who invented “Restell,” the abortionist who embodied a form of moral decay that her critics called “Restellism.” (P. 2, 58.) Syrett’s book brings to life the world of nineteenth-century New York. Yet despite—or perhaps because—Syrett’s story is deeply rooted within a particular time and place, The Trials of Madame Restell feels all too relevant to post-Dobbs America. Syrett captures the complexity of both pregnancy and its medical treatment, as well as the way that politicians, social movements, and prosecutors deliberately blind themselves to this nuance.

Madame Restell has inspired a number of impressive studies, including Jennifer Wright’s Madame Restell: The Life, Death, and Resurrection of Old New York’s Most Fabulous, Famous, and Fearless Abortionist, which appeared the same year as The Trials of Madame Restell. While Lohman, like many of her contemporaries, had no medical license or obvious formal training, Syrett makes the revealing choice to refer to Restell as she saw herself: as a female physician, “a female practitioner who saw women patients, like midwives had been doing for centuries.”(P. 6.) He draws upon meticulous spadework to tell the story of Anna Lohman, mining sparse records to paint a complex portrait. Syrett’s Restell is one of a kind, a compassionate provider and ambitious businesswoman, but she is also something entirely ordinary, a midwife, who assisted with contraception and childbirth as much as abortion. Syrett acknowledges mysteries surrounding Restell that historians have not yet conclusively resolved—where Restell learned her trade, for example, or what she thought in private moments.

But The Trials of Madame Restell is at much a story of Madame Restell’s era as it is a biography of a single figure. Anna Lohman could become a figure of nationwide notoriety, Syrett writes, because her career coincided with a moment when changes to Americans’ reproductive lives, together with challenges to gender roles and growing urbanization and immigration, inspired a backlash, and ultimately a campaign to criminalize abortion. Restell became the living symbol of “abortionists,” Syrett shows, not only because of her extraordinary success—she had a lavish mansion on Fifth Avenue and did nothing to hide her wealth (P. 223)—but because she defended herself, and at least by implication, the women who sought to manage their fertility. Restell’s advertisements appealed to married women whose health was threatened by pregnancy. Faced with prosecution, she wrote letters to the public defending herself. She thus made herself a target, Syrett convincingly argues, by openly justifying changes to gender roles and reproduction that many preferred be left unspoken.

The Trials of Madame Restell also offers rich portrayals of Restell’s business rivals and patients, many of whom she charged on a sliding scale. (P.56.) Tellingly, Restell and her clients saw her services—abortion, contraception, childbirth, and brokering adoptions—as interrelated, the natural jobs of a “female physician.” Syrett contrasts this understanding with the one developed by Restell’s chief antagonist, Anthony Comstock, the most visible leader of the then-burgeoning anti-vice movement. Comstock helped draft the eponymous 1873 Comstock Act, a federal statute criminalizing the mailing of a vague category of obscene materials, including contraceptive and abortion-related items.

In some ways, Comstock and Restell were cut from the same cloth: both were self-made celebrities and unapologetic about their views. It was for this reason, Syrett suggests, that Restell so infuriated Comstock: she unashamedly embodied the ongoing changes in women’s lives that he railed against. Comstock secured a serious conviction against Restell by changing New York obscenity law—lobbying alongside the New York Young Men’s Christian Association—and, more generally, by changing how men in New York understood her work. Abortion and contraception, Comstock urged, were not part of the standard repertoire of a female physician but antithetical to women’s sexual purity and family obligations. Converting Restell from a female physician into an abortionist was a necessary step for those seeking to convict her.

Restell’s suicide brought a tragic end to a complex and consequential life. Comstock, Syrett reminds us, would brag not only about bringing down Restell but also about encouraging her to take her own life. But The Trials of Madame Restell shows that her legacy lives on. For activists like Comstock, Restell was a convenient symbol of what they called the abortionist: someone who helped women escape the consequences of nonprocreative sex and made a handsome profit in doing so. For patients of her generation, Restell symbolized the opportunity to shape a different life through managing reproduction. And in the years beyond, Restell’s words lived on. As one of the rare nineteenth-century voices questioning the wisdom of criminalizing abortion or contraception, she remained an example to later mobilizations.

Syrett’s Restell emerges as both a singular figure and the product of the period in which she lived, and yet her story has all too many parallels to today. Contemporary anti-abortion groups seek to revive the Comstock Act as a de facto ban on all abortions, while conservative politicians seek to replicate Comstock’s feat of stigmatizing abortion providers as aberrational rather than regular physicians. Supporters of abortion rights have sought, like Restell, to normalize abortion as a medical service and to position it as a part of a broader agenda for reproductive autonomy rather than a stand-alone issue. As Syrett reminds us, we may still be living in Madame Restell’s America more than we would care to admit.

Cite as: Mary Ziegler, The Invention of the Abortionist, JOTWELL (January 30, 2024) (reviewing Nicholas Syrett, The Trials of Madame Restell: Nineteenth-Century America’s Most Famous Female Physician and the Campaign to Make Abortion a Crime (2023)), https://legalhist.jotwell.com/the-invention-of-the-abortionist/.

Insights for U.S. Law Professors in the History of Cuba

Ada Ferrer, Cuba: An American History (2021).

On the day in 1853 when Franklin Pierce was inaugurated as president of the United States, his vice president, William Rufus King, took the oath of office remotely—from his sugar plantation in Cuba, where he was dying of tuberculosis. An Alabama cotton planter, King also owned an estate on the island and was resting there in the hopes (which proved futile) that the tropical air might cure him. As Ada Ferrer writes when recounting this anecdote in her awe-inspiring, Pulitzer Prize-winning work, Cuba: An American History: “The story of the inauguration of an American vice president in Cuba is unexpected” (P. 109).

I’ll say! As the holder of an advanced degree in U.S. history, I would like to think I know a little bit about the twists and turns of American designs on Cuba, but I must admit I did not know this story. As Ferrer goes on to explain, “the spectacle of an Alabama slaveholder taking office as vice president of the United States in the heart of Cuban sugar country” is not merely a fun piece of historical trivia but exemplifies just how intertwined the island and its northern neighbor have always been throughout their respective histories, initially through the economic system of slavery and also through the persistent dreams of prominent Americans that the United States might one day annex Cuba as a territory (Pp. 109-10).

In the prologue, Ferrer aptly describes her book as “a history of Cuba that functions also as a kind of history of the United States” (P. 6). The book’s organizing theme is the two-way (if “uneven”) relationship between the two countries (P. 3). Today, decades into the post-revolutionary period, the full complexity of that relationship has been obscured in popular understanding. While many Americans may recognize the influence of U.S. policy on Cuba, Ferrer posits that they are unaware of Cuba’s full significance as a reciprocal influence upon U.S. history: “The exigencies of the Cold War meant that for decades Americans generally understood Cuba primarily as a small—if dangerously proximate—satellite of the Soviet Union” (P. 5).

Ferrer’s magisterial work includes an excellent overview of the relevant Cold War history, but also makes clear that the 1959 revolution can only be fully understood within the context of the full sweep of Cuban history. The book is panoramic, chronicling Columbus’s arrival, empire and slavery, the Spanish-American War, Fidel Castro’s rise to power, the fall of the Soviet Union, and Castro’s death in 2016. While accessible to a general readership, it also serves as a helpful synthesis of the literature for scholars who are not Cuba specialists.

It is also beautifully written. Ferrer, who emigrated from Havana to the United States as an infant, weaves into the narrative pieces of her own family story, but only intermittently and always in an inobtrusive and enlightening manner. Thus, beyond its Cuba-specific insights, this book also offers a model for how to incorporate a personal voice into scholarly writing.

Cuba is packed with rewarding insights for many different audiences and types of readers. I myself enjoyed and learned a lot from the book on many different levels. In the remainder of this jot, however, I want to highlight two reasons why I found the book thought-provoking on a professional level, as a law professor and legal historian of the twentieth-century United States.

First, the chapters on twentieth-century Cuba, from independence and the transition into a republic through the Castro revolution, are packed with legal and constitutional history. Because I teach constitutional law courses covering the Fourteenth Amendment, which contains the U.S. Constitution’s guarantee of equal treatment, I was especially interested to learn more about Cuban efforts to write equality into foundational legal texts. Cuba’s 1901 constitution declared: “All Cubans are equal before the law.” But the 1940 Constitutional Convention added a provision criminalizing discrimination: “All discrimination due to sex, race, class, or any other motive harmful to human dignity is declared illegal and punishable. The law will establish sanctions for those who violate these norms” (P. 254). Black Cuban leaders argued that a formal declaration of equality was insufficient without an explicit commitment to enforcement. Even with that additional language, this and other progressive provisions still went largely unenforced, although Ferrer notes that the 1940 constitution “became an outsized presence in Cuban politics”; leaders—including Castro—rallied support by trumpeting “their commitment to making it real” (P. 258).

After the revolution, communist leaders sought to mandate equality even within the most intimate relationships. The 1975 Family Code, for example, defined marriage to require “equal rights and duties for both partners” and required families to divide household tasks “according to the principles of socialist morality” (P. 390). It will probably not surprise Jotwell readers that such decrees did not produce marital utopia, but Ferrer includes fascinating material about how Cubans debated, questioned, made sense of, and lived under such reforms. The revolution prompted “abstract debate about human nature itself”—could the state turn Cubans into “new people,” liberated from all of their traditions?—as well as a variety of more specific debates about “concrete government policies on labor, education, and the economy” (P. 395).

These examples are just two of many episodes that made me eager to think about how my teaching on U.S. legal history could be enriched by assigning students some comparative reading from other legal traditions. Second and more generally, the book prompted me to wonder what U.S. legal history might look like if more of the research in the field was pan-American in scope. (To be sure, there are many historians who do take transnational perspectives, but my own work has heretofore been fairly parochial; as Taylor Swift would say, “I’m the problem.”) What U.S. legal histories, I wonder, might we write through the histories of other countries (and vice versa)? That question is among the many that this book left me with, and I finished reading newly energized to expand my own horizons as a legal historian.

Editor’s Note: Reviewers choose what to review without input from Section Editors. Jotwell Legal History Section Editor Sara Mayeux, had no role in the editing of this article.

Cite as: Sara Mayeux, Insights for U.S. Law Professors in the History of Cuba, JOTWELL (January 3, 2024) (reviewing Ada Ferrer, Cuba: An American History (2021)), https://legalhist.jotwell.com/insights-for-u-s-law-professors-in-the-history-of-cuba/.

Thick and Thin Rules

Rules are everywhere. Given not only the immense variety of rules, but also the great variety of registers through which rules might be understood, one might well ask: is a historical account of rules even possible? In Rules: A Short History of What We Live By, the historian of science Lorraine Daston takes on this daunting task.

Even as she restricts herself largely to the Euro-American world, Daston ranges across a truly dazzling array of rules: rules of conduct in medieval monasteries; the forms of ancient and modern algorithms; the changing structure of recipes in cookbooks; sanitary and traffic regulations in early modern cities such as Amsterdam, London and Paris; the changing rules governing work; the rules of language and grammar; the relationship between law and equity; the emergence of ideas of natural law and laws of nature; the career of casuistical reasoning; notions of sovereign exceptions in political theory; and a great deal more. This is in itself a considerable scholarly achievement.

But Daston offers a great deal more: she advances a broad and suggestive account of historical change between pre-modern and modern rules. According to Daston, pre-modern rules consisted of what she calls rules-as-models. One began with a model or a case, something recognized as particular, specific, and rooted in context, and then used it to order something also recognized as particular, specific, and rooted in context. The application of rules-as models to new problems and situations thus entailed a move from particular to particular, bringing with it a sensitivity to context, an awareness of exceptions, and an acceptance of discretion in applying rules.

Pre-modern rules were “thick” rules, incorporating into their forms the lived realities of their origins and applications. By contrast, modern rules are rigid rules, devoid of exceptions, limits, and qualifications, insensitive to contexts and specificities, embracing the pretention that they can be applied to anything and everything. The realm to which modern rules are applied is a kind of passive material, something to which rules are applied, rather than a universe of specific cases that can speak back to the rules and modify their application through discussion, judgment, and the exercise of discretion.

Indeed, when it comes to modern rules, the discretion that was inevitably part of the application of pre-modern rules-as-models tends to be viewed with suspicion as something to be excised or at least minimized. Modern rules are “thin” rules. For legal scholars, if they keep in mind that the analogy is rough and inexact, a helpful way of thinking about the distinction between “thick” versus “thin” rules might be the distinction between the common law and codes.

Daston is far too sophisticated a historian to insist on any clean historical transition from “thick” rules to “thin” ones. Indeed, she argues that her object in tracing the historical transition from “thick” rules to “thin” ones is not only to tell us a story of change over time. Her object is at least as much to offer an account of when “thick” or “thin” rules are likely to arise and predominate. As she puts it:

This book has traced a historical arc that partially justifies the distinction between pre-modern and modern rules, but only partially.

The chronological terms pre-modern and modern distract from the underlying pre-conditions of stability and standardization that are more domain- than period-specific. Wherever pockets of predictability and uniformity emerge, thick rules can be slimmed down into thin rules; flexible rules (as all thick rules must be) can stiffen into rigid ones” (P. 266; emphasis in original).

In other words, when man creates “pockets of predictability and uniformity,” “thin” rules predominate. Where predictability and uniformity are more elusive, “thick” rules are likely to do so.

According to Daston, the modern West has generated (or at least entertains the conceit that it has generated) more and more “pockets of predictability and uniformity.” As a result, it has sidelined “thick” rules, with their sensitivity to context and their appeal to discretion, in favor of “thin” ones. For Daston, this is an undesirable development. This is because hers is not simply a historical account of how “thick” rules give way to “thin” ones, or even an account of when “thick” and “thin” rules are likely to predominate, but ultimately an expression of a strong preference for “thick” rules.

Daston offers several reasons for her preference. First, the zones of stability in which “thin” rules work well are, she argues, inevitably fragile. Their failure—and our ensuing lapse into conditions of instability and uncertainty—mean that we inevitably turn to “thick” rules. Second, “thick” rules seem to be better than “thin” ones because they encourage human creativity and thought. Because they keep us shuttling between specificities, “thick” rules keep us alert, compelling us to be ever awake to the multiple possibilities they present. Third, Daston argues that “thick” rules are simply more efficient than “thin” ones. Thus: “[F]ollowing models remains a more efficient and flexible way to learn than following explicit rules” (P. 272).

Finally, in Daston’s account, we get occasional flashes that we might even be “hardwired” for “thick” rules. This comes out, for instance, in Daston’s discussion of the frequently doomed attempt to rationalize spelling rules. Why is it, she asks, that there has been such vociferous opposition to getting rid of older spelling rules laden with exceptions and idiosyncrasies and replacing them with “thin” ones that better track sounds? Daston’s response: “Cognitive psychologist Stanislas Dehaene argues that learning to read colonizes parts of the brain originally devoted to facial recognition” (P. 206). In other words, our brains apprehend words in a holistic way, as “thick” specificities irreducible to “thin” rules.

One does not need to share all of Daston’s investments in “thick” rules to admire (and learn from) her account of rules-as-models. We are always in need of more ways of doing things, better ways of thinking through our many problems. To the extent that history can furnish us with models for how to think and work differently, Daston’s rendering of rules-as-models as thinking from particulars to particulars is brilliant, intriguing, and generative. Why not see early modern casuistry anew and recognize its usefulness for our world?

That said, one could raise a few questions about Daston’s account.

To begin with, it would be interesting to know whether the premodern purveyors of “thick” rules themselves viewed them the way Daston does. Were “thick” rules seen as “thick” or just as rules? Were they viewed as better ways of thinking? Was there a sense that they were more efficient? If so, relative to what? It might be impossible to tell in many instances. But I suspect that it is likely that the appreciation of “thick” rules qua “thick” rules is something that only becomes available in a modern world in which a contrast with “thin” rules becomes ever more pronounced. There are no “thick” rules without “thin” ones.

To the extent that Daston’s appreciation of “thick” rules only makes sense relative to “thin” rules, her account can be further complicated on the ground that many of her particular claims about “thick” rules—about their inevitability, their rootedness in our cognition, their generative powers, their superior efficiency—might be made (and have been made) with just as much fluency and energy and enthusiasm about “thin” rules. For Anglo-American lawyers, the endless nineteenth-century debates between codifiers and common lawyers are a case in point. Daston’s account is a tilted in one direction, but it could just as well have been tilted in another.

Given that the very same attributes can be attached as often to “thick” as to “thin” rules, we might come up with a more nuanced picture of “thin” rules. This is not merely because the modern world of “thin” rules might have struck its rationalizing partisans as a salutary step away from the “thick” rule-bound world of royal favors and papal indulgences. In Daston’s account, “thin” rules make sense in zones of uniformity and predictability (which, she argues, inevitably fail us). Where uniformity and predictability are missing, she argues, we need “thick” rules, we need to work from particularity to particularity.

But precisely the opposite might be true. The world of the rule-as-model that Daston celebrates was a relatively circumscribed world in which the rule-as-model worked best when its possible “applications” were not terribly different from it to begin with. This was, ultimately, a world of uniformity and predictability. The pious abbot in the medieval monastery could be a model for other monks. The master craftsman’s world of highly specific, exception-laden techniques rested on presumptions that his apprentices shared his background and could understand the interplay of rule and exception. But in the modern world, with its breaking down of the boundaries of the local and familiar, rules-as-models might have worked less well. Rules-as-models might not have translated across far-flung territories and societies. What was needed was, precisely, the “thin” rule, the rule that could travel.

This was not necessarily a rule that disdained context, as Daston suggests, but rather a rule designed for a world of many contexts, where the old rules-as-models might not serve. There is a lesson here in the fate of the common law in the Anglo-American world around 1900. When it came to substantive law, common lawyerly precedent-based jurisprudence—a set of “thick” rules, if there ever was one—ceded to a set of thinner “procedural” rules so that substantive law-making became the preserve of legislatures and administrative agencies in the twentieth century. But this was because common law judges were simply not up to the task of judging in a complex world in which the common law’s individual-centered, fault-based doctrines were increasingly inapposite. In a wider and more complicated world, “thick” rules could simply not do the job.

The point of my observation is that “thin” rules might be as useful and efficient—perhaps even as worthy of celebration and romantic attachment—as “thick” ones. Daston will agree that context should guide us.

Cite as: Kunal Parker, Thick and Thin Rules, JOTWELL (November 17, 2023) (reviewing Lorraine Daston, Rules: A Short History of What We Live By (2022)), https://legalhist.jotwell.com/thick-and-thin-rules/.

Looking Beyond the Common Law

Lorren Eldridge’s Law and the Medieval Village Community is a call to historians of English law to return to the study of local, community-generated customary law, a type of law that governed the lives of many of England’s people, but that has been pushed to the periphery in favor of the study of the common law. Eldridge presents the medieval village as a space where customary law was generated, a customary law that, while it was informed by the common law made in the king’s courts, differed from it in important respects.

Law and the Medieval Village Community is as much about the historiography of the village community as it is about its history, and Eldridge has a knack for making historical debate exciting and relevant. She tells the story of how scholars of English law, who once saw the village community as central to the history of English law (and indeed to contemporary legal theory), turned away from the village in the early twentieth century in favor of the records of the central royal courts. This shift proved enduring and has yielded a distorted picture of English law, generating a historiography that focuses on elite spaces and elite litigation to the exclusion of the law that was used and created in local communities.

Frederic William Maitland, as one of the few nineteenth-century scholars whose work is still read by graduate students, has shaped the contours of scholarship in English legal history to an extent that is difficult to overstate. In the case of scholarship on the village community, however, Eldridge argues that Maitland’s influence has had something of a malign effect. Although Maitland was critical of the legal philosopher John Austin’s positivist view of the law, he inadvertently reproduced it in his work, treating the law created in the king’s courts as the “real” law of the realm and the custom that governed life in medieval villages as something that only became law if and when it was recognized by the king’s courts.

Why was Maitland so insistent that medieval village communities were not sites where “real” law was generated? The answer has to do with the context in which he was writing. Eldridge carefully situates Maitland’s work within contemporary debates over the village community. The medieval village community and its law had been central to a number of debates of the late nineteenth century, some of which were highly politicized. Maitland was responding specifically to scholars of the “Germanist” school, who thought that they could see the origins of modern democracy in autochthonous village communities. Maitland had legitimate reasons to be skeptical of this scholarship, but he overcorrected.

The story of the marginalization of village custom, as Eldridge tells it, was one of those contingencies of history: just as the history of English law was beginning to professionalize, Maitland, one of the main drivers of its professionalization, became involved in a political debate that caused him to elevate the common law and push local custom to the side. That choice has set the agenda for historians of English law ever since. As a result, the study of the village community would be taken up instead by social historians, who have over the past century done a brilliant job of describing the world of the English village. That world that was much more complex than the records of the king’s courts, which focus largely on the relationship between tenant and lord, would have us believe.

The social historians have not been as interested in the law these communities created, however, and this is where Eldridge calls legal historians to action. She looks at some ways in which the study of village custom might enrich our view of English law in the Middle Ages. The common law treated the unfree tenant as wholly subject to his lord’s whim, and beyond the protection of the king’s court. But a “general commitment to a legality principle” that “is evidenced throughout medieval English society, at all levels of hierarchy” meant that lords often abided by the decisions of their own manorial courts, applying village custom, even when those decisions went against their own interests (P. 170).

Eldridge also presents us with some examples of ways in which the custom applied in local courts could differ from the common law of the realm. To give just one example, Eldridge cites cases in which a condition that would have been void at common law was placed upon a conveyance and was considered perfectly valid in the context of a villein tenure transferred according to local custom (P. 304). When we tell the story of English land law in American property courses, we tend to draw the line back to the strict and technical rules of the royal courts, which applied to free tenements. Eldridge demonstrates that there was an alternate tradition of local custom that applied to a large percentage of the land in England and that was potentially more flexible in its application.

Eldridge’s book is at least in part a call to decenter the common law of the king’s courts in the story of English law, to view it as one part of a broader legal landscape that includes the customary law of the local village community. But Eldridge calls on us to do more than that. In the late nineteenth and early twentieth centuries, the study of the medieval village community was considered important to the construction of legal theory. Scholars believed that legal history could help us to answer big, theoretical questions such as whether property rights are “inherently individualistic” or whether law is “fundamentally a tool which facilitates co-operation, or perpetuates oppression” (P. 15). Eldridge encourages the reader to return to thinking about what legal history can offer to contemporary legal theory, to consider whether “the practice of law across time and space fit[s] with the theoretical or doctrinal models we use to describe ‘law’” (P. 17). As the second half of the title puts it, she calls on us to reinvigorate historical jurisprudence.

Cite as: Thomas J. McSweeney, Looking Beyond the Common Law, JOTWELL (November 1, 2023) (reviewing Lorren Eldridge, Law and the Medieval Village Community: Reinvigorating Historical Jurisprudence (2023)), https://legalhist.jotwell.com/looking-beyond-the-common-law/.

Complicated Continent: Pekka Hämäläinen and the History of Native America

Pekka Hämäläinen has written a startling book. Building on his earlier histories of the Lakota and Comanche, Hämäläinen’s Indigenous Continent tells the entire saga of Native America, recasting it not as a story of dispossession and defeat, but resistance and – amazingly – resurgence. The story is counterintuitive, a story not simply of white genocide and plunder but also of Indian power and influence, a story of a complicated group of peoples who fought against Europeans for over 400 years, and fight on today.

Beginning his story in 11,000 BC, Hämäläinen traces Native Americans back to Asia, showing how large groups of people left for North America by traveling across land bridges and along kelp highways. Such people formed large, centralized civilizations in places like the Colorado Plateau and the Mississippi River Valley, fostering large-scale agriculture, developing political/religious elites, and constructing massive monuments.

Then came climate change.

A “global cooling period” hit North America in 1300, argues Hämäläinen, forever changing indigenous life. “The Little Ice Age ushered in a new world,” he argues, “where almost everything had to be smaller: harvests, markets, settlements, mounds, alliances, and ambitions.” (P. 19.) Native America’s move to smallness led to a bewildering number of “decentralized, kinship-based, and egalitarian political regimes,” regimes that foiled European conquest and complicated European settlement. (P. 51.)

The sheer number of these “egalitarian political regimes” proved staggering. In Florida alone, for example, indigenous people divided themselves into Calusas, Timucuas, Apalachees, Miccosukees, Yamasees, Guales, and – finally – Seminoles. In New England, there were Wabanakis, Wampanoags, Nausets, Patuxets, Pequots, Abenakis, Algonquins, and others. By bringing together the histories of so many different groups, Hämäläinen tells a fascinating story about Native America that only tangentially involves Europeans.

In fact, Europeans emerge in Hämäläinen’s story mainly as pests. They encroach on Native land, take Native food, and make people sick. Only occasionally do they perform a service, usually by providing Native Americans with weapons.  For example, the Five Nations League “made peace with New France because they thought that the colony, beaten down as it was, could still be useful as a source of arms and goods.” (P. 114.)  Meanwhile, the Lakota policed the Missouri River, “forcing traders to pay for upriver access with guns, powder, lead, and other goods, turning the Missouri Valley into a tribute-leading yielding machine.” (P. 355.)

Hämäläinen shows that Indian power grew from the very “smallness” of North America’s “decentralized, kinship-based, and egalitarian political regimes,” which served to slow European conquest. This became apparent early on to the Spanish, who subjugated large Indian civilizations in Central and South America but struggled to conquer the more disperse, disaggregated indigenous communities of North America. “[H]ow could relatively small Native groups defy Spanish colonialism in the north,” asks Hämäläinen, “when the formidable Aztec, Inca, and Maya Empires had fallen so easily?” The answer, he suggests, was that North America’s “decentralized, kinship-based, and egalitarian political regimes made poor targets for imperial entradas.” (P. 51.)

Gradually, however, Native dependence on European arms proved detrimental to indigenous people. For example, “the Indian Confederacy and other Ohio Country nations joined forces to protect their lands,” notes Hämäläinen, “and they desperately needed British guns, powder, and lead to prevail.” (P. 332.) Out West, the “pent-up demand for guns, powder, lead, and metal tools, fueled intense rivalries for trading privileges in the upper Missouri Valley, where several Indigenous nations had suffered for years with unreliable access to European technology and goods.” (P. 353.)

Though Hämäläinen focuses mainly on violence, his story puts the legal history of Native America into new perspective. Did, for example, indigenous Americans use Anglo law much like they used guns? Hämäläinen shows clearly that once Native Americans acquired European weaponry, they then used that weaponry to advance their own interests, often against Europeans. The same might have held true for Anglo American law. Once Native Americans learned the law, they then used that law against Europeans as well. To illustrate, take legal historian Stuart Banner’s book How the Indians Lost Their Land: Law and Power on the Frontier, which shows that white/Indian land transfers in North America began primarily as sales thanks to legal fictions like “Indian title.” Was this European conquest? Or was this Native Americans using European law?  According to Hämäläinen, Native Americans desperately wanted European technology, and land proved one of the few things they could sell to get it. Considering that there were only five million indigenous people on the entire continent at first contact, this may have been a smart business strategy for Indians. Why not view it as such? If Hämäläinen is right, then Native Americans used Europeans. Not vice versa.

Gradually, of course, the federal government moved to discourage the direct sale of land by Indians to white settlers, moving instead to a treaty system by which Native Americans dealt directly with federal agents, as if they were foreign powers. According to Hämäläinen, “treaties became the United States’s most effective means to divest Native Americans of their land.” (P. 381.) That is the prevailing wisdom, to be sure. But if we adopt Hämäläinen’s own thesis and apply it to the legal history of white/Indian relations over time, a different conclusion arises. For example, Hämäläinen ends his book by showing that Native Americans retain over fifty million acres of federally protected land in the United States today, a number that breaks down to roughly 200 acres per person. Not the whole continent, certainly, but still more than most average Americans can claim.

And that was under the treaty system, not the land sale regime. Imagine, for a moment, that the federal government had never intervened and simply allowed private land sales between Native Americans and white settlers to continue. William S. Coker and Thomas D. Watson suggest that precisely such a scenario played out in Spanish Florida before 1819, when the Panton, Leslie, & Forbes Company began to extend credit to Native Americans and accepted land as collateral. Native Americans became completely dependent on the firm’s goods, struggled to pay back their loans and ended up losing one million acres in the process.

Spain never went down the treaty road, but America did. And Native Americans may have been smart to play along, shifting from one legal strategy to another. As Hämäläinen puts it, “the continent is speckled with hundreds of native nations that preserve Indigenous sovereignty and nationhood. Each of them embodies the centuries-long Indigenous resistance to colonial violence and expansion.” (P. 461.)

Of course, some might argue that Hämäläinen paints too rosy a picture of Indian resistance, but comparing Indigenous Continent to Banner’s How the Indians Lost Their Land remains an interesting exercise. Both books focus on Native American agency, and both books complicate the popular narrative that Native Americans were simply victims of white genocide.  Banner’s book is based largely on the nineteenth-century and is ultimately a legal story. But Hämäläinen goes back farther to a period when Native Americans used force, not law, to dictate terms. That period occupies seven out of eight sections of the book, providing detailed and at times disturbing accounts of the violent struggles between Native Americans and Europeans that filled the sixteenth, seventeenth, and eighteenth centuries. Even the nineteenth century, argues Hämäläinen, witnessed Native American dominance, as evidenced by the Lakota and Comanche Empires.

Looked at in the longue durée, maybe Native Americans played their cards more effectively than we have previously thought. And maybe law was just another gun.

Cite as: Anders Walker, Complicated Continent: Pekka Hämäläinen and the History of Native America, JOTWELL (October 2, 2023) (reviewing Pekka Hämäläinen, Indigenous Continent: The Epic Contest for North America (2022)), https://legalhist.jotwell.com/complicated-continent-pekka-hmlinen-and-the-history-of-native-america/.

The Unfinished Symphony of American Federalism

For months I have been carrying, wherever I take my briefcase, a captivating new book of American constitutional history and analysis which offers a brilliant lens for examining American federalism. That is because whenever time permits, I want to read, reread, and think about the book’s meticulous, original, deep research and the illuminating insights that the author has packed neatly within his single volume. My near constant companion has been Christian Fritz’s fascinating and exquisitely timely Monitoring American Federalism: The History of State Legislative Resistance. His book addresses in a fresh and comprehensive way the great unsolved conundrum of the founding of our republic: how America’s unprecedented theory of a federal system of dual sovereigns, involving national and state governments which are both empowered by the citizens of overlapping geographies, can and should work in practice.

Monitoring American Federalism is a rich source that likely will become an essential text about the distribution and exercise of constitutional powers for scholars and educators who are experts in the subject matter. Yet it also is accessible to a broader audience of readers, including those who wish to be better informed while navigating real contemporary questions about balancing federal and state power. This latest book by Professor Fritz, in my opinion, is a must-read for those interested in examining, questioning, teaching, judging, upholding, and more fully grasping the constantly evolving complexity of our brilliantly conceived but flawed, cantilevered, self-correcting constitutional democratic form of limited representative government, a model of government which depends upon the informed consent of the governed.

Caveat liber lector. Monitoring American Federalism is a serious book. It is no beach read. But it is both readable and compelling. Like the work involved in picking the delicious meat from steamed crabs, which inevitably prompts lively conversation in good company, as the Fritz book surely will do, it’s well worth the effort to read and be able to discuss this seminal work.

Fritz’s impressive book begins with the ratification process and the early days of the new nation, focusing on conceptual debates about how state legislatures might monitor and resist constitutional overreach by the national government. Fritz then traces in great detail several early examples of state resistance, moving forward in time from the founding through the antebellum period and the cataclysm of the Civil War. This in-depth analysis foreshadows his narrative about the major federal-state battles of the reconstruction era and the twentieth century, and it is also the foundation of his concluding thoughts about how our democracy might be maintained amidst the all too familiar existential threats it faces today.

Fritz’s unique contribution is to tell the largely untold story of the idea of using state “interposition” to “monitor” and when deemed necessary “sound the alarm” to challenge, within constitutional bounds, the law and policies of the national government. He defines interposition as a formal state protest designed to focus public attention and generate interstate political pressure to reverse the national government’s unconstitutional action. The author’s exposition of this idea is based upon a painstaking reading of mostly overlooked passages by Madison and Hamilton in the Federalist Papers, as well as post-ratification state resolutions and related correspondence between Madison and Jefferson. His historical analysis traces the lineage of interposition and vigorously rebuts the concept’s eventual bastardization by John C. Calhoun and others into justifications for state nullification and secession.

Three of the many richly illustrated perspectives afforded to this reader by Professor Fritz’s historical tour de force are:

–American federalism is an unfinished symphony. If it endures its final pages will never be written; at least not until or unless the beautiful but often dissonant clanging of our democracy expires under the weight of the existential challenges of our times. Fritz convincingly demonstrates that the precise balance of power between the national and state sovereigns was not decided by the founders, much less mapped out with clear boundaries, before, during, or immediately after ratification of the Constitution. Instead, it has always been and has remained to this day a fluid, evolving system. Properly understood, then, the essence of American federalism is not static but a dynamic process. This necessarily intentional ambiguous and flexible constitutional design is a strength, not a weakness, of our system of government.

— State legislative resistance, including “interposition,” has often, perhaps mainly, been associated with America’s original sin of slavery, and the history of unconstitutional misuses of state resistance represented by state nullification and secession from the union. Professor Fritz acknowledges and emphasizes this tragic history throughout his book.

However, Fritz also demonstrates that historically there have been many other instances of state legislative resistance, such as the ratification of the Eleventh Amendment to include state sovereign immunity in the Constitution; the ultimately successful effort to allow the Alien and Sedition Acts to expire; and both successful and unsuccessful acts of state opposition to taxes and tariffs. Such political initiatives have arisen from both Southern and Northern states, and more recently from both “red” and “blue” states. Cases such as state opposition to the Fugitive Slave Act demonstrate that interposition is not presumptively bad, contrary to Hamilton’s overwrought description of interposition to the National Bank as “the first symptom of a spirit which must either be killed or will kill the constitution of the United States.”

From the original form of legislative interposition as revealed and described by Fritz, to the various shapes it has morphed into over two hundred years, serious disputes have been resolved within constitutional parameters, without relying by default on a Supreme Court decision or on the use of force. Multistate driven conversations about contentious issues have led to political consensus by elected federal and state representatives of the people.This more nuanced understanding of state resistance comports with Justice Louis Brandeis’ famous observation that “states are the laboratories of democracy.” It also calls to mind the prodigious work of the late New York State Chief Judge Judith Kaye, who recognized that the federal system provides a dual source of protection for the rights of our citizens. Judge Kaye was a leading advocate for upholding individual rights and liberties through state constitutions.

Finally, Monitoring American Federalism offers ample reasons for being earnestly hopeful and committed to the hard work of sustaining our democracy. Our present political disagreements may appear unresolvable amidst seemingly unbridgeable partisan divides and institutional dysfunctionthat seemingly precludes solving the currently cascading threats to democracy, justice, the rule of law, equality, and the peaceful well-being of people and the natural world we share.

Nevertheless, the book reminds us that fraught political disagreements are nothing new. Another is that the history of interstate interposition and thinking about the memory of times past and recent, times when state and federal government officials including military leaders did their best to execute their duties and successfully upheld their oath of office to preserve, protect, and defend the Constitution of the United States, remind us that our complex, evolving federal system provides for appropriate avenues for political discourse and even resistance that comply with the Constitution. Unilateral state vetoes, nullification, and insurrection are not among them. Patience and time are required. America’s long-standing experiment with federalism by trial and sometimes error, rests on the acceptance of the sovereignty of the people. That constitutional premise in turn depends on the willingness and engagement of citizens to take their responsibilities seriously with respect to keeping abreast of what their government officials are doing and to exercise their right and duty to vote.

Professor Fritz’s book hardly will have the last word on the important path-clearing conversation he has initiated looking back and looking forward at American federalism. That is because, if for no other reason, his provocative constitutional history suggests multiple new lines of research and scholarly discourse about the origin, legitimate uses, relevance, and practical feasibility of what he calls “sounding the alarm state interposition.”

His work also suggests new possibilities for lawyers and legal educators as they engage in civic legal education and outreach to the public about the Constitution. After all, the people are empowered to interpose their views about government action by the protections afforded in the First Amendment. These rights are, like Professor Fritz’s understanding of interposition, avenues for advocating values, opposing illegal and corrupt exercises of power, and holding the government accountable. If the federal and state branches of government are the large instrumental sections in our constitutional orchestra, there are many others, thanks to the Constitution and the Bill of Rights, who can play key parts in the unfinished symphony of American federalism. Each performance of the Founders’ magnum opus ultimately relies on “we the people” to know the score, keep time, and conduct the players.

Cite as: Nick Allard, The Unfinished Symphony of American Federalism, JOTWELL (August 28, 2023) (reviewing Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (2023)), https://legalhist.jotwell.com/the-unfinished-symphony-of-american-federalism/.

Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives

Gregory Ablavsky & W. Tanner Allread, We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution, 123 Colum. L. Rev. 243 (2023).

What did indigenous peoples think of the Constitution at the time of its drafting and in the first decades following ratification? This is the intriguing question at the heart of a compelling new article by Gregory Ablavsky and W. Tanner Allread. The answers they provide to this question turn constitutional history in a new direction: rather than considering the relationship of Native peoples to the Constitution through the perspectives of Anglo-American drafters, we are asked to listen to the voices of Native peoples themselves as they scrutinized and debated the new Constitution and then eventually utilized it, despite their misgivings, to try to defend their rights to property and sovereignty. The article makes a strong case for expanding our definition of constitutional discourse to include the reactions and engagement of Native peoples, many of whom were well aware of the legal sea changes afoot during the Founding Era and were concerned about the impact of those changes on their communities.

Ablavsky and Allread are straightforward about their aims. They are interested not only in shedding light on the evidence of constitutional discourse – which they draw primarily from research on several well-known Native nations in the South, Midwest and Northeast – but also convincing readers of the broader theoretical and methodological payoff. As they write, “The goal is less to offer a definitive account than to provide proof of concept: to show that we can, in fact, incorporate these voices into our constitutional histories.” (P. 248.) Ultimately, the authors deliver on their promise, encouraging us to move outside of rigid formulations and consider the wider reach of constitutional discourse.

The article begins with a persuasive description of what the authors call the “diplomatic constitution,” a set of syncretic legal practices developed over two centuries of encounter between European colonists and Native peoples that predated the Revolutionary Era. To paraphrase Daniel Hulsebosch, this constitution “was not a thing” the way we think of constitutions today, but was instead a set of agreed-upon norms, practices and discourses that structured power and defined lines of authority between colonizers and indigenous peoples.1 At its heart were the widely adopted practices of diplomacy and negotiation that were vital to ensuring peace in a hybrid legal zone. While not always observed consistently, these principles and practices were generally acknowledged as the fabric governing relations between indigenous and colonial powers. All sides relied on it; as the authors note, “Native and Anglo-American leaders alike recognized it as a binding body of law that governed how their distinct communities were supposed to interact.” (P. 263.) The authors make a striking claim here, that will be of interest to historians and theorists alike: that the diplomatic constitution should be read alongside other sources of law, like English common law, natural law, and the law of nations, as informing our understandings of the U.S. Constitution.

The article next turns to the “native ratification debates,” describing the efforts of federal officials to convince Native leaders of the soundness of the new Constitution and the varying opinions of Native peoples who, like those involved in state ratification debates, sometimes had divergent views. Even though they could not vote to ratify the Constitution, indigenous peoples were nevertheless a key audience for those in the new federal government who sought to build support. The authors show how the diplomatic constitution directly influenced the ways that federal officials promoted the Constitution and Native peoples conceptualized it. The fear among Native skeptics was not that the federal government would be too strong – a common concern voiced in the state ratification debates – but that it would be too weak. Federal officials hastened to reassure Native leaders that the Constitution ensured a centralized federal government that would be able to protect them from incursions on their land and sovereignty by individual settlers and state governments.

After the Constitution’s adoption, Native peoples actively participated in promoting a vision of strong federal power and strong tribal sovereignty, qualities that were a direct reflection of principles enshrined in the diplomatic constitution. This interpretation became a matter of life or death in the years following ratification, as state governments sought to exterminate indigenous peoples or to banish them from their territory. Native leaders were active participants in challenging these actions in the courts. The Cherokee Nation, for example, made a concerted and successful attempt to protect their sovereignty before the Supreme Court using the Constitution as their primary source.

These legal efforts were hampered by President Andrew Jackson’s refusal to interfere with state plans for mass deportation, but they should not be discounted on that account. As the authors show, Native defenses of their own autonomy – as guaranteed by the Constitution – gained traction in later decades, informing a reevaluation of indigenous rights in the modern era.

The article concludes with a discussion of the possible theoretical and doctrinal implications of these historical findings. As Ablavsky and Allread make clear, including Native peoples in their rightful place as “co-creators of constitutional law” has the potential to upend constitutional history as well as legal theory. They sound a cautionary note for originalists, whose work often assumes an artificial and inaccurate closed world of legal thought during the Founding Era. How we think about the “original public meaning” of the Constitution changes profoundly, for example, if we take seriously the capaciousness of “the public,” acknowledging that even those who were formally marginalized in society had an influential voice in the interpretation of law. Surfacing these voices enables us to see constitutional history and legal discourse in an entirely new light.


Editor’s note: For another review of this article, also published today, see Bethany Berger, Expanding the Constitutional Lens, JOTWELL (July 12, 2023).

  1. Daniel Joseph Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1883, at 40 (2005).
Cite as: Allison Brownell Tirres, Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives, JOTWELL (July 13, 2023) (reviewing Gregory Ablavsky & W. Tanner Allread, We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution, 123 Colum. L. Rev. 243 (2023)), https://legalhist.jotwell.com/constitutional-history-in-the-middle-ground-and-beyond-indigenous-perspectives/.

Is Chinese International Law Chinese?

In the contemporary moment, discussions of international law are difficult to disengage from questions regarding the role of China. Some cast China as a new, revolutionary force set to upend or hasten the demise of the post-World War II order. Others cast China as a binding force for exactly the same order, especially in contrast to the noticeable retreat of its dominant architect, the United States. Moreover, the Chinese Communist Party actively brands its particular engagement with international law as a defining part of its own system of governance—often casting itself in equally contradictory terms as both stalwart and revolutionary.

Such diverse viewpoints draw upon their own versions of the history of international law, both in and outside of China. Ryan Mitchell’s Recentering the World lays out this history—and its relationship to many of these contemporary claims—with China center stage in the development of international law since the mid-19th century. Mitchell does so by synthesizing novel multilingual archival research with a global view of cutting-edge international legal scholarship.

Mitchell works incisively to bring the Chinese historical experience with international law out of a state of exception and into the main narrative of international legal history. In the modern revisionist tradition of Arnulf Becker Lorca’s Mestizo International Law or Jennifer Pitt’s Boundaries of the International, Mitchell aims to correct any impression that China “rejected” international law. Instead, he establishes how Chinese actors engaged in a process of reinterpretation and reappropriation first within their own historical tradition of international law and later as a powerful constitutive element within the evolution of the modern international legal order.

Starting in the mid-19th century, Recentering the World lays out this project in three parts, each containing three chapters: “Stateliness” 1850-1894, “Asserting Sovereignty” 1895-1921, and “Internationalisms” 1922-2001. In each era, Mitchell puts his multilingual fluency to work tracing the iterative re-workings of Chinese language translations of key terms of Western international law. His linguistic focus helps him relate a discourse truly situated locally in the Chinese context, but also in its regional relationship with Japan. As such, Chinese language terms permeate the book’s chapters as they are reinterpreted over time based on domestic, regional, and transnational struggles.

Yet, Mitchell’s history unfolds not purely through shifts in terminology, but also through a lively narrative told largely through the biographies and ambitions of various Chinese actors pursuing their ambitions—personal and national—through the apertures presented by the rapidly shifting geopolitical and domestic arenas of the 19th and 20th centuries. The nexus points for Mitchell’s histories are key moments of international negotiation and institutional formation in which these actors develop their strategies for righting China’s subordinated status in the international legal order. From the 1850s onward, Mitchell narrates this dynamic process with a fine-grained attention to the local disputes they engendered, the specific provenance and contents of various texts’ translations, and the role of foreign interlocutors who developed a keen interest in China’s engagement with international law.

Herein, Mitchell’s ability to work with Japanese and German materials shines through, as he is able to deploy the same linguistic sensitivity and sensibility to Japanese interpretations of Western international law concepts, and then in return plausibly relate their interaction with Chinese choices and stratagems. Some of this occurs interpersonally—through the direct interaction of people and texts—and some of this occurs geopolitically as Japan increasingly frames its regional hegemony through international law itself. In particular, Chapter 3 of Recentering the World has to be considered a masterwork in multilingual archival international law historiography.

It is the driving force of Western commercial empire, especially the elevation of property rights as a counterweight to national sovereignty, which is the most consistent thread in Recentering the World. The mutually constitutive relationship of capitalist expansion and international law is well-recognized today, but Mitchell places the Chinese experience at the center of this dynamic—not just in some receiving “periphery.” From describing the public-private hybrid British Maritime Customs Service founded in the 1850s to the forced creation of Chinese state debt to finance foreign-led military interventions, Mitchell shows how the imperium of Qing state authority was often circumvented by the dominium of Western commercial interests grounded in the language of private property rights to rationalize foreign commercial interests. Notably, Mitchell is able to show how the United States was particularly important in this process, as American actors ground their actions in the asserted mutualism of political liberalism and capitalist development for China’s own putative improvement—most notable in the aftermath of the 1899 Boxer Rebellion.

The importance of China in this process of dual reconciliation was not lost on Chinese participants, who wrote openly of how colonial militarism and commerce work in tandem to subvert local sovereignty. The global interconnection and importance of the Chinese experience is perhaps most fascinatingly related for American international and constitutional scholars when Mitchell discusses how Native Americans were described at “America’s Red Miao” to analogize their status to non-Han people in Yunnan.

The true material heart of these broader themes in Recentering the World’s chapter remains the cohorts of international law-engaged Chinese actors who came to serve successive Chinese regimes after the fall of the Qing Dynasty in 1911. While Mitchell gives great attention to the import of China’s pre-1911 cohort, his energies for the mid- to late chapters chiefly focus on the ambitions and aspirations of a relatively set, and socially homogenous, group of international law experts now members of a growing set of their own interrelated educational and professional international law institutions.

It is in these chapters that you can feel the sympathies underlying Mitchell’s reconstructive projects. Two members of this cohort, Wang Chonghui and Gu Weijun (known in English as Wellington Koo), take up star roles as each carried with them the emblematic hope that their efforts would help restrain Western imperialism and begin China’s path back to global political equality. Yet, Mitchell shows how the individual brilliance of each man, among others, crashed against the shores of the national interests and suffered personal indignities of racial discrimination overt and covert. Beyond retelling their formal accomplishments, even high-status appointments to international legal bodies, Mitchell relates the public and private praise of their Western interlocutors, revealing even some of the more private shame felt by those who acknowledged that Wang and Koo were undermined by a system which should have validated their intelligence.

Mitchell’s generational approach shifts in the 1920s to emphasize the place of international law in the tumults of domestic Chinese politics dominated by the Guomindang (GMD) and the Chinese Communist Party (CCP)—in particular the drive to end the practice of foreign extraterritorial jurisdiction. A more radical generation of Chinese international legal thinkers emerged who more forthrightly embraced fundamental critique of the international legal system and the never-reached promise of relinquishing extraterritorial privileges based on Chinese self-reform. Here, Mitchell notably excavates pan-Asian and other sentiments of transnational solidarity that he sees as presaging Third-Worldism, or even as precedents for the more contemporary emergence of Third World Approaches to International Law (TWAIL). Sentiments all of which are bound together by rejection of the primacy of property rights or trade over political equality and territorial integrity—or the guise of formally equal and legalized dispute resolution that intensify national subordination.

The driving force that quickens Mitchell’s final chapters is the victory of the CCP in 1949. The Chinese Civil War had already sparked quite substantial divergences among the generations of once relatively united international law scholars and practitioners. Many of the younger generation stayed to work within the CCP and many of the older generation moved with the GMD to Taiwan. Chapter Nine outlines how the CCP, initially a formal outcast from the international legal system, worked after 1949 to find its place in this system while attempting to articulate for itself a vanguard role in challenging Western colonialism and the interventionist logics to which many post-colonial states were still subject to. We are then treated to a quick outline of China’s post-1978 proactive engagement with international law now as a central node in the global economy.

Mitchell’s wide-ranging but linguistically and biographically sensitive history leaves us to contemplate exactly the meaning of his revisionist undertaking. Throughout, we see a discourse on international law more authentically grounded in the Chinese context, and clearly substantiating of a far more materially important role for China in the historical development of international law itself. But we also see legal brilliance orthogonal to actual outcomes, and the centering of Chinese national interest—rather than some truly cosmopolitan sentiment. Does Mitchell’s re-centering then simply provide further fuel for the cynical conclusion that international law is ever an epiphenomenon of power asymmetries? At one point he notes, after detailing once again the deft maneuvers of various Chinese practitioners, that “more radical changes would later come via war and revolution, not conferences.” (P. 156.) It has always been notable that even the United States only ended its extraterritorial privileges in China—after decades of public and private conferences, reports, and judicial studies—when the strategic realities of World War II demanded it. Moreover, were these individually brilliant voices ever something that resonated domestically anywhere beyond the most elite strata of Chinese society?

This returns us to the title of the review, cribbing from Anthea Roberts’ Is International Law International? The history Mitchell relates is most legibly human—a subordinate people use all the tools available to them to achieve their emancipation. And he does find plausible moments of Third World solidarity. Yet, moments where such is strategically consonant with, never sacrificing of, national rejuvenation. As such, this history does then forthrightly make sense of China’s post-1978 active embrace of international institutions from a position of rapidly diminishing asymmetry, especially with Japan and the United States. Mitchell expresses a pang of regret here at a radical opportunity lost, but this type of inherent strategic opportunism is the one true constant of the history of national rejuvenation he relates. We are left then to consider whether today’s “Chinese international law” is something truly different, or simply the recalibration any rising power would pursue.

Ultimately, Recentering the World falls into the category of required reading for both the history of international law and Chinese legal history. If anything remains less explored, it is the synergy of this work with the larger, explosive surge in Chinese legal history of recent decades, which has worked to correct and complexify the manifold mischaracterizations of Chinese law present in many historiographical arenas. Nothing more could be asked of a scholar’s first book.

Cite as: Jedidiah Kroncke, Is Chinese International Law Chinese?, JOTWELL (June 12, 2023) (reviewing Ryan Martínez Mitchell, Recentering the World: China and the Transformation of International Law (2022)), https://legalhist.jotwell.com/is-chinese-international-law-chinese/.

Felix Frankfurter Reconsidered

While working my way through Brad Snyder’s terrific new book, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, I found myself spending inordinate amounts of time admiring his endnotes. There are a lot of them to admire (almost 200 pages worth); they are clear and precise, and they allow the reader to peek behind the curtain and appreciate the stunning amount of research that went into creating this biography.

Frankfurter left behind a massive paper trail. He was a prodigious writer of articles, books, memos, and letters. He was also a lifelong cultivator of relationships with the kinds of people who were themselves energetic writers. The book’s endnotes tell the story of the years Snyder spent reading Frankfurter’s published works, interviewing people who knew him, and scouring the voluminous collections of Frankfurter’s papers and scores of archives around the country. This book, the first comprehensive biography of one of the most important figures in twentieth-century American law, is a major achievement.

Democratic Justice demonstrates the continued intellectual value of even the most traditional of historical genres, the “great man” biography. Frankfurter reached the heights of traditional power structures—an influential Harvard Law professor and then a Supreme Court justice—and in his day he was widely recognized as an exceptional individual.

Snyder presents a standard chronological narrative that never strays far from his subject. His thesis, which appears throughout the book but mostly operates in the background, is the standard claim of the biographer, namely that the subject of the biography merits more sympathetic attention than they have received. There’s nothing particularly innovative or unexpected here—just a lot of careful research, attention to biographical craft, and a scholar who wants to share with the reader their admiration for their subject. It’s not new, but it works.

In capturing Frankfurter, Snyder has written a serious history of ideas, law, and politics leavened by a touch of soap opera. This is a book to be enjoyed as well as admired. Snyder’s prose is filled with colorful detail and texture drawn from the source material. He thankfully avoids lengthy summaries of Frankfurter’s academic and judicial writing (a kiss-of-death for any biography of a Supreme Court justice that aspires to readability).

Snyder’s subject also helps to make this a lively read. Frankfurter thrived in battling for those he admired and against those he did not. He was passionate. He expressed strong opinions about everything and everybody. His politics, his personality, and his Jewish identity meant that many people had strong opinions about him.

Frankfurter was always advocating for his views of the world. He did this in letters to friends and followers, in conversation (the contents of which regularly found their way into the written record), in memos he self-consciously wrote “for the record,” and in his famously lengthy Supreme Court concurrences and dissents. He worked hard to make sure that those around him—as well as future biographers—knew exactly where he stood and why. Frankfurter’s exhaustive efforts at self-advocacy allow Snyder to argue for Frankfurter’s continued significance simply by presenting his life, placing the reader alongside Frankfurter as he waged his battles. Frankfurter was famous for collecting acolytes. Snyder invites the reader to join those ranks.

Frankfurter would surely have been disappointed with the state of his reputation as a Supreme Court justice. By the time of his death in 1965, Frankfurter had become the Warren Court’s cranky, lecturing conservative. His opinions defending judicial restraint left him on the wrong side of history—he would have upheld a compulsory flag salute in public schools; he resisted the application of criminal justice provisions of the Bill of Rights to the states; and he urged the federal courts away from the “political thicket” of electoral districting. For generations of scholars and law students who admired the idea of a boldly progressive Court, Frankfurter’s judicial career was a cautionary tale.

Maybe the time is right for a reappraisal of Frankfurter’s legacy. The possibility of a boldly progressive Court has become distant. Viewed through the lens of recent decades, the Warren Court’s liberal achievements appear less impressive, and the Warren Court itself looks more and more like an historical aberration. The Court’s bold actions of late (and for the foreseeable future) have been aimed toward defeating liberal causes. In aligning itself with the interests of a dedicated conservative minority, today’s Supreme Court echoes the Court of the Lochner Era, when Frankfurter’s passionate advocacy of judicial restraint placed him at the forefront of liberal constitutionalism. For those who don’t like the direction our current Court is taking, Frankfurter’s voice may resonate.

I’m not convinced Frankfurter merits a full-blown revival. He was too elitist and too arrogant. He misjudged too many critical issues during his time on the Court. But Frankfurter deserves to be reconsidered. In light of current events, his modest conception of the Court’s role and his principled defense of judicial restraint deserve more sympathetic appraisal. Snyder’s biography provides a magnificent foundation on which to have this discussion.

Cite as: Christopher W. Schmidt, Felix Frankfurter Reconsidered, JOTWELL (May 11, 2023) (reviewing Brad Snyder, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment (2022)), https://legalhist.jotwell.com/felix-frankfurter-reconsidered/.