This special issue brings together scholars from multiple disciplines and with varied research and geographic expertise to study the historical role played by the law in governing the political, social, and cultural life of twentieth-century South Asia. These articles have not emerged in a vacuum, but rather build on an exciting turn in South Asian history that is placing new focus on the legal and constitutional work that accompanied the post-colonial moment. This introduction examines some of the important historiographical and methodological interventions made by scholars working in this field, before outlining the specific themes connecting the articles in this issue.

In colonial Hispanic America, widows and widowers were in an unfavorable position if their spouse died without a will, only inheriting from them if the deceased left no blood relatives to the 10th degree of kinship. This article examines the extent to which the intestate position of the surviving spouse improved in the new civil codes of the sixteen republics, and how their approaches were influenced by the circulation of ideas. It finds that in all except one the spouse came to be favored over the extended family. If the deceased left children, two approaches developed with respect to the inclusion of spouses: where they obtained an unconditional right to an inheritance share equal to a child, and where their inheriting depended on their relative poverty or need. These reforms took place in concert with the rise of the centrality of the conjugal unit as the focus of affection, loyalty, and responsibilities, and prior to such reforms in Europe. The countries that went furthest in elevating the position of spouses, Venezuela and Argentina, were those most deeply influenced by the ideas and changes fostered by liberalism.

This article unravels an important historical conjuncture in the making of modern US citizenship and alienage by drawing on the state's regulation of naturalization as it relates to Asian immigration in the early twentieth century. My primary concern is to examine the socio-legal formations that constructed the thick distinctions between the modern US citizen and alien along the lines of racial difference and racial capital. Specifically, this article argues that Asian immigration to the United States remade the modern US citizen and alien in two significant and interconnected ways. First, it underscores how the adjudication of race in US courts and connected political campaigns re-mapped race in the United States and sharpened the racialization of Asia and Europe in profound ways that ultimately produced immigrants from southern, central, and eastern parts of Asia as the modern US alien. Second, the debate over Asian immigrants’ eligibility to naturalize refashioned legal status as a normative avenue to sustain a regime of racial capital. It cast citizenship as a legal avenue for White men and families to acquire and protect a proprietary interest in citizenship and recast some Asian immigrants as permanent aliens in a period when alienage came to signify disposable immigrant labor. The article concludes by distinguishing how the struggle for US citizenship by Asian immigrants frames the epistemological parameters and political vocabulary of immigration and naturalization reform.

Anthropologists and historians have recently underscored the ways in which European colonialism created novel regimes of legality and record-keeping, associated with ambitious and exclusive state-centered claims to both truth and rights, while being inevitably and constantly sucked into eddies of forgery and corruption. However, attention so far has been focused on English/European-language records and the colonial institutions that produced, stored, and deployed them. This has communicated a monolithic sense of power and normativity that unwittingly replicates the aspirations of colonial states. Drawing on eight case studies from in and around South Asia from the eighteenth to the twentieth centuries, we propose instead that the law of empires was rooted in the highly localized, often multilingual, and fragmented bureaucracies that produced its records. Here, historians of pre-colonial Indian regimes join hands with historians of British, Dutch, and French colonialism in order to unearth the genealogies of records written in Bengali, Marathi, Persian, Sinhala, and Tamil, as well as in French, Dutch, and English. This special issue collectively excavates the many layers, regimes, and languages in which legally effective records were produced by imperial regimes in South Asia and its much larger watery penumbra, the Indian Ocean.

This article presents an analysis of the paper- and office work at two South Asian corners in the early modern Dutch empire. The article engages with current approaches to the histories of bureaucracy and empire that emphasize the lived experience of “paperwork” in order to gain a localized understanding of what constituted empire. The article focuses on the production and use of pattas, olas, and thombos in the offices of the Dutch zamindar-fiscaal in Chinsurah (Bengal) and the Dutch disāva in Jaffna (Sri Lanka). Dutch bureaucracy in these spaces was entrenched in local practices, and created through processes of layering and blending, as evidenced by material and linguistic characteristics. The deeds and registers recorded essential aspects of life such as labor, marriage, and transactions of property, and the article shows how such paperwork mattered to villagers in Chinsurah and Jaffna. The production of the deeds and registers itself could include a public spectacle, and we argue that this performative aspect of the local bureaucracy added to the perceived relevance of the paperwork. Furthermore, through an analysis of legal cases we reconstruct the use and abuse of these bureaucracies by Dutch officials and local inhabitants, which signifies a parasitical relationship that is characteristic of so many imperial and colonial spaces. Through a focus on the local bureaucratic practices, the authors shed new light on questions about the character of the Dutch empire, where things never turned out to be exactly as they appeared at first sight.

Legal centralization in British America was characterized by the passing of arbitration from the community level to the colonial courts. As a consequence, when the 1765 Stamp Act raised the cost of court business, colonists were at a loss for alternatives. This paper addresses the question of why, at this point, colonists did not return to earlier, non-state forms of arbitration. It offers an explanation by providing a detailed empirical study of an alternative American legal forum: the Philadelphia Quaker monthly meeting. While busy arbitrating disputes in the early colonial period, it declined from around 1720. Contrary to what might be expected, this decline was not the consequence of state efforts to marginalize competing institutions. Rather, the local Quaker population abandoned their community legal forum in favor of the public courts. This was likely due to the Quaker court's reliance on reputation-based instruments for enforcement. As Philadelphia's population grew, the meeting's practice of pressuring culprits into compliance through public shaming lost its edge. Accordingly, Friends moved their legal business to the public courts. The paper contributes to the debates on the legal pluralism of empires, the history of arbitration, and state formation in the Atlantic.

This paper aims to consider four elements of Burmese constitutional history between 1946 and 1948. The first section considers the negotiations between Burma and the United Kingdom and argues that the debate about whether Burma wanted Dominion status has overlooked the crucial transitional government period. The second section gives a brief overview of the drafting process, paying particular attention to the links between the Indian Constituent Assembly in Delhi and Rangoon. The third section outlines the comparative influences on the Burmese Constitution using the digital humanities and illustrates that the biggest foreign influence was the Irish Constitution of 1937. The final section looks at the Burmese political leadership after World War II along two dimensions—at a nationalist level and at an elite level—and traces some of the links between Burma and Ireland.

This article explores how colonial law in India interacted with the construction of caste rank (varna) between 1860 and 1930. It specifically tracks contestations over Kayasthas’ legal varna rank in northern and eastern India through various inheritance disputes, threading them together to shed light on how courts sought to anchor their interpretations of Hindu law around the Indian jurisprudential conceptions of varna. It examines the successes and failures of Kayasthas to have favorable legal rulings that would uphold their status as “twice-born”/dvija, demonstrating that colonial law was limited in its ability (and often indifferent) to construct caste ranks. Inconsistent ruling in provincial courts pushed Kayasthas to seek taxonomic recognition as “twice-born” in the colonial census, demonstrating how colonial law and taxonomy intersected in novel ways. This article argues that by taking a novel approach to Indian social history through the prism of law, we can enrich our understanding of how modern notions of caste and social rank were constructed in colonial India.

The 1950s represent a foundational decade in Nepal's constitutional history. In the wake of decolonization in British India, the “year 7 revolution” (1950–51) grew out of the alliance between King Tribhuvan Shah and Nepal's democratic political parties created in India against the Rana autocratic regime in Kathmandu. Eventually the pro-democracy forces prevailed, and a crucial political transition began. Two constitutions were promulgated, the 1951 Interim Constitution and the 1959 Constitution. Both short lived and only partially implemented, these documents, however, laid the foundations of Nepal's constitutional edifice for years to come. Constitution building became a marker of sovereignty understood in terms of independence and an assertion of popular sovereignty. However, in the fraught Cold War context, the preoccupation with securing political stability by constitutional means that centered around the Shah monarchy prevailed, even at the expense of democracy. As such, the shift from a traditional notion of sovereignty from above to a modern concept of sovereignty from below remained incomplete. These aspirations, however, were not extinguished even by 30 years of royal autocracy under the Panchayat regime (1960–90) and lived on to this day to inform demands for constitutional reform, democratization, and inclusion. The present analysis is based on Nepali primary legal sources, archival material from the United Kingdom and United States National Archives, and the Ivor Jennings Private Papers.

Within the medieval Catholic Church, the term ‘clandestine betrothal’ was associated with the absence of witnesses, solemnities, and other formalities. Parental consent was not a legal requirement for betrothal or marriage, which was based on the free decision of the spouses. However, Martin Luther held that the will of the parties was not sufficient, because the couple was joined by God, and God’s will was reflected in parental consent. Luther intended the parents to be a public authority, and he therefore proposed a different definition of clandestine marriage that combined the absence of witnesses with the lack of parental approval. Medieval canonists had enumerated numerous types of clandestine betrothal. However, in their treatises, the jurists Johannes Schneidewin, Conrad Mauser, and Joachim von Beust translated Luther’s definition into legal terms, reducing the types of clandestine betrothal to only two. The first type, absence of witnesses, continued to be regulated by canon law, with some exceptions. The second, lack of parental approval, was governed by Roman law reinterpreted according to Scripture. Cardinal Bellarmine criticized this definition as confused, prompting the Lutheran theologians Paul Tarnov and Johann Gerhard to reply that ‘clandestine’ had acquired a new meaning: violation of the law imposing parental approval.

This article studies the registration practices of land and property on palm leaf deeds (olas) in Sri Lanka, in relationship to the advent of paper land grants (giftebrieven) under the Dutch East India Company (VOC)’s rule in the long eighteenth century. A database of about 2500 Dutch land grant deeds and translated olas, ranging from 1685 to 1795 are contextualised via judicial records of Dutch civil courts, where (translated) olas were regularly used as evidence. Not only does this allow us to track the geographical encroachment of Dutch power over coastal Sri Lanka as part of a colonial transition, but at the same time shift the perspective to study which individuals and communities on the island engaged with Dutch land bureaucracy. In doing so, we showcase the continued importance of traditional ola deeds and (pre-)colonial registers for both local land owners and the colonial bureaucracy itself, regardless of the Dutch government’s push for paper, attempted to delegitimise the local ola recordings, and acts of symbolic violence to infringe on both the materiality as well as the perceived importance of palm leaf deeds. In the long eighteenth century several paper and palm leaf realities coexisted in Sri Lanka and at times conflicted, entangled, and convoluted within and outside the bureaucratic institutions to form what ‘material pluralism’ within a larger context of legal pluralities.

This article analyzes how the multidirectional movement of legal and popular printed texts, newspapers, letters, and citizens contributed to the political and legal influence of individual lawyers across the Atlantic. It is based on a case study of leading common law barrister and Whig MP Thomas Erskine (1750–1823). It examines the dissemination of Erskine's legal and political arguments, and other publications in support of freedom of the press and the constitutional importance of trial by jury in libel trials. Erskine's Country Whig politics, key role in the passage of the 1792 Libel Act, and support for American independence were admired by American lawyers, diplomats, and politicians. His disinterested public service as an advocate meant he personified the ideal of a patriot lawyer that underpinned the classical republican model of law, citizenship, and politics on both sides of the Atlantic. Erskine's powerful, often emotive forensic rhetoric was equally admired as part of a shared transatlantic legal culture, linking law, politics and literature. The speeches were reprinted and widely circulated in edited collections, texts on oratory, trial reports, newspapers, and periodicals; key arguments were also referenced in legal treatises on libel. Hence, parts of his most significant speeches in English libel trials came to be regarded as “usable” legal texts studied by students and re-cited by American defense lawyers in court.

Hermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.

In recent decades, the rule of law has not been commonly associated with Afghanistan. Instead, its politics have been more likely to be framed in terms of lawlessness and ungovernability. But this trope does not do justice to Afghanistan's longer history of statehood or experiences of constitution-making. Over the course of the twentieth century, Afghan leaders drafted seven constitutions (in 1923, 1931, 1964, 1976, 1980, 1987, and 1990). These constitutions represented leaders’ attempts to assert their legitimacy and enforce their vision of an Afghan nation-state. This article sheds fresh light on Afghan elites’ top-down framing of Afghan national identity through ethnolinguism, exploring the legalization of Pashto as both an official and national language in Afghanistan's constitutions. Reformers intended Pashto to transgress community, kinship, and regional boundaries and act as a source of unity (though one in which ethnolinguistic minorities had little say). Tracing Afghanistan's constitutional history from 1923–90, this article reveals language as a constitutional arena for debating Afghan modernity and identity. As such, this article integrates Afghanistan into legal histories of South Asia while emphasizing how Afghan constitutionalists engaged in the process of law-making as a means of expressing Afghanistan's own independence and ideas of modernity.

This article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers who could lead the state's legislature and its courts. In this sense, educational reform was genteel rather than democratic in its basic assumptions. The article examines the central figure of George Wythe and explores his influence on Virginia's leading men, including Thomas Jefferson and St. George Tucker. It delves into the student experience in Wythe's law office and at the College of William and Mary, the success of educational reforms in the central courts, and the effects on Virginia's constitutional development. The college-educated lawyers who came to dominate the legislature in the early nineteenth century used their training for politics. As these lawyers sought to strengthen the institutions their party controlled, they drove the development of constitutional doctrines like federalism and separation of powers.

This article examines Persian-language orders—parwanas—issued by regimes that succeeded the Mughal Empire in South Asia, to European trading companies. Focussing in particular on the mid-eighteenth-century exchanges between the Nizam of Hyderabad; the Nawab of Arcot; and the French Compagnie des Indes, we see how Mughal-style parwanas, or sub-imperial orders, previously used to give instructions or to make or withdraw grants, were transformed into a form of political currency. They were now used to exchange military and fiscal resources between South Asian state-builders and militarised European corporations, and to secure political legitimacy for all within a putative Mughal imperium. Moreover, the legal fiction of Mughal sovereignty led to a grants race, such that rivals—European and South Asian—sought more and more parwanas, while also querying the legitimacy of authorities that issued them. The very fragility of the Mughal empire and the lability of the political landscape in eighteenth-century South Asia was thus generative of prolific Persian legal documentation, as well as its rewiring to novel uses. European empire-builders negotiated this legal landscape with only partial literacy, consequently fetishizing the material aspects and ceremonial accompaniments of Persian legal documents, and according them power beyond their immediate substance.

In eighteenth-century, colonial Sri Lanka, the Dutch church kept extensive registers of the local population. These “school thombos” contain individual registration of baptism, marriage, school attendance and death. This article argues that the school thombos reveal moral control over family life by the Dutch East India Company and the Dutch Reformed Church, while offering locals a legal and religious identity to employ in negotiating the Dutch colonial bureaucracy. These rarely studied registers shed new light on Sri Lankan family history and the practices of Dutch colonialism. What do they tell us about conjunctures of locals with colonial religion in eighteenth-century Sri Lanka? The school thombo was an instrument used to register and regulate family life, with specific functions and uses by different actors. This article explores the format, objectives and use of the school thombo. Why was the school thombo created and who were registered in these sources? What were the micro practices of drawing up the school thombo? The article is supported by several case studies that illustrate how the school thombo found its way into family life while demonstrating the value of written identities.

The rising field of medical jurisprudence in common law from late eighteenth century has led to a rearrangement of authority and epistemic power between lay and expert witnesses, in favor of the latter. Although the law had long relied on testimony from members of the community to establish the legal fact of a person's sex, the legal procedure of fact-making started to rely instead on the opinions of doctors, surgeons, and medical practitioners. This article closely reads medical jurisprudence books, U.S. case law, and U.S. newspapers from the nineteenth century to describe this expansion of medical experts’ authority to establish the legal fact of sex in vague cases. The article describes the spread of medico-legal technics of sex classification in three arenas of U.S. law: the law of marriage and divorce, cross-dressing, and defamation. The practice of legal sex classification was thus absorbed into medical expertise, and the meaning of sex in the law transformed from a socio-physical construct to a medical one. The mid-nineteenth-century decline of medical jurisprudence subsequently pushed the practice of sex classification outside the realm of law and into the jurisdiction of the medical profession, thus leaving sex classification mainly to doctors.

This article argues that American jurists fashioned new understandings about the capacity of states to legislate about marriage through regulating the intimate lives of enslaved and newly freed individuals. This article does so through analyzing the creation and impact of a little-studied 1809 law in New York that legalized the marriages of enslaved people—while individuals were still enslaved—as part of the state's process of gradual emancipation, which occurred from 1799 to 1827. In New York, by legalizing enslaved people's marriages, jurists privatized financial liabilities within soon-to-be freed families. The law stood at odds with national juridical understanding about marital regulation. Jurists in the early republic were uncertain about whether states could legislate about matrimony. Southern states after the Civil War then cited and replicated New York's logic in legislating to legalize the marriages of freedpeople, similarly privatizing financial claims within families. In the cases of both New York and national emancipation, jurists, in choosing privatization, foreclosed possibilities for a different or broader vision of state support for freedpeople, such as reparations. After making marital laws about slavery, both New York and Southern states created and/or tightened their marriage laws, further inscribing understandings of the marital family into American governance. This piece contributes to historiographies of slavery, the American state, and intimacy.

This paper argues the Government in Exile (GIE), the first government of independent Bangladesh, played an important role in framing the founding moment in legal terms. The GIE's constitutional warfare through its adherence to legalism, and subsequent internationalization of the conflict significantly shaped the independence movement of 1971. The GIE was composed of leaders who were lawyers, economists and other intellectuals who sought refuge in neighboring India. The agency of the founders and their allegiance to constitutional principles catalyzed the founding moment, oversaw the transition to an independent state and ultimately led to a swift adoption of a constitution that endures despite much instability. This national struggle of 1971 also played out in the international arena. In the process, lawyers from the so-called Third World articulated, reshaped, and generated new debates about international legal principles such as sovereignty, territoriality, and self-determination (and criterion for legitimacy of exiled governments)—most of which were considered to be well-settled at the time.