This issue presents five articles about the force of law and historical experience. Our authors challenge interpretations of law, religion, and relationships in medieval Egypt and recent U.S. history, while simultaneously offering new perspectives on slavery, citizenship, and governance in the Americas during the nineteenth century.
Our first article, by Christopher Waldrep, examines the prosecution by the United Methodist Church of three ministers for the “crime” of celebrating the unions of same-sex couples. As Waldrep demonstrates, the peculiar nature of church law and legal procedure turned these trials and investigations into battles over the legitimacy of church law. This legal effort, he concludes, came from a popular conservative grassroots effort to turn back 1960s liberalism and represented mainstream American activism at the end of the twentieth century.
Our second article, by Phillip I. Ackerman-Lieberman, also examines the power of community norms over individuals. Ackerman-Lieberman examines to what extent classical Jewish legal norms influenced the commercial practice of the (Rabbanite) Jewish community of medieval Egypt. Through a close reading of court procedure in light of modern scholarly models of mediation practice, he shows that economic actors coming to the Rabbanite court were exposed to norms emerging from classical Jewish legal sources. The court, he argues, played a “norm-educating” role, informing individuals as to the bounds of Jewish law yet allowing them to structure their relationships otherwise. The acceptance by individuals of community-wide norms canonized in Jewish legal codes and disseminated through the court system suggests that it was community-wide (“Gesellschaft”) norms rather than those of a narrow sub-group (“Gemeinschaft”) which governed (Rabbanite) Jewish economic activity in medieval Egypt. His findings challenge those who hold that sub-group expectations rather than community-wide norms governed commercial practice within the Jewish community.
Our third article, by Anne Fleming, also focuses on the structuring of economic relationships. Focusing on the experiences of working-class New Yorkers who became indebted for small sums in New York City at the turn of the twentieth century allows Fleming to analyze the confluence of currents in legal and philanthropic thought that shaped the political economy of credit for the poor. She reveals how judges and reformers configured the opportunities available to poor families struggling to make ends meet. Her findings reveal that Lochner-era judges and reformers were not always at odds in how they envisioned the role of the state in the market. Reformers did not push for more restrictive usury laws. Rather, they looked beyond the state for solutions, relying instead on other market participants and corporate employers to police the small-sum lending industry. This vision resonated with jurisprudence skeptical of government meddling and protective of “contractual liberty.” Court decisions often championed borrowers' constitutional and common law rights to enter into usurious bargains. Yet most judges recognized that the state had a legitimate interest in preventing wage earners from becoming paupers. Judges, like reformers, expected the state to provide a framework for private power to regulate the marketplace and protect borrowers from their own “improvidence.”
Our fourth and fifth articles, by Joseph P. Younger and H. Robert Baker, examine how slavery complicated the governing of the Americas. During the middle decades of the nineteenth century, the borderlands region between the Brazilian Empire and the Uruguayan Republic witnessed sharp conflicts over sovereignty. The geographic reach of Brazilian slave laws, as Younger reveals, was at the center of these debates. Brazilian masters attempted to seize fugitive slaves fleeing across the border along with free persons of color in Uruguayan courts, seeking to use extraterritorial claims to maintain slave labor discipline in the face of Uruguayan manumission laws. Younger shows how slaves, former slaves, and their descendants developed collective strategies to assert their Uruguayan citizenship and with it their freedom. Through these legal claims, he demonstrates that persons of color played an important and a forgotten role in the state formation processes in both Uruguay and Brazil.
Fugitive slaves also posed fundamental challenges for the United States. One of the longest running constitutional disputes in antebellum America involved the meaning of the fugitive slave clause in the U.S. Constitution. While most scholars have privileged the Supreme Court's interpretation of the clause in Prigg v. Pennsylvania (1842), Baker examines interpretations of the clause in Congress, in state legislatures, and before the courts from 1791 through 1860. Constitutional meaning, he demonstrates, changed over time and was forged by many institutions—not only the courts. Ultimately, the problem of slavery transcended the force of constitutional law. And the war came.
As always, this issue concludes with a comprehensive selection of book reviews. We also invite readers to explore and contribute to the ASLH's electronic discussion list, H-Law, and visit the society's website at http://www.legalhistorian.org/. Readers are also encouraged to investigate the LHR on the web, at http://journals.cambridge.org/LHR, where they may read and search issues, including this one.
