In modern jurisprudence, it is recognized that courts will engage in arbitration, often under the rubric of Alternative Dispute Resolution.1 Recourse to arbitration further back in the English past has often been perceived as extra-legal, taking place outside the system of courts, and sometimes intended specifically to avoid those courts. This research has concentrated on the avoidance of secular courts, in particular the king’s courts and common law (see below). By contrast, arbitration in ecclesiastical courts has received less detailed investigation, although many salient aspects have been approached (as indicated below).

The study of legal change at local levels in this forum opens new windows onto the legal landscape, especially because they explore ground-level legal change that reveals far more innovative and incremental shifts in law and legal understanding than is visible at higher altitudes.

Revolutionary-era state constitutions reflected an unsettling tension in the history of American liberty. This article captures how revolutionary-era Americans accommodated moral liberty with religious establishment. Their notions of liberty were paradoxical, but it is possible to track their moral reasoning.

Common Law, the shining cornerstone of the English Justice system, becomes a muddy pool when trying to uncover the ways in which it arrived into the early Virginian, Maryland, and early Eastern Australian colonies. This is particularly true for the common law of felony attainder. Attaint—social and legal death without physical death—had lasting implications on the question of legal personhood for the convicts transported from England to these colonies between 1614 and 1840. This article revisits the work done by Bruce Kercher, adding new primary research from the American colonies to enrich and challenge Kercher’s arguments. Expanding the primary source material used in the analysis gives us a deeper and more nuanced understanding about how attainder was received and applied in the colonies—in particular, in the American colonies—and a deeper understanding of outside forces that influenced property rights beyond that of the question of attainder. This article provides nuance to how common law was understood and applied by those with and without formal legal training in early developing colonial societies.

The American War for Independence scrambled the concept of political allegiance and belonging. In James H. Kettner’s apt phrase, “subjects became citizens.” Where British law denied the possibility that a subject could renounce the obedience owed to their sovereign, Americans asserted through force of arms “the right to choose their allegiance.”1 Influenced by a contractual notion of political compact and by the mayhem of a violent civil war, people shuffled and sometimes reshuffled into camps of revolutionaries, loyalists, and neutrals.2

This article investigates the role of constitutional texts in memorialising historical guilts and traumas by delving into an unconventional and hitherto unexplored comparison: the Italian Constitution’s final Provision XII against the reorganisation of the fascist party, and the Indian Constitution’s Article 17 against caste-based untouchability. Both Constitutions, written in the same years, encoded their respective hurtful and traumatic pasts into their fundamental laws through these provisions, which explicitly mandated criminal legislations. After reconstructing the two very different contexts from which these constitutional provisions emerged, the article examines the very similar ways in which the two Constituent Assemblies incorporated historically motivated, criminalising clauses in their respective texts. It subsequently analyses the difficulties that legislators in both contexts encountered as they had to pass penal legislations emanating from the Constitutions, as well as the restrictive and contradictory interpretations of these legislations provided by the judiciary. By means of an original incursion into comparative constitutional history, this article contributes to a wider reflection around the interplay between historical traumas, constitutions, and mandates within them as a form of criminalisation of painful pasts.

This article examines the interdependent relationship between the state, law, and market in early modern China. Focusing on usury statutes, it analyzes how the Chinese state in the sixteenth and seventeenth centuries employed its legal framework to regulate a burgeoning money economy. The study underscores the critical role of law as an instrument of statecraft, essential for sustaining market functionality and social stability. Law’s multifaceted nature—encompassing legislation, specialist interpretations, adjudication, legal education, professional manuals, and popular knowledge—challenges the simplistic view of Confucian values as inherently anti-commerce. Instead, it shows how these values supported the uniformity and practicality of legal interpretations and judicial decisions. Moreover, the Chinese case points to a broader analytical framework with cross-cultural relevance: economic justice and market efficiency are not inherently opposed but can be mutually reinforcing when grounded in a shared set of values and legal regulations.

The outbreak of the American Revolution thrust would-be revolutionaries into a paradoxical relationship with the law. As they overthrew colonial governments from New Hampshire to Georgia during the summer and fall of 1775, leaders of the resistance to Great Britain found themselves in the awkward position of having to justify rebellion against British authority while still professing to be law-abiding Britons. The revolutionaries’ mandate to govern rested on protecting rights to property and representation that many colonists believed had been violated by agents of the Empire, but the practicalities of war demanded extra-legal measures. The popular governments that replaced colonial administrations had to find a way to balance upholding many of the laws of the old regime while simultaneously organizing an armed insurrection against it. Much of this burden fell on revolutionary committees at the town and local level. As the Continental Congress and provincial elites vacillated between rebellion and reconciliation and struggled to assert control over the fast-growing revolutionary coalition, ad hoc governments comprised of ordinary citizens took on the tasks of governing their regions and organizing for armed struggle. For much of 1775 and early 1776, these popular regimes precariously balanced the need for extra-legal expediencies with the need to maintain at least a semblance of law to maintain their legitimacy.

This article continues a long-term investigation into the nature of legislation, regulation, and administration across United States history. In contrast to persistent myths about an original American legal and political inheritance dedicated primarily to private rights, limited government, and laissez-faire economics, this article explores the earliest roots of American public rights, popular lawmaking, and regulatory policymaking. In the very first activities of revolutionary Provincial Congresses and Committees of Safety, this article locates a surprisingly robust template for the future development of American state police power, public provisioning, general-welfare legislation, and socio-economic regulation.

This article examines the near collapse of the legal fiction of extraterritoriality in nineteenth-century international law. Rather than treating extraterritoriality as a coherent doctrine or a straightforward instrument of imperial domination, it argues that the fiction functioned as a contested and unstable juridical device whose inadequacies exposed deeper tensions within international law. By distinguishing between two strands of critique—restrictive and reconstructive—the article reinterprets nineteenth-century debates as responses to the fiction’s conceptual failure rather than as efforts at technical refinement. Restrictive critiques, advanced primarily by Belgian and Italian jurists, rejected the fiction for legitimizing excessive jurisdictional privileges that conflicted with emerging principles of sovereignty, secularism, and constitutional equality in Europe. Reconstructive critiques, by contrast, abandoned the fiction while seeking to preserve immunity and consular jurisdiction by re-grounding them in treaties, capitulations, or functional necessity. This divergence explains why the decline of fiction did not entail the disappearance of privilege but rather its partial re-foundation on narrower, more positivist grounds. Finally, the article demonstrates how these European debates circulated transnationally, furnishing non-Western actors with conceptual resources to contest unequal treaty regimes. Extraterritoriality thus emerges not as a settled imperial doctrine but as a productive failure that illuminates the structural instability of nineteenth-century international law.

This article explores the enactment of the Civil Wrongs Ordinance in Mandate Palestine in order to question the utility of “Anglicization” as a historical lens, and to suggest that it tends to crowd out more helpful framings, in particular those involving distributive or class motivations and effects. The Ordinance has been portrayed primarily as an instance of the codification of the common law of torts and its import to Palestine. Without denying the Englishness of the Ordinance, this article demonstrates that it did not codify the common law of tort but went considerably beyond it in reforming Palestine’s liability regime. It further argues that the “Anglicization” framing obscures more than it illuminates, missing the massive redistribution of risk, costs, liability, and welfare that resulted from the change in Palestine’s tort law. The study also complicates the commonly accepted chronology of the development of compensation for injuries in the common law world. In Palestine, English-style tort law was the product of progressive reform, designed to overcome the shortcomings of the preceding regime of workers’ compensation schemes. The significance of Anglicized tort law in this jurisdiction was thus very different, in some ways the polar opposite, of that in other, better-known contexts.

This article reviews Martti Koskenniemi’s To the Uttermost Parts of the Earth: Legal Imagination and International Power, 1300–1780, Dannelle Gutarra Cordero’s She Is Weeping: An Intellectual History of Racialized Slavery and Emotions in the Atlantic World, and James Q. Whitman’s From Masters of Slaves to Lords of Lands: The Transformation of Ownership in the Western World. These authors raise fundamental questions about what was going on and what was or is at stake in the legal theorizing, argumentation, and adjudication that characterized the immediate prehistory of the nascent US constitutional order.

This study uncovers a previously overlooked chapter in the historiography of civil disobedience: Menachem Begin’s resistance to Israeli emergency legislation between 1948 and 1954, which he argued undermined foundational democratic principles. It presents the first scholarly analysis of Begin’s resistance, contending that it constitutes a clear instance of civil disobedience, embodying its core tenets. At the heart of this historical case study lies a paradigmatic question: how can laws that erode foundational—yet abstract—democratic principles, such as the separation of powers, be effectively resisted, and can such resistance be accommodated within traditional frameworks of civil disobedience? Begin’s struggle brings these questions into sharp relief, illuminating longstanding critiques of the framework’s overly restrictive boundaries and underscoring the tension between theoretical frameworks and political reality. More broadly, the article engages central debates at the intersection of law, politics, and democratic thought. By examining the democratic convictions of a prominent right-wing leader, it contributes to historical scholarship on the role of conservative and right-wing movements in shaping democratic ideologies, while also providing a historical reference point for subsequent ideological transformations and radicalization processes within these movements. Finally, by illuminating the complexities inherent in opposing laws that erode core-yet abstract-democratic principles, this study resonates with contemporary debates on democratic backsliding, offering a historical lens through which civil disobedience has served as a principled response to such challenges.

Readings of the history of penal expertise trace its rise to the late nineteenth century and its decline to the late twentieth century, with the crumbling of the welfare state. Despite stark differences along Whiggish and Foucauldian lines in evaluations of that history, a consensus has emerged that the penal-welfare complex peaked around mid-century, dependent on correctional experts. Most studies of that phenomenon have focused on the institutionalization and “treatment” of “problem” populations while neglecting the role of penal expertise in critiques of capital punishment. When Britain and Canada undertook major inquiries into the death penalty in the 1950s, they turned to the world’s foremost expert on the subject: sociologist Thorsten Sellin. Yet, these government-appointed studies devalued his academic capital in favor of the lived expertise of police. By examining the contestation of Sellin’s sources, methods, and conclusions, this paper puts the chronology of penal welfarism and its experts into question. Not simply a case of ill-informed opinion prevailing over criminological evidence, the dismissive treatment of this penal expert highlights the need to apply a more capacious understanding of contending forms of expertise at numerous points in penal history, rather than setting the devaluation of penal expertise in the recent past.

This article analyzes the influence of Fourteenth Amendment jurisprudence and the United Nation’s Universal Declaration of Human Rights (UDHR) during congressional debates in 1949 that focused on establishing a territorial government for American Samoa. In these hearings, naval leaders argued that Supreme Court decisions that had interpreted the Fourteenth Amendment as demanding colorblindness and others that established property ownership as a fundamental right, along with the creation of the UDHR, meant that Samoans might not be able to protect their land from further white-settler colonialism if Congress passed legislation establishing a civilian government in American Samoa. U.S. military leaders believed that the Court’s decisions in Buchanan versus Warley (1917) and Shelley versus Kraemer (1948), and the UDHR, could prohibit American Samoa from enforcing race-based land ownership restrictions if lawmakers extended citizenship, equal protection, or due process to American Samoa. Members of Congress, however, believed that the Court’s past rulings in the Insular Cases, models set in other unincorporated territories (e.g., the Philippines and Hawaii), and Federal Indian law established legal precedents that meant Samoans would be able to continue restricting land ownership on the basis of race if they became U.S. citizens and were governed by equal protection and due process. Samoan leaders demonstrated the unsettled nature of constitutional law in American politics by emphasizing that any congressional act that extended citizenship, equal protection, or due process to American Samoa would ultimately be reviewed and interpreted by the Court. For these Samoans, even if members of Congress were interpreting past Court precedents correctly, a future majority of justices could adopt a different understanding of what the extension of U.S. citizenship, equal protection, or due process meant for American Samoa by ruling that non-Samoans had fundamental constitutional rights to land ownership in American Samoa. This article thus helps explain how and why Samoan and naval leaders influenced U.S. lawmakers when Congress was considering legislation that would extend citizenship, equal protection, and due process protections to American Samoa in 1949. This legal history demonstrates how different interpretations of the Constitution, the UDHR, and fundamental rights influenced various actors within the context of the U.S. empire, illuminating the ambiguous nature of constitutional law in the U.S. unincorporated territories.

I first interviewed Stanley N. Katz in the fall of 2020. I had returned to teaching after a fellowship year at Princeton University with the Program in Law and Public Affairs. That year was interrupted by the outbreak of COVID-19, which drove me home to Vermont from New Jersey—but not before I had the opportunity to present my research on the New York State-based origins of the constitutional abortion rights ultimately endorsed in Roe v. Wade. Katz confirmed my sense of the importance of the late-1960s and early-1970s New York story, and more general emphasis on the state-level and statutory origins of Roe, by commenting that when he was teaching at the University of Chicago Law School, advocates of expanded abortion access like himself looked to New York as the model for what they might be able to achieve in Illinois. “We never,” he said, “expected the Supreme Court to bail us out.”1

Stanley N. Katz served as the Class of 1921 Bicentennial Professor of the History of American Law and Liberty at Princeton University from 1978 to 1986. He left to become President of the American Council of Learned Societies, the national humanities organization in the United States. When he stepped down from that position in 1997, he returned to teaching and high-level institutional service at Princeton, including as the Acting Director of the Program in Law and Public Affairs from 2004 to 05 and 2016 to 17. Katz’s contributions to legal history include, in addition to a vast array of articles and the books cited in the footnotes below, his work as Editor in Chief of the Oxford International Encyclopedia of Legal History and of the Oliver Wendell Holmes Devise History of the United States Supreme Court. He has served as President of the Organization of American Historians and American Society for Legal History, as Vice President of the Research Division of the American Historical Association, and as a member of the Board of Trustees of the Newberry Library, the Center for Jewish History, and many other institutions. He is a Fellow of the American Society for Legal History, the American Academy of Arts and Sciences, and the Society of American Historians. President Barack Obama awarded him the National Humanities Medal in 2011.

This short essay describes the nature and far-reaching impact of a large-format undergraduate course on U.S. legal history that legal historian Stanley N. Katz taught at Princeton University for almost ten years, starting in 1978. The course had a complex origin story, rooted in curricular innovations of the 1960s. It was unusual in its demand that students pursue sustained immersion in primary sources, debate their meaning, and take interpretive positions. Katz taught the course socratically, eschewing lectures. Because Princeton faculty often precepted for fellow faculty—attending Katz’s large-format sessions and leading their own small weekly discussion sections—Katz’s approach persuaded some colleagues to change their own teaching approaches. At a time when legal history was expanding as a research and teaching field, the course, along with its extensive reading materials that were not available in published form, was transplanted to other campuses by Katz’s students and associates.