In 1893, legislation in the Cape Colony raised the age of consent to sexual intercourse from twelve to fourteen. Only twelve years later, however, did colonial administrators extend the law to the predominantly African districts in the eastern region of the colony. A reconstruction of the political debates surrounding the law, and its eventual extension, illuminates the relationship between understandings of childhood and race in the Cape. By the late 19th century, the comparison of Africans to children had become the governing metaphor for the “native question”; but this metaphor contained fundamental ambiguities. Debates over the age of consent forced Cape politicians to confront the racial and chronological boundaries of childhood innocence, and thus to articulate more precise theories of racial difference itself. Rural elites upheld a vision of hierarchy calibrated by wealth and social knowledge as well as race. Reformers sought to protect the innocence of white girls, in part to defend against racial degeneration, but disagreed over the inclusion of black girls. Meanwhile, even liberal social purity advocates hesitated to extend the law to the eastern districts, where “native law and custom” seemed not only to offer more protection but also to undermine claims of European superiority.

Much excellent work has been done on the colonial Act X of 1891. Yet, three important contexts have largely gone missing. One is the framework of colonial Personal Laws where the practice of infantile marital cohabitation was embedded till it migrated to criminal laws. Unless we comprehend how the framework constrained judicial decisions and legal interventions, no single law can possibly make full sense. There were highly acrimonious public debates, too, especially in Bengal and Bombay Presidencies, that significantly shaped the Act. Legal reform in the field of gender, I argue, grew more out such debates than from colonial initiatives.

This is a commentary on five papers included in a forum on the age of consent on the British Empire

In this comment on the special issue, Burton situates the essays in the scholarship of 1980s and 1990s as well as very recent scholarship on age of consent laws. She notes patterns — including processes of abstraction and transnational circulation — that shaped the cases gathered here. She points as well to the stakes of prioritizing gender and conjugality in scholarship on legal imperial regimes of all kinds.

This Article brings a Tamil-speaking Chettiar widow and a Dutch scholar of international law - two seemingly disparate characters - together through a footnote. Set against the background of decolonizing South and Southeast Asia in the aftermath of World War Two, it follows the judgment in a little-known suit for recovery of debt, filed at a district-level civil court in Madras in British India, which escaped the attention of local legal practitioners, but made its way into an international law treatise compiled and written in Utrecht, twenty years later. Instead of using it to trace how South Asian judiciaries interpreted international law, the Article looks at why claims to international law were made by ordinary litigants like Chettiar women in everyday cases like debt settlements, and how they became “evidence” of state practice for international law. These intertwined itineraries of law, that take place against the Japanese occupation of Burma and the Dutch East Indies and the postwar reconstruction efforts in Rangoon, Madras and Batavia, show how jurisdictional claims made by ordinary litigants form an underappreciated archive for histories of international law. In talking about the creation and circulation of legal knowledges, this Article argues that this involves thinking about and writing from footnotes, postscripts and marginalia - and the lives that are intertwined in them.

Throughout the mofussil of the Bombay Presidency British judges and magistrates called upon panchayats, that is, caste or village councils, to help them administer justice. By the mid-nineteenth century, panchayats were being deployed by British justices not only to offer their advice to judges attempting to decide a case, but much more frequently to investigate crimes, including murder, assault, robbery, arson, forgery, rape, and property disputes. Moreover, the active participation of the panchayat in the administration of criminal law varied as much in form as in function. In different scenarios, the panchayat functioned as a coroner's court, a criminal investigation team, and a general witnessing agent for the courts. With very few exceptions, they almost always appear in a supporting role on the prosecution side of any case offering their opinions on the crime in question in written form. Judges, for their part, appear to have relied quite heavily upon these recommendations and there are very few instances in which the panchayat's opinions were either ignored or rejected. There thus developed a hybrid system of justice whereby judges and magistrates adapted, transformed, and incorporated the expertise and knowledge of the ‘customary’ panchayat to suit the needs of British governance and legal administration.

This is an introduction to a scholarly forum that is an outcome of the workshop entitled Cultural Expertise in Ancient and Modern History held in Oxford in July 2018 and aims to make explicit the interdisciplinary components of cultural expertise from a historiographical perspective in order to open up the discussion to the history of law.

Since 1989, cultural expertise has emerged as a crucial factor in navigating Poland's communist past. The use of cultural expertise provided by historians was institutionalized in 1999, when the Institute of National Remembrance was created and charged with prosecuting Nazi and communist crimes, as well as assisting with the belated decommunization. Expert historians are requested by courts and other institutions to provide opinions in cases ranging from alleged collaboration with communist secret services, withdrawal of veteran status bestowed to soldiers of communist military units fighting the Polish resistance movement, awarding compensation to victims of German concentration and labour camps, to changing names of places named after prominent Party activists. Using this expertise requires the courts to understand the intricacies of recent Polish history, such as the operational methodology and archival practices of communist secret services, or the complex interplay of motives to collaborate (or not) with foreign oppressors. In this paper, the new salience of historical expertise for the Polish courts is analysed within the framework of Honneth's (1995) ‘struggle for recognition’ and Haldemann's (2008) work on the symbolic role of courts in transitional justice contexts.

A fixed legal age of consent is used to determine when a person has the capacity to consent to sex yet in the late Victorian period the idea became a vehicle through which to address varied social concerns, from child prostitution and child sexual abuse to chastity and marriageability of working-class girls. This article argues that the Criminal Law Amendment Act (CLAA) 1885, the Act that raised the age of consent from thirteen to sixteen, and its application were driven by constructions of gender in conjunction with those of social class and working class family. The article firstly argues that CLAA 1885 and related campaigns reinforced class boundaries, and largely framed the working class family as absent, thereby, requiring the law to step in as a surrogate parent to protect the girl child. Secondly, the paper focuses on narratives emerging from the archives and argues that while narratives of capacity and protection in particular were key concepts behind reforms, the courts showed limited understanding of these terms. Instead, the courts focused on notions resistance, consent, and untrustworthiness of the victim, even when these concepts were not relevant to the proceedings due to victims' young age.