Posted on by Mark Movsesian

Dillon, “The Justice of Constantine”

For most church-and-state types, the word “Constantine” is likely to evoke the so-called “Constantinian Compromise,” in which the Christian Church in the late Roman Empire purportedly accepted imperial protection in exchange for subordination.  When he wasn’t convening church councils, though, Constantine had other affairs of state to attend to, including the workings of the Roman legal system. John Noël Dillon (University of Exeter) has a new study of Constantine’s contributions to Roman law, The Justice of Constantine: Law, Communication, and Control (University of Michigan Press 2012). The publisher’s description follows.

As the first Christian emperor of Rome, Constantine the Great has long interested those studying the establishment of Christianity. But Constantine is also notable for his ability to control a sprawling empire and effect major changes. The Justice of Constantine examines Constantine’s judicial and Read more

Posted on by Mark Movsesian · 1 Comment

Vallerani, “Medieval Public Justice”

Harold Berman famously argued that Western legal culture originated in the papal reforms of the High Middle Ages, which unleashed a torrent of law making throughout society. Catholic University Press has just released an English-language translation of University of Turin historian Massimo Vallerani’s work on the evolution of criminal trials in medieval Italy, Medieval Public Justice (2012), which includes statistical analyses of surviving court records. The publisher’s description follows.

In a series of essays based on surviving documents of actual court practices from Perugia and Bologna, as well as laws, statutes, and theoretical works from the 12th and 13th centuries, Massimo Vallerani offers important historical insights into the establishment of a trial-based public justice system. Challenging the long-standing evolutionary paradigm of medieval Read more

Posted on by Mark Movsesian

Justice Pierce Butler’s Catholicism

Over at Concurring Opinions, Gerard Magliocca has an interesting post on how Supreme Court Justice Pierce Butler’s Catholicism may have influenced his dissent in Buck v. Bell, the famous 1927 case upholding sterilization of the mentally handicapped. Apparently Justice Oliver Wendell Holmes, who wrote the majority opinion in the case (“Three generations of imbeciles are enough”), thought Catholicism did influence Butler’s vote. Check it out.

Posted on by

Resnicoff on Extraordinary Sources of Jewish Law

Steven H. Resnicoff (DePaul U. College of Law) has posted Extraordinary Sources of Jewish Law: the Example of Capital Punishment. The abstract follows.

Most Jewish law scholarship, especially that which is published in English, focuses on only one of Jewish law’s criminal law enforcement systems, namely, the operation of the rabbinic court system pursuant to the rules set forth in the Pentateuch, as interpreted in the Babylonian Talmud. In fact, this literature usually fails even to acknowledge the existence of the two other law enforcement systems: (1) enforcement by rabbinic courts functioning under their “extraordinary powers”; and (2) and enforcement by a Jewish king. These two systems vary enormously as to the procedural protections they provide and as to their practical consequences. Failing to examine them causes one to very seriously misunderstand how Jewish law functioned throughout history and paints a rather “Pollyanna-like” portrait of Jewish law.

This submission constitutes Chapter 8 of my book, “Understanding Jewish Law,” published by LexisNexis in June 2012. It explains the dramatic differences among these three criminal law enforcement systems and documents the pragmatic steps taken by rabbinic authorities responsible for providing a safe and stable social environment.

Posted on by Mark Movsesian

Müller, “The Criminalization of Abortion in the West”

Fordham historian Wolfgang P. Müller has written a new book on the origins of criminal punishment for abortion in western law, The Criminalization of Abortion in the West (Cornell 2012). The publisher’s description follows.

Anyone who wants to understand how abortion has been treated historically in the western legal tradition must first come to terms with two quite different but interrelated historical trajectories. On one hand, there is the ancient Judeo-Christian condemnation of prenatal homicide as a wrong warranting retribution; on the other, there is the juristic definition of “crime” in the modern sense of the word, which distinguished the term sharply from “sin” and “tort” and was tied to the rise of Western jurisprudence. To find the act of abortion first identified as a crime in the West, one has to go back to the twelfth century, to the schools of ecclesiastical and Roman law in medieval Europe.

In this book, Wolfgang P. Müller tells the story of how abortion came to be criminalized in the West. As he shows, criminalization as a distinct phenomenon and abortion as a self-standing criminal category developed in tandem with each other, first being formulated coherently in the twelfth century at schools of law and theology in Bologna and Paris. Over the ensuing centuries, medieval prosecutors struggled to widen the range of criminal cases involving women accused of ending their unwanted pregnancies. In the process, punishment for abortion went from the realm of carefully crafted rhetoric by ecclesiastical authorities to eventual implementation in practice by clerical and lay judges across Latin Christendom. Informed by legal history, moral theology, literature, and the history of medicine, Müller’s book is written with the concerns of modern readers in mind, thus bridging the gap that might otherwise divide modern and medieval sensibilities.

Posted on by Mark Movsesian

Kar on the Eastern Origins of Western Law

Robin Kar (Illinois) is doing a series of articles that takes issue, among other things, with parts of the Berman thesis I mentioned yesterday in my post on John McGinnis. Here is the abstract for the second in the series, On the Early Eastern Origins of Western Law and Western Civilization: New Arguments for a Changed Understanding of Our Earliest Legal and Cultural Origins (Part 2):

Western law and Western civilization are often said to be parts of a distinctive tradition, which differentiates them from their counterparts in the “East” and explains many of their special capacities and characteristics. One common version of this story, as propounded by the influential legal scholar Harold Berman, asserts that Western civilization (including its incipient legal traditions) began in the 11th century AD with a return to the texts of three more primordial traditions: those of ancient Greece, Rome, and Israel. The basic story that Western civilization finds its origins in ancient Greek, Roman, and Hebrew culture is, however, so familiar and so pervasive that it has rarely — until recently — been questioned in the West.

This Article develops a novel set of arguments, rooted in recent findings from a broad range of cognate fields, to suggest that this standard story is nevertheless incomplete and even potentially misleading. If we are genuinely interested in understanding our origins in a way that will shed light on why the West has exhibited such distinctive capacities for large-scale human civilization and the rule of law, then the story we commonly tell ourselves starts abruptly in the middle and leaves out some of the most formative (and potentially transformative) dimensions of the truth. Western law and Read more

Posted on by Marc O. DeGirolami

“The Noblest of All Sublunary Beings”

Blackstone’s Commentaries on the Laws of England are available in full here.  And here is a lovely passage from the very beginning of the Commentaries:

This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should, in all points, conform to his Maker’s will.

Posted on by Marc O. DeGirolami · 1 Comment

Prest, “William Blackstone”

Wilfrid Prest’s biography, William Blackstone: Law and Letters in the Eighteenth Century, was published back in 2008, but it has just been released in paperback.  The book is an absolutely wonderful treatment of this deeply important figure in English and American law, and I note it here because it discusses some of Blackstone’s religious commitments and views.  The publisher’s description follows.

Lawyer, judge, politician, poet, teacher, and architect, William Blackstone was a major figure in eighteenth century public life. Over his varied and brilliant career he made profound contributions to English politics, law, education, and culture through involvements in legal practice, Parliament, and the University of Oxford. Throughout he also remained engaged in his society’s literary and spiritual life. Despite the breadth and influence of his work, Blackstone the man remains little known and poorly understood, the lack of engagement with his public and private life standing in stark contrast to the scale of his influence, particularly on the development and teaching of the law.

Blackstone’s ‘Commentaries on the Laws of England’ remains the most celebrated and influential text in the Anglo-American common-law tradition. This great book has inevitably overshadowed its author, while the dispersal of his personal and professional papers further complicates the task of understanding the man behind the work. The lack of a thorough account of Blackstone’s life has fuelled controversy surrounding his intellectual background and political views. Was he the deeply reactionary conservative painted by Bentham, or rather a committed reformer and early champion of human rights?

The present biography makes full use of a considerable body of new evidence that has emerged in recent years to shed light on the life, work, and times of this neglected figure in English and American history. Exploring Blackstone’s family upbringing and private life, his political activities and ideology, his religious outlook, and championing of the enlightenment, this book weaves together the threads of an extraordinary mind and career.  

Posted on by Mark Movsesian

Barry on Roger Williams

From Penguin, a new biography of Roger Williams, Roger Williams and The Creation of the American Soul (2012), by John M. Barry. Barry usefully situates Williams in the legal and political struggles of Jacobean and Caroline England — I did not know, for example, that Williams once served as an apprentice to Sir Edward Coke, the famous Chief Justice of the King’s Bench, and thought of Coke as a surrogate father — and follows him to Massachusetts, from which his fellow Puritans banished him when he denied civil government’s authority to punish offenses against God. Barry discusses the evolution of Williams’s ideas about church and state, including his most famous contribution, the metaphor of the “wall of Separation between the Garden of the Church and the Wildernes of the world.”  The publisher’s description follows.

For four hundred years, Americans have wrestled with and fought over two concepts that define the nature of the nation: the proper relation between church and state and between a free individual and the state. These debates began with the extraordinary thought and struggles of Roger Williams, who had an unparalleled understanding of the conflict between a government that justified itself by “reason of state”-i.e. national security-and its perceived “will of God” and the “ancient rights and liberties” of individuals.

This is a story of power, set against Puritan America and the English Civil War. Williams’s interactions with King James, Francis Bacon, Oliver Cromwell, and his mentor Edward Coke set his course, but his fundamental ideas came to fruition in America, as Williams, though a Puritan, collided with John Winthrop’s vision of his “City upon a Hill.”

Acclaimed historian John M. Barry explores the development of these fundamental ideas through the story of the man who was the first to link religious freedom to individual liberty, and who created in America the first government and society on earth informed by those beliefs. The story is essential to the continuing debate over how we define the role of religion and political power in modern American life.

Posted on by Mark Movsesian

Rodogno on Humanitarian Interventions in the Ottoman Empire

We are accustomed to think of international human rights campaigns as recent phenomena. In a new book, Against Massacre: Humanitarian Interventions in the Ottoman Empire, 1815-1914 (Princeton 2011), Davide Rodogno (Graduate Institute of International and Development Studies, Geneva) shows that the practice goes back at least two centuries and originated from a desire to protect religious minorities. Rodogno details European intervention on behalf of Christians in late Ottoman Turkey. Then as now, he argues, human rights campaigns had mixed motives: humanitarian, but also political. European powers were selective about which groups merited protection, and how much. The publisher’s description follows.

Against Massacre looks at the rise of humanitarian intervention in the nineteenth century, from the fall of Napoleon to the First World War. Examining the concept from a historical perspective, Davide Rodogno explores the understudied cases of European interventions and noninterventions in the Ottoman Empire and brings a new view to this international practice for the contemporary era.

While it is commonly believed that humanitarian interventions are a fairly recent development, Rodogno demonstrates that almost two centuries ago an international community, under the aegis of certain European powers, claimed a moral and political right to intervene in other states’ affairs to save strangers from massacre, atrocity, or extermination. On some occasions, these powers acted to protect fellow Christians when allegedly “uncivilized” states, like the Ottoman Empire, violated a “right to life.” Exploring the political, legal, and moral status, as well as European perceptions, of the Ottoman Empire, Rodogno investigates the reasons that were put forward to exclude the Ottomans from the so-called Family of Nations. He considers the claims and mixed motives of intervening states for aiding humanity, the relationship between public outcry and state action or inaction, and the bias and selectiveness of governments and campaigners.

An original account of humanitarian interventions some two centuries ago, Against Massacre investigates the varied consequences of European involvement in the Ottoman Empire and the lessons that can be learned for similar actions today.