Personae, res, actiones – this classification from ancient Rome has left its imprint across legal history. For centuries, jurists resorted to Roman law, ecclesiastical law and particular laws in their attempts to establish legal categories for various forms of asymmetrical dependencies, to justify them – and sometimes to criticise them. They devised rights which people could hold, or be held by. Thus, in the early modern and modern periods, European jurists already had a wide field of discourse at their disposal; during the European expansion, they translated this knowledge into the new realities they encountered. They came across indigenous regulatory structures and replaced what they found with what was familiar to them. They gave names to existing practices and came up with legal justifications for how asymmetrical relationships of dependency were shaped and legitimised – slavery being the best-known element of such complex dependency regimes.
What did it mean, from a legal perspective, when people had to live as slaves? The Research section in this volume consists of three contributions dedicated to the legal history of slavery in the early modern and modern periods. Carlo Bersani traces the European legal discourse on servi and personae from the 16th to the 18th century, with a particular focus on the colonial dimension of this part of history in the Iberian empires. That was the legal knowledge that was used and applied in practice. Matilde Cazzola looks at the British Empire and its efforts to abolish slavery, in particular in the Caribbean, specifically from the perspective of political and local practice. She, too, shows how law was used to create and adapt forms of dependency – even after the purported end of slavery. Finally, Tamar Herzog analyses some aspects of the historiography of the legal history of slavery, a field that has to date been dominated by Atlantic history. She suggests considering whether relationships characterised by asymmetrical dependencies such as slavery really only served to exclude certain people – and whether perhaps this exclusion consisted precisely in the fact that enslaved people were denied any ownerships rights.
Moving on from the legal questions surrounding slavery, Christiane Birr’s article on Gregorio López addresses the way in which jurists translated traditional knowledge bases for their present time in their attempts to get a grasp on colonial realities in 16th-century Latin America. Its erudite character notwithstanding, López’ ubiquitously used edition (including his glosses) of the medieval Siete Partidas served eminently practical purposes. By way of his edits and comments, López updated tradition, adapted it and by reverting to seemingly old knowledge found answers to new problems. A set of entirely different, long-neglected sources of law is highlighted in the contribution by Paola Revilla Orías and Pablo Quisbert Condori. They offer an introduction to the local archives – and thus to the normative knowledge – of indigenous communities in Bolivia. The Plurinational State of Bolivia, as it is officially called, recognises this non-state law, which means that legal history has a direct impact on and meaning for the present. In the eyes of the two authors, who live in Bolivia, this is yet another reason why it is important to understand legal concepts and historiographic practices other than those of European and colonial origin. This is a practical example for the need of global legal history to open up to other sources, to epistemic practices other than the established fundamental concepts that have their origin in Western modernity. It is necessary that the oft-cited legal pluralism is joined by an epistemic pluralism – a view that the mpilhlt also embraces in other projects investigating the legal history of indigenous peoples.
The contribution by Tobias Schenk on the early modern Imperial Aulic Council (Reichshofrat) may seem a far step from these topics, but it is not. Schenk, too, asks to what extent our view as legal historians is still influenced by the paradigm of statehood and which the major narratives are, imprinted by this notion that stems from Western modernity, that we continue to subscribe to when researching the highest courts of the Holy Roman Empire. He presents an impressive plea for an analysis along the lines of global history, organisational sociology, praxeology and the history of knowledge, using select examples to make this plea plausible. At the same time, based on years of archival studies of the Imperial Aulic Council, he points to the necessity of expanding the base of sources beyond the documents that are commonly |consulted for legal historical analyses. Finally, Andrew James Harding presents a case study on the transfer of rights under common law, »the Six Widows’ case«, which dates back to the early 20th century. After the death of a wealthy Singaporean merchant, six widows registered their claim as heirs with the authorities of the British Straits Settlements. This prompted questions not only regarding Chinese customary law but also as to what stance English law took vis-à-vis tiered polygamy. Harding describes the decision in this case as an example for a successful legal transplant; in doing so, he aims to offer a counterpoint to long-standing debates in comparative law as to whether legal transplants are actually possible or not.
Like the Research section, the book reviews in the Critique section reflect the mpilhlt’s research areas, but above all the almost unmanageable diversity of current research in legal history. The reviewers assess volumes that look at the trial of Jesus, Jewish legal history, court privileges, imperial and colonial legal history, and slavery. The reviews also cover important books on the history of codification, constitutional history, the history of international law and of EU law, and on debates about the connection between the theory and the history of law from antiquity all the way to the present time.
Two Marginalia conclude this volume, again closely aligned with research topics pursued at the mpilhlt. Paul Kahn offers a critical commentary on a chapter from The Cambridge Legal History of Latin American Law in Global Perspective, which was published this year, about the »multicultural state«; and Erk Volkmar Heyen writes about stairs as settings for gender-specific glorification and condemnation, opening the reader’s eye to legal aesthetics. His contribution settled the question of what motif we would use for the image spread of the print issue: stairs of all shapes and sizes, reflecting a great diversity of epochs and world regions.