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This chapter challenges the view of legal historians that the “one-drop rule” did not exist before the early twentieth century. It argues that the one-drop rule was enforced in white culture and entered the opinions of local judges during the early nineteenth century. Middleton shows that trial courts and circuit courts, while they are not the final authority on the law, frequently used one-drop language in racial identity cases. He also provides evidence illustrating that these judges frequently told juries that if a mixed race person had any black blood whatsoever, they should be looked upon as black.

This chapter surveys the long and important tradition of law and psychoanalysis in the United States beginning with the work of Oliver Wendell Holmes, Jr., up to the mid-twentieth century. While “tradition” may seem too strong a term for the diverse collection of psychoanalytic writings carried out by legal thinkers over the course of more than a half-century, what ties this work together is a shared recognition of the unconscious depths of the human psyche and the common questions that a psychoanalytic perspective on human behavior raises for law. As this chapter details, many early- to midcentury legal thinkers and judges turned to psychoanalytic ideas for help in addressing a broad set of concerns, including the value of free speech in a democracy, the processes of judicial decision-making, degrees of criminal responsibility, and child custody. The chapter focuses on those legal thinkers in this period whose attention was captured by the unconventional, sometimes even shocking, psychoanalytic ideas about the unconscious, guilt, free will, conflict, instinctual drives, sexuality, and early childhood experience. A study of the psychoanalytic tradition in American law is essential for understanding the vital contribution that contemporary psychoanalysis can make to law today.

This chapter examines the medieval Icelandic law book Grágás as it is contained in the medieval manuscripts Staðarhólsbók (AM 334 fol.) and Konungsbók (GKS 1157 fol.), and explores in what ways the two manuscripts can be considered to function as external tools of legal cognition. The aim of the chapter is to explore how the modern concept of distributed cognition can aid us in understanding historical phenomena, in this case, the function of two medieval Icelandic codices containing collections of laws. The chapter outlines what lines of thought and reasoning the examined medieval codices support when used for finding relevant legal norms or charting applicable law. In order to clarify the relation of the historical development of distributed legal cognition and its textual tools, the chapter’s conclusion compares the Grágás manuscripts to an early modern Icelandic legal manuscript (AM 60 8vo), and to modern statute collections. This comparison shows how the distribution of legal cognition to textual tools slowly developed within the textual culture of a formerly predominantly oral society without a significant domestic administrative literacy.

This essay connects the life of John Codman Ropes, lawyer, historian, and founder of the Military Historical Society of Massachusetts, with the society's purposes and the type of Civil War histories it created between 1876 and 1918. Ropes, although unable to enlist because of physical disability, was nevertheless shaken by a war that killed his brother and many Harvard classmates. Ropes honored the dead through his devotion to “true History.” Applying the methodology of the law, guided the society in crafting narratives of the war that would be stripped of partisanship, sectionalism, or apology. Ropes’s postwar life and that of the society he founded are best understood not as abstractions of the war’s transformation of a social class but rather how individuals confronted loss and its aftermath.

Thomas Murray’s chapter draws on a critical social theory of law and a range of qualitatively rich primary sources to incorporate heretofore neglected social movement voices into a more complex account of constitutional development in Ireland. The chapter concentrates on the political practices and discourses at stake in a single moment of conflict when property rights were contested from below, specifically the squatting campaigns of the Dublin Housing Action Committee (D.H.A.C.) in the late 1960s and early 1970s. Murray aims to open up a broader terrain of debate about constitutional development and judicial power in Ireland than conventional studies of case-law, legislation or parliamentary politics would suggest.

In this ambitious but earthbound critique of the ‘black-boxing of empire’, Mariana Valverde and Adriel Weaver adroitly trace the construction and deconstruction of the spectral corpus mysticum in Canadian legal discourse. The authors interrogate the weird legal agency of the Crown in aboriginal rights cases, disclosing the relentless production of novelty concealed beneath the conservative image of a continuous, eternal office and recalling the Latourian lesson about law’s soi disant homeostatic character: ‘even in this case [in which legal principles are modified], it will only be a matter of making the body of legal doctrine still more coherent, so that, in the last analysis, nothing will really have budged.’ These cases, Valverde and Weaver show, contract into themselves Canada’s colonial/postcolonial histories and the full weight of its legal tradition’s contradictory commitments. The sovereign gesture of recognition, offered by way of the ‘honour of the Crown’, paradoxically deprives the aboriginal nations so recognised of their very claim to existence, their nationhood: ‘the Canadian state now has obligations of sovereign/royal honour toward all aboriginal peoples … but the naming of those obligations simultaneously performs a kind of re-coronation of the very colonial sovereign whose servants caused so much harm to aboriginal peoples over the centuries’. Valverde and Weaver allow us to linger on this troubling sense of the uncanny, of the historical deja vu or phantasm of repetition that takes on materiality in the bilateral movement of the Crown through the networks of public law. It is a phantasm that reappears in the discursive techniques of judges that are, in fact, elaborating and reinventing precisely the discretionary doctrinal construct (‘honour of the Crown’) that they claim, instead, to merely appeal to, hearkening to an eternal spring of sovereign virtue through the mists of antiquity.

Chapter 3 addresses a likely challenge to arguments for a right to education as a matter of equal citizenship: that they are just utopian musings. In response, the chapter focuses on select moments in American history that illustrate that arguments for a right to education have deep roots in our social and legal history. The chapter first considers education proposals from three historical periods during which foundational questions about rights, citizenship, and democratic entitlements were considered at the federal level: the Revolutionary period; Reconstruction; and the New Deal. It then focuses on the landmark Supreme Court case, San Antonio Independent School District v. Rodriguez(1973), which decided by a narrow 5-4 vote that education is not a right protected by the US Constitution. Although the efforts discussed in this chapter have not led to federal recognition of a right to education, they underscore that the idea is an enduring part of US politics that carries through to the advocacy efforts discussed in the next two chapters.

Tomás Finn’s chapter is concerned with the consideration that Donal Barrington, a judge and public intellectual, gave to the Constitution, the basic law of the country, and the balance its Articles struck with regard to relations between Church and State and Northern Ireland. It considers his vision for Ireland, how this changed and the extent to which he influenced attitudes towards the Constitution. Of particular interest is how from the 1950s to the 1970s his stance evolved on the Constitution and specifically on those Articles that related to moral issues and to the national question. The chapter concludes that Barrington’s role was to put forward ideas which he hoped would inform intellectual debate and persuade governmental institutions to adopt new policies.

This chapter artfully scans the surface of La fabrique du droit, ably summarising that book’s arguments and drawing a series of provocative connections to Latour’s subsequent enchantment with that secular figure of the earth, Gaia. Saunders detects in Latour’s ethnography of the French administrative law court a hint of the turn to metaphysics that would come to fruition ten years after the book on law: the conseillors practise a specific kind of hesitation, but perhaps Latour’s point in studying it so closely is rather more general, more speculative, a pluralist’s plea to remain ‘open’ to the variety of experience. The law, Latour argues, must be tracked at the surface, the observer must achieve a superficiality as demanding as that of the law itself – a prospect that presents a considerable challenge to the figure of the ‘philosophically minded’ ethnographer that narrates the book’s asides. Saunders, acknowledging a sort of presentism or lack of historical concern in La fabriquedu droit, suggests in an echo of his powerful critique of critical theory in Anti-Lawyers that remaining doggedly irreductionist, at the surface, as Latour advocates, presumes precisely the sort of political-legal stability that a historical investigation would have revealed to be a circumstantial and highly contingent, perhaps comparatively rare, condition. The difficulty of lingering at the surface, however, turns out not to be the difficulty of bypassing history or the orthodox theories of modern law but a fully ontological difficulty: an ‘epochal re-discovery of all that had been excluded – even repressed – by the Moderns’ hegemonic intellectual abstractions’.

This chapter involves a close reading of several dozen notarized acts produced in Ferrand-era Santo Domingo by men and women seeking to document and preserve their freedom from (re)enslavement. This part of the work complements the political history told in the other chapters by offering a fine-grained “on-the-ground” portrait of legal strategies to secure freedom in a context of reenslavement. Here, the author also engages with themes such as the role of gender in slavery and emancipation, the reemergence of race as a system of classification in the legal record, and the creation of an archive of race and slavery during a unique moment in the history of Atlantic slavery.

Donal Coffey’s chapter examines the case of National Union of Railwaymen v. Sullivan which held part III of the Trade Union Act 1941 unconstitutional. The chapter contends that the importance of this case is related to the manner in which it undermined the vocational project in Ireland, which was an ongoing concern in 1945 when the decision was handed down. It also marks a decisive turn in the development of judicial review in Ireland. This chapter seeks to show that the decision, although poor, played an important role in the failure of the vocational project in Ireland. The chapter concludes that in terms of judicial rigor, the decision in National Union of Railwaymen v. Sullivan is not of the highest standard. In terms of its historical importance in shaping a key debate about the future political and civic development of the State, however, the chapter concludes it is clear that it was a constitutional case of the first rank.

Chapter 4 investigates Dutch, English, and French smugglers who traded with Venezuelan subjects. Historians know very little about the social composition and trading methods of early modern smugglers. An in-depth analysis of hundreds of cases finds that these enigmatic figures came mostly from foreign colonies close to Venezuela including Curaҫao, Martinique, and Jamaica, but also from farther afield, in some cases. Most traders were part of small, multinational, multilingual, and multiracial crews. Although they were outsiders to Venezuela, these contrabandists maintained close contacts on shore who influenced how they conducted business. Smugglers were savvy and adaptable to local market conditions, customs, languages, and coast guard operations. Particularly important to the strategic intelligence of smugglers were Sephardic Jewish trading networks well versed in Iberian cultural traditions. Such contacts produced a smuggler’s craft that combined deception, force, bribery, and Spanish judicial savvy. At times the historical record indicates the presence of more elaborate and wealthy merchant conglomerates. Yet illicit exchange in the early modern maritime world offered egalitarian and entrepreneurial opportunities for small-time captains willing to trade on their own account. Counterbalancing potential profits were the inherent hazards of coastal violence, wartime privateering, coastguard patrols, exile, and forced labor.

In spite of the defeat of Toussaint Louverture, Napoleon’s military expedition to Hispaniola of 1801-1803 met with great resistance once word reached the island that French forces had reestablished slavery in other French colonies such as Guadeloupe. This, combined with yellow fever, doomed the invasion force, and by late 1803, the expedition lay in ruins. Though rebels under Toussaint’s former number two, Jean-Jacques Dessalines, proclaimed Haitian independence in the old Saint-Domingue in early 1804, a survivor of Napoleon’s expedition named Jean-Louis Ferrand established a renewed colonial regime in Santo Domingo that same year. Ferrand sought to turn back the clock to the pre-1789 era by forcing thousands of people back into slavery, issuing decrees disenfranchising free persons of African descent, and other measures. This chapter details Ferrand’s laws and decrees, the question of the legality of slavery in Santo Domingo under Ferrand, and Ferrand’s anti-Haitian foreign and military policy.

Since WWII, dignity has become an important legal and moral value in almost all of the instruments of human rights and international law, and has no been incorporated into constitutions as a foundational value and ideal, including in the constitution of South Africa. Within South African jurisprudence and critical theory there has long been a disagreement between whether or not uBuntu could simply be encompassed in the ideal of dignity. This chapter argues that uBuntu and dignity can and should be distinguished, it tries to delineate their difference, and yet also defends a position that uBuntu is able to defend the European ideal of dignity, even as it goes beyond it in its demands for economic transformation.

Rory Milhench’s chapter seeks to analyse the nuances in the relationship between Ulster Unionists and successive Irish governments, with particular emphasis on how certain Articles of the Irish Constitution helped form the unionist image of the Irish Republic and how this conditioned the relationship between the two parties. Particular scrutiny is devoted to the question of constitutional reform and the ways in which Irish Governments considered amendments to improve relations with Unionists and secure their consent for a potential unity arrangement. The cause of unionist hostility towards the Republic, their concept of Irish unity and their forecasted social station within an arrangement of unification are explored. A selection of constitutional Articles, including those relating to extradition, the territorial claim over Northern Ireland and the special position of the Catholic Church in the Republic are examined for this purpose. The contention is made that what particularly distressed Unionists about the Irish Constitution was the apparent convictions the document made about the type of state Ireland was and how it seemed to predict the realities of its unified future.

This chapter examines the approach taken to children who offend by three of the most influential jurists in Scots legal history – Sir George MacKenzie of Rosehaugh; Baron David Hume and Sir Archibald Alison. They are selected for the quality and depth of their work on the relationship between the child’s criminal capacity and his/her criminal responsibility. The chapter explores the age-related distinctions which each drew in determining children’s liability to punishment for crime. It examines, particularly in its application to children, the concept of “dole” – the early form of the mental element in crime in Scotland – best defined as a pervasive wickedness of character, and the shift to a recognisable modern concept of mens rea. Finally it touches upon the child-saving philosophy of the 19^th century in examining the paucity of law in Scotland on the child’s criminal capacity into the 20^th century and beyond.