Peter Karsten asks why there might be a greater comparative propensity among CANZ historians than among those of the United States. Part of the reason may lie in the legal education many of us in Australia received, and in the formal legal status of many commonwealth countries until recently. As recently as the early 1970s, Australian law students were taught that English law was as significant as that made in the Australian courts. Appeals from the Australian Supreme Courts to the Privy Council were finally abolished only in 1986. From that time onward, there was a drive within the law schools to find differences from England, to look toward comparisons with other places than England.

“Liberalism! Not in all history has a word been so wrenched away from its true meaning and dragged through the gutter of defilement,” the Wilsonian Progressive George Creel protested angrily in a memoir of 1947: “Where it once stood for the dignity of man, … it now stands for the obliteration of individualism at the lands of a ruthless, all-powerful state.” For nearly fifty years, most scholars have given little heed to the rage vented by Creel and other critics of New Deal “liberalism.” Amidst the expansion of the American welfare state, the outlook and ideas of the anti-New Dealers seemed at best naively outdated and at worst positively pernicious. History—in the form of an increasingly massive, paternalist, neo-mercantilist, bureaucratic state—seemed to be firmly on the side of those who advocated the expansion of federal authority over more aspects of American life.

This article argues that Leibniz should be viewed as a predecessor of the idea of spatial justice and that Leibniz's heritage remains a valuable source for inspiration and critical reading of the contemporary literature on spatial justice. The article first demonstrates interdependency between Leibniz's conceptualisation of space and his conceptualisation of law and justice. This is the first time that this argument is made in relation to Leibniz, therefore significant space is devoted to justifying this argument. The article then proceeds to comparing Leibniz's views on space, law and justice to one of the most “spatial” contemporary articulation of the idea of spatial justice, namely that proposed by Andreas Philippopoulos-Mihalopoulos. The article concludes by pointing out some aspects of Leibniz's thought that are most valuable for the further study of law, space and spatial justice in contemporary scholarship.

In recent decades a large amount of scholarship has been devoted to the task of explaining the ways in which European powers claimed possession of indigenous people's territories across the seventeenth, eighteenth and nineteenth centuries. This research has emphasised the role of the law in the dispossession of indigenous peoples. But more work is required to establish the precise roles that the law played in the claiming of land and to measure its importance relative to other factors. In this paper I consider one British colony, South Australia, in order to investigate the changes that occurred in the roles that the law performed over time in the claiming of the indigenous people's lands, and to assess the importance of these relative to the roles played by historical, moral, political, psychological and material factors. I conclude that in this instance at least the role that the law played in the claiming of possession was rather different than that suggested by numerous studies of the claiming of possession as well as much less significant.

In “Gun Ownership in Early America,” published in the William and Mary Quarterly in 2003, Robert Churchill drew on probate inventories and militia records to make the case that arms ownership was pervasive in late colonial, revolutionary, and early national America. Churchill concluded with the observation that “[i]t is time to ponder what these guns meant to their owners and how that meaning changed over time.” In his substantial contribution to this volume of Law and History Review, Churchill takes up that challenge himself and advances the claim that widespread arms ownership engendered a sense of possessory entitlement, and that this notion of right informed constitutional sensibilities respecting guns and the Second Amendment. He acknowledges that a civic republican understanding focused on the militia was central to the framers' conception of the right to arms, but urges that another stream of discourse—individualistic, personal, and divorced from militia linked obligations—was present from the beginning. By the early nineteenth century, Churchill argues, this purely private view of the right to arms had become ascendant.

The authors of these insightful and stimulating commentaries all express skepticism about the role I assign to the Scottish Common Sense philosophy in my historical analysis, though their reasons for doing so are strikingly at odds with each other. Sarah Seo and John Witt concede the importance of the Common Sense philosophy at a theoretical level, even as they call attention to certain “competitor theories” of human nature, noting that these darker views of the self may have proved more influential in the framing of the American constitution. However, they go on to contend that all of this philosophizing about the human mind was actually of little consequence in the everyday adjudication of civil and criminal liability, as judges found more practical means of resolving “the otherwise intractable questions of moral responsibility” left unanswered by the Scottish philosophy. John Mikhail, by contrast, appears to be far more sanguine about the tractability of these questions, from a philosophical standpoint, going so far as to suggest that they were more or less resolved by British moralists before the Scottish Common Sense school even came into being. What truly set the Common Sense philosophers apart from their predecessors, and ought to determine their place in this history of ideas, Mikhail concludes, was the manner in which they contributed to the scientific process of tracing out the inner structure and innate capacities of “the moral mind”—a topic that is currently of intense interest in the cognitive and brain sciences.

One of the most vexing challenges accompanying any attempt to reconstruct the legal history of the family is deciding how much interpretive weight to assign to social factors as opposed to legal factors. “Gloria's Story” is loaded with social history, in part because it focuses on a small group of decidedly non-elite characters. It discusses non-legal matters as big as the impact of wealth concentration on the Guatemalan family and as small as the social significance of home births, as opposed to hospital births, in Quetzaltenango during the 1960s. Nonetheless, the most important factors driving the analysis are legal, not social. The article's central argument—that “modernizing” legal reforms adopted in Guatemala since the mid-nineteenth century have fortified, not weakened, adulterous concubinage—emphasizes the effects of legal change.

This article analyses the internal dynamics of online Islamic legal discourses embedded in their offline and multimedia contexts that use of a rich repository of legal texts composed over a period of about a thousand years. Through their vigorous and spirited engagements with these historical texts, contemporary Islamic jurists simultaneously create new digital platforms in mass and social media to disseminate their ideas. In so doing, they perpetuate a long textual legal tradition through hypertext commentaries and super-commentaries. The premodern texts are thus reborn through new forms of ḥāshiyas such as audio commentaries, video commentaries, audio-video commentaries and hypertext commentaries. These new developments from the age of new media contribute to the textual longue-durée of Islamic law. Tracking the peregrinations of three Islamic legal texts in the mass media and cyber world, I argue that the dissemination of premodern Islamic legal texts via cyber space has resulted in the “democratization” of a knowledge-system that was previously dominated by trained fuqahā and affiliated institutional structures and has enlivened the traditional school affiliations.

One of the key principles of the modern legal state (Rechtsstaat) is the right of all citizens to seek judicial protection against unlawful acts of government officials. It stems from the fundamental principle of the rule of law that asserts that all citizens, including state officials, are equal before the law and have the right to a fair trial. Within this legal framework a distinct field of law, “administrative justice,” governs public litigation against state officials. Its domain of jurisdiction reflects complex philosophical and legal distinctions between the public and private spheres in the modern state. As legal scholars and philosophers continuously redefine the boundary between the public and private spheres, the prerogatives of government officials over the rights of private citizens continue to evolve. The key questions in the debate are as follows. Should the state guarantee an undisputed precedence of citizens’ rights over administration or should it protect its officials from widespread litigation and therefore grant them a certain degree of immunity? Should ordinary courts and laws decide disputes between government officials and private individuals, or should the state provide separate norms, judges, and procedures for administrative litigation? Should punishment for misuse of administrative power be equal to that of the breach of civil or criminal laws? Who and to what extent should be made liable for any damages incurred through misuse of administrative power?

I so appreciate Professor Mack's generous comments on Freedom Is Not Enough—and even more his critical engagement with it. It's an author's dream to have a leading scholar in a related field read with such care and insight, and I am very grateful for this opportunity to converse about the intriguing issues he has raised. I first encountered some of Ken's articles about civil rights lawyering before Brown after Freedom Is Not Enough was in press, and I thought then that my discussion of the earlier history would have been enhanced by them because his portrayal was so rich while our perspectives on the relationship between law and activism were so congruent. Now, reading his comments on the work as published, I wish I had studied law with him! His challenges would have made it a better book.

In 1859, Cándido Xavier Azambuja appeared before officials in Salto, Uruguay demanding the return of an alleged fugitive slave, Pedro, pursuant to the terms of the 1851 Extradition Treaty between Brazil and Uruguay. According to Cándido's testimony, Pedro had fled from his brother Geronimo's estancia located near the Brazilian town of Bagé close to the Uruguayan border. Upon questioning, Cándido admitted that Pedro and Geronimo had been in the Estado Oriental briefly in 1851 in order to drive several herds of cattle back into Brazil, but argued that Pedro returned with his master and had never been to the Uruguayan Republic before or since. In response, Pedro argued that he was not a fugitive Brazilian slave, but rather a “natural of this republic.” Pedro claimed that he was born in Tacuarembó, Uruguay, and promptly produced the baptismal records to prove it. Pedro went on to note that his entire family consisted of free Uruguayans like himself. He then claimed that Cándido had repeatedly attempted “to make him a slave,” going so far as to remove him forcibly from his home and carry him across the border into Brazil. He requested protection from these continued threats to his and his family's basic rights under Uruguayan law.

In 1789 James Madison and Thomas Jefferson engaged in one of their many exchanges on constitutionalism. As with other Jeffersonian flights of philosophy, the younger Madison had to rein in the excesses of his senior partner and collaborator. The issue at hand was Jefferson's famous opinion “that the earth belongs in usufruct to the living.” So confident was Jefferson in the truth of this idea that he called it “self-evident.” Their exchange has received insightful and comprehensive analysis, which needs no revisiting here. Adrienne Koch, whose treatment of this “intellectual reciprocity” is among our most careful, sees it as revealing the essence of the two men, pitting the “more speculative and more daring” Jefferson against “the more astute politician” Madison.

In April 1938 New York's first constitutional convention since 1915 convened in Albany. When it adjourned in late August, one of the amendments slated for a referendum that fall was an “anti-bureaucracy clause,” a provision that would greatly increase the New York courts' oversight of the state's agencies. Although voters rejected it, contemporaries saw the anti-bureaucracy clause as a harbinger of a national campaign against the New Deal. In September 1938 Charles Wyzanski, a former member of the Solicitor General's office, warned Attorney General Homer Cummings that the anti-bureaucracy clause was “the advance signal of an approaching partisan attack on a national scale.” Wyzanski was right: in early 1939 a bill endorsed by the American Bar Association's House of Delegates was introduced in Congress by Representative Francis Walter and Senator Marvel Mills Logan. Just as the New York provision “would have almost certainly destroyed the effectiveness of the state administrative agencies,” the New Dealer Abe Feller warned Cummings's successor, so would the Walter-Logan bill hamstring the federal government. When President Franklin Roosevelt vetoed the bill in December 1940, he declared it part of a national campaign that had begun with the anti-bureaucracy clause.

This article explores Washington's annotated copy of the Constitution and the Acts of Congress (hereafter called the Acts of Congress to remain consist with the label Washington had placed on the front cover) to reveal new insights into his constitutional interpretation. Held in a private collection until 2012, this article is the first to examine Washington's notations in the Acts of Congress for their value as statements about political authority. Washington's comments in the margins of his volume suggest an evolving view of presidential power and constitutional limitations on the executive branch as early as January 1790. His margin notes on the Acts of Congress served as blueprint for his defense of presidential authority and the expansion of the executive branch in the 1790s. Finally, the annotated Acts of Congress inserts Washington's ideas about the presidency into the debate surrounding originalism by revealing how his analysis of the language evolved to meet the demands of governing, leading him to reject the delegates' intent for Article II, Section 2 of the Constitution.

On Tuesday July 4, 1854, it was hot and humid at Harmony Grove; “the heat of the weather…was extreme.” But this did not deter a large audience from gathering at this location in Framingham, Massachusetts. This was the spot upon which many of them had assembled, under the organization of the Massachusetts Anti-Slavery Society, for the past 8 years. They came by crowded railroad cars (from Boston, Milford, and Worcester), and by horse and carriage from many other surrounding towns, eager to hear speeches by prominent members of the antislavery community. William Lloyd Garrison was not the first to speak, but his actions were the most memorable. Addressing the audience, Garrison held up, and systematically burned, three documents: a copy of the 1850 Fugitive Slave Act; a copy of a recent court decision that ordered the free state of Massachusetts to use its facilities to assist in the capture of fugitive slaves; and a copy of the United States Constitution. This was no mere symbolic act; it conveyed an important part of the Garrisonian argument. Namely, that the Constitution was “a covenant with death, and an agreement with hell.”

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law--which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might otherwise seem daunting or anachronistic. Applying yesterday's “no vehicles in the park” ordinance is no less fraught--and no more so--than applying Founding-era legal doctrines.