One of the earliest and the most famous statements of realism in international law comes from ancient Greece: the Melian dialogue in history of the Peloponnesian War. In 416 B.C.E., the Athenians invaded Melos, a small island in the Aegean that sought to remain neutral and avoid joining the Athenian empire. Thucydides presents an account of the negotiation between the Athenians and the Melian leaders. The Athenians offer the Melians a choice: become a subject of Athens, or resist and be annihilated. The Melians argue, among other things, that justice is on their side. The Athenians dismiss arguments from justice as irrelevant and reply with a statement that many scholars believe represents view: “We both alike know that in human reckoning the question of justice only enters where there is equal power to enforce it, and that the powerful exact what they can, and the weak grant what they must.”

Scholars have long asked to what extent there was a distinctive Puritan jurisprudence in seventeenth-century Massachusetts. Purita n jurisprudenceis a shorthand that refers to those elements of seventeenth-century Massachusetts's laws and institutions designed or selected because of the early colony's religious commitments. Among the fundamentals of Puritan jurisprudence were the integrated and determined use of legal and ecclesiastical institutions to foster a godly community, the importance of the Bible as a touchstone for the legitimacy of rules, and a constitutional order restricting colony-wide voting and political office to regenerate members of covenanted churches. Some historians speak of “Puritan justice” or “Puritan legal culture” rather than “Puritan jurisprudence.” Differing in detail and emphasis, these formulations point to a core idea animating much writing about early Massachusetts: that the colony lived by a legal order distinctive by the standards of contemporary England and her North American and Caribbean colonies and strongly shaped by Puritan religious commitments and social thought.

In antebellum America, as in pre-industrial England, it was commonplace to witness civilians accompanying sheriffs and justices, scouring the countryside in search of scoundrels, scalawags, and other law-breakers. These civilians were the posse comitatus, or uncompensated, temporarily deputized citizens assisting law enforcement officers. At its core, the posse comitatus was a compulsory institution. Prior to the advent of centralized police forces, sheriffs and others compelled citizens to serve “in the name of the state” to execute arrests, level public nuisances, and keep the peace, “upon pain of fine and imprisonment.” Despite its coercive character, though, the posse was widely understood as one among many compulsory duties that protected the “public welfare.” Americans heeded the call to serve in local posses, explained jurist Edward Livingston, because of communal “ties of property, of family, of love of country and of liberty.” Such civic obligations, wrote Alexis de Tocqueville in 1835, illustrated why Americans had such a pressing “interest in … arresting the guilty man.” At once coercive and communitarian, lamented Henry David Thoreau, the posse comitatus exemplified how those that “serve the state … with their bodies,” were “commonly esteemed good citizens.”

The essence of the contract of employment is the performance of service in exchange for wages. As such, labor assumes a commodity form—a capacity that is bought and sold in labor markets. But because labor cannot be separated from its bearer, and is not produced for the market, it has been widely recognized as a special or fictive commodity that has been the subject of a distinct legal regime. Historically, that distinct regime—here referred to as employment law—has served both disciplinary and protective functions. On the one hand, it assists employers to extract from the worker the value of the labor they have purchased, while on the other it protects workers against unacceptable exploitation. While these functions are a constant, the scope and techniques of legal discipline and protection vary over time and place, as does the balance between them, depending on such factors as the development of social relations of production, the balance of power between workers and employers, dominant ideologies, etc. In the fulfillment of these functions, law has encountered a series of recurring dilemmas that stem structurally from labor's special commodity status and socially and politically from conflicts between workers' and employers' interests.

On January 24, 1885, at 9:30 in the morning, a woman from the small rural village of Saint Laurent in East Flanders entered the Palace of Justice of Ghent. Pregnant with her eighth child, she had fled from her husband and was filing for a divorce. That morning, she was led to a small room—the office of the judge of the Regional Court—and was standing alone with four men whom she barely knew and did not understand because they spoke French. Her husband had only sent a lawyer to represent him. As the woman's “avoué” presented her complaints—abuse, threats, and finally her fear for the life of her unborn child that had forced her to leave the marital home—she could only hope he had correctly recorded her story and was representing it convincingly enough to take her case to the next level. Until then, her divorce had been a game between jurists in which she was not much more than a prop. After this reading of her complaints, however, the whole neighborhood was alerted to her failing marriage. Some neighbors even entered the courtroom with her to act as witnesses. Not only the judge, but the whole local community took up the task to decide if she had been the victim of a derailed husband, or had failed as a wife. And accordingly, it was decided if she was to become a “divorced woman,” with all the social stigmatization attached to that notion, or if she would be forced to return to her abusive husband again.

In 321 B.C.E., a Roman army led by both that year's consuls was trapped near Caudium, in a defile named the Caudine Forks, the result of a clever strategem devised by the Samnite general Gaius Pontius. According to Livy, writing some three hundred years later, the Samnites had made no plan to capitalize on their good fortune, and so they sent to Pontius's father, Herennius Pontius, to seek his advice. “Let them all go unharmed,” he said. The messenger who returned with that advice was promptly sent back. “All right,” said Herennius, “kill every single one of them.” Unable to decide whether his father had lost his mind, the son had his father brought to the camp, where he gave the same two pieces of advice and justified each. But what would happen, he was asked, “if they are sent away unharmed and conditions are imposed upon them as conquered, in accordance with the law of war (ut et dimitterentur incolumes et leges iis ire belli victis imponerentur)?”1 That practice neither makes friends nor removes enemies, replied the father. Their humiliation will rankle them until they avenge it.

An inquiry into law in Manchukuo might seem, at first glance, to be something of an oxymoronic task. The state itself was created in clear contravention to international law, and when the investigation of the Lytton Commission stated as much in 1933, Japan walked out of the League of Nations, the closest the world had to an international arbitrational body at the time. Within Japan itself, the creation of Manchukuo could be considered the point of no return in the march toward wartime militarism. After this event, arbitrary and military power ran roughshod over civilian institutions of governance, so much so that some scholars of Japanese legal history characterize the period as the “collapse of the legal system” (hō teisai hōkai).

The inseparability of law and history is manifest when historical interpretation -an integral component of legal hermeneutics-results in juristic disagreement. This article is a foray into the shift from prohibition to permissibility of prisoner of war execution in early Islamic legal history that connects changing legal opinions to changing historiographical readings. Contemplating the contrast between historical and jurisprudential interpretations of historical events with legal implications will facilitate investigation of the interactions between historiography and legal discourse. Exploring a few questions will highlight the ambiguous, overlapping roles of historians and jurists as they construct (legal) histories: (1) Do historical narratives about all the battles that occurred during the Prophet's lifetime illustrate his legal practice concerning treatment of prisoners of war? (2) After the Prophet's death, how did Muslim jurists adjudicate this issue? (3) What legal reasoning did key Muslim jurists of the ‘professionalization’ period apply in permitting the execution of war prisoners? (4) What could explain the discrepancy between the chronologically earlier opinion (prohibiting prisoner execution) and the later, more dominant legal opinion (permitting prisoner execution)?

Addressing an audience of medical students in 1810, the Philadelphia physician Benjamin Rush recounted a recent call he had made, in consultation with a Dr. Physick, to the residence of “a lady in this city, equally admired for her amiable virtues and elegant accomplishments.” As they were seated in the parlor, she related her medical complaint: “I am blessed with one of the best of husbands, and a family of promising children, whom I love most affectionately,” she began, “and yet, in the paroxysms of my disease, and with the perfect exercise of my reason, I wish for an ax, that I might split open their heads, and lay them all dead at my feet.” Upon hearing this terrible confession, Rush was convinced that he was faced with a case of “moral derangement.” By this, he meant “that state of mind in which the passions act involuntarily through the instrumentality of the will,” a condition he linked to an underlying physical disorder. Since this form of derangement was most clearly manifest in the commission of crime, Rush explained, it was invariably mistaken for ordinary depravity in courts of law, with tragic results. In fact, he reckoned that if his patient were to succumb to her morbid impulses, her fate would be sealed: all her virtues and accomplishments would prove insufficient to save her “from expiating her disease by an ignominious death.” Rush further observed that there was cause for concern on the civil side of the docket as well, for it appeared that the morally deranged were left free to make wholly unnatural dispositions of their estates, to the great injury of their unoffending families. In light of this state of affairs, he charged his students with broader “objects and duties” than simply caring for their patients. It was, he insisted, a physician's civic obligation to extend the benefits of his science “to the protection of property and life” through the cultivation of a distinctly “medical jurisprudence.”

“She was always poking holes in balloons,” a friend said of the late and justly beloved Kathryn Preyer. These two outstanding articles, the first winners of the Preyer Competition, do that too. Together, they suggest that the Cold War affected domestic life in different ways than we have assumed.

Over the past three decades, a veritable cottage industry of important new scholarship has emerged dedicated to the history of rights talk in the Western tradition prior to the Enlightenment.1 We now know a great deal more about classical Roman understandings of rights (iura), liberties (libertates), capacities (facultates), powers (potestates), and related concepts, and their elaboration by medieval and early modern civilians. We can now pore over an intricate latticework of arguments about individual and group rights and liberties developed by medieval Catholic canonists and moralists, and the ample expansion of this medieval handiwork by neo-scholastic writers in early modern Spain and Portugal. We now know a good deal more about classical republican theories of liberty developed in Greece and Rome, and their transformative influence on early modern common lawyers and political revolutionaries on both sides of the Atlantic. We now know, in brief, that the West knew ample “liberty before liberalism,” and had many fundamental rights in place before there were modern democratic revolutions fought in their name.

In “Mind of a Moral Agent,” Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends?

Various students of constitutional law have proposed a negative relationship between the possibility of formal amendment and recourse to informal construction. They suggest that if formal amendatory appeal to the sovereign People seems excessively difficult, a constitutional culture will more readily tolerate expansive interpretations or simple political action as mechanisms of change and clarification. Conversely, if the processes of amendment sufficiently allow the People to clarify or alter their own original charter, a constitutional culture will manifest less willingness to let judges and politicians put words in their mouths. The basic thrust of such constitutional logic is that, where reasonably possible, sovereigns will speak for themselves.

June of 1955 was a busy month for the NAACP. Throughout the country, members and officials used direct action and a variety of legal tools to further the organization's fight against workplace discrimination. At the NAACP's annual convention, the organization reaffirmed that it “vigorously supports the purposes of organized labor.” But it also urged that “[w]here labor unions still practice any form of racial discrimination,” its members should “bring all the pressure they can against these undemocratic and discriminatory practices,” including using publicity, filing complaints with President Eisenhower's Committee on Government Contracts (PCGC), and, “wherever possible, by court action.” The audience hardly seemed to need this reminder.

One overriding concern I have with Susanna Blumenthal's insightful and stimulating article, “The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law,” is whether there is anything sufficiently distinctive about Scottish Common Sense philosophy that justifies the role Blumenthal ascribes to it. In a representative passage, she writes:

Common Sense philosophy left would-be “moral managers” with a puzzle. If rational and moral faculties were innate and universal, what explained the great conflicts among men concerning matters of belief, manners, and morals … leading some to commit acts that were … patently irrational or downright evil? And to the extent that there was a common sense about the dictates of reason, propriety, and moral sense, why did some individuals act in defiance of them?

The roots of the international legal order have often been traced to intertwining scholarly and political traditions dating back to the early seventeenth century, in particular to early writings in international law and the rise of the nation-state in Europe. Recent scholarship has attacked this narrative from many angles. One approach has been to reexamine early modern European politics and discourse, in particular questioning whether, for example, the publication of Grotius's writings, or the Peace of Westphalia, functioned as a foundational moment in the history of the interstate order. A second, complementary approach has been to broaden the history of global order to encompass inter-imperial politics, including the legal relations of imperial powers and indigenous subjects. The two projects have been occasionally combined in efforts to trace the impact of imperial politics on trends in international law.

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.