This is a critical historiographical essay animated by the research question of how the decisions of police and sheriffs illuminated and drove the transformation of white supremacy through different forms from emancipation to the end of Jim Crow segregation. It situates this focus amidst current methodological trends that stress structural oppression and argues that law-enforcers’ agency could illuminate discussions among historians and other scholars about the relationship between formal and informal law alongside the rise of the modern criminological state. The historical importance of enforcers is accentuated in the story told in each section—the shifting demographics of enforcement during Reconstruction; the inequalities of policing alongside lynching in the last decades of the nineteenth century; the complex interplay between policing and segregation statutes, colorblind criminal law, and mob violence in the Jim Crow South; the concurrent modernization of racialized policing nationwide; and the displacement of informal mob law and formal racial caste by a national regime of extralegal police violence, unequal patterns of incarceration and execution, and federal protections of civil liberties and civil rights.

The British treated Australia as terra nullius—as unowned land. Under British colonial law, aboriginal Australians had no property rights in the land, and colonization accordingly vested ownership of the entire continent in the British government. The doctrine of terra nullius remained the law in Australia throughout the colonial period, and indeed right up to 1992.

The handling of infanticide in late medieval France offers modern audiences an underappreciated paradox: on the one hand infant murder was deplored as grave sin and crime, on the other hand, it was a pardonable offence, even the infanticidal singlemother who had killed to conceal her sin could obtain royal grace. This is far more than the usual story of law differing from practice. Christian ideology of mercy and forgiveness for sin played a central role in shaping the regulation of illegitimate births as well as abortions, stillbirths, and infanticide. Church and secular authorities alike sought to prevent as well as punish the death of infants, but they also created and implemented systems of justice with the explicit purpose of providing mercy to the repentant murderer, even an infanticide.

This article traces how Ottoman interpretations and uses of Islamic law adapted to deal with non-Muslim rebellions between roughly 1769 and 1830. Drawing on Ottoman fatwas (legal opinions), bureaucratic registers, sultanic decrees, and chronicles, as well as British diplomatic records, it argues that the Ottoman state actively reinterpreted its commitment to the Islamic legal tradition in order to forge the law of rebellion into a weapon against both foreign and domestic enemies. The Ottomans first used declarations of rebellion to mobilize military forces against its imperial rivals, then to discourage and suppress domestic dissent, and finally to deny rebels’ sovereignty under international law. In doing so, the Sublime Porte effectively redefined sovereignty by interleaving Islamic and international concepts. The article places this development in global context, arguing that it resembled legal moves made by Atlantic states as they dealt with the Age of Revolutions. At the same time, this story shows how the Ottoman state’s commitment to Islamic law, and its employment of officially authorized scholars to interpret that law, could both license and constrain state policy. The Islamic legal tradition was flexible, but also meaningful. Interpretation occurred at different levels, and was done by different actors. While the state had significant latitude, it faced limits arising from the substance of the law and the process of interpretation itself.

In July 2012, a landmark hearing before the High Court in London found that the British government had a case to answer concerning human rights abuses, including torture and rapes, allegedly perpetrated by British colonialists in Kenya, during the Mau Mau counterinsurgency of the 1950s. Among the four elderly Kenyan claimants in court that day was a Kikuyu woman, Jane Mara, whose testimony related the sexual abuses she had suffered. Jane had been only 15 years of age, in 1954, when she was accused of being a Mau Mau sympathizer, and along with other villagers, she was taken for interrogation. The experience Jane Mara recounted was horrific. Beaten repeatedly by her inquisitors, she was then pinned to the floor by four African guards who held her thighs apart, while another guard forced a glass bottle into her vagina, using the sole of his boot to direct the bottle deeply into her. The pain was excruciating, and Jane realized that the bottle had been heated. When this ordeal came to an end, she was compelled to sit and watch as the three other young women were subjected to the same torture.

If a German couple wanted to get married today, they would have to consult the German Civil Code, the Bürgerliches Gesetzbuch or BGB, for information on how to do so. From the BGB, they would learn that—provided that they are competent, more than 18 years of age, not related in a direct line or (half-) siblings, and not currently married—they can get married before the Standesbeamter or civil registrar. They would also learn that should they want a divorce in the future, any proceedings would have to be brought in the family court, which is a special division within the German civil courts of first instance, and that the judge hearing their case would be required to consider whether their marriage has “failed”: a state of affairs that that judge would be legally compelled to presume if one or both of them wanted the divorce (and they had lived apart for a prescribed number of years).

What did the practice of law look like on the high seas? This has been a matter of some discussion among legal historians, with the bulk of the evidence coming from encounters between European ships in the Atlantic and Asia. This article takes a different tack, taking as its starting point a series of contracts copied into the logbook of the early-twentieth century Arab dhow captain (nakhoda) ‘Abdulmajeed Al-Failakawi. Although some of these appear to have been contracts that the nakhoda entered into or witnessed, most were contractual templates that presented formulas for a variety of written obligations between members of the Indian Ocean maritime community. In reading these formulas alongside contracts left behind by Al-Failakawi and other Indian Ocean nakhodas, I reflect on how law circulated by members of an itinerant society of mariners that sought to forge the contours of a commercial world on their ships and across the waters, and weave it through an imperial seascape. I explore how workaday forms of law and legal epistemologies circulated around the maritime marketplaces of the Indian Ocean world, at the margins of a colonial and imperial political economy, through actors who read across different genres of literature, and who moved between the multiple roles of captain, navigator, supercargo, and scribe.

The current historical consensus is that English common law was somewhat confused, but that coerced servitude was legal in England before 1772, and certainly in its empire, where English law on slavery did not reach, because it was “beyond the line” of English justice. The common law is characterized by an effort to see continuity and consistency, and historians (despite our natural desire to track change) often look for those patterns too. Such efforts to provide a consistent overview of an England that was free and colonies that created slavery on their own—have obscured the vibrant struggle over slavery within the English judicial system—the common law—over more than a century. Not only did the common law on slavery change profoundly during the seventeenth and eighteenth centuries: the common law became an instrument of crown policy. It did so within a federal empire, wherein colonial legal norms had to adhere, in crucial ways, to that common law. English high court judges thus provided the legal foundation for an imperial common law of slavery that allowed people to be deemed absolute property. That definition of people as property was closely connected to absolutism, both in theory and practice. In theory the absolute power of kings over subjects was connected to that of masters over slaves. In practice, the crown's use of the courts to create laws without parliamentary consent (to bypass parliament) also increased crown revenue and thus their independence from parliamentary control. These powerful legal mechanisms made it possible to “recover” enslaved people as assets for debts, a legal definition that was essential for a market in people to function sucessfully. This history reveals the absolutist character of early capitalism, and the extent to which the character of capitalist development depends on the legal rules that define markets and justice.

But here are four fragments that will possibly play a part in a longer work: I begin with a sketch of what it is to do legal history today, in the wake of the enormous growth and development of the field of legal history in legal education, over the past forty years. I continue with an extended examination of the answers Willard Hurst, the founder of the modern discipline of legal history, gave more than fifty-five years ago to the question, what does legal history do. Finally, in the two final fragments, I spin off from Hurst to begin the work of suggesting an understanding of legal history less tied to legal thought and legal advocacy. How to practice a legal history that is something apart from legal scholarship.

In the 1950s, the National Association of Women Lawyers (“NAWL”) undertook what it considered its “greatest project,” the drafting and promotion of a model no-fault divorce law. It launched its campaign at a time when post-war realities and the law in practice were putting increasing pressure on the law on the books which lagged behind contemporary sensibilities. NAWL acted two decades before the no-fault divorce “revolution” of the 1970s. It did so in the 1950s when women were said to be both “domestic” and “quiescent.” The Article has three aims. First, it considers NAWL's project as a missing piece in the history of divorce law, the no-fault revolution, and the rise of mass divorce in mid-twentieth century America. Second, it reflects on the implications of NAWL's undertaking for the standard narrative of “domesticity” in the 1950s, an account that has been questioned in recent years. Last, it tells a story of women's activism in the depth of the so-called “doldrums” of the organized women's moveme