Scholars now recognize life imprisonment without parole (LWOP) as a defining feature of contemporary American punishment. As LWOP becomes topical, it draws attention to a significant, more general phenomenon: the growth of state-sanctioned policies and practices by which prisoners face the remainder of their lives in prison. This article seeks to expand perspectives on contemporary punishment by looking closely at how lifetime incarceration took shape historically in different political projects and penal systems. Drawing from primary materials and a comprehensive review of secondary historical literature, I examine modes of perpetual penal confinement: combinations of sanctions and practices that result in holding people in state custody permanently. Interpreting classic penological paradigms anew, the article illuminates the significant role that perpetual confinement has played in influential theories of criminal justice and shows how it has proved a versatile tool for social control and prison administration across diverse penal schemes, largely because of its unique temporal character. The article concludes with a diagnosis of contemporary American punishment, suggesting that LWOP—beyond being a cruel and exclusionary penalty—is symptomatic of a system in which imprisonment until death has become uniquely ordinary.

This Article treats the Indian National Army Trial of 1945 as a key moment in the elaboration of an anticolonial critique of international law in India. The trial was actually a court-martial of three Indian officers by the British colonial government on charges of high treason for defecting from the British Indian Army, joining up with Indian National Army forces in Singapore, and waging war in alliance with Imperial Japan against the British. In this trial, the defense made the radical claim that anticolonial wars fought in Asia against European powers were legitimate and just and should be recognized as such under international law. The aim of this Article is to draw attention to the understudied role of anticolonial movements in challenging the premises of international law in the aftermath of World War II.

Criminal cases against domestic violence in India frequently result in unlawful “compromises” where litigants breach legal procedure and negotiate out-of-court settlements. Using ethnographic and interview data, this Article analyzes how legal cases become extralegal settlements. I argue that India’s legal environment engenders an “aspirational-strategic” legal consciousness among survivors, who simultaneously believe they deserve what the law promises while distrusting legal procedure and law enforcement personnel. Their bifurcated vision of the law leads them to negotiate illicit settlements. These findings indicate that expansions in legal rights can have contradictory effects on rule of law. Depending on the political economy of the legal institutional environment, citizens may respond to rights by simultaneously adopting new norms while ignoring legal rules and procedure.

The Hong Kong government made tactical use of legal instruments to end the Occupy Movement in 2014, yet there were divergent responses to the injunctions at the two main protest sites. Through a within-case comparison, this study argues that diverging legal frames explain the different reactions at the two sites. Law, as a constitutive symbol of certain collective action frames, constructs the boundaries of a movement and creates expectations among protesters regarding how to address legal instruments. The protesters in Admiralty tended to adhere to a law-abiding frame that required them to respect and obey the law when confronted with legal tactics. In contrast, the framing contest and self-selection of participants made activists in Mongkok susceptible to a law-defying frame that disposed them to resist the actions of law enforcement authorities. This study sheds light on the conditions under which protesters will obey the law.

The essays in this symposium on the work of Dirk Hartog encompass meditations on legal positivism and the histories of slavery, civil rights, and women’s rights as well as contemporary analyses of spousal abuse and the dependency of adult children. That wide range of subjects, approaches, and concerns might be puzzling were it not for the wide substantive, methodological, and theoretical range in Hartog’s own oeuvre. Hartog’s work has been so generative for other scholars because of his simultaneous engagement with history and law, with fact and theory, with the whole sweep of the nineteenth century and the most minute detail of a person’s life. In describing in this introduction what makes Hartog Hartog, I emphasize the unique blend of professional commitments and personal sensibilities he brings to his work: the sensitivity with which he approaches history; the humanity with which he treats his historical subjects; the dexterity with which he analyzes the law; and the sophistication with which his human and legal stories yield up jurisprudential insights. I also, respectfully, disagree with Hartog himself on the essence of his work. Where he laments that he exists in a “muddle in the middle”—writing histories of a problematic “inbetweenness”—I see him as making the messy lived reality of legal history cognizable to modern reader. His work reveals the simultaneity of multiple and overlapping legal regimes as they shaped and were shaped by the human needs of real people.

Hendrick Hartog’s Pigs and Positivism is well known as an investigation of legal pluralism. The legal pluralism angle of the article focuses on the multiplicity of legal sources. In that sense, it reads “positivism” through the sources thesis: the idea that only those social facts recognized by the legal system as sources of law can exert an impact on the validity of a legal norm. This Essay highlights a different aspect of the article, which is the “definition of law as an arena of conflict within which alternative social visions contended, bargained, and survived.” Crucially, the alternative social visions at stake have different roles for the law itself. In other words, the conflict is not limited to a particular social arrangement (will there or won’t there be pigs on the streets); it is at least in part a conflict over the question of how law will fit into social conflict, or politics.

Hendrik Hartog’s article “The Constitution of Aspiration” paved new ways of thinking about the historical formation and political significance of rights-consciousness. This Essay considers the contribution of social histories of rights-consciousness to our understanding of the underpinnings and consequences of constitutional change. In particular, we consider the impact of this literature on debates regarding questions of periodization in American constitutional history and on debates concerning the relationship between egalitarian and counter-egalitarian strands of rights-consciousness. We critically evaluate the importance and limits of these contributions by focusing on methodological and interpretive questions that emerge from recent literature on struggles for racial and gender equality.

Criminal law’s treatment of spousal violence oscillates between two different views. According to the first view, spousal violence is to be defined and prosecuted using generic titles such as assault or battery. According to the second, spousal violence constitutes a form of abuse—a terminology implying a background state of power or inequality that exists in spousal relationships, turning it into a distinct legal wrong. This Essay draws on Hendrik Hartog’s account of nineteenth-century marital consciousness in Man and Wife in America—which considers people’s assumptions and expectations regarding rights and duties within marriage—to illuminate this contemporary debate and situate it within a larger inquiry concerning the residues of patriarchy in contemporary law and society. This analysis calls for a fresh normative assessment of the different views for proscribing spousal violence under contemporary criminal laws.

The literature on the relationship between parents and adult children reveals an embedded tension. While the law typically characterizes parents and their adult children as legal strangers, several legal rules assume intergenerational altruism. This Essay argues that Someday All This Will Be Yours by Hendrik Hartog unpacks this dichotomy and offers a much richer depiction of intergenerational relations in an age of market economy. The book portrays an intermediate space where autonomous individuals engage in private ordering but the same parties also maintain a dynastic understanding of their commitments. This depiction provides a useful lens for the analysis of occurrences of informal care between parents and adult children. The Essay discusses intergenerational cohabitation in the wake of the 2008 financial crisis as an example of such an analysis.

Hendrik Hartog’s The Trouble with Minna complicates the binary between freedom and unfreedom in American history by probing the mixture of slavery and contract in antebellum New Jersey’s regime of gradual emancipation. This Essay argues that if Hartog’s narrative is read for more general patterns—in addition to everyday lived experiences which Hartog emphasizes—it also reveals resistance to such line-blurring, and historical efforts to construct conceptual boundaries that would separate slave relations from capitalist ones. That resistance should assume a more central conceptual place within the current tide of historiographical emphasis toward blurred lines.

In this Essay, I offer two ruminations about the field of legal history, as reflected or refracted in the essays in this symposium on my work. First, the changing subjects and approaches that have characterized my work and that occasioned these essays reflect many of the changes in the field over the past forty years. Or better, they demonstrate the field’s reconstruction over the past forty years. They sit between and draw on both the professional discourses of history and of academic law as each changed in the late twentieth and early twenty-first centuries. And second, those changing subjects and approaches are unified by a commitment to and an exploration of complexity and of middle spaces. That commitment represents a fundamental challenge to many of the core assumptions and practices of leading figures in legal history.