This table of contents lists titles of articles forthcoming in future issues of the Law and History Review. Each title is accompanied by an abstract, and, where the author has granted permission, by a "pre-print" manuscript draft of the article itself, made available here as a PDF file. All pre-print drafts posted here are protected by copyright administered by the University of Illinois Press.

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To appear in issue 26.3 Sovereign Silences and the Voice of War in the in the American Conflict over Slavery David F. Holland. Citing similarities between constitutional and scriptural reasoning, this essay applies available concepts of constitutional change to a critical episode in American religious history—the long debate over the sinfulness of slavery. It argues that, during the sectional crisis, a strong sense of God’s providential involvement in the destiny of the United States could complement a very restricted application of the sacred Scripture—one that could block the looser readings of both proslavery and abolitionist disputants. It then proceeds to analyze the relationship between these two prominent features of the era’s religious culture. The results of that analysis provide a new perspective on the remarkable eagerness with which many Americans looked to the war as a moment of divine intervention into history. The essay also offers reasons why war might serve a particular theological function in the religious traditions that have shaped the culture of the United States. After using the work of constitutional theorists to shed light on American religious history, it concludes by suggesting that American religious history can offer some clarifying perspective on current developments in constitutional theory. To appear in issue 26.3 Early Islamic legal-historical precedents: Prisoners of War Lena Salaymeh. This article examines the treatment of prisoners of war in a key decade of Islamic history and then compares this historical evidence with juristic rulings formulated over several centuries. Changes in dominant juristic opinions concerning war prisoners correspond to shifting historiographical interpretations of events (particularly battles) from this significant period in Islamic history. By focusing on the contrast between historical narratives and juristic discourse, this article illustrates the complicated role of historical-legal precedent in Islamic jurisprudential thinking. As a case study, the legal issue of prisoners of war suggests that labeling some legal opinions as outcome-determinative may over-simply a complex process in which jurists ‘construct’ legal-historical precedents from a multi-layered tradition. To appear in issue 26.3 Aliens, ambassadors and the integrity of the empire Clifford Ando. Early in its history, Rome treated with, and made war against, states of similar linguistic and cultural background. This accidental parallelism rapidly ceased to obtain, though later Roman sources--all written much later--present its subsequent wars of conquest as continuing to be waged within mutually-recognized frameworks of international law and diplomatic conduct. I argue that these accounts reflect conceptions of the empire as a state, existing within a network of homologous states and likewise sovereign states, that developed and long remained immanent in practice. Like much of what the Romans called "public law," conceptions of sovereignty and international law existed in legal theory without robust articulation and theoretical elaboration. Their force and content must therefore be reconstructed by examining the multiple areas of doctrinal dispute and case law where their normative force was invoked. I focus in this essay on fetial law, namely, the regulations governing declarations of war and the striking of treaties; the conduct of negotiations with foreign powers; doctrine regarding the status of prisoners of war; and religious law on the status of land. Though their testimony is not univocal, I argue that the high Roman empire represents an important and largely unexplored moment in the history of sovereignty and the state. To appear in issue 26.3 Rights, Resistance, and Revolution in the Western Tradition: John Witte, Jr. 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. 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 this essay, I focus on the development of rights talk in the pre-Enlightenment Protestant tradition. More particularly, I show how early modern Protestants, especially followers of Genevan reformer John Calvin (1509-1564), developed a theory of fundamental rights as part and product of a broader constitutional theory of resistance and military revolt against tyranny. In addition, I examine the early development of these Calvinist ideas during the sixteenth-century French wars of religion, and then sketch out briefly the channels of later influence of these ideas within and beyond the Protestant tradition. To appear in issue 26.3 From International Law to Imperial Constitutions: The Problem of Quasi-Sovereignty, 1870-1900 Lauren Benton. In their efforts to define “quasi-sovereignty” in the late nineteenth century, colonial officials referred to principles of international law but also increasingly predicted the absorption of imperial sub-polities into a single legal order. At the same time, their efforts began to shape an understanding of “imperial law” as a distinctive kind of law. This article examines colonial officials’ efforts to define quasi-sovereignty in the context of a crisis in the 1870s involving the “trial” of an Indian ruler for plotting to poison a British Resident in Baroda. The case shows that conflicts over jurisdiction, border disputes, and other tensions preoccupied colonial officials and led them to devise increasingly complex typologies of legal territory and to propose new rationales for the suspension of law. The article then traces similar trends in Basutoland in southern Africa and U.S. Indian law in the United States, showing the global circulation of ideas about quasi-sovereignty and suggesting that “imperial law” is best understood as a variant of constitutional law centered on the problems of describing the limits of law and defining new categories of legal distinction for subordinate territories and polities. To appear in issue 26.3 The Origins of the Concept of Belligerent Occupation Eyal Benvenisti. The law of occupation imposes two kinds of obligations on an army that seizes control of enemy land during war: the obligation to protect the lives and property of the invaded population and the obligation to respect the sovereign rights of the ousted government. These two principles—which reflect the private and public aspects of the law—stem from unrelated intellectual, social, and political roots. This Essay tracks the parallel yet separate evolution of these two aspects of the law until they merge in the text of the 1899 Hague Regulations. The private aspect, the principle of immunity of private property of enemy nationals, was first raised by Vattel and Rousseau in the second half of the eighteenth century, as an extension of the basic distinction between combatants and non-combatants. The public aspect reflects the crystallization of the idea of sovereignty as a collective claim for exclusive control over territory and nationals, inspired by the ideas of the French Revolution and sustained by the balance of power that emerged in Europe at the time. The Essay traces the development of the notion of belligerent occupation as a regime distinct from conquest and its transformation from an idea into a norm of general international law. To appear in issue 26.3 TAKING LEGAL REALISM OFFSHORE: THE CONTRIBUTIONS OF JOSEPH WALTER BINGHAM TO AMERICAN JURISPRUDENCE AND TO THE REFORM OF MODERN OCEAN LAW Harry N. Scheiber. The writers on jurisprudence who are well remembered today as the American Legal Realists focused their analyses of law and their reform agendas entirely upon domestic law and legal process. The Stanford law professor Joseph Walter Bingham (1878-1973) was an important exception, in that he made international law a principal focus of his work. Bingham has been largely neglected by historians of Legal Realism and its antecedents. Yet his iconoclastic, antiformalist approach to jurisprudence in articles on common law and public law published in the 1910s and 1920s were later explicitly recognized by Llewellyn, Pound, and Frank as having expressed some of the central canons of later-day Legal Realism. The present article thus is concerned, first, to locate Bingham’s largely forgotten role in the history of Legal Realism and American jurisprudence more generally. Second, it offers an appraisal of how Bingham took into the arena of legal and policy discourse in international law the same antiformalism and reformist philosophical approach as had marked his early writings. His reform ideas in the late 1930s regarding territorial waters and the definition of “high seas” won him wide attention. Welcomed by some academics and policy makers, his ideas for reforming ocean law were roundly denounced by traditionalists in the academy (now including Pound!) as being a provocative to Japan when war was threatening; and, beyond that, as a crude abandonment of “rule of law” that put pragmatic concerns about legal principle. World War II changed the terms of the ocean-law debate, in which Bingham remained an active reformist contributor. The core idea of his reform agenda was that a realistic view of new technology and ocean resources required abandonment of the long-established customary “three-mile rule” that limited the jurisdiction in their offshore waters of coastal states. He did not live to see this idea, once regarded as so hopelessly radical, incorporated formally into international law when the 1982 U.N. Law of the Sea Convention adopted a 200-mile limit for an Exclusive Economic Zone for coastal states—now a key element in the new global legal order for the oceans. To appear in issue 26.3 A New Deal for the Nuremberg Trial: The Limits of Law in Generating Human Rights Norms Elizabeth Borgwardt. This article is drawn from a larger book project, taking shape under the working title NUREMBERG: Crimes Against Humanity in History & Memory, with the 1945-46 Nuremberg trial serving as a kind of fulcrum. The larger project speaks across disciplines to examine not only the first juridical expression of the idea of crimes against humanity at the main Nuremberg trial, but also the concept’s most salient intellectual antecedents and political and cultural legacies. The article makes a historiographical argument and a normative argument, and the two are linked. First, a discussion of how we might resituate the Nuremberg trial, arguing that a textured and detailed inquiry into the broader policy context of the trial might indeed yield a few mildly prescriptive guidelines about the possibilities for using legal ideas and institutions to move a polity beyond an era of mass atrocities. The article describes the pluralist, “New Deal” nature of the trial, using that label in the looser sense of the historian of ideas Isaiah Berlin, as a general sensibility of a cohort of reformers who prided themselves on being hard-headed and practical, without bothering much about conceptual niceties. Secondly, the article suggests that such a contextual approach also highlights the limits of a search for an overarching theory of “transitional justice,” positing that a more promising path may be concretely to show the role of norms and rules in what the article calls the “thickening” of the international politics of the 1940s. The article then concludes by offering one such concrete example, contrasting Nuremberg with the virtually-contemporaneous Tokyo trial. Tokyo’s troubled legitimacy suggests both the power of small differences and the force of a wider rule of law ideology in developing and consolidating evolving norms for international justice. To appear in issue 26.3 EXCEPTIONALISM AGAIN: THE BUSH ADMINISTRATION, THE “GLOBAL WAR ON TERROR” AND HUMAN RIGHTS Rosemary Foot. Explanations for American exceptionalist behavior cover a broad range of factors from the cultural/historical, the institutional, and the power-political. This article focuses predominantly on the first of these factors and the role such ideas play in underpinning the US belief in its special qualities as a nation and custodial role in global politics. I ask how ideas related to exceptionalism can help up to understand better the Bush administration’s decision to fight a war on terror, as well as to launch an assault on the laws of war and human rights law. The article first provides examples of US exceptionalist behavior since the terrorist attacks in September 2001, before entering more fully into an explanation of why the Bush administration has tried to rewrite the rules in a counter-terrorist era. This section draws on the idea of exceptionalism to aid in the explanation. Next, it assesses some of the consequences this has had for US moral authority, comparing America’s gradual loss of that status during the 1960s and early 1970s with the rapid and deep decline experienced in the contemporary period. Finally, it briefly considers what it might take for the United States to regain some of that standing. To appear in issue 27.1 Making Mexico: Legal Nationality, Chinese Race, and the 1930 Population Census Kif Augustine-Adams. “Take the census; make the country. Let’s do both together!” cajoled one bold, bright poster in the days before May 15, 1930 when census takers dispersed across Mexico to count its inhabitants. In government propaganda, the 1930 census made Mexico and drew its inhabitants into the national fold, an ongoing, delicate project after the fratricide of the 1910 Revolution. In its nation-building effort, the 1930 Mexican census purported to count individuals by legal nationality not by race. Data taken directly from census ballots for Sonora, the state which hosted the largest Chinese population, nonetheless demonstrate powerful social constructs of identity in contest with the census ballot’s elision of race. The census ballot in turn contests constructions of the Mexican nation found in the legal categories of nationality and marital status. Analysis of the count of Chinese in Sonora demonstrates the difficulties individuals, census enumerators, and civil service employees had in agreeing on what made someone Mexican. Although it purports not to, by referencing and reifying race rather than strictly counting by nationality, the 1930 census transforms some Mexicans into Chinese, and thus challenges both the power of law to make citizens and the ease with which race can be officially discounted in government-sponsored, nation-building endeavors.