|
|
|
In This Issue
|
This issue of Law and History Review presents three articles
on North America. The authors are all interested in the emergence
of legalities, especially the role that ideas and ideologies play
in their creation and maintenance. Collectively, they investigate
the problem of slavery for the development of nineteenth-century
American statecraft, the enduring tensions between protective labor
law and corporate capitalism in modern Canada, and the elusive question
of individual responsibility in nineteenth-century American jurisprudence.
|
1
|
|
Our first article, by Gautham Rao,
examines the federal posse comitatus doctrine (i.e., the federal
government's power to compel the service of free individuals) to
investigate how the problem of slavery redefined the relationship
between individuals and the federal state in mid-nineteenth-century
America. In theory and practice, this doctrine underscored the massive
expansion of government power during the Civil War and Reconstruction.
Without adequate capacity to enforce the Fugitive Slave Law of 1850,
the federal government "commanded" American citizens to assist law
enforcement as a posse comitatus. But the doctrine's foundational
relations with slavery proved problematic. For those subjected to
its power—abolitionists, union and confederate conscripts, and defeated
southerners—the posse comitatus itself appeared as a category
of servitude. The Posse Comitatus Act of 1878 conveniently repudiated
an era of federal power that was inextricably connected to slavery
and servitude. Once freed from the image of slavery, the federal
posse comitatus doctrine quietly entered the mainstream of
the American state.
|
2
|
|
In our second article, Eric Tucker
examines what has happened in Canada when protective labor law has
conflicted with the norms of capitalist legality. As he explains,
shareholder liability for unpaid workers' wages was first enacted
in mid-nineteenth-century New York State as a condition of providing
investors with easy access to the corporate form at a time when
there was deep disquiet about its legitimacy. Although the Canadian
debate was more muted, prominent reform politicians expressed similar
concerns about the corporation, leading them to impose first shareholder
and then director liability for unpaid workers' wages. In the latter
part of the nineteenth century, as the norms of separate legal personality
and the limited liability of the makers and managers of corporations
hardened into legal bedrock, the understanding of director liability
as a condition of incorporation was inverted by the judiciary and
treated as an exceptional privilege to be enjoyed only by the most
vulnerable workers. In the late twentieth century, the Supreme Court
of Canada adopted a similar line of reasoning to justify its holding
that workers were not entitled to recover unpaid termination and
severance pay from directors when their corporate employers defaulted.
|
3
|
|
Our third article, by Susanna Blumenthal,
serves as the foundation for this issue's forum, "Consciousness
and Culpability on Trial." As she notes, scholars have often depicted
nineteenth-century American lawyers as resolute guardians of traditional
ideas about freedom and responsibility, dogmatically opposing the
deterministic doctrines of medical science. By focusing on the works
of those who forged the interdisciplinary field of medical jurisprudence
in the antebellum period, she reconsiders the problem of responsibility
as it was conceived by doctors and lawyers. She reveals that both
professions subscribed to the same basic model of moral agency—one
reflecting the influence of the optimistic Common Sense philosophy
of the Scottish Enlightenment. This model encouraged the identification
of freedom with conventional rationality and morality, pointing
toward the paradoxical conclusion that the only fully responsible
persons were those who would never deviate from the laws of God
and man. As they grappled with this attributive dilemma, medico-legal
commentators came to see the wisdom of the alienists' hypothesis
of insanity, endorsing substantial revisions of the common law of
non compos mentis. However, most of these commentators—doctors as
well as lawyers—drew the line at the doctrine of "moral insanity"
and continued to insist that "self-neglect" was the root cause of
most forms of depravity. This remained the case to the end of the
century, even as a rising generation of medical scientists offered
new reasons for doubting the autonomy of the will. Yet it is difficult
to discern whether those who held to this model of moral agency
did so as a matter of principle, practicality, or sheer habit. Sarah
A. Seo and John Fabian Witt, and John Mikhail, offer comments on
Blumenthal's essay. Her response concludes the issue's exploration
of the emergence of enduring North American legalities.
|
4
|
|
Professor Alfred Brophy and I are
delighted to announce that Amalia D. Kessler of Stanford Law School
has agreed to serve as Associate Editor of Law and History Review.
Professor Kessler will be responsible for book reviews on the non-Americas.
Her research focuses on the evolution of commercial law and civil
procedure and explores the roots of modern market culture and of
present-day due process norms. The American Society for Legal History
(ASLH) awarded her "Enforcing Virtue: Social Norms and Self-Interest
in an Eighteenth-Century Merchant Court," the 2005 Surrency Prize
for the best article published in LHR in 2004. Professor
Brophy will continue his excellent service as LHR's Associate
Editor responsible for book reviews on the Americas.
|
5
|
|
As always, this issue concludes with a comprehensive selection of book reviews. We also encourage readers to explore and contribute to the ASLH's electronic discussion list, H-Law, and visit the society's website at http://www.h-net.msu.edu/~law/ASLH/aslh.htm. Readers are also encouraged to investigate the LHR on the web, at www.historycooperative.org, where they may read and search every issue published since January 1999 (Volume 17, No. 1), including this one. In addition, the LHR's web site, at www.press.uillinois.edu/journals/lhr.html, enables readers to browse the contents of forthcoming issues, including abstracts and, in almost all cases, full-text PDF "pre-prints" of articles. Finally, I invite all of our readers to examine our administration system at http://lhr.law.unlv.edu/, which facilitates the submission, refereeing, and editorial management of manuscripts. |
6
|
| David S. Tanenhaus
|
| University of Nevada, Las Vegas |
|
Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.
|