[Editor’s note: this is the first of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights, Cambridge University Press, 2025].
Dean Stopler has written a penetrating and persuasive account of the position of women in liberal democracies, specifically, although not exclusively, the United States. She characterizes liberal societies as patriarchal, meaning that the societies are organized, managed, and dominated by men to the detriment of women. I largely agree, but have one complicating narrative from outside the Western societies that form the basis of Stopler’s argument. Before I give my perspective, however, some background on the book is necessary.
To simplify an empirically rich and absorbing account of patriarchy in Western society, Stopler begins with the historical, social, and ideological foundations of gender discrimination. Although religion may have initially included worship of a Mother-Goddess, e.g., Amaterasu in Japan, the emergence of archaic states brought monotheism and, over the centuries, an elaborate ideological, religious, and social structure entrenching patriarchy based on a single male god. While male dominance of the contemporary world is hardly a novel idea, Stopler broadens and deepens that analysis by focusing on gender discrimination in precisely that portion of the world that often compliments itself on countering that dominance, the liberal democratic West.
As the title indicates, the self-congratulatory rhetoric of democratic liberalism masks, if not reinforces and perpetuates, a patriarchic structure that keeps both genders in their unequal relative positions. Stopler does not resort to dramatic or rhetorical reference to time-worn, if accurate, generalizations, but painstakingly demonstrates how patriarchy is reconstructed in contemporary Western democracies with reference to and analysis of phenomena like the transformation of the US Supreme Court and decisions like Dobbs eliminating the national right to abortion.
In doing so, she recounts the transformation of liberalism’s celebration of individual human rights from an emancipatory call to gender equality into a vehicle for the re-establishment of male control of women, particularly married women, all with the passive involvement, if not approval, of leading liberal ideologues like John Rawls and in contravention of international covenants like CEDAW [the Convention on the Elimination of all Forms of Discrimination Against Women]. For Stopler, the vehicle for this transformation is the pre-occupation with and faith in the public/private distinction and its insulation of the patriarchal structure of human relationships, especially but not exclusively in families.
Stopler is persuasive, and I agree that contemporary political, religious, and ideological trends, at least in the United States, support her claims. For this reviewer, however, she neglects a perspective that would significantly complicate the relative status of men and women in contemporary affluent democracies. The missing perspective is that of non-dominant men, by which I mean 80 to 90% of the male population. To illustrate my argument I will recount the social and economic position of Japanese men in a Tokyo suburb of 30+ years ago. To make explicit what will be obvious, I am recounting a personal experience. I make no empirical claim either that the situation I describe was universal in Japan at that time or that it represents the situation in other circumstances and societies. That said, I believe that my reflections present a viewpoint that is often neglected in discussions of gender relationships in rich, capitalist societies like the US, Western Europe, and Northeast Asia.
At the end of the last century I lived with my family in a middle to upper-middle class suburb of Tokyo. The area was entirely Japanese (with perhaps assimilated Korean citizens), i.e., there was no significant population of foreigners other than the four of us. Our daughter was beginning kindergarten and we enrolled her in the local nursery school. Each morning and afternoon either my wife or I delivered and picked her up at the appropriate time. During that year, my wife made lifelong friends among the mothers of our daughter’s friends. I never met – literally never saw – a father. The mothers were at home; the fathers left home for work before the children went to school and returned after the rest of the family had eaten dinner and, often, gone to bed. The fathers not only worked on Saturdays but also frequently had to socialize with colleagues in the evening. My wife has maintained her relationships with her friends from that period over the course of several subsequent stays in Tokyo. The first and only time I met a father was when one accompanied his family to New York on vacation.
To step back from the personal to state the obvious: the mothers managed the home and childcare and had no chance for any life other than that of mother and housekeeper. While it is important to note that occupational opportunities increased after the children had reached adolescence, the chance to pursue a profession or conventional management career was non-existent. Meanwhile, the husbands/fathers were working intensively. In other words, the relative gender roles were consistent with the patriarchic society described by Stopler.
What is missing, however, in my experience and in many accounts of patriarchy is what happened to the men. A tiny percentage became patriarchs, designing, creating, and presiding over the liberal Japanese society of the period. The rest became employees. They did not rule the world; they served others. Like the women, they were denied professional fulfillment, unless they enjoyed going out drinking and making small talk with bar hostesses with their bosses or being assigned for months at a time to market research while living in a business hotel in, e.g., Hungary or Argentina. Unlike their wives, however, they were also denied to a non-trivial extent the joy of parenthood. In a word, they were oppressed. At that time living in Tokyo, I felt sorrier for the fathers than for the mothers.
Two important qualifications must made. First, the above account is out of date. A recent return visit to our daughter’s nursery school confirmed what my wife and I had expected: there are now lots of fathers bringing and picking up their kids. On a grander scale, although the political role of women generally remains relatively low in Japan, the current Prime Minister and, perhaps more significant, the current Minister of Finance are women. Second, Japan and the Japanese gender situation are unique, just as are the equivalent situations of Germany, the US, and every other society. Thirdly and most important, my family’s experience does not contradict Stopler’s central argument about patriarchy, especially in the family. What I hope my reflections do contribute, however, is an additional perspective on the costs of patriarchy: what it means for non-dominant men and especially for fathers. To state the obvious: the preclusion by gender discrimination of free choice of how to structure one’s life has social and personal costs that extend even further than those described in Women’s Rights in Liberal States.
Comparison in the Context of Legality Difference: A Response to My Interlocutors
[Editor’s note: This is the final of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]
I am tremendously fortunate to have Matthew L.M. Fletcher, James Whitman, and Will Kymlicka respond to my article.[1] Their replies are a model of thoughtfulness and charitableness. Especially as an Assistant Professor, I am grateful, also, for the distinct challenges they present, which do honour to my argument. Finally, I am appreciative that their interdisciplinary questions represent the range of my target audiences, including the fields of Indigenous Law and Governance, Comparative Law, and Political Philosophy. I extend my sincere thanks also to the ASCL for its invitation to host this dialogue on its blog.
Because my interlocutors’ interventions are not readily synthesized under common themes, I will respond to them in the order that they were published. For Whitman and for Kymlicka, an adequate response requires that I draw upon contentious theoretical claims. Since a blog is not the appropriate forum in which to work contentious claims through, I am in the unenviable position of having to introduce novel ideas with (one hopes) some claim to reasonableness, even absent the fulsome defence they clearly need. In both Whitman’s and Kymlicka’s cases, the issues presented are among the most pressing my work raises. As they have generously anticipated, I simply need more time. Thus, I would ask my respondents to receive these preliminary replies as a prelude to the more robust accounts forthcoming, and, likewise, for readers to receive them as invitations to a larger dialogue.
In effect, that is the whole point. My hope is that this mini-symposium, and the article supporting it, might serve to expand space within the fields of Comparative Law, Political Philosophy, and to a lesser extent, Philosophy of Law, for the study of Indigenous peoples’ systems of law and governance. While legal and cultural anthropologists, as well as scholars in the field of Indigenous Legal Traditions, make distinct and valuable contributions to our understanding of Indigenous peoples’ systems of law, comparative law scholars, political philosophers, and legal philosophers, are uniquely situated to make significant contributions of their own, to the benefit of Indigenous peoples’ legal systems and to their own traditions of intellectual inquiry.
On Matthew Fletcher’s Reply
My first interlocutor is Professor Matthew L.M. Fletcher, a scholar of Federal Indian Law and of Tribal Law, with a sustained interest in Anishinaabe legal and political philosophy. His intervention is, fittingly, comparative: he adds to my argument a closely related comparator group from another jurisdiction, American Tribal (he specifically includes Anishinaabe) nations. He observes that the legal and political context of belonging in these communities is also organized under a citizenship model. As in the Canadian context, the citizenship model is imposed by a settler colonial state: if tribal nations want not to be excluded from federal funding, they “have to play by the colonizer’s rules”. Fletcher explains that, in the American case, that means not just using a citizenship model of belonging, but using it in the service of achieving the federal government’s Indigenous exclusion imperatives, defined by blood quantum. The intended generational impact is diminishing capacity to meet what is ultimately a race-based criterion for membership. As a predictable result, within many tribal governments’ membership policies, whether retrospectively (through mass disenrollments) or prospectively (through enrolment moratoriums), “Inequities abound”.
In the Canadian settler colonial context, the law and politics of belonging on First Nations is equally fraught, and for the same internal colonial[2] reasons. The exclusionary practices that First Nations’ governments have deployed in response to internal colonial governance imperatives have often been gendered.[3]
A related similarity, against the association sometimes made between kinship and the pejorative use of “tribalism”, is that in both jurisdictions the result of legal but unjust blood-based exclusion is achieved directly through citizenship. Of course, this does not place kinship on higher moral ground, but it provides warrant for reconsidering perspectives that kinship is somehow more deserving of skepticism than is citizenship with regard to how each honours the principle of equality within Indigenous political communities. Fletcher’s contribution shows, at least for Indigenous political communities under conditions of internal colonialism, that the bare idea that kinship must necessarily be racialized, exclusionary, and backwards, and conversely that citizenship is predisposed towards the modern liberal democratic ends of liberty and equality, is naïve and essentialist. Such a view may be true in some, or many, cases—but it is not obviously or categorically so. If one does not require an argument which effectively makes the case in each instance, it may be that one’s baseline presuppositions about belonging represent a parochial distortion.
Finally, Fletcher’s prospective view is pessimistic, but not unreservedly. He knows the American context of these issues much better than I, so I will simply take that the worry in his emphatic “It won’t happen here” statement about kinship’s revitalization is well-founded. But looking to the Anishinaabeg “up north”, by which I take that he means within Canada, he ends his reply on a hopeful note. In particular, he identifies the ogimaag, or leaders of these northern Anishinaabe communities, as the grounding for that hopefulness. For those who may not know, the reference to ogimaag is a direct invocation of Anishinaabe law and governance; ogimaag are the key facilitators of legal and political deliberation within Anishinaabe law, understood on its own terms.
Fletcher and I thus appear to be pointed in the same direction: the carnage of settler colonialism on Indigenous communities, and the resulting internalized toxicity he describes, have largely been effected through technologies of settler law superimposed over Indigenous law. Hope lies in the revitalization of Indigenous systems of law, in and on their own terms. This remedial view requires at least two overarching projects. The first is the presentation of models of Indigenous systems of law and governance in and on their own terms, so that we can understand how and why they worked, and from that basis—and upon critical examination—seek to understand how they may be helpfully revitalized today. This is the project in service of which my article is offered. It is also a goal towards which Fletcher has long contributed through his role as a tribal court judge.[4]
The second overarching project, which can only follow from the first, is to develop viable theories of social change, which move from the conditions of settler colonialism into the conditions of revitalized Indigenous law in and on its own terms. Fletcher proceeds by realizing piecemeal but stable reforms through an expanding tribal law jurisprudence that incorporates elements of Anishinaabe law (through the comparatist’s lens, legal transplants).[5] I am keenly interested in this project, but I aspire to something which strikes me as bolder by virtue of its systematic orientation, in the service of transformative, not reformative, change. I would see Indigenous law revitalized within its own (i.e. decentralized and persuasive) model of legality, a position I unpack below.
On James Whitman’s Reply
With tremendous grace, Professor James Whitman highlights the foundational methodological anxiety my article pushes upon, which I suspect may be shared by much of the AJCL’s readership and the ASCL’s membership. I refer to a methodological distinction between two modes of inquiry: deep examination of a singular (if comprehensive and multiform) object of inquiry in and on its own terms, versus broad examination of multiple (even if particular and multipart) objects across their distinct contexts. The latter description refers to classic comparative law method. The former, which Whitman rightly asserts I have here undertaken, does not.
Invoking a Cultural Anthropology framing, Whitman likens my approach to Clifford Geertz’s thick description.[6] I am honoured by the comparison! Thick description is indeed a fine way to pursue the sustained examination of a singular, comprehensive object in and on its own terms. I would take the spirit of the comparison still further. Another disciplinary approach within this mode of inquiry is conceptual analysis, the primary method within Analytic Philosophy. The article endeavours to tie this approach in, too; hopefully, the fact that it serves as the site of Kymlicka’s engagement means that it does so with some success. Thus, whether through thick description or conceptual analysis, when it comes to the study of Indigenous peoples’ systems of law, I am committed to the deep and sustained examination of a singular object in and on its own terms.
The salient question is whether the conclusion Whitman draws regarding the relationship between the two modes of inquiry is correct. Voicing a perspective that I expect is widely shared, he suggests that “thick description, at least when it gets too thick, is a bit at odds with the spirit, and the promise, of comparative law.” The claim appears to be that thick description, or what I more abstractly prefer to describe as a mode of inquiry characterized by the deep, sustained examination of a singular object in and on its own terms, is in natural (and perhaps necessary?) tension with the comparatist impulse to learn by reading across distinct contexts. On this view, gains through one approach are purchased at some cost to the other.
As a leading scholar in the field, Whitman clearly has a surer grip on the spirit and promise of Comparative Law than I do. Further, I think his position is shared by several of my most senior comparatist colleagues at McGill Law. As a general matter, I do not mean to challenge his claim. Rather, the question my article poses is much narrower: is the comparatist’s orthodox methodological toolbox adequate to the task of comparison between Indigenous and settler (whether Common Law or Civilian) legal systems? Across this divide, foundational differences of ontology and epistemology, arguably absent in comparisons between Common Law and Civilian traditions, are immediately present. If I am reading correctly, Whitman’s discomfort with animism, and the association he makes between it and the edifice of social science, is precisely to take the point.
For my part, I have long held that deep, sustained examination of any Indigenous people’s system of law in on its own terms serves as a condition of possibility for comparison, and more generally, of communication, across the incommensurable ontological and epistemological divides which sometimes characterize Indigenous and settler systems of law.[7] Of course, the factual claim of incommensurability, bugaboo that it is, must be borne out descriptively. I cannot do that work here, and the article has only begun to do so. Such work is imperative, but must be reserved for an article which centres it.
As an interim measure, it may assist for me to clarify my use of the term, which is the following claim: Anishinaabe law in and on its own terms and Canadian law in and on its own terms cannot directly communicate with one another (amongst other means, via legal transplants), because, in the strict sense, they do not share a common measure. Law’s measure is legality. It is Law’s distinct kind of authority, understood as legitimate power, that makes law what it is. Legality, then, is “the property of being law”.[8]
Within the mainstream of the Western Legal Tradition, that property is said to have, at minimum, two necessary conditions. The first is institutional: legitimate legal authority is centralized through legislative, judicial, and executive institutions. The second condition is that the fundamental character of legality is coercive: it is the justified exercise of power over the community’s members— paradigmatically, via legal rules. The necessity of these two conditions arises from the dominant arc of Western political theory’s centring on the principle of individual autonomy. That political centre conceptually (and I would argue, morally) frames the orthodox range of Western legal theory debates. My dialogue with Kymlicka, below, is about just this point.
In contrast, the descriptive work that I cannot here present shows that within Anishinaabe legal theory, legality is decentralized: its processes and its authority remain personalized within the membership. Its fundamental character is therefore persuasive: community members seek to persuade one another of how best to meet the demands of collective action. The kind of legal norm of central significance here is what we call a “teaching”, the content of which is contingent and subjective. Teachings, then, do not aspire to the certainty that legal rules do. Instead of compelling compliance, legal subjects seek to secure it persuasively. This is why, in the article, I wrote that:
Descriptive and analytical research is not a preamble to the discovery or clarification of abstract legal principles and legal rules. Anishinaabe communities practicing Anishinaabe law on its own terms are not seeking to apply transcendent norms; it is, consequently, not the comparativist’s or legal theorist’s task to clarify and render such norms accessible. Rather, the purpose of descriptive and analytical exposition is to disclose the implicit normativity that always already exists inside of our various kinds of relationships (again, principally via kinship). The governing methodological principle is, thus, humility: rather than prescribing, we aim for clarity and accessibility by opening a way to a practice that invites the reader into the implicit normativity.[9]
My incommensurability claim, therefore, is that where different legal systems are animated by distinct conceptions of legality, then they are not only different (which is legal pluralism), but also are different in kind: legality pluralism. Differences in kind are, by definition, not directly cognizable to one another. Consequently, across a legality divide, functional (or indirect) comparison is the most for which one may aspire.
To return to the bugaboo which shadows the term “incommensurability” everywhere it travels, this is a very different claim from suggesting that actors within (or academics theorizing or describing) one of those systems cannot render it cognizable to actors and academics situated within, and beholden to the intellectual and discursive traditions of, the other one. On the contrary, the communicative task is all of possible, valuable, and necessary. Moreover, in presenting a legal and political conception of kinship, this kind of difference-breaching communication is precisely the work that I hope my article is doing! But as I explained, the goal of shared understanding across this divide—and so the possibility of direct comparison, which requires a common measure—is not the end towards which mutual recognition strives. Because Anishinaabe law and Canadian law do not share a common measure (that is, because they operate on distinct conceptions of legality), the fundamental differences between them will remain irreducible and, thus, legally irreconcilable.
I have the good fortune of being invited to offer a plenary address at this year’s annual ASCL conference (Professor Whitman will offer the other one), and I will endeavour to make headway in the much-needed descriptive account of Anishinaabe legality then. Here, the point is to show that where what I will call “legality difference” obtains, then the communicative goal must be a political reconciliation, based on developing understanding between interlocutors on the various sides of one another’s legal systems. Any effort to short-circuit the political resolution with a legal one necessarily casts the norms and institutions of one of the legal orders (and under conditions of internal colonialism, it is invariably the Indigenous one) within the conceptual terms and institutions of the other one.
Why must this be so? As I argued in my dissertation,[10] the answer is that to transplant artefacts of Indigenous law across legality difference is to sever them from the conception of legality which authorized them as lawful in the first place, and to replant them within the different-in-kind model of legality that animates and authorizes the settler legal order (whether Common Law, Civilian, mixed-jurisdiction, etc.). In the result, Indigenous law now becomes authorized, reconceptualized, and expressed through the settler legal system’s model of legality. Yet if legality is the property that makes law, law, then the sense in which Indigenous law can be said to survive translation across legality kinds, as Indigenous law, is at best, unclear, and at worst, a contradiction-in-terms.
In presenting the structure of my argument about incommensurability, I have accepted a calculated risk. Most readers will need more—namely, the missing descriptive account—to be persuaded. However, I do not mean to bring you all the way along. For the immediate purpose of replying to Professor Whitman’s important intervention, my more modest (and conditional) hope is for readers to accept only that if my incommensurability claim holds in contexts of Indigenous and settler legality difference, then it follows that deep and sustained examination of an Indigenous people’s legal order in and on its own terms is a necessary condition for rendering comparison across the divide possible. And even then, the comparison enabled is indirect, or functional, because the fact of irreducible measures—distinct conceptions of legality—is unbridgeable. My hope is that to achieve just this much, I need not descriptively bear out the claim of legality difference in the Anishinaabe case; that, rather, it will suffice to have introduced the logical structure of the problem.
To assist, I can illustrate the idea by drawing from my article. In offering a thick description (and conceptual analysis) of Anishinaabe kinship, I hoped to enable functional comparison between its boundaries and borders (differentiated, contingent, and ambiguous) with those of citizenship (uniform, settled, and certain). Since the political boundaries of Anishinaabe kinship are incognizable with those of citizenship, I worried that absent the thick description I offered they would not be identifiable by most readers as political boundaries at all. The thick description served, therefore, as an enabling condition of the functional comparison.
Consequently, and constrained to the context of legality difference as between Indigenous and settler legal orders, I see the kind of inquiry undertaken in my article in a mutually supportive relation with—indeed, as making possible—the kind of comparative study across contexts that Whitman values, rather than pulling against it.
I am curious as to how the ASCL community will receive this doubtless controversial claim, which blurs the disciplinary boundaries of Anthropology and Comparative Law. I hope comparatists see that, if I am right, it follows that there is a place for them, too, in the study of Indigenous legal orders. This matters to me because our understanding of Indigenous legal orders could be so much richer with the benefit of their considered attention. Reciprocally, I suspect that, by virtue of its difference-in-kind, Indigenous law and Indigenous legal theory may serve to bring into relief aspects of the Common Law and Civilian traditions which they do not readily reveal to one other. I am most grateful to Professor Whitman for assisting me, even in the preliminary fashion of a blog post, to rearticulate my stakes.
On Will Kymlicka’s Reply
My third and final interlocutor is the social and political philosopher Will Kymlicka. Of the two registers (legal and political) in which I present my claim about kinship, his focus is on the political one. He argues that different ideas about the purpose of politics may be what separates our views of the relative merits and demerits of citizenship and of kinship as models of belonging to political community. He explains that, insofar as public authority is needed to govern and to coordinate collective action, then the purpose of politics is to ensure that political authority is legitimate. He adds that, in making the governed the authors of government, these are precisely the conditions which citizenship supplies.
On the one hand, Kymlicka identifies, rightly, that I have not shown the same of kinship, and quite reasonably, he puts me to proof. On the other hand, he argues that citizenship has more relational resources than I allow. He draws my attention to the fact that citizenship is taken by social democrats and conservatives alike as fit for purpose: it serves the necessary end of providing political authority’s legitimacy conditions, while successfully navigating the social conception of the self that is essential to the thick sense of group identity internal to both of these political traditions.
I will answer both concerns at once, although as above, my reply is necessarily thin. Kymlicka’s challenge merits a robust answer, which I will provide in due course. For the purpose of an immediate reply, I will, once more, have to introduce contentious theoretical claims without properly defending them.
Kymlicka starts us in the right place, clarifying the purpose of politics. I accept both of his points. Yes, the purpose of politics is to ensure that political authority is legitimate, and yes, citizenship is an exemplary model thereof. Our first and overarching disagreement is whether political authority must be public in the way that a framing of politics in respect of the principle of autonomy demands: the public autonomy / private autonomy divide. Kymlicka says that it does, because collective action is indispensable to governance and it requires legitimate coercion: public sphere authority. Because citizenship positions the demos as the authors of coercive authority—that is, because they subject themselves to it—it is legitimate.
My intervention is to deny the necessity claim. I say that citizenship, in just the way Kymlicka explains, provides one means of meeting the legitimacy conditions that political authority requires. However, I would specify that the justificatory force of its means—bringing authorhood and subjecthood of government into alignment—is not transcendental. Rather the logic of legitimacy here gives elegant expression to a historically-situated conception of freedom, in which freedom means something like being able to choose for oneself. This is the ideal of individual autonomy, and as a political manifestation of the ideal, citizenship operationalizes legitimacy as consent. Consent is what it means to say that legitimacy consists in the fact that one has co-authored the conditions of coercion to which he is subject.
But the consent model of legitimacy that citizenship represents is contingent, not categorical. If we start with an Individually autonomous conception of the self, then we need a conception of freedom which respects the autonomous individual’s capacity for choice. And if we conceptualize freedom in this way, then it follows that coercive authority’s legitimacy conditions will need to give expression to something like consent. My question is, what happens when the conceptual model starts elsewhere? The ontologically relational, deep interdependence of the self that kinship imagines would seem to present quite a different starting point, and here we come to the heart of the matter.
Kymlicka certainly understands this challenge and he believes that he has an adequate reply. He has, after all, been dealing with what we might call the “insufficiently social self” critique for decades. Thus, in stating that “a commitment to citizenship needn’t rest on a distinctly liberal individualist ontology”, he has preemptively clarified that “individual” need not mean “atomistic”. Indeed, his powerful argument that community should be understood as part of the context of choice that empowers individual autonomy is well known.[11] There are other traditions of Western political thought, too, which want to distinguish themselves from the atomistic conception of the self for which, for instance, John Rawls has been so roundly criticized. I tried to give some recognition to this point in the article, identifying the communitarian and relational autonomy (and relatedly, feminist) political traditions, amongst others.
But are these political traditions really marshalling appropriate conceptual resources for the question I am posing? Are we really just naming the same idea of a socially-constituted self differently? I worry that we equivocate on the term “social”, and if I am right, then we are speaking at cross-purposes. It is easy for me to accept the truth, and the value, of these distinct groups’ claims to community, because they are claims about community’s role in specifying the ideal of individual autonomy, which I think has them addressing a different project from mine.
More specifically, they attenuate the hard edges of “individual”, but not of “autonomy”. As for autonomy, they retain the conception of the self as a being who frames purposes individually; they just tell more complicated stories about how those purposes may be formed, enabled, or satisfied. In various ways and to various degrees, community factors as a necessary condition into the “individual” component of all of their freedom stories, such that they differ markedly from Rawls’. However, the ideal of autonomy proceeds relatively unchanged: their different freedom stories all retain a strong version of the conviction that the (now socially-constituted) self needs to preserve and shore up her capacity to choose her own ends, as against the demands, desires, capacities, and visions of the good, of others.
Insofar as this commitment remains, these various camps are not talking about what I am after, and consequently, it seems to me that their generalized claim to a relational conception of the self claims too much. Rather, the picture of the self which frames purposes individually, but which needs community to do so, is better described as ontologically individual and only politically relational.
The deep conception of relationality that the Anishinaabe model of kinship presents posits a conception of the self which is ontologically relational. The claim here is not just that the self needs community to realize its interests or a good life, or for that matter, to be free. Rather, it needs others just to be. In my article, Cree Elder Stan McKay articulates this idea when he explains of the kinship self that “Our identity as creatures in the creation cannot be expressed without talking about the rest of creation, since that very identity includes a sense of the interdependence and connectedness of all life.”[12]
What does this mean, concretely?
Kymlicka might reasonably expect me to suggest that its’ salient meaning is the way in which it challenges the picture of a (socially-constituted) autonomous self’s individual framing of purposes. In the proper space, I will challenge that picture. For the moment, I will just introduce two ideas at the root of such a reply. The first is that the relational self my kinship article relies upon, and which I believe McKay is also describing, frames its purposes relationally: as a father, neighbour, host, etc. The outcomes such a position generates are not the same as those of a socially-constituted self which frames its purposes as an abstract and singular unity, but in ways that relationships have made possible or meaningful.
Second, the linguistic “I” which serves as the site of my various relational positions is an embodied spiritual composite. The moment I entered into this world, the “I” that I inhabit in English was plural: “I” was already the union of two spirit beings within one body (White Wolf, the unique spirit who came into the world through my body, and the spirit of the Bear Clan, which lives in my bones).[13] In general then, actions I take and expressions of purpose I make represent a synthesis of positions, the result of an internal dialogue. Restated, the reasons that an ontologically relational “I” gives are not imagined to be sole-sourced or unitary; rather, my speech acts represent a synthesis of perspectives from multiple-beings-in-one, and are, thus, expressive of their relationship with each other.
Yet there is a way of explaining the meaning of fundamental (or ontological) interdependence for a relational conception of the self which is more within the spirit of Anishinaabe political theory, and which should therefore serve as the first line of response. It is not grounded in the framing of purposes. Rather, it centres on one’s capacity for gift exchange. Here, the fundamental dignity of persons consists in their status as gift-bearing and gift-receiving subjects. Consequentially, to speak of dignity is to recognize a fundamental openness to the exchange claims of others. Thus, the question of whether my freedom is diminished by another’s claim upon me (or by the consequences of a claim directed elsewhere but which nonetheless bears upon me) will always turn on the particulars which characterize the claim. The question can never be preemptively resolved by appeal to a principled position which, at least provisionally, walls the self off from the unchosen claims of others.
From this standpoint, freedom speaks more of one’s capacity for self-realization than it does one’s capacity for choice. The special value of choice consists in the extent to which it serves the end of self-realization; beyond this, it is but one important moral good amongst others. The primary domain of freedom, then, isn’t action but interaction: freedom is a language for describing the quality of one’s relationships, in terms of whether they promote or diminish one’s capacity for self-realization.
Thus far, I have drawn a line from an ontologically relational account of the self to a relational account of freedom. But to complete my reply to Kymlicka, the link between this relational account of freedom and the legitimacy conditions of political authority within kinship communities must now be drawn. Otherwise, it may be that centralization and coercion are necessary conditions not just for the citizenship account of political authority’s legitimacy, but for political authority generally. As a result, the kinship model of belonging that I have presented would fail the test of legitimate governance. As with several other steps of my argument in this blog post, deeper engagement is required. However, the sketch version of this final step goes as follows.
As earlier stated, within Anishinaabe governance in and on its own terms, there is no state, no institutions which hold centralized political and legal authority. Instead, authority remains decentralized: always in the people, who exercise it directly, in their personal capacity. The question of legitimacy, then, is not about holding a government accountable to subjects who have consented to its exercise of coercion over them. Against such political decentralization, consent is an incoherent principle. No one is vested with coercive power.
Rather, the question of legitimacy regards how individuals acting in their personal capacity are held accountable to one another for their use of the measure of power entrusted to each. That power is transformed into authority (i.e. is rendered legitimate) when one’s community members accept that his decision was made with adequate regard for all upon whom its consequences bear. And the test for this condition—which is trust, not consent—is whether the impacted community members are persuaded that their mutual self-realization (i.e. their freedom) has remained sufficiently within the decision-maker’s view throughout.
This kind of relational decision-making is a practise of personal self-governance. The personal register of self-governance is understood to satisfy the legitimacy condition—recognition of mutual self-realization—in the following way. Someone practices personal self-governance to the extent that she acts, and is seen to act, responsibly within her relationships. This is because, for an ontologically relational self, those relationships define the “person” enacting “personal” self-governance. Where she succeeds, her authority is, therefore, persuasive in character. Restated, the persuasive character of authority is legitimate because it exercises power in the appropriate, freedom-respecting way: with, not over, one’s community members. On this deep, or ontological, relationality model of legitimacy, it is the exercise of power-with which allows community members to see themselves reflected within the decision-maker’s decision, and on that basis, they are persuaded of its legitimacy, for it has exercised power rightly—as authority—even if they disagree substantively on the outcome.
To tie the argument off: these are the conditions which the conception of kinship that I have presented supplies. If the argument is sound, it follows that there is a world in which kinship, too, meets the demands of legitimate governance, and, within such a world, it seems difficult to say that citizenship could do so. Let this serve as a basis for other conversations.
As I have recognized in several moments, my central theoretical claims must be borne out descriptively, which is a future task. Yet I hope that these replies, provisional as they are, may nonetheless serve to open up room for comparative law scholars, political philosophers, and legal philosophers, to engage seriously with Indigenous law and governance understood in and on its own terms. It will benefit, and I think they will, too.
[1] Aaron Mills, First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality, 72:4 Am. J. Compar. L. 892 (2025).
[2] I explain in the article why I prefer James Tully’s term “internal colonialism” over the more common “settler colonialism”, but they are different naming conventions for the same thing. Seeid. at 900.
[3] 1A National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming power and place: final Report 250, 374, 409 (2019).
[10] Aaron James Mills, Miinigowiziwin: All That Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism 30-37 (July 22, 2019) (Ph.D. dissertation, University of Victoria) (on file with University of Victoria Libraries).
[11] Will Kymlicka, Liberalism, Community and Culture (1989); Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1996).
[12] Stan McKay, Calling Creation into Our Family, in Nation to Nation: Aboriginal Sovereignty and the Future of Canada 28, 29 (Diane Engelstad & John Bird eds., 1992).
[13] Darlene Johnston, Connecting People to Place: Great Lakes Aboriginal History in Cultural Context 24-25 (2004) (prepared for The Ipperwash Commission of Inquiry).
Comparing Citizenship and Kinship: Commentary on Mills
[Editor’s note: This is the third of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]
Decolonization requires Indigenous peoples governing themselves on their own terms, and Mills’ article articulating an Anishinaabe political theory of kinship offers an illuminating account of what this might mean. But as he notes, there is disagreement about whether kinship-based ideas and practices can be reconciled with citizenship-based ideas and practices: can they co-exist and supplement each other, within or across different forms of political community?
Mills is pessimistic: he views kinship thinking as incompatible with citizenship thinking. Whether one shares his pessimism may depend on a prior question about the purpose of politics. Why do we need theories of political membership in the first place? Within the mainstream Western citizenship tradition, the answer goes something like this:
Social beings engage in politics to “get things done” (in Mansbridge’s pithy formulation): certain important goods require that we act collectively.
Getting things done collectively in turn requires legitimate public authority: the ability to make decisions that are binding on the governed. (Anarchists insist we can get things done without coercion, but mainstream Western political theory assumes the need for public authority).
One requirement for coercive public authority to be legitimate is that it be authorized by, and accountable to, the governed.
That in turn requires creating a bounded demos composed of people with the formal status of citizenship: we need to know who is governed and who has the right to authorize authority. The process of constructing legitimate authority requires “citizenization”, turning the subjects of law into citizens who co-author the law.
In short, citizenship in the Western tradition is the flip side of legitimate authority; it is the solution to the problem of needing public authority to get things done. The task of citizenship theory is to align who is governed with who can authorize government, and to design mechanisms of horizontal co-authorship (amongst citizens) and vertical accountability (between citizens and the public authority).
As Mills rightly says, conceiving of membership as citizenship pushes one in the direction of drawing clear lines around the people and territory of the demos, which he says is at odds with the Anishinaabe belief in the flux, contingency and gradations of our relationships. But a commitment to citizenship needn’t rest on a distinctly liberal individualist ontology. One can recognize the irreducible reality of the ‘social self’ and relationality while also believing in the need for legitimate public authority. Citizenship is endorsed by social democrats and conservatives, not just liberals, precisely because they share the belief that getting things done requires public authority. Indeed, one could argue that liberal individualism on its own leads not to citizenship theory but to anarchism or isonomia. It is those with a more expansive view of the role of government and collective action in the Western tradition who are most committed to citizenization as a tool for constructing legitimate authority.
This suggests that one’s view of the merits of citizenship depends in part on one’s view of the need for public authority. And I think Mills agrees with this: he emphasizes that his account of kinship does not, and cannot, generate coercive public authority, but instead relies on persuasive authority. But he says little about this crucial premise: is it really true that kinship-based political communities can get things done without public authority? There is in fact surprisingly little discussion in the article about what needs to get done, let alone how persuasive authority would operate to get those things done.
For example, the vast majority of people in Canada – including Indigenous peoples – strongly support the idea of a single-payer health care system. Indeed, in Canada as in many other Western democracies, when people are asked what citizenship means to them, public health care is often the most common answer. But this system only works if there is a public authority that can compel citizens to pay taxes and that can prohibit doctors from selling medical services on the market: it’s not clear how persuasive authority on its own could create such a system.
And this may help explain why many people, including some members of Indigenous societies, seek to reconcile kinship and citizenship. They may have a strong attachment to ideas and ideals of kinship, and its associated ideas of relationality and reciprocity, but they may also have come to believe that binding public authority is crucial to achieve certain collective goods, both within Indigenous communities and in their relations with settler society. Perhaps a division of labour is required: perhaps kinship is needed to address certain issues and citizenship is needed to address others. If so, one might then think about how kinship and citizenship can be part of a complementary political order.
I suspect that Mills would respond that once one reaches for binding authority, one loses touch with the central ethical values of kinship. To invoke or threaten coercive authority is incompatible with the vision of trust and gift-giving that underpins kinship. But is this so? Or can plural authorities grounded in different values operate side by side without undermining one another? Indeed, is it possible that coercive authority helps to secure a context within which kinship and persuasive authority can flourish? In my own work with Sue Donaldson, I have attempted to show that kinship with the more-than-human world can be reconciled with a multi-level account of nested citizenship. More generally, citizenship theorists have long argued that coercive authority, while an essential backstop, recedes into the background, and that for most people and most contexts, social life operates through ideas of trust and reciprocity. We needn’t presuppose a zero-sum relationship between coercive authority and relational kinship responsibilities, and I think it’s worth exploring contexts where the two might support each other, and not just the contexts where they might displace each other. Perhaps in the end, this sort of synthesis of kinship and citizenship is doomed to fail, but I think it is premature to foreclose that possibility.
More Comparison, Please!
[Editor’s note: This is the second of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]
Aaron Mill’s engaging and creative study leaves one hungry for more, and no doubt he will have more to give us. My queries about his article can probably all be answered by saying, “just wait for the next installment.” But hoping that interim reactions may be helpful, I’m glad for the chance to participate in this symposium, and to pose a few questions.
Some of questions in this blog on comparative law have to do with comparison. Professor Mills makes many observations about Anishinaabe society that make me wish for more comparative discussion. “[When] folks introduce themselves,” he writes, “[u]sually our kinship positions vis-à-vis parents and children come first.” The use of kinship terms as forms of address is a widespread in the globe, from East Asia, where it is common to address others as “eldest brother” and the like, to the Middle East, where fathers may be addressed as “abu.” The Anishinaabe practice may well have different social meanings from these practices elsewhere, and it may be lodged in a richer culture of kinship. But without a careful examination of the comparative evidence, it is difficult to know; and in any case in my experience comparative analysis is generally quite illuminating with regard to all the societies under consideration. I take it that Professor Mills sees his task differently—as one of “thick description’ in Clifford Geertz’ well-known formula. But to my mind, such thick description, at least when it gets too thick, is a bit at odds with the spirit, and the promise, of comparative law. The same question could be asked about Anishinaabe kinship terms—kinship terms being, of course, a long-standing focus of ethnographic research.
Other examples come to mind as well. The article quotes Nicolas Perrot to the effect that in seventeenth-century Anishinaabe marriage, “each man considers himself no longer a member of the village in which he was born.” Is this an example of matrilocality, or is it something else? One would rather like to know; and the risk of neglecting the comparative analysis is that one may fail even to notice that there is such a question to be posed. Or, to speak of a more uncomfortable example, Professor Mills writes that “my elders have taught me that before I harvest anything from the Earth, I should speak to it, express my need, ask permission, offer tobacco, and if I know it, sing the appropriate song.” Should we think of this as, to use a term in somewhat bad repute, animism? How should we understand these practices against the broader backdrop of sacrifice and relations to the holy elsewhere in the world? I, at least, find it difficult to feel entirely content with any approach at does not view the practices of a given society in the larger perspective that two and a half centuries of social science (and more, depending on how you count) has made possible. None of this is to say that Anishinaabe culture may not be wholly distinctive. It is only to say that without comparison we have no measure of distinctiveness. Nor would I by any means suggest that Professor Mills is ignorant of comparisons! He offers an intriguing counter to Marshall Sahlins in particular. Perhaps it is too much to ask of him, a scholar who has given us such a fascinating work of thick description, to dive deeper into comparative analysis. But I admit that the comparatist in me yearns for more.
Indigenous Kinship as a Replacement for Tribal Citizenship Theory? Thoughts on the American Experience
[Editor’s note: This is the first of four posts on Aaron Mills’s article “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality”, The American Journal of Comparative Law, Volume 72, Issue 4, Winter 2024, Pages 892–932, https://doi.org/10.1093/ajcl/avae032]
Two Ojibwe tribal nations in northern Michigan recently engaged in an audacious act of tribal sovereignty that could change federal Indian law in the United States dramatically – the tribal nations changed the blood quantum of all tribal citizens to 100 percent Ojibwe as a matter of law.
Like many tribal nations, the Bay Mills Indian Community required a minimum quantum of one-quarter Indigenous “blood” (read: ancestry) to meet the tribe’s enrollment criteria as a tribal citizen. The other tribe, the Sault Ste. Marie Tribe of Chippewa Indians, like numerous other tribal nations, required evidence of lineal descendancy from a century-old federal annuity roll. For Bay Mills, the one-quarter blood quantum limit was slowly draining the tribe of its children as intermarriage with nonmembers depleted the numbers of eligible Ojibwewaag. For Sault, which had closed its enrollment office to new applications for many years, the numbers of tribal citizens had remained high, but many tribal citizens with low blood quantum were ineligible for important federal and state entitlements rooted in higher quantums.
In the United States, tribal citizenship is the standard. For tribal nations, either one is a citizen or not. Federal Indian treats tribal nations as federal contractors. If tribal nations want federal money, they have to play by the colonizer’s rules. And the colonizer demands that American tribal nations only spend money on tribal citizens (there are exceptions to this rule that largely reconfirm the rule itself). Indigenous relatives who did not meet the tribal citizenship standard for enrollment are left out. Inequities abound.
For too many American tribal nations, citizenship law and policy has become unbelievably toxic. Some tribal nations (mostly wealthy, but some that are not) have engaged in mass disenrollments designed to make more tribal resources available to the fewer tribal citizens that remain. After mass disenrollment practices received scathing criticism from other tribal leaders, federal and tribal judges, and even Members of Congress, tribal nations seeking to limit the number of citizens began to quietly impose moratoriums on new enrollments (although usually allowing newborns to enroll).
* * *
Aaron Mills compelling new article, First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality, explores Canadian First Nations’ concepts of belonging by comparing citizenship and kinship as distinct models. It argues that while many First Nation individuals frame belonging debates through the lens of citizenship, often incorporating kinship, this approach is influenced by internal colonialism. The author proposes that kinship is its own model of belonging, rooted in First Nations law and defined by mutual aid and responsibility, rather than the liberty and rights emphasized by citizenship. The article aims to re-establish kinship’s legal significance, which has been conceptually and institutionally disconnected from legality due to colonialism, suggesting that embracing kinship on its own terms is crucial for Indigenous law revitalization and self-determination.
Dr. Mills’ paper reminds us that Indigenous Peoples once elevated kinship above mere citizenship, a notion rooted in western political philosophy that would have been comically unsettling to our ancestors centuries ago, after all, in the 14th century, “citizen” meant someone who was not enslaved or indentured. Now, “citizen” means a state of owing allegiance to a nation like Canada or the United States.
Kinship is reciprocal, an ordered system of social relations where “relatedness” is the organizing feature. The fundamental value driving kinship is mutual aid, which corresponds to a political community committed to the integrative flourishing of its members. Kinship positions facilitate this by structuring the exchange of needs and gifts throughout the community through dynamic sets of position-specific responsibilities.
Mills explains that kinship extends beyond blood or marital ties. Individuals who are willing to bear the responsibilities intrinsic to a kinship position can occupy it, even without a genetic link. This can include adopted individuals or community members who take on instructional roles, often referred to as “grandfathers” and “grandmothers”, or “aunties” and “cousins.” Furthermore, Anishinaabe kinship structure extends throughout creation, with the sun, moon, Earth, and animals being ascribed kinship positions, reflecting an understanding of their responsibility sets vis-à-vis humans.
* * *
I am a veteran of many American tribal citizenship battles. As a tribal attorney, I have worked for my own tribe to exclude Anishinaabe relatives from enrollment because they wished to count their Canadian Haudenosaunee ancestry in our blood quantum calculation against my own moral compass. As a tribal judge, I handled cases involving disenrollments and efforts to bar Anishinaabe relatives who had been adopted by tribal citizens.
Recently, I wrote an opinion in a dispute involving a tribal nation that constitutionally defined its citizenship criteria to exclude anyone born before 2019, but prohibiting anyone already enrolled from being disenrolled. It is getting downright surreal in the United States.
Kinship theory would dramatically change the paradigm. My initial reaction to Dr. Mills’ argument was “Woohoo!” My second reaction was “It won’t happen here.”
But then I look to the Ojibwe tribal nations up north and I think with Anishinaabe ogemaag, anything is possible. There is hope.
Comparative Law Workshop at the University of Baltimore School of Law
On Friday, June 13, 2025, comparative law scholars gathered at the University of Baltimore, School of Law, to discuss their forthcoming publications. The group consisted of professors, students, and legal practitioners from national universities and international institutions.
Professor Fernanda G. Nicola from American University Washington College of Law, presented her forthcoming book, Mis-Uses of Comparative Law in International Development, (Cambridge University Press, 2025). She opened with discussing the trend of states gradual decrease of funding international assistance and development as revealing of a deeper problem: the misuse of comparative law in both international organizations and domestic legal reforms. She called for a shift in perspective about the supposed neutrality of comparative law and suggested methods for reform. These include reclaiming existing international indexes and comparative knowledge for more constructive purposes, such as reinforcing social protections and embedding rule of law guarantees within economic development initiatives.
Dhaisy Paredes Guzmán from American University Washington College of Law, presented an op-ed titled “From Doing Business to B‑READY: World Bank’s new rankings represent a rebrand, not a revamp,” which she co-authored with Professor Nicola. The op-ed was developed as a result of the research she conducted while working on a book project. She discussed the op-ed’s two critiques on labor and rule of law assessing the transition from Doing Business to B‑READY. She then introduced a new line of research on the absence of Human Rights Due Diligence (HRDD) in global economic assessments, arguing that tools like B‑READY must evolve to assess whether states are fulfilling their responsibilities under instruments like the UN Guiding Principles on Business and Human Rights.
Professor Nuno Garoupa from the Antonin Scalia Law School, presented his research, “Judicial Legitimacy and Citation Patterns under Authoritarianism: The Case of the Macao Court of Final Appeal.” Professor Garoupa discussed his investigation on the judicial use of citations in cases involving the government as a party, and suggested some hypotheses that fit existing patterns. Professor Garoupa also noted the use of foreign citations in criminal, civil, administrative, and constitutional cases in the Macao Court of Final Appeal and the connection between public confidence in the judiciary and the use of foreign citations, especially by foreign judges, as the Macao Court has nationals of China and Portugal. During the discussion, other contributors posed their own hypotheses to the research presented.
Professor Mark Graber, from the University of Maryland Francis King Carey School of Law, presented his upcoming publication, “Meaning and Doing in (American) Constitutionalism.” Professor Graber discussed the normative structure of constitutions and the historical underpinning of the 14th Amendment of the United States Constitution. Professor Graber emphasized the need to restructure the constitution to vest authority in people who can create positive changes rather than acting to constrain those who act with bad intentions. He explained the link between an educated and sympathetic society through a change in perspective on positive law.
Professor Kish Parella, from Washington and Lee University School of Law, reviewed her article on, “The Human Rights Obligations of Corporate Directors.” Professor Parella talked about the current accountability process for corporate boards, identifying it as a fragmented system. She stressed the need to have a uniform and coherent regulatory framework in order to ensure not only accountability, but prevention of human rights violations. Professor Parella stated that the conversation surrounding good corporate governance must change. She also discussed the Corporate Sustainability Due Diligence Directive of the European Union and its implementation, both directly and indirectly. Professor Parella and the other contributors debated the influence of other scholars in the area, particularly in coining the Brussels Effect and the Delaware Effect.
Professor Janet Lord, from the University of Baltimore, School of Law, and Bryce Hollander, from the University of Maryland Francis King Carey School of Law, presented their human rights approach to Hugo Grotius’s writings. Their research, entitled “Grotian Traditions and Disability in De Jure Belli ac Pacis,” focused on applying a disability-centered critical approach to Grotius. Professor Lord and Mr. Hollander explained the definition of ableism and how it was used by early legalists. They identified statements reflecting ableism in Grotius’ works, such as the link between a right to own property and a person’s rational capacity. The contributors explained how building on pre-modern ableist standards have contributed to existing discriminatory societal structures today, including the lack of explicit protection for persons with disabilities in international agreements prior to the drafting of the Convention on the Rights of Persons with Disabilities in 2010.
Professor Ioanna Tourkochoriti from the University of Baltimore, School of Law, discussed her forthcoming publication, “Should the Law Regulate Historical Memory?” In her discussion, Professor Tourkochoriti emphasized the risks associated when governments define the collective consciousness of societies. Citing several examples of governments criminalizing speech of both truth and falsehoods, Professor Tourkochoriti identified the messages often censored by states as either self-inculpatory or -exculpatory. She discussed government memory politics, from Ancient Athens to contemporary states. The risks associated with memory politics include limiting rights to free speech, the free marketplace of ideas, and personal autonomy.
Professor Mortimer Sellers, from the University of Baltimore, School of Law, examined “The Subversive History of Comparative Law.” He explained that comparativists are heroes of social change because it takes external reflection from one’s culture or society in order to identify problems and solutions for positive progress. Professor Sellers appraised the need for comparative reflection to truly better a constituency.
A Response to Professors Gianmaria Ajani and Vivian Curran
[Editor’s note: this is the final of three posts, parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]
We are indebted to the organizer of this online symposium, Professor Ioanna Tourkochoriti, whose leadership in revamping the ASCL blog has reinvigorated intellectual exchanges in comparative law. Her initiative is a timely reminder that engaging with comparative legal ideas requires not only scholarly rigor but also willingness to participate in more open, informal dialogue—particularly with two eminent scholars of the discipline, whose generous commentaries we are honored to receive.
We are grateful to Professor Gianmaria Ajani for his thoughtful reading of our book Comparative Law: Introduction to a Critical Practice. His reflections resonate deeply with the book’s core ambitions—especially our aim to move beyond the methodological constraints of traditional or mainstream comparative law teaching and to open new pedagogical spaces for critical, context-sensitive and politically engaged inquiries in a discipline that has long shaped, and been shaped by, the many trajectories and resistances of globalization.
Professor Ajani is absolutely right to foreground the pedagogical dilemmas that continue to confront those of us teaching comparative law: the balance between theory and practice, the tension between the “West and the Rest,” and the risk of overwhelming students with the sheer vastness of the field when asked to engage with “foreign law.” His recognition that our book attempts to tame these tensions—not by resolving them definitively, but by offering a usable toolkit that draws both from mainstream and critical approaches through what we call a critical practice—is especially appreciated.
We were particularly struck by his suggestion that our work serves as an “antidote from the vertigo of everything.” That sense of vertigo captures exactly the kind of paralysis that can arise when legal comparison is tasked with covering an endless list of topics and jurisdictions, often accompanied by the seemly innocent mantra—or false modesty?—that comparative law is “only a method.” We share our colleague’s conviction that what students need are intellectual tools that not only help them engage with diverse legal systems, but also enable them to move between doctrinal fields and normative commitments. Legal comparison, as we see it, is both a scholarly craft and a practical orientation toward the world—one that involves taking critical distance from familiar legal categories and using self-reflection as a means to understand the “foreign,” whether that be legal cultures, institutions, doctrines, or arguments. In doing so, students are invited to look back at their own legal traditions and appreciate the value of difference.
Professor Ajani’s attention to our treatment of legal transfers, property, contract, tort law, and constitutionalism goes to the heart of what we intended with this workbook. As he notes, our method does not rest on promoting best practices or pursuing harmonization. Rather, it invites students and practitioners to grapple with real-world problems—such as wrongful birth, the recognition of same-sex marriage, or the contested meaning of veiling in public spaces. These are not merely illustrative examples. They bring to the surface complex legal and policy arguments, distributive consequences, and the roles of diverse legal and social actors. They reveal how legal doctrines are embedded within political economies, social hierarchies, and cultural narratives—layers that a critical comparative practice must engage with to be meaningful.
Finally, we welcome his concluding observation that the book “opens classroom windows to let in some fresh air.” If our work helps dislodge the mannerisms that have too often dominated the teaching to comparative legal methods and theories—and instead encourages students to see laws as a dynamic, contested field in which they are in the driver’s seat, with tremendous agency—then we have accomplished what we set out to do.
We are equally grateful to Professor Vivian Curran for her generous and insightful commentary. Her reading brings into focus the dual ambition of the book: to offer an intellectually rigorous intervention for scholars and a practical toolkit for students, advocates and legal practitioners. We particularly value her recognition that we do not merely critique comparative law from a distance but seek to enact a different kind of comparative practice—one that engages in a dialogue with orthodox or mainstream approaches while remaining attentive to the socio-political, historical, material and linguistic contexts that shape legal meaning and law’s worldmaking.
We very much appreciate Professor Curran’s recognition that our book is “both nuanced enough to be of interest to scholars, and basic enough to be used as a teaching tool in the classroom,” as well as her emphasis on our treatment of language, legal globalization, and African land regimes. These themes reflect our commitment to expanding the scope of comparative law beyond its conventional terrain and, in particularly to including perspectives often relegated to what is referred to as law’s periphery. Her point about “Globalization IKEA-style” aptly captures the flattening tendencies we hoped to call into question by situating comparison in lived practices and uneven geographies.
We are also grateful for her remarks on our treatment of contract law in the context of global supply chains and the erosion of contractual autonomy—a theme that, as she notes, bridges doctrinal analysis with the political economy and connects with our discussion of legal standardization in the analysis of legal transfer.
By the same token, we welcome Professor Curran’s focus on Comparing legal histories, the final chapter, where we examine how different nations accept legal sources and rules of evidence, using the concrete example of a case in which Canadian courts dealt with territorial claims of two hereditary Indigenous chiefs. The layered narrative we present there is intended to foreground a critical reading of the rule of law— one in which, after the exhaustion of the legal remedies, a song or a dance may ultimately be accepted as valid evidence.
We welcome Professor Curran’s critical observations as a vital and necessary part of the comparative conversation—one that must include the comparatist herself: her position, perspective and selectivity in choosing materials—in the symbolic comparative space. We appreciate her suggestion to engage more directly with behavioral law and economics in the discussion of contract law, her reminder of the nuanced precedent-based nature of common law regimes as well as her critique of the veiling chapter’s interpretive framing – offered to inspire a reading, both in the classroom and in the scholar’s study, that takes the workbook at its word. Her comments enrich the dialogue we hoped the book would spark: an exchange that does not end with our text but moves through it and beyond it.
If, as Professor Curran notes, our juxtaposition of the comparative mainstream canon with a critical, practice-oriented approach makes the book valuable to both students and scholars, then we are encouraged that our intervention contributes to a broader rethinking—of what comparative law is and what it can do. Ultimately, we see Comparative Law: Introduction to a Critical Practice not as a conclusion, but as an invitation: to reimagine what legal comparisons can accomplish in shaping a more equitable society—and to ask who gets to participate in that project, both within the law and beyond it.
Remarks on Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice
[Editor’s note: this is the second of three posts, parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]
This welcome contribution to comparative law literature is both nuanced enough to be of interest to scholars, and basic enough to be used as a teaching tool in the classroom. The authors critique comparative law practice as they proceed to conduct it on their own, both by introducing their recommended socio-political-legal analysis and then by applying it to concrete problems which students are asked to solve.
The political and cultural underpinnings of comparative law are never far from the authors’ analysis as they seek to situate the act of comparison in its time and place. They also emphasize the importance of historical context as well as of language, recalling the inextricable links between language, text and culture in law. The book extends concepts such as the above which have been part of the comparative canon for some decades by placing them in a contemporary setting: e.g., “Globalization IKEA-style,” and by devoting space to often neglected areas of the world such as African systems of land registry.
After comparing contract law in the United States, France and Germany, and exploring traditional comparative law theories of convergence and divergence, the authors suggest another kind of convergence by positing that today’s standardization of contracts and global supply chains across systems call all individual contractual choice and autonomy into question.
The book is so rich that omissions are inevitable. The authors’ critique of law and economics when discussing contract law might have mentioned the field of behavioral law and economics, which today has modified the field. One might also disagree with the authors’ take on tort law where they emphasize that civilian tort law is principle-based by being founded on the French Civil Code, while common-law tort law, being writ-based, is founded on many causes of action. One might, however, see the salient feature of common-law tort law as being the least statute-based area of the common law, and, in that sense, as the most precedent-based. The latter may seem a more important trait as one considers the civil- common-law tort law divide.
The authors’ contemporary comparative law example of constitutional law deals with Islamic veiling. Four cases are set forth, one from England, one from the U.S., one from the European Court of Human Rights, and one from Kenya, each setting forth different reasoning. Each of these cases presents very interesting room for analysis and contrast. Some of the authors’ conclusions do not appear to be substantiated by the evidence they provide, however, although many of their comments are insightful.
In the final chapter, Comparing legal histories, the authors examine what nations accept as being legal sources. They offer as a concrete problem a case in which Canada dealt with territorial claims of two hereditary indigenous chiefs. In this case, a performance such as a song or a dance was accepted as valid evidence.
Throughout this erudite book, the authors have juxtaposed comparative law’s canon with their own original critique. They have offered considerable theory in a work that will be of interest to comparative law scholars just as much as it will be of use to students.
A reading of Fernanda Nicola & Günter Frankenberg, Comparative Law: Introduction to a Critical Practice, Elgar, 2024
[Editor’s note: this is the first of three posts parts of a mini-symposium on Fernanda G. Nicola’s and Günter Frankenberg’s book Comparative Law, Introduction to a Critical Practice (Edward Elgar, 2024)]
“The classroom remains the most radical space of possibility in the academy”(Bell Hooks, Teaching to Trasgress, 1994, quoted by the authors, at p. 1).
“The purpose of this book was to write a different kind of textbook on comparative law” (The authors, at p. 206).
These two statements provide the opening and the closing of an absorbing and inspiring book, authored by Fernanda Nicola and Günter Frankenberg. And there is no spoiling in saying that the declared purpose was accomplished.
Teaching comparative law is not an easy undertaking: too wide is the series of possible options when we prepare the syllabus. What does really count for law students ? How shall we attract their attention on a matter that can be perceived as too abstract, too theoretical, possibly too apart from the practice of domestic law in courts ? How significantly can we ask our students to be familiar with historical, geographical, economic notions, that represent the thorough-bass of most comparative law courses ? An endless list of preliminary options: where to set the focus, between private and public law ? How to balance the West and the Rest? The formal and the informal? How much time (perhaps no time at all) should be spent in exposing students to the phantasmagoria of uses and misuses, discipline or method, exoticizing or deconstructing the foreign element, and so forth ?
No doubt, all these interrogations bother the teaching of comparative law as a general discipline, and the making of a textbook. They must be tamed, to contain publishing costs, as well as teaching constraints. It would be then unfair to blame the authors for (unavoidable) omissions. What counts is whether choices made by Nicola and Frankenberg – inclusions and omissions considered- give the readers a useful, understandable, and manageable introduction to the comparative law as a (critical) discipline. Something that could provide those approaching the subject, be they students, or newcomers, with an antidote from the “vertigo of everything” that could discourage any advancement in comparative law studies.
A dense and intense introductory Chapter (pp. 1-23) shows the gift of the authors in synthesizing complexity, and guiding readers through an immense literature on “How to compare, and Whatto compare”.
Sewing together most questions listed above, Nicola and Frankenberg have elaborated an approach of their own, focused on “real-life problems taken from the application of law”, to show how interpreters can move from a mainstream to a critical approach, and from a formalist to a non-positivist understanding of law that reads legal theories in the prism of policies, while evincing the social, cultural, and economic fabrics of judicial implementation. Once the set of comparative law methods and theories has been exposed, “all are invited to work” with a toolkit that can be arranged and applied to produce a comparative practice “that helps understand the plurality of legal cultures and their laws, and therefore deserves to be called critical” (at p. 23). An invitation that could be better appreciated when reading Chapter 1 together with Chapter 9 of the book (Comparing Legal Histories, pp. 183-205).
What has been defined as “Dynamic Comparative Law”, namely the study of laws, theories, cases, institutions patterns in their traveling is the focus of Chapter 2 (Comparing Legal Transfers pp. 24-46). Here, authors have set the stage of a drama called Legal Globalization, with all his characterizations: the transformation of laws and legal patterns into commodities, the emphasis on the role of experts, the role of chance and prestige in the offer and demand of legal models, the unexpected side-effects of hectic legal reforms. Looking back to the golden years of globalization we can, today, clearly recognize that comparative law as a discipline, and comparative lawyers as experts, failed to have a role in the worldwide market of legal reforms. The practice has privileged time-efficiency over the fine-tuning of context-based comparative law methodology; governmental agenda were driven by geo-politics, rather than by cultural affiliations. In spite of a story that proved to be a mortification for the “ubris” of the discipline, Nicola and Frankenberg advance a constructive reading: “comparing legal transfers could be an antidote against a too narrow (…) focus, against epistemic narrowmindedness and provincializing comparative law” (at p. 46).
“What does private property imply ?”. The formidable tangle of economic, political, legal and cultural models that depict property laws worldwide is at the center of Chapter 3 (pp. 47-69). Here, the talent of a comparative law teacher in classroom will be severely tested, as students are required to handle a complex scenario, populated by land reforms, public and private law regulations, formal taxonomies and practices of collective use, alternatives to private property and varieties of its social function. It is not by chance, after all, that “conventional textbooks of comparative law -as the authors do note- tend to focus on contracts and torts, and they often neglect property law” (p. 49). The density of issues simply hinted at, or more broadly described, in about 20 pages could justify by itself a “Comparative property law” course, open to necessary contaminations based on socio-economic approaches to property.
Unlike Chapter 3, the following one (pp. 70-97) deals with a topic, Comparing Contract Laws, that has received an overwhelming attention in comparative law conventional scholarship.
Keeping in the backgound a classical problem in contracts, specific performance, Nicola and Frankenberg portray the approach applied by mainstream scholarship (Zweigert and Kötz, Gordley): the common law/civil law dichotomy and its functional equivalence, projects in harmonixation, and the cultural meaning(s) of private autonomy. A sketched mention to Law and Economics theories of efficient breach and to Feminist and Critical Race theories of contract law enriches the picture. A tale that a class of normally equipped law students should be able to understand without too much effort, while applying the provided toolkit to the specific performance cases exposed (Mary Clark, 1821, and Anna Netrebko, 2023).
The second part of the book (pp. 98-182) shows a growing relevance for the non-legal layers (mainly, politics, ethics, and culture); it could not be otherwise, as the authors choose to hinge Chapter 5 (Comparing Tort Laws) on the matter of wrongful birth and life. The law of torts, that traditional comparative law scholarship had often used as a “gym” to train students in the play of combining leading cases, diverging opinions, laws and policies, proves again to be a fertile field for the participatory exercise Nicola and Frankenberg are calling the students to be engaged into.
On a similar note, Chapter 6 (pp. 119-140) adopts as a main theme for Comparative Family Laws the recognition of same-sex marriage. All possible legal and non-legal layers are, evidently, involved, and students are invited to delve into the “varying stances taken by courts, legislatures, and advocates regarding the legalization or resistance to same-sex marriage” (p. 139).
Finally, Comparing Constitutions (Chapter 8, pp. 161-182) gives the chance to confront a “conventional” comparative constitutional law, marked by a narrative of similarity and convergence, with the constitutional jurisprudence of wearing veil in public spaces.
As said, the commitment to offer a “different kind of textbook” has been respected.
Some comparative law teachers in Europe share the desire to get rid of a kind of mannerism in the discipline. They have a good chance now, as to open classroom windows to let in some fresh air is the worth of this book.
The Curious, Consequential History of “Cruel and Unusual Punishments”
Article 5 of the Universal Declaration of Human Rights (1948) reads: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” That prohibition is repeated in Article 7 of the International Covenant on Civil and Political Rights (1966), with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) also barring torture—defined in Article 1 as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” whether to punish or coerce a confession—and, as Article 16 states, “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” The “roots” of the right to be free from torture and cruel, inhuman and degrading treatment or punishment, Professor M. Cherif Bassiouni wrote in the Duke Journal of Comparative & International Law in 1993, “are found in the prohibition against ‘cruel and unusual punishments’ in the English Bill of Rights” and in the equivalently worded “Eighth Amendment of the United States Constitution.”
The Universal Declaration of Human Rights (UDHR), as well as the widely ratified International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT), laid the foundation for the prohibitions against torture and cruel, inhuman and degrading treatment (CIDT) to be recognized as peremptory, or jus cogens, norms of international law. In ratifying the ICCPR and the CAT, however, the United States filed reservations to both of those U.N. instruments, asserting that the treaty prohibitions meant “cruel and unusual punishments” as defined by the Eighth Amendment. “[W]hen the United States became one of the original signing nations” of the UDHR, law professor Jonathan Simon writes in Mass Incarceration on Trial (2014) of the international prohibition against CIDT, “legal experts on both sides of the Atlantic assumed that these words meant largely the same thing as the Eighth Amendment’s ban on ‘cruel and unusual punishment’.” The Eighth Amendment (1791) prohibition of “cruel and unusual punishments”—like the ICCPR and the CAT, a consequential milestone in the history of human rights—was derived from identical bars in the English Bill of Rights (1689) and the Virginia Declaration of Rights (1776), thus sparking considerable interest among jurists and scholars as to the origins of that somewhat peculiar phraseology.
In America’s founding era, revolutionaries such as Patrick Henry and George Mason saw the bar on “cruel and unusual punishments” as prohibiting torture, although torture was then largely understood by lawmakers to refer to then-prevailing inquisitorial methods of judicial torture in continental Europe (think Spanish Inquisition). One member of Congress, Representative Samuel Livermore of New Hampshire, said the Eighth Amendment’s language “seems to express a great deal of humanity” but thought the provision unnecessary, offering this observation: “No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?” Another legislator at the First Congress, Representative William Loughton Smith of South Carolina, “objected to the words ‘nor cruel and unusual punishments’” because he viewed their “import” as being “too indefinite.” In spite of those objections, the historical record shows that the Eighth Amendment’s text was “agreed to by a substantial majority.” In that era, America’s founders embraced the maxim of Montesquieu that any punishment that goes beyond necessity is “tyrannical,” and they also greatly admired Cesare Beccaria’s On Crimes and Punishments, which further promoted that maxim. Beccaria’s book was the first published text of the Enlightenment to make a fulsome argument against capital punishment, even for the crime of murder.
In the late nineteenth century, when death sentences were still widely used, the U.S. Supreme Court—ironically, in two decisions that approved executions by firing squad and electrocution—expressly held that the Eighth Amendment forbids torture. Today, the Supreme Court continues to allow executions in spite of the Eighth Amendment’s prohibition of cruel and unusual punishments, even though it simultaneously renounces torture and even though America’s condemned inmates now spend, on average, more than twenty years on death row before their execution (or commutation or exoneration, as the case may be). Torture was once seen as operating principally upon the body, with those accused of crimes subjected to water torture or the rack to secure confessions. The law’s prohibition of torture, however, is now understood to bar both physical and psychological forms of torture, with the Third Geneva Convention (1949)—adopted shortly after the UDHR—expressly prohibiting “physical or mental torture” of prisoners of war. After the adoption of the non-binding Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975), the binding CAT thereafter broadly—indeed, absolutely—prohibited torture, “whether physical or mental” in nature. Under the law, no public emergency—not even war, or threat of war—can be used to justify torture, and countries are barred from deporting or extraditing people to countries where they would be subject to torture.
The U.S. Supreme Court and legal scholars have long identified the English Declaration of Rights, codified as the English Bill of Rights (1689), as the first usage of the “cruel and unusual punishments” terminology. The English Declaration of Rights recited that, in King James II’s reign, “illegal and cruel punishments” had been “inflicted,” with its tenth clause then declaring in hortatory fashion: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions against excessive bail and excessive fines and the final phrase—“nor cruel and unusual punishments inflicted”—were later incorporated into various American state constitutions and the U.S. Constitution’s Eighth Amendment. George Mason was the principal drafter of Virginia’s Declaration of Rights, with James Madison—his fellow Virginian and a slaveholder—incorporating the bar on “cruel and unusual punishments” into the U.S. Bill of Rights. In 1969, one legal scholar, Anthony Granucci, described the wording of the equivalent English bar on “cruel and unusual punishments” as the product of “chance and sloppy draftsmanship.” The Eighth Amendment famously reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
It turns out that the U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the “cruel and unusual punishments” language, with Justice Thurgood Marshall, relying on Anthony Granucci’s scholarship, once observing that the use of “unusual” in the English Declaration of Rights “appears to be inadvertent.” In a new piece of scholarship forthcoming in the British Journal of American Legal Studies titled “Lost and Found: The Forgotten Origins of the ‘Cruel and Unusual Punishments’ Prohibition,” I debunk the conventional account of the origins of the “cruel and unusual punishments” phraseology—spelled “cruell and unusuall punishments” in some early English sources. The standard account of how that terminology first emerged during England’s Revolution of 1688–1689, popularly known as the “Glorious Revolution,” is woefully incomplete because it fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology.
These prior usages stretch back as far as the early 1600s, during the reign of King James I. The Generall History of the Magnificent State of Venice (1612), published in London, contains a reference to “A cruell and unusuall punishment” in its index and marginalia. That reference describes live burials of priests, their heads pointed downwards, between the two massive columns in Venice next to the Doge’s Palace and near St. Mark’s Basilica. Written by Thomas de Fougasses of Avignon in France, that Venetian history was originally published in French in 1608 before being translated into English. Abuses Stript, and Whipt (1613), the satire of the English courtier and poet George Wither (1588–1667), also describes the “brazen bull” of the tyrant Phalaris—a hollow metal bull heated by fire to kill anyone placed inside—as “That cruel’st and unusual’st punishment.” That passage from Abuses Stript, and Whipt was later reprinted in Juvenilia (1622), a collection of George Wither’s poetry, with Wither later fighting on the side of Parliament during the English Civil War. Such references show that the prohibition on cruel and unusual punishments—seen as an “ancient” common law right by the time of its codification in the English Bill of Rights—was anchored in early seventeenth-century linguistic usages.
After its first written appearances in the early 1610s, the “cruel and unusual punishments” terminology subsequently appeared in two Irish-Catholic Ulster Remonstrances (1642). The Ulster Remonstrances were written not long after—and, in the relevant passages, bear striking resemblance to—a clause of the Grand Remonstrance (1641). A 204-paragragh recitation of grievances presented to King Charles I, a believer in the “divine right of kings,” the Grand Remonstrance was ushered through a rebellious English Parliament by John Pym, an MP, shortly before the outbreak of the English Civil War. That Civil War culminated in Charles I’s execution in 1649 and Oliver Cromwell’s rise to power as the Lord Protector of the Commonwealth of England, Scotland and Ireland. Among other things, the Grand Remonstrance complained that “[t]he Court of Star Chamber hath abounded in extravagant censures” and that “His Majesty’s subjects have been oppressed by grievous fines, imprisonments, stigmatisings, mutilations, whippings, pillories, gags, confinements, banishments.” The 1642 Ulster Remonstrances, setting forth the causes that led to an Irish rising that began in October 1641 and lasted into the following year, similarly complained about the imposition of “heavy fines, mulcts, and censures of pillory, stigmatizings, and other like cruel and unusual punishments.”
These remonstrances did not come out of nowhere. In the 1630s, England’s prerogative Court of Star Chamber—controlled by Charles I and his Privy Council, including the king’s chief religious advisor, Archbishop of Canterbury William Laud—had ordered prominent Puritans, such as lawyer William Prynne, clergyman Henry Burton, and physician John Bastwick, to be horrendously punished. They were each imprisoned, whipped, pilloried, and had their ears cut off. While a Scottish doctor, Alexander Leighton, had “SS” branded on his cheeks for “Sower of Sedition” after suffering similar punishments in the 1630s, William Prynne—a polemicist and Archbishop Laud’s archenemy—was branded with the letters “S.L.” for seditious libeler.” An Irish equivalent of England’s Court of Star Chamber—the Court of Castle Chamber, also controlled by Charles I loyalists—similarly operated in Dublin and meted out, or threatened to inflict, like punishments. Ultimately, the Court of Star Chamber was abolished in 1641 along with its ecclesiastical equivalent, the Court of High Commission. The use of the pillory, whipping, and branding—once common punishments in England and colonial and early America—were eventually abandoned, too, with the U.S. Court of Appeals for the Eighth Circuit—in an opinion written by future U.S. Supreme Court Justice Harry Blackmun—ruling in Jackson v. Bishop (1968) that the lashing of Arkansas prisoners constituted an unlawful “cruel and unusual punishment.”
Because the cruel and unusual punishments terminology appears in multiple places before the English Declaration of Rights, the use of that phraseology in that document—and as codified in the English Bill of Rights—was plainly neither inadvertent nor the product of sloppy drafting. While it is now clear that the cruel and unusual punishments terminology first emerged to describe hideous methods of execution, like live burials and burning to death in the brazen bull, it is also clear that, by the 1640s, that terminology also referred to a whole host of non-lethal corporal punishments, including the pillory and stigmatizings (or branding of the skin). While Saudi Arabia, in 2011, sentenced six men to have their right hands and left feet amputated as punishment for “highway robbery,” such barbaric and bizarre punishments—from the “ducking” of “scolds,” to the use of public whipping posts, to offenders being put in the pillory and having rotten eggs thrown at them—have long been jettisoned by Western societies.
The cruel and unusual punishments phrase may have begun its life in curious and now-obscure sources—in a book’s index and marginalia, in a satire, and in written protests (or remonstrances). However, that centuries-old history or this legal historian’s quest to answer an imagined Trivial Pursuit question about the first usages of the cruel and unusual punishments verbiage should not obscure—and, in fact, only casts a darker shadow on—the continued use in the twenty-first century by a dwindling number of countries of corporal punishments and state-sanctioned executions. In December 2024, 130 countries at the United Nations called for a global moratorium on executions, and the United States (sadly, not among them) now stands—as documented by Amnesty International—in the company of China, Iraq, Iran, Saudi Arabia, Somalia, and North Korea in using executions. In The Death Penalty’s Denial of Fundamental Human Rights: International Law, State Practice, and the Emerging Abolitionist Norm (2023), published by Cambridge University Press, I argue that death sentences, like mock executions (already classified as acts of psychological torture under international law), must be strictly prohibited as torture because they constitute credible death threats that inflict severe pain and suffering. With non-lethal corporal punishments and mock executions already barred by law in Western societies, capital punishment must be abolished, too, and—like the pillory, the ducking stool, ear cropping, and the lash—relegated forever to the history books.
