What might it be to write a post-colonial social science? And how might the intellectual legacy of Chinese classical philosophy—for instance Sun Tzu and Lao Tzu—contribute to such a project? Reversing the more usual social science practice in which EuroAmerican concepts are applied in other global locations, this paper instead considers how a “Chinese” term, _shi_ might be used to explore the UK’s 2001 foot-and-mouth epidemic. Drawing on anthropological insights into mis/translation between different worlds and their alternative ways of (...) knowing and being, the paper explores that epidemic in three differently inspired _shi_-inflected “empirical” accounts. The first uses Sun Tzu’s strategic understanding of _shi_ to tell a conventionally representational story. The second resists the causes and background factors implied in standard social science by offering a “light” and _shi_-inflected form of knowing. And the third combines the referentiality of social science with a Lao Tzu-informed commitment to the paradoxes of normative epigram. This third narrative thus illustrates the possible features of a situated and _shi_-inflected social science that recognizes that it participates in the contexted and immanent flows and counterflows of things in the world. The paper concludes by noting that such a _shi_-inflected social science is experimental, and suggests that it is important to explore a range of ways of reversing the flow of concepts between EuroAmerica and other global locations. (shrink)

This paper explores a colonial controversy: the imposition of state rules to limit salmon fishing in a Scandinavian subarctic river. These rules reflect biological fish population models intended to preserve salmon populations, but this river has also been fished for centuries by indigenous Sámi people who have their own different practices and knowledges of the river and salmon. In theory, the Norwegian state recognizes traditional ecological knowledge and includes this in its biological assessments, but in practice this does not (...) happen, so Sámi fishing practices and the realities that they enact are disappearing. This paper explores how to conceptualize colonial differences in knowing. Drawing on recent anthropology, it asks how “settler” and “nomadic” enact worlds and their realities, suggesting that, unlike the latter, the former create a single reality intolerant of alternatives. The focus is thus on a “politics of how” and the ways in which colonial realities and knowledges might intersect less destructively. (shrink)

In 1894, the Institut Colonial International was founded in Brussels, with the aim to engage and promote transnational exchanges between jurists, scholars, politicians, colonial administrators and experts, comparing different colonial experiences. As the Institut Colonial International’s founders had hoped, its publications promoted legal debates, discussions and the prospects of specific legislation, decrees or norms to be adapted and used in entirely different colonial systems. This paper will show that the Institut Colonial International encouraged the (...) exchange of ideas about the various colonial experiences in order to create common and universal principles. International law and domestic law, or national law concerning land register systems and land law were part of the colonial discourse as it endeavoured to create and adopt universal principles of law, trying to establish a platform of common dialogue, with common premises, concerning different colonies, different colonial experiences and ultimately different cultural, social and political contexts. (shrink)

(2001). Rewriting the Utilitarian Market: Colonial Law and Custom in mid-Nineteenth-Century British India. The European Legacy: Vol. 6, No. 2, pp. 177-188.

(2001). Rewriting the Utilitarian Market: Colonial Law and Custom in mid-Nineteenth-Century British India. The European Legacy: Vol. 6, No. 2, pp. 177-188.

During the imperial period, French colonial law developed regimes of exception for indigenous peoples in contravention of the principles of the Declaration of the Rights of Man and the Citizen. These were justified by the need to secure order and by the claim that ‘natives’ were too ‘backward’ for the juridical principles upheld by the Declaration to apply to them. Introduced as temporary measures in Algeria in the 1840s, these measures, which discriminated between the French settler ‘citizens’ and the (...) native ‘subjects’, became firmly entrenched by the Third Republic, supported by the emergence of the ‘colonial sciences’ and the International Colonial Institute in the late 19th century. The exception became the rule. The colonial juridical regimes were derogatory of principle in two major ways: they subsumed universality to territoriality and defined the personhood of indigenous peoples according to racial, cultural or religious affiliations rather than as part of a shared humanity. Two particularly exorbitant measures of wide application were administrative internment without right of review and collective responsibility of a group for individual actions. Such regimes of exception persisted in French colonies until after World War II. (shrink)

During the imperial period, French colonial law developed regimes of exception for indigenous peoples in contravention of the principles of the Declaration of the Rights of Man and the Citizen. These were justified by the need to secure order and by the claim that ‘natives’ were too ‘backward’ for the juridical principles upheld by the Declaration to apply to them. Introduced as temporary measures in Algeria in the 1840s, these measures, which discriminated between the French settler ‘citizens’ and the (...) native ‘subjects’, became firmly entrenched by the Third Republic, supported by the emergence of the ‘colonial sciences’ and the International Colonial Institute in the late 19th century. The exception became the rule. The colonial juridical regimes were derogatory of principle in two major ways: they subsumed universality to territoriality and defined the personhood of indigenous peoples according to racial, cultural or religious affiliations rather than as part of a shared humanity. Two particularly exorbitant measures of wide application were administrative internment without right of review and collective responsibility of a group for individual actions. Such regimes of exception persisted in French colonies until after World War II. (shrink)

How do certain social conflicts come to fall within the law? How does the law come to have its space? I argue that law emerged in British Honduras through a structure of racial differentiation. The law arrived as a mode of ordering space, bodies, and justice that realizes an immanent structure of racial difference. Racial difference thus founds the space of law. To advance this argument, I examine the record of the first criminal trial prosecuted in the place now called (...) southern Belize—for the murder of an unnamed Indigenous woman by an enslaved Black man. Through an analysis of the trial record that draws upon Jameson’s reading of Greimas’s semiotic method, I show that the standing of the trial, as well as the evaluation of evidence, hinge upon the delineation and operation of racial categories. While British colonialism has ended, these categories persist. (shrink)

The native cannot be compared to the European, … he shares neither the latter's moral qualities, nor his education, nor his religion …, nor his civilization. The mistake is a commendable one and is typically French; it was committed by those who first drew up the ‘Declaration of the Rights of Man and the Citizen’, instead of more modestly drawing up the ‘Declaration of the Rights of the French Citizen’.P. Azan (1925)The native has a style of behaviour, sets of laws (...) and an attachment to his land that are not ours. We will not bring him happiness either by applying the principles of the French Revolution, which is our Revolution, nor by imposing upon him the Code Napoléon, which is our Code.F. Eboué (1941). (shrink)

A collection that focuses on the role of European law in colonial contexts and engages with recent treatments of this theme in known works written largely from within the framework of postcolonial studies, which implicitly discuss colonial deployments of European law and politics via the concept of ideology.

Colonies, Commerce, and Constitutional Law is a major theoretical analysis of the harmful effects of colonies on commerce and constitiutional democracy, and is one of the most important studies of colonialism written in the nineteenth century. Of the four essays collected in this voloume, three have been edited directly from the original manuscript sources. The only essay to have appeared in print, `Observations on the Restrictive and Prohibitory Commercial System', is generally regarded as an early classic statement of the beneficial (...) effects of freedom of trade. In the these pioneering essays written in 1820-2, Bentham provided a penetrating critique of colonialism from within the liberal utilitarian tradition. Applying his general principles to the case of Spain and Spanish America, he argued that any attempt by Spain to maintain dominion over her Empire, or even to maintain a claim to the dominion was fundamentally misguided. Colonies were not a source of wealth to the colonizing country, but rather led to the imposition of increased taxation. Moreover, the existence of colonies increased the amount of patronage at the disposal of Spain's rulers, and thus would facilitate the corruption of the members of the new legislative assembly and eventually lead to the restoration of the ancient despotism. Colonies were not only wasteful and expensive, but posed a threat to constitutional government itself. The should therefore be granted unconditional independence, as a prererequisite to the establishment of unrestricted commercial relations, which would produce mutual benefit to both Spain and Spanish Amarica. (shrink)

This article explores the duality of law with regard to the LGBTQ+ community, examining both its historical regulation of non-heteronormative genders and sexualities and its contradictory potential to transcend such regulations over time. Situated within a postcolonial analytical framework, it undertakes a thematic overview and narrative appraisal of research materials, drawn from a diverse array of social science disciplinary intersections, spanning the timeline from 1990 to 2022, that expounds on the intricate and overlapping imbrications between law and the LGBTQ+ community (...) in India. It was observed that the extant academic deliberations on the subject are dispersed across disciplinary boundaries within the larger scope of humanities and social sciences, necessitating an integrative approach. By delving into the historical antecedents of the subject matter, the current findings are situated within four domains, namely: i) the colonial nexus; ii) the postcolonial public redress; and iii) other domains of sustained legal contestation, such as healthcare, workplace, media censorship, and the fraught terrain of identity and legal lexicon. (shrink)

In this exploration of the close relationship between terror and law, I have several aims. First, I want to demonstrate that the relationship between terror and law is not a question of relating violence just to law, but to the very process of constitution making.

In this exploration into the close relation between terror and law, I attempt first to show that the relation between terror and law is not a simple question of relating violence to law, but to the very process of constitution making. Second, laws relating to terror may or may not find a formal place in the constitution, but this relation is essential to the working of the basic law, of the foundational concept of the rule of law. Third, intelligence gathering (...) occupies a key place in this relation, and this activity, which has no mention in the constitution almost anywhere in the world, is the fulcrum on which reasons of state stand. Fourth, intelligence is the close monitoring of human movement, of the body, of the physical activities, and in this physical form of politics we have the meeting of the body and reasoning, terror and constitution, violence and law. And finally, the article describes a specifically Indian experience; yet may have larger significance in terms of retrieving the history of constitution making. (shrink)

ArgumentData collections are a hallmark of nineteenth-century administrative knowledge making, and they were by no means confined to Europe. All colonial empires transferred and translated these techniques of serialised and quantified information gathering to their dominions overseas. The colonial situation affected the encounters underlying vital statistics, enquête methods and land surveying. In this paper, two of those data collections will be investigated—a survey on land and a survey on indigenous law, both conducted around 1910 on the Micronesian island (...) of Pohnpei, which had fallen under German colonial influence a decade earlier. Strikingly, there are no enumerators or envoys of the state visiting the doorsteps of Pohnpei. To facilitate the data collection on homesteads, the whole population of the island was called upon to measure their respective plots of land themselves, without resorting to certified land surveyors. The preserved cadastral lists and spreadsheets testify to a rather peculiar contact between the colonizing administration and the colonized peoples. I argue that the production of data made encounters necessary, which are best observed though a methodological focus on data practices. I argue, furthermore, that the Pohnpeians were prompted during the surveys to define their homestead in new terms. This did not only entail new two-dimensional plots but also a new regime of private property. The change in the legal concept can be seen as a continuation of colonial violence by other means, given that it happened in the aftermath of the defeated Pohnpei Rebellion. The argument of the paper is, therefore, that data collection can have formative effects on society, and that measurement and quantified information are often, as Witold Kula argued, a scene of conflict. At its core, the installation of these metric regimes signified a change in patterns of justification, resource management and the unwritten constitution of the Pacific island. (shrink)

This article discusses the way in which substantive criminal law is generally taught in United States law schools and argues that more room should be given in these courses to familiarize students with the horrendous nature of much of our criminal law system—in particular the terrible conditions faced by most prison inmates after conviction.

Jason A. Frank, Constituent Moments: Enacting the People in Postrevolutionary America, Duke University Press, ISBN - 9780822346630Vicki Hsueh, Hybrid Constitutions: Challenging Legacies of Law, Privilege and Culture in Colonial America, Duke University Press, ISBN - 9780822346180.

The three texts addressed in this review essay challenge us to question and creatively re-imagine the representation of material spaces at the centre of the colonial project: oceans, islands, ships and archives. Elizabeth McMahon deconstructs the island and its metaphorics, charting the relationship of geography, politics and literature through the changing status of islands, as imagined by colonists, beginning in the Caribbean and ending in Australia. Renisa Mawani destabilises colonial geography by re-animating the ocean and presents, amongst others, (...) the ship and the ocean, as both method and juridical form. Writing against the ‘free sea’, Mawani addresses the imperial reliance on control of the ocean and the intensive juridification of the sea. Stewart Motha re-imagines law’s aggressive acts of adjudication, and challenges its originary fictions by exploring the logic, aesthetics and violence of legal processes that preserve and disavow the past at the same time. Each monograph considers the imaginaries, fictions and material geographies of colonialism, alongside how these imaginaries have been used as sites of counter-claim and resistance by those subjected to their technologies. (shrink)

On 29 March 2017, the United Kingdom Government notified the European Council of its intention to withdraw from the European Union legal order. On 31 January 2020, the UK entered a transition period, during which it remains bound to the EU Treaty Framework. This review essay examines the near three-year period of the UK’s attempted cessation from the EU. It argues that what is most striking about the Brexit case is that it reveals the extent to which EU member states (...) remain bound by ideologies and tropes developed during the era of European colonisation—even in their relationship with each other. The review essay draws upon Brenna Bhandar’s Colonial lives of property: Law, Land and racial regimes of ownership, Danny Dorling and Sally Tomlinson’s Rule Britannia: Brexit and the end of empire, and Eva Mackey’s Unsettled expectations: Uncertainty, land and settler decolonization to show how Brexit bears upon themes that have long preoccupied postcolonial scholars working in a variety of contexts and geographical locations. From the Brexit example, the review article highlights the persistence of colonial projects of invention and the appropriative techniques and tropes that attend these and, above all, it highlights the necessity of decolonial violence. (shrink)

Although a great deal of attention has been paid to the history of intellectual property in Great Britain, very little has been said about the history of intellectual property law in the British colonies. This Article attempts an overview, focusing on the nineteenth century. The author argues that there was no apparent imperial strategy as to the development of colonial intellectual property laws, and that, as a consequence wide variations existed between the laws operative in Britain and the colonies. (...) One exception to this picture existed in relation to literary copyright, where, for reasons that were never clearly articulated, British law had been extended to its colonies from 1814. The overall picture was otherwise one of "legal fecundity," with capacity for variation and experiment by the colonial legislatures constrained more by internalized notions of what was appropriate than by formal, external, limitations imposed from Britain. However, towards the end of the nineteenth century, there appeared a growing desire both in Great Britain, and amongst many of the colonies and self-governing dominions, for a greater level of uniformity. (shrink)

The three texts addressed in this review essay challenge us to question and creatively re-imagine the representation of material spaces at the centre of the colonial project: oceans, islands, ships and archives. Elizabeth McMahon deconstructs the island and its metaphorics, charting the relationship of geography, politics and literature through the changing status of islands, as imagined by colonists, beginning in the Caribbean and ending in Australia. Renisa Mawani destabilises colonial geography by re-animating the ocean and presents, amongst others, (...) the ship and the ocean, as both method and juridical form. Writing against the ‘free sea’, Mawani addresses the imperial reliance on control of the ocean and the intensive juridification of the sea. Stewart Motha re-imagines law’s aggressive acts of adjudication, and challenges its originary fictions by exploring the logic, aesthetics and violence of legal processes that preserve and disavow the past at the same time. Each monograph considers the imaginaries, fictions and material geographies of colonialism, alongside how these imaginaries have been used as sites of counter-claim and resistance by those subjected to their technologies. (shrink)

In this paper, I shall make the following propositions: in order to conceptually capture and represent the acts of political protest in a state of exception, we will need to reorient and supplement our representational apparatuses and also our theoretical frameworks for thinking about the gendered modes of protest under emergency laws and political abandonment. Through an analysis of the ‘naked protest’ of the Meira Peibis in Manipur, a ‘state of exception’ in democratic India, I shall argue that a series (...) of supplementations to our current thinking on intersectionality, bare life and political subjectivation are required if we are to make sense of political acts of resistance, refusal and disavowal of the law of exception. (shrink)

In many parts of Africa three different systems of laws are concurrently applied – the imported "Colonial" law, the indigenous customary law and Islamic law. In some countries the customary and the Islamic law are kept separate and distinct, while in others they are fused into a single system. This volume represents a unique survey of the extent to which Islamic law is in fact applied in those parts of East and West Africa which were at one time under (...) British administration. It examines the relevant legislation and case law, much of which has never appeared in any Law Reports; the judges and courts which apply it and the problems to which its application give rise. (shrink)

Assembling a series of voices from across the field, this book demonstrates how posthuman theory can be employed to better understand and tackle some of the challenges faced by contemporary international law. With the vast environmental devastation being caused by climate change, the increasing use of artificial intelligence by international legal actors, and the need for international law to face up to its colonial past, international law needs to change. But in regulating and preserving a stable global order in (...) which states act as its main subjects, the traditional sources of international law - international legal statutes, customary international law, historical precedents and general principles of law - create a framework that slows down its capacity to act on contemporary challenges, and to imagine futures yet to come. In response, this collection maintains that posthuman theory can be used to better address the challenges faced by contemporary international law. Covering a wide array of contemporary topics - including environmental law, the law of the sea, colonialism, human rights, conflict, and the impact of science and technology - it is the first book to bring new and emerging research on posthuman theory and international law together into one volume. This book's posthuman engagement with central international legal debates, prefaced by the leading scholar in the field of posthuman theory, provides a perfect resource for students and scholars in international law, as well as critical and socio-legal theorists, and others with interests in posthuman thought, technology, colonialism and ecology. (shrink)

Marcel Mauss published his essay The Gift in the context of debates about the European sovereign debt crises and the economic growth experienced by the colonies. This article traces the discursive associations between Mauss’ anthropological concepts and the reformist program of French socialists who pushed for an “altruistic” colonial policy in the interwar period. This article demonstrates that the three obligations which Mauss identified as the basis of a customary law of international economic relations served as key references in (...) the French debate about the relationships between metropolises and colonies in the interwar period. Mauss made this relation between colonial policy and the ethnology of the gift explicit in his book, The Nation. Moving beyond Mauss’ interwar writings, the article traces the genealogy of his later reflections to his involvement in prewar debate... (shrink)

Fleur Johns argues that the contraposition of a ‘bottom-up’ approach of politics of prototypical technique rather than the ‘top-down’ politics of the master plan or normative principle no longer seems as straightforwardly radical as it appeared when James C Scott posited the value of local knowledge or métis against grand plans of high modernization, just over 20 years ago. This paper seeks to follow Johns’ call, ‘to capture and probe some of the effects of sensibility, rationality or style widely reproduced (...) in the details of development work’. It draws upon fieldwork in Nairobi to open up a discussion of a shift in sensibility from a ‘bottom-up’ or ‘postliberal’ approach to a framing of open-ended encounter. The paper critiques this imaginary of relational encounter by engaging contemporary work in critical black studies. It suggests that the problem of critique is that it reproduces the problems of governing imaginaries, continually seeking to rework the human subject via adaptive capacities, sensitivities to difference and openness to alterity, while leaving intact the coloniality of being, the antiblack world. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Graffiti and Colonial Unknowing:A Comment on Mishuana Goeman's "Caring for Landscapes of Justice in Perilous Settler Environments"Anna Cookin "caring for landscapes of justice in Perilous Settler Environments," Dr. Goeman shows how the NDN Collective's initiatives, Chemehuevi photographer Cara Romero's Tongvaland project, and the works of Gabrieliño Tongva artist Mercedes Dorame "exemplify communities of care" that work toward "the unmapping of settler terrains" ("Caring for Landscapes" 51). Her address (...) highlights how these cartographic art productions are processes of (re)mapping that challenge colonial spatialities. Drawing on Michi Saagig Nishnaabeg scholar Leanne Betasamosake Simpson's poem "i am graffiti," Goeman frames these art works as Indigenous graffiti, insofar as they are everyday acts of resurgence1 that resist erasure and enact rematriation.My comments aim to articulate how Romero's and Dorame's works both reveal and disrupt a colonial unknowing by showing the cracks of settler colonial spatiality. I take Goeman's address to illustrate that the changing of minds and unsettling of settler identity will not occur through argumentation, facts, and figures alone, but rather through aesthetic and cartographic practices that "provide a way of seeing Indigenous futurities and relationalities" ("Caring for Landscapes" 52).Maps as Tools of Settler ColonialismIn order to highlight how these art practices enact a kind of (re)mapping that breaks through the veneer of colonial permanence, we first need to consider the way mapping transforms land into property in the service of Indigenous erasure and land dispossession. In her address, Goeman offers a short history of what is now called Los Angeles through the lens of dispossession that occurs through "international claiming of property and burgeoning US property law" ("Caring for Landscapes" 53). Tovaangar was divided into Spanish (and [End Page 64] then Mexican) land grants that, after 1846, were "registered under the US as property" (Goeman, "Caring for Landscapes" 53; emphasis added). The Land Act of 1851 "established the domestication of the California landscape under US governance" by legitimating existing Mexican land rights and mapping out territory yet "unclaimed" ("Caring for Landscapes" 54). The mapping of this so-called "unclaimed" territory propelled a violent erasure of California Indians by "establishing new and ongoing commerce centers" ("Caring for Landscapes" 53). Land was transferred into property—as a thing owned—without "the consent of those who … lived on the land since time immemorial, following the settler structure of passing land between Christian nations" ("Caring for Landscapes" 53). By showing how property rights legitimate conquest and violence, Goeman illustrates how mapping has been (and continues to be) an "essential settler-colonial tool to domesticate land in Southern California and propel development" ("Caring for Landscapes" 54). While she demonstrates how the mapping of Tovaangar using 493 hand-drawn Diseños maps served to sever Indigenous communities (and their relationships with land, such as the Gabrieliño Tongva with the San Gabriel Mountains), she emphasizes that this is an ongoing process that has not been left in a distant past. Newer maps that may seem more objective and scientific with "better models of scale or a more realist representation" remain, at their core, maps of dispossession ("Caring for Landscapes" 54).The very desire to objectively determine location by assigning latitude and longitude reveals a colonial spatiality, which "territorialize[s] the physical landscape by manufacturing categories and separating land from people" and conceives of space in terms of property logics (Goeman, "[Re]Mapping Indigenous Presence" 296). In addition to Indigenous land dispossession, this colonial spatiality rejects relationality by creating dualist boundaries between human and non-human, in which land is the raw material for human development and the creation of culture. Cherokee philosopher Brian Burkhart speaks of relationality in terms of locality, which he defines as "being-fromthe-land, knowing-from-the-land, and meaning-from-the-land" (Indigenizing Philosophy xvii). The severing of locality can be understood in terms of the transformation of land as relative to inert matter to be acted upon. Mapping serves as a tool of settler colonial erasure insofar as it delocalizes "land as the relational ground of kinship" into "land as a mere object that only has meaning or value in relation to people" ("Indigenizing Philosophy... (shrink)

This article asks if the incorporation of Sumak Kawsay, a concept from Andean philosophy, into the Constitution of Ecuador, has impacted the legal regulation of violence against women. It examines the trajectory of penal reform in the field of domestic violence and suggests that the decolonial shift in the Constitution has failed to significantly disrupt the dominant framework of penality in which gender violence regulation is inscribed. At the same time, feminist demands have been reframed through the formations of criminal (...) law and the dominant political discourse, resulting in provisions that reproduce a positivistic logic and a family protection rationality, with problematic consequences for women’s access to justice on the ground. If securing success in legal reform entails translating emancipatory demands into established and unchallenged penal paradigms, the potential of decolonial notions is overshadowed by the language, formalities and underlying assumptions of criminal law. (shrink)

The commemorative edition of the 80th anniversary of Casa Grande & Senzala, the founding book of Brazilian modern sociology written by Gilberto Freyre and published in 2013, shows on its cover a glamorous ‘Casa Grande’, lit like an architectural landmark, ready to serve as the set for a film or a TV soap opera. What happened to the ‘Senzala’ that appeared on the covers of the dozens of previous editions? This paper investigates, following some changes in Brazilian Visual Culture in (...) the twentieth century, how such an astonishing disappearance could take place. The paper examines the image of the slave quarters as part of a racial trope: a foundational and colonial trope, one that is capable of institutionalizing subjects and producing a subaltern mode of subjectivity. It also explores connections between critical legal studies and visual and cultural studies to question how and why knowledge produced over the status, nature and function of images contributes to institute—and institutionalize subjectivity. In order to explain this disappearance we propose a legal-iconological experiment. We will enunciate, and attempt to enact, the Statute of Image-nation: the laws of the image that constitute subjectivity in Brazilian racial tropes. In doing so, we might be able to point out the ways in which law and image function together in institutionalizing subjectivity—and subjection. (shrink)

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the (...) Australian Prime Minister's formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted. © Springer Science + Business Media B.V. 2009. (shrink)

Focusing on the ‘problem’ of pleasure _Law, Orientalism and Postcolonialism_ uncovers the organizing principles by which the legal subject was colonized. That occidental law was complicit in colonial expansion is obvious. What remains to be addressed, however, is the manner in which law and legal discourse sought to colonize individual subjects as subjects of law. It was through the permission of pleasure that modern Western subjects were refined and domesticated. Legally sanctioned outlets for private and social enjoyment instilled and (...) continue to instil within the individual tight self-control over behaviour. There are, however, states of behaviour considered to be repugnant to, and in excess of, modern codes of civility. Drawing on a broad range of literature,, yet concentrating on the experience of British India, the argument here is that such excesses were deemed to be an Oriental phenomenon. Through the encounter with the Orient and with the fantasy of its excess, Piyel Haldar concludes, the relationship between the subject and the law was transformed, and must therefore be re-assessed. (shrink)

A crucial element of sovereignty politics concerns the role that juridical techniques play in recursively creating images of the sovereign. This paper aims to render that dimension explicit by focusing on examples of crime-focused law and colonial rule at the Cape of Good Hope circa 1795. It attempts to show how this law helped to define a colonial sovereign via such idioms as proclamations, inquisitorial criminal procedures, and case narratives framing the atrocity and appropriate punishment for crimes. Referring (...) to primary texts of the time, the paper explores how procedures and narratives of Cape law were also deeply involved in fashioning specific images of the sovereign in whose name it claimed to operate. (shrink)

In John Locke's Two Treatises of Government, the state of nature, and more particularly natural man, are created within the tradition of natural law. Several commentators, such as James Tully and Karl Olivecrona, have recognized this legacy in Locke's political thought.1 While providing an analysis of Locke's thought in relation to natural law, such studies, however, have not fully examined the global context within which both the Two Treatises and seventeenth-century natural law developed. Consequently the extent to which natural law (...) theorists, such as Hugo Grotius and Samuel Pufendorf, were influenced by the colonial interests of their particular countries of origin has been largely overlooked. The development of natural law theory, which can be traced back to the time of Cicero and beyond, is transformed during the sixteen hundreds by the need to answer new questions posed, both on sea and land, by the expanding colonial empires of Europe. Thus, in considering the natural law theorists who influenced Locke, it will be necessary to examine how colonialism influenced both the questions which were posed and the answers that were given. (shrink)

THE opening paragraph of the Declaration of Independence invokes, as every American should know, "the Laws of Nature and of Nature’s God." The import of this invocation may be discerned by examining the appeals to natural law in the polemical literature of the American revolutionary period against the background of natural law/natural rights philosophy in the seventeenth and eighteenth centuries, on the one hand, and, on the other hand, within the particular historical context of events constituting the American Revolution. The (...) phrase "the Laws of Nature and of Nature’s God" in the Declaration is revealing. It simplifies what had, in earlier times, been referred to as "fundamental law," omitting and de-emphasizing, however, some rather essential elements. Historically, fundamental law had always been esteemed to be a law superior to statutory or positive law. Unless the latter conforms to the former, it is not valid, and invalid positive laws are null and void, so that there is no obligation to obey them. In the history of British jurisprudence, which includes colonial American jurisprudence, fundamental law embraced divine law, natural law, the British constitution beginning with Magna Carta, common law, and the colonial charters. Appeals to fundamental law were made when protesting statutory or positive laws and decrees. Thus the Declaration and Resolves of the First Continental Congress in October, 1774, invokes "the immutable laws of nature, the principles of the British constitution, and the several charters and compacts" as the moral, rational, and ultimate legal basis for protesting alleged British encroachments on American rights. Yet less than two years later, the Declaration of Independence, abandoning the British constitution and dissolving the political band—the charters and compacts—between Great Britain and America, rests simply on "the Laws of Nature and of Nature’s God.". (shrink)

This article focuses on land rights, land law, and land administration within a multilayered colonial setting by examining a major land dispute in British-ruled Palestine. Our research reveals that the Mandate legal system extinguished indigenous rights to much land in the Zor al-Zarqa and Barrat Qisarya regions through its use of "colonial law"--the interpretation of Ottoman law by colonial officials, the use of foreign legal concepts, and the transformation of Ottoman law through supplementary legislation. However, the (...) class='Hi'>colonial legal system was also the site of local resistance by some Palestinian Arabs attempting to remain on their land in the face of the pressure of the Mandate authorities and Jewish colonization officials. This article sheds light on the dynamics of the Mandate legal system and colonial law in the realm of land tenure relations. It also suggests that the joint efforts of Mandate and Jewish colonization officials to appropriate land and undertake "development" operations in the area were fueled by neither the interests of colonial rule nor those of Jewish colonization alone, but, rather, by the integrated impact of both forces. (shrink)

Educational Legislation and Administration of the Colonial Governments is an unchanged, high-quality reprint of the original edition of 1899. Hansebooks is editor of the literature on different topic areas such as research and science, travel and expeditions, cooking and nutrition, medicine, and other genres. As a publisher we focus on the preservation of historical literature. Many works of historical writers and scientists are available today as antiques only. Hansebooks newly publishes these books and contributes to the preservation of literature (...) which has become rare and historical knowledge for the future. (shrink)

This article examines the race-thinking and colonial reasoning circulating in two recent developments in Canadian law with respect to polygamous marriage: the Polygamy Reference that upheld the Criminal Code provision on polygamy and the Zero Tolerance for Barbaric Cultural Practices Act. This legislation introduced changes to Canada’s immigration regulations, which include the practice of polygamy as a basis for refusing foreign applicants and deporting foreign nationals. I address how insights from the field of evolutionary psychology were applied in the (...) Polygamy Reference and what discursive and material resonances they had in the Zero Tolerance Act. Drawing on the work of Sylvia Wynter, I situate these judicial and legal developments in relation to violence, within colonial formations of state power, and as forces supporting white supremacy through the continuing valorization of monogamy as a foundational aspect of social and sexual citizenship in Canada. (shrink)