Legal History of the British Empire

The mention of Ivor Richardson's article on the JCPC prompts me to post about something I should have noted some time ago, the recent conference on the Legal History of the British Empire. This was the first of its kind, and held at the National University of Singapore in early July. It was the initiative of John McLaren of the U of Victoria and David Williams from Auckland.

The conference was very well attended given the distance involved. There were about 120 attendees, and someone, not me, did a nationality count. If my memory is correct, there were 31 Australians, 21 Canadians, a dozen new Zealanders, and the rest was comprised of scholars from the UK, the US, South Africa, Sri Lanka, Bangladesh, Malaysia, Trinidad and Tobago, Hong Kong, China, Singapore, France (!) - altogether a total of 16 countries. The coverage of topics was even more diverse than that, for some people gave papers on countries other than  their 'own.' Mcmaster's Bonny Ibhawoh, for example, spoke about his work on Africa, a New Zealander gave a paper on Samoa, while Hudson Janisch of Victoria gave the only paper on St Helena. It was nice to see an acknowledgemnt that US history is also British empire history, although a paper on the 19th century US had to be eimaginatuively packaged as a 'legacy' of empire.

The quality and variety of papers in the sessions I attended was generally very good. Richard Boast of Wellington was superb on explaining the NZ Maori land court, a graduate student from China gave a very good piece on public health in Hong Kong, John McLaren's talk on the multiple meanings of the rule of law in the empire was excellent, there was a fascinating exposition of Judge John Gorrie's political activism in colonial Trinidad, and, of course, since I have already mentioned it, we had the almost complete legal history of St Helena. 

There is a complete list of the papers and authors on the conference website, at www.legalhistoriesempire.ca . There may be a forthcoming volume of some of the papers, and there is talk of a repeat in 2014 or 2015.

It should be added as a final note that the organisation was superb, with the National University of Singapore responsible for that.

Jim Phillips

       

See Legal History Blog Post on JCPC and the Empire

I don't usually duplicate or link to posts from the Legal History Blog, even if they relate to Canada or Canadians in some way or because I assume that most if not all readers of this blog subscribe to that one as well (and if you don't you should--it's wonderful). But I think this post  is worth drawing attention to, as the article has great significance for Canadian legal historians right across the board.

MacDonald and Hudson on Genocide and Indian Residential Schools

In the June 2012 issue of the Canadian Journal of Political Science, an intriguing, if presentist, interrogation of the legal meaning(s) of the historic collective abuse of first nations students in residential schools. David B. MacDonald of the University of Guelph and Graham Hudson of Ryerson University

ask the following questions. Did Canada commit genocide against Aboriginal peoples by attempting to forcibly assimilate them in residential schools? How does the UN Genocide Convention help interpret genocide claims? If not genocide, what other descriptors are more appropriate? Our position might be described as “fence sitting”: whether genocide was committed cannot be definitively settled at this time. This has to do with polyvalent interpretations of the term, coupled with the growing body of evidence the TRC is building up. We favour using the term cultural genocide as a “ground floor” and a means to legally and morally interpret the IRS system. (From the abstract)

Hamill on the Alberta Liquor Act and Control of Medicinal Liquor

Sarah Hamill, a graduate student at the Faculty of Law, U of A, has an article in the most recent issue of the Canadian Journal of Law and Society, entitled "Making the Law Work: Alberta's Liquor Act and the Control of Medicinal Liquor from 1916 to 1924." Sarah has drawn my attention to her acknowledgement of the Osgoode Society for a graduate student grant which supported the research.

Here's the abstract:

This paper uses the example of the control of medicinal liquor during prohibition in Alberta to explore how the methods of control altered during the eight years of prohibition. This paper argues that the system used to control medicinal liquor changed from a prosecutorial system to a regulatory system. This shift from prosecution to regulation was essential in ensuring that medicinal liquor was actually controlled and allowed medicinal liquor to become an alternative as well as an exception to prohibition. This paper focuses on explaining the success of administrative control rather than the courts’ attempts to control administrative action and thus examines administrative law and practice from the ground up. Consequently, this paper uses a broad definition of administrative law which includes the regulations, policies and practices created and used by the provincial state in its attempt to control medicinal liquor.

Cet article examine comment les méthodes de contrôle ont changé au cours des huit années de prohibition en Alberta en prenant l’exemple de l’alcool utilisé à des fins médicinales. L’auteure soutiens que le contrôle de ce type d’alcool est passé d’un système judiciaire à un système réglementaire. Cette évolution vers la réglementation s’est avérée essentielle afin d’assurer que l’alcool utilisé à des fins médicinales soit effectivement contrôlé et de permettre que cette substance devienne une alternative ainsi qu’une exemption dans le contexte de la prohibition. Cet article se penche sur le succès du contrôle administratif et non sur les efforts des tribunaux de contrôler les mesures administratives, examinant ainsi les fondements du droit administratif ainsi que des pratiques connexes. Par conséquent, cet article utilise une définition large du droit administratif qui inclut la réglementation, les politiques ainsi que les pratiques créés et utilisés par le gouvernement provincial dans ses efforts visant à contrôler l’alcool utilisé à des fins médicinales.

Fernandez on the Future(s) of American Legal History

In the summer 2012 issue of the University of Toronto Law Journal, Angela Fernandez of the U of T Faculty of Law has an article provocatively titled "The Future(s) of America Legal History."

Here's the abstract:

Critical Legal History (CLH) is currently being subjected to sustained critique and re-examination by some legal historians. This review essay looks at this debate in the context of two recent books on American legal history: Christopher Tomlins's Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865 (2010) and Laura Edwards's The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (2009). In keeping with the thrust of CLH scholarship, both books problematize the connection between law and narratives of freedom and equality in American history, and both show law as a significant force for non-freedom and inequality. Yet, in a recent symposium on Robert Gordon's classic article 'Critical Legal Histories' (1984), both authors chose to distance themselves from CLH. After explaining what is significant and important about each book, this review essay describes the debate in that symposium. Notwithstanding the extensive disagreement between the contributors over the use of so-called 'mandarin' legal materials in historical research (sources like legal treatises that reflect elite perspectives), the review essay makes the point that this disagreement is much less important than the challenge raised about the long-term tendencies and preoccupations of CLH and asks what difference it might make to take the postmodern turn advocated by these authors.

Vaillancourt and Campos on regulation of religion in Quebec

In Quebec Studies, Fall/Winter 2011, an article by Jean-Guy Vaillancourt and Elisabeth Campos, "The Regulation of Religious Diversity in Québec."

Here's the abstract:

The article considers the twentieth century Western movement towards secularization and religious fragmentation, focusing on Québec, Canada's efforts to legislate religion. Some of the legislation and case law considered include the 1975 Québec Charter of Human Rights and Freedoms, the 1982 Canadian Charter of Rights and Freedoms, and both Canada's Criminal and Civil codes. The article also considers legal topics dealing with religious pluralism, the notion of reasonable accommodation, multiculturalism, and the protection of minorities against the hegemony of the majority.

Two legal history articles in CHR in advance online

Both focus on the history of ideas in law. The first, from Queen's Department of history doctoral candidate Peter Price, is 'Fashioning a Constitutional Narrative: John S. Ewart and the Development of a ‘Canadian Constitution.’' Online here. Here's the abstract:

John Skirving Ewart (1849–1933) was one of the most controversial public figures in early-twentieth-century Canada. With a background as an experienced lawyer, Ewart wrote extensively on Canadian law and national independence. This paper examines Ewart's private and public writings, focusing on the way in which he crafted a new and unique narrative of the Canadian constitution that positioned Canada as historically and politically distinct from the British Empire. At a time when a robust sense of imperialism energized much of English Canada, Ewart's ideas were controversial and contested. Assessing Ewart's constitutional narrative provides a way of understanding the early development of independent Canadian nationalism and the constitutional changes that emerged in the mid-twentieth century.

And from David Tough, also a doctoral candidate at Carleton, currently teaching at Trent, an article on the legislative history of the 1917 income tax act, "‘The rich … should give to such an extent that it will hurt’: ‘Conscription of Wealth’ and Political Modernism in the Parliamentary Debate on the 1917 Income War Tax," here.  The abstract:

The parliamentary debates on the Income War Tax in the summer of 1917 were marked by fierce criticisms from Liberal members who argued that the tax measure fell short of the ideal of ‘conscription of wealth’ that had been in wide circulation in the months leading up to the debate. Scholars have repeatedly pointed out that ‘conscription of wealth’ rhetoric, which attempted to link the unfair sacrifices of the war effort to the need for income taxation, and revealed a rapidly polarizing political climate at the end of the war, was the key inspiration for the introduction of the Income War Tax. However, the use of similar rhetoric by parliamentarians, and the call for ‘radical’ taxation across political differences, suggests that something else – a shared desire for a modernist ‘break from the past’ – was at work in the debate.