The Centre for the History of European Discourses was incorporated in the Institute for Advanced Studies in the Humanities in August 2015.

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Transpositions of Empire

Titles and Abstracts


Shaunnagh Dorsett

Victoria University of Wellington
The Birthright Principle: British Imperial Constitutional Law and Settler Discourse 1840-1850
In the late 1840s, Chapman J of the New Zealand Supreme Court heard the first (known) Māori inter se murder cases. With apparently little hesitation he found jurisdiction and the accused were tried. These newly discovered cases are a point of entry into a consideration of the birthright principle. Despite its centrality to British Imperial law, this principle or metaphor has received little sustained academic attention. The paper considers the origins of birthright and traces its movement through British Imperial law to its concrete manifestation in New Zealand 1840-1850, thereby outlining a possible genealogy. It argues that the meaning of the principle can only be understood through an account of how it was deployed in specific and concrete politico-juridical discourse, in this case colonial New Zealand. The paper uses new data to consider the ways in which birthright and sovereignty were conceptualised both in legal discourse and in popular thought. Through a wide range of materials, and in reaction to decisions such as those of Chapman J, settlers invoked their ‘birthright’, and produced accounts of identity which are constructed both with and against those of Maori.
Full Paper in PDF 

Mark Finnane

Griffith University
Customary Law as a Problem of Government
In the case of The King v Jack Congo Murrell (1836) the NSW Supreme Court determined that the ‘aboriginal natives of this colony are amenable to the laws of the Colony for offences committed within it against the persons of each other’. While this settled the question of jurisdiction the amenability of Indigenous people in the Australian colonies to criminal law remained a problem of policing choices, as well as prosecutorial and judicial discretion. 150 years after Murrell law reformers in a succeeding state, the Australian Commonwealth, revitalised debate over the recognition of a body of ‘customary law’. In subsequent decades the scope and claims of ‘customary law’ have remained contentious, for some holding out the promise of a role in reconstitution of Indigenous communities, for others being only a reminder of the need for a completion of a transition to a state of civilisation. This paper will examine the construction of customary law as a body of knowledge (or more properly a set of presumptions) that constitutes changing policy in the government of Aboriginal lives, in legal, policing and bureaucratic domains. Drawing on historical evidence from the adjacent jurisdictions of Queensland and the Northern Territory it considers the extent to which policing and legal processes continued to distinguish Aboriginal subjects as less than amenable to criminal law. It thus examines the implications for the lives of Indigenous people of the continuing ambiguities of their status at law in spite of their standing as British and later Australian subjects.

Andrew Fitzmaurice

University of Sydney
Sir Travers Twiss’ justification of the colonisation of the Congo.
This paper will examine the writings of Sir Travers Twiss in the context of the colonisation of the Congo. Twiss was one of the most influential international lawyers in Victorian Britain. He became an active member of the Institut de droit international, founded in 1873. Many members of the Institut were strongly opposed to the colonisation of Africa and particularly to the dispossession of African peoples. These lawyers used the Roman law of occupation to argue that the property of African nations was not res nullius and that they could not be dispossessed.
             Twiss opposed this largely neo-scholastic understanding of property rights with a modern natural law argument that all rights derive from sovereignty. He maintained that the peoples of the Congo were not sovereign nations and so possessed only very limited rights. He helped coin the term ‘territorium nullius’ in order to describe this absence of sovereignty. He then assisted the British delegation at the Conference in Berlin in 1884/5 in deciding the fate of African colonisation. Here Twiss’s concern with sovereignty came to the fore again. Many representatives at the Berlin conference wanted to see the Congo declared an international and neutral zone open to free trade. Twiss argued that neutrality was anarchy and that free trade could only flourish under sovereign protection. His argument prevailed and he was accordingly instrumental in justifying Leopold II’s International Association of the Congo which would subsequently become the Congo Free State and lead to slavery and death of millions. Twiss was awarded the ‘Order of Leopold’ for his efforts. The debate in the Institut de droit international over the resolutions of the Berlin Conference was largely divided between Twiss’s emphasis upon sovereignty as the foundation of rights and those who argued that rights precede civil society.

Lisa Ford

University of New South Wales
Transposing the King’s Peace: Indigenous People, Spatial Order and Sovereignty in early New South Wales
In this paper, I will discuss the transposition and redefinition of the King’s Peace and the Public Peace in early New South Wales. Comparing eighteenth- and nineteenth-century definitions of ‘the Peace’ in British and colonial legal discourses, I will argue that, in early New South Wales, the King’s Peace was a peculiarly limited concept that came under considerable stress in the second quarter of the nineteenth century. In the early 1800s, it was defined less by territory than by legal personality. Indigenous people lay at the root of this divergence. As the century progressed and settlement expanded, Indigenous theft and violence posed particular and growing challenges to colonial administrators because, as a matter of law and practice, Indigenous people defined the spatial and personal boundaries of the King’s Peace in early New South Wales. Using Lachlan Macquarie’s Proclamation of 1816, the Murrell decision of 1836, and the Black’s Act of 1840, I will show how colonial governors and lawyers struggled in the first half of the nineteenth-century to reinterpret the idea of the King’s Peace to balance practices of legal pluralism and the limited geographical reach of colonial government with increasingly inflexible understandings of British sovereignty and jurisdiction over the Australian continent.

Mark Hickford

Crown Law, Wellington
Māori Property Rights and Constitutionalism: Brokering the Politics of Trans-Oceanic Empire – The Case of New Zealand, 1840s and 1850s
I propose to explore the relations between a developing (thickening) British conception of Māori property rights and imperial constitutionalism as applied to and within colonial New Zealand from the beginning of George Grey’s tenure as lieutenant-governor in 1845 until the heated controversies concerning the so-called ‘Waitara purchase’ in 1859. My focus will not only be upon how these two strands of approach towards ordering the settlement of space over the seas and the setting out of an introduced albeit changing political form of constitution were enmeshed at points. The essay will also consider how these approaches constituted and re-constituted, as well as mediated or brokered parts of what might be called the politics of trans-oceanic empire. They enabled the conduct of Westminster-based politics by other means. I have already noted that Māori property rights were used to facilitate disciplining the extent, distribution and pace of developing bridgehead settlements together with the settlers themselves. Their recognition as part of this approach also facilitated the building and resourcing of a nascent colonial state (in theory at least). I will endeavour to relate that particular thematic arc under girding imperial policy-formulation on the ‘territorial rights of the natives’ with debates concerning how to situate such rights, if at all, relative to the constitutional frameworks of 1846 and 1852 (the New Zealand Constitution Act 1852 (Imp)). One important relationship was that of the connection between Māori property rights and the political incorporation of Māori under the introduced constitutional arrangements (including through the franchise), as well as the juridical status of such property rights; that is, how such property rights were conceived of in law and whether they were considered to be independently justiciable. Those interpretative communities influencing or seeking to influence imperial policy in the politics of trans-oceanic empire engaged in discussing the rationale for, and the content of, Māori property rights. These debates were themselves suffused with the contested vocabularies of property rights, constitutional adjustment and improvement. Certain interests within New Zealand and their political affiliates in, say, London, tended to prefer locally sourced information in New Zealand (including that from Māori sources) about the nature and content of Māori tenure and how the diversity of such rights might be accommodated (or not) within the introduced political order. Others preferred consistency and uniformity where it could be had. Questions of difference and sameness in respect of native tenure and constitutionalism – whether observed in practice or theorised from afar – were contested across the spaces of empire and were part of the politics of empire. As I have discussed elsewhere, an ‘empire of variations’ was in evidence. 
Full Paper in PDF 

Ian Hunter

University of Queensland
Spatialisations of Justice in the Law of Nature and Nations
Early modern writers in the intellectual genre of the law of nature and nations (de jure naturae et gentium) are often singled out for blame or praise in relation to European colonialism and imperialism: blame for skewing justice towards a Eurocentric form and political interests, or praise for overcoming this bias through the retrieval of a properly universal conception of right. Sometimes both. This paper measures its distance from both approaches by arguing that each assumes the possibility of a truly universal conception of right — or global spatialisation of justice — when in fact this might not be available. It argues that the law of nature and nations was not unified through its role in European imperialism and colonialism. Rather it was a highly dispersed intellectual genre whose most important early modern versions were tied to the specifically European problems of territorial state formation and the regulation of war and peace within the so-called ‘European society of nations’. The fact that they were based on particular rival European political anthropologies and cosmographies meant that even (indeed especially) the most ‘universal’ versions never escaped the regional (and often conflicting) European intellectual cultures in which they were thought and the European political interests that they served. Through a discussion of the doctrines of Pufendorf, Vattel and Kant, the paper questions the standard understandings of the Eurocentric character of the law of nature and nations. It argues that in this area European political and legal culture lacked a core in relation to which it could be ‘centric’, and that its intellectual cultures were so ‘regional’ — both to Europe and within Europe — that they were incapable of achieving a globalisation of justice in relation to which they might be attacked for failing actualise, or defended for their cosmopolitanism.
Full Paper in PDF

Duncan Ivison

University of Sydney
Justice and Imperialism
The history of the emergence of our concepts of distributive and social justice is still, really, to be written. As a chapter in that history, in this paper I want to explore the historical and conceptual relationships between the concept of justice and imperialism. In particular, I am interested in the way Immanuel Kant and Adam Smith provide two ways of conceiving of the nature of justice in the 18th century, and the way their analyses are inflected by their engagements with and analyses of imperialism. Modern discussions of justice have been deeply influenced by Kant, less so by Smith. They have, until very recently, also tended to be focused on the internal arrangements of states, as opposed to the international order as a whole. But now, as they are increasingly oriented outwards, the challenge (and legacy) of imperialism remains. How does reflecting on the relation between imperialism and justice in the 18th century shed light on the way we think about the nature of global distributive justice today?
Full Paper in PDF 

John McLaren

Emeritus Professor of Law
University of Victoria, British Columbia
The Rule of Law in British Colonial Societies in the 19th Century: Gaseous Rhetoric or Guiding Principle?
The late British historian, Roy Porter, noted the ubiquitous nature of the claims in England society in the late 18th century to being governed by the rule of law as opposed to the rule of men, and about “the blessings of being a free-born Englishman under the Anglo-Saxon derived common law.” He also noted the wide-ranging social and economic backgrounds of those individuals “piping” this “background music”, although for very different reasons. The historiography of the rule of law and its invocation by diverse interests in Britain itself, in the thirteen American Colonies, and in Ireland is well developed. Less extensive and detailed is its historiography in the colonies of the second Empire, whether earlier-established or new possessions. This paper constitutes a modest attempt to open up a broader set of insights into the use of rule of law language and rhetoric in British colonial societies during the 19th century. By whom was it used and in what institutional and social forums? For what purposes was it invoked? What differences in meaning and purpose are discernible in the deployment of this concept? What was its impact, if any, on the course of political and social, as well as legal developments, in the colonies? Using this mode of interrogation of the historical materials available, an attempt is made to provide at least a tentative answer to the question posed in the title. The study draws upon both earlier speculation by the writer on the comparative dimensions of the matter in the context of Australian and Canadian legal history, but more especially on his more recent work on the role of the colonial judiciary, considered through the histories of those jurists who took upon themselves to challenge abuses of the rule of law, as they saw it, by colonial executives and colonial elites. The paper also contains reflections on the extent to which critical writing on imperialism and colonialism assists in assessing the importance, or otherwise, of rule of law thinking and its application in the British colonial world.
Full Paper in PDF

P. G. McHugh

University of Cambridge
The rise of analytical jurisprudence and the ‘End of History’ in the 19th century Anglo world
The ascendance of analytical jurisprudence in the Anglo world of the late-nineteenth century enabled rich and variegated patterns of inter-jurisdictional common-law talk to flourish.   This pattern of active conversation, with its implicit triumphalism and self-laudatory tone, lasted through to the First World War when this keen fraternalization imploded under the trauma of War.   That legal evangelism collapsed into more jurisdictionally specific discourses of state formation and juridical self-containment. Analytical jurisprudence was above all an emanation from common law thought as it professionalized and professorialized to supply a central motoring ideology for the imperialistic Anglo world of the belle epoch. That world contained many internal tensions, of course, spanning as it did Victorian Britain, the post-Reconstruction American republic, the white settler Dominions, and Ireland, but those were obviated by a language of shared legalism the self-glorifying tendencies of which were seen as blessed with global potential.   An essentially imperialist as well as redemptivist analytical jurisprudence papered over tensions that the Great War could not contain. By removing historicism from common-law talk, analytical jurisprudence focused on shared and transcendent elements of legal method and reasoning that neutralised geographical and historical specificities.   My essay will look at how Bentham’s anti-historicist seed – his excoriation of “Mother Goose and Mother Blackstone” – was taken up by Austin, JS Mill, Dicey and in the case method of legal education pioneered by Christopher Columbus Langdell. I propose too a provisional look at that feature in the work of antipodean jurists. Salmond and Jethro Brown are obvious candidates. However there are also the more obscure and (by our lights) wackier like George Read Murphy (1856-1925) who wrote a Utopian novel called Beyond the Ice (1894), transposing evangelical legal instrumentalism into a tale of Australia (Zara), America (Ura), England (Gurla) and the civilized dependencies (Roda), which he envisaged federating into a state of universal happiness under a single Christian law.
Full Paper in PDF

Henry Reynolds

University of Tasmania
History and Jurisprudence in the Wik and Mabo Judgments
Unlike the Mabo judgment, which was based on established jurisprudential principles, the Wik judgment required the High Court to undertake substantive historical assessments with little guidance from legal precedent or the extensive case law dealing with traditional leases. This was because the Wik case came to turn on the intentions of Colonial Office officials in 1848. In this paper I compare the two judgments with regard to the respective roles played by jurisprudence and historiography in reaching legal determination.

Andrew Sharp

University of Auckland
Centre for New Zealand Studies, Birkbeck College
'Law', 'Civilization' and the Prince of Darkness in Australasia: the Legal Thinking of Samuel Marsden (1794-1838).
This paper explores the relationship between law and religion in the life of Rev. Samuel Marsden. In New South Wales he administered God's law as an evangelical Christian and Anglican parson, while at the same time he administered the secular law as a magistrate. At this juncture he was dealing not only with sin, but also with crimes, torts, together with the more extreme rebellious rejection of both religious and secular law. In New Zealand though, he was not as entangled in the detail of applying law in either mode. The point of his enterprise was more general. As leader of a Mission he preached that law, religion, civilization and commerce should be adopted by the natives. In explaining his understandings and applications of the two kinds of law, the paper suggests they were informed by a conservative-Christian and rural ideal of earthly contentment on the one hand, and by extreme anxiety in the face of the sin and lawlessness – in his moments of greatest distress he saw no less than the work of Prince of Darkness among the unregenerate many of New South Wales and the heathens of New Zealand. The tension between his ideal and its enemy, it is argued, explains much about his life and works, his reception in his two countries of adoption, and the difference between law and religion as modes of legitimation and regulation in his thinking. 

Christopher Tomlins

American Bar Association
The Legalities of English Colonizing: Discourses of Intrusion on the North American Mainland, 1450-1640
Early-modern European narratives of colonizing held the conquest and subjugation of barbarian indigenous peoples justified by their breach of duties owed strangers under ius gentium (the law of nations). Considered idiomatically, these narratives dominated sixteenth century colonizing discourse; they were pan-European in expression; and they developed hand-in-hand with an ideology of Christian proselytizing. This essay will explore the narratives of the sixteenth century, critical reactions to them, and the emergence (partly in response) of a distinct narrative trajectory that came to predominate in the seventeenth century and that, rather than pan-European in expression, was in important respects a peculiarity of the English. This narrative elevated land over people as the primary object of the colonizer’s attention, and as time went on rearranged both the legalities and the institutional mechanisms of colonizing accordingly.
The second narrative idiom, though distinct, overlapped with the first. Its gestation can be traced to early sixteenth century humanism; its roots lay in the same soil of the law of nature and nations, to which it annexed vernacular English inflections. Yet for all those remainders, English colonizing’s impact on the North American mainland is clearly distinguished by the thoroughness of its reinvention (legal, political, material) of the terrain upon which projectors seated their colonies: its fierce concentration upon the appropriation of territory, its mental and physical conversion of that territory through establishment of going agricultural concerns, and — underlying all — the substantial and protracted task of replacing an existing intractable population in which it had little interest with introduced and more tractable populations to build plantations and farms, work their fields, and generally undertake the immense labor of constructing English inhabitation.
Full Paper in PDF

Mark D. Walters

Queen’s University
‘Your Sovereign and our Father’: The Imperial Crown and the Idea of Legal-Ethnohistory
The 1819 description of the imperial Crown by a member of the Cree nation—“your Sovereign and our Father”—captures the ambiguous legal character that the Crown had in British North America. Indian Department officials knowledgeable about aboriginal customary laws accepted that “father” in this context did not mean sovereign, and through inter-cultural treaty dialogue they and their aboriginal counterparts effectively redefined “Crown” to reflect elements of different legal traditions. Or at least we may say this happened if we integrate ethnohistorical methods into the study of legal history. Indeed adopting this ethnohistorical lens might also affect our understanding of the subsequent “historiography” of the Crown-as-Father metaphor, in particular how by the 1830s it came to be reworked—or recaptured—by colonial officials who saw it as an expression of royal prerogative power, the basis of the imperial Crown’s discretionary authority to protect native “wards” (or “children”) from settler abuses throughout the empire, and, still later, how it was reworked to yield a legally enforceable “fiduciary duty” on the Crown in favour of aboriginal peoples. The potential for upsetting received notions seems considerable. But is the initial premise of this analysis—that the legal character of the Crown was once the product of legal métissage, the integration of legal perspectives, that can now only be understood through ethnohistorical method—sound? The larger theoretical ambition of this paper, then, is to use the historiography of the Crown-as-Father metaphor as a vehicle for exploring the general idea of legal-ethnohistory. The example forces us to confront the way in which colonial legal history is “done”. What is the legal history of indigenous-colonial relations a history of? Can legal historians learn anything from ethnohistorians? Should we recognize a subdiscipline of colonial legal history known as legal-ethnohistory that takes seriously the possibility that indigenous traditions shaped “law” in certain colonial settings? Or, is this just revisionist history warped by the forces of modern indigenous rights advocacy? These are the larger theoretical problems that I will address in my paper.
 Full Paper in PDF

Damen Ward

Crown Law, Wellington
Reassessing colonial law and politics in New Zealand, c. 1840-1860
A number of recent works have considered the role of law and legal rights in colonial society and government. These works use a range of different approaches and methods. However, they often share an underlying concern with the sense of political and cultural identity expressed by colonial actors, and the ways in which such identities might be manifested in attitudes towards legal or institutional structures. Unsurprisingly, such historical inquiries reflect contemporary concerns, and contrasting notions of, or preoccupations with, contemporary national identity and nation-state politics. In considering how legal historians might engage with the historiographical debates around these themes, including recent “British world” historiography, I suggest that an appreciation of imperial contexts may in fact suggest a need for a range of localised studies, particularly in relation to the structure and practice of local constitutional or governmental institutions. This historiographical context suggests that changes in the constitutional structures of Australasian colonies in the late 1840s and 1850s, a central part of an older, somewhat discredited, historiography, may be usefully re-examined. The essay considers settler debate about "British" institutions and law in light of the shifting relationship between courts and governments across this period, particularly in relation to the role of legislatures in the new constitutional contexts. I explore the way competing claims about the new constitutions might be pursued across multiple colonial and imperial forums. My focus is on New Zealand (especially in the 1850s), with examples from South Australia and New South Wales. I draw on arguments about the use of juries, and the assessment of electoral franchise qualifications (including in relation to Maori). Settler political debate about the adaptation of the “birthright” of “British law” and institutions to the perceived local circumstances of colonies emerges as more multi-faceted than some historians have previously allowed, though some qualifications about the operation of “transoceanic” networks may be highlighted.
  Full Paper in PDF


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