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FORUM: COMMENT
Australian Legal Histories in Context
Rosemary Hunter
| Australian legal history has only emerged as a field of scholarship in its own right in the last twenty years. Prior to that, Australian legal history tended to be written1 and taught as a footnote to the great sweep of English legal history—the history of the king's courts, the common law and equity, and major nineteenth-century statutory reforms, with a chapter at the end about the classification of the Australian colonies as "settled" colonies, and the consequent reception of English law. This year (2002) sees the twentieth anniversary of Alex Castles's groundbreaking work An Australian Legal History,2 the first book to take Australian laws and legal institutions as its entire subject matter. It is also the twentieth anniversary of the first Australian Law and History Conference.3 The years since 1982 have seen the advent of the Australian and New Zealand Law and History Society, increasing attendances at its annual conferences, the establishment of the Australian Journal of Legal History, the completion of a number of Ph.D.theses in the field, and the publication of further influential texts and edited collections by (among others) the authors of the two articles featured in this forum.4 Two of the most productive strands in this developing literature have concerned the history of colonization and the dispossession of indigenous peoples5 and histories of women and gender relations in law,6 although these are by no means that only areas that have been explored. Running through much of this literature, too, are themes of imperial-colonial relations, and relations between law and colonial economies and societies, particularly prior to federation in 1901. |
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Imperial-Colonial Legal Relations | |
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It would not be an overstatement to say that Australian legal history has been obsessed with the issue of imperial-colonial legal relations from its foundation. These relations encompass the reception of English common and statute law into the Australian colonies, the extent to which imperial models dictated local legislation once competent local legislatures were established, and how many colonial innovations and aspirations to differ from imperial models were able to be realized. This is legal history in its narrowest sense, that is, the history (sources) of particular legal rules and common law doctrines. It is also, to my mind, legal history at its least interesting. |
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The dominant narrative of imperial-colonial legal relations that has emerged, relying very largely on Bruce Kercher's work, is that although the Australian colonies were bound to follow British law, and at times had it forcibly imposed upon them, they in fact engaged in a wide range of legal innovations appropriate to local circumstances. In this way the colonies could be said to have achieved de facto legal independence from Britain long before de jure recognition of that fact. Thus, for example, in Kercher's article, he refers to governors of New South Wales and New South Wales courts making new laws concerning convict management and attaint, the invention and maintenance of tickets of leave, the local elaboration of legal rules concerning the property rights of the free wives of convict husbands, and a locally established regime concerning property in convicts' services. He states that "These were the rules of a penal colony, rules that were created to match its circumstances,"7 and maintains that "Despite a stricter imperial scheme, some law was still made in the colonies, even when it favored convict liberty."8 He concludes that "British governors and judges engaged in the making of new blended laws, sometimes resisting clearly expressed imperial law and policy,"9 and also notes at various points that "the colony's customary practice eventually received parliamentary approval."10 |
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Indeed, Kercher makes quite evident his impatience with judges who failed to act independently and slavishly followed British precedent, such as when, in Bullock v. Dodds and subsequently, the Supreme Court judges of New South Wales "lost the opportunity to make a careful assessment of the common law's rule on the reception of English law and to decide whether felony attaint was applicable in the circumstances of the colony,"11 and when, in R. v. Farrell, Chief Justice Forbes "refused" to adapt the law to local circumstances and "concluded his judgment in the case by arguing, as more conservative judges so often did, that his role was to apply the law, not to change it."12 The heroes of Kercher's narrative are those judges, governors, and subsequently legislators, who made Australian law for Australian conditions. |
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This argument for colonial legal innovation combines elements of nationalist pride and adolescent rebellion. Golder and Kirkby, on the other hand, refer to imperial-colonial relations in a less anxious way, simply noting "the imperial context in which the legal reform of married women's property occurred,"13 and explaining the English source of the timid and flawed New South Wales Married Women's Property Act of 1879. At a more sophisticated level, they also observe the rhetorical usefulness for politicians of conformity with English legal developments, as a way of avoiding direct confrontation with the unnerving implications of married women's economic independence: "Perhaps it seemed safer to appeal to the colony's retarded legislative relationship with the Mother Country rather than to the merits of Mrs. Mayne."14 Curiously, however, Golder and Kirkby also slip into the familiar refrain of reproach for legislative failures of imagination, arguing that "As in Canada, 'a distinctly colonial mentality [had taken] root, and subservience to English precedent' took priority over colonial innovation. Subsequently legislation 'seems to have been enacted largely as a form of self-imposed genuflexion on the part of an imitative subservient colony to an imperial power.'"15 |
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This Oedipal desire of the colonial to slay the (law of the) imperial father is, of course, an impossible dream. Within the imperial-colonial binary, attempts at colonial independence are doomed to failure. The imperial is what makes the colonial colonial, and assertions of colonial particularity inevitably contain within them the trace of the imperial other. A more fruitful approach to this problematic, perhaps a more effective form of resistance to imperialism, would be to deconstruct the imperial project, to show that the colonial is what makes the imperial imperial, and consequently that imperial law is as dependent upon the colonial as the reverse. While such an argument has been made at a general level,16 there has as yet been little detailed work by Australian legal historians taking this approach. |
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One development that has occurred more recently in Australian legal history has been an increased interest in intercolonial legal influences and borrowings. In other words, there has been a recognition that relations exist not simply between imperial and colonial, but also between colonial and colonial, and that countries on the peripheries of empire might have some shared legal experiences.17 This is where Kercher's article makes a real contribution. It traces in detail the continuities and discontinuities between convict law and the practice of convict management in the American colonies of Virginia and Maryland and the Australian colonies of New South Wales and Van Diemen's Land. In addition, it identifies in this process the intriguing role of Chief Justice Forbes, who had come to New South Wales from another colony, rather than from the center of empire. Golder and Kirkby also observe that married women's property legislation was an "international reform movement,"18 moving from North America to Britain to Australasia, although they do not explore this point in any great detail, their primary interest being the Australian experience of the reforms. |
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Relations between Law, Economy, and Society | |
| Australian historical writing on the legal framework for colonial economic activity has tended to focus on land law (land as the economic base of settlement) and labor law (the Australian colonies being blessed with a rich history of experiments and innovations in labor regulation). The two articles here take different angles on the issue of law and economy. Bruce Kercher is one of the few Australian legal historians interested in general commercial activity,19 hence his concern in this article with the issue of the ownership of convict labor, and the effect of the doctrine of attaint on the economic life of the colony. Kercher's position resembles that of the "Wisconsin School" of legal history pioneered by J. Willard Hurst in the 1950s. Hurst insisted on viewing law in its social and economic context rather than as an autonomous entity. This meant a shift in focus from legal doctrine per se to the way in which law was used and experienced. It also involved a functionalist view of law, in which law performed the instrumental role of providing the optimal regulatory structure within which (capitalist) economic activity could take place and responded to shifts in economic conditions as necessary.20 In other words, economic activity (actual or desirable) was pre-given, and law ideally followed. The success or otherwise of law could thus be judged by the extent to which it matched up with the current economic situation. |
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This position helps to explain Kercher's displeasure when the New South Wales Supreme Court judges got it "wrong," adopting legal rules that hindered rather than facilitated the development of commercial life in the penal colony. If convicts were taken out of the commercial equation by the doctrine of attaint, then the local economy could not thrive. Kercher's desire for colonial legal innovation, then, may turn out to be grounded in his notion of the needs of the colonial economy. Although this is not the same as wanting difference for its own sake, the argument remains implicit and undefended rather than being clearly articulated and argued out. As a consequence, it is open to critique from a range of other (Marxist and critical) positions. |
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Golder and Kirkby, on the other hand, do clearly locate their argument within broader feminist debates about women's economic in/dependence. Women's capacity to earn their own living is theorized as a necessary condition of freedom from patriarchal control and is also understood to be an essential hallmark of full citizenship in liberal societies. Inside this theoretical framework, Golder and Kirkby present law as part of the landscape within which married women have attempted to negotiate economic autonomy. They do not conceive of law in purely functionalist terms, although there are suggestions of this at times, such as when they argue that courts in the early days of colonial settlement turned a blind eye to married women's civil disabilities in order to ensure that those small communities could "obtain an adequate supply of the services that, in a sex-segregated economy, only women could provide."21 In Golder and Kirkby's account, however, law also seems to perform a symbolic and ideological role, expressing and projecting normative views about the economic activities appropriate for married women and the appropriate gender division of labor within marriage. Again, though, the conception of law underpinning the article remains implicit rather than being explicitly articulated. |
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One point on which the authors of the two articles are agreed, however, is that there is a crucial difference between formal law and actual practice and that the gap between the two is mediated by customs, social norms, and popular views. Much of Kercher's article is devoted to identifying the different customs and practices that developed from the same statutory framework for transportation in the American and Australian colonies and to showing how the common law of felony attaint was ignored or circumvented over a long period of time, until "custom eventually received imperial endorsement"22 in the form of new legislation. Similarly, Golder and Kirkby note both the ways in which married women's legal disabilities were subordinated to local practices and popular conceptions of their economic rights, and the fact that formal changes to the law regarding married women's property did not in themselves guarantee women economic or social equality. |
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Yet after many years of law and society research demonstrating the difference between the law in the books and the law in action, it should hardly be surprising to find that this phenomenon is a recurring historical experience. Indeed, it would probably be more surprising to find that law and practice actually coincided at any historical point. In this context, it would be refreshing to see legal historians going beyond rediscovery of the "gap" as if it were a fresh insight to engage in some careful theorizing. We know that the gap exists, but why and how remain little explored. Does actual practice differ from formal law in order to conform to economic imperatives or to dominant social discourses? And do legal authorities actively avoid formal legal outcomes or exploit their discretions in order to achieve the desired results, or is law fundamentally indeterminate, such that what the law "is"is open to wide-ranging interpretation? |
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The Relationship between Law and History | |
| Finally, Kercher and Golder and Kirkby take quite difference approaches to the construction of legal history. Kercher's article could be described as legal history and Golder and Kirkby's as legal history. Legal history, despite its implicit economic contextualization, focuses primarily on statutes, cases, and judges (and legal practices), while legal history explores the legal dimensions of historical problems. Thus, for example, Kercher employs the common law method of deriving rules (and legal practices) from a large number of cases, while Golder and Kirkby employ the historical method of deriving insights into a larger issue from a single case study. Kercher reads legal texts as statements of law, while Golder and Kirkby read them as historical documents to be mined for what they say about contemporary society and for evidence of how characters performed on the legal stage.23 For Kercher, particular legal outcomes may be understood by reference to the biographies, personalities, and predilections of individual judges and governors, whereas for Golder and Kirkby, outcomes are shaped by a variety of contemporary influences, ranging from the depression of the 1890s to the staging of Ibsen's Doll's House. Kercher wants to see more research on legal rules and practices (American colonial law relating to convicts), while Golder and Kirkby want to see more research on the social impact of law (the Australian experience of married women's property legislation). One can imagine the different treatment Golder and Kirkby would have given to Kercher's free wives of convicts and the greater attention Kercher would have given to Justice Windeyer than to Mrs. Mayne. |
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A diversity of approaches to legal history can be fruitful and illuminating, particularly when placed alongside each other, and the approaches taken here by no means exhaust the range of possibilities. As suggested earlier, it would be interesting to see the techniques of deconstruction brought to bear on imperial-colonial legal relations or to see understandings gained from law and society scholarship applied to historical instances of divergence between law and practice. A small number of legal historians have begun to produce Foucauldian accounts of legal techniques of domination24 and genealogies of legal and social discourses.25 Within this frame, for example, the focus of Kercher's article might shift to the legal production of the convict body. More broadly, Peter Hoffer has argued for "post-modernist legal history," a history that attends to many voices—of people bringing claims to court or of the various authors of legal texts—rather than "one voice of authority" asserting a singular legal truth.26 And Ian Duncanson (among others) finds it useful to bring into legal history ways of theorizing class, gender, race, culture, geography, and power, and resistances to these dominant discourses, derived from cultural and post-colonial studies.27 This, then, is my call for further research. I would like to see these kinds of critical approaches deployed more widely to both previously traversed and new areas of inquiry. I look forward to the next twenty years of imaginative and insightful Australian legal histories. |
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Rosemary Hunter is dean of the faculty of law at Griffith University, Queensland, Australia <Rosemary.Hunter@griffith.edu.au>.
Notes
1. E.g., W. J. V. Windeyer, Lectures on Legal History, 2d ed. (Sydney: Law Book Co., 1957).
2. Alex C. Castles, An Australian Legal History (Sydney: Law Book Co., 1982).
3. Diane Kirkby and Catharine Coleborne, "Introduction," in Law, History, Colonialism: The Reach of Empire, ed. Diane Kirkby and Catherine Coleborne (Manchester: Manchester University Press, 2001), 1–5, at 1.
4. Bruce Kercher, An Unruly Child (Sydney: Allen and Unwin, 1995); Bruce Kercher, Debt, Seduction and Other Disasters (Sydney: Federation Press, 1996); Hilary Golder, Divorce in Nineteenth-Century New South Wales (Sydney: New South Wales University Press, 1985); Diane Kirkby, ed., Sex, Power and Justice: Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995); Kirkby and Coleborne, eds., Law, History, Colonialism.
5. See in particular Henry Reynolds, The Law of the Land (Melbourne: Penguin, 1987), and also Penelope Mathew, Rosemary Hunter and Hilary Charlesworth, "Law and History in Black and White," in Thinking about Law: Perspectives on the History, Philosophy and Sociology of Law, ed. Rosemary Hunter, Richard Ingleby, and Richard Johnstone (Sydney: Allen and Unwin, 1995), 3–37.
6. See in particular Kirkby, ed., Sex, Power and Justice; Judith Allen, Sex and Secrets (Melbourne: Oxford University Press, 1990).
7. Bruce Kercher, "Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850," Law and History Review 21 (2003): 548.
8. Ibid., 564.
9. Ibid., 584.
10. Ibid., 559.
11. Ibid., 550.
12. Ibid., 557.
13. Hilary Golder and Diane Kirkby, "Mrs. Mayne and Her Boxing Kangaroo: A Married Woman Tests Her Property Rights in Colonial New South Wales," Law and History Review 21 (2003): 587.
14. Ibid., 601.
15. Ibid., 601.
16. E.g., Peter Fitzpatrick, "Terminal Legality: Imperialism and the (De)composition of Law," in Law, History, Colonialism, ed., Kirkby and Coleborne, 9–25, and more generally Peter Fitzpatrick, The Mythology of Modern Law (London: Routledge, 1992) and Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001).
17. See, e.g., the various essays in Law, History, Colonialism, ed. Kirkby and Coleborne, which cover experiences in Australia, New Zealand, Canada, the U.S., South Africa, and the Pacific.
18. Golder and Kirkby, "Mrs. Mayne and Her Boxing Kangeroo," 585.
19. Others are Rob McQueen and Suzanne Corcoran.
20. Lawrence M. Friedman, "Opening the Time Capsule: A Progress Report on Studies of Courts over Time," in Law in History: Histories of Law and Society, ed. David Sugarman ( New York: New York University Press, 1996), 1:493–504b, at 494; Christopher Tomlins, "How Who Rides Whom: Recent 'New' Histories of American Labor Law and What They May Signify," in ibid., 585–605, at 589–90.
21. Golder and Kirkby, "Mrs. Mayne and Her Boxing Kangeroo," 595.
22. Kercher, "Perish or Prosper," 564.
23. Golder and Kirkby, "Mrs. Mayne and Her Boxing Kangeroo," 587.
24. E.g., Christopher Tomlins, "Law's Empire: Chartering English Colonies on the American Mainland in the Seventeenth Century," in Law, History, Colonialism, ed. Kirkby and Coleborne, 26–45.
25. Ann Genovese, "The Battered Body," Australian Feminist Studies 25 (April 1997): 91; Ann Genovese, "The Politics of Naming: '70s Feminisms, Genealogy and 'Domestic Violence,'" in Anatomies of Violence: An Interdisciplinary Investigation, ed. Ruth Walker, Kylie Brass, and John Byron (Sydney: Research Institute of Humanities and Social Sciences, University of Sydney, 2000), 115.
26. Peter Charles Hoffer, "Text, Translation, Context, Conversation: Preliminary Notes for Decoding the Deliberations of the Advisory Committee That Wrote the Federal Rules of Civil Procedure," in Law in History, ed. Sugarman, 505–35.
27. Constance Backhouse, Ann Curthoys, Ian Duncanson, and Ann Parsonson, "'Race,' Gender and Nation in History and Law" in Law, History, Colonialism, ed. Kirkby and Coleborne, 277–300, at 296.
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