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FORUM: RESPONSE
Many Laws, Many Legalities
Bruce Kercher
| Peter Karsten asks why there might be a greater comparative propensity among CANZ historians than among those of the United States.1 Part of the reason may lie in the legal education many of us in Australia received, and in the formal legal status of many commonwealth countries until recently. As recently as the early 1970s, Australian law students were taught that English law was as significant as that made in the Australian courts. Appeals from the Australian Supreme Courts to the Privy Council were finally abolished only in 1986. From that time onward, there was a drive within the law schools to find differences from England, to look toward comparisons with other places than England. |
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According to Rosemary Hunter, this impulse was both nationalist and adolescent.2 But the legal history that she complains of, and finds so uninteresting, is not as narrow as she asserts. Just who argues that there is "one voice of authority" asserting a singular legal truth? Not I, and not any legal historians that I know who are currently at work in Australian universities. Perhaps my argument needs clearer statement. When a question of reception of English law arose in one of the colonies, analysis of it is not just a choice between cringing deference versus adolescent rebellion, as Hunter would have us believe. On issues such as the recognition of Aboriginal law and felony attaint, there were many participants in the debate. At a formal level, the complex and inconsistent English statute and case law was received or not by colonial judges. Those judges debated the content and meaning of law with one another, with the governor, and with the British government. But they were also forced to deal with assertions of popular views of law and right, some locally made and some inherited from England or Ireland. Out of this mix came a different set of laws from those of England, some of it inherited, some not. And the heroes were not always the people. In the Myall Creek trials, the popular view as asserted by the killers, the Sydney Herald, and the first jury, was that Aboriginal lives were not worth protecting in the same way as those of the British. In the second trial, the judge tried to protect Aboriginal lives, not the squatters or convicts who had asserted their view of legality in such bloody fashion. In other cases, some but not all of the judges recognized Aboriginal legal autonomy. On most other issues, however, the judiciary protected British property above all else. New South Wales and Tasmania were two places where the bloody code was truly bloody. |
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There are no preconceived outcomes in legal history of this kind, no automatic heroes and villains. This kind of legal history is sensitive to multiple arguments about law. But is not this a history that attends to many voices, one that looks to contested ideas about law, just as Peter Hoffer and Rosemary Hunter seek? If so, where is the narrowness, particularly if the analysis is increasingly open to a comparative approach such as that taken most ambitiously by Peter Karsten in his Between Law and Custom? |
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In Australia, Canada, and New Zealand, legal historians are questioning the inheritance from England. They are finding that there were many laws, many legalities, in those places. Often, legal ideas were borrowed from other colonies rather than from Mother England. Together, these historians are not writing a series of nationalist histories, but a collective history of law in the British Empire. Even James Stephen Jr. allowed extensive liberty for legal difference in the colonies. Some of us find this interesting. |
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This pluralist approach to legal history is much more than gap analysis, in which the gaps are merely filled by customary practices. The customary practices were assertions of legal right, assertions of law as important and sometimes as influential as those uttered by the judiciary (just as Hartog and Thompson led us to expect). On one important point Hunter is right: a new imperial legal history is clearly needed, one that looks for the influence of the colonial on the metropolitan. But just how should we go about that? It is time for legal historians in England to join the search for an understanding of imperial law. |
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Those who engage in this pluralist, comparative kind of legal history begin work in the archives, and that may be what Hunter complains about most. For the past twenty years, legal history scholarship in Australia has seen an uneasy truce between two kinds of people. The first begin their work in the archives, buried deep in the law reports or letter books. Their critics complain of their theoretical naivete. The second begin with theory and approach the archives only when they find a theoretical question worth answering. In turn, their opponents complain that this is back to front, a search for evidence to support preconceived analysis. This is the gap that deserves attention. |
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(The other Forum authors, Hilary Golder and Diane Kirkby, have not offered a response, feeling that none is required in their case.—Ed.)
Notes
1. See Peter Karsten, "The CANZ Approach to Legal History," Law and History Review 21 (Fall 2003): 615–20.
2. See Rosemary Hunter, "Australian Legal Histories in Context," ibid., 607–14.
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