Law and Politics in British Colonial Thought, 2010
... a Reader in Law at Victoria University of Wellington, New Zealand. IAN HUNTER is an Australia... more ... a Reader in Law at Victoria University of Wellington, New Zealand. IAN HUNTER is an Australian Professorial Fellow at the University of Queensland, and Deputy Director of the Centre for the History of European Discourses. WOMEN IN BRITISH POLITICS, C. 1689-1979 Krista ...
In 1856 New Zealand enacted a new regime for civil procedure. In so doing, it became the first co... more In 1856 New Zealand enacted a new regime for civil procedure. In so doing, it became the first colony in the Empire to create a comprehensive code of civil procedure. Innovative and wide-ranging, its authors drew on multiple sites from around the Empire (and beyond), instituting reforms not yet possible in England, and establishing the foundations for New Zealand’s modern system of civil procedure. This article traces the origins of, and inspirations for, the 1856 Code. It focuses on two key aspects of reform: pleading and “fusion”. The article seeks to draw attention to the neglected history of procedure in general and to the place of New Zealand in the story of 19th century procedural reform in England and its Empire in particular
Victoria University of Wellington Law Review, 2010
This note considers the 1845 decision of the Supreme Court of New Zealand in E Hipu. E Hipu was t... more This note considers the 1845 decision of the Supreme Court of New Zealand in E Hipu. E Hipu was the first decision of the Supreme Court to apply those provisions of the Native Exemption Ordinance which allowed a fine to be substituted for imprisonment in cases of theft. The Native Exemption Ordinance was a significant mechanism in the early colony by which criminal law was modified in its application to Maori, and was crucial to the framing of Crown-Maori relations.
Notes on Contributors Chapter One Laws, Engagements, and Legacies: the Legal Histories of the Bri... more Notes on Contributors Chapter One Laws, Engagements, and Legacies: the Legal Histories of the British Empire An Introduction, Shaunnagh Dorsett and John McLaren, Part I - Framing Empire: People and Institutions, Chapter Two Navigating the Scylla of Imperial Politico-Legal Aspirations and Charybdis of Colonial Micro-Politics in the British Empire: The Case of the Judges, John McLaren, Chapter Three Asserting Judicial Sovereignty: The Debate over the Abolition of Privy Council Jurisdiction in British Africa, Bonny Ibhawoh, Chapter Four Law, Culture and History: Amir Ali's Interpretation of Islamic Tradition, Nandini Chatterjee, Chapter Five A Judicial Maverick: John Gorrie at Large in the Victorian Empire, Bridget Brereton, Part II - Laws Chapter Six Benjamin Knowles v. Rex: Judging Murder, Race and Respectability from Colonial Ghana to the Judicial Committee of the Privy Council, 1928-30, Stacey Hynd, Chapter Seven Inventing Extraordinary Criminality: A Study of Criminalization b...
Victoria University of Wellington Law Review, 2005
The Foreshore and Seabed Act 2004 inaugurated a new jurisdiction for the Māori Land Court with r... more The Foreshore and Seabed Act 2004 inaugurated a new jurisdiction for the Māori Land Court with respect to customary rights orders over areas of the foreshore and seabed. This article focuses on the customary rights orders provisions of the Act. While this new jurisdiction is entirely statutory, the language of the provisions reflects the common law “tests” for aboriginal rights and native title. This article looks, therefore, to the common law as a possible guide for interpretation of the CRO provisions. It concludes, however, that the statutory language of the Act provides an opportunity for New Zealand courts, and the Māori Land Court in particular, to forge a new body of jurisprudence, one which hopefully will avoid the strictures and inequalities of its common law equivalent.
Juridical Encounters: Māori and the Colonial Courts, 1840-1852 by Shaunnagh Dorsett is an engagin... more Juridical Encounters: Māori and the Colonial Courts, 1840-1852 by Shaunnagh Dorsett is an engaging and nuanced study of the development of colonial laws and institutions in Aotearoa New Zealand and the expansion of the jurisdiction of state law that begins in this period. The issues explored in the book – relating to the relationship between the law of the settler state and Indigenous law; the recognition of Māori law by the state legal system; and the authority with which Māori and state law speak – remain live issues today. Studying how those issues were addressed during the Crown colony period helps us to understand the current relationship between Māori law and state law, how we arrived at this point, and, crucially, it helps us to think about how to approach that relationship with legal techniques appropriate to the social and political context and objectives of the 21st century.
New Zealand's Fourth Labour Government (1984-90) implemented a remarkably rapid process of ec... more New Zealand's Fourth Labour Government (1984-90) implemented a remarkably rapid process of economic privatisation, decentralisation and deregulation. However, it was only under the National Party Government (1990-99) that this process was extended comprehensively to employment relations, with its Employment Contracts Act 1991 (ECA). The ECA had devastating impacts on union membership, collective bargaining and employment conditions. The election of a Labour-led government in 1999, followed by its Employment Relations Act 2000 (ERA), promised a less hostile climate for workers and unions. This paper examines employment relations in New Zealand under these two legislative regimes, from 1991 to 2008. First, it evaluates how the ECA's largely decentralised, deregulated environment transformed employment relations and how workers, unions and employers responded to it. Second, it assesses how the ERA contributed to a cultural change that encouraged workers, unions and employers to develop more strategic approaches to employment relations. It illustrates how this change, coupled with the introduction of important statutory entitlements for all workers, helped to prevent any resurgence of the right-wing politics that fuelled the ECA.
This book takes its cue from the observation that jurisdiction - as the speech of law - articulat... more This book takes its cue from the observation that jurisdiction - as the speech of law - articulates or proclaims law. Without jurisdiction the law would be speechless, without authority and authorisation. So too would be critics who approach the law or want to live lawfully. As a field of legal knowledge and legal practice, jurisdiction is concerned with the modes of authority and the manner of the authorisation of law. It encompasses the broadest questions of the authority and the founding of legal order as well as the minutest detail of the ordering of the business of the administration and adjudication of justice. It gives us both the point of articulation of law and the technological means of the expression of law. It gives us too, the understanding of the limits of the authority of law, as well as the resources for engaging with the plurality of laws, and the means of engaging in lawful behaviour. A critical approach to law through the forms of authority and action in law provides a means of engaging with the quality of relations created and maintained through law and a means of taking responsibility for the practices of jurisdiction (and what is done in the name of the law)
This article addresses the potential of the Fair Work Act's good faith bargaining provision t... more This article addresses the potential of the Fair Work Act's good faith bargaining provision to enhance good faith bargaining and employment relationships, using New Zealand's good faith provisions under the Employment Relations Act 2000 as a comparative frame of reference. It explores the limitations of the Fair Work Act's compliance-based approach to good faith, which consists mainly of the parties presenting a legally defensible appearance of not acting in bad faith. In contrast, the New Zealand legislation aims to suffuse good faith with considerable content and definition, enabling parties to the employment relationship to extend good faith well beyond bargaining. In contrast to the Employment Relations Act, the formalistic, procedural approach promoted by the Fair Work Act is unlikely to encourage a significant cultural change towards meaningful good faith principles and practices.
This chapter discusses the movement of laws and the transmission of ideas across Empire. i In par... more This chapter discusses the movement of laws and the transmission of ideas across Empire. i In particular, it traces several ways in which sovereignty was understood in certain British intellectual contexts during the key period of the first half of the nineteenth century, and the various constructs of sovereignty which were employed in response to specific circumstances of colonial governance. The topic around which this consideration of sovereignty is organized is that of the problem of the ordering of Empire and of the management of colonial relations, both between metropole and colony, and with respect to the internal legal order of one colony, New
Law and Politics in British Colonial Thought, 2010
... a Reader in Law at Victoria University of Wellington, New Zealand. IAN HUNTER is an Australia... more ... a Reader in Law at Victoria University of Wellington, New Zealand. IAN HUNTER is an Australian Professorial Fellow at the University of Queensland, and Deputy Director of the Centre for the History of European Discourses. WOMEN IN BRITISH POLITICS, C. 1689-1979 Krista ...
In 1856 New Zealand enacted a new regime for civil procedure. In so doing, it became the first co... more In 1856 New Zealand enacted a new regime for civil procedure. In so doing, it became the first colony in the Empire to create a comprehensive code of civil procedure. Innovative and wide-ranging, its authors drew on multiple sites from around the Empire (and beyond), instituting reforms not yet possible in England, and establishing the foundations for New Zealand’s modern system of civil procedure. This article traces the origins of, and inspirations for, the 1856 Code. It focuses on two key aspects of reform: pleading and “fusion”. The article seeks to draw attention to the neglected history of procedure in general and to the place of New Zealand in the story of 19th century procedural reform in England and its Empire in particular
Victoria University of Wellington Law Review, 2010
This note considers the 1845 decision of the Supreme Court of New Zealand in E Hipu. E Hipu was t... more This note considers the 1845 decision of the Supreme Court of New Zealand in E Hipu. E Hipu was the first decision of the Supreme Court to apply those provisions of the Native Exemption Ordinance which allowed a fine to be substituted for imprisonment in cases of theft. The Native Exemption Ordinance was a significant mechanism in the early colony by which criminal law was modified in its application to Maori, and was crucial to the framing of Crown-Maori relations.
Notes on Contributors Chapter One Laws, Engagements, and Legacies: the Legal Histories of the Bri... more Notes on Contributors Chapter One Laws, Engagements, and Legacies: the Legal Histories of the British Empire An Introduction, Shaunnagh Dorsett and John McLaren, Part I - Framing Empire: People and Institutions, Chapter Two Navigating the Scylla of Imperial Politico-Legal Aspirations and Charybdis of Colonial Micro-Politics in the British Empire: The Case of the Judges, John McLaren, Chapter Three Asserting Judicial Sovereignty: The Debate over the Abolition of Privy Council Jurisdiction in British Africa, Bonny Ibhawoh, Chapter Four Law, Culture and History: Amir Ali's Interpretation of Islamic Tradition, Nandini Chatterjee, Chapter Five A Judicial Maverick: John Gorrie at Large in the Victorian Empire, Bridget Brereton, Part II - Laws Chapter Six Benjamin Knowles v. Rex: Judging Murder, Race and Respectability from Colonial Ghana to the Judicial Committee of the Privy Council, 1928-30, Stacey Hynd, Chapter Seven Inventing Extraordinary Criminality: A Study of Criminalization b...
Victoria University of Wellington Law Review, 2005
The Foreshore and Seabed Act 2004 inaugurated a new jurisdiction for the Māori Land Court with r... more The Foreshore and Seabed Act 2004 inaugurated a new jurisdiction for the Māori Land Court with respect to customary rights orders over areas of the foreshore and seabed. This article focuses on the customary rights orders provisions of the Act. While this new jurisdiction is entirely statutory, the language of the provisions reflects the common law “tests” for aboriginal rights and native title. This article looks, therefore, to the common law as a possible guide for interpretation of the CRO provisions. It concludes, however, that the statutory language of the Act provides an opportunity for New Zealand courts, and the Māori Land Court in particular, to forge a new body of jurisprudence, one which hopefully will avoid the strictures and inequalities of its common law equivalent.
Juridical Encounters: Māori and the Colonial Courts, 1840-1852 by Shaunnagh Dorsett is an engagin... more Juridical Encounters: Māori and the Colonial Courts, 1840-1852 by Shaunnagh Dorsett is an engaging and nuanced study of the development of colonial laws and institutions in Aotearoa New Zealand and the expansion of the jurisdiction of state law that begins in this period. The issues explored in the book – relating to the relationship between the law of the settler state and Indigenous law; the recognition of Māori law by the state legal system; and the authority with which Māori and state law speak – remain live issues today. Studying how those issues were addressed during the Crown colony period helps us to understand the current relationship between Māori law and state law, how we arrived at this point, and, crucially, it helps us to think about how to approach that relationship with legal techniques appropriate to the social and political context and objectives of the 21st century.
New Zealand's Fourth Labour Government (1984-90) implemented a remarkably rapid process of ec... more New Zealand's Fourth Labour Government (1984-90) implemented a remarkably rapid process of economic privatisation, decentralisation and deregulation. However, it was only under the National Party Government (1990-99) that this process was extended comprehensively to employment relations, with its Employment Contracts Act 1991 (ECA). The ECA had devastating impacts on union membership, collective bargaining and employment conditions. The election of a Labour-led government in 1999, followed by its Employment Relations Act 2000 (ERA), promised a less hostile climate for workers and unions. This paper examines employment relations in New Zealand under these two legislative regimes, from 1991 to 2008. First, it evaluates how the ECA's largely decentralised, deregulated environment transformed employment relations and how workers, unions and employers responded to it. Second, it assesses how the ERA contributed to a cultural change that encouraged workers, unions and employers to develop more strategic approaches to employment relations. It illustrates how this change, coupled with the introduction of important statutory entitlements for all workers, helped to prevent any resurgence of the right-wing politics that fuelled the ECA.
This book takes its cue from the observation that jurisdiction - as the speech of law - articulat... more This book takes its cue from the observation that jurisdiction - as the speech of law - articulates or proclaims law. Without jurisdiction the law would be speechless, without authority and authorisation. So too would be critics who approach the law or want to live lawfully. As a field of legal knowledge and legal practice, jurisdiction is concerned with the modes of authority and the manner of the authorisation of law. It encompasses the broadest questions of the authority and the founding of legal order as well as the minutest detail of the ordering of the business of the administration and adjudication of justice. It gives us both the point of articulation of law and the technological means of the expression of law. It gives us too, the understanding of the limits of the authority of law, as well as the resources for engaging with the plurality of laws, and the means of engaging in lawful behaviour. A critical approach to law through the forms of authority and action in law provides a means of engaging with the quality of relations created and maintained through law and a means of taking responsibility for the practices of jurisdiction (and what is done in the name of the law)
This article addresses the potential of the Fair Work Act's good faith bargaining provision t... more This article addresses the potential of the Fair Work Act's good faith bargaining provision to enhance good faith bargaining and employment relationships, using New Zealand's good faith provisions under the Employment Relations Act 2000 as a comparative frame of reference. It explores the limitations of the Fair Work Act's compliance-based approach to good faith, which consists mainly of the parties presenting a legally defensible appearance of not acting in bad faith. In contrast, the New Zealand legislation aims to suffuse good faith with considerable content and definition, enabling parties to the employment relationship to extend good faith well beyond bargaining. In contrast to the Employment Relations Act, the formalistic, procedural approach promoted by the Fair Work Act is unlikely to encourage a significant cultural change towards meaningful good faith principles and practices.
This chapter discusses the movement of laws and the transmission of ideas across Empire. i In par... more This chapter discusses the movement of laws and the transmission of ideas across Empire. i In particular, it traces several ways in which sovereignty was understood in certain British intellectual contexts during the key period of the first half of the nineteenth century, and the various constructs of sovereignty which were employed in response to specific circumstances of colonial governance. The topic around which this consideration of sovereignty is organized is that of the problem of the ordering of Empire and of the management of colonial relations, both between metropole and colony, and with respect to the internal legal order of one colony, New
From 1840 to 1852, during the Crown Colony period, the British attempted to impose their own law ... more From 1840 to 1852, during the Crown Colony period, the British attempted to impose their own law on New Zealand. In theory, Maori, as subjects of the Queen, were to be ruled by British law. But in fact, outside the small, isolated British settlements, most Maori and many settlers lived according to tikanga. How then were Maori to be brought to British law? Influenced by the idea of exceptional laws that was circulating in the Empire, the colonial authorities set out to craft new regimes and new courts through which Maori would be encouraged to forsake tikanga and take up the laws of the settlers. This book examine the shape that exceptional laws took in New Zealand, the ways they influenced institutional design and the engagement of Maori with these new institutions, particularly through the lowest courts in the land. It is in the everyday micro-encounters of Maori with the new British institutions that the beginnings of the displacement of tikanga and the imposition of British law can be seen.
This book is a major contribution to our understanding of the role played by law(s) in the Britis... more This book is a major contribution to our understanding of the role played by law(s) in the British Empire. Using a variety of interdisciplinary approaches, the authors provide in-depth analyses which shine new light on the role of law in creating the people and places of the British Empire. Ranging from the United States, through Calcutta, across Australasia to the Gold Coast, these essays seek to investigate law’s central place in the British Empire, and the role of its agents in embedding British rule and culture in colonial territories.
One of the first collections to provide a sustained engagement with the legal histories of the British Empire, in particular beyond the settler colonies, this work aims to encourage further scholarship and new approaches to the writing of the histories of that Empire. Legal Histories of the British Empire: Laws, Engagements and Legacies will be of value not only to legal scholars and graduate students, but of interest to all of those who want to know more about the laws in and of the British Empire.
This book takes its cue from the observation that jurisdiction - as the speech of law - articulat... more This book takes its cue from the observation that jurisdiction - as the speech of law - articulates or proclaims law. Without jurisdiction the law would be speechless, without authority and authorisation. So too would be critics who approach the law or want to live lawfully. As a field of legal knowledge and legal practice, jurisdiction is concerned with the modes of authority and the manner of the authorisation of law. It encompasses the broadest questions of the authority and the founding of legal order as well as the minutest detail of the ordering of the business of the administration and adjudication of justice. It gives us both the point of articulation of law and the technological means of the expression of law. It gives us too, the understanding of the limits of the authority of law, as well as the resources for engaging with the plurality of laws, and the means of engaging in lawful behaviour. A critical approach to law through the forms of authority and action in law provides a means of engaging with the quality of relations created and maintained through law and a means of taking responsibility for the practices of jurisdiction (and what is done in the name of the law).
This book provides a critical, and historically grounded, elaboration of the key themes of jurisdiction. It does so by offering students and scholars of law a form of critical engagement with the technologies, devices and forms of jurisdictional ordering. It shows how the common has authorised legal relations and bound persons, places, and events to the body of law. It offers a number of resources and engagements of jurisdiction on the basis that a jurisprudence of jurisdiction, if it is anything, engages forms of human relation.
With the exhaustion of postcolonial studies, and following the historical turn in studies of Euro... more With the exhaustion of postcolonial studies, and following the historical turn in studies of European imperialism, the time is ripe for a more sharply historical consideration of the role of European legal thought in processes of colonial governance. Rather than recycling general theories of the ideological role of law in European colonization, the contributions to this volume focus on the historical interaction between law and politics in British colonial contexts in order to clarify how European legal doctrines and institutions were actually transmitted, negotiated and modified in the concrete circumstances of frontier polities.
In 1831 Barron Field, first judge of the new Supreme Court of Gibraltar, drafted rules for his ne... more In 1831 Barron Field, first judge of the new Supreme Court of Gibraltar, drafted rules for his new court. Field was one of a cohort of colonial judges in this period who were encouraged by the Colonial Office to undertake significant reforms to civil procedure. In the main, this produced innovation, leading to reforms not yet possible in England. Field’s reforms were judged an exception. He was the only judge in this period whose reforms were not accepted by the Colonial Office. However, his failure gives insight into the kinds of improvements that the Colonial Office hoped to achieve, and hence into the project of nineteenth century procedural reform more broadly. Moreover, tracing the filiations of Field’s reforms potentially enables us follow the movement of procedural forms between colonies administering civil law and common law, providing a means though which to bring reforms in these systems into a single field.
THE PERSONA OF THE JURIST IN SALMOND'S JURISPRUDENCE: ON THE EXPOSITION OF 'WHAT LAW IS …' , 2007
If Sir John Salmond is taken as being an inaugural or founding father of not only a law school, b... more If Sir John Salmond is taken as being an inaugural or founding father of not only a law school, but also of a New Zealand jurisprudence, two questions arise: "What might have been inherited from Salmond's jurisprudence?" And, "How might that inheritance be received today?" This article offers a response to these questions by considering Salmond's jurisprudence in terms of a conduct of life organised around the office and persona of the jurist.
[It is now twenty years since the High Court of Australia designated 'native title' as the site o... more [It is now twenty years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the first question that is addressed in the meeting of laws in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and official forms of responsibility for lawful relations.] CONTENTS
This paper briefly examines four quotidian encounters between Maori and the new settler legal sys... more This paper briefly examines four quotidian encounters between Maori and the new settler legal system in the new settler courts. It argues that it is not through the lens of superior court (often criminal law) decisions that we should see the displacement of tikanga in favour of the common law, but in the everyday small forgotten encounters in civil courts - where Maori enforced debts; recovered ious and held settlers to account.
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Papers by Shaunnagh Dorsett
One of the first collections to provide a sustained engagement with the legal histories of the British Empire, in particular beyond the settler colonies, this work aims to encourage further scholarship and new approaches to the writing of the histories of that Empire. Legal Histories of the British Empire: Laws, Engagements and Legacies will be of value not only to legal scholars and graduate students, but of interest to all of those who want to know more about the laws in and of the British Empire.
This book provides a critical, and historically grounded, elaboration of the key themes of jurisdiction. It does so by offering students and scholars of law a form of critical engagement with the technologies, devices and forms of jurisdictional ordering. It shows how the common has authorised legal relations and bound persons, places, and events to the body of law. It offers a number of resources and engagements of jurisdiction on the basis that a jurisprudence of jurisdiction, if it is anything, engages forms of human relation.