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This chapter explores a concept that has been of some importance in international law, and recurs throughout this book, namely that of sovereignty. Is international law, as the Victorian positivists believed, something merely persuasive, law only by analogy, by virtue of its having behind it no sovereign in a state, the sign of whose volition its proper credentials require it to be? Historically, the concept of sovereignty has been closely associated not only with the state, but with the practice of imperial expansion. Indigenous people encountered by marauding Europeans often ordered themselves without the elaborate institutions of sovereign government. As a consequence they entered their conquerors' consciousnesses almost as hostile elements of the landscape, noxious pests to be exterminated. Their visibility to Europeans as a form of authentic humanity depended on assimilation to the habits of their betters.
The failure of British sensitivity to the possibility of social orders based on convention and manners, mutually understood rituals, even taught ways of addressing others so as to avoid giving offence and endangering the peace of the community, seems especially odd. Their own experience of civil disorder in the seventeenth century, a series of clashes of rival certainties concerning religion and political organization, led writers from Locke and Shaftesbury in England, to the Scottish Enlightenment literati, men like Hume and Adam Smith, to search for cultural solutions to the problems of peace and stability.
Given the large body of expert writing about Hurst's scholarship in the United States, including the contributions to the present symposium, the most useful course for an outsider seems to me to be to ask a type of Foucauldian question: what is it about the fact of Hurst's writing what he did, at the time he did, that is strange to one foreign to the tradition to which Hurst and his commentators and critics belong? Why was a lawyer in the U.S., so long before legal scholars elsewhere in the Anglophone world, able to see the necessity of conceiving law in context, perhaps moving, as Novak suggests “from constitutional history toward historical sociology”? We can not proceed too abruptly to a conclusion, as if there were a single answer to the question. After all, lawyers such as Hurst, the Legal Realists, and the Supreme Court were involved in the New Deal. By contrast, while the professional social reformer and the professional lawyer might, just, have coexisted in the same British person at this time, the two commitments would have been cordoned off from each other.
Cultural studies provides an interesting conceptual perspective on legal pluralism for a number of reasons. Rather than asking ontological questions about parallel legal systems, cultural studies frameworks encourage questions about the meanings which might be generated for “law” at the plural sites of intersection of regulatory phenomena: legal meanings must defer to questions about how a subject is positioned, subjected. Narratives of culture, broadly conceived, also allow us to notice the diverse, fluid and often contradictory patterns of regulation and discipline created when there are politically powerful beliefs in the singularity of order and certainty. The efforts in Anglophone cultures to create an “English” heritage safe from various threatening others is echoed in jurisprudential specifications of the criteria of legality.
A social activity is characterized and understood, this paper argues, only after one has found a place to put it among one's more general understandings and a frame to put around it to render it discrete and prevent its escape into chaos. Framing and reframing are the concomitants of social struggles for and against closure and exclusion. The paper sees critique as a form of practical and scholarly struggle against disciplinary closure, doubting question posed to disciplines. Law school education in Australia, because it offers guaranteed universal knowledge about its object, law, is unsympathetic to critique.
This article examines a number of propositions about law and government with which lawyers and legal theorists are familiar. It argues that what are often said to be the ends of constitutional government are vague, and that what are said to be the best means of achieving them are underspecified or impossible. When civil liberty is allowed to rest in this state it is unsafe. To the extent that civil liberty is theorised it certainly casts a shadow upon the practical world of politics, and generates expectations. Often, however, when we suppose something like it to have been realised, a closer investigation reveals something quite different, namely benign government.
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