Ottley, Zorn & Weisbrot's "Making Law in Papua New Guinea"

Making Law in Papua New Guinea: The Colonial Origins of a Postcolonial Legal System, by Bruce L. Ottley, DePaul University College of Law,  Jean Zorn, CUNY School of Law, and David Weisbrot, University of Sydney, has been published by the Carolina Academic Press:

In the waning days of colonialism in Papua New Guinea, much of the rhetoric from local leaders pushing for self-determination focused on replacing the imposed colonial legal system with one that reflected local customs, understandings, relationships, and dispute settlement techniques—in other words, a "uniquely Melanesian jurisprudence." After independence in 1975, however, that aim faded or began to be seen as an impossible objective, and PNG is left with a largely Western legal system.

In this book, the authors—who were all directly involved in law teaching, law reform, and judging during that period—explore the potent and enduring grip of colonialism on law and politics long after the colonial regime has been formally disbanded. Combining original historical and legal research, engagement with the scholarly literature of dependency theory and postcolonial studies, and personal observation, interviews, and experience, Making Law in Papua New Guinea offers compelling insights into the many reasons why postcolonial nations remain imprisoned in colonial laws, institutions, and attitudes.

–Dan Ernst

Woods on Estee's Reports in Hawai'i, 1903-17

Roberta F. Woods, Reference & Instructional Services Librarian at the University of Hawaii School of Law, has posted on SSRN a short piece about an early case reporter in the Hawaiian territory. Here is the abstract for "History of the Four Volumes of Decisions of the United States District Court for the Territory of Hawaii 1903-1917" (2016):

The so-called "Estee's Reports," named for Judge Morris March Estee was an early case reporter in the Hawaiian Territory. Only four volumes of decisions of the United States District Court (USDC) for the Territory of Hawaiʻi were ever printed. They span the years 1903-1917. The decisions in these volumes do not appear in the Federal Reporter covering the same time frame. The Federal Supplement, a West Publishing created reporter of decisions of the federal district courts began in 1933. Prior to 1933, federal district court decisions appeared in the Federal Reporter.

Further information is available here.

--Mitra Sharafi

Subjectivity, Intent and Impact: The Gordian Knot of Empathy and Interpretation

One ideal of early anthropology was that long-term ethnographic research could fully map the social structure and meanings of a specific cultural space. The ethnographer could then give total context for any individual action or social practice, and thus interpret such with a capacity beyond either naïve outsider or self-interested insider. While the realism of this ideal would be progressively deconstructed over time, it spawned a durable holism that recognized the deep interconnection of all material and symbolic contexts.

This holistic aspiration has been recurrently challenged as anthropologists came to recognize the often global interconnections and engagements which permeated the presumed isolation of even “remote” cultural spaces. Anthropology turned to increasingly complex social theories to try and reconcile the way in which its empirical subject became unmoored from static spaces and times, and eventually encompassed the most intensely internationalized settings. As a result great concern emerged for the practice of interpretation far removed from the methodological confidence of anthropology’s pioneering works. And the treacherous pitfalls of writing across stark asymmetries in power, often about people unable to equally represent themselves, even inspired claims that modern anthropology had paralyzed itself through a fetishization of the personal act of writing itself.

It is much more difficult to delineate the general trend of history as discipline, even at this high level of generality. Certainly, interpretation is at the core of archival research, and debates over sources and their meanings have roiled history as an academic practice. No self-critical historian treats their textual sources as a direct portal into the soul of their subject, and the focus of much graduate historical training is the general education required to provide context for documentary interpretation.

But I would advance that the anthropological engagement with history reflects a much greater uncertainty about interpretation, as well as a general theoretical concern with how time itself is structured as a social practice. In my own turn from ethnography to history, I felt this disciplinary anxiety acutely as I tried to reconstruct the creation of a cultural ideology, what I call American legal internationalism, that was formed in spaces both fully transnational and only lightly touched by global forces. Moreover, this ideology was premised on cross-cultural interpretations of the character of foreign peoples and their legal institutions. A further complication was that the driving force of this ideology was literal lawyer-missionaries who carried with them a presumption that their own good intentions would positively impact another society.

One highly influential book in my process of wrestling with these issues was Fredrik Barth’s Ethnic Groups and Boundaries, which theorized about how social identities were formed and reformed through increasingly intense interactions with social “outsiders.” Moreover, in the context of law such cross-cultural judgments had been central to patterns of degradation and subjection in pre-modern empires and modern imperialism alike. This trepidation led me to the writings of the recently passed Tzvetan Todorov, who in his The Morals of History grappled with the ethics of practicing history, especially when intimately tied to cross-cultural engagements.

No episode in the development of historical anthropology outlines these tensions better than the controversy over the arrival and death of James Cook in Hawai’i. In barest form, Cook arrived in Hawai’i for the third time in 1779 during the indigenous Hawaiians celebration of the god Lono. A month later, Cook was killed while attempting to take the local king ransom, and then ritually preserved. The details in-between and their meaning became the grist for one of the public controversies in modern anthropology between Marshall Sahlins and Gananath Obeyesekere.

Johnson on Indigeneity and Settler States

Miranda Johnson, University of Sydney has published The Land Is Our History: Indigeneity, Law, and the Settler State with Oxford University Press. From the publisher:

The Land Is Our History tells the story of indigenous legal activism at a critical political and cultural juncture in Australia, Canada, and New Zealand. In the late 1960s, indigenous activists protested assimilation policies and the usurpation of their lands as a new mining boom took off, radically threatening their collective identities. Often excluded from legal recourse in the past, indigenous leaders took their claims to court with remarkable results. For the first time, their distinctive histories were admitted as evidence of their rights. 

Miranda Johnson examines how indigenous peoples advocated for themselves in courts and commissions of inquiry between the early 1970s to the mid-1990s, chronicling an extraordinary and overlooked history in which virtually disenfranchised peoples forced powerful settler democracies to reckon with their demands. Based on extensive archival research and interviews with leading participants, The Land Is Our History brings to the fore complex and rich discussions among activists, lawyers, anthropologists, judges, and others in the context of legal cases in far-flung communities dealing with rights, history, and identity. The effects of these debates were unexpectedly wide-ranging. By asserting that they were the first peoples of the land, indigenous leaders compelled the powerful settler states that surrounded them to negotiate their rights and status. Fracturing national myths and making new stories of origin necessary, indigenous peoples' claims challenged settler societies to rethink their sense of belonging.

Praise for the book:

"Miranda Johnson's wonderful, engaging, and nuanced new work, The Land Is Our History, crosses disciplinary, theoretical, geographic, and national boundaries. It not only compares the emergence of distinct indigenous rights movements across three Commonwealth settler states but also examines how such movements have transformed the meanings of national history within them. Impressively conceptualized and deeply comparative, this work is an important addition to the growing field of global indigenous history." -Ned Blackhawk 

"An important book, The Land is Our History offers critical insights into the tensions between white settler colonialism and indigenous peoples in the struggle over land. Over the last thirty years, Australia, New Zealand, and Canada shifted from policies of assimilation to recognition of indigenous claims to land. This book traces the structures of power which dispossessed indigenous peoples from their lands at the same time as it recognizes the capacity of indigenous leaders and particular judges and lawyers to change this trajectory. It brilliantly shows the capacity of law to offer, from time to time, power to the powerless, to those who have moral claims but lack economic and political power."-Sally Engle Merry 

"The Land Is Our History is an exemplary illustration of the complex and intertwined histories of indigenous politics and indigeneity in settler colonial societies. Moving beyond a conventional nation-state paradigm, it engages with the re-imagining of nationalist identities since the 1960s within a global context. Underscored is the forging of new legal spaces and opportunities to reframe nationalist myths, while also acknowledging the pitfalls and compromises involved in pursuing indigenous justice within formal western law. This sophistical historical account deserves attention from everyone interested in indigenous peoples' engagement with state law and the ways such engagement informs contemporary politics and cultural relations." -Eve Darian-Smith

More information is available here.