Friday, April 29, 2011

Duncanson on The Sovereign, the Law and the Two British Empires

The Sovereign, the Law and the Two British Empires has just been posted by Ian Duncanson, La Trobe University School of Law.  It appeared in the Windsor Yearbook of Access to Justice, Vol. 25, No. 2, p. 313, 2007.  Here's the abstract:
All political societies have peculiarities, and nothing special is to be concluded from the Anglophone focus of the present article. The theme here is that there was a schism between the first and second British empires, not in itself an original thought, as the paper makes clear. The first empire, as conceived by many historians, was an Atlantic empire governed by the British monarch and the Westminster legislature in the United Kingdom, and by the British monarch through his local representative, the colonial governor and the colonial assemblies. It appeared as a kind of confederation to many contemporaries, including Franklin and Washington, until as late as the mid-1770s. In each of the communities, the common law governed according to the customs of the people, subject to amendment by the appropriate legislature. The latter might be at London, Massachusetts or Philadelphia. For reasons outlined in the article, this system broke down when Westminster asserted ultimate sovereignty and the validity to override colonial assemblies and tax the colonies without their consent. The colonies objected and broke with Britain. In Britain itself and in the remaining colonies, Westminster’s assertion represented a new, stronger view of sovereignty, one in which law no longer even notionally refl ected the slowly changing customs, habits and expectations of the governed. Instead, sovereignty represented the will of the sovereign. The legitimacy or validity of laws no longer referred to their content, or their conformity with a 'balanced' constitution. Instead, the legitimacy rested in the pedigree of a law. To its practical question, ‘is this a valid law?’ the British imperial world was ready for the Benthamite answer. The latter was to remain culturally dominant for many decades, and still dominates the dry fields of legal positivism and conservative social science. Bentham asked ‘is a law the sign of the volition of the sovereign?’ Elsewhere, Bentham asserted that the content of the law bore no relation to its validity. This article examines this change from the earlier Whig thought which informed the American Revolution and what became of it.