Past Law, Present Histories

Past Law, Present Histories

edited by DIANE KIRKBY
Copyright Date: 2012
Published by: ANU Press
https://www.jstor.org/stable/j.ctt24h3t8
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  • Book Info
    Past Law, Present Histories
    Book Description:

    This collection brings methods and questions from humanities, law and social sciences disciplines to examine different instances of lawmaking. Contributors explore the problematic of past law in present historical analysis across indigenous Australia and New Zealand, from post-Franco Spain to current international law and maritime regulation, from settler colonial humanitarian debates to efforts to end cruelty to children and animals. They highlight problems both national and international in their implication. From different disciplines and theoretical positions, they illustrate the diverse and complex study of law's history.

    eISBN: 978-1-922144-03-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Introduction: Interdisciplinarity in the Study of Law’s History
    (pp. 1-4)
    Diane Kirkby

    Understanding law, its development, implementation and subsequent trajectory, requires empirical research that is both interdisciplinary and critical. The complex interplay between the timing, socio-political context and purpose of lawmaking in any specific instance calls for historical analysis through which we can engage with both narrow and broader definitions of law. Through historical analysis we can account for the often unpredictable direction of specific laws, and explain particularities as these change over time with each set of new circumstances. Informed by a critical theoretical and interdisciplinary approach, we can more deeply investigate the conceptual underpinning of law’s meaning.

    This collection is...

  4. I. Law and Colonialism
    • Redemption, Colonialism and International Criminal Law: The Nineteenth Century Slave-Trading Trials of Samo and Peters
      (pp. 7-22)
      Emily Haslam

      In April 1812 in the Vice Admiralty Court of Sierra Leone, Chief Justice Robert Thorpe dramatically convicted and then pardoned Samuel Samo for slavetrading. The courtroom was crowded and the atmosphere was highly charged. The attorney-general, James Biggs, opened the prosecution with the expansive claim that the case ‘embraces the essential concerns of one quarter of the globe we inhabit, and involves the security and morals, the happiness and liberty, of millions yet to live’.³ In announcing Samo’s pardon, Thorpe proclaimed, ‘You have received the mercy of the royal pardon — May your future conduct deserve that of our Father who...

    • Linguistics, Religion and Law in Colonial New South Wales: Lancelot Threlkeld and Settler-Colonial Humanitarian Debates
      (pp. 23-38)
      Anna Johnston

      Reverend Lancelot Threlkeld was a familiar face in the Sydney law courts during the late 1820s and 1830s. The missionary — the sole London Missionary Society (LMS) representative in the Australian colonies during this period — was regularly accompanied by an Aboriginal man, Biraban, who served as dual translator and advisor to Threlkeld. The presence of the two men dramatised questions about Aboriginal legal status and humanitarian interests in the colonial legal system, connecting local affairs with broader imperial concerns. Attending many of the key cases during the 1830s, Threlkeld was instrumental in raising uncomfortable questions about how legal processes dealt with...

    • ‘Destitute of the knowledge of God’: Māori Testimony Before the New Zealand Courts in the Early Crown Colony Period
      (pp. 39-58)
      Shaunnagh Dorsett

      In 1843 the imperial parliament passed the Colonial Evidence Act.¹ Its purpose was to allow colonial legislatures to pass acts or ordinances to allow their indigenous inhabitants to give unsworn testimony before the courts. Unsworn testimony was testimony given by those who were not able to take the oath. At common law the rule was that evidence could only be given on oath, rendering those devoid of religious belief incompetent to testify. In British colonies, therefore, this rule resulted in most of the indigenous inhabitants being unable to give evidence before English courts. This was particularly problematic in the Australian...

  5. II. Law in Community
    • Public Opinion, Private Remonstrance, and the Law: Protecting Animals in Australia, 1803–1914
      (pp. 61-84)
      Stefan Petrow

      Recent exposures of high rates of death aboard live animal export ships, and the ‘abuse and torture’ of animals in some Indonesian slaughterhouses have brought cruelty to animals to public prominence in modern Australia.¹ This mistreatment offends Australians’ sense of what it means to be civilised, which is reflected in the fact that every Australian state and territory has passed complex and detailed laws declaring that the ill-treatment of animals is illegal.² These statutes affirm that ‘humans have evolved to the point that they no longer regard animals as pure objects or things, able to be treated in any way...

    • Using the Law: Working-Class Communities and Carnal Knowledge Cases in Victoria, 1900–06
      (pp. 85-106)
      Jennifer Anderson

      The case, R v Gravino, which came before the Supreme Court of Victoria in 1905, illustrates well the complex debates which often preceded state involvement in sexual assault cases and are revealing about community decisions to engage with the legal system. On 7 March 1905, 14-year-old Elsie Griffiths disclosed to her mother that their neighbour, 17-year-old Charlie Gravino, had sexually assaulted her or, in her words, ‘had me down at his place doing rude things’. Elsie’s father was dead, and her mother, Catherine Griffiths, kept a laundry in the Melbourne suburb of Brunswick, behind which Elsie lived with her mother,...

    • Reading Past Cases of Child Cruelty in the Present: The Use of the Parental Right to Discipline in New Zealand Court Trials, 1890–1902
      (pp. 107-124)
      Debra Powell

      In 2003 the United Nations Children’s Fund (UNICEF) annual report on child welfare focused its concerns on the physical maltreatment of children, and published a league table of fatal child abuse statistics that placed New Zealand among the worst performing Organisation for Economic Cooperation and Development (OECD) nations.¹ Among its recommendations was the ending of legal sanctions (as enshrined in section 59 of the New Zealand Crimes Act 1961) that allowed for the hitting of children in the name of discipline.² Since that time, the topic of child punishment has generated significant anxiety and debate amongst child welfare advocates, doctors,...

    • Women, Children and Violence in Aboriginal Law: Some Perspectives From the Southeast Queensland Frontier
      (pp. 125-136)
      Libby Connors

      Unlike the other social sciences, and despite Henry Reynolds’s call for historians to write the story of the ‘other side of the frontier’ more than 30 years ago, Australian colonial historians have been slow to take up the challenge of Aboriginal-centred history. Bound by the limitations of overwhelmingly white and unsympathetic source materials, attempting to interpret Aboriginal frontier actors is fraught with methodological difficulty for the historian. Scholarship on missions and reserves from later periods which have been able to draw on Aboriginal writing and oral history have been tackled with greater confidence and are now being supplemented by evocative...

  6. III. Law as Theory and Practice
    • How to Write Feminist Legal History: Some Notes on Genealogical Method, Family Law, and the Politics of the Present
      (pp. 139-152)
      Ann Genovese

      What is the purpose of feminist legal histories, and how can we write them, especially in Australia in our own times? In this essay I explore, in the spirit of dialogue, how we might confront the tension between legal history’s intellectual traditions, and the political effects of law’s legacies in the present. This question of method is an important inference in this collection’s conversation about ‘who owns the legal past’. My premise is that for many legal history projects, especially in a settler-colonial state like Australia, writing about law historically requires a conscientious identification of law’s present paradoxes, discontinuities, and...

    • Spain’s ‘pact of silence’ and the Removal of Franco’s Statues
      (pp. 153-176)
      Aleksandra Hadzelek

      The Spanish Law of Historical Memory, passed in 2007, is an important milestone in addressing several issues that have remained unresolved since the death of Franco, 32 years earlier. The law calls for, among other important provisions,¹ the removal of all Francoist symbols from public buildings and spaces. Franco was highly visible in the public sphere, using his own images to legitimise his rule, not unlike other dictators, contemporaneous or historical. But, what makes Franco’s case so interesting, is that he remained present in the public sphere for decades after his death, due to a ‘pact of silence’ that Spanish...

    • ‘The sailor is a human being’: Labour Market Regulation and the Australian Navigation Act 1912
      (pp. 177-192)
      Diane Kirkby

      Labour lawyers wanting to broaden their field beyond the traditional narrowness of the employment relationship do so by employing a concept of regulation that has both economic and social objectives. They have called for law to be seen ‘in the wider framework of social relations’ with ‘a longer time frame for analysis’, and for an approach to the field which has an ‘eye to both the future and the past’.¹ Their emphasis on the contextual factors impinging on and shaping labour law, its purpose and implementation, provides a compelling argument for historical research. As Michael Quinlan has pointed out, there...

    • Parental ‘Consent’ to Child Removal in Stolen Generations Cases
      (pp. 193-208)
      Thalia Anthony and Honni van Rijswijk

      Consent, will and agency have problematic uses in the law.¹ Subjected groups are implicitly inferiorised through these concepts, such that their complicity to acts of the subjector is taken for granted. This complicity, Sadiya Hartman asserts, shrouds the ‘condition of violent domination’ that actually operates between subjector and subjected.² Writing about the legal context of racial subjugation during slavery and its aftermath in the United States of America, Hartman argues that consent became ‘intelligible only as submission’.³ In the Australian context, according to Ghassan Hage, non-‘whiteness’ has historically been a point of reference for structural inferiority.⁴ Yet, the law nonetheless...

  7. Contributors
    (pp. 209-212)
  8. Bibliography
    (pp. 213-230)