Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination
P.G. McHugh
Abstract
This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples. That history runs from the plantation of Ireland and settlement of the New World to the end of the 20th century. The book begins by looking at the nature of British imperialism and the position of non-Christian peoples at large in the 17th and 18th centuries. It then focuses on North America and Australasia from their early national periods in the 19 ... More
This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples. That history runs from the plantation of Ireland and settlement of the New World to the end of the 20th century. The book begins by looking at the nature of British imperialism and the position of non-Christian peoples at large in the 17th and 18th centuries. It then focuses on North America and Australasia from their early national periods in the 19th century to the modern era. The historical basis of relations is described through the key, enduring, but constantly shifting questions of sovereignty, status and, more latterly, self-determination. Throughout the history of engagement with common law legalism, questions surrounding the settler-state's recognition — or otherwise — of the integrity of the tribe have recurred. These issues were addressed in many and varied imperial and colonial contexts, but all jurisdictions have shared remarkable historical parallels which have been accentuated by their common legal heritage. The same questioning continues today in the renewed and controversial claims of the tribal societies to a distinct constitutional position and associated rights of self-determination. The author examines the political resurgence of aboriginal peoples in the last quarter of the 20th century. A period of ‘rights-recognition’ was transformed into a second-generation jurisprudence of rights-management and rights-integration. From the 1990s onwards, aboriginal affairs have been driven by an increasingly rampant legalism.
Keywords:
common law legal system,
North America,
Australasia,
anglophone law,
British settlers,
indigenous peoples,
British imperialism,
rights-recognition,
rights-management,
rights-integration
Bibliographic Information
| Print publication date: 2004 |
Print ISBN-13: 9780198252481 |
| Published to Oxford Scholarship Online: January 2010 |
DOI:10.1093/acprof:oso/9780198252481.001.0001 |
Authors
Affiliations are at time of print publication.
P.G. McHugh, author
Senior Lecturer in Law at the University of Cambridge, Tutor of Sidney Sussex College, and Ashley McHugh Ngai Tahu Visiting Professor at Victoria University of Wellington
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