Mark D. Walters

HISTORIES OF COLONIALISM, LEGALITY, AND ABORIGINALITY†

It is hard to write a history about something that is still happening – like a biography of a person still alive or a history of a people still existing. The problem is not that the historian cannot know those parts of the story that have yet to take place. Rather, the problem is that the historian’s interpretation of the story so far may be influenced – consciously or unconsciously – by a sense of how the story might (or should) turn out and by an appreciation that the way in which the story is presented can become part of the story, influencing the way it does turn out.1 Moral evaluations of past actions are particularly problematic in this respect.2 Condemning a people of the ancient past as wicked will have only indirect practical implications today, but to condemn the past acts of a living nation as wicked is to identify possibilities of redemption, reparation, and reconciliation. The writer of a history about something that is still happening therefore has a special responsibility to appreciate that choices about how to portray the past may affect the ways in which moral discourse unfolds today.3 To write a history of the common law and its relationship to Aboriginal peoples in colonies and former colonies is to write a history of something that is still happening. Historians may see the Mohegan Indian land claim in colonial Connecticut (to take one example) as a legal artefact excavated from the records of an eighteenth-century society now dead and gone, but for lawyers this old case is part of the present legal

“Your sovereign and Our Father”: The Imperial Crown and the Idea of Legal-Ethnohistory

This chapter is about historical narrative, the shifting uses of language over time, and the relevance of diverse cultural perspectives for our understanding of the legal history of imperial sovereignty—and for these reasons I shall begin with a story.1

'Common Law, Reason, and Sovereign Will' Constitutional Justice: A Liberal Theory of the Rule of Law

Preface 1. Introduction 2. First Principles: The Rule of Law and Separation of Powers 3. Legal Obligation and the Concept of Law 4. Dissent and Disobedience 5. Equal Justice and Due Process of Law 6. Justiciability and Jurisdiction: Political Questions and the Scope of Judicial Review 7. The Rule of Law and Parliamentary Sovereignty 8. Fundamental Common Law Rights and Equality 9. Public Reason and Political Conflict Bibliography Table of Cases Index of names General Index

Public law and ordinary legal method: Revisiting Dicey’s approach to droit administratif

In this article, the author considers the basic character of public law in the common law tradition by returning to AV Dicey’s famous assertion that public law is ‘ordinary law. Dicey made this claim in the course ofarticulating a theory ofthe rule of law within the common law tradition, and he juxtaposed that theory with the idea of public law within the civil law tradition, using French droit administratif as his central target of attack. Dicey’s ideas have attracted considerable criticism and are now generally out of favour. However, once the idea of public law as ordinary is reconsidered in light ofits genesis within the long history ofcommon law discourse concerning law and state power, and once Dicey s own evolving attitudes about French droit administratif are considered, the idea can be seen to offer important insights into the ideal oflegality today. The core insight, in the end, is the simple idea that ifthe rule oflaw means anything, the law that rules must embrace the qualities that law ordinarily embraces – that public law is, in the end, the product ofordinary legal method.

Judicial Review of Ministerial Advice to the Crown

For Thomas Hobbes, nothing illustrated the “inconstant use of words” better than the confusion between “Counsels and Commands,” for the words “Doe this,” he said, “are the words not only of him that Commandeth; but also of him that giveth Counsell.” This confusion remains with us today. We still do not have a sound grasp of the distinctive place that counsel or advice plays within our constitutional system. How is ministerial advice to the sovereign concerning how a power ought to be exercised different from the exercise of the power itself? Does ministerial advice exist within a domain of political action beyond the reach of law? These are persistent questions in Canada.