To the final session of the Law As Conference, this section is instantiations, law, sovereignty, justice. I'm trying to figure out how justice wound up here and not elsewhere. I think maybe justice is everywhere, but I'm an optimist, as I previously said. My idea behind this session, building on Chris' idea, but not trying to comb it off on him, is that these papers invite us to think about the history of law when we imagine law not in relation to something else, but as something else. And the something else that these papers imagine law as, or as law, are law as peace and peace with a technical meaning that, and an interesting meaning that Laura Edwards will talk about, law as a framework for the moral limits on methods of warfare, law as a framework for establishing sovereignty over territory occupied by non-European peoples. Being a bit more concrete, these papers, particularly the ones that talk about the United States, but also Mariana's paper, all portray law as a crucial, legitimating device in exercises of extremely violent power, and yet to bringing a certain kind of peace and legitimacy, perceived peace and legitimacy to that power in an area where the state seems quite weak, and thus the question of what we mean by law seems very much to the point. Mariana's paper, of course, does so too, except that it examines the use of law, as I see it, retrospectively, to challenge land claims that were once achieved through the kinds of power that Paul's paper describes. There's all sorts of other interesting things to be said about papers individually, collectively, but that is Bob Gordon's job. I won't take his job from him, because I couldn't do it nearly as well. To introduce our panelists, Laura Edwards is a professor of history at Duke, and happily returns to being just a very eminent professor of history from a number of positions in administration that she held when I was there. She is the author of numerous articles on gender and the law in the 19th century south, as well as two books, Gendered Strife and Confusion, The Political Culture of Reconstruction, and Scarlet Doesn't Live Here Anymore, Southern Women in the Civil War Era. This paper is part of her new book project, The People and Their Peace, Legal Culture and the Transformation of Inequality in the Post-Revolutionary South, which deals with the reconfiguration of ordinary people's relationship to law and governance in the year 1787 to 1840. John Fabian Witt is Alan H. Duffy, class of 1960, professor of law at Yale Law School, a title almost as long as Derb's. He has also recently announced a Guggenheim Fellowship recipient for next year. Congratulations, John. He is the author of Patriots and Cosmopolitan's Hidden Histories of American Law, which explores law and nation-hoding key moments in American history from the founding to the Cold War, and also another book, The Accidental Republic, Cripple Working Men, Destitute Widows, and the Remaking of American Law. His writings have also appeared in the most elite American law reviews and in other publications that some of you all might have read, The New York Times, Late in the Washington Post. This paper is part of his new book on the law of war in American history from the Revolution to the turn of the 20th century. Paul Freiner is associate professor of politics at Princeton, and for the current academic year is the acting director of Princeton's Program in Law and Public Affairs, which is Princeton's law school, as it were, a law school without law students. How cool is that? Actually, I love my students, so I would be doing that. He is the author of two books, Uneasy Alliances, Race and Party Competition in America, and Black and Blue, African Americans, The Labor Movement, and The Decline of the Democratic Party, both of which were published by Princeton University Press. It was just destined that he was going to win a good Princeton. He's just Princeton all over the place. He teaches in rights on democratic representation, race, and civil rights, and labor employment, including on issues as diverse as legal understanding, political parties, the racial politics of Hurricane Katrina, and affirmative action, and the role of law in the historical development of American territorial expansion. Mariana Valverde is professor of criminology at the University of Toronto, although calling her criminology doesn't begin to cover. She's the professor of everything. She is the author of so many books and articles on such a diversity of ideas that it's not even possible to summarize them. Generally, her fields of inquiry include social and legal theory, socio-legal studies, and historical sociology. Currently, she's writing a book tentatively titled Everyday Law in the World's Most Diverse City based on five years of empirical and liberal research documenting how the city of Toronto uses legal tools at its disposal, both to enforce and not to enforce by laws, and to manage disputes. And she has a whole slew of other really interesting and diverse projects, and as I said, it's written a number of books, including most recently, Law and Order, Signs, Meetings, Myths, and The New Police Science, The Police Tower, and Domestic and International Governance, and with Peter Goodridge, Nietzsche, and liberal theory, and half-written laws. The commentator is Bob Gordon, the chancellor-pent professor of law and legal history at Yale, and then he has a separate chair in the history department, so maybe your title is even longer, at least according to the Yale website you do, but I don't know, perhaps not. His subject areas are contracts, American legal history, evidence, legal profession, and law and globalization. He too has published so much and so widely that one cannot begin to summarize. And indeed, even if you look him up on the Yale Law or History Department websites, his selection of his works that appear on each site is both brief and characteristically self-deprecating and humorous. So I was amused to discover that his selections for the History Department are the legacy of all environmental homes, and I need my colleague, Joe DiMetto, to pronounce this, it's an Italian story, Crigge del diritto, critical legal histories, I think version in Italian. And for the law school, two articles and book chapters on the legal profession, and of course the one that many people in this group know best, critical legal histories, and the Stanford Law Review, one of the few law review articles I ever read that really changed my life. Delighted, let's hear from Laura. Clearly I need to update my web page. The book is out, so. I mean, if I refer to this as if it's out, it's because it's out. So, in the research from my recent book, I stumbled over, oh, before I start, I wanted to say also that picking up on Ariela's comment from yesterday, I often give elements of this paper for women's history audiences, in terms of the way that the law is gendered and the way our construction of understanding where authority comes from and how it's structured as rape gender. And I didn't do that for this context, but just to let you know that that's out there, and if anybody wants to ask questions about it, I'd be glad to comment. So, in the research from my recent book, I stumbled over the piece, a well-established Anglo-American concept that expressed the ideal order of the metaphorical public body. As the term stumble suggests, the encounter was entirely unplanned. My research focused on public legal matters in the post-revolutionary South, and I had been working with the presumption that cases in the local courts laid out in statutes and appellate decisions, at least loosely, and this was apparently wildly optimistic on my part because they did not at all a finding that actually should not have come as a surprise. It is a commonplace in the literature that the provincialism of local courts often resulted in mystifying verdicts at odds with statutes and appellate law. I had proceeded with local courts anyway because I'm a perversely stubborn individual. And I was certain that the conventional wisdom said more about the limitations of the historiography than it did actually about the promises for the evidence. So I persevered, and several years and several thousand cases later, however, the gaping divide between local court records and state law became impossible for even me to ignore. So I reconciled myself to it. But instead of dismissing the local level as problematic because it did not follow state law, I set about finding the logic that governed this part of the legal system. At that point, the answer seemed almost all too obvious, one of those moments where you hit yourself upside the head and go, oh my God, why didn't I see this before? Virtually all the documents clearly stated the legal concept that guided these cases, the preservation of the peace. The logic of the peace and its importance within the post-revolutionary legal system according to the findings of recent scholarship which emphasized the relative underdevelopment of law and government at the state and national levels in this era and highlight the significance of local institutions and personal networks in the dynamics of law and governance. The question from the historians, however, is not just whether the local level was more important than the state and national levels in this period of U.S. history. The peace is about conceptions of law, not just the places where law resided. Ultimately, the logic of the peace is more important than the places where it was practiced even because that logic challenges and historicizes and really reframes, I think, the conceptual separation of law and society, a separation that structures the field at a very basic level. Legal historians study the law as a distinct topic which seems kind of obvious, actually, but it is difficult to isolate the law in matters governed by the peace. In fact, the peace thoroughly integrated law and society because the emphasis was on maintaining the social order as it was defined, actually, in a particular concrete context in local areas. In a legal process woven into the texture of social relations, law both guided and emerged from the dynamics of people's lives. Legal principles were subordinate to the social results, defined as a just outcome that restored order as it was defined in a particular context. Just as the peace encompassed both law and society, it merged other dynamics that legal historians tend to separate into different, if not oppositional, categories. The peace acknowledged and accepted conflict, even as it sought to restore consensus. It incorporated dissent and change, even as it sought to maintain the status quo. It responded to individuals and highly personal complaints, even as it ignored completely individual rights. And it included a wide range of people in its workings, even as it sought to uphold rigid hierarchies of the post-revolutionary social order. If law is not distinct from society, though what is legal history? The logic of the peace, particularly its conflation of law and society, raises important questions about what the law is, where it is made, and how to follow its history. Those questions have both historical and conceptual implications. And by that, I mean, it helps us rethink what actually, I think, took place on the ground in the early 19th century. But I think it also poses challenges to legal historians in the ways they think more broadly about how to conceptualize legal history. In historical terms, the peace played a significant role in defining the contact of public law in the post-revolutionary period, because the institutional organization of the law was different then than it is today. And the local level of the legal system had not been clearly subordinated to the state and national level. So what happened at the local level actually was a law in a way that we have really not particularly come to grips with. That historical moment has passed. It is no longer. The importance of the peace in this period, that period, alters the terrain on which legal historians today work and suggests new ways to structure our narratives of historical change more generally. In a broader conceptual sense, the logic of the peace reveals distinct limits in the way we now define the law in opposition to those things associated with society. Society is a powerful concept in our historical frameworks. Among other things, it provides a binary point of reference explanation for every complication that does not fit our definition of law. Not only I think for historians, but also for people on the ground today, right? We saw that in Chris's paper. And so, this definition of law clarifies what the law is and negates the need for further analysis of it, or its opposition to society clarifies what the law is and negates our need to actually analyze it. The logic of the peace which integrated law and society without actually erasing the distinction between two suggests that this conceptual binary is anything but normative. More than that, the peace suggests that this binary comes at a cost narrowing and isolating the field of legal history. Like other legal historians, I began my research assuming the presence of the law. Somewhere with the law. And I was sort of assuming that it was actually a readily identifiable body of rules, enforced uniformly by centralized institutional structures. It seems pretty reasonable. It was an assumption how I refraud with difficulties because this kind of legal system did not actually exist in the post-revolutionary South, or for that matter, most of the United States at this time. Now, I'm not the first person to notice this. And while acknowledging this situation, often legal historians usually deal with it by focusing on the development of what we want, but so often fail to find. We focus on evidence that affirms the growth of unified bodies of law and centralized institutional structures. So we can't find them. We can at least talk about the beginnings. And there's nothing inherently law with studying law in these terms. Such a legal system does, in fact, emerge in the United States, and so it makes sense to chart its evolution. This approach, however, becomes problematic when it ignores the accompanying conceptual baggage, which is packed with assumptions about the nature of law and its production, not all of which are useful. The baggage is so full that there's really not much room for anything else, particularly contradictory or even misleading evidence. In fact, legal historians tend to exploit away such evidence in terms of fit. We label these circumstances undeveloped, backward, dysfunctional or utterly different. The unfortunate results of social forces that delayed or distorted the law's development. Those conclusions are satisfying only insofar as they do not force a reconsideration of the conceptual framework that led us to them in the first place. The results I think have circumscribed the field, excluding entire time periods in areas of the country from the narrative outlets, including, for instance, the first half, or more, of U.S. history, the South, areas of the Midwest and West during formative periods of settlement, states that retained French or Spanish legal traditions, all local jurisdictions, and almost everyone without legal training or not involved in litigation. The exclusions then generate hierarchies. Case law and legislation at the state and national levels constitute law in a way that local legal matters do not. The Northeast and perhaps in the West can represent the trajectory of legal change in the United States as a whole, but the South and the West cannot. These exclusions and hierarchies rely to some degree on the conceptual separation of law and society. That framework has been both the source of analytical inspiration and heated debate among legal historians and for good reason. It is resilient because it structures the basic concepts to define legal history as a field. The backdrop of society provides the means for identifying the law and of charting its complicated development. The scholarship that places law and society in a dynamic relationship has in fact reshaped the terrain of the field by joining these two sides as well as dealing with its interesting relationship and its oppositions. But society also provides a convenient conceptual place to put all of the challenging issues we would rather avoid. The resulting tension structure key debates in the field such as the growth of the state and the reach of state authority just to name two. Even legal historians who question the binary like myself still tend to reproduce it because the terms are so difficult to escape. We depend on it to explain what we study. As legal historians we write about the law. We need an identifiable topic, the law, in order to be legal historians. But we need to examine how we define it. In particular, framing the law as a unified concept defined in opposition to society comes at a cost. One that narrows the terms of our scholarship by locating the law in some places and not in others. And we don't even then look for the law in those other places. The logic of the piece is practiced in local jurisdictions in the post-revolutionary south provides a more comprehensive framework in which to conceptualize the law. So first what was the piece? The piece was embedded within the highly localized legal order that emerged after the revolution. Within this legal order the piece was applied to matters involving the public order not private property. Each jurisdiction produced inconsistent rulings aimed at restoring the piece rather than producing a uniform consistent body of law. Social relationships as much as geography define the boundaries of these local jurisdictions. The locality could be a handful of issues to gather at a magistrate's hearing and that's place, matter but it could also be hundreds of people connected loosely through knowledge about a case that was being tried at a district court where place mattered less. Or it could also be a dozen or so members of a tight-knit family scattered over hundreds of miles but united in their determination to influence a particular legal matter. The most visible of these venues were circuit courts which met on a regular schedule in county seats or court towns which held jury trials and which dealt with a great deal of government business but circuit courts were only the most conspicuous part of the system dominated by even more localized legal proceedings which unfolded actually here at both the local levels and throughout the entire system and I want to emphasize here that this sort of local legalized logic is a logic, it's not just a place it's a way of conceptualizing the law. That said this logic was most clearly expressed at the local level in particular places. Math strips are one of the best examples they not only screen cases and try and matter offenses but also kept tabs in arranging matters involving markets and morals. In most legal matters the interested parties themselves collected evidence gathered witnesses and represented themselves. Cases were decided by common law in its traditional sense of a flexible collection of principles rooted in local custom but that also included array of texts and principles including stuff generated in the state level as potential sources for authoritative legal principles. So in localized law you could quote your mother-in-law and a statute all in one breath and not see any kind of contradiction in doing so. The piece was both definitive and elusive. It constituted a hierarchical order that forced everyone into its patriarchal embrace and raised its collective interests over those of any given individual. Beyond that however, the content of the piece remained purposely vague both because it was governed and constituted by specific personal relationships and accepted practices that varied widely from locality to locality. In fact the piece meant nothing in the absence of the actual social relationships of these actual social relationships a situation that placed people at the center of legal practice and legal principles in a very literal sense to set the legal process in motion people had to identify instances of disorder of which actually there was no shortage in most local communities and the range of things that people thought were disorderly is truly amazing in my view. And people used the system then to defend their own interests but they were just as likely to provide information on wrongs done to others. Complaints however only gained traction if it was clear that the incident involved a threat to the public order. It had to transcend the individual. You had to make the case this is about something more. That standard however was more accommodating than we might expect because the piece folded everyone into its jurisdiction. Even those without rights such as wives, children, slaves and servants had direct access to this arena of law and they also had some influence over it but only through the relationships that subordinated them within families and communities not through the recognition of their individual rights. Similarly white patriarchs exercised domestic authority at the behest of the piece not in their own right. When their actions disturbed the piece whether through inadequate or excessive use of authority they experienced censure. Keeping the piece by keeping everyone from the lowest to the highest in their appropriate places as actual people not just as abstractions. The resolution of conflicts and the resulting statements about the law also involved people. Justments rested on the situated knowledge of observers in local communities in which an individual's credit which was also character, reputation was established through family and neighborhood ties and it continually assessed through gossip networks to know a person you actually had to know that person and that had to be continually circulated throughout the community. Local officials and juries judged the reliability of testimony based on individual's credit as well as impersonal prescriptive markers of status such as gender, race, age or class. In this system the words of subordinates could assume considerable legal authority. The effects of legal decisions also remained with particular people involved because the system was sub-personalized. The result was a legal system composed of inconsistent rulings which rather than providing precedent offered options from which to choose. There was really no uniform law to appeal to. In the operation of the piece law was constituted through social relationships. That dynamic which also recasts the relationship between law and society poses broader questions about the conceptual location and production of law by extending the field into the lives of ordinary people, the workings of local communities and new regions of the country. This wider perspective I think suggests new conceptual frames for making generalizations about legal change. So I want to go over these last three areas in this last part of the talk. Within the logic of the piece people have a different relationship to the law than it's positive in much of its historiography. Even people with outrides influence localized law in a basic structural sense. These people in the body of knowledge upon which they do actually constituted the law. The law was not separate from them, they generated it. It is a relationship I think that widens the field of legal history particularly in the early 19th century and I think you can do this in the 20th century but in the early 19th century I think we need to take note. We need to take note because it joins question about the law to topics that are usually loved to other fields, namely social history, cultural history and related areas such as women's history, African American history and labor history. In the post-revolutionary south for instance slaves, wives, children, poor people and free people of color all left a direct imprint on legal principles as well as their application. Yet we do not usually think of these people as central to the production of law in this period. They regulated them, they did not produce it. Their relationship between people and the law shifts the basis of analysis from the outcomes of cases to the development and the development of legal abstractions to broader questions about people's access to the system and their place within the practice of law. So we're moving from outcomes to process. Once you move to process you begin to see actually a different way of evaluating change over time in terms of people's access to the law and the practice how that changes. The point of law in the state and national jurisdictions generally has been the identification preservation and application of legal principles, many of which are framed in terms of the rights of abstract individuals. The workings of the piece however suggests that these individual rights provide a poor standard by which to evaluate changes in either law or government in the decades following the revolution. Individuals regularly pursued their own interests in localized law but to the extent that individuals figured in the process at all they did so through hierarchical family community relationships that connected to the piece. Individuals are not abstracted they're realized through their relationship to others. And this system moreover did not treat their claims as expression of rights and to the extent and they also didn't treat them as individuals as I'm sorry I was cutting stuff here now we're getting lost here and so they didn't treat these claims as expression of rights and so to view this system in terms of individuals or individual rights is actually to misconstrue the dynamics stretching a very modern contemporary conception of an individual and their legal rights and legal positioning backwards in time and well beyond their reach. Now in one sense this place and logic are bound up together here. In one sense the logic of the piece particularly the centrality of people in the constitution of law was always about place because the piece was actually practiced in local jurisdictions that connection between the logic of the piece and localized areas is really important but it's rooted in local areas because it is so dependent on personal relationships it's not the local area per se it's the social dynamics in that local area that actually provide the foundations for understanding the logic of the piece but bringing this local area, these local areas and these social relationships into chakra focus I think does change our view of the entire legal terrain in this period. Our entire legal terrain that also includes state national law. In legal history the pejorative connotations so often apply to all things local actually reach back to post-revolutionary period and leaders then who are bent on creating strong state and national governing institutions and uniform bodies of law. These men most of whom were professionally trained lawyers not coincidentally were part of a national network that applied revolutionary ideals to create rationalized bodies of law and centralized institutions of governance. For many one of the most pressing concerns in this period was the solidification of their state's legal authority. State institutions as they envisioned them would produce and maintain a uniform body of law based on the protection of individual rights. To realize that goal these reformers actually faced two obstacles the logic of the piece and the authority of local jurisdictions obstructions so entwined that they appeared as a single problem namely localized law. Now history proved crucial to this whole task. As reformers worked to create these uniform bodies of law first in property issues and then in public matters they also compiled documentary sources and constructed narratives that obscure the fact that local jurisdictions actually did have authority over a broad range of public matters. They also dismissed the logic of localized law and the piece claiming that it represented chaos and not order. And instead they cast this whole system, localized law with the piece as an archaic throwback which inevitably gave way to progressive changes. Laws were standardized and rights were uniformly defined and applied and progress and democracy ensued. In the process reformers generated a set of expectations about where the law resided and how it moved through the system. Not only did reformers separate the state from the local and made logics seem like places but they also associated the state with a certain kind of legal logic that they subscribed to and insisted on its superiority. Reformers had such confidence in this vision of the legal system that they described it in normative terms. Since there was no other option, the system evolved naturally if somewhat haltingly and fitfully and not fast enough in this direction. I thought that was my time. Law. They're rhetoric so powerfully articulated in the archival sources has led historians themselves to embed this vision in the historiography. Now state leaders' accounts are accurate in the sense that the logic of state law became more elaborate sophisticated and influential between 1787 and 1840. They're absolutely right about that. In other respects though, they were prescriptive rather than descriptive. Even as state law expanded and covered more ground, its relationship to localized law was never as clear as state leaders would have liked. Localized law with the governing logic of the piece continued to have considerable influence throughout the Annabella period and law afterward even at the state level because it was embedded in the culture in ways that made it very difficult to eliminate. And if anything, the concept of the piece and its logic is very capacious and it moves back and forth and has no problems kind of transgressing spaces and boundaries that historians like to draw. Neither the legal system nor reformist narrative of legal history worked as they portrayed it. This suggests that localities actually provide productive places from which to develop larger generalizations about law and government, particularly in the immediate post-revolutionary decades. It is not so much the places as the legal logic here that is important. In the logic of the localized system, state laws did not necessarily control local practice, define the needs of the piece in local areas, or constitute a definitive body of law uniformly applicable throughout the state. You might think so, state leaders know, but a lot of people in the United States did not actually think so. And in fact, these laws were just another set of legal principles generated in another place. So the state, because the state was a different place, its laws often do not represent the practices of other places in the United States particularly well. It's one little bitty thing. It's not actually representative. Localities also provide a better basis for generalizations that can account for differences among the nation's various regions, and provide them a truly national history. Which is a little counterintuitive to say that you can provide a national history by looking at local areas. The focus of my work, for instance, is on the south. A place often deemed either exceptional or backwards, and certainly not representative of the national experience. That is because, I think, of the frame of reference. Usually state level laws and institutions are compared to each other. A frame of reference that is problematic because it assumes what did not yet exist. Already constituted states that would eventually form distinct regions. Southern historiography with Southern exceptionalism I think really complicates and exacerbates this problem. And I can comment on that if you'd like me to. Changing the perspective and bringing local jurisdictions into focus, why use the perspective so as to include the south in other areas of the country within narratives of legal history. That contrasts in between localized law and its emphasis on the peace and legal developments at the state level with their emphasis on abstractions and uniformity. Rather than comparing states to other states highlight striking similarities between southern states and states in the rest of the nation. In the early 19th century southern states developed actually centralized government institutions with rationalized bodies of law just like states elsewhere in the United States. And you see that if you compare those states in the south to localized jurisdictions. We form minded southern leaders drew on political principles usually associated with the liberal state in the north. Prior to property, individual rights and unlimited but theoretically democratic government that protected those rights and encouraged individual initiative. In the context of a slave society those principles resulted in extreme legal inequalities and rigid political exclusions. While these aspects of the south are usually considered representative of national trends they parallel developments in the north where recent historiography has emphasized growing inequality, expressing categorical terms of race, class and gender and linked to the spread of liberal individualism. When the analysis includes localities made visible by recognition of the peace as a legal construct southern legal history provides insights into the origins and reconstructions of inequality in the nations as a whole. As the history of the south indicates the extension of rights to new proportions of the population is really only part of the story and maybe even a not particularly interesting part of the story. The meanings given to individual rights were and are as important as their distribution. Although rights exist as abstractions in law they are always applied in context. Without political backing and a strong commitment to democracy and equality a government based on the protection of individual rights can lead in profoundly oppressive directions. In the south the principles that we usually associate with individual liberty, democracy and equality were mobilized in defense of slavery the nation's most potent symbol of tyranny and repression. We usually treat slavery as an exception that can be explained by its diversions from national principles but the system of vesting some with rights in the labor body of others was far more pervasive than many Americans would like to recognize even today. The principles of equal rights were and still are extended in democratic directions by political struggle which also confounds our notions of the separation of law and society. And now I come to my conclusion here so I'm head first officially. The piece is conceptually useful because it reinforces approaches that are redefined I think the best legal history in the field. It forces us to confront the presence of multiple even conflicting traditions within the law instead of displacing them onto society or debating which is really the authoritative expression of the law is it really the local level? Is it really the state level? But that's not really the question. More than that the piece forces us to deal with those complications within legal history instead of relegating outside the bounds of the field. Oh there's a complication that must be society. Go deal with that today. The challenge is to think more critically I think about what the law is at any given time and what that means to the way we understand the law in our own historical moment. It's located what does it do? And that makes a big difference when you're talking about narratives in legal history where you start tells a lot about where you're going to go. Where you start frames the entire narrative. And the framework of the piece suggests that all of those questions are more difficult than they seem. The answers moreover lead not to pluralism with its easy affirmation of multiple legal traditions and the resulting obfuscation of power dynamics that elevates some of those traditions over another day to different historical narratives in which it is possible to tell a national legal history by looking locally and by emphasizing the place ordinary people have had in making law. The results would also connect the field of legal history more directly and more productively to other historical subfields. In one sense the field of legal history has become something of an outlier actually in the historical profession. And you see this if you go to conferences and do just general US history or general Southern history. Among legal historians outside legal history the perception is that the scholarship in the field is insular and difficult to penetrate because the central issues of the field have developed in ways that appear disconnected from debates in other fields. Books that are widely known in this field of legal history are not known outside it. Even the designation of legal history can make it difficult for a book to find out why their audience because it is presumed to be margin of other kinds of fields. In another sense however legal history maintains a high profile in the historical profession. Historians of all varieties rely heavily on legal sources and incorporate analyses of law into their scholarship. Often however these historians do such work without ever engaging legal historians or ever even actually figuring out how to talk about legal institutions in a way that would make sense to legal historians. That juxtaposition between the marginalization of the field and the centrality of the topic provides both a caution and a challenge. We need new frameworks to widen the scope of the field lest we lose control over it. Thank you. I distributed the paper so you had a chance to look at it. I thought I'd say a few remarks that occurred to me in the course of Laura's presentation, other presentations today and then relate them to the paper which I'd love to hear what you thought about the paper too but trying to make more of a conversation as we move toward the end of the session. So it was about a year ago was it, Kristen, that you called and what Chris called about a year ago he found me in a really weak position. I was in the second year of a project that I'm still engaged in and then writing a history of laws of war which is to say in the international, body of international law that reports to regulate the conduct of armed conflict. I was in the second year and I felt completely and hopelessly swamped by primary materials, by brute facts that I had no idea how to sort into a discourse or a framework of analysis or any such thing. There are something like 100,000 court martial and military commission records in the National Archives from the Civil War alone and I was just completely swimming in them. There are fascinating paper collections and archives full of letters that have never been sorted for this category, that is to say for the laws of war as a category which somehow evade the attention of historians of military history or historians of foreign relations and so I was completely at sea in this ocean of primary materials and Chris called and said let's rise above the mess, let's rise above the frame and think more abstract and so I leapt at the opportunity to do this and was glad to accept. Another reason that I leapt to the opportunity to talk about the theory of how to do legal history was I think I shared Chris's vague sense of dissatisfaction or at least stalemate with the existing theoretical framework in the field. Some combination of society-shaped law, law-shaped society, a kind of neutral constitutivity combined with its cousin which Morty talked about earlier today at John Comer off yesterday, the law as site of contestation when at least two things that I go closely related seemed to be the place where the theory of the field had come to rest and there didn't seem to be much movement off of those resting spots or any real opportunity to develop new theoretical approaches. So this is another reason that I leapt to Chris's invitation to think more broadly more generally about theoretical moves that might be being at this state of the literature. As I thought more and more about the invitation that Chris had made to us I started to change my view though and it may be that the sea of materials that I found myself hopeless in Austin in the walls of war started to come into some kind of blurry view for me but I think it's also as I reflected more on the state of the theoretical state of the field the more sang when I became about it actually and the more I thought largely thanks to people in this room that it was actually cause for celebration not dismay the state of the field. I thought I'd say a few words about that. It seems to me that the state of the character the state of the field as it exists right now has sponsored a huge and growing number of really interesting studies. There are legal historians working in all sorts of different places around the country around the world many of them papers we've heard here. Most of them maybe even all of them sponsored loosely by the theoretical agendas and frameworks that people in this room and elsewhere working in the field have constructed over the last several decades. So I thought what I proposed here is going to cut a little bit against the grain of some of the conversations we've had over the last two days but it would be a kind of a provisional, purposeive naive empiricism. That is what we need now is not theory about the field. We need to know things about how the law has worked in the past. We need to know about these brute facts that I was swimming around a year ago when Chris called and I call it a provisional naive empiricism because I don't mean to be a naive empiricist in some neanderthal like way but provisional for the purposes of working out the edges of the field that has been opened up by the existing and I think as I've heard of the last narrative, still a relatively unchallenged idea of law and society as mutually constitutive and that law as site of contestation for the kinds of conflicts that come into its domain. So is there a crisis in the theory of legal history when Chris called I was convinced that there was. The more I thought about it I'm not sure that there is. I think the success of the paper we've seen the last couple of days might be testimony to that fact if there is a crisis is too strong a word but if there is a difficulty in the field I might call it and this is going to sound very primitive but an industrial organization problem for the field rather than a meta problem or a theory problem for the field so now that the theoretical framework now that there are theoretical frameworks in which to work quite happily and in which to learn produce new knowledge about the history of the law it seems to me that the industrial structure of the field in which work isn't perfectly suited to the production of new studies so law schools are not well organized to send out students to do multi-year research projects on some significant but relatively minor in the grand scheme of things part of the history of the law it's not something that law students have the time to do nor is it something for example plea bargaining or tort settlements or all these things that happen in the deep recesses of the law that Barbara's able to bring out for us in part but that still remain deeply mysterious and great to know more about law students can't go out they don't have time and there are very few law professors or jobs awaiting the person who's counted the tort settlements in California for a particular 10-year period that's some big intervention so there's an industrial organization coming from the law school side for filling in the theoretical framework that we have but on the history department side I think that Laura said really quite usefully, pointed out quite usefully the ways in which history departments still have a complicated relationship to the technical sounding material that comes out of the legal historical field so the theory it seems to me looks good it's the industrial organization of the of the field that has has held back the production of new knowledge within these disciplinary frameworks but I don't want to be too pessimistic about the about this industrial organization it seems to me that if anything there's an extraordinary abundance of new work that's coming out and we should be grateful to the creators of the theoretical paradigms of the last generation for having done so so the problem in other words we don't know about the past of the law as much as it is how to think about what we do know about the past of the law so this is one of the reasons that I'm studying in this project the history of the laws of war a subset of the field of the history of international law seems to me it's one of the areas and there are many of them which goes largely unknown and largely unstudied in our field of legal history so I thought I'd say now attaching these these comments to the paper a few things about what it is we don't know about the histories of the laws of war in hopes of well in hopes of large part of getting comments from you about ways we might start to think about them so part of the problem in the history of the laws of war in the American history is that there are two narratives two metanarratives two grand stories available in the culture generally sometimes among historians sometimes among experts in the laws of war or journalists and sophisticated observers two stories one is what I like to think of as the clenching thesis and this story once upon a time the United States of America understood the value of the laws of nations obeyed the laws of nations paid fealty to the laws of nations but somewhere along the line the value of dates at which different variations on the clenching thesis put it but at some point along the line fell away from the attachment to international laws of war in particular that was characteristic of an earlier generation of American states that's the clenching narrative the alternative narrative is the novelty narrative and this is a narrative you can see especially experts on military law especially from inside the military people who are astounded by the relatively recent increase in the salience of law, legality and the legal profession inside the military so targeting decisions in which there are lawyers standing behind the shoulders of the commander making the targeting decision for any of you who saw the really riveting and horrifying video of the New York Times and other sources just last week on a helicopter over Baghdad from 2007 in which the soldiers were killed one of the stunning features one of the stunning features of the events in 2007 was the rule bound character of the extraordinarily destructive violence that you were watching the helicopter pilots were deciding whether or not to fire are completely guided by a set of rules of engagement which they appear to follow scrupulously notwithstanding it's capable of producing and does produce really dismaying collateral so two theories the declension thesis and the novelty thesis now you'll notice that these two theories each on it wouldn't be so bad if the field had a wrong theory because you'll notice that one of these two theories really has to be wrong they can't both it be right or wrong I think the really acute problem is that neither of these stories is plausible the declension thesis has very little to say about the extraordinary controversies and contestations that existed inside the field of the laws of war going back to the founding and before the novelty thesis has no account of the long history of dealings and engagements between American statesmen soldiers lawyers judges on the one hand and the laws of war neither of these two stories seem to be especially good frameworks for making sense of the laws of war and in large part I think it's because of the huge body of material that simply goes uncomprehended goes unknown and we need to know about in order to write a better version of the history of this this part of our legal our legal history so examples of things we don't know there's an extraordinary moment in the early republic in which American statesmen lawyers judges begin to articulate what looks like a 20th or 21st century international humanitarian lawyer rule about private property the rule is articulated in the midst of the revolution it's articulated again in the war of 1812 and the idea and it comes out of most strongly some of the work on the topic and the idea that private property should be immune from attack during the war now what we don't know about this is where this came from there's almost no precedent for it in the European literature that American statesmen lawyers jurists purport to be drawing on the 18th century like the jurists people like Vatel and others on the European continent will say things like of course you can attack private property in war and that's not going to be section one section two is you really should try not to best a war among civilized states is much better if we leave this sort of stuff alone the U.S. alternative simply drops section one and makes the gentle suggestion of Vatel section two into the rule so what don't we know about this we don't know where this came from there's no literature there's not even in the literature on the history the observation of this novel departure in the American let alone the beginnings of an explanation for why we might see it so one of the things I'm trying to sort out why it is that we'd see this novel departure of the American characterization of the rule about private property and in the cursory and this goes to my comments earlier about my sense that the frameworks the analytic frameworks that we have are relatively useful my sense is the only way I'll be able to answer this question is by reference to precisely the kinds of analytic frameworks that we have at hand already thanks to people in this room so the question will be about whether or not the American proposed content of the rule about private property or voodoo and wartime is it explained by reference to some interests that are exogenous to the law some space outside of law in which interests drive Americans to adopt a relatively protective private property rule for fear that British armies will start taking American private property which is after all relatively vulnerable given the tiny size of the American military or we might tell a different kind of story a constitutive story in which the American proposed rule is a kind of vindication of a sense of identity that early American statesmen, lawyers and jurists have formed around the gentlest versions the most civilized versions of the European law of nations perdition at the end of the 18th and beginning of the 19th centuries this will not be a familiar moment for legal historians choosing between on the one hand an account of a legal rule that's drawn constitutively from the legal regime itself or from outside and no doubt the answer is going to involve some kind of combination of the two we'll be back to the stalemate the theoretical stalemate that Chris started us off with but I'm not sure that's such a bad place to be figuring out the precise combination of the two of the two influences in this situation as in so many other situations is exactly the fun and the interesting work of legal history more stuff we don't know about in the field of the laws of war to extent that there is a body of literature on the history of international law and there is something of literature it's almost exclusively organized around the elite practitioners the treatise writers, the judges usually it's justices on the US Supreme Court, the John Marshalls the Joseph Storys, Henry Wheaton James Kent, the people who articulate ostensibly coherent and ostensibly well formed views on the character of the field that goes under the name international law and so we have a set of doctrinal histories that report to deal with the theoretical and doctrinal moves made at this level of abstraction the reason that I chose I was looking for a topic in the history of international law in particular the reason I chose the laws of war as a way to go about this is precisely because it offers the opportunity to write about, think about the legal history of a body of international law outside of the mandarins of the field the treatise writers and the jurists so we know almost nothing about the laws of war in the hands of Andrew Jackson and his militia and of course if you want to know about the history of the laws of war, if you leave out Andrew Jackson and his militia we've really cooked the books I mean you essentially decided that the history of the laws will be represented by the treatise writers and the mandarins and it's now old hat in this room that we can't write legal history around the elite jurists and their treatises including a much wider array of groups people who come into contact with, engage with, have agency over and interactions with the law so we know almost nothing about the way in which more popular interactions with the laws of war tradition, what about I'll tell you a little bit about how I've come to think about that my first thought was that what we had a story of in the early republic was the clash of cultures there was a culture organizing itself professionally around the materials the ideas, the doctrines of international law and the wrong nations that would be the marshals, the stories the wheatens, the kents it leads mostly on the east coast sometimes organized around the prize court the prize case practice at the U.S. Supreme Court where a group of specialized professional warriors emerges in the first couple decades of the 19th century the essential job is to argue law of war at sea kind of cases so I thought we'd have a culture clash between this professional group on the one hand and a group of contemptuous populists on the other who wanted to hold the tradition at arm's length with Jackson at their lead but I think actually upon a closer investigation the story is really quite different but Jackson and the Tennessee militia that marches into Florida for example in 1818 the march part mobilized by exactly the rules which they sometimes express some contempt for but it's the violation of the laws of war that in part provides much of the energy that they bring to conflict and much of the passion that results in so much ostensibly lawless destruction why is it how does the logic work it's precisely the violations of the rules which sets off the passions of an American Jacksonian militia so this is especially evident in wars with American Indians and armed conflict with American Indians but also true in the huge popular mobilization in the revolutionary period and again in the war of 1812 around the idea of British atrocities oftentimes in arm in arm with Indian allies of the British so I think we have a more sophisticated view than my initial culture clash view would suggest that the laws of war run through why groups in early American people's history and we'll actually see lots of dialogue from the top and from the bottom now as referring back to my earlier comments there's nothing theoretically novel about this movement because it's quite comfortably in the Theoretical Apparatus of the last several decades it's just that we didn't know anything I still know far too little about the content the naïve empiricist now in my naïve empiricist mode the content of the rules and the conduct around those rules they simply remain unknown to the literature that we have so I could go on and list more examples of kinds of things we don't know you'll see a number of them in the paper I'm happy to talk at more length about any of them I thought I'd end with one observation which is as I think about the organizational structure the industrial organization of the field one of the most striking features to me in the last couple of years is the increased salience in history departments of histories of international law all of a sudden there are a number of history departments that are hiring people who do the history of international law there have been projects, books and articles that are pouring out about the history of international law and one surmise that I was more by the way of a prediction or a guess about the future is that we may see theoretical advances, theoretical moves in the future may come out of this field out of the history of international law because it raises a huge number of issues that don't really come up in the traditional vineyards in which legal historians are working, so things like the legal construction of the state as an entity as a force in legal history which come out really nicely in the history of international law and are a little more excessive in other sorts of fields so the plea I've made here for you is a plea for provisional purposive, naive empiricism in fields about which we know far too little because there remain fields in which the production of the knowledge of brute facts that go still unknown to the state and I'm extending the huge proliferation of wonderful literature so a provisional purposive, naive empiricism and especially a provisional purposive, naive empiricism about international law which we just know far too little about so thank you it's a little sweet it's a little sweet it's a little sweet oh that's better is that better alright sorry can we just put the lights a little yes please sorry it's a little low alright welcome I want to thank first of all Katherine and Chris for inviting me here although Katherine said I'm at Princeton I have a couple books in Princeton but I'm actually out of California and I owe to the UC system a more than one degree in my first job so I appreciate coming back and seeing it to be somewhat healthy sadly enough I left right before this economic crisis and I'm still on or was in collect three months ago on the email system so I got to see all the emails of the cuts and it was really kind of excruciating and feeling even worse that I in some sense abandoned the ship not to say it's not a direct contest it's nice on that other side I won't lie but anyway, thank you thanks all of you for coming on a Saturday afternoon I know this is a sleepy time I teach at 2.30 after everyone's had lunch and usually my students are asleep before my first work so at least I know then that it's not me being boring so I appreciate that most of you are sort of at least half awake I did my best to try to fall asleep but didn't you know I saw a Cornell West speaker for the first time two weeks ago and one of the things he does he's a brilliant speaker and the main thing he does so well he's brilliant but one thing he does quite nicely is he starts very quietly and then everyone has to lean in and kind of pay attention to this being very quietly and then he starts to rouse and boom so things to learn as you pay attention my paper is about it's interested in the foreign and development of American empire empire has been defined broadly and narrowly it involves hard power soft power though some see it as an economic global network most people who write about empire retain some notion of a nation state that dominates Ukraine outside of its sovereign orders through a combination of military violence or some combination of military violence political sovereignty, economic power and cultural hegemony popular conversations about American empire have tended to begin this is the most recent era with George Bush II perhaps George Bush I perhaps even going back to our Cold War but in this conversation it is the notion of the U.S. empire military power as a nation engaged in battles on foreign land a nation imposing democracy putting those two words together purposefully on other nations who are attempting to do so as such we tend to think of the beginnings of American empire with war with offshore engagement we tend to think of in our nation's history the turn of the 20th century at the end of the 19th century with wars in the Philippines Cuba, Puerto Rico so forth we pass you to the beginning period of American empire when we think of court cases we think too the insular cases of this time period around the Philippines so but as recent work has well pointed out particularly in history in some way in legal history the ideas and certainly the aspirations of empire in the United States begin much further back I begin my paper with a few quotes as examples Alexander Hamilton in Federalist I refers to the fate of an empire the United States of an empire in many respects the most interesting in the world Thomas Jefferson, no constitution was ever before so well calculated as ours for extensive empire Daniel Booth to show that this is not just an elite level I don't know if he counts as an elite or a cultural figure where Wigwon stood the miserable of oaths and savages we beheld the foundations of cities laid that in all probability will rival the greatest upon earth so the aspirations are clearly there as Daniel Holtzbosch his aptly noted that when the founders first wrote the constitution and thought about American empire they looked at empire both backwards and forward we came from empire we thought of ourselves as becoming an empire we were also surrounded by empires we came from the British we were surrounded by the French as well as the Spanish we were surrounded by a notable number of Native American empires although I'm not sure we thought of that as being surrounded in quite the same way but certainly empire was ever present in our understandings and conversations about the United States so this paper is an examination of this first period of the American Empire the taking of the U.S. continent before we go overseas I do hope actually as I expand this paper there are other aspects of the American empire even in this early period Liberia the West Indies Latin America slave trade these were all important elements of where the United States was involved maybe with some notion of empire in this period in terms of the U.S. continent this is a time of massive expansion we began with the 13 states which were even as sized as they are today and moved very quickly by really 1850 to the whole continent of the United States this occurred in two processes one was acquiring land and this was fairly easy because we know it was largely treaties with European empires it was as we know Napoleon and Louisiana purchased a quite uncontrary depending on for example bless you a fairly uncontrary process and that is of course possessing land much of this land which we we claimed and we argued that we had some assertion over we did not possess that becomes the interesting part of the question and my question specifically is understanding government both government authority and government capacity to take possession of this land this needed to be the question of this period by asking about government the role of the government in terms of taking this land it needed to be the question one can argue that American expansion was not about the government at all it was about settler ambition about settler violence about a government that was two weeks to stop it this is actually a fairly common refrain in much work of history especially 20 30 years ago but even more recent work such as Patrick Griffin Robert Cohen further back with Michael Rogan Francis Prusa who said the government was trying to stop the settlers and really the government was too weak to stop it had the government been stronger we might not have had the expansion the rapid expansion of the same kind now Ferguson who's recently written about American empire skirts over this period in two or three pages saying this was easy this was an early process a disease weak opposition there isn't really much role for government here in terms of acquiring possessing the land Fareed Zakaria in his first book while still a political scientist and not a pundit on the daily show in other places of course argued that American empire begins with the 1890s because in this early period prior to the Civil War the US government lacked capacity the ability to have an empire even if it was an aspiration it was unable to actually partake in this role I think all these approaches are misleading in important ways but it wasn't entirely easy as Ferguson suggests by counsel of the US government alone and these counts are controversial by counsel of the US government in 1800 there were more than 600,000 indigenous people within US set borders of the time which is in contrast to 4.4 million American citizens 900,000 slaves that gives you a sense if we do the math it would be more alert it would be about 1.7 a sizable population that's simply easy to move population we find a number of wars with indigenous populations some of them not very successful some of them incredibly expensive the most expensive war prior to the Civil War second, even if we think of the government as weak the government is certainly not irrelevant Steven Scoronna, a political scientist has importantly corrected the notion of Tocqueville and Marx and Hegel who looked to the United States the view of the state was downtown Berlin or downtown Paris there was a sense that the United States did not have this Scoronna corrects this by saying that even a weak state or what he calls a patchwork state state of court and parties can be influential in societal development at the same time Scoronna's intervention about a state however has been in important ways prohibited the way we think about states and power after all the notion of the state the idea of a state is about power and in contrast to Tocqueville or Robert Dahl the idea of a state is that the government is not simply an expression of society in contrast to Marx it is not simply an expression of a dominant class states, if we think of them as states are thought to be an independent entity with meaningfully independent interests we might think of this as institutional dynamics that would lead some of us here to talk about discourse that would lead political scientists to talk about incentives for Stephen Scoronna his notion of the state was a development of a very varying a very varying state of the very varying bureaucrat the capital city with rows of state buildings that house regulatory apparatuses that are able to oppose their will of society given this constant that Scoronna has created a number of scholars both within politics and law and attempted to challenge it Scoronna argued we had a weak state and recently we've had a number of scholars that most notably probably for this crowd people like William Novak and Brian Ballo who have tried to show that the state was actually more powerful in this time period whether it's the Bureau of Indian Affairs the Post Office, Constitutional Authority through court activism state and local regulatory apparatuses all of this work is engaged with the creation a sense that the state was more powerful and of course Novak, Ballo, Scoronna and others are all engaged with a bigger question of how does the state promote a national welfare system going back to Tocqueville or more into the 20th century thinking of some of the blue hearts the question is why no socialist in America why does America help then further behind other parts of the world in creating a real regulatory state Barack Obama sometimes asked this question himself these late at night in some ways I argue this is limiting in terms of thinking how we understand how we understand states and how states can act state power can exist in ways that is less visible an empire is a nice way to find to illuminate some of these ways in which we see state power that is not confined by the Vibrarian, Kegelian, Scoronic form of bureaucracy in the bureaucratic state building for instance there's now a recent literature on empires, a comparable literature that successful empires as an example, Karen Barney that successful empires are much, much rigid they're actually flexible they're able to adapt to new situations they're dispersed and yet they're able to retain power they're like trees that can bend but won't break as opposed to notions of strong states that are strong but cannot reach out to these peripheries in such similar ways there's some of the ideas that inspire this and I focus on three components of this government activism in America's state state and empire building during these early years the idea I think is that this will inspire our understanding today I hope that as we talk about some of these pieces of American empire building in the early period it'll resonate somewhat with what we think about today whether it's Iraq or whether U.S. more broadly in the world I'll leave the question of law as third, third and final so I'll make some brief comments in the first two and then throw out some ideas about law as well so the first is the idea of state as public a public private fusion private certainly private power for private power to be state related it needs to be directed in some way by the state if private power dominates then a notion of state disappears we always have known that private power is important in America in fact the argument of American exceptionalism is that private power is so important, so powerful that the state is not able to rate it in so in talking about a public private fusion the idea is that the state remains important in retaining and restraining private power and it also benefits from this private power it can use private power for its own purposes we see as an example this is the 20th century the government relies on private lawyers to handle much of this it's post 1960 statutory developments the most dramatic example of course is Civil Rights Act of 1964 which lacked enforcement powers and provided private lawyers a lot of its enforcement role here's a state coordinated role enabling private players to partake the state nonetheless having authority I should say here that this is not the same it's entirely public control once you provide private authority that you lose a public dimension you may have some control over them but certainly private forces can take things on a life of their own in certain ways that can be unsettled so the example I want to give for the 19th century is the notion of residence and defense the use of the government here in directing settler expansion and arming the territories when we think of the 19th century and the expansion of the state in this time period we would think typically of two things one is settler expansion the other is using the military in winning wars and taking land I would argue that the state is much more subtle in its role here land policy is used here to populate and arm the territories but it's done so in a way both where we use settlers the US government uses settlers and it uses settlers to defend the land so we don't see much in the way of military operations and we also don't see settlers out of control we see again this term that was used at the time of residence and defense which is using land to build barriers between the United States and the indigenous populations so very early on the United States started using military bounties as one example as a way to bring people into the military in a nation without much in terms of resources the US relied extensively on providing bounties to military people who participated in the military in rural work for service now what's interesting about this are a few things well first before I say the three things is millions of acres are given out these military bounties in other forms three interesting things about this first where is this land that they give out the land tends to be consistently on the frontier on the borderlands directly attached to the populations where indigenous populations are biggest where indigenous populations are often most combative so the land is put this as strategic where the land is provided we have a vast space of land to provide is strategic in how it is provided second how much land the land is small amounts we push and we centralize people into small spaces and by doing so we populate these small areas we overwhelm these areas with large populations of people into small areas an example of this is actually actually later than the time period I cover but the Homestead Acts operated this way they continually provided a very small amount of land and people rushed to the land the notion of the Oklahoma Sooner for example which is the name of the football team the idea of a Sooner was as soon as the land was released you had to run to it to grab it because everybody was trying to get this land at once what this saw was of course this is a swerving effect and again the land is located strategically where you have indigenous populations either interspersed or located next to it it enables the United States to direct its populations to a confrontational point that's the second reason it's a small amount of land and pushing people to be spiced third who and this is of course militarized populations military maladies provide not just opportunities to give land to former veterans it also puts people with military experience in these lands it puts them on the places in other places without using military penalties the government passed laws such as the Armed Occupation Act of 1842 which said that one had would be given 160 acres of free land if A they settle the land for seven years and B they own the gun defend the land yourself so this process and the Armed Occupation Act this followed the Second Charity War sorry Seminole War in which we had struggled and lost and in the language, it's in the paper if you'd like to read it the language of international testimonies we have failed to win this war this is a cheap way to again using the term residents of defense give land out, let these people defend themselves pack these people together so again that they can defend themselves quite nicely so that's one example of this first idea of the state is using private forces using sellers to promote public public goods in this way so I'll leave that as that's one the second issue is the role of race of this process and race is very interesting in state building and empire building of course race is inseparable from empire empire is essentially about race and about othering and about creating difference and race in this case is interesting in that it's both an energizer and an inhibitor of empire it's of course an energizer as the boys has famously written in this book John Brown of slavery, fusing of conquest these provided the energy, the aspirations of the ability to move quickly through terrains of populations with little fear of what these populations constitute so it energize populations of course also the emotion and anger the racism that came from this also helped further energize and infuse these opportunities it's in her mind as well in slave expansion during this time necessitated a leave for more land there were constant pushing among slave owners in slave act people who protected slavery to quickly push through these lands it's not accidental for instance that Georgia and many of the southern states where a lot of the confrontations with indigenous populations were areas surrounded by slave lands there was a look in moving towards these new territories so again an energizing factor here is the role of slavery as it intertwines with empire expansion at the same time empire slowed down in interesting ways by the role of race and the way in which we saw the people we were confronting we struggled continually with incorporation of new groups Native Americans indigenous populations were seen differently than African Americans you know most famously you could say infamously in Dred Scott where Native Americans are seen as a different population than African slaves African slaves cannot be or never happen cannot be American citizens Native Americans there is the possibility it is thrown out there and actually throughout this time period there are conversations it's unclear I'm going to do more research there are certainly conversations in the congressional record in the archives about creating states individual states under the northwest ordinance for indigenous populations Delaware was thought to be initially for the Delaware's an area around Indiana was also supposed to be a state so there were conversations of this we did not do so the limiting part of this is that as we confront the populations first on the continent and then as we go abroad we want to do Hawaii we hold back on taking Hawaii for many many decades because we don't want a state that would be a non-majority white state Puerto Rico to this day still controversially understood and uncompletely understood because of our difficulty in dealing with racial questions so whereas we contrast with some empires where it was fairly seamless that they reached out and grabbed these areas of land and used them we struggled much more with that it was far more easy to move people out of our land as it was then to actually create an empire in the form of the British, the French the German, the Russian and so forth so this is still obviously a work in progress but I think there's really interesting questions here going in both directions about the expansiveness and the restrictions of which race played third in my remaining minutes let me talk about law and law as I have to say law as laws legitimize or I think this is a great one laws politics certainly is typical in this regard and when most people think of the role of law in this time period the first cases that come to mind are the Johnson v. McIntosh, the various Cherokee cases in which the Supreme Court but alternatively McIntosh declared that there was a discovery doctrine and the Native Americans did not have a possession of the equal of the land as America because the U.S. had discovered this land on the flip side the Cherokee cases where the Court stands up for the Cherokee population in some form is ignored by Andrew Jackson in the final Trail of Tears I think in many ways this aspect of law, law as part of political pronouncements is less interesting and this is the kind of material that I would assume you would not in my two days here in a lot of what I've been hearing which is not just that law is a place of contestation but the law certainly structures the potential, the understandings the procedural aspects in which taking of land in which power occurs so just a few words to mention on that and a lot of this actually I don't know how familiar this is political science but political science is a powered base maybe Stephen Williams I don't know if that's a familiar or disciplines don't cross that well necessarily no, no just need an explanation the sense of it is that the first phase of power is the idea it's basically Josephine in the Cherokee case we have a confrontation, we see politics at work, the second phase is much more follows, procedural is the gender setting it is legitimizing demobilizing through institutional dynamics, I think that's where the courts are more interesting here so just a few examples, one is courts incentivize there's a great deal of land speculations Stewart Banner has written a book that D.D. tells a lot of this courts provide incentives to speculate on land you can claim ownership of land that the U.S. government doesn't even own speculating that the U.S. government will own it in 30 years and then you'll have the best opportunity to grab it so that's one where we this just allows for a rush of land speculation involving George Washington Thomas Jefferson, really any famous person whose name is on a building anywhere around the United States prior to the 1800s thanks, and in the final minutes a couple others, institutional enabling capitalist exchange that was mentioned in the last panel documentation and mapping as Chris Tomlinson has written extensively about, establishing a certain precedent that denies opportunities for Cherokees and the Cherokees were represented by lawyers in numerous cases where the lawyers themselves asserted precedents or accepted precedents that the Cherokees themselves did not accept and because their lawyers accepted them it went on record that they had accepted these early precedents so the establishment of this, the ability to use this and then the final which actually Laura she talks about the role of local state courts, state courts and local courts are incredibly important here Georgia has a completely different definition of the commerce clause and although that definition comes into confrontation with the Supreme Court there are many many years in which this property law is taken and land is taken and by the time it goes to the Supreme Court the process has already occurred the procedural aspects that taking has already taken place so the conclusion of this is by the time we have the famous trail of tears we're dealing actually with a very small population of indigenous people that are left and the fight over in the Worcester case that solidifies the end of this process this is already over and it's over because of the ways in which both politics and courts have already enabled the taking this is a final involvement but it was already over I made a very clever suggestion which is that we take our break now because she needs to set up a PowerPoint presentation then she needs to warm up and then we'll go right from Mariana to Bob Gordon's comments and then after that to discussion rank no more than 15 minutes we're personal to like I thought it was for me to get a group of athletes it isn't really a group of athletes it's a random page it's not the same as a group of athletes it's a random page I don't know they may not be as significant it isn't I'm not very keen on this I'm interested in Brazil that's changed it wasn't anywhere near as rich at least for a little while are you available to resume Mariana? I'm just going to go and make sure we've got everybody out of the lobby and then we'll start the lobby is empty the lobby is empty alright everyone let us reconvene for the last part of the last session Mariana so as many of you will know the whole area of Aboriginal rights is one that I'm a complete newcomer to but I decided to run the risk of doing an amateur job because I think that in terms of the questions that this conference asked us to address I don't think there is a more important issue for which you could say that it's more important to understand how it is that history became law, how history was turned into law how might actually became right but at the same time how the same history and the same law are now being used as resources by people who are trying to move in that direction which Walter Benjamin called the direction of justice which is the one that looks forward and backward at the same time so in the first section I'll briefly outline the challenges posed to the Canadian legal systems epistemological conventions by the Supreme Court decision to compel trial judges to allow and give some weight to knowledge formats previously regarded as mythical like many other Canadians I was favorably impressed by the Court's willingness to critique the Eurocentric assumptions of its own and its evidentiary rules and my initial motive in researching this paper was the simple one of finding out how subsequent courts have interpreted and applied their rather vague judicial statements about evidence in Aboriginal formats and I stress it's the formats that were at issue not the content evidence in Aboriginal formats that were made in the famous 1997 decision whose name you have here now this proved to be less than simple but in any case it turned out that the most important recent case is affecting the collective rights of Aboriginal peoples which are those developing the new doctrine of the duty to consult do not turn on either the substance or the format of the evidence presented by Aboriginal nations instead these cases set out to discover truths not about Aboriginal peoples or their history or their law but about the elusive entity that is the crown in pursuing the question whether the crown has a duty to consult Aboriginal peoples and attempt to accommodate their interests and the answer has been yes and I stress interest because it's the interest more than the legal rights that is activated by the duty to consult various courts have consciously or not engaged in an interesting of this Aboriginal labor that can be described as refurbishing the crown the duty to consult jurisprudence contains an interesting paradox that has thus far gone to the literature the traditional oral narratives that were at issue as whether they were admissible or not in the document case had long been dismissed by Euro-Canadians just as included as myths or legends but the story that they knew jurisprudence tells about the crown about its sovereign power and its self-imposed obligations is not a story composed of facts or of law it is rather a magical invocation of the crown's inherent features and virtues the noted legal scholar and Ojibwe leader John Barrow's remark concerning the document case that despite the cheers of victory with which have original leaders agreed on the decision the key political effect of the decision is to perform what he called an alchemy and as he says in the title of theoretical the conjuring of sovereignty but it seems to me that the more recent case is on the duty to consult feature white judges playing even more of a magician or shaman-like role then the conclusion would consider how the crucial role played in Canadian law by the honour of the crown doctrine has a constitutive effect on the much-trumpeted white aboriginal reconciliation process in which Canada, like Australia is officially engaged so the first section, knowledge, formats and the performativity of narratives um I'm here going to use John Barrow's own summary of the link between the knowledge formats and the actual substantive claims of an aboriginal title that repeat me so I I quote here in Dalgubuk vs. British Columbia the Supreme Court of Canada considered the hit seven and what Sumiton people's claims of aboriginal title and self-government fifty eight thousand square kilometres of land in what is now called of course British Columbia both nations have lived in this area as distinct people for a long long time prior to sovereignty sovereignty always appears in these cases of time which is sort of before and after sovereignty for millennia I'm continuing with a quote there are histories of recorded organization into houses and plants in which hereditary chiefs have been responsible for the allocation, administration and control of traditional lands within these houses chiefs pass on important histories songs, crests lands, ranks and properties from one generation to the next the passage of these legal, political, social and economic entitlements is performed and witnessed through feasts these feasts substantiate the territory's relationships so that's the end of the quote the trial judges cited that many though not all of the narratives of origin and possession that were told by the house chiefs were admissible but they then continued to deprive them of weight because they were a mix of myth and reality and he also refused to admit oral evidence in the form of territorial affidavits in addition a crucial fact that many commentaries have been to mention is that even though narratives that were said to be admissible were allowed in as exceptions to the heuristic rule a classification that clearly has the effect of making them structurally inferior to the usual expert affidavits presented by historians and anthropologists mindful of the loud accusations of racism that had greeted the trial judges ethnocentric dismissal of the aboriginal narratives the supreme court's judgment used the discursive and textual conventions that are used to perform Canadian multiculturalism to explain to the Canadian public the githam term adak if that's how it's pronounced I'm not sure which is a narrative performed at feasts by chiefs with performative effects and the wazuitan term kungaks which is a song with similar performative qualities then chief justice Antonio American self and embodiment of Canadian multiculturalism chastised the trial judge as follows and I quote the implication of the trial judge's reasoning is that oral history should never be given any independent weight I fear that if this reasoning were to follow the oral histories of aboriginal people would be consistently and systematically undervalued by the Canadian legal system end of quote but laminar allowed the trial judge to stay in face by pointing out that he did not have the benefit of his lameris earlier decision in van der piet aboriginal on the aboriginal fishing rights case which had laid down more generous rules regarding aboriginal knowledge formats and here's just a quote from van der piet a court to approach the rules of evidence and interpret the evidence that exists with the consciousness of the special nature of aboriginal claims and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions and engaged in and so on and I should you never have that a footnote here up until very recently you haven't thought that any fiduciary obligations that the Crown Maus are any aboriginal title you might be able to claim have to be found in the text of the Royal Proclamation of 1763 or some treaty or something but in these recent cases the courts have said that actually aboriginal rights are rooted in aboriginal people's own history and law which is clearly potentially very disruptive of the whole system the double book decision built on van der piet's vague multiculturalist extrication by providing slightly firmer wording on the question of aboriginal songs and narratives so Justice Lamarachas does a trial judge for dismissing territorial affidavits on the grounds that they have been ethically discussed in communities for many years rather than lying statically in archives which is what the trial judge really wanted them to have done to discount narratives because they are modified and revised into telling has the effect of making it impossible for an oral culture to prove its claims in court be pointed out then in effect of applying the standards used for historical documents to oral oral narratives may be that a society with such an oral tradition would never be able to establish a historical claim through the use of oral history end of quote however just how the Chief Justice would have weighed evidence in the form of Adak and Fungas is a question that was never answered because in the end the court simply ordered a new trial and also urged the parties to negotiate politically rather than re-litigate which to make a very long story short is what was actually already happening on the ground so while the doggone case was going on the province of rich colombia decided to actually go against its own history and start negotiating treaties with Aboriginal nations the most famous one being the Nishka Treaty which I give you a little example of here and more worryingly subsequent court rulings do not consistently follow the exhortations to not treat oral evidence as if it were composed of documents in the 2001 I guess yeah in the 2001 decision an eventual case that was launched by Ontario on terry mohawk's newly appointed Chief Justice Beverly McLaughlin again repeated a multi-cultural incantation which the Canadian years is like motherhood and atropias so completely uncontroversial so she said quote judges must resist fossil assumptions based on Eurocentric traditions of gathering and passing on historical facts all about but then she followed this by a qualification that amounted to a negation warning that quote there is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence the key term here is of course the rules of evidence so evidence of Aboriginal title does not have to look like evidence in a private tort case but well neither shouldn't be artificially strained to carry more weight than it can reasonably support in addition in one notable case the use of wampum belts as legal objects by fire rather badly Chief Stephen Augustine who you see here and his people argued that a wampum belt that was an important it was both law and a representation of law was made in the 17th century and they took the trouble to make an exact wrap without the ring to the core the original being unavailable in the Vatican aren't those however an anthropologist hired by the federal government went to the Vatican and had the original belt tested by western experts he then testified that the belt was made in the 19th century and out of the 17 and been given by aboriginals in Quebec and not another scholarship to the Pope so now this was taken as undermining the only evidentiary value of the belt but more worryingly also the credibility of Chief Augustine so the court concluded that while the Chief was thoroughly truthful his evidence was in error that's 13 years after Delgium looked at legal implications for Aboriginal people with the judicial exhortations of avoiding Euro-centric assumptions are still unclear however even that law perhaps especially in Canada can have a constipative effect on culture and politics it is worth pausing for a minute to consider the harm of seriousness with which some non-original Canadians are now treating not only aboriginal claims about rights and about power but aboriginal knowledge formats more generally an interesting example is found in the unusual textbook practices that were used by Justice Vickers who heard over 300 days of testimony concerning the land claims of the Chokatin Nation obviously moved by what he had seen and heard the judge chose to begin his formal judgment with a long preface that was on for about two pages acknowledging the essential work performed by interpreters and word spellers then instead of recounting the facts of the case he opens the actual decision with the declaration that links aboriginal peoples to Canada's official policy of multiculturalism so the first paragraph of the decision begins as follows I quote Canada's multicultural society did not begin when various European nations colonized North America rather multiculturalism on this continent had its genesis thousands of years ago so today's modern multicultural communities seldom if ever look back at the aboriginal roots of Canadian diversity and local this could be seen from a cynical perspective as ethnocentrically inscribing the official Canadian religion of multiculturalism in the time immemorial of aboriginal customary law however it could also be read somewhat more in a territory as teaching the readers of judgments who are lawyers not to think about aboriginals as a single group and to think of them as diverse within themselves and in keeping with this what he did was proceed to educate the lawyers to read cases in the specificities of chokatin history and temporality and I would love to know what the anthropologists in the room were familiar with other instances of judicial anthropology think of this particular example because I'm only familiar with Canadian examples of multiculturalist sort of nice social democratic you know judicial anthropology alright so to to go on to the second half a recent line of cases has established a relatively new duty to consult primarily in regard to natural research development that make up more significant financial implications for aboriginal peoples than the epistemologically and legally laborious establishment of aboriginal title so the leading case on this which is Haida Nation versus British Columbia you know puts the case as follows I quote the government's duty to consult with aboriginal peoples and accommodate their interests again it's interest not just rights so you don't think of the formulated red state they're interested in to be protected so the government's duty is grounded in the honor of the crime and I then usually thought it was grounded in the passage of justice is suffered by others so so the view that is the honor of the crime that is responsible for expanding the opportunities for aboriginal peoples to earn you know royalties and mining and lumber and also to be involved in participating in the management of natural resources is always presented without chapter or verse a typical text from Van Der Piet reads as follows quote the crime is a fiduciary obligation to aboriginal peoples with the result that in dealings between the government and aboriginals the honor of the crime is at stake because of the fiduciary relationship and its implications for the honor of the crime you know blah blah blah now there's also a knot after honor of the crime now this duty to consult doctrine is not strictly speaking new it has always been read into the royal proclamation of 1763 in general if you look at the sort of you know British empire of the jurisprudence of the late 19th century you often see some sense of a fiduciary obligation however in the past this was held to only apply to official Indian status Indians who were living on on reserves but they knew doctrine precisely because when grounds is the honor of the crime and not the character or the claims of aboriginal people now this duty extends to everyone all aboriginal peoples whether they're on reserves or not whether they're treaty Indians or not it's much more extensive and it also extends to the provincial crime which is very crucial because it's the province that owned the natural resources that owned the soil so now suddenly you know even the queen and right of British Columbia is obliged to do this consultation in a competition of aboriginal interests in the first case establishing this this duty to consult which was the Garen case in 1984 the Muscovite Nation had wanted to lease a bit part of its valuable reserve which was actually in Vancouver itself to evolve for us since interest in Indian lands most particularly reserves cannot be alienated except to the crime the bank had asked the Department of Indian Affairs to lease the land on its behalf anyway basically they were ripped off by the Department of Indian Affairs and then eventually they were able to sue the government now the British Columbia Court of Appeal said once the surrender of the land documents were signed the crown could lease to anyone on whatever terms it would but the Supreme Court found that there was a fiduciary obligation and that this had been breached and then you know what the court did there basically draw a handy distinction between the unfaithful servants of the crown those bad you know beer of us and the crown itself with the honor of the crown of course being attributed to the latter as the court said in Haida it is always assumed that the crown intends to fulfill its promises whether it they didn't actually fulfill them or not the point is it is always assumed that they intend that the interest in Indian is a question of knowledge format so I just have to redo some quotes from the Haida decision quote the government's duty to consult with the original people to accommodate their interests is grounded in the honor of the crown another paragraph it is always assumed that the crown intends to fulfill its promises another quote the honor of the crown requires that these rights be determined recognized and respected this in turn requires the crown acting honorably to participate in processes of negotiation the crown acting honorably cannot cavalierly run roughshod over our original interests the hypnotic repetition of the term the honor of the crown you know contrast with the striking absence of any reference to authoritative common law other sources now the honor of the crown is unpacking unusual detail in an interesting text authored by the 2D commissioner for the government of Saskatchewan his name is David Barnard in a lecture entitled the honor of the crown Mr. Arna you can see how I found it I was googling for this you know he suggests that rather than be embarrassed by the antique notion of the crown's honor we Canadians should embrace our mystical legal tradition without embarrassment since quote the honor of the crown reflects the deepest and oldest layer of our traditions of human rights in Canada so he says the phrase is more than that it is actually quote the conscience of the country end of quote I think this fits in with Victor saying that you can read multiculturalism into the immemorial time of Aboriginal Costa Rica now because I'm in the US I have to read this quote from Arna's text I quote isn't it any wonder that American colonists during 18th century educations that preceded their revolution appeal to the honor of the crown to protect them from men they described as ministers in doing this they distinguished between the crown per se which traditionally stood for what is just and honorable and the government of the day which was susceptible to corruption appeal to the honor of the crown was an appeal not merely to the sovereign as a person but to the traditional bedrock of principles of fundamental justice that lay beyond persons and beyond politics one of the most curious things about this text is that Arna seems to have forgotten rejected the crown itself and not just the king's misguided ministers but Arna is not alone in his refusal to contemplate the possibility of a post-monarchy future for Canada in a recent article denoted of original legal scholar Sarkesh Henderson also provides a rounder rosy colored view of the crown in his discussion of the government's duty to consult so the result of this is quite paradoxical as corns move to partially disavow some of the more racist moments in Canadian law and politics it turns out that radically changing what counts as evidence of legal possession by admitting of original knowledges in aboriginal formats may matter less than peering into the medieval mists to re-describe the crown in terms that make the feudal history of the crown converge with Canadian multiculturalism and Canadian human rights law and in conclusion I suppose that you have been bothered actually I said that you are the two sides of the Canadian turning over rule now these two languages are actually the same size if I showed you a little now you would see they are exactly the same size they are an either side rule and so it looks as if there has been a reconciliation kind of Australian style and they are both widely recognized by Bill Reid one of the most disseminated images in Canada but of course anybody who then examined all the other coins that I have in my pocket would see that it is the face of the queen that makes the money into legal tender and reach out to Roy's paper and read his paper which is actually very helpful you can show it 7 in 7 actually it is worth more than the US dollar some might say that questioning the ultimate normative ground of the sovereignty of the crown is simply unthinkable at least to judges however the sovereignty of the Canadian federal state is not quite as unshakable as one might think in vocation of the crown for one thing as the Supreme Court was deciding the Delhamu case the government of Quebec and the government of Canada were sharpening their respective legal nights in preparation for the all out fight of a sovereignty that was the Quebec succession reference that was decided in 1998 why the visibility of the Quebec Sovereignness movement does not seem to have had much effect on perceptions of what is at stake in the struggle over our original rights is an interesting question that I hope to pursue in the future so here is the conclusion after canvassing some of the complicated and mainly unwritten doctors about the crown in English law Frederick Maitland was moved to end the matter by stating quote as a matter of fact that the crown does nothing but lying the tower of London to be engaged by sight seers and therefore but as Frederick Maitland documented one of the most curious things about the crown is that it has the divine or perhaps it tricks their power of being in many places at once so it can be in the tower of London being engaged by sight seers it can be in the hand of Queen Elizabeth as she signs the law and at the same time it can be in the court of Canada which is the other name for the federal government the Queen in Right of British Columbia and so on Maitland's ghost might be interested to know that one of the most effective incarnations of the crown today is that which we can discern in the roving ruins of the Supreme Court of Canada where the crown is being quietly retrofitted so that it goes better with the new multicultural decor of the nation's state but in such a way as to firm up rather than undermine the normative fact of colonial the normative affirmation of the fact of colonial conquest and domination these are four extremely accomplished historians who are undertaking four incredibly interesting and far-reaching projects I'm just trying to turn this screen off because we're going to go on if you just put down the lid I'll do it I'll do it I'm so sorry I'm so sorry Chris Tomlans to whom once again thanks along with Catherine Vest for organizing this conference which I've seen some of the old friends and made some new ones Chris when introducing this conference sort of said it in contrast to the use of legal realists and particularly the legal realist description between the law and the books and the law in action actually the regimes of the conference have rather reminded me strongly of another set of legal realists whose spirit I'd like to invoke as kind of residing the spirits floating kind of like butterflies over this conference the ones I have in mind are the ones I have in mind are Wesley Hofeld Robert Hale the Coens not the brothers who make movies but Morris and Felix and Thurman Arnold and I'll tell you why in a minute the panel is called Reassessing Sovereignty what we have lots of examples here are the principal delegated sovereignty this is what brings to mind Morris Cohen the elder and his famous property of sovereignty property is simply nothing more than the power to private owners the powers the and resources of government the delegated sovereignty as I'll say in a moment is all over at these papers the notion of the multiplicity of sovereigns or legal pluralism a very strong interest of the younger Cohen Felix in his administration of the Bureau of Indian Affairs in this great promoter of the rights of Indian tribes the the Hofeld the influence is most in the very large number of examples the what Hofeld described as the legal relation of no right of privileges and immunities the privileges being delegations of state power in the form of permissions permissions to act freely even to act in such a way as inflicts harm on others the correlative privilege being immunities that is to say that even if you do act in such a way nobody can legally nobody can legally stop you these papers are full of another form of these privileges comes in what Mary Ann Constable calls legal silence is the law doesn't say you can't do it therefore maybe you can the and also in the form of exclusions the law is an instrument for creating law-free zones like designation of enemy combatants as people who can be locked up in a place without law such as Guantanamo the the law of course as the famous site of contestation as to say as a medium for fighting about sovereignty is everywhere in these papers and the law also as a law also as a means whereby the state and legal system where by the state and legal system the grants out the makes journal persons by granting out names and categories stores people in classes and ranks and also personifies journal subjects it endows them with rights and powers we do have a wonderful example of the law in British India endowing idols such as Shiva with journal powers the other examples the are abundant here of defining persons and defining legal agents to represent them the and law of course is also as Norman Spalding and Marianna the other one the is a law as a medium which generates the possibility of the resources to resist its imposition anyone who makes a legal claim is like to be that like somebody is starting a defense or a counter claim to that claim so the mere exercise of power delivers to people who are resisting it some resource through legal form delivers to people who are resisting it the power to resist it to go from the very general to the specific here let me talk a little bit about each of these of each of these papers I should also mention popular sovereignty the not as an abstraction but as as a series of examples of lawmaking by ordinary people the now Paul Freimer I've got these in kind of an arbitrary order which is just the order in which I read the papers which doesn't correspond to the order in which they were presented the Paul Freimer is a fascinating paper on building an American empire the focus is on law as an instrument of aggressive imperial expansion by mostly inconspicuous and delegated forms of sovereignty the government had two big assets one was the power to legalize, to ratify, to conclose the legitimate authority by granting out or delegating or immunizing or choosing to tolerate the private action and it had land which could be traded for performance of empire expanding acts in which the primary one was ridding the territory of its previous inconvenient inhabitants and Paul also explains that you combine the two together and the government has the a third resource and that is the resource the legitimacy to make claims on potential the land or territory and the claims themselves can be used as an incentive as he points out towards speculation it makes the claims there's some possibility in fact it's a considerable possibility that the claims will be some time plus the possibility of their realization is an asset which can be traded the government here is acting very much through delegated powers in the Morris-Cone very much as today military diplomatic functions of empire contracted out to mercenaries and proxies and the equivalent of land is government's large ass of the general funds of the taxpayers contracting out government functions is not a new story here it is as Paul suggests the means by which a state with relatively centralized administrative apparatus is able to extend its reach contracting out government functions through letters of marks and bounties and rights to collect user fees land grants and of course business corporations are among the delegates Framerate is an example of military veterans used to settle in Indian territory and to pacify it by fighting and eliminating its Indian inhabitants one could add later examples like the private tax collection agencies, tax farmers or Pinkerton's or company guards deputies, marshals or private armies to carry out legalized employer violence against strikers members of criminal gangs or dissenting political groups recruited as undercover informants plus ecometatas, lynching parties encouraged by authorities to enforce the racial caste system and more benignly in Paul's example private lawyers enforcing the civil rights act the usefulness of some of these obviously is that you don't have to have your own personnel doing it but it's also a way of avoiding accountability and limits on conduct Abdul Jackson's private Tennessee militias recruited from militias of soldiers marching into Florida he also has many examples of uses of private law rules to define property rights doctrines of use and occupancy the property rights is formed by settlement and cultivation rather than by roaming around adverse possession for squatters actively promoting settlement policies that will change the facts on the ground create de facto possession that will ripen into legal ownership the again, Hale and Hohfeld this is much an exercise of the sovereign to decree no right legal or de facto immunities as to have an active bureaucratic state imposing enforcing rule of thought positive action many of the actions that that well, here's more attention to the grant to fee simple property rights the grant of rights in that form automatically excludes other climates the not just private action that creates facts on the ground but it's actually instigated and motivated by state policy the similar nowadays you see in Mary Annabel Verdi's work the reverse course of recognizing about original rights is injuring other customary law for the interpreting treaties and sources of Aboriginal rights the John Witt gives us another series of examples of the use of the international law framework as sources of rights for the discoverer or conquerer defining appropriate sovereigns the one example that he gives in his paper is the states claiming sovereignty by virtue of the fact under the commerce clause by virtue of the fact that they that Indians occupy that holy within their state surrounded by whites and therefore they claim an example of federal regulation under the federal commerce clause John Witt raises another theme which you all see in Mary Annabel Verdi's narrative bringing a social practice under the rule of law to regulate and tame it the extends yet equal recognition the Verdi's example is that if land claims are regulated in Canadian court even in a way that's relatively the charitable or generous towards the Aboriginal claimants when the court's jurisdiction was recognized the sovereignty of the Canadian occupiers recognized as well there in Witt's case there's an argument persistent argument about whether war is just too horrible to try to regulate the many people look with contempt on the idea of merely having a law of war because it seems to it seems to legitimate a practice which is too monstrous to even completely legitimate a similar debate today about torture whether torture should be intimately legalized or firmly kept out of the scope of extralegal conduct the John tells us that there are two theses the clenching theses that is to say there used to be international controls on law controls on war these have faded and the novelty theory the conduct of warfare is governed as never before by law employers he says they're both clearly wrong he really uncovers this quite fascinating wealth of material about context and situations in which arguments deriving from the law of war were actually used and there is simply there are myriad controversies here and a very rich variety of invocations of law of war based arguments respecting the rights of British creditors after war claims to territory in Florida and Texas the both of the clenching novelty theory is John Witz sees his way of fending off the gruesome past his examples are fascinating the Indian wars involve a collision of the norms of military cultures Indians think mass slaughter is barbaric the whites think that torture is barbaric the resort of each side to its favorite relatively civilized tactics makes it seem even more savage and inhuman there's a huge role in this story for exclusions from the ambit or scope of law non-christian peoples or savages as outside the law of war came to Wheaton in their international law treatise used the law to exclude the Indian conflicts from the scope of the law of war the there are also populist militias in this story here Witt's story overlaps with Friar's in its description of the use of militia citizen soldiers to do the work of expanding empire in Florida and Texas the international law figures also as a source of arguments over state building the Hamilton uses it to try to equip the federal government with unwritten inherent powers the slavery question is implicated too could inherent federal government powers include the power to abolish slavery did war authorize the seizure of private property eventually of course war power would provide the initial rationale for emancipation as well as conscription and commandeering of property for civil war efforts the protection of slavery of private property ironically John points out the the law of war was often invoked so that the protection of slavery became the chief test of whether an armed conflict was or was not civilized the Mary Ann Mulvaney's honor of the crown in the Aboriginal land plains is again an illustration of how the default ordinary rules of law controlled who is allowed to define property well it's also a very interesting illustration of how sovereignty is built through the assertion of magical powers the comparably sovereign immunity or king can do no wrong doctorates to Ernest Cantorovitz famous kings two bodies there's a mortal body of the king and the immoral body of the crown she gives an example of the honor of the crown the policies of paternalistic protection while maintaining control the the great irony of Mary Ann's presentation which is as she points out is that the courts that are asserting this mystical honor of the crown are courts that by and large have been disparaging all of these mythic claims in oral tradition to land whereas the assertion of the honor of the crown is grounded in pretty much nothing as far as anyone can tell it seems to have no legal prominence besides the assertion that the robust assertion that it exists that doesn't make it unusual a lot of legal power is built on robust assertion of precisely this kind one thinks of the small group of a weak gentleman being in a small room in Philadelphia in private writing a document which begins, we the people there's a classic case of bootstrapping going on there so she shows how the rules of evidence of aboriginal language tend to result in the practice of downgrading oral histories of aboriginal or indigenous peoples or their original narratives or oral evidence of the forms territorial affidavits although recently she says there's been a trend to treat them more generously the by courts who don't really however spell out what this more generous treatment would be only suggesting these quotes are just hilarious I think she's always suggesting that they shouldn't go so far as to risk crashing the ordinary rules of evidence the actual assertion still strongly privilege European histories of original documents now she's just a more promising legal legal for indigenous peoples found in recent cases saying the Canadian state has a duty to consult them on matters of natural resource development source of this duty is not to be found as she says and correcting for passing justice but rather in the honor of the crown a source of fiduciary duty extended from prior use as applied to Indians living on reservations to aboriginal peoples and nations generally the honor the federal government and apparently the provincial governments as well as well have succeeded to the British Crown's duty as the member of patriarch protecting Indians from media settlers and racist provincial governments the to the crown was an undifferentiated unit that has described many pleasing characteristics of a quayside fiduciary I say quayside because Marianne makes clear that the courts all said the crown's duties are not to be confused with those of an actual trustee what those duties are and what they come from is not explained as I say everything's loaded by assertion of these two words honor and crown here I have to evoke my unrealist feelings common that this transcendental nonsense of the functional approach prom is not any actual existing government legal system it is the mystical body the of Cantora that sustains two bodies that is the mortal man, mortal man the immortal kingship the scholar says it invoked principles and justice that lie beyond persons and beyond politics it's a little hard to think of what legal arguments under such a standard it looks like as Marianne says it's largely a matter of the virtue of the monarch not the justice of the of the claims but the indication of the mystical body is not all together unlike the indication of the founders or the original understanding of the American constitution the over that matter under classical notion of the police power the the until it was tamed and legalized in the late 19th century the or for that matter from the indication today of the duties of the president to protect the nation from threats to its national security an equally mystical clubbing and unspecified set of powers these are all these are all concepts out of which as Carly Wellins said in another context as out of a magician's high hat anything may be taken that is first put in the the overarching point whatever the crown may be invocation of its duties takes this assumed the resolution of a more fundamental underlying issue that the various successive governments of Canada are sovereign of these nations and territories the very issue which of course is sharply raised by but much more successfully by the threat of the K. Big Boss's succession movement a real challenge to sovereignty because there are real political needs to carry it out more headwraiths on the piece kind of a with this wonderful book that's kind of a counterpart to Paul Farmer's project Farmer starts with a paradise of government action as reused by a centralized bureaucracy of public officials then he shows how government powers contracted out to proxies, delegated, exercised indirectly by creation of incentives bounties and preemption rights the Edward story challenges another paradigmatic idea of law the formal law of the books the would reach a husband called the Klogos or more formally the more broadly the statutes and court decisions of the law state law made the hierarchical summit of the metropole in this image spreads down to government provinces and peripheries this approach legal journalists call this approach evil centralism this approach she says distinguishes law sharply from society lawmaking and applying from unofficial lawmaking more making and enforcing and in particular rules of rights from the peace a conception of laws order arising of settling conflicts the efforts of lawmaking of local order is a kind of collaborative communal endeavor the ordinary people all ordinary people in extremely hierarchical social relations not exactly in the people themselves as Larry Kramer of the people outdoors but rather as participants in the process of norm adjustment and enforcement aimed at producing public order in the peace this took place in circuit courts and jury trials but also in a whole host of other local legal venues hierarchical but also allowed as you said a wide range of participation by the subordinates like the poor women servants even slaves all people who had a more lurking formal legal system would be shut out as people without rights in Edwards account this system of local law enforcement exists side by side with the venture that comes to be displaced by a more formal system of law governing property rights staffed by lawyers applied regularly and for me an interesting question arising from this work Edwards is right to characterize legal central societies from local societies or whether or not the all societies have elements of legal centralism and a plural legal order or broad pockets or enclaves or reservations or reservations of local informal order I'm trying to think more of the latter that is to say that we don't see with the development of legal centralist institutions and elimination the local sources or pockets of order we simply see a redistribution of the take a look for example at Ariela Gross's wonderful stuff on race trials we have a method of settling questions of what race people are which is really quite distinct from anything that's prescribed in the formal legal order it's a negotiated race the more performative as she said proportion of course is of each is a matter of degree and Laura's convincing when she suggested this on the legal reformers very much like modern society is eager to bring the rule of law to last develop societies was to extend the reach of the formal system so as to occupy and displace the local but along with the extension the formal system comes a long list of exclusions for protections of the formal law exclusions for legal persons but in participation with governments and what those exclusions do is to simply re-delegate the re-delegate to whom you could call local sovereigns the power of governments be over their over their pockets or M-class for example there's a time in English and also in American the labor law where if the employer or the employee wants to adjust the labor contract they have to go together to the magistrate and get it done the magistrate gets kicked out of the picture law in the official set gets kicked out of the picture the when labor law is simply reassigns essentially the power of governance over the workplace relationship to the employer nominally to contract the facto to the to the employer the pluralism of sovereigns is preserved but under the guise or the appearance of contract and that really is the last point that I want to talk about a little bit these are the magical powers of law to make the state and coercion and its appearance disappear law as the magician creating the magic disappearing act the coercion and violence disappear under forms of delegated sovereignty and under forms of consent that are legitimated by law the society and customer constituted and contractor so simply to exclude the coercive force of state power that I think is one of the greatest the accomplishments of law its ability to accomplish its own vanishing or appearance of vanishing through the exercise of these quite wonderful alchemical powers the coercion and violence disappear in these institutions like the market or for that matter the laws of war now some of these papers are not just interesting as examples of more general theories that isn't really why we do this work and that isn't really why we enjoy it because it it provides us tremendous illustrations of more general theories, we're interested in that but we're mostly interested in the stories that are told here and these are extraordinarily interesting ones all four of these papers are papers about a researcher looking like archeologists for buried cities uncovering them, dusting them off and through the power of narrative bringing their inhabitants to life the recreation of forgotten and neglected worlds of experience so strange, so new but also, so oddly familiar in the United States the political identification of the Pachia and Machia Navajo gets lost in as much as the absolute democracy of those tribes won't hold one member to the dictates of even the cheat when that saying comes you're talking to the wrong Indian they literally mean you're talking to the wrong Indian they mean you cheat it but not me so when you look to the tribe, the nation even the actual individual Indian how do you identify a political entity with whom the Crown owns the ability to provide investment yes, th