That is the final session of the Law As Conference. This session is instantiations, law, sovereignty, justice. I'm trying to figure out how justice wound up here and not elsewhere. I think they have justices everywhere. I'm an optimist as I previously said. The idea behind this session, building on Chris's idea, but I'm 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 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, respectively, 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 the 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 physicians 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 nationhood at 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 in life 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 Frymer is associate professor of politics at Princeton and for the current academic year is the acting director of Princeton's Program of 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 wind up in 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 understandings, political parties, the racial politics of hurricane, Katrina and affirmative action, and the role of law in the historical development of American territorial expansion. Marianna 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, Every Day 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, Science, Meetings, Myths, and The New Police Science, The Police Tower, and Domestic and International Governance, and with Peter Goodridge, Nietzsche and liberal theory, 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 maybe Daniel, perhaps not. His subject areas are contracts, American legal history, evidence, the 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 of her mental homes, and I need my colleague Joda Manto to pronounce this. It's an Italian story. Cricce del diritto. Critical legal history is the 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 History is in 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 webpage. The book is out, so 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 Ariel'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, the way our construction of understanding where authority comes from and how it's structured is very gendered. 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 would follow the logic 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 said 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 of 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 Nikola Storing's, however, is not just whether the local level was more important than the state and national levels in this period of US 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. Nikola Storing studied 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 very particular concrete contexts 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 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 content of public law in the post-revolutionary period, because the institutional organization of the law was different 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. But 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 with 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 that offers an 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. 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 the 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, the law. I was sort of assuming that it was actually a readily identifiable body of rules enforced uniformly by centralized institutional structures. Seems pretty reasonable. It was an assumption, however, fraught 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 in centralized institutional structures so we can't find them and we could at least talk about their beginnings. And there's nothing inherently wrong 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 long of which are useful. The bags are so full that there's really not much room for anything else, particularly contradictory or even complicating evidence. In fact, legal historians tend to explain 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 relied 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 find 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 a 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 close neighbors who gathered 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 a 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 on 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 a array of texts and principles, including stuff generated at the state level, as potential sources for authoritative legal principles. So in localized law, you can quote your mother-in-law and 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 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 than 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 that this was 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 peace, not in their own right. When their actions disturbed the peace, whether through inadequate or excessive use of authority, they experienced censure, keeping the peace 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 local observers in local communities in which an individual's credit, which was also character or 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 and testimony based on individual's credit as well as on personal prescriptive markers of status, such as gender, race, age, or class. The words of subordinates could assume considerable legal authority. The effects of legal decisions also remained with particular people involved because the system was so 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 peace 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 peace, people have a different relationship to the law than is positive in much of the historiography. People, 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. I don't think you can do this in the 20th century, but in the early 19th century, we needed to take note. And 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. Law regulated them. They did not produce it. That relationship between people and the law shifts the basis of analysis from the outcomes of cases to 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 core 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 and 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 I'm getting lost here. And so they didn't treat these claims as expression of rights. And so to view the 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 sharper focus, I think does change our view of the entire legal terrain in this period. Our entire legal terrain that also includes state and national law. In legal history, the pejorative connotations so often applied to all things local back to post-revolutionary period and leaders then who were 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 for some property issues and then in public matters, they also compiled documentary sources and constructed narratives that obscured 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 border. And instead, they cast this whole system, localized law with the piece, as an archaic throwback, which inevitably gave way to progressive change as 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. They're rhetoric, so powerfully articulated in the archival sources, has led historians themselves to embed this vision within the historiography. The 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 Annabelle period and long 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 on. Neither the legal system nor reformist narrative of legal history worked as they portrayed it. These dynamics suggest 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 a 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 might think so, but a lot of people in the United States do 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 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 was the perspective so as to include the south and other areas of the country within narratives of legal history? That contrasts between localized law and legal developments at the state level with their emphasis on abstractions and uniformity, rather than comparing states to other states, highlights 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. Who form-minded southern leaders do have political principles usually associated with the liberal state in the north. Prior to property, individual rights and a limited 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 unrepresentative 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 portions 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 same principles that we usually associate with individual liberty, democracy and equality were mobilized in defense of slavery, the nations most put in symbol of charity and repression. We usually treat that slavery as an exception that can be explained by as diversions from national principles but the system investing some with rights in the laborer 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 only by political struggle which also confounds our notions of the separation of law and society. And now I've come to my conclusion here so I'm head first officially. The piece is conceptually useful because it reinforces approaches that already define 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 local 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. Who defines a law? Where is it 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 others. Rather they lead to different historical narratives in which it is possible in 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 American history or general Southern history. One legal historian among 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 legal history can make it difficult for a book to find out why their audience because it is presumed to be largely irrelevant to other kinds of fields. 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's not a year ago was it Chris 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 the laws of war which is to say of the international, body of the international law that purports 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 a hundred thousand 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 left 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 in John Kalmarov yesterday, the law as site of contestation when these two things are not closely related seemed to be the place where the theory of the world 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 left to Chris's invitation to think more broadly, more generally about theoretical moves that might be made in 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 law stamp in the laws of law 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 segway I became about it actually, the more I thought largely thanks to people in this room that it was actually caused for celebration not dismay, the state of the field. And I thought I'd say a few words about that. It seems to me that the state of the field as it exists right now has sponsored a huge growing number of really interesting studies. There are legal historians working in all sorts of different places around the country and 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. And so I thought what I'd propose 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 provisional purposive 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. I call it 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 and still 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 many papers 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 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 to 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 to take for example a marketing or tort settlements or all these things that happen in the deep recesses of the law that Barbara is 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 because they don't have time and there are very few law professor jobs awaiting the person who's counted the tort settlements in California for a particular 10-year period. That's in some big intervention. So there's an industrial organization problem in the law school side for filling the theoretical framework that we have on the history part of the 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 be looks good. It's the industrial organization of the field that has held back the production of new knowledge within these disciplinary frameworks. But I don't want to be too pessimistic about this industrial organization problem. It seems to be 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 is how much 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. 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. It 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 comments to the paper, a few things 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 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 declension thesis. This story, once upon a time the United States of America understood the value of the laws of nations or paid the laws of nations paid field teams the laws of nations but somewhere along the line and there are a variety of dates at which different variations on the declension thesis put it 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 declension narrative. The alternative narrative is the novelty narrative. And this is a narrative you can see especially experts on military law on the laws of war especially from inside the military people who are astounded by the 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 two Reuters reporters were killed. One of the stunning features of the events in the 2007 video was the rule bound character of the extraordinarily destructive violence that you were watching. The helicopter pilots were excited whether or not to fire are completely guided by a set of rules of engagement that they have which they appear to follow scrupulously notwithstanding that it's capable of producing and does produce really dismaying collateral action. 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 be right. They're actually at odds with one another. 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 on the other. 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 that we need to know about in order to write a better version of the history of this part of 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 of Ben Franklin on the topic and the idea that private property should be immune from attack during the war. 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 wars as long as there's any private property and that's not only section one, section two is you really should try not to 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 meaning of an explanation for why we might see it. So one of the things I'm trying to sort out why is that we see this novel departure in the American characterization of the rule about private property. And it occurs to me, and this goes to my comments earlier about my sense that the frameworks, the analytic frameworks that we have are actually relatively useful. My sense is the only way I'll be able to answer this question is by reference to precisely 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 explained by reference to some instead of 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 of all nations perdition at the end of the 18th and beginning of the 19th centuries. There will 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 influences in this situation as in some of the 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 the 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, and usually it's justices on the U.S. 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 field with a theoretical and doctrinal moves made at this level of abstraction. And 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 in 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 decide that the history of the laws will be represented by the treatise writers and the manners. And it's now old hat in this room that we can't write legal history around the elite jurists and their treatises without 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 just about how I've come to think about that right now.  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 leadens, 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, whose their essential job is to argue law of war at sea kind of cases. So I thought we'd have a culture clash with a 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, that Jackson and the Tennessee militia that marches into Florida, for example in 1818, are in large 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 on conflict with American Indians. But it's 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 class view would suggest we'll see actually the laws of war run through wide groups in early American people history and we'll actually see lots of dialogue from the top and from the bottom. Now as I was referring back to my earlier comments, you'll notice again there's nothing theoretically novel about this move. This move is actually quite because it's quite comfortably in the Theoretical Apparatus of the last several decades. It's just that we didn't know anything. We still don't far too little. I still know far too little about the content the now naive empiricist now in my naive 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 and 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, articles that are pouring out about the history of international law. One surmise that I was more by and by in 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 exactly 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 have been working. So things like the legal construction of the state as an entity as a force in 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, purposeive, 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, purposeive, naive empiricism and especially a provisional, purposeive, naive empiricism about international law which we just know far too little about. Thank you. Welcome. I want to thank first of all Catherine and Chris for inviting me here although Catherine said I'm at Princeton have a couple of books in Princeton but I'm actually in 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 that I left right before this economic crisis and I'm still on or was until like three months ago on the email system so I got to see all the emails on the cuffs and it was really kind of excruciating and feeling even worse that I in some sense abandoned ship not to say it's not it's nice on that other side that's a little lie but but anyway, thank you and 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 they're already asleep so I appreciate that most of you are sort of at least halfway you know I saw I saw him as a Cornell West speaker for the first time two weeks ago and I realized one of the things he does he's a brilliant speaker and the main thing he does is so well he's brilliant but one thing he does quite nicely is he actually he starts very quietly and then everyone has to lean in and kind of pay attention because he's being very quietly and then he starts to rouse and boom things to learn as you pay attention I'm interested in the forward and development of 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 ride by Empire retain some notion of a nation state an imperial nation state that dominates terrain outside of its sovereign borders through a combination of military violence or some combination of military violence political sovereignty, economic power and national hegemony popular conversations about American Empire have tended to begin this is the most recent era with George Bush the second, perhaps George Bush the first, perhaps even going back to our Cold War but in this conversation it is the notion of the US Empire as a military power as a nation engaged in battles on foreign land a nation imposing democracy putting those two words together purposely 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 that's usually 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 are well-plated out particularly in history in somewhat illegal history the ideas and certainly the aspirations of the Empire of the United States begin much further back I begin my paper with a few quotes as examples Alexander Hamilton in Federalist One the first Federalist paper 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 and empowered 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 Wrench and Liguan stood the miserable of oaths and savages we beheld the foundations of cities laid and that all probability will rival the greatest upon Earth so the aspirations are clearly there as Daniel Hulsbosch his aptly noted that when the founders first wrote the Constitution they thought about American and American Empire they looked at an Empire both backwards and forward we came from an 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 also 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 findings and conversations about the United States so this paper is an examination of this first period of American Empire the taking of the U.S. Consulate before we go overseas I do hope actually as I expand this paper there are other aspects of American Empire even in this early period Liberia the West Indies Latin America 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 deep in the size 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 actually treaties with European empires as we know Napoleon and Louisiana purchased a quite uncontraving depending on the world bless you a fairly uncontroversial process the second was more complicated and that is of course possessing the land much of this land which 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 taking this land it needed to be the question one could argue that American expansion was not about the government at all about settler violence about a government that was too weak 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 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 of the same kind now Ferguson who's recently written about American empire skirks over this period in two or three pages saying this was easy, this was an early process disease, weak opposition there isn't really much role for government here in terms of acquiring and 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, lacked the ability to have an empire even if it was an aspiration it was unable to actually partake of this role I think all these approaches are misleading in important ways first it wasn't entirely easy as Ferguson suggests by counsel the US government alone and these counsel are controversial by counsel the US government in 1800 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 if we're more alert, maybe about 1.7 a sizeable population this is not a 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 prior to the Civil War second, even if we think of the government as weak, the government is certainly not irrelevant, Stephen Scorana a political scientist has importantly corrected the notion of Tocqueville and Marx and Hegel who looked to the United States they didn't see a state because their view of the state was downtown Berlin or downtown Paris the big bureaucracies and the buildings stood there, there was a sense that the United States did not have this Scorana 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 Scorana's intervention about a state however, in important ways prohibited the way we think about states of 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 it is 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 Scorana his notion of the state was the development of a very varying state of the Vibrarian bureaucrat the capital city with rows of state buildings that house regulatory apparatuses that are able to oppose their will of society given this construct that Scorana has created a number of scholars both within politics and law and in history have attempted to challenge it Scorana argued we had a weak state and recently we've had a number of scholars most notably probably for this crowd people like William Novak and Brian Ballo 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 this work is engaged with the creation a sense that the state was more powerful and of course Novak, Ballo, Scorana 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 someone like Lou Hartz the question is why no socialist in America, why does America help and further behind other parts of the world in creating a real regulatory state Barack Obama sometimes asks this question himself these late at night in some ways I argue this is limiting in terms of thinking of 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, Hegelian Scoronic form of bureaucracy in the bureaucratic state building for instance there's now a recent literature on empires a comparable literature that is showing that successful empires, as an example Karen Barney in her work on the Ottoman Empire that successful empires are much less rigid they're actually flexible, they're able to adapt to new situations, they're able to be dispersed and yet they're able to retain power they're like trees that can bend but will break as opposed to notions of strong states that are strong but cannot reach out to these peripheries in such similar ways so these are some of the ideas that inspire this and I focus on three components of this government activism in America state and empire building during these early years the idea I think is that this also 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 a law the question is 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 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 it it's post 1960 statutory developments the most dramatic example of course is Civil Rights Act of 1964 by providing private lawyers a lot of its enforcement role here's a state coordinated role enabling private players to take the state and nonetheless have an authority I should say here that this is not the same as entirely public control once you provide private authority, any form of 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 and serve ways that are 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 these territories when we think of the 19th century and 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 and 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 it has classically defined and we also don't see settlers out of control we see again this term that was used in 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 rule word for service now what's interesting about this are a few things millions of acres are given out millions of acres of land these military bounties and other forms three interesting things about this first where, where is this land that they give out the land tends to be consistently on the frontier on the borderlands directly attached to indigenous populations where indigenous populations are biggest where indigenous populations are often most combative this is strategic where the land is provided we have a vast space of land to provide is strategic and 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 we push lots of people into small areas an example of this is actually later than the time period I cover but the Homestead Acts they continually provided a very small amount of land and people rushed to the land the notion of the Oklahoma Sooner for example 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 does of course 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 there's a small amount of land and pushing people to be spiced third who and this is of course militarized populations military bounties provide not just opportunities to give land to former veterans it also pushed people with military experience in these lands it pushed them on the places in other places without using military bounties the government passed laws such as the Armed Occupation Act of 1842 which said that we would be given 160 acres of free land if a. they'd settle the land for seven years and b. they owned the gun defend the land yourself so this process and the Armed Occupation Act this followed the Second Charity War sorry Seven War in which we had struggled and lost into the language into the paper if you'd like to read it the language of international testimony is all about it 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 the state is using private forces using sellers to promote public goods in this way I'll leave that as one the second issue is the role of race in 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 race in this case is interesting and that is both an energizer and an inhibitor of empire is of course an energizer fusing of slavery fusing of conquest these provided the energy, the aspirations the ability to move quickly through terrains of populations with little fear of what these populations constituted so it energized populations in land of course also the emotion and anger of the races that came from this also helped further energize and infuse these opportunities it's in their mind as well a 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 took place 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 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 most famously you could say infamously in Dred Scott African Americans are seen as a different population than African slaves African slaves cannot be or never have been 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 as to how strong these conversations are but certainly conversations in the congressional record in the archives about creating states individual states under the northwest ordinance Delaware was thought to be initially Florida Delaware in 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 struggle with what we want to do Hawaii we hold back on taking Hawaii for many many decades because we don't want a state of Puerto Rico to this day still conversely understood and uncompletely understood because of our difficulty in dealing with racial questions 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 German, the Russian and so forth so this is still obviously work in progress but I think there's really interesting questions here going in both directions about the expansiveness and the restrictions which we played third in my remaining minutes let me talk about law and law as I don't really know what to say law as laws legitimize or I think this is a great one law as politics certainly is typical in this regard when most people think of the role of law in the first cases that come to mind are the Johnson v. McIntosh the various Cherokee cases in which the Supreme Court alternatively in McIntosh declared that there was a discovery doctrine and the Native Americans did not have a possession that was equal on the land as America and the US had discovered this land on the flip side the Cherokee cases where the court stands up for the Cherokee population in some form 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 because I've been nodding throughout my two days here in a lot of what I've been hearing which is not just the laws in place of contestation but the law certainly structures the potential of 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 thought I don't know how familiar this is in political science but political science is a power base maybe Stephen Williams I don't know if that's familiar disciplines don't cross that well necessarily the explanation of it is that the first phase of power is the idea is basically Josephine's Cherokee case we have a confrontation we see politics at work the second phase is much more spotless procedural is a gender setting it is legitimizing demobilizing through institutional dynamics I think that's where the courts are more interesting here and so just a few examples one is courts incentivize there's a great deal of land speculations and 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 and really any famous person whose name is on a building anywhere around the United States 1800s and in the final minutes institutional enabling capitalist exchange documentation and mapping as Chris Thomas has written extensively about establishing a certain precedent a certain precedent that denies opportunities for Cherokees the Cherokees were represented by lawyers in numerous cases where the lawyers themselves asserted precedents or accepted precedents the Cherokees themselves did not accept and because their lawyers accepted them it went on record that they had accepted these early precedents 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 a 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 over 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 of this and both of them but it was already over made a very clever suggestion which is that we take our break now because she needs to set up a PowerPoint presentation and she needs to warm up and then we'll go right from Mariana to Bob Gordon's comments and then after that to discussion so Ray, no more than 15 minutes we're personal I thought it was for me to go to the bathroom I didn't really agree with Bob because it's a random page just not the same as in front of the bathroom they may not be as much as significant it isn't that's changed it wasn't anywhere near as rich at least for a little while are you about to resume Mariana in Worcester 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 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've been 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 I don't think there's an 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 assumptions of its own evidentiary rules and my initial motive in researching this paper was a simple one of finding out how subsequent courts have interpreted and applied the rather big judicial statements of evidence in our original formats and I stress it's the formats that were at issue not the content evidence in our original 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 our original 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 of 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 them 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 unnoticed in 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 European Indians just as included as myths or legends but the story that the new 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 Evo Scholar and Ojibwe leader John Barrow's remark concerning the document case that despite the cheers of victory with which our original leaders agreed in the decision the political effect of the decision is to perform what he called an alchemy and as he says in the title of the article the conjuring of sovereignty but it seems to me that the more recent cases on the duty to consult feature white judges playing an even more of a magician or shaman like role then the conclusion would consider how the crucial role played in Canadian law by the honor 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 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 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 the before and after sovereignty for millennia I'm continuing with a quote for millennia their histories have recorded the organization into houses and plants and with 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 tribal texts cited that many though not all of the narratives of origin and possession that were told by the house chiefs were admissible but he 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 heater study 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 gift and term Ida if that's how it's pronounced I'm not sure if the narrative performed a feast by chiefs with performative effects and that would suit and term kungaks which is a song with similar performative qualities then chief justice Antonio of America himself an embodiment of Canadian multiculturalism chastised the trial judge as follows and I quote the implication of the trial judges reasoning is that oral history should never be given any independent weight I fear that if this reasoning were followed there would be personal people who would be consistently and systematically undervalued by the Canadian legal system end of quote but La Mer allowed the trial judge to stay faced by pointing out that he did not have the benefit of his that is La Mer's earlier decision in Van Der Piet a British Columbia 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 a consciousness of the special nature of aboriginal claims and of the evidentiary difficulties improving our rights which originates in times where there were no written records of the practices, customs and traditions engaged in and so on and I should have that a footnote here up until very recently I haven't thought that any fiduciary obligations aboriginal title you might be able to claim have to be found in the text of a royal proclamation of 1763 or some treaty or something but in these recent cases the courts have said that actually our original rights are rooted in our original people's own history and law which is clearly intentionally very disruptive of the whole system the double book decision built on Van Der Piet's evading multiculturalist extrication by providing slightly firmer wording on the question of aboriginal songs of narratives so Justice Lamarachas does a trial judge for dismissing territorial affidavits on the grounds that they have been actively 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're modified and revised into telling has the effect of making it impossible for an oral culture to prove its claims in court he pointed out then in effect of applying the standards used for historical documents to 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 book 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 to make a very long story short is what was actually already happening on the ground so while we thought that the case was going on the province of British Columbia 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 gave 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 a yeah in the 2001 decision in an eventual case that was launched by Ontario Mulhollocks newly appointed Chief Justice Beverly McLaughlin again repeated a multi-culturalist incantation which the Canadian years is like motherhood and apropos so it would be uncontroversial so she said judges must resist facile assumptions based on Eurocentric traditions of gathering and passing on historical facts but then she followed this by a qualification that amounted to a negation warning that 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 backfire rather badly Chief Stephen Augustine who you see here and his and in 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 roundabout to bring to court the original being unavailable in the Vatican archives sorry the ancient color 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 17th and that it had been given by aboriginals in Quebec and not another scholarship to the Pope this is true so now this was taken as undermining the only evidentiary value of the belt but more worrying the credibility of Chief Augustine so the court concluded that while the Chief was thoroughly truthful his evidence was in error 13 years after Delguin moved the legal implications for aboriginal peoples of the judicial expectations of the 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's worth pausing for a minute to consider the harm of seriousness with which some non-aboriginal 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 about 300 days of testimony concerning the land claims of the Chukitan Nation obviously moved by what he had seen and heard that Judge chose to begin his formal judgment with a long preface that was offered by 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 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 community 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 and 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 originals 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 judicial anthropology alright so 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 but the formulated rights they are interested in to be protected so the government's duty is grounded in the honor of the crown then you thought it was grounded in the passing of justice is over by others so the view that it's the honor of the crown that is responsible for expanding the opportunities for aboriginal peoples to earn royalties and mining and lumber 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 crown is a fiduciary obligation to aboriginal peoples with the result that in dealings between the government and aboriginals the honor of the crown is at stake because of this fiduciary relationship and its implications for the honor of the crown you know la la la now there's no fuck now after honor of the crown now this duty to consult doctrine is not strictly speaking new it has always been right into the royal population of 1763 and in general if you look at the sort of 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 Indians status Indians who were living on on reserves but they knew doctrine precisely because what grounds it is the honor of the crown and not the character or the claims of aboriginal peoples now this duty extends to everyone all aboriginal peoples whether they're on reserves or not whether they're treaty Indians or not is much more extensive and it also extends to the provincial crown 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 wife of British Columbia is obliged to do this consultation in a conversation of aboriginal interests in the first case establishing this duty to consult which was the Guerin case in 1984 the Muscovite Nation had wanted to lease a big 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 crown 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 all fit 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 and the crown itself with the honor of the crown being attributed to the latter as the court said in Haida it is always assumed that the crown intends to fulfill its promises whether they did actually fulfill them or not it is always assumed that they intend that the interest that they had is the question of knowledge format so I just have to redo some quotes from the Haida decision the government's duty to consult with Aboriginal peoples and 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 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 cavalierily run roughshod over Aboriginal interests they have not a repetition of the term the honor of the crown you know, contrast with the striking absence of any reference to authoritative common law or other sources now the honor of the crown is unpacked and usual detailed in an interesting text authored by the 2D commissioner of the government of Saskatchewan his name is David Arnaud in a lecture entitled The Honor of the Crown Mr. Arnaud you can see how I found that I was googling for this 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 said judges have tended to tweak the doctrine as a mere principle of statutory construction ah, the phrase is more than that it is actually quote the conscience of the country end of quote now I think this fits in with Vickers saying that you can read multi-culturalism into the immemorial time of Aboriginal history now, because I'm in the US I have to read this quote from Arnaud's text like quote isn't 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 the king's evil 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 in this continent appealing 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 Arnaud seems to have forgotten that the American colonists actually rejected the crown itself and not just the king's misguided ministers but Arnaud is not alone in his refusal to uncontemplate the possibility of a post-monarchy future for Canada in a recent article denoted by the original legal scholar Sarkish 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 these cases 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 formal 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 if you admit actually I say that because it decides that the Canadian turning over will now you these two images are actually the same size if I showed you they're not the same size and so it looks as if there's been a reconciliation kind of Australian style we can average more people than the crown because they're the same size and they're both widely recognized the high high carving by Bill Reed is one of the most disseminated images in Canada but of course anybody who can examine any other coins that I have in my pocket would see that it is the face of the queen that makes the money in the legal tender and you know reach out to Roy's paper and you know Reed's paper and Reed's actually very kind of a little bit of a deal and you can show them evidence, evidence actually it's worth more than the US dollar right now some might say that questioning the ultimate normative ground of the sovereignty of the crown is simply unthinkable at least two judges however the sovereignty of the Canadian federal state is not quite as unshakable as one might think after hearing the hypnotic invocation of the crown for one thing as the Supreme Court was deciding the Dalgable case the government of Quebec and the government of Canada were sharpening their respective legal knives in preparation for the all out fight of a sovereignty that was the Quebec's secession reference that was decided in 1998 why the visibility of the Quebec Sovereignist movement does not seem to have had much effect on perceptions of what is at stake in the struggle of our original rights is an interesting question that I hope to pursue in the future so here's the conclusion after canvassing some of the complicated and mainly unwritten doctors about the crown in English law Frederick Mainland was moved to end the matter by stating as a matter of fact we know that the crown does nothing but lying in the tower of London you can start by sightseeing and therefore but as Mainland documented one of the most curious things about the crown is that it has to divine or perhaps it tricks their power as it does at once so it can be in the tower of London being engaged by sightseers it can be in the hand of Queen Elizabeth as she signs a law and at the same time it can be in the Queen of Right the Queen in Right of Canada which is the other name for the federal government the Queen in Right of British Columbia and so on Mainland's coast might be interested to know that one of the most effective incarnations of the crown today is that which we 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 far-reaching projects the you're just trying to turn this screen off because we're going to go on and if you just put down the lid I'll do it there it goes so sorry yes the Chris Talmons to whom once again thanks for organizing this conference which I've seen some of the old friends and made some new ones Chris when introducing this conference said it in contrast to the views of legal realists particularly the legal realists between the law and the books and the law in action actually the conference reminded me strongly of another set of legal realists whose spirit I'd like to invoke as kind of residing the spirits floating like butterflies over this conference the ones I have in mind are the ones I have in mind are Leslie Hofeld, Robert Hale the Coens not the brothers who make the movies but the Morris and Felix on their son 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 principle of delegated sovereignty this is what brings to mind Morris Cohen the elder and his famous book on property of sovereignty property is simply nothing more than delegation of state power to private owners the powers and resources of government the delegated sovereignty as I'll say in a moment is all over at these papers there's the notion of the multiplicity of sovereigns or legal pluralism the very strong interest of younger Cohen Felix in his administration of the Bureau of Indian Affairs and this great promoter of the rights of Indian tribes the the Hofeld the influence is most felt in the very large number of examples of 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 to inflict harm on others the relative privilege being immunities that is to say even if you do act in such a way that nobody can legally nobody can legally stop you these papers are full of privileges another form of these privileges comes in what Marianne Constable calls legal silence is the law doesn't say you can't do it therefore maybe you can 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 law of course as the famous site of conversation as a medium for fighting about sovereignty is everywhere in these papers and law also as a law also as a means whereby the state and legal system whereby the state and legal system the grants out the makes journal persons by granting out names and categories it sorts people in classes and ranks and also personifies journal subjects it endows them with rights and powers we do have a wonderful example of law in British India endowing idols such as Shiva with journal powers the other examples they are abundant here of defining persons and defining legal agents to represent them and law of course law of course is also as Norman Spaulding and Marianna because law is a medium which generates the possibility and the resources to resist its imposition anyone who makes a legal claim is likely to be met with somebody asserting a defense or a counter claim to that to that claim so the mere exercise of power to people who are resisting it through legal form 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 papers I should also mention popular sovereignty not as an abstraction but as a series of examples of lawmaking by ordinary by ordinary people now 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 Frimer 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 conclude with 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 and what it was reading the territory of its previous inconvenient inhabitants and the Paul also explains that you combine the two together and the government has a third resource and that is the legitimacy to make claims on potential the land or territory and the claims themselves can be used as an incentive towards speculation if it makes the claims there's some possibility in the considerable possibility that the claims will be sometimes realized and 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 sense very much as today military and diplomatic functions of empire contracted out to mercenaries and proxies and the equivalent to land is the general funds of the taxpayers the contracting of 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 of 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 framerates is very interesting example military veterans used to settle in Indian territory and to pacify it by fighting and eliminating its Indian inhabitants later examples like the private tax collection agencies or 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 policy commentators, lynching parties encouraged by authorities to enforce the racial cast 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 contact on conduct and the 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 competency the property rights is formed by settlement and cultivation rather than by roaming around the adverse possession for squatters actively promoting settlement policies that will change the facts on the ground create de facto possession that will write into legal ownership the again Hale and Hohfeldt as much an exercise of the sovereign did you create no right, legal or de facto as to have an act of bureaucratic state imposing and enforcing rule of plot positive action the many of the actions that um the uh that uh whether here's some more conformance work or attention to the grant of fee simple property rights the grant of rights in that form automatically excludes other climates the um it's not just a private action that creates facts on the ground but it's actually instigated and motivated by state policy the uh similar nowadays you see Mary Halebel Verdi's work the the reverse course of recognizing of aboriginal rights is enduring other customary law for um the interpreting treaties and sources of aboriginal rights um the John Witt gives us another series of examples of the use of the international law framework the um as sources of rights for the discoverer defining appropriate sovereigns the um the uh one example that he gives in his paper is the the state's claiming sovereignty by virtue of the fact under the commerce clause by virtue of the fact that they uh that Indians occupy land holy within their states surrounded by uh surrounded by whites and therefore they claim exempt from federal regulation under the federal commerce clause um what raises another theme which you all see in Mary Halebel Verdi's narrative the um bringing a social practice under the rule of law even if to regulate and tame it the extends yet equal recognition the this is a the uh uh Verdi's example is that um uh if land claims the are regulated in Canadian court the even in quite this bizarre that's relatively the uh charitable or generous the towards the the uh when the court's jurisdiction was recognized the uh the sovereignty of the uh of the of the Canadian occupiers recognized uh as well there in which case there's an argument for this argument about whether war is just too horrible to try to regulate the uh many people look with contempt on the idea of merely having a law of war because it seems to it seems to legitimate practice which um to me is uh is too monstrous to even completely legitimate to have a similar debate today about torture whether torture should be intimately legalized or firmly kept out of the scope of extra legal conduct the um the John tells us that there are two theses the clenching theses that is to say the uh there used to be international controls on law controls on more of these evaded and the novelty theory the uh the conduct of warfare discovered as never before by law employers uh he says they're both clearly wrong and he really uncovers this quite fascinating wealth of material about contacts and situations in which arguments deriving from the law of war were actually used and there is simply uh there are myriad controversies here and a very rich variety of invocations the of law of war based arguments um the uh respecting the rights of British creditors uh the war claims the territory of Florida and Texas the the both of the clenching and novelty theories John Witt sees as a way of fending off the gruesome past um the um uh 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 world resort of each side to its favorite to its favorite relatively civilized tactics makes it seem to the other side even more savage and inhuman the uh 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 use the uh use the law to exclude the Indian conflicts from the scope of the law of war the um the uh um the there are also populist militias in this story the herewith story overlaps with primers uh in its description of the use of militia citizen soldiers to do the work of expanding empire in Florida and uh and Texas the uh 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 um the slavery question is implicated too the uh could inherent the uh federal government powers include the power to abolish slavery the uh did war authorize the seizure of private property the uh eventually of course war power would provide the initial rationale for emancipation the as well as conscription and commandeering of property and goods for civil war efforts the uh the uh the protection of slavery of private property ironically the uh John points out um the uh the law of war was often invoked the uh the so that the protection of slavery can become the chief test of whether an armed conflict was or was not civilized the uh the uh Mary Ann Valverde's honor of the crown of the aboriginal land planes is again an illustration of how the the uh default ordinary rules of law who is allowed to define property it's also a very interesting illustration of how sovereignty is built through the assertion of magical powers um the sovereign immunity or king can do no wrong doctrines um the uh famous kings two bodies is a mortal body of the king and the immortal body of the crown she gives us her example the honor of the crown the policies of paternalistic protection while maintaining control the um the uh the the great irony of Mary Ann as presentation which is the uh uh uh as she as she points out is that is that the courts that are asserting this mystical honor of the crown our courts that are our courts that by and large have been disparaging all of these mythic claims the uh uh in oral tradition to 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 it the uh the robust assertion that it exists uh that doesn't make it unusual a lot of legal power built on robust assertion the uh of of precisely this kind one thinks of the small group of gentlemen meeting in the small room in Philadelphia in private writing the document which begins we the people there's a classic case of boots traffic going on there uh the the uh so she shows how the rules of evidence Aboriginal language and the result of the practice of undermining oral histories of Aboriginal or Indigenous peoples or their original narratives or oral evidence that forms territorial affidavits although recently she says there's been a trend to treat them more generously the uh the by courts who don't really however spell out what this more generous treatment would be only suggesting these quotes are just hilarious you know the she's suggesting that they shouldn't go so far as to risk crashing the ordinary rules of evidence the uh the actual decision still strongly privileged European histories of written documents um now she suggests a more promising legal legal for Indigenous peoples is 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 honour 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 um the and the honour of the federal government and apparently the provincial governments as well as well uh have succeeded to the British Crown's duty as the member of the patriarch to protect the Indians from media settlers and racist provincial governments the uh to the Crown was an undifferentiated unit that has described many pleasing characteristics of a quayside as a quayside because Maria would exclude that the courts all said the Crown's duties are not to be confused with those of actual trustee what those duties are where they come from is not explained as I say everything's loaded by a search of these two words honour and crown um here I have to evoke my unrealist feelings come on this transcendental uncensored functional uh approach prone is not any actually existing government legal system it is the mystical body the um of Cantora that's his kings two bodies that is the moral map mortal map the immortal kingship the uh the scholar says it invoked principles of fundamental justice that lie beyond persons and beyond politics it is a little hard to think of what legal arguments that are under such a standard looks like well as Mario 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 of the Crown strikes me is not altogether unlike the indication of the founders with the original understanding of the American constitution the the uh over that matter the older classic notion of the police power the um um the uh the until it was tainted legalized in the late 19th century the um or for that matter um from the uh indication today of the duties of the president present protect the nation from threats to its national security and equally mystical clubbing and unspecified the uh set of of powers um the uh these are all these are all concepts of the uh out of which as Carly well said in another context as uh as out of a magician's high hat anything may be taken that is first put in the uh the overarching point whatever the crown may be invocation of its takes that's assumed the resolution of a more fundamental underlying issue that the various successive governments of Canada are sovereign over these nations and territories uh the very issue which of course is sharply raised by uh but much more successfully by the threat of the k-big class succession movement um the uh a real challenge to sovereignty because there are real political needs to carry it out Laura Edwards um the uh uh on the piece kind of a with this a wonderful book um which I recommended to you on the red it's kind of a counterpart to Paul Friarmer's project Friarmer starts with the paradigm of government action as produced 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 uh Edwards story challenge is another paradigmatic idea of law on the books um the would reach as we call the Klogos or more formally the more broadly the statutes and court decisions of the centralized state law made it the hierarchical summit of the metropole in this image spreads down to government provinces and peripheries this approach uh legal purlists call this approach evil centralism uh this approach she says distinguishes law sharply from society lawmaking and applying from unofficial lawmaking more making and enforcing and in particular rules and rights for the peace a conception of laws order arising from informal patterns the of um the of settling conflicts um the uh Edwards of its lawmaking of local order is a kind of collaborative communal endeavor the of ordinary people although ordinary people in extremely hierarchical social relations not exactly in the people themselves as Larry Kramer um of the people outdoors but rather as participants in a 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 it's hierarchical but also allowed as she said a wide range of participation by the subordinates like the poor women, servants even slaves all people who in a more working formal legal system would be shoved out as people without rights uh in Edwards account this system of local law enforcement exists side by side that financially comes to be displaced by a more formal system of law governing property rights staffed by lawyers applied regularly and uniformly uh an interesting question arising from this work is whether Edwards is right to class to characterize legal central societies from local 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 reservation or reservations of local informal uh order I'm trying to think more the latter that is to say that that we don't see with the development of legal centralist institutions the uh and elimination the uh local sources of or pockets the uh of order we simply see a redistribution uh of um the um take a look for example in Ariela Gross's wonderful stuff on on race trials the uh we have a method of settling questions of what race people are which is truly quite distinct from anything that's prescribed in the formal legal order it's a negotiated um to be uh negotiated race the dividend the more performative as you say now proportion of course is of each is a matter of degree and Laura's convincing that she suggests to miss on the legal reformers very much like modern society is eager to bring the rule of law to much development society is what's to extend the reach of the formal system so as to occupy and displace the the local but along with the extension of the formal system comes a long list of exclusions for protections of the formal law exclusions for legal persons within participation in the government and what those exclusions do is to simply re-delegate the uh to um the uh re-delegate to who we could call local sovereigns the uh the power of governance be over their uh over their pockets or or or or enclaves uh for example uh 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 the magistrate gets kicked out of the picture law in the official sets gets kicked out of the picture the uh when labor law is simply reassigns essentially the power of governance over the workplace relationship uh to uh the employer nominally to contract de facto to the uh to the uh uh to the employer the uh the uh a pluralism of sovereigns is preserved the uh but under the guides or the appearance of contract and that really is the last point that I want to talk about a little bit the these are the magical powers the uh of law to um the uh to make um uh to make the state and coercion and its appearance uh uh disappear law the as the as the magician the um creating the magic of disappearing act the uh the coercion and violence disappear under forms of uh of delegated sovereignty and under forms of consent that are that are legitimated by law the um society and customer constituted and contractor constant so simply to exclude the uh the coercive force of uh of state of state power and that I think is the the uh one of the greatest the uh accomplishments of of law its its ability to accomplish its own the um vanishing or appearance of vanishing the uh through the exercise of these um of these uh quite wonderful alchemical uh uh powers that um evolve its coercion and violence disappear into institutions like the market uh for for that matter uh the laws of war um now the just to sum up here these papers are not just interesting as examples of more general theories um that isn't really why we do this work and that isn't really why we enjoy it because it resonates because it provides us tremendous illustrations of more general theories I mean you know we're interested in that but we're mostly mostly interested in the stories the uh that uh are told here and uh these are extraordinarily interesting ones the all four