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Law in Context

Abstract from Volume 29 No 2 (2013) Socio-legality: An Odyssey of Ideas and Context

Socio-legal Studies in the Ages of Empire and Businessman Bottles: An Historical and Political Account

Ian Duncanson is Adjunct Professor, Sociolegal Research Centre at Griffith University. He has been an academic for 40 years and is the author of more than 50 peer-reviewed articles, largely on jurisprudential and historical aspects of legality and social ordering, inflected more recently through postcolonialism.

He is the author of a recent monograph, Historiography, Empire and the Rule of Law (Routledge). His interest in socio-legal studies began when he was writing a master’s thesis at Durham University. Ian holds degrees in law from the University of Southampton and Durham University, and a doctorate in political science from Melbourne University.

With Christopher Tomlins he began in 1982 the annual series of Law and History conferences, and, with Kelvin Jones, the annual series of Law and Society conferences. They were conceived, like the Legal Studies Department at La Trobe University, circa 1975–95, as fora for discussions of alternatives to the predominantly positivist tradition of theorising legal phenomena.

This article draws attention to the historical dimension of what we now term socio-legal studies because it has been neglected and because it allows us to recognise socio-legal studies’ distinctive and multidisciplinary character. It is not the sociology or history of law, since both rely on an a priori assumption about the nature and existence of something called law, its teleology, or evolution, or its policy use and implications. This assumption most clearly emerges from Bentham’s view that law is the sign of sovereign will, a doctrine enthusiastically adopted by East India Company servants in late 18th and early 19th century India and popularised for 19th and 20th century students of law by John Austin. It owes something, too, to the Hegelian separation of civil and political society, but the article does not have space to address this. England emerged from its 17th century struggles with a very different practical and theoretical trajectory from the Westphalian ideas of discrete sovereignties. In the writings of Locke and Shaftesbury and of the Scottish Enlightenment down to Adam Smith, the sovereign origins of law varied from the dangerous to the secondary. Politics, religion and law for them required a stable civil society so the primary questions were the social nature of human subjectivity and how this could be cultivated to accomplish harmony, the agreeable forms of disagreement they considered necessary for inquiry and progress. After the American war of 1776, imperial and domestic governments became more authoritarian, more under the control of figures like Matthew Arnold’s philistine middle class of my title, ‘Businessman Bottles’, focused on short-term commercial gain and suspicious of theoretical endeavour. Cultural understandings of law were increasingly mediated by the technicians of law, at the Bar and elsewhere. Legal Studies at La Trobe, however brief its career and however uncertain but hopeful about its future we may be, as well as the opposition to its existence, can usefully be seen in this longer context.

(2013) 29(2) Law in Context 59

   
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