Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination

Hardcover | January 11, 2005

byP.G. McHugh

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This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples. That history runs from the plantation ofIreland and settlement of the New World to the end of the Twentieth century. The book begins by looking at the nature of British imperialism and the position of non-Christian peoples at large in the Seventeenth and Eighteenth centuries. It then focuses on North America and Australasia from their early national periods in the Nineteenth century to the modern era. Thehistorical basis of relations is described through the key, enduring, but constantly shifting questions of sovereignty, status and, more latterly, self-determination. Throughout the history of engagement with common law legalism, questions surrounding the settler-state's recognition - or otherwise- of the integrity of the tribe have recurred. These issues were addressed in many and varied imperial and colonial contexts, but all jurisdictions have shared remarkable historical parallels which have been accentuated by their common legal heritage. The same questioning continues today in therenewed and controversial claims of the tribal societies to a distinct constitutional position and associated rights of self-determination. Mc Hugh examines the political resurgence of aboriginal peoples in the last quarter of the Twentieth century. A period of 'rights-recognition' was transformedinto a second-generation jurisprudence of rights-management and rights-integration. From the 1990s onwards, aboriginal affairs have been driven by an increasingly rampant legalism. Throughout this history, the common law's encounter with tribal peoples not only describes its view of the aboriginal, but also reveals a considerable amount about the common law itself as a language of thought. This is a history of the voyaging common law.

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This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples. That history runs from the plantation ofIreland and settlement of the New World to the e...

Dr. P. G. McHugh is Senior Lecturer in Law at the University of Cambridge, Tutor of Sidney Sussex College, and Ashley McHugh Ngai Tahu Visiting Professor at Victoria University of Wellington.

other books by P.G. McHugh

Format:HardcoverDimensions:778 pages, 9.21 × 6.14 × 1.65 inPublished:January 11, 2005Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:019825248X

ISBN - 13:9780198252481

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Table of Contents

1. Chapter One: IntroductionChapter Two: The juridical status of non-Christian polities (to the end of the eighteenth century)Chapter Three: Aboriginal sovereignty and status in the 'Empire(s) of Uniformity'Chapter Four: A history of aboriginal status - the legal recognition of the individual and the groupChapter 5: aboriginal societies and international law: a history of sovereignty, status and landChapter 6: An overview of the era of aboriginal self-determinationChapter 7: Achieving recognition during the 1970s and '80s- foundations for a modern jurisprudenceChapter 8: Moving beyond recognition: aboriginal governance in the turbulent 1990sChapter 9: Living Together Less Contentiously: the Jurisprucence of Reconciliation in the 1990s

Editorial Reviews

`... magnificent...Paul McHugh traces the encounter between the common law and aboriginal peoples in the settler societies of North America and Australasia, beginning in the 17th century and ending in the 21st...Much of the value of this study resides in McHugh s account of the changing natureof the common law... In the last part of this book... McHugh provides a magisterial account of the last three or four decades...McHugh is at pains to stress that the recognition of aboriginal rights was one thing; establishing satisfactory legal regimes to facilitate those rights has proved quiteanother...'Bain Attwood, The Journal of Pacific History