Melbourne University Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Melbourne University Law Review |
|
[The law and the culture of the English man developed, closely interrelated, in the practice of British imperialism, as the defence of the same against the other, against the danger that difference might gain a voice. But the native other who was to be disciplined by the legal and literary canons in the colonies was also a trope that easily translated into working class and female others in the minds of their governors. Imperialism ‘came home’ in positivist doctrines of sovereignty, securing government from the people in a fresh metaphysics of authenticity. Pedagogical missions secured cultural leadership by ensuring that the criteria of literary excellence were a matter for elites. Empire continues to be scripted in innumerable sites in Australia. Critical scholarship in legal and cultural studies, for example, whose questioning of authority may be perceived by some in authority as being incompatible with docility in mass universities, is accused of low standards and irrelevance and is etiolated by intellectual mediocrity in the form of vocationalism.]
If we accept that ‘“post”-colonialism’ was a rather bitter Subaltern Studies joke (since colonialism, as Ama Ata Aidoo puts it, has not actually been post-ed anywhere),[1] then perhaps we should expect to find the tropes and strategies of imperialism still mobilised in many sites in which there are political and ethical struggles over sameness and difference, and scholarly analyses and disagreements about the meaning of those struggles. That classic text of Anglophone imperialism, Macaulay’s essay on Lord Clive,[2] establishes the cultural meaning of empire as the dominion of the upper-class white man, whose probity, rationality, resolution and courage prevail not only over the ‘soft Bengalee’ in a land in which ‘the earth is water and the men women’, but also over his own venal countrymen, the ‘low men’ of ‘tawny complexion’, whose goal is merely enrichment and whose means are tyranny over the ‘languid’ native, the ‘unhappy race’.[3]
In what — with ironic reference once again to Macaulay — we may call the ‘empire exempt from ... decay ... [t]he ... triumphs of reason over barbarism; ... the imperishable empire of our arts and our morals, our literature and our laws’,[4] we find the contemporary relevance of the studies of colonial encounters. In this 19th century fantasy, we find Threadgold’s current
homosocial, homosexual discourse, a conversation among men, the economy of the same ... which reduces sexuality to one sex, humanity to one color and class, and constitutes the proper limits of law in its own white, masculine image.[5]
It is the story in which we, as legal subjects, feature today.[6] In the Anglophone empires at least, legal and literary canons were developed and deployed in the subordination of the claims of difference to the apodictic standards of the same.[7] The native, and with the recursion of empire to the metropolis in the 19th century, the labourer and the feminine, failed the tests and thus earned the tutelage of the white male, with his rationality of freedom of contract and his aesthetics of the ‘Home Counties of the mind’.[8]
Imperialism here, of course, refers not only to the classic imperialists’ own fantasy — in which the already civilised, already superior subjects of the metropolis pursued a mission to improve their inferiors in their own image — but also to the project of subordinating and denying the other, of which the fantasy is a symptom. The fantasy reveals itself as such in the dark anxieties manifested at various times in the constructions of the nabob, the native, the mob and the effeminate, and in the threatening figures of the fin-de-siècle Gothic, the suppressed others of Macaulay’s white male hero whose spectres must continually be exorcised.[9]
The modern imperial fantasy of global prosperity, plurality, freedom and choice, with the virtual disappearance of the state under the leadership of private (Western) capital,[10] has an equivalent dark side, in which the cultural insurrections which its own ‘unrestricted market’ demands endanger the foundations of certainty and Western cultural superiority. Economic competition, accompanied by advertising, has a nightmare equivalent in cultural studies’ abandonment of canonical privilege in the choice of what to study: it has become, according to Allan Bloom, a situation the ‘point of which is to force students to recognize that there are other ways of thinking and that Western ways are not better.’[11] Unregulated curiosity, for Harold Bloom, permits the ‘six branches of the School of Resentment; Feminists, Marxists, Lacanians, New Historicists, Deconstructionists, Semioticians’ to smuggle black, feminist and popular (that is, working class) culture into the citadel of privilege.[12] Subjects erased or silenced by the imperial canon threaten to emerge and perform unspeakable acts.[13]
We can see this apprehension in the pedagogical offensives initiated by conservative foundations — as publishers, research funding agencies and lobbyists — against critical studies informed by class, gender or ethnicity, on the grounds either of such studies’ transgressions of the canons of excellence and reassuring certainty required by the Western intellectual tradition, or of their incomprehensibility (‘theory’) and impracticability.[14] To quote Threadgold again:
Much of the ‘theory’ that has been branded dangerous, difficult, invasive and even infectious ... is cultural theory. That theory has been about the ways in which cultures are constituted, about dominant and marginalised cultural narratives, selves and identities. It has also been about ways of rewriting or changing those dominant narratives ... a struggle for meaning and for power ...[15]
Foundations of intellectual heritage and practical vocation are invoked to repress the anarchical horror which is otherwise inadvertently conjured whenever the free spirit and the scepticism of boundary and closure supposedly typical of modern capital are celebrated. Suppose, the conservative think tanks’ publications seem to signal, that the marketeers’ constantly reiterated assertion that market capitalism promotes democracy turns out after all to be correct, despite their own cynical disbelief in the proposition, and that the refusal of cultural imperialism was the beginning of democratisation.
In her book on 18th century England[16] Kathleen Wilson opens the modern history of keeping the people out. She writes Anglophone North Atlantic history as English history.[17] The insular Augustan calm of A Polite and Commercial People[18] is largely displaced in her study, as so, to a lesser degree, is the society of successful constraint and deference familiar from the Warwick School historians.[19] In the decades between Walpole’s fall and the last years of the War of American Independence — roughly 1740–80 — she sees a rowdy struggle on both sides of the Atlantic to define Englishness, culturally and politically.[20] Political conflict was not waged only in Parliament, or only by the enfranchised. The manly patriot[21] was set against effete aristocratic tyranny by even the lowest social class in petitions to Parliament, in written instructions to candidates at elections, in the licensed and unlicenced press, in theatre and elaborate street theatre, in cartoons, and in ceramic mugs and plates. When the British surrendered in America, they surrendered to the 13 United States. When the war first began, it had aspects of civil war, of the populist freeborn Englishman against the new tyranny of the aristocrats and King George III.
Wilson suggests that with the failure of the Pitt Administration’s reforms in 1784 and the subsequent refocusing of British imperialism on India, Canada and later on Australia, the maintenance and projection of Englishness became authoritarian and paternalist.[22] The struggle over the place of ‘the people’ in the political nation was apparently resolved differently in the metropolis and in its erstwhile American colonies.[23] If the resolution were to succeed across the new empire, then three forms of difference presented themselves for assimilation to the same of the Englishman during the course of the new century: natives, labourers and women. Macaulay’s aim of ‘form[ing] a class who may be interpreters between us and the millions we govern’ — ‘a class of persons, Indian in color but English in taste, in opinions, in morals and intellect’[24] — was a late summary of a policy of cultural assimilation already begun in British India under Bentinck. Later in the century, Matthew Arnold’s antidote to the British working class’s apparent threat to order was, again, the cultural integration, thus neutralisation, of the other, for
[c]ulture looks beyond machinery, culture hates hatred; culture has but one passion, the passion for sweetness and light. Yes, it has one greater! — the passion for making them prevail. It is not satisfied till we all come to a perfect man.[25]
The social signifiers of native, labourer and woman were, of course, both irrecoverably other and frequently fungible as one moves into the 19th century. In the 18th century and before, ‘native’ had the primary meaning of local to a place. The ‘genius’ of English law might relate to the inborn superiority of the native-born Englishman.[26] In the new empire, however, the ‘Englishman’ becomes a more refined social technology of differentiation and exclusion as a nationally focused working class comes into existence, and women, too, argue for inclusion in the political order. Susan Thorne observes that the already vague category of race and that of class were not seen as antithetical categories by the 19th century.[27] As late as the early Edwardian era, Susan Kingsley Kent finds Sir Almroth Wright equating the defects of women and natives, both of whom were, in consequence of their inferiority, incapable of governing themselves or of participating in their governance.[28] The route from savagery to civilisation which the native must take, according to Walter Bagehot, again linking natives and women, is inevitably a masculinisation of social order: the move from the obviousness of matrilineal descent forms to the culturally more sophisticated patterns of patrilineal descent.[29]
The project of empire (which was now without most of America, but nonetheless expanding) took a pedagogical turn it had not taken earlier. Finding India sunk in depravity even before he had been appointed to the India Council and travelled there, Macaulay told the House of Commons that England’s duty was to ‘educate our subjects into a capacity for better government’.[30] At a level less elevated than Macaulay’s quest for an empire exempt from decay, however, Gauri Viswanathan finds an India Council minute from one J Farish, of March 1838:
The Natives must either be kept down by a sense of our power, or they must willingly submit from a conviction that we are more wise, more just, more humane, and more anxious to improve their condition than any other rulers they could possibly have.[31]
Viswanathan herself puts it slightly differently: ‘Making the Englishman known to the natives through the products of his mental labor removed him from the plane of ongoing colonialist activity ... His material reality as subjugator and alien ruler was dissolved’.[32]
Yet another perception of the motif of the native as a threat of disorder in the metropolis is provided by Jyotsna Singh. The nabobs, she suggests, those East India Company servants whose new wealth was so resented when they returned to England, were considered to have learned their venality and their capacity for the ruthless exploitation of Indians from the Indians themselves.[33] If the natives acquired the moral rectitude and earnestness of purpose associated with the heritage of Englishness, this improvement would not only serve to protect them from the Company’s servants, it would also protect the Company’s servants (and old wealth at home) from them. On the same theme — of order and the habits of thrift and attachment to existing society presumed to flow from education, but displaced this time onto the problem of native disorder at home — we find Macaulay, long returned from India, recommending government finance for education in England. The magistrate with the power to punish incivility has a duty to teach civility, Macaulay argues, contrasting the dissolute English working class with their better-educated, ambitious and presumably more earnest Scottish counterparts.[34]
Until recently, understandings of empire assumed the centre–periphery diffusion of civilisation. The blessings of England’s already-accomplishments are to be bestowed upon India. Macaulay, as we saw, speaks of the necessity of introducing ‘our’ literature and ‘our’ law to the natives.[35] James Fitzjames Stephen writes of the civilising mission not in terms of religion itself, but in the theological language of transmitting the peculiarly English ‘gospel’[36] of the law. Yet, in the construction of the Englishness of Shakespeare, Milton and the rule of law, Pennycook writes, India was ‘a key site for the development of policies that then flowed back to England ... Empire was a system that allowed the flow of culture and knowledge produced in the colonial encounter to flow back to the imperial center.’[37] In general,
Europe’s colonies were never empty spaces to be made over in Europe’s image ... nor indeed, were European states self-contained entities that at one point projected themselves overseas. Europe was made by its imperial projects ...[38]
It is not clear that there was a ready-made ‘our’ culture or ‘our’ law with which to assimilate the native. If we consider law, the gradual supersession of the governing role of the East India Company involved a conception of sovereignty in India — one ‘unbalanced’ in the language of the time — that was not familiar in Whig Britain until much later.[39] The reason this is not now obvious is that Benthamite positivism, developed in Bentham’s critique of Blackstone’s Vinerian lectures and published as A Fragment on Government[40] in 1776, forms the basis of modern imaginings of law and government. Bentham, along with Sir James Mill, was influential in developing the British government in India, providing a civil service soon staffed by those successful in competitive examination in subjects including English studies. This later extended to include Indians who made themselves familiar with English culture. John Stuart Mill was to approve of the government of India as a ‘vigorous despotism ... the best mode of government for training the people in what is specifically wanting to render them capable of a higher civilisation.’[41] In A Fragment on Government Bentham interestingly compares his work on law with the work of explorers ‘discovering’ new lands. His later disciple, John Austin, described his universal model of law and government as a map. As Simon Ryan writes, ‘[t]he “universal” applicability of one cartographic practice allows the transportation of power to a world-wide empire where maps perform the function of allowing power to be “gained, administered, given legitimacy and codified”.’[42]
In ‘Of Laws in General’ Bentham provides a definition of law which underlies his critique of Blackstone’s ‘confusions’:
A law may be defined as an assembly of signs declarative of a volition conceived or adopted by a sovereign in the state ... [T]he mandate of the sovereign ... cannot be illegal; it may be impolitic; it may be cruel; it may even be unconstitutional: but it cannot be illegal.[43]
The authority of law is, according to this understanding, a function not of its purpose or substance, but of its structural relation to the sovereign, who is before the law according to a metaphysics of origin. This is ironic, since Bentham sought to banish metaphysics, for example, in his denunciations of the ‘rights of man’.[44] This model fit perfectly what the British had in mind for India: Macaulay’s and Stephen’s great codes were implemented as the work of sovereignty in this sense.
However, A Fragment on Government was one of the few works Bentham published during his lifetime — ‘Of Laws in General’ was published in 1843, long after his death in 1832 — and seems to have had little influence on the practice or imagining of law and government in Britain. More than half a century later John Austin published a similar account of law as the product of sovereignty, in which the sovereign, as again before the law, can do no legal wrong. Among reformers like Lord Brougham, legal positivism had some appeal, but Lord Melbourne, the Whig Home Secretary, pronounced The Province of Jurisprudence Determined[45] the dullest book he had read.[46] It was republished only 30 years later by Austin’s widow, with Brougham’s help, and with acclamation from old India hands like Stephen. Before his death, Austin had noticed a particular flaw in his model, a dissonance between his analytical positivism and his politics. Deeply opposed to votes for the working class and for women, he was horrified by the spectre permitted by his model of the legally untrammelled instrument of sovereignty becoming the tool of feminists or the working class. Shortly before his death, he wrote his Plea for the Constitution,[47] which stressed the organic nature and the situated function of history and custom in producing English constitutionalism, the survival of feudal ideas and ‘a defence of the aristocracy that would have shocked Bentham and James Mill’.[48]
In England, for England/Britain, until the mid-19th century, the Constitution and not the law was the place from which to begin discussions of government. On this view, Postema writes that ‘[t]here is no sharp conceptual boundary between law and other social phenomena’ of the kind that the legal positivists were anxious to draw, ‘because ... there is no sharp difference between them in the community governed by that law.’[49] The Constitution was that ‘proud distinction of this country, always the admiration, sometimes the envy of ... every other nation’.[50] Its authority and the authority of laws come, according to Burke, first from prescription — their longevity and long acceptance — and secondly from their fit with ‘the peculiar circumstances, occasions, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time.’[51]
Laws cannot conceptually be general on this view — one cannot, in other words, have a universal cartography of law — but rather must be specific to a people, never structurally related to a metaphysical origin, but organically consistent with the developing habits of a people. Judges and parliaments might mistake what the Constitution required from time to time, but if they wished to claim constitutional authority in the long run, Burke required them to consult tradition and to ensure that the tendency of the law matched the dispositions of the people.[52] In Macaulay’s summary it is less a matter of following past political and legal instruments, for they reveal only how earlier leaders responded to their situation. The way of marrying tradition to progress was to ask what earlier leaders would have done in the present conjuncture.
Of course, for Burke, ‘the people’ or ‘the nation’ is in effect constituted in the gaze of those who undertake the duty to represent them. The nation is not merely local and momentary, but ‘is an idea of continuity which extends in time as well as in numbers and space.’[53] ‘Our duty, if we are qualified for it ... is to give them information, and not to receive it from them: we are not to go to school to them, to learn the principles of law and government.’[54] A member of parliament, he argues in his ‘Speech to the Electors of Bristol’, is a representative, not a delegate of his constituency or of some particular interest within it — a member of an empire, not of a specific city. He owes the electors his judgment about the general good, reached after deliberation and argument, not compliance with hasty opinion and thus, a decision made before deliberation.[55] In short, whilst cultivating the freedom of the people under the Constitution as a member of parliament, ‘I cannot indeed take it upon me to say that I have the honour to follow the sense of the people. The truth is, I met it on the way, while I was pursuing their interest according to my own ideas.’[56]
The freedoms the rulers under the old Constitution imagined — to have one’s interests recognised as an integral part of an organic community, a community again imagined by the same rulers — did not satisfy the reformers before or after the French Revolution, nor the Chartists, nor the Reform Bill rioters[57] whom Matthew Arnold saw demolishing Hyde Park railings. The freedom of the Englishman to do as he likes, one of Arnold’s renderings of the old Constitution, moreover, was, from a ruling perspective, incapable of being extended to the ‘populace’. Here was the dilemma. Democracy seemed increasingly to be inevitable, even to the extent of female suffrage. And democracy threatens, according to Stephen,
the poor saying to the rich, We are masters now by the establishment of liberty, which means democracy, and as all men are brothers, entitled to share and share alike in the common stock, we will make you disgorge or we will put you to death.[58]
To divert popular participation from its perceived attachment to a redistributive morality, class justice, and a tendency to anarchy and the destruction of property, strong centralised government was necessary — the kind of sovereignty envisaged by Bentham, in which ‘[t]he authenticity of a law is a question exterior to, and independent of, that of its content.’[59] But plain class-based repression of the Tory kind was ruled out by the very extension of the right to vote, as was the enlightened despotism of India, so how were the newly or soon-to-be enfranchised to be prevented from fulfilling Stephen’s prophecy?
If the state as legal sovereign was as yet a possible hostage to democratic fortune, the state as administrator and pedagogue came to the rescue. The aims of Gladstone’s civil service reforms, designed by Northcote and Macaulay’s brother-in-law and former Indian civil servant, Trevelyan, were to reconcile the middle classes to the oligarchic state.[60] Careers were offered on the basis of merit to remove the dangerous possibility of middle class alliances with working class radicalism — and to ‘strengthen and multiply the ties between the higher classes and the possession of administrative power’.[61] The route into the civil service was from the public school sector, reinvigorated by Thomas Arnold, through Oxford or Cambridge and the civil service examinations, which might include English studies as well as the classics.
From mid century onwards, the public schools had provided a common education — not to speak of intensive inter-socialization — for sons of the gentry and upper bourgeoisie ... [R]eforms at Oxford and Cambridge reinforced these, generating an academic ethos in which the disinterest of the scholar mingled ... with that of the aristocrat, and ideals of service subliminally associated the profession of rule with the rule of the professions.[62]
A bureaucracy firmly attached to the values of the rulers was insurance against the ‘irresponsible’ legislators a working class electorate might choose to represent them. Meanwhile, the regulatory aspects of education for the ‘populace’ were clear to Matthew Arnold. In the case of prisons, he argued, the object is not merely to reform the prisoner, but to protect the public, and
so, too, in schools the State has another interest besides the encouragement of reading, writing, and arithmetic — the protection of society. It has an interest in them so far as they keep children out of the streets, so far as they teach them ... an orderly, decent, and human behaviour, so far as they civilise the neighbourhood where they are placed.[63]
English literature as a discipline (as opposed to literary texts), invented to enable a pivotal class of Indians to recognise themselves as subjects of the colonists’ culture, appeared now in Britain as a convenient ritual narrative of the nation, eliding differences of class and gender in the constitution of an imaginary racial community of the same. Silently outside the shared heritage is the colonial other in relation to whom the community of the English heritage is united in its obligations and patriotism — women seeking political and legal equality in Britain needed the credentials of equal concern with the men of empire for the condition of Indian women, as one example, and were thus co-opted into the moral justification for imperialism;[64] the working class could share equally both cultural superiority and pride of ownership in the empire.[65] Literature led to the location of the literary heritage in the genius of the nation and the ‘inherent nobility of the English spirit’, contemplation of which, it was hoped, would strengthen established authority and pre-empt social unrest.[66]
This heritage is, in effect, English extended ‘beyond any disciplinary boundaries to encompass all mental, imaginative and spiritual faculties ... the cultivation of the mind, the training of the imagination and the quickening of the whole spiritual nature’, and practised outside the school and university, in museums, on statues honoring imperial exploits and in exhibitions celebrating the diversity and tribute of empire.[67]
The language of empire was used quite naturally to describe the pedagogic ‘missions’ and ‘colonisation’ of working class areas in which, Lloyd and Thomas argue, older working class ethics of self-improvement converged with the paternalist and, of course, politically soporific objectives of the utilitarians and others.[68] ‘Culture’, in the sense of knowing one’s proper place as a subject, ‘is not a mere supplement to the state but the formative principle of its efficacy.’[69] Before the legal sovereign state is directly thinkable, there must be the possibility that the subject can identify with the existing relations of privilege and hierarchy which it encompasses. These relations and subject positions must seem to represent the fundamental identity of the community, and ‘the state [must] be conceived ideally as the disinterested and ethical representative of this identity’.[70]
During the decades in which ‘England’ came to have a common meaning, the doctrine of sovereignty — of law as ‘the volition of a sovereign’ — which had seemed inconsistent with Whig constitutionalism, came to dominate writing about law and to seem perfectly compatible with democracy and the social status quo. The last thing modern rulers of the British — or Australian — state wanted, indeed, was an informed discussion of law as a reflection of the habits and dispositions of the people in a democratic context in which all were welcome to participate. The lawyer, like the Arnoldian or Leavisite critic, existed to pre-empt such discussion and to extol the virtues of the canon, properly conceived by the properly credentialled.
However, cultural assimilation — one (High) culture fits all — looks unstable once more in the context, for example, of diasporic population movements and the massification of higher education, which between them have permitted the exploration and articulation of hitherto unspoken cultural difference.[71] Clearly, the appearance of the very subjects whom imperial culture was designed to dis-appear, in Black (or Aboriginal) Studies, Women’s Studies and Cultural Studies, has caused disquiet. Scholarship must be contained. In ‘Euro-American’ universities
[n]eo-colonialism is fabricating its allies by proposing a share of the center in a seemingly new way (not a rupture but a displacement): disciplinary support for the conviction of authentic marginality by the (aspiring) elite.[72]
Corporately sponsored consultants and think tanks have for some time been recommending a mixture of budget cuts and surveillance in higher education — in defence of the status quo against critique, but in the guise of restructuring and change.[73] Substituting for the slow emergence of critical thought in the law discipline, the dull recital of legal dogma will train students for a profession fewer than half will enter, and academics will subordinate their pedagogic judgment to the demands of that profession. In an era in which careers will no longer be for life, generalist intellectual education will be replaced by vocational training for specific careers, and critical interpersonal cultural discussion will be replaced by electronically ‘delivered’ golf course management ‘modules’. These are the hopes and dreams of the managers of the institutions of late imperialism.
[*] As always, a huge intellectual debt is owed to Judith Grbich.
[†] LLB (Hons) (Southampton), BCL (Durham); Solicitor of the Supreme Court of England.
[1] Cited in Simon Gikandi, Maps of Englishness: Writing Identity in the Culture of Colonialism (1996) 15–16.
[2] Richard Wilson (ed), Macaulay: Lord Clive (1920).
[3] Ibid 87. ‘A hostile monarch may promise mountains of gold to our sepoys ... The Company promises only a moderate pension ... But every sepoy knows the promise of the Company will be kept’: ibid. In Macaulay’s essay, grateful sepoys and the 39th Regiment anticipate an answer to Brecht’s questions:
The young Alexander conquered India.
Was He alone?
Caesar beat the Gauls.
Did he not even have a cook with him?
Bertolt Brecht, ‘A Worker Reads History’ in Selected Poems (H R Hays trans, 1947) 108–9. See Anthony Arblaster, The Rise and Decline of Western Liberalism (1984) 49.
[4] Thomas Babington Macaulay, ‘A Speech Delivered in the House of Commons on the 10th of July, 1833’ in Lady Trevelyan (ed), The Works of Lord Macaulay Complete (1886) vol 8, 111, 142.
[5] Terry Threadgold, ‘Law as/of Property’ (1999) 12 International Journal for the Semiotics of Law 369, 375.
[6] Ian Duncanson, ‘Mr Hobbes Goes to Australia: Law, Politics and Difference’ (2000) 13 International Journal for the Semiotics of Law 279. Kaja Silverman, The Subject of Semiotics (1983) 141 explains how the subject finds itself uncannily ‘at home’ in the dominant symbolic order, re-cognising itself ‘within the mirror of the reigning ideology’.
[7] See generally Gauri Viswanathan, Masks of Conquest: Literary Study and British Rule in India (1989); Jyotsna Singh, Colonial Narratives/Cultural Dialogues: ‘Discoveries’ of India in the Language of Colonialism (1996) 123–55.
[8] See Joanna de Groot, ‘“Sex” and “Race”: The Construction of Language and Image in the Nineteenth Century’ in Catherine Hall (ed), Cultures of Empire (2000) 37; K D M Snell, Annals of the Labouring Poor: Social Change and Agrarian England 1600–1900 (1985); Anne McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (1995). On ‘Englishness’, see Robert Colls and Philip Dodd (eds), Englishness: Politics and Culture 1880–1920 (1986). The same process of ‘normalisation’ of white male bodies of a particular class and the attribution of moral deficiency to women and certain male workers was present in 19th century political economy: see Judith Grbich, ‘The Taxpayer’s Body: Genealogies of Exertion’ in Pheng Cheah, David Fraser and Judith Grbich (eds), Thinking through the Body of the Law (1996) 138, 141.
[9] See generally H L Malchow, Gothic Images of Race in Nineteenth-Century Britain (1996); Kelly Hurley, The Gothic Body: Sexuality, Materialism and Degeneration at the Fin de Siècle (1996).
[10] See Leo Panitch, ‘The New Imperial State’ (2000) 2 New Left Review (2nd series) 5. For the role of the preceding ‘liberal’ order of the community of states in silencing the subaltern, see Diane Otto, ‘Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference’ (1996) 5 Social and Legal Studies 337.
[11] Allan Bloom, The Closing of the American Mind (1987) 36, 39. In his Preface Bloom thanks ‘the John M. Olin Foundation [which has] ... supported me as a teacher and scholar for a long time’: at 23. There are accounts of the neo-conservative politics of the Olin Foundation and of its influence in Australia in Mark Davis, Gangland: Cultural Elites and the New Generationalism (2nd ed, 1999) esp ch 9; and Alex Carey, Taking the Risk out of Democracy: Propaganda in the US and Australia (1995) esp 95ff.
[12] Harold Bloom, The Western Canon: The Books and School of the Ages (1994) 527.
[13] Thomas Laqueur finds a similar anxiety in the early 18th century expansion of the market into credit and paper money: Thomas Laqueur, ‘Credit, Novels, Masturbation’ in Susan Leigh Foster (ed), Choreographing History (1995) 119.
[14] See Carey, above n 11, 95–8; also see generally Richard Cockett, Thinking the Unthinkable: Think-Tanks and the Economic Counter-Revolution (1995).
[15] Terry Threadgold, ‘Cultural Theory, Community Politics and the Media’ in Paolo Bartolini, Karen Lynch and Shane Kendal (eds), Intellectuals and Publics: Essays on Cultural Theory and Practice (1997) 117, 123.
[16] Kathleen Wilson, The Sense of the People: Politics, Culture and Imperialism in England 1715–1785 (1995).
[17] As Catherine Hall writes, ‘an English identity could claim to provide the norm for the whole of the United Kingdom and indeed the Empire’: Catherine Hall, ‘Missionary Stories: Gender and Ethnicity in England in the 1830s and 1840s’ in Lawrence Grossberg, Cary Nelson and Paula Treichler (eds), Cultural Studies (1992) 240, 240.
[18] Paul Langford, A Polite and Commercial People: England 1727–1783 (1989).
[19] See, eg, Douglas Hay, ‘Property, Authority and the Criminal Law’ in Douglas Hay et al (eds), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (1975) 17. However, now see Douglas Hay and Nicholas Rogers, Eighteenth-Century English Society: Shuttle and Swords (1997); David Lemmings, ‘Ritual, Majesty, Collective Life and Culture among English Barristers, Serjeants and Judges 1500–1830’ in Wes Pue and David Sugarman (eds), Lawyers and Vampires: Cultural Histories of Legal Professions (forthcoming, 2001).
[20] Eliga Gould, The Persistence of Empire: British Political Culture in the Age of the American Revolution (2000) 183–6 discusses other aspects of the conviction, more common in England, that the 13 colonies were merely extensions of the homeland.
[21] Richard Whatmore, ‘“A Gigantic Manliness”: Paine’s Republicanism in the 1790s’ in Stefan Collini, Richard Whatmore and Brian Young (eds), Economy, Polity, and Society: British Intellectual History 1750–1950 (2000) 135, 138.
[23] Although both Alexis de Tocqueville, Democracy in America (1835) and Henry Maine, Popular Government (2nd ed, 1886) see law as an important check on ‘excessive’ democracy in the United States.
[24] George Otto Trevelyan, The Life and Letters of Lord Macaulay (2nd ed, 1878) 409ff. ‘We must,’ Macaulay had said just before, ‘provide the people with something to say’: John Clive, Macaulay: The Shaping of the Historian (1973) 368.
[25] Matthew Arnold, Culture and Anarchy: An Essay in Political and Social Criticism (1869) 47 (emphasis added).
[26] Peter Goodrich, ‘Poor Illiterate Reason: History, Nationalism and the Common Law’ (1992) 1 Social and Legal Studies 7, 10.
[27] Susan Thorne, ‘“The Conversion of Englishmen and the Conversion of the World Inseparable”: Missionary Imperialism and the Language of Class in Early Industrial Britain’ in Frederick Cooper and Anne Laura Stoler (eds), Tensions of Empire: Colonial Cultures in a Bourgeois World (1997) 238, 247–8.
[28] Susan Kingsley Kent, Sex and Suffrage in Britain 1860–1914 (1987) 203.
[29] Walter Bagehot, Physics and Politics (first published 1876, 1956 ed) 89.
[30] Macaulay, ‘A Speech Delivered in the House of Commons on the 10th of July, 1833’, above n 4, vol 8, 142.
[31] Gauri Viswanathan, ‘Currying Favor: The Politics of British Educational and Cultural Policy in India 1813–54’ in Anne McClintock, Aamir Mufti and Ella Shohat (eds), Dangerous Liaisons: Gender, Nation and Postcolonial Perspectives (1997) 113, 113.
[32] Ibid 128.
[34] Thomas Babington Macaulay, ‘A Speech Delivered in the House of Commons on the 19th of April, 1847’ in Lady Trevelyan (ed), The Works of Lord Macaulay Complete (1886) vol 8, 385, 397–9.
[35] Macaulay, ‘A Speech Delivered in the House of Commons on the 10th of July, 1833’, above n 4, 142.
[36] James Fitzjames Stephen, Liberty, Equality, Fraternity (first published 1873, 1967 ed) 94.
[37] Alastair Pennycook, English and the Discourses of Colonialism (1998) 69.
[38] Anne Laura Stoler and Frederick Cooper, ‘Between Metropole and Colony: Rethinking a Research Agenda’ in Anne Laura Stoler and Frederick Cooper (eds), Tensions of Empire: Colonial Cultures in a Bourgeois World (1998) 1, 1.
[39] Hallam, writing in 1827, differentiates the Tory, who considers the Constitution ‘an ultimate point, beyond which he never looked’, though based on common law, from the Whig, who deems ‘all forms of government subordinate to the public good and therefore liable to change when they should cease to promote that object’: Henry Hallam, The Constitutional History of England (first published 1827, 1978 ed) vol 2, 363.
[40] Jeremy Bentham, A Fragment on Government (first published 1776, 1988 ed).
[41] John Stuart Mill, Considerations on Representative Government (first published 1861, 1991 ed) 345–6.
[42] Simon Ryan, ‘Inscribing Emptiness: Cartography, Exploration and the Construction of Australia’ in Chris Tiffin and Alan Lawson (eds), De-Scribing Empire: Post-Colonialism and Textuality (1994) 115, 117 (citations omitted).
[43] Jeremy Bentham, ‘Of Laws in General’ in H L A Hart (ed), The Collected Works of Jeremy Bentham (1970) 1, 16.
[44] Jeremy Bentham, ‘Anarchical Fallacies’ in A I Melden (ed), Human Rights (1970) 28, 36.
[45] John Austin, The Province of Jurisprudence Determined (1861).
[46] See Eira Ruben, ‘John Austin’s Political Pamphlets 1824–1859’ in Elspeth Attwooll (ed), Perspectives in Jurisprudence (1977) 1, 20.
[47] John Austin, A Plea for the Constitution (1803).
[48] Wilfrid Rumble, John Austin: The Province of Jurisprudence Determined (1995) xi.
[49] Gerald Postema, Bentham and the Common Law Tradition (1986) 38.
[50] Edmund Burke, ‘Speech on the Representation of the Commons in Parliament [1782]’ in Peter Stanlis (ed), Edmund Burke: Selected Writings and Speeches (1963) 328, 328.
[51] Ibid 330–1.
[52] Parliament was thought of as a final umpire in disputes between established groups, not as an active ruler: J Stephen Watson, The Reign of George III 1760–1815 (1960); see also Sir William Blackstone, Commentaries on the Laws of England (first published 1765–69, 12th ed, 1978) vol 1, ch 2.
[53] Edmund Burke, ‘Speech on the Representation of the Commons in Parliament [1782]’ in Stanlis, above n 51, 330.
[54] Edmund Burke, ‘Speech on the Duration of Parliaments [1780]’ in Peter Stanlis (ed), Edmumd Burke: Selected Writings and Speeches (1963) 320, 322 (emphasis added).
[55] Edmund Burke in Hugh Law (ed), Speeches and Letters on American Affairs (first published 1908, 1955 ed) 68, 70–4.
[56] Edmund Burke, ‘Speech on Economical Reform, 1780’, quoted in R J White (ed), Waterloo to Peterloo (1968) 109 (emphasis in original).
[57] Behind both the attacks on the old Constitution in Thomas Paine, The Rights of Man (first published 1791, 1963 ed) and the 19th century demands for the universal adult vote and annual Parliaments was the express wish of the people to imagine their own community: see Gareth Stedman Jones, Languages of Class: Studies in English Working Class History 1832–1982 (1983); Eugenio Biagini and Alastair Reid (eds), Currents of Radicalism: Popular Radicalism, Organised Labour, and Party Politics in Britain, 1850–1914 (1991).
[58] Stephen, above n 36, 175.
[59] Jeremy Bentham, cited in Postema, above n 49, 238.
[60] Peter Cowan, ‘The Origins of the Administrative Elite’ (1987) 162 New Left Review 4, 16–17, 19.
[61] Letter from William Gladstone to Lord Russell, November 1854, quoted in E Feuchtwanger, Gladstone (1975) 92.
[62] Perry Anderson, English Questions (1992) 147. Anderson continues: ‘The civil service reform nurtured by [Benjamin] Jowett was an expressive product of this milieu, organically linking an administrative elite of English intellectuals to the state.’
[63] Matthew Arnold, quoted in Chris Baldick, The Social Mission of English Criticism 1848–1932 (1983) 34 (emphasis in original).
[64] Antoinette Burton, Burdens of History: British Feminists, Indian Women and Imperial Culture 1865–1915 (1994).
[65] John MacKenzie, Propaganda and Empire: The Manipulation of British Public Opinion 1880–1960 (1984).
[66] See, eg, Franklin Court, Institutionalizing English Literature: The Culture and Politics of Literary Study, 1750–1900 (1992).
[67] Brian Doyle, English and Englishness (1989).
[68] David Lloyd and Paul Thomas, Culture and the State (1998) 118.
[69] Ibid.
[70] Ibid 47.
[71] For an assessment of the difficulties of displacing ‘Europe’ as the universal subject in the non-Western world, see Dipesh Chakrabarty, ‘Postcoloniality and the Artifice of History’ in Ranajit Guha (ed), A Subaltern Studies Reader (1997) 263.
[72] Gayatri Spivak, Outside in the Teaching Machine (1993) 57.
[73] Irmline Veit-Brause (ed), Shaping the New University (1996); Frank Coffield and Bill Williamson (eds), Repositioning Higher Education (1997). For a critique of managerialism in universities and the ‘lackadaisical attitude toward written language’ in the manuals of new subjects such as business, see Ian Reid, Higher Education or Education for Hire? Language and Values in Australian Universities (1996) 87. Reid’s examples of the latter resemble the language of Arnold’s spoof Philistine, Businessman Bottles, with his ‘modern’ education: ‘None of your antiquated rubbish ... lots of interesting experiments — lights of all colours — fizz! fizz! bang! bang! Now that’s what I call forming a man’: Matthew Arnold, Friendship’s Garland (1903)
50–1. Cf his extract from Stephan Robbins, Management (4th ed, 1994) 89: ‘Nowhere is it written that a textbook has to be dry and boring. If its subject matter is exciting the text should reflect that ... It should include lots of examples and photographs’.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MelbULawRw/2000/36.html