Property and Empire: The Law of Imperialism in Johnson v. M’Intosh

Chief Justice\u27s Marshall\u27s opinion in Johnson v. M\u27Intosh, 21 U.S. (8 Wheat.)543 (1823) has long been a puzzle, both in its doctrinal structure and in long, strange dicta which are both triumphal and elegiac. In this Essay, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, like the case itself, with the expropriation of continents and relations between dominant and subject peoples. I examine several instances where the seeming incoherence of the opinion instead shows its debt to imperial jurisprudence, which rested on a distinction between two bodies of law: one governing relations between civilized nations, the other relations between civilized governments and the imperfect sovereigns of other nations. I then show how Marshall\u27s long dicta reflect the then-prevalent view of the hsitorical progress of societies from hunter-gatherer to commercial orders, with each stage corresponding to a particular set of property institutions.This historical theory lent intelligibility to the legal distinctions between civilized and lesser or imperfect sovereigns by claiming that the latter occupied earlier stages of development and that civilized nations were legally permitted to overrride the property institutions of primitive societies in order to induce progress. The dicta, then, provide the frame for the reasoning of this case, just as the theory of historical progress framed the jurisprudence of colonialisn in general

Property and Empire: The Law of Imperialism in Johnson v. M’Intosh

Chief Justice\u27s Marshall\u27s opinion in Johnson v. M\u27Intosh, 21 U.S. (8 Wheat.)543 (1823) has long been a puzzle, both in its doctrinal structure and in long, strange dicta which are both triumphal and elegiac. In this Essay, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, like the case itself, with the expropriation of continents and relations between dominant and subject peoples. I examine several instances where the seeming incoherence of the opinion instead shows its debt to imperial jurisprudence, which rested on a distinction between two bodies of law: one governing relations between civilized nations, the other relations between civilized governments and the imperfect sovereigns of other nations. I then show how Marshall\u27s long dicta reflect the then-prevalent view of the hsitorical progress of societies from hunter-gatherer to commercial orders, with each stage corresponding to a particular set of property institutions.This historical theory lent intelligibility to the legal distinctions between civilized and lesser or imperfect sovereigns by claiming that the latter occupied earlier stages of development and that civilized nations were legally permitted to overrride the property institutions of primitive societies in order to induce progress. The dicta, then, provide the frame for the reasoning of this case, just as the theory of historical progress framed the jurisprudence of colonialisn in general

The domain of authority

If the commands of authority are peremptory and content-independent directives, it is a great puzzle why any rational autonomous agent should accept them as morally binding, as Robert Paul Wolff and others have argued. I analyse the peremptory and content-independent quality of authoritative directives and argue that all earthly authorities operate within a specified domain. I investigate three candidates for the role of universally applicable boundary conditions–morality, harm to self, and absurdity. I conclude that commands are authoritative only when intra vires, i.e. issued within the proper domain of the authority. Wolff's challenge is not met, hut it is shown to be less forbidding

The rule of law after globalisation: is myth or reality?

The rule of law is unique establishment that had taken place in historical context, as politico-legal edifice of capitalist society. To the extent that any legal system was established in historical context, its form and functioning are cannot be channelled by reflections or professional commitments of lawyers and legal philosophers. The rule of law emerged in certain conditions that we say “classical liberalism”, of power allocation where we diversify political power and legal power in the milieu of political society, enunciated as republic or commonwealth. Contrary to earlier forms of legal order, capitalism was unique that its super structure was articulated according to the pivotal role of legal machinery. There was an actual equilibrium between legal and political domains that they moderately matched with public and private dichotomy. After monopoly capitalism, social setting of liberalism was dramatically incurred some major modifications which were firstly dislocation of liberal individual, incited by monopoly capital and secondly, political achievement of the working classes obtained political equality, as drastic consequence of mass society. Hence, the rule of law altered as depoliticsation of democratised mass society, instead of modus vivendi of liberal individuals, which demarcated the rule of law according to welfare society or sozialrechtsstaat. The neo-liberal globalisation after 1980’s, republican model of political society faded away that it has been transformed by transnational capital where markets, hierarchies, regionalism and communal settings crosscut inner equilibrium between politics and law. Finally, the newborn articulation of power structure undermined necessary basement of the rule of law

Wealth and Democracy

The renewed debate over inequality has highlighted a set of deficits in much of the last fifty-plus years of thinking on the topic. The late twentieth-century tradition of thinking about distributive justice largely assumed (1) that market dynamics would produce stable and tolerable levels of inequality; and (2) that a relatively powerful, competent, and legitimate state could effectively redistribute to mitigate what inequality did arise. What was largely overlooked in this thought and has since risen to central attention is the prospect that (1) accelerating levels of market-produced inequality will (2) undermine the legitimacy and efficacy of the state and disable the political community from effectively pursuing distributive justice. This paper explains how the earlier assumptions arose, defined the boundaries of distributive justice for decades, and were undermined by developments from both the political left and the political right. At present, the dynamics of inequality appear to be self-perpetuating and self-accelerating, and much of earlier thinking on the topic has been rendered irrelevant by the erosion of its mistaken premises. Only a democratic effort to reconstitute a competent and legitimate state has any prospect of making inequality a tractable problem subject to effective intervention

Afterword: The Libertarian Middle Way

Libertarianism is sometimes portrayed as radical and even extreme. In this Afterword to a symposium on Libertarianism and the Law in the Chapman Law Review, I explain why, though it may be radical, libertarianism is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right. Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, both of these comprehensive approaches are recipes for societal conflict. And the legal institutions that are necessary to implement each vision must be highly intrusive and coercive. In contrast, libertarianism is far more modest: it stipulates only that individuals may do what they please with what is theirs, requiring a legal system merely to define the proper jurisdiction of each person over their rightfully acquired property. I explain how the basic insight of libertarianism is rooted in the spirit of toleration that was the classical liberal solution to the socially destructive religious wars. Like Westphalian political sovereigns who are to leave each other in peace and not to interfere with each other\u27s domestic affairs, classical liberalism posited the sovereignty of individuals to pursue the good life peacefully within their own jurisdictions, free from outside interference, provided they do not infringe upon the like jurisdictions of other sovereign individuals. I conclude by explaining how libertarianism contributes to the private law that defines the contours of these individual jurisdictions, and the public law that is supposed to confine government to its proper function of protecting the rights of persons better than they can protect themselves. Although many would prefer their own preferred visions of social justice or legal moralism (or both) to be imposed on everyone else, libertarianism represents an appealing second best or middle way alternative to having someone else\u27s wrong vision of social justice or of morality imposed upon them

Declaratory Relief in Tucker Act Suits: A Broadening of the Money-Judgment Jurisdiction Concept

Until recently the Court of Claims took a restricted view of the interrelationship of the Declaratory Judgment Act and its jurisdiction under the Tucker Act. Then in King v. United States these self-imposed jurisdictional limitations were disavowed, and for the first time the United States government was required to defend a declaratory judgment action relying solely on the tucker Act to establish jurisdiction. The rationale in King, as this note interprets it, raises broad questions touching the continued viability of the sovereign immunity concept as well as more particularized procedural problems for plaintiffs who seek the newly available declaratory relief