Colonialism, justice and the rule of law : a Southern African and Australian narrative

• Author: Tom Frost,Sascha Dominik Bachmann
• DOI: 10.10520/EJC135276
• Published date: 01 January 2012
• Date: 01 January 2012
• Pages: 306-328

306

Colonialism, justice and the rule of law: a

Southern African and Australian narrative

Sascha Dominik Bachmann*

Assessor Juris (LMU, Germany), LLM (Stell), LLD (UJ)

Reader in Law, Lincoln Law School, University of Lincoln

Tom F rost

LLB (Hons)(Leic), PhD (Soton)

Lecturer i n Law, Newcastle Law Sch ool, Newca stle Unive rsity

OPSOMMING

Ko l on i al i s me , g e re g ti g h ei d en d ie o p pe r ge s ag v an d ie r eg :

’n Suider-Afrikaanse en Australiese verhaal

Kolonialisme het ’n groot impak op die regstelsels van lande regoor die

wêreld gehad. Die historiese impak van die Britse Ryk kan vandag nog steeds

gevoel word in lande so uiteenlopend soos Australië en Suid-Afrika. Hierdie

impak word in beide hierdie lande ondersoek, in sowel sy historiese vorm

van rassediskriminasie, as die moderne gevolge van die koloniale verlede.

Hierdie artikel ontleed hoe formele opvattings van die oppergesag van die reg

en regsekerheid, pogings om geregtigheid vir gedane historiese onreg te

bewrkstellig, kan ondermyn. Voorbeelde hiervan kan gevind word in die

Aboriginal

grondregte litigasie in Australië, sowel as litigasie in die Verenigde

State van Amerika onder die

Alien Tort Act

.**

1Introductory Remarks

Writing after the fall of the Berlin Wall, Fukuyama posited the “end of

history”, the universalisation of Western liberal democracy as the final

form of human government.1 Western liberal democracy has at its heart

the ideas of equal treatment under the law, individual rights and the rule

of law. Underpinning this is the idea of legal certainty – that the law must

be certain in order to ascertain rights and duties that are applied equally

to all.2 However, the history of Western liberal democracy is inextricably

linked to European colonialism. Indeed, the history and implications of

the rise of liberal democracy in Europe, to be understood properly, must

be read in conjunction with this colonial heritage.

Liberal democracy’s development took place in this shadow; the legal

systems of many countries around the world bear witness to this

intertwined history. It is this intertwined relationship which gives rise to

1 Sascha Dominik Bachmann undertook some prior work in the field of

Human Rights Litigation and Historical Claims Remedies while working as a

Postdoctoral Research Fellow with the University of Johannesburg before

joining the University of Portsmouth, UK, in 2008 and moving to the

University of Lincoln in 2012.

** The authors thank Mrs Sasha-Lee Afrika, LLB, LLM for the Afrikaans

translation.

1 Fukuyama

The End of History and the Last Man

(1992).

2Radbruch

Legal Philosophy

(1932) 112.

*

Colonialism, justice and the rule of law

307

a dilemma: the imposition of a legal order defines empire and

colonialism; the foundation of an independent legal order marks the

birth of the newly independent nation. The law serves both these

masters.3 In a real sense, the ideal of the rule of law played a huge part

both in the colonial imposition of a legal order, as well as the foundation

of an independent legal order after independence.

This article explores this paradox. Two main arguments are put

forward. Firstly, it is contended that

formal

interpretations of the rule of

law and equality have historically served to perpetuate oppression and

discrimination within a colonial context. This argument is supported

through reference to examples of British colonialism in Southern Africa

and Australia.

This second argument is connected to what is called here “historical

justice litigation”, litigation which has at its aim the rectifying of past

oppression in colonial (now postcolonial) states. What is so interesting

about this litigation is its attempt to reconcile belief in the rule of law and

its qualities with an attempt to provide justice for the victims of

oppression. In this way, the law is very much attempting to serve its two

masters. It is in this Janus-faced existence that this litigation proceeds,

heading to an uncertain future.

2 The Rule of Law

In a sense, this article is challenging the rule of law. The phrase “in a

sense” is used here because historical justice litigation is marked by an

adherence to the self-same doctrine, although it is a substantive, rather

than a formal interpretation of the “rule of law” which is adhered to. As

Paul Craig has maintained, the dichotomy between formal and

substantive conceptions of the rule of law is crucially importance in

determining the nature of the specific legal precepts which can be

derived from it.4

The importance of this distinction can be seen through an example of

a United Kingdom statute, the Constitutional Reform Act 2005 (CRA).

Amongst other things, the CRA provided for the new United Kingdom

Supreme Court, replacing the Judicial Committee of the House of Lords.

In prefacing the subsequent constitutional changes (the exact content of

which are not strictly relevant here), section 1 states:

This act does not adversely affect –

(a) the existing constitutional principle of the rule of law.5

3 Douzinas & Gearey

Critical Jurisprudence: The Political Philosophy of Justice

(2005) 283.

4 Craig “Formal and Substantive Conceptions of the Rule of Law: An Analytical

Framework” 1997

Public Law

467.

5 S 1 (c 4) Constitutional Reform Act 2005 (UK).