The British Empire was an elaborate project of systematic violence and the juridical ideal of the ‘rule of law’ was one weapon in the coloniser’s arsenal. Or at least this is a theme developed within the growing literature on Empire (e.g., Caroline Elkins, Legacy of Violence: A History of the British Empire (London: Penguin, 2022)).

In many ways, this theme contextualises a general point advanced by certain legal philosophers — the idea that, to borrow from Professor Joseph Raz (Fellow and Tutor in Law 1972-1985, Professorial Fellow 1985–2006, Emeritus Fellow 2006 – 2022), the rule of law sharpens the knife of law but does not tell us whether its use is just or unjust. This view has not gone unchallenged. E.P. Thompson insisted that even in the face of an unjust legal system the rule of law remains an unqualified human good (a surprising conclusion for a Marxist social historian).

In this month’s Balliol Online Lecture, Professor Mark Walters (Oliver Smithies Visiting Fellow) will give a presentation that will offer some reflections on competing approaches to the rule of law by drawing examples from the history of relations between the British Empire and Indigenous nations in North America. Was an intersocietal rule of law possible between such radically different societies? Examples will be considered of how treaty relations may be understood as an attempt, even if flawed, at building a kind of cross-cultural rule of law. And then conclude by offering some observations on how historic Crown-Indigenous treaties are relevant for the project of ‘reconciliation’ in the law of Canada today.

Professor Mark Walters, from Queen’s University, Ontario, is recognised as one of Canada’s leading scholars in public and constitutional law, legal history and legal theory. He has researched and published extensively in these areas, with a special emphasis on the rights of Indigenous peoples, institutional structures and the history of legal ideas. His work on the rights of Indigenous peoples, focused on treaty relations between the Crown and Canada’s Indigenous nations, has been cited by the Supreme Court of Canada, as well as by courts in Australia and New Zealand. Professor Walters also writes on the rule of law and is the author of A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge University Press, 2020).