Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871–1921 (review)

1 That Hutchinson treats the official perspective as the principal marker for distinguishing between political cultures suggests that he has not managed to break free from the top-down image of law that blights the analytic approach. Hutchinson runs into this problem because he does not address the true source of the vertical image of law in Thomas Hobbes’s legal and political philosophy. Hobbes worries that people are prone to destabilizing social disagreement and argues for a sovereign power to stipulate and enforce common societal values through positive law. The sovereign’s monopoly of force thus makes it rational for citizens to internalize these values and to engage in social cooperation. The result is an authoritarian view of law in which officials dominate the citizenry through the threat of sanction-backed laws. 2 The point to see is that the top-down image of law in Hobbes’s thought derives from the belief that the answer to divisive social disagreement is the quest for consensus, and that law should therefore be the instrument for achieving that consensus. To break loose from the top-down image of law, one must question this direction of thought. Contemporary jurisprudential inquiry, exemplified by the analytic approach, does not pose this question and takes for granted the assumption that law’s role in enabling social stability is to provide the basis for consensus. 3 While I am sympathetic to Hutchinson’s critique of the analytic approach, he does not go far enough in probing the source of the problem, so that his preferred jurisprudential view remains haunted by the same official/citizen binary he sees in the analytic approach.