'Though it shocks one very much': Formalism and Pragmatism in the Zong and Bancoult

TY - JOUR

T1 - 'Though it shocks one very much'

T2 - Formalism and Pragmatism in the Zong and Bancoult

AU - Arvind, TT

PY - 2012/3

Y1 - 2012/3

N2 - In Bancoult, a majority of the House of Lords upheld the British Government’s use of the royal prerogative to expel the population of the Chagos Islands from their homeland. The majority acknowledged that the Government’s treatment of the Chagossians was disturbing, but held that the law left them with no choice but to hold the orders valid. In this article, I draw a parallel between this decision and the eighteenth century judicial response to the Zong affair – where over a hundred slaves were thrown off a ship to drown in the sea. Both decisions are cloaked in formalist rhetoric but, as I show through an examination of the law as it stood prior to each of the decisions, the actual legal reasoning in both decisions is so without basis as to be unsustainable on any formalist or legalist account. Rather, the decision in Bancoult, like the decision in the Zong, shows all the hallmarks of being a purely pragmatic one, prompted by broader concerns as to the practical impact of a contrary decision and the precedent it would set. The inherent limitations of this mode of judicial reasoning make its deployment in Bancoult particularly troubling.

AB - In Bancoult, a majority of the House of Lords upheld the British Government’s use of the royal prerogative to expel the population of the Chagos Islands from their homeland. The majority acknowledged that the Government’s treatment of the Chagossians was disturbing, but held that the law left them with no choice but to hold the orders valid. In this article, I draw a parallel between this decision and the eighteenth century judicial response to the Zong affair – where over a hundred slaves were thrown off a ship to drown in the sea. Both decisions are cloaked in formalist rhetoric but, as I show through an examination of the law as it stood prior to each of the decisions, the actual legal reasoning in both decisions is so without basis as to be unsustainable on any formalist or legalist account. Rather, the decision in Bancoult, like the decision in the Zong, shows all the hallmarks of being a purely pragmatic one, prompted by broader concerns as to the practical impact of a contrary decision and the precedent it would set. The inherent limitations of this mode of judicial reasoning make its deployment in Bancoult particularly troubling.

UR - http://www.scopus.com/inward/record.url?scp=84858221885&partnerID=8YFLogxK

U2 - 10.1093/ojls/gqr030

DO - 10.1093/ojls/gqr030

M3 - Article

SN - 0143-6503

VL - 32

SP - 113

EP - 151

JO - Oxford Journal of Legal Studies

JF - Oxford Journal of Legal Studies

IS - 1

M1 - gqr030

ER -