Oxford Journal of Legal Studies 32 (1):113-151 (2012)

Abstract
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 18th-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 troubling
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1093/ojls/gqr030
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 55,825
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Analytics

Added to PP index
2013-11-02

Total views
14 ( #675,594 of 2,401,527 )

Recent downloads (6 months)
3 ( #257,496 of 2,401,527 )

How can I increase my downloads?

Downloads

My notes