A consensus has long been established that adherents of the Critical Legal School (and to a lesser extent, Legal Realism) exaggerated their claims of law's indeterminacy. This paper however, attempts to resurrect the indeterminacy debate by articulating, developing and elevating a particular strand of it; namely, the use of unrestrained time frames in factual construction. This claims that factual construction in adjudication is, in part, contingent on the time frames adopted, though absent some metaprinciple on whether to adopt broad or narrow time frames, indeterminacy rears its head. The paper primarily argues that time frame indeterminacy is important as it actually underwrites the attacks levelled by both Critical Legal Studies (CLS) and American Legal Realism (ALR) on legal liberalism. It nourishes ALR critiques by enriching the strict and loose articulations of precedent authored by Karl Llewellyn, and also connects some of the definitive themes that underline the CLS literature, specifically the rules-standards and free will-determinism contradictions in legal liberal discourse. Coupled with an emerging interest in the role of time and temporality in law and regulation, it is hoped this paper will contribute to an emergent corpus of work by re-energising still pertinent debates of indeterminacy.
Abstract:This article argues that despite the UK Government’s exaltations of self-determination of its Overseas Territories, provisions of colonial governance persist in their constitutions. Further, it posits that such illustrations begin to answer the broader question of whether British Overseas Territories (BOTs) are modern day colonies. Such claims are not without merit given that 10 out of the 14 BOTS are still considered Non-Self-Governing Territories by the United Nations and have remained the target of decolonisation efforts. Drawing insights from post-colonial legal theory, this article develops the idea of the persistence of colonial constitutionalism to interrogate whether structural continuities exist in the governance of the UK’s British Overseas Territories. The analysis begins to unravel the fraught tensions between constitutional provisions that advance greater self-determination and constitutional provisions that maintain the persistence of colonial governance. Ultimately, the post-colonial approach foregrounds a thoroughgoing analysis on whether BOTs are colonies and how such an exegesis would require particular nuance that is largely missing in current institutional and non-institutional articulations of, as well as representations on, the issue.
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