Thinking About Law: Perspectives on the history, philosophy and sociology of law

by Richard Johnstone (Editor), Richard Ingleby (Editor)

Overview

There is more to law than rules, robes and precedents. Rather, law is an integral part of social practices and policies, as diverse and complex as society itself.

Thinking About Law offers a comprehensive introduction to the ways in which law has been presented and represented. It explores historical, sociological, economic and philosophical perspectives on the major legal and political debates in Australia today.

The contributors examine the position of Aborigines in the Australian legal system and the impact of the Mabo case; divisions of power in Australian society and law; the question of objectivity in law; the relationship between legislation and social change; judicial decision-making and other issues.

Accessibly written, Thinking About Law is essential reading for students and anyone interested in understanding our legal system.

Product Details

ISBN-13:	9781863738422
Publisher:	Taylor & Francis
Publication date:	07/01/1995
Pages:	268
Product dimensions:	6.12(w) x 9.19(h) x (d)

About the Author

All three editors teach in the Law School at the University of Melbourne. ROSEMARY HUNTER is the author of Indirect Discrimination in the Workplace (1992); RICHARD INGLEBY is a Senior Associate with Gadens Ridgeway and the author of Family Law and Society (1993); and RICHARD JOHNSTONE is co-author with M. Le Brun of The Quiet (R)evolution (1994).

Read an Excerpt

Thinking About Law

Perspectives on the History, Philosophy and Sociology of Law

---

By Rosemary Hunter, Richard Ingleby, Richard Johnstone

Allen & Unwin

Copyright © 1995 Rosemary Hunter, Richard Ingleby Richard Johnson
All rights reserved.
ISBN: 978-1-86373-842-2

---

CHAPTER 1

Law and history in black and white

Penelope Mathew, Rosemary Hunter and Hilary Charlesworth

Where did Australian law begin? According to traditional legal historiography the origins of Australian law are found in England, around the time of the Norman conquest in 1066. The English law that developed in the succeeding centuries was ultimately imported to Australia by the British colonists, laying the foundation for an Australian law which grew to have a separate existence from its English parent. This account assumes that the history of law in Australia, like all other Australian histories, began only with the 'discovery'of Australia by Captain Cook in 1770.

For most of the past two hundred years, the very idea of a history of Australia before Cook ('BC', as many Aboriginal people say) has been denied. Indeed, the period before colonisation has been persistently classified as 'pre-history'. The physical existence of the original inhabitants of Australia was undeniable, but the generic Latin name ab origine bestowed by the European invaders on over two hundred distinct language groups obscured their identities, and their understandings of the past were categorised and dismissed as 'myths'and 'legends'. 'History'was all about civilisation and progress. In the perceived absence of change or progress in Aboriginal societies, 'Aboriginal history was an impossibility'.

Just as European historiography saw Australia BC as lacking history, the Anglo-Australian common law held that Australia BC was devoid of law. Aboriginal societies did not include institutions of the kind which characterised law in European states. In particular, they had nothing recognisable to English lawyers as a form of land tenure. Thus the legal fiction was established that Australia was terra nullius — literally, land belonging to no one. Accordingly, the land was open for settlement by the British, who brought their own law to the new colonies of New South Wales, Western Australia and South Australia, and made the indigenous people subject to it.

Recent years have seen the establishment of 'Aboriginal history'as a field of study, but Aboriginal law remained largely invisible to the Anglo-Australian legal system. It was not until 1992, with the High Court's decision in Mabo v Queensland (the Murray Islands case), that legal knowledge finally shed its colonialist blinkers. In a claim by the Meriam people of the Torres Strait concerning their rights to land under their own law, the High Court held that the Anglo-Australian common law is capable of recognising and giving effect to 'native title' — that is, title to land derived from the legal systems that existed in Australia BC. The Murray Islands case signals that, even in the eyes of the imported legal system, the history of law in Australia began long before Cook.

In order to comprehend the Murray Islands case and other Aboriginal claims, lawyers need some understanding of Aboriginal law and societies BC. Such an understanding will not be gained from traditional legal materials. Disciplines such as history, anthropology and archaeology can contribute to understanding, though they too have been associated with the colonialist enterprise. The perspectives of Aboriginal people themselves are a vital element in understanding the indigenous past. Again, however, Aboriginal people have often been compelled to translate their knowledge literally and metaphorically 'into English', in order to be heard at all.

This chapter examines representations of Aboriginal societies and law Before Cook. It focuses particularly on the representations made by the Anglo-Australian legal system up to and including the Murray Islands decision. The chapter concludes by looking at the prospects for further accommodation between Aboriginal and non-Aboriginal legal systems.

Representations of Aboriginal law and society BC

According to Koori activist Gary Foley:

Aboriginal society and European society are diametrically opposed. European society, if you want a really simplistic analysis, is essentially competitive. It is laughably referred to as a free enterprise society. It holds up materialism and individualism as being the great things to aspire to. And its basic unit is the nuclear family. Aboriginal society is different at all levels. Aboriginal people reject the concept of individuality, of materialism. Ours is a non-competitive society; for want of a better term, it is a socialist society. And the basic unit of our society is the extended family. As far as we are concerned, we lived here in perfect harmony with each other and with the total environment.

Here Foley uses European concepts to convey a favourable view of Aboriginal society in comparison with European society. The success of his argument depends on the extent to which the reader is prepared to accept that a 'non-competitive', 'socialist'and harmonious society is better than a competitive, materialistic and individualistic one. Such comparative language has more often been used to demonstrate the worth of European cultures and the lack of worth of the societies they displaced in the process of colonisation. Indigenous people have consistently been portrayed as the negative of the colonisers. They have been described as static while colonisers are active, as primitive while colonisers are civilised, as roaming the land while colonisers put it to good economic use. It has been argued that indigenous cultures were doomed to 'wither away'after contact with the more aggressive and progressive cultures of European settlers.

Such European representations have been defended as objective human knowledge, based on observed historical facts. Yet the claim to objectivity is open to question, as the evaluation and interpretation of historical evidence ultimately rest upon a system of beliefs. Non-Aboriginal history, 'based on beliefs about the basic importance of time and space, and the scientific predictability of the physical processes governing the world and its occupants ... satisfies those who believe in its view of the world'. The following examination of accounts of Aboriginal law and societies BC, from early colonial, archaeological and anthropological perspectives, draws attention to the worldviews, systems of beliefs and disciplinary preoccupations from which the accounts were generated, and which European readers may share. The section begins, though, with an attempt to represent Aboriginal views of the past. Of course, non-Aboriginal writers cannot speak for Aboriginal people. But neither can Aboriginal perspectives be excluded, as that would simply perpetuate their invisibility.

Aboriginal histories

All Aboriginal languages were and are spoken languages, so Aboriginal histories are oral, pictorial and performative rather than written. Important knowledge is passed down the generations through dance, art, song and stories. Most significant are Aboriginal creation stories. Europeans have regarded these stories as 'myths'and 'legends'from the 'Dreamtime', but for Aboriginal people they are the foundations of religious-moral-legal systems. The stories tell of travelling spirit ancestors who, in the course of their journeys, formed and marked out the earth and the sky and established the law, mapping it onto the country. These ancestral beings fought with each other, and struggled with other forces. They became transformed, into rocks, landforms, animals and birds, the stars.

While Western historians might determine the truth of an historical account by checking the author's sources, Aboriginal people use a different set of indicators to establish the truth of their stories. Firstly, the location of a story in 'Dreaming'time (before the beginning of human time, or out of time) provides it with an eternal verity. Secondly, proof of the story exists so long as the physical landmarks representing the transformed ancestors remain. Place, rather than time, is central to Aboriginal histories. Thirdly, the story is known to be true if it is told by an acknowledged custodian, to whom it has been entrusted by generations of past custodians. For example, in the following preamble to an historical account of Captain Cook (not a creation story) the storyteller establishes the place of the story and his own source of knowledge. The story, Captain Cook, comes from the south coast of New South Wales, and was related by Percy Mumbulla of Ulladulla and 'recorded'by the poet Roland Robinson:

    Tungeei, that was her native name.
    She was a terrible tall woman
    who lived at Ulladulla
    She had six husbands
    an'buried the lot.
    She was over a hundred, easy,
    when she died.
    She was tellin'my father
    They were sittin'on the point
    that was all wild scrub.
    The big ship came and anchored
    out at Snapper Island
    He put down a boat
    an'rowed up the river
    into Batemans Bay.

Aboriginal creation stories deal not just with the sources of the land and its people but also with the sources of the law. Thus storytellers and ceremonies renew links with the Dreaming and reinforce the law. Aboriginal law is understood as a transcendent rather than temporal phenomenon. It is said to have been established in the Dreaming rather than being created by human agents, hence it is not susceptible to alteration by humans to suit their needs at particular times. Moreover, law does not exist in a compartmentalised area of life, but is pervasive and all-encompassing. In particular, law and the land, having been created together, are closely connected. In Pat Dodson's words, law forms part of 'a complex intimacy between Aboriginal people and their country'.

Aboriginal societies flourished on the Australian continent for tens of thousands of years. Today's descendants of those societies are justifiably proud of their history. In the years following the colonisation of Australia, however, that history was subjected to sustained assault. The physical and cultural genocide of Aboriginal peoples resulted in the loss of languages, stories, land and law. Aboriginal attempts to have their laws and rights to land recognised (as discussed in later sections of this chapter) are only now meeting with some success. At the same time, Aboriginal people are concerned to record the languages and oral histories that remain as an important source to set alongside the extensive and readily available European accounts of the past. These efforts are inevitably interconnected. As the later discussion of the Murray Islands case makes clear, while European accounts of the past have been used by the Anglo-Australian legal system to deny claims for the recognition of Aboriginal laws and land rights, Aboriginal oral histories have become essential evidence required to support such claims.

Non-Aboriginal perspectives

Since the time of colonisation the indigenous people of Australia have been relentlessly observed and studied by Europeans. Indeed the study of indigenous peoples was a key aspect of colonialism. As the historian Chris Healy points out, 'The white invasion of this continent can be written as the story of Aboriginal people being made subjects by twin forces of domination and documentation'.

The earliest European observers of the Aborigines were sailors, soldiers and convicts, settlers, explorers, missionaries, amateur ethnographers and Protectors. These early observers wrote about social organisation and relationships in Aboriginal societies, education of children, ritual and economic activities, relationships to land and the natural world, and crime and punishment. They explained, for example, the way in which Aboriginal law was internalised through education, obviating the need for elaborate political or judicial systems. They represented senior males as the locus of authority and power in Aboriginal groups, although in this respect it is difficult to tell whether they were being descriptive (reflecting the actual situation) or normative (reflecting what they expected and desired to see, in their own cultural terms).

The construction of Aboriginal societies as strongly patriarchal was one of the many ways in which European interpretations were inevitably coloured by their particular interests and preconceptions. Explorers, for example, were most interested in the prospects of the land they were 'discovering'. Natives were an inconvenient intrusion, both on the land and in their narratives of discovery. As Gary Foley points out: 'When I went to school, I was told that Blaxland, Lawson and Wentworth discovered the route across the Blue Mountains; they neglected to tell us that an Aboriginal person showed them the way across, because Aboriginal people had been doing it for thousands of years'.

The pastoralists who followed the explorers had an overwhelming interest in ensuring that local Aborigines did not interfere with their livestock or grazing land. Thus it was against their interests to accord the Aborigines an equal humanity or an attachment to the land. Missionaries were there to Christianise and civilise, so were likely to characterise indigenous customs as barbaric. In addition, early European observations of Aboriginal societies were distorted by the fact that they were observing the situation post-contact rather than pre-contact. Reports of warfare between Aboriginal groups, for example, may have been more a reflection of the dislocation of some groups, forcing them to trespass on others'land, than an accurate indicator of a way of life before the coming of the Europeans.

The often self-interested observations of Aboriginal societies by early European settlers may be contrasted with the 'detached'approach of archaeology. Archaeologists confine themselves to material evidence — sites and artefacts. Archaeological research has demonstrated that there was great diversity among Aboriginal societies BC, and that those societies changed and altered their environment over time. The fact of diversity contradicts the essentialised and undifferentiated view of Aborigines taken by European settlers, who named and treated Aboriginal groups across the continent as if they were all the same, defined primarily in terms of their race.

Archaeologists can offer opinions about population and technological changes and about economic and ritual activity, and can draw relevant material comparisons. The noted Australian archaeologist D. J. Mulvaney points out, for example, that 'Aboriginal people in 1788 actually exploited the resources available with great efficiency and ate a better-balanced diet than most European town- or Asian country-dwellers of the time. Their way of living also demanded less labour, allowing them more time for creative activities.'

Archaeological methods do, however, produce a focus on some aspects of life while ignoring others. The evidence they use yields no direct information about law, oral traditions or knowledge, about the dynamics of social and spiritual relationships, or about the interrelationship between various aspects of life. The limits of archaeological knowledge are particularly acute in relation to cultures which do not leave written records.

Nevertheless, the science of archaeology has taken precedence over Aboriginal histories as the authoritative form of knowledge about Australia's past. '[W]hite Australia has foundan independent source of information about the human history of the continent, and this information is notcouched in hard-to-get-at concepts like the Dreamtime.' Archaeological 'discoveries' mirror explorers' 'discoveries', enabling white Australians to take possession of the past as well as the country. For example, contrary to Aboriginal views about the length of their occupation of the continent, archaeologists at first insisted that Aboriginal people had been in Australia for only about 15,000 years. Then, in the 1970s, a burial site at Lake Mungo in southern New South Wales produced evidence of human habitation and sophisticated social practices over 30,000 years old. This new archaeological evidence set the new parameters for the 'known' period of Aboriginal settlement. From an Aboriginal perspective, 'Now the experts' research techniques have caught up with the teachings of Aboriginal oral culture'.

The significance of physical evidence for an archaeologist may be qualitatively different from its significance in Aboriginal history. The ritual use of an object or the personal ancestral associations of physical features such as rocks may not be appreciated. Interpretations of physical objects and speculations about the Aboriginal society in which a particular object was used are necessarily influenced by other sources of evidence, such as the observations of early European settlers, the archaeologist's own cultural assumptions and values, or anthropological studies of the social practices of particular Aboriginal groups. Yet filling in the gaps of archaeology with anthropological data tends to militate against the notions of change and diversity in Aboriginal societies. Anthropological conclusions about one group at a particular time are not necessarily applicable to other groups at other times.

(Continues...)

---

Excerpted from Thinking About Law by Rosemary Hunter, Richard Ingleby, Richard Johnstone. Copyright © 1995 Rosemary Hunter, Richard Ingleby Richard Johnson. Excerpted by permission of Allen & Unwin.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

---

Table of Contents

Acknowledgments

Tables and figures

Contributors

Introduction - Rosemary Hunter, Richard Ingleby and Richard Johnstone

PART ONE

1 Law and history in black and white - Penelope Mathew, Rosemary Hunter and Hilary Charlesworth

PART TWO

2 Themes in liberal legal and constitutional theory - David Wood, Rosemary Hunter and Richard Ingleby

3 Economic and sociological approaches to law - Richard Johnstone

4 Objecting to objectivity: the radical challenge to legal liberalism - Gerry J. Simpson and Hilary Charlesworth

PART THREE

5 Explaining law reform - Rosemary Hunter and Richard Johnstone

6 Invocation and enforcement of legal rules - Richard Ingleby and Richard Johnstone

7 Judicial decision making - Richard Ingleby and Richard Johnstone

Notes

Bibliography

Index