Indigenous law, colonial injustice and the jurisprudence of hybridity

ABSTRACT

As Aboriginal and Torres Strait Islander peoples have increasingly come into contact with the mainstream Australian legal system, as offenders, litigants or victims of it, that system has not only had to confront its legacy of colonial violence, but it has been called to question first, the legitimacy of its own authority based upon that violence and, second, the limits of its ability to properly administer justice for First Nations Australians. This paper will address the question of “what does it mean to decolonise justice for First Nations Australians?” It argues that decolonising justice entails nurturing a “jurisprudence of hybridity” as a response to the imbalance whereupon colonial justice violated Indigenous Law. This process, the paper argues, entails three steps: decolonising the mind, listening and learning of Indigenous Law ways; destabilising colonial legal authority in order to examine its knowledge/power relations and shifting the paradigm of legal pluralism from monist-pluralism to pluralist-pluralism.

KEYWORDS:

• Australian legal system
• colonialism
• hybridity
• indigenous law
• legal pluralism

Acknowledgement

I gratefully acknowledge the comments of Tanya Mitchell, University of Sydney, and the two anonymous reviewers on earlier versions of this paper.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. In using this terminology, I do not intend to place First Nations and Indigenous people into one simplistic category. I acknowledge the diversity and complexity of Aboriginal and Torres Strait Islander communities in Australia with their many systems of law and knowledge.

2. Versions of this theory can be found in the writings of Thomas Hobbes, John Locke, Jean-Jacques Rousseau and Immanuel Kant. For a discussion, see Meeks (2000).

3. Following Jacques Derrida (1992), as a philosophical technique, deconstruction constitutes a strategy for reading, a strategy for interrogating ideas, a mode of critical analysis and a transformative politics. It involves three interrelated techniques. The first is reversal and displacement, which moves through three stages: challenge conceptual oppositions; make explicit concealed assumptions; remove hierarchy. The second locates aporia - an impasse - and explores the ethico-political space of undecidability as that moment before a decision is made. The third identifies how the conditions of possibility of something are its impossibility (for example, the condition of possibility of a decision is undecidability - i.e. its impossibility).

4. R v Ballard [1829] NSWSupC 26.

5. R v Murrell [1836] NSWSupC 35.

6. R v Bonjon (Unreported, Supreme Court of NSW, 20 September 1841).

7. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

8. Cooper v Stuart (1889) 14 App Cas 286 (Privy Council).

9. Mabo v Queensland [No. 2] (1992) 107 ALR 1.

10. Kartinyeri v Commonwealth (1998) 195 CLR 337.