Chapter 10 - Aboriginal Jurisprudence in Philip McLaren’sLightning Mine
Published online by Cambridge University Press: 23 February 2022
Summary
In recent years, an engagement with the idea of anAboriginal jurisprudence has gained some momentum inlegal literature, especially with reference toissues of environmental law in the age of theAnthropocene. The definition of the term‘jurisprudence’ itself differs, and it is importantto pay attention to that difference here: whereas it‘most commonly means legal philosophy and legaltheory or, more particularly, theories about law,legal reasoning, and justice’, the term can take onseveral other meanings and ‘may refer simply to thebody of case law developed by a particular court’(Horrigan 2001). Furthermore, jurisprudence may alsodenote ‘[a] system or body of law; a legal system’(OED 2019). Thisdifference in meaning is especially crucial when itcomes to a definition of Aboriginal jurisprudence,as it reveals a patronizing attitude towardsAboriginal people when used to refer to the historyand development of decisions of higher courts, as in‘the Australian High Court's aboriginal [sic] jurisprudence’ and ‘theUnited States’ Supreme Court Indian jurisprudence’(Tarlock 1999, 51–52). Such a usage gives theimpression that common law courts are responsiblefor and determine an Aboriginal body of law, whichonce again deprives Aboriginal people of any agency.Instead, the term ‘Aboriginal jurisprudence’ needsto be understood both as the Aboriginal legal systemitself, ‘a canon of law […] which merges fromconcrete encounters’, as Bronwyn Lay (2016, 249)puts it, and as a legal philosophy which is informedby this system. As such, Aboriginal jurisprudencenecessarily stands in the tradition of Aboriginalepistemology and ways of knowledge transmission,which is also reflected in what C. F. Black terms a‘blending of legality and narrative’ (2011, 11). Forher, the central issue of Aboriginal jurisprudence,‘that the true source of the Law is the Land’ (9),does not constitute a legal theory but can only beconveyed through stories and experienced in adialogic engagement with narrative (12). Therefore,in her book she approaches Aboriginal jurisprudencethrough a variety of different stories, ranging fromthe narratives of senior law men to contemporaryliterature.
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- Information
- Mabo's Cultural LegacyHistory, Literature, Film and Cultural Practice in Contemporary Australia, pp. 145 - 156Publisher: Anthem PressPrint publication year: 2021