Articles

Dr Ann Hunter (BA (Psych), LLB, Grad Dip Bus, Grad Dip Env Sc, PhD (history))

The status of Aboriginal customary law in early colonial Western Australia - A parallel Aboriginal Jurisdiction?

This article examines the debates regarding legal pluralism and the status of Aboriginal law in Western Australia when John Hutt was governor from 1839 to 1846 and had a specific objective to develop a model of colonial governance over Aboriginal people. As in New South Wales, it was not simply a matter of expediency, but moral and legal obligations, which drove a few officials and lawyers to criticise the extent of the application of British sovereignty and law. While there has been some studies of the case of R v Wewar, there has not been an investigation into the extent of the legal debates arising after this case.

The question of Aboriginal jurisdiction and legal autonomy was largely debated where European lives and property were not regarded as directly affected. Lawyers at the time realised that the assertion of British Crown sovereignty over Aboriginal people was uncertain and evolving. In seeking guidance, they looked more to theory and practice in other parts of the British Empire where more pluralistic legal systems existed, such as in India, North America and the early United States. They contrasted the conduct of the governments and courts there in relation to Indigenous peoples where a degree of indigenous legal autonomy was accommodated, with that in Australian colonies including WA.

Joshua Krook (PhD student, The University of Adelaide Law School)

A Brief History of Legal Education: A Battle Between Law as a Science and Law as a Liberal Art

The history of legal education is one of transformation. From the Inns of Court in London to the modern university, from informal ad hoc teaching to formalised accreditation, from law schools experimenting in techniques and methods to the dominance of a single method of instruction.

The history is a battle of ideas. Ideas over what the law is, how it should be taught and the kinds of student a law school should produce. Frequently, law schools have been the battleground of fierce intellectual rivalries, with rival schools of thought battling for supremacy and control over the future of the curriculum. The major battle has been between those who see law as a liberal art and those who see law as a science. Over time, the latter group has largely prevailed, creating the modern legal education system that we know today, one that is dominated by a view of law as a technical skill, taught as a vocation or trade.

Joella Marron

Divine Violence and the Outlaw: The Works, Deeds and Words of Ned Kelly

Inherent tensions between emerging or post-conflict states and the outlaw are not new. The creation of ‘outlaws’ can help a state define itself by reference to the ‘other’.  A dilemma facing individuals and movements resisting State oppression and the violence of the law, is how and when to work within and outside the law and the (il)legitimacy of unsanctioned counter-violence.  This paper considers an example from Australian colonial history, the case of the legendary outlaw Ned Kelly, which occurred at a critical juncture in the formation of state in Australia. Through a critical legal analysis of Ned Kelly’s works, deeds and words, this paper aims to generate insight into the dynamics between law, violence, power and justice and the nexus between the outlaw and the state-building project in the Australian context. By exploring the tensions between violence internal and external to the law and drawing on the Benjaminian concept of ‘divine’ violence as existing outside and beyond the law, this paper notes the potentially transformative effects of divine violence and its continued relevance to contemporary struggles between states and the oppressed.

Book Extract

Julian Burnside AO QC

Foundations, from Watching Out: Reflections on Justice and Injustice (Scribe, 2017)

Edited Book Extract

Craig Dent (State Trustees Victoria, PhD student, Swinburne University) 

from The Creation of Trust (Australian Scholarly Publishing, 2017)