Abstract
The Australian legal tradition has demonstrated a persistent reluctance to reflect on the question of what exactly constitutes the foundations of national sovereignty. The question is said to be not judiciable in an Australian court.1 The separation of powers has generated a good deal of commentary, particularly when the High Court impinges on the aspirations of governments, but in Australia we are not much given to delving behind that division of powers itself into the roots of their authority. The situation is different in the United States in that the foundation provided by the federal Constitution, itself enshrining a code of God-given human rights, can more directly influence the daily realities of legal and political decision making. In Australia, the sovereignty of parliaments has been pragmatically preferred to constitutional constraints. Differences such as these, however, often distract from some fundamental problems with the making of settler sovereignties in the first place, problems that arise from the modern social imagination. In this chapter, we shall interrogate this set of issues from the point of view of postcolonial theology, outlining the historic injustices of colonial law, humanitarian attempts to legitimate British expansion, and the possibilities for a pluralized sharing of sovereignties in postcolonial Australia.
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Notes
Brian Keon-Cohen, Mabo in the Courts: Islander Tradition to Native Title (Melbourne: Chancery Bold, 2011), 1: 59.
See especially James Belich, Replenishing the Earth: The Settler Revolution and the Rise of the Anglo-world (Oxford: Oxford UP, 2009);
Lorenzo Veracini, Settler Colonialism: A Theoretical Overview (Basingstoke: Palgrave Macmillan, 2010).
Cf. Jeffrey Goldsworthy, “The Constitutional Protection of Rights in Australia,” in Australian Federation: Towards the Second Century, ed. G. Craven (Melbourne: Melbourne UP, 1992), 151–176.
Steven T. Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Golden: Fulcrum, 2008);
Robert Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford: Oxford UP, 2010);
Walter R. Echo-Hawk, “Colonialism and Law in the Postcolonial Era,” in Coming to Terms: Aboriginal Title in South Australia, ed. S. Berg (Kent Town: Wakefield, 2010), 148–205;
Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge: Harvard UP, 2010).
See Mark G. Brett, Decolonizing God: The Bible in the Tides of Empire (Sheffield: Phoenix Press, 2008), 7–31.
Contrast Jean Bethke Eshtain, Sovereignty: God, State and Self (New York: Basic Books, 2008), 43, 113–14;
John Milbank, The World Made Strange: Theology, Language, Culture (Oxford: Basil Blackwell, 1977), 268–292;
William T. Cavanaugh, “Killing for the Telephone Company: Why the Nation-State is Not the Keeper of the Common Good,” Modern Theology 20 (2004): 243–274.
Cf. Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton: Princeton UP, 2010), 183: “The idea of ‘Westphalian sovereignty’—a world of bounded and unitary states interacting with other equivalent states—has more to do with 1948 than with 1648.”
Samantha Hepburn, “Feudal Tenure and Native Title: Revising an Enduring Fiction,” Sydney Law Review 27/1 (2005): 49–86; idem, “Disinterested Truth: Legitimation of the Doctrine of Tenure post-Mabo,” Melbourne University Law Review 29 (2005): 1–38;
Ulla Secher, “The Doctrine of Tenure in Australia post-Mabo: Replacing the ‘Feudal Fiction’ with the ‘mere Radical Title Fiction’—Part 2,” Australian Property Law Journal 13 (2006): 140–178.
See, e.g., Kayleen M. Hazlehurst, ed., Legal Pluralism and the Colonial Legacy (Aldershot: Avebury, 1995); Joshu Neoh, “The Legitimacy of the Common Law in Post-Colonial Malaysia,” Law Asia Journal (2010): 59–82.
On sovereign will, see especially Elthstain, Sovereignty, and Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2005).
The Grotian distinction was deliberately obscured by the repeated assertion that uncultivated land was effectively uninhabited, the agrarian ideology licensed by John Locke. See especially John Locke and America: The Defence of English Colonialism (Oxford: Clarendon, 1996); cf. Peter Harrison, “‘Fill the Earth and Subdue it’: Biblical Warrants for Colonization in Seventeenth Century England,” Journal of Religious History 29/1 (2005): 3–24;
Whitney Bauman, Theology, Creation, and Environmental ethics: From creatio ex nihilo to terra nullius (New York: Routledge, 2009). The Australian colonies were said to be established on “waste and uninhabited” land, a conscious legal fiction asserted by the Colonial Office for example in 1822, and reiterated in the South Australian Colonization Act of 1834. Stuart Banner, Possessing the Pacific (Cambridge: Harvard UP, 2007), 27.
Louis A. Chamerovzow, The New Zealand Question and the Rights of Aborigines (London: T. C. Newby, 1848), 207–208.
See the overview provided by Paul Knaplund, James Stephen and the British Colonial System, 1813–1847 (Madison: University of Wisconsin Press, 1953), 66–94.
See especially Saxe Bannister, Humane Policy; or Justice to the Aborigines of New Settlements (London: Thomas and George Underwood, 1830).
Andrew Fitzmaurice, “Anticolonialism in Western Political Thought: The Colonial Origins of the Concept of Genocide,” in Empire, Colony, Genocide: conquest, Occupation and Subaltern Resistance in World History, ed. A. Dirk Moses (New York: Bergham, 2008), 55–80.
See, however, Hilary Carey’s account of the “anti-colonialism” of the mission societies in the 1830s, notably including defences of Maori sovereignty. Carey, God’s Empire: Religion and Colonialism in the British World, c.1801–1908 (Cambridge: Cambridge University Press, 2011), 322–328. Cf. Marion Grau, Rethinking Mission in the Postcolony: Salvation, Society and Subversion (London: T&T Clark, 2011), 284 and 288.
See for example Mabo v. Queensland [No. 2] (1992) 175 CLR 1, 111 (Deane and Gaudron JJ) and the discussion in Lisa Strelein, Compromised Jurisprudence: Native Title Cases since Mabo (Canberra: Aboriginal Studies Press, 2006), 20–23.
See the historical overviews in Henry Reynolds, This Whispering in our Hearts (St Leonards: Allen & Unwin, 1998);
Marilyn Lake, Faith: Faith Bandler, Gentle Activist (Sydney: Allen & Unwin, 2002);
Bain Attwood, Rights for Aborigines (Sydney: Allen & Unwin, 2003);
Bain Attwood and Andrew Markus, Thinking Black: William Cooper and the Australian Aborigines’ League (Canberra: Aboriginal Studies Press, 2004);
Robert Kenny, The Lamb enters the Dreaming: Nathanael Pepper and the Ruptured World (Melbourne: Scribe, 2007).
See Michele Harris, ed., “This is What We Said”: Australian Aboriginal People Give Their Views on the Northern Territory Intervention (Melbourne: Social Policy Connections, 2010) and Rev. Dr Djiniyini Gondarra’s protests to the United Nations in May 2011, summarized in the video report available at http://www.abc.net.au/news/2011–05–21/intervention-fight/2723230.
Jakobus M. Vorster has provided a lucid argument that redress and reconciliation are two theological principles of redemption that can contribute to postcolonial land reforms. Vorster, “The Ethics of Land Restitution,” Journal of Religious Ethics 34 (2006): 685–707.
Marilyn Lake and Henry Reynolds, Drawing the Global Colour Line: White Men’s Countries and the Question of Racial Equality (Melbourne: Melbourne University Press, 2008);
Doreen Mellor and Anna Haebich, eds., Many Voices: Reflection on Experiences of Indigenous Child Separation (Canberra: National Library of Australia, 2002);
Anne Pattel-Gray, The Great White Flood: Racism in Australia (Atlanta: Scholars, 1998).
Willie James Jennings, The Christian Imagination: Theology and the Origins of Race (New Haven: Yale UP, 2010);
J. Kameron Carter, Race: A Theological Account (Oxford: Oxford UP, 2008).
Ann Curthoys, “Whose Home? Expulsion, Exodus and Exile in White Australian Historical Mythology,” Journal of Australian Studies 61 (1999): 1–18; idem. “Fear and Desire: History and National Consciousness in Australia,” Psychoanalysis Downunder 7B (2006), available online.
Jennings, Christian Imagination, 252. It is also possible to see Israelites and Judeans “as gentiles” on the periphery of the Assyrian empire in the seventh century BCE, an interpretation that goes a long way to explaining the treaty/covenant discourse in Deuteronomy. See my “Sovereignty and Treaty in Religious Imagination,” in Sacred Australia: Post-Secular Considerations, ed. M. Paranjape (Melbourne: Clouds of Magellan, 2009), 96–118. Similarly, the experience of Israel as a colony of the Persian Empire had significant impact on the formulation of biblical theology in the fifth and fourth centuries. See the exemplary discussion in Christophe Nihan, From Priestly Torah to Pentateuch (Tübingen: Mohr Siebeck, 2007), and cf. my essay “Permutations of Sovereignty in the Priestly Tradition,” Vetus Testamentum 63 (2013): 382–392.
Graeme Davison, “Narrating the Nation in Australia,” Menzies Lecture 2009, Menzies Centre for Australian Studies, King’s College, London; Mark G. Brett, “Feeling for Country: Reading the Old Testament in the Australian Context,” Pacifica 23 (2010): 137–156.
Johnson v. McIntosh (1823), 21 U.S. (8 Wheat.) 572–574. On this case, see the detailed critical analysis of Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of their Lands (New York: Oxford UP, 2005). The Johnson opinion provided a lever for forced migrations under the Indian Removal Act of 1830, a tragedy that Marshall himself attempted to address in Worcester v. Georgia (1832), but the floodgates had been opened.
See Norman Habel, The Land is Mine: Six Biblical Land Ideologies (Minneapolis: Fortress, 1995), 115–133;
Jakob Wöhrle, “The Un-Empty Land: The Concept of Exile and Land in P,” in The Concept of Exile in Ancient Israel and its Historical Contexts, eds. E. Ben Zvi and C. Levin (Berlin: de Gruyter, 2010), 189–206;
Brett, “Permutations of Sovereignty in the Priestly Tradition.” Similarly, examining the final form of Genesis, cf. Frank Crüsemann, “Human Solidarity and Ethnic Identity: Israel’s Self-Definition in the Genealogical System of Genesis,” in Ethnicity and the Bible, ed. M.G. Brett (Leiden: Brill, 1996), 57–76.
The complexities of the John Batman story have been discussed in Bain Attwood, Possession: Batman’s Treaty and the Matter of History (Melbourne: Miegunyah Press, 2009)
and James Boyce, 1835: The Founding of Melbourne and the Conquest of Australia (Melbourne: Black, 2011).
While some theologians conclude that these problems are an impediment to Christian support for human rights legislation, more compelling defences of human rights have been supported by theological arguments in Christopher Marshall, Crowned with Glory and Honor: Human Rights in the Biblical Tradition (Telford: Pandora Press, 2001);
Nicholas Wolterstoff, Justice: Rights and Wrongs (Princeton: Princeton UP, 2008).
On the indirect relationship between the Bible and human rights, see especially Eckart Otto, “Human Rights: The Influence of the Hebrew Bible,” Journal of Northwest Semitic Languages 25 (1999): 1–14.
See Mahmood Mamdani, “Beyond Settler and Native as Political Identities: Overcoming the Political Legacy of Colonialism,” Comparative Studies in Society and History 43/4 (2001): 651–664;
Yin C. Paradies, “Beyond Black and White: Essentialism, Hybridity and Indigeneity,” Journal of Sociology 42 (2006): 355–67;
Bill Ashcroft, Post-Colonial Transformation (London: Routledge, 2001).
Cf. Aijaz Ahmad, In Theory: Classes, Nations, Literatures (London: Verso, 1992), 7, 12, 41–38;
Marshall Sahlins, How “Natives” Think About Captain Cook, for Example (Chicago: Chicago UP, 1995), 13;
Mark G. Brett, “The Implied Ethics of Postcolonialism” Jian Dao 8 (1997): 4;
Jae Won Lee, “Paul, Nation and Nationalism,” in The Colonized Apostle: Paul through Postcolonial Eyes, ed. C. D. Stanley (Minneapolis: Fortress, 2011), 227.
Cf. Paul L. A. H. Chartrand, “Reconciling Indigenous Peoples’ Sovereignty and State Sovereignty,” AIATSIS Research Discussion Paper 26, September 2009, available at http://www.aiatsis.gov.au/research/ discussion.html;
Sean Brennan, Larissa Behrendt, Lisa Strelein, George Williams, Treaty (Sydney: The Federation Press, 2005);
Kevin Bruyneel, The Third Space of Sovereignty: The Postcolonial Politics of U.S.–Indigenous Relations (Minneapolis, University of Minnesota Press, 2007).
Edward Said, The End of the Peace Process (New York: Pantheon, 2000), 142.
Such a displacement of anthropocentric politics is well understood in Indigenous cultures. Cf. Stephen D. Moore and Mayra Rivera, eds., Planetary Loves: Spivak, Postcoloniality, and Theology (New York: Fordham University Press, 2011). Corresponding to the “assembly of nations” in Gen 35:11, one might develop an analogy with the New Testament church described as an ekklesia, a “public assembly” (not a private association such as the koinon or collegium), conjoining the range of interests in a polis. See Cavanaugh, “Killing for the Telephone Company,” 267,
citing Dieter Georgi, Theocracy in Paul’s Praxis and Theology (Minneapolis: Fortress, 1991), 57.
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© 2014 Mark G. Brett and Jione Havea
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Brett, M.G. (2014). Law and Sovereignty in Australian National Narratives. In: Brett, M.G., Havea, J. (eds) Colonial Contexts and Postcolonial Theologies. Postcolonialism and Religions. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137475473_11
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