Law is The Law, but not if you’re an Aborigine

Men, in general, seem to employ their reason to justify prejudices, which they have imbibed, they cannot trace how, rather than to root them out. The mind must be strong that resolutely forms its own principles; for a kind of intellectual cowardice prevails which makes many men shrink from the task, or only do it by halves. Yet the imperfect conclusions thus drawn, are frequently very plausible, because they are built on partial experience, on just, though narrow, views.

Going back to first principles, vice skulks, with all its native deformity, from close investigation; but a set of shallow reasoners are always exclaiming that these arguments prove too much, and that a measure rotten at the core may be expedient. Thus expediency is continually contrasted with simple principles, till truth is lost in a mist of words, virtue in forms, and knowledge rendered a sounding nothing, by the specious prejudices that assume its name.

That the society is formed in the wisest manner, whose constitution is founded on the nature of man, strikes, in the abstract, every thinking being so forcibly, that it looks like presumption to endeavour to bring forward proofs; though proof must be brought, or the strong hold of prescription will never be forced by reason; yet to urge prescription as an argument to justify the depriving men (or women) of their natural rights, is one of the absurd sophisms which daily insult common sense.

Mary Wollstonecraft – A Vindication of the Rights of Woman

Individuality as one of the elements of well being

The aforementioned heading is from chapter III of On Liberty (1869) by John Stuart Mill (1806–1873). Chapter III of On Liberty is fundamentally about the absolute and essential importance of human development in its richest diversity. The full diversity of human development that Mill’s speaks of is rendered impossible in a society where “truth is lost in a mist of words, virtue in forms, and knowledge rendered a sounding nothing, by the specious prejudices that assume its name.”

Mills argued way back in 1869 that individuality was under threat in the democratic and materialistic age in which he lived because democracy and materialism are unsympathetic to the desire to be different. Custom and convention rule, genius and eccentricity are frowned upon, and ‘collective mediocrity’ is preferred to the pursuit of the noble and excellent. Mills argues that these pressures towards conformism should be opposed, for the opportunity to be self-determining is one of the chief ingredients of human happiness.

One of the problems with conformity is there is no room for difference, everything most gravitate to the centre, which is just another way of saying that human beings need aspire to nothing more than the lowest percentile of that which is considered ‘normal’ by the ‘collective mediocrity’. In Australia the ‘collective mediocrity’ is all about self and self at its lowest point being self-interest and greed. In this type of environment there is no room for reason, as “intellectual cowardice” becomes the order of the day and “vice skulks, with all its native deformity, from close investigation” meaning that “shallow reasoners are” allowed to get away with “exclaiming that these arguments prove too much, and that a measure rotten at the core may be expedient. Thus expediency is continually contrasted with simple principles, till truth is lost in a mist of words.” Sadly this is exactly what has happened with our society, if you can truly call the mess we live in today ‘society’.

The reality is that human beings are not all cast in the same mould, and it is not appropriate to expect us all to find our good in the same things. People should be allowed the freedom to develop themselves in their own way, since someone who merely falls in with the proposals that others have made for him has “no character, no more than a steam engine has character.” Life-plans are, however, subject to the harm principle, and one may not choose a mode of living that causes injury to others. Surely though, this continuous push toward a ‘collective mediocrity’ causes injury to those who choose to strive for something more, who seek to strive for the absolutes of “human development in its richest diversity”.

Aboriginal and proud – my right to be black

White man, hear me! History, as nearly no one seems to know, is not merely something to be read. And it does not refer merely, or even principally, to the past. On the contrary, the great force of history comes from the fact that we carry it within us, are unconsciously controlled by it in many ways, and history is literally present in all that we do. It could scarcely be otherwise, since it is to history that we owe our frames of reference, our identities, and our aspirations. And it is with great pain and terror that one begins to realize this.

James Baldwin, “White Man’s Guilt,” in The Price of the Ticket: Collected New-fiction, 1948-1985 (New York: St Martin’/Marek, 1985), p. 410

In the Australian context the ‘collective mediocrity’ insists that there is no room for the Aborigine. This has been a recurrent theme in Australian history since, 1788 – the invention of Terra Nullius sometime in the 19^th Century is but one aspect of the desire of the ‘collective mediocrity’ to rid itself of an unwanted chapter in Australia’s history. What the white man in Australia is yet to realise is that “the great force of history comes from the fact that we carry it within us, are unconsciously controlled by it in many ways”. While the white man might not realize it, or more likely, “truth is lost in a mist of words, virtue in forms, and knowledge rendered a sounding nothing” the Northern Territory Intervention, like the invention of Terra Nullius in the 19^th Century, is another aspect of the desire of the ‘collective mediocrity’ to rid itself of an unwanted chapter in Australia’s history.

If Aborigines are forced from their land, if their cultural attachments and cohesiveness as a community become fractured as a result of their forced removal, the Aborigine ceases to be anything more than a foot note in history, then the genocide will be complete, and Australia, ipso facto will indeed have become the white man’s dream of Terra Nullius, a post fact reality, rather than the legal fiction it currently is. What is there for us if we lose our cultural attachments and cohesiveness as a community? At best we can become part of the ‘collective mediocrity’, more likely, we’ll be further hounded by the white man, warehoused in the white man’s prisons and eventually cease to exist in fact as well as in fiction.

The ‘collective mediocrity’ can itself not survive if it allows difference to exist, difference that might, as we as Aborigines are doing, demand our rights and freedoms as guaranteed under Australia’s ‘rule of law’, that benign god, whose priests and acolytes prostitute its favours in the name of Mammon.

Speaking as an Aborigine, as a human being and as an Australian one of the main concerns with the governing ‘collective mediocrity’ in Australia is that it allows for, in fact it encourages, intellectual cowardice. An intellectual cowardice that itself is informed by a facile and docile media, which is increasing becoming the mouth piece for reactionary forces in society, including the mining industry. One of the biggest hurdles to the mining industry in Australia is who actually owns the land and its resources. Is it the white man, basing his claim on some spurious 18^th notion of international law enunciated by Emer de Vattel, who wrote in his Opus Magnus, Law of Nations, that:

When, therefore, a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation.

This appears to be the basis underlying Cook’s Claim to New Holland. Or are the rightful owner’s of Australia’s land and resources its Aboriginal peoples, who had been in quite enjoyment of this land of tens of millennia before the white man arrived in Botany Bay in January 1788 bringing with him; his weapons of death, his diseases and his strange concepts of morality and law, which change according to the colour of the skin of the person attempting to rely on its ‘impartiality’.

The ‘collective mediocrity’ that controls Australia has demonstrated, time and again, in no uncertain terms, that there is no room for Aboriginality in the white man’s world. Even those of us who have made efforts to cross the divide and live as part of the ‘collective mediocrity’ have been rebuffed by the same ‘collective mediocrity’ that demands our compliance with its norms. Where does that leave us as a people if we not allowed to live outside of the ‘collective mediocrity’ or allowed to live within?

As it stands; Aboriginal Australians have become a category of person’s sui generis, living under the ‘rule of law’ within the law’s peace but with no legal autonomy, no custodianship over our land and no, or at best limited, capacity to have crimes committed by white people against us investigated and prosecuted by the relevant authorities.

The problem with the ‘collective mediocrity’ is that they “employ their reason to justify prejudices” while making no effort to understand and embrace diversity. In Aboriginal societies, people are closely identified with their lands and the animal and plant species on them. Aboriginal philosophies do not have a deep dichotomy between ‘man’ and ‘nature’ or ‘culture’ and ‘nature’ as do European traditions. Within each clan, human and animal are bound together by common descent, mutual concern and shared destiny. These associations between human and non-human link Aboriginal people inextricably within the entire ecosystem of the lands they inhabit.

Aboriginal societies had developed a precise, although complex concept of land holding. It was and still is very different from the European concept, in which land is an individually owned private property, a commodity.

Aboriginal familial links to the land do not confer rights, but rather obligations and responsibilities. They are custodians who must care for the land and all its creatures. To the Aboriginal mind, land is not a vehicle for profit, but an extension of one’s self:

People.
They can’t listen for us.
They just listen for money.
Money.
We want goose, we want fish.
Other men want money.
Him can make million dollars,
But only last one year.
Next year him want another million.
Forever and ever him make million dollars.
Him die.
Million no good for us.
We need this earth to live because
We’ll be dead,
We’ll become earth.

(Bill Neidjie – Gagudju Man)

One of the keys to understanding Aboriginal culture is to recognise that Aborigines live on two inter-related planes – one physical the other metaphysical, where the past, present and future are current and interact. The land and everything on it was laid out during the Dreaming and the Dreaming became law.

Law never change,
Always stay same.
Maybe it hard,
But proper one for all people
Not like white European law,
Always changing.
If you don’t like it,
You can change.
Aboriginal law never change.
Old people tell us,
‘You got to keep it.’
It always stays.

The words of Uncle Bill Neidjie’s story resonate with all Aboriginal people. The land and the law are immutable; man cannot change what the gods have ordained. To the worshippers of the dead man on a cross (white, European and ‘Christian’), land has become nothing more than a vehicle to be exploited for production, cleared, mined, fenced and owned all in the name of progress for the commonweal. These differences have lead to dispossession and the legitimacy for genocide.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

(W.H. Auden – Law Like Love)

If only it were so, Mr Auden, if only it were so!