‘The damned word’: culture and its (in)compatibility with law

The compatibility and incompatibility between law and culture are identified through an analysis of relation. By way of exploring the elusiveness of conceptions of culture and of law, a commonality relating them is arrived at, one that indicates not only what they constituently share but also what distinguishes them from each other. So far an abstract abstract. The abstractness of the comment itself is relieved by references to a case study and by resorting to etymologies

‘No higher duty’: Mabo and the failure of legal foundation

The first half of the paper shows how the imperial quality of the common law putatively accommodates the demand for legal foundation. The second half takes the Mabo decision as a test of this supposed ability and finds it foundationally wanting. The continuing insistence of the indigenous presence provides the key

Access as justice

With the considerable help of Derrida, aptly aided by Mandela, this paper advances an idea of justice as integral to law. Thence, by way of an homology with such justice, access also is shown to be integral to law. What impels the overall argument is the primacy accorded to law in the constitution of the social bond

‘Enacted in the destiny of sedentary peoples’: racism, discovery and the grounds of law

Whilst the racial, and racist, basis of the doctrine of discovery is a modern innovation, the doctrine owes much to its pre-modern forms and ethos. The finding and settlement of putatively unknown lands has long been attended with mythic and religious justification and with rituals of appropriation all of which strikingly resemble modern practice. Similarity in this case, however, serves to dramatize difference. What marks modern discovery of the occidental variety is the displacement of the mythic and religious by a combination of racism and legalism. The story of that displacement is told here along with an analysis of the poverty, not to say vacuity, of the doctrine of discovery as a justification for imperial appropriation. Since the story is told in broadly historical terms, its conception of the modern relies on the temporal ‘depth’ which historians usually attribute to this term, the discoveries of Columbus here providing something of a benchmark. But this account of the doctrine of discovery is not an antiquarian exercise, not a tale told in a now entirely discovered world, the unfolding of which may have had its reasons for regret but is now decidedly done with. Rather, this account is modern also in the sense of having current significance, of discovery’s still being an impelling force in the treatment of peoples supposedly once discovered and in the self-identity of those who would claim to have once discovered them, an identity which extends to the grounding of the discoverer’s law. Following the preponderant legal authority on discovery, my ‘case’ study here will come from the history of the United States. The parallels with the Australian situation are, it would seem, close

O passado revolucionário: descolonizando o direito e os direitos humanos

Combining a radical revision of the historical formation of occidental law with perspectives derived from decolonial thought, this paper advances a deconstruction of occidental law. That deconstruction is then brought to bear on human rights. Although occidental law and human rights are shown in this way to be imperial in orientation, that same deconstruction reveals resistant elements in law and in human rights. These are elements which the decolonial can draw on in its commitment to intercultural transformation

The revolutionary past: decolonizing law and human rights

Combining a radical revision of the historical formation of occidental law with perspectives derived from decolonial thought, this paper advances a deconstruction of occidental law. That deconstruction is then brought to bear on human rights. Although occidental law and human rights are shown in this way to be imperial in orientation, that same deconstruction reveals resistant elements in law and in human rights. These are elements which the decolonial can draw on in its commitment to intercultural transformation

Marking time: temporality and the imperial cast of occidental law

The gist is that imperialism – rather than being ex ceptional, aberrational, over and done with – was and remains definitive of occidental political and legal formation. But there is, for legal formation, a twist. Whilst the constituent connection to the imperial can account for a primacy accorded law (in such guises as the rule of law), the terms of that same connection import an unbounded law resistant to imperium. An instance and an origin of the pervasion of the i mperial can be found in recent critical engagements with ‘p eriodization’ in history, especially with the putative tran sition from a medieval period to a modern along with its transcending of temporality. Propelled by this instance and origin, the story then expands ‘in time’ to absorb the saturation of the occidental polity in the imperial, and it does so in the perhaps unlikely company of Foucault, especially by way of his ‘Society Must be Defended’. Still in the company of Foucault, this imperial trajectory comes to be realized and resisted in and as law

‘What are the Gods to us now?’: secular theology and the modernity of law

Integrating responses of Nietzsche to the death of God with classic instances of modernist political theory, a constituent parallel is drawn between monotheistic religion and modern law — a parallel in that each matches the other, but a parallel also in that neither ever meets the other. This relation yet differentiation reveals an ontologically challenging modern law that conforms to, yet completely counters, its positivist and instrumental subordinations in modernity

‘We know what it is when you do not ask us’: the unchallengeable nation

With alarming alacrity, Professor Dauvergne spotted that one of my published pieces had already used the title of this article (cf Fitzpatrick 1995). That title is taken from Bagehot’s saying of nation: ‘We know what it is when you do not ask us, but we cannot very quickly explain or define it’ (Bagehot nd: 20–1). The first excuse for recycling this title is that it is strikingly suited to the concern of this issue of Law Text Culture with challenging nation. Bluntly, my argument will be that we find it difficult to challenge nation because we cannot say what it is so as to identify it explicitly and thence confront it. A little more exactly, we are unable to do this from within the uniform plane of modernity since nation occupies a sacral dimension of being which the modern cannot integrate. Giving effect to that dimension may enable us to challenge modernist conceptions of nation, however. The other excuse for titular repetition refines that challenge. It stems not so much from wanting to reverse the more usual academic practice — offering here the same title but a different paper instead of much the same paper with a different title — as from wanting to intimate a continuance, a sustaining of nation despite, and because of, its elusiveness, and from wanting to show how, in terms of that very sustaining, nation is challenged intrinsically. This is where law, inevitably, will come in