Consider law’s view of itself as an objective, impartial, neutral and authoritative mechanism for resolving social conflicts, what are its limitations when engaging in conflicts involving Indigenous women as either victim or offender? What are the possi

The research essay is worth 100% of the final mark should be 3500 words (excluding references).

Consider law’s view of itself as an objective, impartial, neutral and authoritative mechanism for resolving social conflicts, what are its limitations when engaging in conflicts involving Indigenous women as either victim or offender? What are the possibilities for reform?

On the impartiality of the law

The Australian legal system is based on written rule, applied and adjudicated by lawyers and judges in a formal setting. Law sees itself as being impartial, because it is the glue of the social covenant.  Hobbes argued that in the state of nature, everyone had a right to everything.[1]  Therefore no security existed for anyone. To escape such a condition Hobbes argued that it was important to establish a ‘covenant’ or contract between the people so that a sovereign representative could protect them in any way deemed necessary. [2] He suggested that once a social covenant is made between citizens, they must not break it out of a moral obligation or mutual trust.[3]  The mutuality ensured objectivity, impartiality, and neutrality. [4]

The legal rules are clearly documented in legislation, which is accessible to all citizens, and legislation is democratically made by Parliament on behalf of all citizens. If one experiences an injustice or a legal dispute, there are services and avenues available to offer advice and representation to take the matter through the legal system.

Structural flaw

As Graycar and Morgan have noted in discussing the hidden white male norm, “while women are women and blacks are blacks, white men are just ‘regular people.”[5]  Applying this hidden white male norm to Hobbes,  we get the idea that the social covenant, which is the source of the state, and all laws which flow from it, applied to the regular people who are white males, as opposed to black females.   For Kant, the social covenant, which Hobbes refers to, cannot actually exist as a fact; he believes it is merely an idea of reason.[6]  But it is  the reasoning of white people, and until the growth of women’s equality in the recent period,  white people meant white men.

Effect of structural flaw

The causes of the epidemic of violent abuse wherein an indigenous woman is a victim are multiple and complex, prominent contributing factors being unemployment and passive welfare dependency, lack of access to adequate education, health and mental health services, lack of adequate housing, overcrowding, substance abuse, dispossession and loss of culture, and above all alcoholism.  All of this is structural, and is not related to the individual, or at least is not something for which an individual merits punishment.[7]

Elena Marchetti[8] specifically criticises the findings of the  Royal Commission Into Aboriginal Deaths In Custody, in that family violence in Indigenous communities  is recognised as going hand-in-hand with the excessive consumption of alcohol,  but no steps were recommended as being taken to ensure that Indigenous women and children would be safe from violence. Instead, the report focused on indigenous alcoholism. Steps were taken towards decriminalising drunkenness and establishing treatment centres, but not, for example, establishing refuges, which might address the needs of women and children.

Cultural dimension

There is a cultural dimension to some of the violence that occurs. There is, among some Aboriginal people, a view that the use of physical violence to ‘discipline’ wives (and others who have done the ‘wrong’ thing) is lawful under customary law. There is also a widespread belief that the infliction of violence in retaliation for violence – whether formally in organised payback or haphazardly in individual assaults, raids or vendettas – is lawful (and at times obligatory). The blood feud is alive and well in the Territory and, by and large, the participants believe that they are justified by customary law.[9]

Aboriginal solution

Aboriginal customary law is customary, based on oral laws passed down from generation to generation, applied by the local chiefs and leaders in a public, informal setting. Disputes are not considered ‘legal’ but rather ‘familial’ and ‘communal’, and resolutions are not decided according to written legislation by unknown judges, but according to the well being of the community by its most respected chiefs or elders.  Even then, the decisions do not necessarily benefit women.

Bibliography

Journal Articles

Justice Judith Kelly, The intersection of Aboriginal customary law with the NT criminal justice system: the road not taken? Paper presented to NT Bar Association Conference 2014 in Association with the School of Law, CDU, Dili,10 July 2014

  • This article discerns to the reader the impact of differing cultural dimensions in abiding by laws. The indigenous still operate under ‘customary’ law to some extent and as such bring about social conflict as acts of violence are seen as ordinary or customary especially in regards to women. This particular journal will be relied upon to show the extent this ‘cultural dimension’ through customary law brings about this divide in society. As such, there is a structural fault within the system that causes this placing pressure on the need for reform.

Books

Paul Kelly, Impartiality, Neutrality, and Justice. Edinburgh: Edinburgh University Press, 1998.

  • This book confronts issues at the heart of modern political philosophy. It brings together responses from a wide range of critics including feminists, utilitarians, mutual advantage theorists, care theorists and anti-contractarians. It establishes the structural flaw in our system as not every single interest can be protected. Also portrays the feminine side to things, emphasising on the disadvantage between the two.

R Graycar and J Morgan The Hidden Gender of Law Federation Press Sydney 2002, 60

  • Graycar and Morgan pose fundamental questions as to the impact of the law on women and their participation in society. The questions posed do not license a single specific answer, but rather opts to instil an understanding of the problems posed by Graycar and Morgan to achieve equal justice for women and, ultimately, equal justice for all. This book highlights how legal categories and legal doctrines have been developed in such a way that women have been disadvantaged. In that sense, this source lays the ground work to substantiate the extended disadvantage aboriginal women face as woman are already disadvantaged to begin with.

Stanford Encyclopedia of Philosophy: Political Legitimacy https://plato.stanford.edu/entries/legitimacy/

Thomas Hobbes, (1994 [1651/1668]) Leviathan, ed Edwin Curley (Hackett, Indianapolis), esp. Ch. 10-14

Newspaper

Elena Marchetti, Indigenous Women and the RCIADIC – Part I, (2007) 7(1) Indigenous Law Bulletin 6

[1] https://cw.routledge.com/textbooks/alevelphilosophy/data/AS/WhyShouldIBeGoverned/Stateofnature.pdf

[2] Stanford Encyclopedia of Philosophy: Political Legitimacy. https://plato.stanford.edu/entries/legitimacy/

[3] Thomas Hobbes, (1994 [1651/1668]) Leviathan, ed Edwin Curley (Hackett, Indianapolis), esp. Ch. 10-14

[4]. Paul Kelly,  Impartiality, Neutrality, and Justice. Edinburgh: Edinburgh University Press, 1998.

[5]. R Graycar and J Morgan The Hidden Gender of Law Federation Press Sydney 2002, 60

[6] https://users.sussex.ac.uk/~sefd0/crsold/tt1034/tt1034kant.htm

[7]. Justice Judith Kelly, The intersection of Aboriginal customary law with the NT criminal justice system: the road not taken? Paper presented to NT Bar Association Conference 2014 in Association with the School of Law, CDU, Dili,10 July 2014

[8]. Elena Marchetti,  Indigenous Women and the RCIADIC – Part I, (2007) 7(1) Indigenous Law Bulletin 6

[9]. Justice Judith Kelly, The intersection of Aboriginal customary law with the NT criminal justice system: the road not taken? Paper presented to NT Bar Association Conference 2014 in Association with the School of Law, CDU, Dili,10 July 2014


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