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February 15th 2012 print

Kenneth Maddock

Sceptical thoughts on customary law

Should Australia recognise Aboriginal customary law? In this clearheaded essay the late Kenneth Maddock explores a subject which has grave implications for modern Australia.

This essay is from the Quadrant eBook Waking Up To Dreamtime which can be downloaded (pdf) here…

It would be too strong to say that Aboriginal customary law is getting a bad reputation even among those who have been seen as its natural defenders. But its real or imagined drawbacks are being exposed in a way which is new at the very time that demands are being made for its recognition as a component of a treaty, as a technique of ‘reconciliation’ or as a remedy for the ills of Aboriginal society. Unless some hard thinking is done about what customary law is and what its recognition would entail, any political initiative in its favour may end in tears and disillusion. 

It has been rare in recent decades for respectable people to show any openness about what may be wrong with Aboriginal culture. For example, anthropologists who do research among Aborigines know a lot of what goes on in the communities they study, but they are prone to put themselves forward in public as celebrants of Aboriginal virtue and advocates of Aboriginal interests. They may have been inspired in this by the example of W. E. H. Stanner, a fine anthropologist and a man of many insights, who now and again teetered on the edge of humbug. 

An example of the type of sentiment against which the tide is turning is Justice Blackburn’s observation in the Gove Land Rights Case (1971), which found many admirers: 

… the social rules and customs of the plaintiffs cannot possibly be dismissed as lying on the other side of an unbridgeable gulf. The evidence showed a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws and not of men’ it is that shown in the evidence before me.1 

A judge deals with evidence put forward by the parties. Blackburn formed his opinion after hearing about some clans in the northeast corner of Arnhem Land. He was not drawing a conclusion from a study of a particular community or from an inquiry into Aboriginal rules and customs generally. Had he been attempting either he would have done well to note the views expressed by Phyllis Kaberry during her research in the Kimberleys in the 1930s. As part of her interest in relations between the sexes, Kaberry was keen to refute what she believed were stereotypes about the oppression of Aboriginal women by men. But her observations led her to think that: ‘In the absence of a written code of law, it is difficult sometimes to make a distinction between the legal investiture of power in the man and that wielded by him in practice … Ill-treatment and a beating [handed out to a wife] cannot be immediately assumed to be the sign-manual of authority’.2 The point was well taken, but Kaberry must have been unsure how far she could take it, for she added that a closer inspection might show beatings and ill-treatment were ‘penalties’ inflicted for ‘non-fulfilment’ of wifely duties, that is, a husband’s violence might be lawful, not capricious and arbitrary. 

Kaberry knew that women as well as men acted violently: ‘I, personally, have seen too many women attack their husbands with a tomahawk or even their own boomerangs, to feel that they are invariably the victims of ill-treatment.’ Were these bad-tempered acts or instances of men being punished for doing wrong? Kaberry was not clear about it and one has the feeling that she had become entangled in different threads of thought. The underlying problem was her inability to resolve the opposition of legal and practical power. Be that as it may, the behaviour recorded by Kaberry—men beating and badly treating their wives, women attacking their husbands with axes and boomerangs—is hard to reconcile with the Blackburn paradigm of ‘a government of laws and not of men’, of ‘a subtle and elaborate system … remarkably free from the vagaries of personal whim or influence.’ 

A Blackburn-type view is held by some Aborigines. According to Galarrwuy Yunupingu, a leading politician from the same part of Arnhem Land as the plaintiffs in the Gove case: 

I think of land as the history of my nation. It tells of how we came into being and what system we must live. My great ancestors who lived in the times of history planned everything that we practise now. The law of history says we must not take land, fight over land, steal land, give land and so on. My land is mine only because I came in spirit from that land, and so did my ancestors of the same land.3 

Other recollections of the past are less pleasing. The anthropologist T. G. H. Strehlow admired the learned elders and ceremonial chiefs whom he had known among the Arrernte of Central Australia, yet even he admitted that they could act tyrannically. For example, ‘a weak man with few friends sometimes had to put up with many wrongs’4 and murder and massacre were committed in the name of religion.5 Wandjuk Marika, a plaintiff in the Gove case, said of northeast Arnhem Land before the missionaries came: 

… there was a big war, that went on and on. The fighting was over two things, the sacred places and women … In a big war, they might kill three or four people. Then there was a break for maybe two weeks, or even longer, two months. Then the members of the groups who have had the people killed, they would go and kill the people who killed them. The fighting went on and on and on. Of my own people, only 10 were alive when the mission came—they were killed by the Djapu and another tribe. They killed my people, and my people went and killed theirs.6 

An interesting point about killings on this scale is that they would be conducive to land changing hands. Kaberry flatly denied that this ever happened,7 but some modern anthropologists accept that it does. For example, Peter Sutton, who has described Aborigines as ‘devious and ruthless’ in their politics, speaks of the Warlpiri and Pitjantjatjara practising ‘imperialism’ in Central Australia, and Kingsley Palmer of the Walmatjarri being ‘the greatest colonisers’ of the Kimberleys.8 There would be no point in using these expressions unless some Aborigines dominated and displaced others. 

Regional variation and historical circumstances may have led to conflicts of opinion among observers, as may their opportunities for learning about Aboriginal life, their values, their political leanings or even their temperament. But the fact that different opinions are held shows that the nature of Aboriginal society and of the laws or customs which regulated it are debateable. It follows that the pros and cons of recognising customary law need to be discussed with an awareness that a range of opinions exists and that facts are available in the light of which they can be assessed. 

A Social System of Their Own 

Societies of the kind on which anthropology has tended to concentrate—small in scale, pre-literate, elevating the importance of kinship in social relations, and with a simple technology, a subsistence economy and a limited understanding of the outside world—may mostly lack ‘central authority, codes, courts, and constables’ as Bronislaw Malinowski said of the Trobriand Islanders in Melanesia,9 yet unprejudiced observers have seen order and regularity in their social life. 

A case in point is Horatio Hale, a member of the United States Exploring Expedition of 1838-42 which visited New South Wales in the course of travelling about the Pacific. He wrote that Aborigines had ‘a social system of their own, regulated by customs … to which they conform apparently because they have no idea of any other mode of life, or because a different course would be followed by the universal reprobation of their fellows.’ The customs or rules he discussed had to do with initiation, marriage, punishment of transgressions, war (or duels) and sorcery among other matters.10 This early observer left no doubt that, as the Native Title Act 1996 would long afterwards put it, traditional laws were acknowledged and traditional customs observed. 

There are, of course, many later accounts of traditional culture in which anthropologists document the existence of norms, of sanctions for wrongdoing, of the mutual coherence of norms and sanctions within a larger whole and of the ultimate—or Dreamtime—rationale of all that exists. For the most part anthropologists have accepted the existence of law or law-like phenomena, or more broadly of social order and social control, while trying to avoid an undue or ethnocentric reliance on the ways in which ‘the law’ is thought about in western societies. 

For example, Ronald Berndt maintains that two distinctive elements are found in Aboriginal systems of ‘law and order’.11 First, people look back to a remote past, to models of behaviour laid down in the Dreamtime, for guidance in the present. Second, their society is kin-based, with a definite pattern of behaviour being conventional in each type of relationship (e.g. that of father to son or of mother-in-law to son-in-law), though how well the pattern is realised in everyday life is affected by such considerations as age and seniority and by the fact that no two individuals are identically aligned with their fellows (thus two men may be brothers, but one will be his father’s elder son). From the cases discussed by Berndt it is clear that a man feels himself to have some latitude in starting a quarrel or getting involved in someone else’s dispute. 

When the Australian Law Reform Commission reported in 1986 on the recognition of ‘Aboriginal customary laws’ it found that although anthropologists differed on whether there existed ‘persons with instituted authority to resolve disputes’, they agreed on the existence in traditional societies of ‘a body of rules, values and traditions, more or less clearly defined, which were accepted as establishing standards and procedures to be followed and upheld.’12 The same could, of course, be said of social life in just about every part of the world. 

Distinguishing ‘Law’ and ‘Custom’ 

Definitional questions can be boring, but they are unavoidable when arguing about a topic like this since it is important to know what it is in Aboriginal culture that might be strengthened by recognition. As it happens both the definition of law and the distinction between law and custom have exercised anthropologists. E. Adamson Hoebel, an authority on North American Indian ethnography who has been influential in the anthropology of law, suggested that: ‘A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognised privilege of so acting.’13 Although Hoebel wished to distinguish law from custom, he did not define the latter. It is clear from his account, however, that customs, as distinct from laws, are social habits or patterns of behaviour that are not backed up with the rightful use of force, e.g. ‘patterns of pottery making, flint flaking, tooth filing, toilet training’.14 Of course, given the diversity of values in the world there might be societies in which an individual who fails, say, to use the toilet or to cook kangaroos in a certain way will be threatened with or suffer the application of rightful force, i.e. what at first sight might be taken for customs might turn out to be law-governed after all. There might also be societies which have custom but not law. 

Some anthropologists are ready to accept that law is not a necessary feature of social life. For example, A. R. Radcliffe-Brown adopted the Jurist Roscoe Pound’s view of law as ‘social control through the systematic application of the force of politically organised society.’ If the field of law is limited to that of ‘organised legal sanctions’, it follows that there may be societies without law. Radcliffe-Brown accepted this conclusion: ‘The obligations imposed on individuals in societies where there are no legal sanctions will be regarded as matters of custom and convention but not of law; in this sense some simple societies have no law, although all have customs which are supported by sanctions.’15 Aboriginal societies were probably without law on his view. 

Other anthropologists, however, maintain that law, in a usefully precise sense, exists universally. Thus Leopold Pospisil, a New Guinea specialist trained in Roman law, argues that law exists in all societies, that it takes the form of decisions made by an authority and that it has four attributes: authority; intention of universal application; definition of right and obligation between the parties; and sanction.16 Social phenomena are legal only if they exhibit the complete set of attributes, but in all societies there are some phenomena which do. A significant point is that Pospisil accepts that many systems of law can operate within a society, including systems (such as those in force among criminals) stigmatised as illegal by governmental authorities. 

It is fair to say that whatever their differences about the definition of law anthropologists are reluctant to accord legal status to rules unless they are reflected in the behaviour of members of the society. Hence the importance attached to ‘trouble cases’, as Hoebel and his collaborator, the jurist Karl Llewellyn, called them.17 That is to say, it is by studying processes of disputation that one is best able to separate rules which are behaviourally significant from ‘dead rules’ and from rules which receive lip service but have little bearing on people’s lives. In addition, it is in the course of disputes that the meaning of the rules to which disputants appeal is most likely to be clarified. 

It was a commonplace of functional anthropology from at least the 1920s that the beliefs and practices of a community formed an integrated whole in terms of which its members conducted their lives. This opinion has become received wisdom, taken for granted far beyond the profession of anthropology and accepted within it by many who would not call themselves functionalists. As Tony Swain puts it, the Aborigines were ‘a people whose Law simultaneously embraced ‘religious’, ‘social’ and ‘geographic’ ‘realms’.18 Frederick Rose’s analysis of the Wanindiljaugwa of Groote Eylandt illustrates these conjunctions and, in so doing, brings out the difficulties which a highly integrated culture could pose for the wider Australian society if a decision were made to recognise customary law. 

According to Rose, the manner in which marriage was regulated led to younger men remaining single while older men accumulated wives, averaging four each. 

One might have expected bachelors to rebel against the system, but the long period of initiation to which they were subjected not only absorbed their energies but left them impressed by (and no doubt fearful of) the collective power of the elders. As for women, the system was to their advantage given the difficult Australian environment and the simple Aboriginal technology. Marrying for the first time in their early teens and facing the onerous burden of many years of food gathering and child bearing, it was in their interest to form collectives of co-wives around dominant older men.19 

The Wanindiljaugwa, on Rose’s view of them, had achieved an ingenious adaptation of society to economy and environment and of different social interests to one another. It is predictable that egalitarians and humanitarians would deplore the system, but it is easy to foresee possible rejoinders. It could be said that although inequality and subordination are obvious, equality among men prevails in the long run: male monopolists were once on the outer themselves; and younger males will, in the fullness of time, enjoy the benefits from which they are at present excluded. And, of even the most painful and frightening initiation rituals, it can be said that the men in charge inflict nothing on others that they themselves did not suffer when younger. 

Suppose, however, that the economic underpinning of the system has collapsed. With it would have gone the rationale for the interlocked ritual and marital arrangements. No longer an organic product of particular circumstances of life, they may be fated to decay unless they can be underpinned anew. Individuals who loved the old system or were well served by it might accordingly take defensive measures: first, by having the prerogatives of elders and the rules of ritual and marriage classified as customary law; and second, by having customary law recognised by the wider Australian society. 

Anthropological studies can be helpful in giving meaning and substance to the words ‘law’ and ‘custom’, in showing the many forms which human culture can take and in reminding us that this diversity need not imperil the survival of the race. But the time when Aboriginal communities could realistically be treated as though they were in a pristine state (the condition they were in before British settlement) has long passed. The pros and cons of recognising their customary law cannot be discussed as though the outside world did not exist. 

It follows that only an academic point would be served by asking what Aboriginal communities would be like if pure customary law could be restored. Only the most optimistic social engineer—or foolish reformer—would try to reinstate it in today’s communities. So what questions can realistically be raised in the recognition debate? I shall focus on four: 

1. What is the place of customary law in Aboriginal communities of the last few decades?

2. Is customary law a solution to the widely publicised problems besetting many communities today?

3. Irrespective of the answer to the first two questions, is customary law a good thing which should be encouraged by persons who do not belong to the communities which practise or used to practise it?

4. What would it mean to recognise customary law? 

Customary Law Today 

An enlightening account has been given by Robert Tonkinson. In a widely read book he gave a good description of the traditional laws and customs of desert Aborigines settled at Jigalong in the remote outback of Western Australia. An article Tonkinson wrote eight years later enjoys less fame, but ought to be read as a sequel. By then more changes had taken place at Jigalong and older people were running into difficulties trying to maintain traditional standards against the hostility or indifference of the rising generation. Ironically, their problems began soon after their ‘victory’, over ‘crusading’ missionaries sent by the Apostolic Church of Australia, a fundamentalist group which controlled Jigalong for many years. 

According to Tonkinson’s book, after children left school they showed a high degree of conformity to ‘the cultural dictates of their elders’. For example, young men could have taken work at other places in order to escape initiation with its painful operations of circumcision and subincision, but none had ever done so. Perhaps there was an in-built incentive to submit to the ordeals—a boy would be promised a wife by a man who had helped initiate him. ‘If all went well in the interim, and gifts had been exchanged between the families concerned, the girl would be sent to live with her husband before puberty. By that time the husband would be in his late twenties.’ 

The marriage system was in pretty good shape. It was still common for girls to have their marriages arranged in early childhood. Admittedly some girls were unenthusiastic about marrying men a lot older than themselves and fewer went to their promised husbands than would once have been the case. But in spite of this symptom of breakdown, it was unusual for ‘wrong’ marriages to be contracted, i.e. for a man and woman to flout the elaborate and restrictive rules which governed relations between the sexes. 

Social controls remained harsh. Offenders were likely to be denigrated in public and could be speared in the thigh or given a beating. It was not only men who were violent. The sight of women clubbing each other provided ‘considerable enjoyment, especially [to] male spectators.’20 

How quickly things change! Only eight years after celebrating the Aboriginal victory over Christian crusaders, Tonkinson saw a new threat to traditional values: ‘The ‘problem’ of misbehaving children suddenly emerged … reluctance to interfere with children’s autonomy … Prevents the Aborigines from acting to fill the gap left by the missionaries.’ What he called children’s autonomy looks more like a euphemism for Brat Power. In effect, the little horrors blackmailed their parents who were afraid to take action against promiscuity, vandalism and breaking and entering lest they provoke children into exercising their newly discovered ‘power to abandon Aboriginal culture in favour of that of the whites, which is increasingly impinging on them and offers many attractions.’ 

Tonkinson knew that modern life, even in a place as isolated as Jigalong, required that children learn ‘behavioural norms having no parallels in the pre-contact situation.’ But mission paternalism had relieved parents of most of the responsibility for bringing up children and the children, though unlikely to become Christian, were adroit in playing off the rule-ridden domain of the missionaries against the indulgent child-rearing regime of the Aboriginal camp. In fact, much that the missionaries did was appreciated by Aboriginal adults, if only because it relieved them of a range of responsibilities. When government policy imposed ‘self-management’ the adults found themselves not only free of missionaries but destitute of ideas on how to cope. They were haunted by the spectre of ‘wrongly related couples publicly proclaiming their resolve to remain together as man and wife.’21 

The Jigalong experience may be unique in its particulars, but similar developments have occurred in other places. Strehlow, the son of a Lutheran missionary and no friend of white settlers, reported that their arrival in Central Australia in the late nineteenth century led to a breakdown of the marriage monopoly enjoyed by older men. Many younger men switched loyalties in the hope ‘of gaining the girls of their personal choice—and the protection of their white masters against the wrath of their own outraged elders—in return for faithful service in the white man’s employment.’22 Much the same happened in western New South Wales during the first half of the twentieth century to judge from Jeremy Beckett’s comment that younger people ‘wrest[ed] control over marriage from their seniors’.23 Beckett has also spoken of the ‘negative valuation’ Aborigines were making of traditional culture at that time, which can only mean that a rising generation rejected what tradition demanded. For example, the ritual and magical power of elders became suspect, initiation ceremonies were abandoned and marriage rules flouted.24 

Hostility between generations is not new. The Aboriginal writer Kevin Gilbert recognised it via Grandfather Koori, a character he created to signify ancestral wisdom and dignity. According to Grandfather: ‘You go back just a little bit in time … If a kid smashed a window or was cheeky or vicious his uncle or aunt whaled his arse … Nowadays, you even … yell at a kid that’s pesting and the mongrels run for the white policeman.’25 But as the punitive method to which Grandfather looks back with nostalgia is one that Aborigines would have learned from Europeans, it seems that even he is a step removed from traditional life. Perhaps he, too, belonged to a generation which defied its elders. 

Some observers maintain that in spite of great changes there has been a persistence of traditional laws and customs even in the more settled parts of Australia. The Aboriginal anthropologist Marcia Langton has analysed swearing and fighting in order to ‘show how Aboriginal customary law is expressed in this behaviour, how the rules operate, and how culturally meaningful it is for Aboriginal people to employ these social devices’. She plausibly traces a connection between some practices in contemporary society and ‘traditional cultural patterns’.26 

Hale had long ago shown that displays of violence could serve a juristic purpose. He reported that when an offence had been committed which did not call for tribal interference a duel might be fought between the two men concerned. They took it in turns, in front of an audience who acted as ‘witnesses and umpires’, to club each other over the head, the first blow being struck by the man who had been wronged—‘the combat is continued, with alternate buffets, until one of them is stunned, or the expiation is considered satisfactory.’27 

The desire to redress wrongs is not the only motive for violence. According to Fred Myers, the desert Pintupi are not interested in a quiet life: ‘fights provide drama … indeed, one motive for drinking alcohol … is the excitement of the violent engagements that follow.’28 Men and women alike take pride in their fighting ability. Fights are remembered for a long time afterwards and give rise to animated discussion. 

One can agree with Langton that modified versions of these forms of behaviour have persisted in modern fighting. Gaynor Macdonald describes how, among Wiradjuri in New South Wales today, two men who are at loggerheads will fight before an audience until one is beaten or the bystanders intervene to break it up.29 It is perhaps of no great consequence that fists are used, instead of clubs, though it is a more telling comment on the dissolution of old patterns of conduct that what occurs is more a bout of fisticuffs, to which notions of fair play apply, than a ritualised duel. In these respects Wiradjuri fighting appears to have been partly assimilated to man-to-man fights of the kind that might occur among Australian bush workers and country dwellers. Nothing in Macdonald’s account (or in Langton’s) suggests, however, that there is any longer an equivalent of the spearing with which an offender against tribal laws would be punished (though this is said still to be done in remote parts of Australia) or of the wars which used to be fought between organised groups. Hale described both practices as did many later observers. 

There is a problem with Langton’s argument. Her observations are a useful guide to the complexity of some modern situations. But she knows that people, including Aborigines, can be offended and repelled by brawls and foul language, and she admits that not all swearing and fighting are examples of ‘dispute processing’ and ‘law maintenance’. Aborigines, she concedes, would want to put limits on ‘disruption of the peace or unjustified assault and violence.’30 Unfortunately, she does not explain where to draw the line. Yet any serious moves to recognise customary law would have to distinguish between what will count as customary law and what will not, and between what is acceptable in it and what is not. 

A Cure for Affliction? 

Between 1964 and 1970 I spent two years in southern Arnhem Land, mostly on the Beswick Reserve. The reserve was run by the Welfare Branch of the Northern Territory Administration which, in theory, aimed to assimilate Aborigines to an ill-defined or loosely defined Australian way of life. Implementing the policy did not, in my observation, lead to gross interference with traditional laws and customs. It is true that jobs of a sort were provided, children went to school, health was looked after and there was little or no fighting. This last feature could mean that self-help had been abandoned either willingly or under pressure or that these Aborigines were a peaceable lot. 

Major ceremonies were performed every year into which most boys were inducted, the complicated system of social organisation was well understood and there seemed no overt rejection of the marriage rules, though promised marriages were unlikely to come off. There were a number of able singers and dancers. Mythology, totemism and folklore were far from dead. Political consciousness, in the sense of an awareness and assertion of rights in relation to the state or the wider society could scarcely be said to exist, but a form of political thinking was expressed through the concepts of blackfellow and whitefellow law. The terms stood for something much wider than a lawyer’s idea of law. One referred to traditional Aboriginal culture, the other to the body of European skills and practices. The conceptual opposition was not a basis for antagonism by which one law was glorified and the other vilified as satanic. As I understood it, the Aborigines wanted both, which meant they had a job of learning ahead, for whitefellow law was culturally alien and much of it was poorly understood or not understood at all.31 

Many statements about Aboriginal law stress its unchanging character. As a Pitjantjatjara man put it, there ‘is one Law and it is there forever.’32 I did not find this to be the case in my research at Beswick. Blackfellow law was said to originate in the Dreamtime, and people spoke of following it up. But they also spoke of being ‘new people’ who were ‘soft’ and ‘easy’ in contrast to their forebears, the ‘old people’, whose law had been ‘hard’. The implication was clear: blackfellow law could be modified without being abandoned. 

This position is interesting in the light of later developments since it amounted to a rejection of assimilation without being a whole-hearted endorsement of the indigenous (a word having no currency in the 1960s). In effect, the Aboriginal vision was bicultural, not monocultural. The practical outcome would have been a hybrid culture. Perhaps life is not meant to be easy. Even at the time it was possible to see difficulties in the Aboriginal position arising from incompatibilities between the two laws in what they required to be done and in their underlying assumptions. Whether a working compromise could have been achieved is now an academic question, for in the 1970s government policy took a fateful turn. New keys to a fulfilling and meaningful life were issued—self-determination, traditional land rights, the glorifying of a supposedly immemorial culture (often accompanied by denigration of alternatives). The ‘designer tribalism’ attacked by Roger Sandall33 was still to come, but foundations for it were being laid. The new approach may have failed to work in the manner hoped for, but it opened the way to a future that has become our present. 

The Beswick Aborigines did not speak of customary law. If someone else had used the expression they would probably have equated it with blackfellow law, which in turn was one half of their bicultural vision. Today, customary law is often presented in the media and by socially concerned people as a solution to problems besetting Aboriginal communities. Gatjil Djerrkura, an Arnhem Land man and ATSIC councillor for the Northern Territory, told a Senate inquiry into mandatory sentencing that youngsters found it ‘fun’ to ‘escape from their own culture.’ Djerrkura concluded that ‘the situation highlighted the need for Aborigines to be able to enforce customary law’, i.e. to impose it on those who vote against it with their feet. He is not alone in his diagnosis of contemporary youth. Alison Anderson, ATSIC regional councillor for Alice Springs, told the Senators that ‘Aboriginal youth saw jail as a rite of passage and even ‘fun’ because it helped them escape from their own culture.’34 It cannot be easy to deal with children and adolescents like these, or with Tonkinson’s Jigalong juveniles, but it does not follow that the wider society should assist Aboriginal elders in overcoming resistance. 

The statements by Djerrkura and Anderson illustrate a generalisation made two years earlier by Father Frank Brennan: 

Young men facing initiation or some corporal punishment or young women facing a traditional betrothal to a much older man increasingly want to opt out of the traditional law and opt in to the system of individual choices and liberties they see on screen … or in the streets … Free to choose, the young may abandon [Aboriginal] culture even if only for short-term gain or liberty.35 

Gatjil Djerrkura and Alison Anderson, like Kevin Gilbert’s Grandfather, may be right. If closed communities could be reintroduced and the cultural values of the past imposed and instilled anew, there would probably be a decline in the loutish and destructive behaviour about which they complain. After all, as Langton wrote: ‘Aboriginal Law seems to have worked to prevent breaches by the threat, if not the actuality in most instances, of severe corporal punishment and even death.’36 But it is hard to envisage the wider society tolerating the drastic social engineering that would be required to restore the old regime. Moreover, the problems facing Aboriginal communities go deeper than juveniles running wild. 

Brennan’s reflections on helping defend a Queensland Aborigine named Alwyn Peter on a charge of murdering his wife Deirdre are enlightening. Brennan, who is both a man of God and a practising lawyer, recalled how his pride at having the charge reduced to manslaughter ‘and obtaining a sentence which guaranteed Alwyn almost immediate parole’ soon turned to self-doubt. Two items of information led him to reconsider his attitude: 

  • An unnamed anthropologist told him soon after the verdict that ‘In a reserve situation like Weipa, there is no customary law sanction to protect Deirdre and women like her.’

  • Langton told the Royal Commission into Deaths in Custody that ‘the appalling level of domestic violence against Aboriginal women is not being addressed by Aboriginal Law … the daily parade of women with bandaged heads and broken arms, especially in towns and larger communities where there is access to alcohol, is plain for all to see.’37 

It is, of course, common to invoke alcohol as an alibi for violence. As Lee Sackett explains the position in Wiluna: ‘An inappropriately related couple who engage in sexual intercourse, a woman who breaks her mother’s arm, or a man who fractures his wife’s pelvis are permitted to write-off their wrongdoings and escape censure through the excuse of having been ‘full drunk’.’ Sackett makes Wiluna seem a vile town thanks to Aboriginal drunkenness, though in his opinion Aborigines come off worse, suffering ‘broken bones’ and ‘shattered lives’ while Europeans have only to put up with ‘the taunts of drunks and occasional stones thrown in their direction.’38 The place is not a good advertisement for Langton’s theory of fighting and swearing as forms of ‘dispute processing’ and ‘law maintenance’, and Sackett does not suggest that it is. 

Colin Tatz, in a cry of despair over the modern Aboriginal malaise, claimed that a ‘great deal’ of violence and child neglect has a basis in tribal tradition. He drew a distinction between ‘rough, physical injurious treatment within traditional culture’ and what he called ‘the new violence’: ‘homicide, suicide, parasuicide and self-mutilation; … rape, child-molestation and incest.’39 But if customary law is compatible with the older manifestations of violence, why look to it to suppress the newer manifestations? 

The gruesome descriptions given by some recent writers are puzzling to anyone who remembers the Aboriginal communities of remote Australia in the 1960s. Why this rapid degeneration and what can be done about it? I am not aware of any convincing answers, but I can see no reason to believe that restoring customary law, even if this were any longer feasible, would reverse these dismaying trends. Like the curate’s egg, customary law is good in parts, bad in others, and it is certainly no cure-all for modern ills. 

The Goodness of Customary Law 

When customary law is mentioned by supporters of reconciliation and advocates of a treaty it is often spoken of as if it were an unqualified good. But doubts about customary law are not new and are by no means limited to Australia. They plagued the American anthropologist Hoebel after he and the lawyer Karl Llewellyn, with whom he had earlier collaborated in a celebrated study of the Cheyenne Indians, undertook research among Pueblo Indians between 1944 and 1950. One objective was to see whether codifying Pueblo law might bolster Pueblo autonomy by helping fend off interference, often ignorant and officious, by American courts and administrators. But as the nature of social control in these colourful, ancient and isolated communities became clearer, Hoebel lost enthusiasm. Far from agreeing with Ruth Benedict’s opinion that Pueblo Indians existed harmoniously thanks to ‘an intense degree of social integration [being] maintained by personal internalisation of norms of social cooperation’, he was repelled by their techniques of control and by the way in which ‘the vested guardians of the law’ persecuted dissenters. As in other ‘societies based on dogmatic ideology’—Hoebel had the Spanish Inquisition and totalitarian police states in mind—Pueblo law relied on ‘repressive authority to maintain order and conformity of belief and action to the law.’40 

Both Sides of the Moon, another of Alan Duff’s scarifying novels of Maori life in New Zealand, is witheringly sceptical of elders and other figures of authority. The main character, a delinquent imprisoned for a brutal assault, sums up the psychiatrist who is interviewing him: 

If this man had been Maori and in past times, he’d have been on the council of wise elders. If he’d lived in medieval times he’d be an inquisitor. In both instances dishing out injustice. Planned or by consensus. Or he would be the tohunga [Maori priest] weaving his manipulative magic and seeing omen wherever it was expedient.41 

This insight would have rung a bell with Kaberry. Her point about the difficulty of distinguishing between legally invested power and power in practice was made about relations between man and wife, but it can be generalised to other areas of social life. How to distinguish acts done in accordance with law from acts backed by greater strength or driven by political ambition? With the disconcerting candour which came so easily to her, Kaberry stated that ‘the guardians of tribal law frequently break it’.42 What she must have meant was not that the guardians were ignorant of the law but that they were ready to disregard it when it suited their interests. They did not subvert the law by questioning its authority, but were led by expediency to evade its application to themselves, while no doubt enforcing it on others. 

Considerations of this kind take us a long way from a government of laws and not of men. The vagaries of personal whim or influence are indelibly present. But even if Kaberry and Duff were mistaken in their judgments or were describing men and leaders corrupted by power, it would not follow that the rule of law is an unqualified good among Australian Aborigines or Hoebel’s Pueblo Indians or anyone else. Gore Vidal’s observation that Americans ‘are now indeed a nation of laws, mostly bad and certainly antihuman’43 may seem over the top, but it points up the weakness of praising the rule of law while turning a blind eye to the content of the laws. 

The Meaning of Recognition 

What would it mean to recognise Aboriginal customary law? The concept of recognition has no agreed meaning in Australia. Sometimes it seems to mean no more than acceptance, by non-Aborigines, of the fact that Aborigines often have beliefs and practices of their own (in much the same way as it is accepted that some Muslim women dress and behave in a manner marking them off from other women). For example, there are Aboriginal communities in which marriage to a close cousin is deplored, a man and his mother-in-law are expected to avoid each other and there is a feeling that men’s things should not be talked about when women are present and women’s things when men are about. These are indicators of social boundaries within a community or between it and other communities within the same country. Most people would see such instances as innocuous. With them in mind we can distinguish two forms of recognition, a stronger and a weaker. 

The weak version of recognition accepts that distinctive practices exist and would refuse to use legislation or the courts as weapons against them merely because the people who follow those practices are thereby and necessarily different from the rest of the population. In effect, recognition would be a technique for respecting cultural differences. It might be advocated for that reason. Two points can be made about weak recognition. On the one hand, it does not require outsiders to take any steps in support of customary law, for it is only a matter of the voluntary observance of practices which no one is likely to regard as harmful (if they did, the onus would be on them to make out a case). indeed, there is little to be gained by using the word ‘law’ when talking about this situation since it is one of cultural rather than legal pluralism. On the other hand, to respect distinctive practices (in the sense of accepting their existence in a spirit of live and let live) is not the same as admiring them. They might be admired, but equally well they could be regarded with indifference or dismissed as silly or outdated. These are common responses to other people’s practices, but they need not give rise to a feeling that the practices should be made compulsory (because beneficial) or suppressed (because harmful). 

The weak version of recognition is innocuous and unlikely to cause controversy. It is possible to go much further, however, and adopt a strong version raising hard questions. Distinctive practices would become obligatory and enforceable by law, at least within the community or subculture to which they belonged. The motive might again be respect for cultural differences, but now the respect would carry a punch. It is precisely here that difficulties begin. Brennan saw as much when he wrote that ‘Today, Aboriginal law and culture remain strong only while they hold appeal or can be imposed without human rights violations’.44 Should a community or subculture, through its elders or some other mechanism which it claims as its own, be empowered by the wider society to compel conformity and, if so, should there be limits to what is enforced and to the methods used? The questions are universal. They do not apply to Aboriginal customary law in particular, though they need to be posed with reference to it because of the place it is taking in debates over the amelioration of Aboriginal ills and the direction of Australian society. 

I am opposed to strong recognition, partly because of the authoritarianism and illiberality which would be required to carry it through and partly because the tide of history has washed away cultural unity, leaving many Aboriginal communities a bit of this and a bit of that so far as their culture is concerned. They are not necessarily the poorer for it, and even if they were, the strong recognition of customary law could be a cure more drastic than the disease. Weak recognition is on a different footing. It adds the spice of variety to the wider society, but does not require intervention by the law or the making of grand political pronouncements or compulsory conformity or the conquest of the high moral ground. For those reasons it will be less inspiring in some people’s eyes, but it is none the worse for that.

From Waking Up To Dreamtime. First published by the Bennelong Society, Waking Up To Dreamtime is republished as a Quadrant eBook with a new (2012) introduction by Gary Johns. Obtain a copy (pdf) here…

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1 Milirrpum v. Nabalco Pty Ltd and The Commonwealth of Australia (1971) Federal Law Reports 141, 267.

2 Kaberry, P. 1939. Aboriginal Woman: Sacred and Profane. London: George Routledge and Sons, 142.

3 Quoted in Maddock, K. 1983. Your Land Is Our Land: Aboriginal Land Rights. Ringwood: Penguin Books, 50.

4 Strehlow, T. 1997. ‘Agencies of Social Control in Central Australian Aboriginal Societies’, Strehlow Research Centre Occasional Paper, no. 1, 45.

5 Strehlow, 1997, 41-3. Strehlow gave a fuller account in ‘Geography and the Totemic Landscape in Central Australia’ in Berndt, R. ed. 1970. Australian Aboriginal Anthropology, Nedlands: University of Western Australia Press, 112-21.

6 Wandjuk Marika, ‘Statement on Sacred Sites’ in Edwards, R. edited 1975. The Preservation of Australia’s Aboriginal Heritage. Canberra: Australian Institute of Aboriginal Studies, 77.

7 Kaberry, 1939, 138-9.

8 Sutton, P. 1982. ‘Anthropology Outside the Universities in Australia’ Australian Anthropological Society Newsletter, no. 15, 16. Sutton, ‘The Pulsating Heart: Large Scale Cultural and Demographic Processes in Aboriginal Australia’ in Meehan B. and N. White, eds. 1990. Hunter-Gatherer Demography. Sydney: Oceania Monographs, 76. Kingsley Palmer, ‘Comment by Regional Specialist: East Kimberley’ in Sutton, P. ed. 1995. Country. Canberra: Aboriginal History Monographs, 103.

9 Malinowski, B. 1926. Crime and Custom in Savage Society. London: Routledge & Kegan Paul, 14.

10 Hale, H. 1846. Ethnology and Philology. Philadelphia: Lea and Blanshard, 112-15.

11 Berndt, R. 1965. ‘Law and Order in Aboriginal Australia’ in Berndt R. and C. eds. Aboriginal Man in Australia. Sydney: Angus and Robertson, 169.

12 Australian Law Reform Commission, 1986. The Recognition of Aboriginal Customary Laws. Canberra: Australian Government Publishing Service, 1: 75-8.

13 Hoebel, E. 1954. The Law of Primitive Man. Cambridge, Mass.: Harvard University Press, 28.

14 Hoebel, 1954, 20-1, 27.

15 Radcliffe-Brown, A. 1952. ‘Primitive Law’ reprinted in his Structure and Function in Primitive Society, London: Cohen & West, 212. The article first appeared in 1933.

16 Pospisil, L. 1971. Anthropology of Law: A Comparative Theory. New York: Harper and Row, 37, 43.

17 Hoebel, 1954, 35-45; Llewellyn K. and Hoebel, E. 1941. The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence. Norman: University of Oklahoma Press, 21, 24-9.

18 Swain, T. 1993. A Place for Strangers: Towards a History of Australian Aboriginal Being. Cambridge: Cambridge University Press, 117.

19 Rose, F. 1968. ‘Australian Marriage, Land Owning Groups, and Initiations’ in Lee R. and I. DeVore eds. Man the Hunter. Chicago: Aldine, 204-8.

20 Tonkinson, R. 1974. The Jigalong Mob: Aboriginal Victors of the Desert Crusade. Menlo Park: Cummings. Relevant material can be found throughout the book, but see 37, 47, 51 for marriage, 47, 110 for initiation and 63-4 for social control.

21 Tonkinson, R. 1982. ‘Outside the Power of the Dreaming: Paternalism and Permissiveness in an Aboriginal Settlement’ in Howard M. ed. Aboriginal Power in Australian Society. St Lucia: University of Queensland Press, 119-22, 125-6.

22 Strehlow, T. 1971. Songs of Central Australia. Sydney: Angus and Robertson, 493.

23 Beckett, J. 1993. ‘Walter Newton’s History of the World—or Australia’, American Ethnologist, 29: 688.

24 Beckett, J. 1958 ‘Marginal Men: A Study of Two Half-Caste Aborigines’, Oceania, 29: 92-3.

25 Gilbert, K. 1977. Living Black: Blacks Talk to Kevin Gilbert. Ringwood: Allen Lane The Penguin Press, 304.

26 Langton, M. 1988. ‘Medicine Square’ in Keen I. ed. Being Black. Canberra: Aboriginal Studies Press, 201-2.

27 Hale, 1846, 114-15.

28 Myers, F. 1986. Pintupi Country, Pintupi Self: Sentiment, Place, and Politics among Western Desert Aborigines. Washington: Smithsonian Institution Press, 160.

29 Macdonald, G. 1988. ‘A Wiradjuri Fight Story’ in Keen, 1988. 181-90.

30 Langton, 1988, 222-3.

31 See Maddock, K. 1977. ‘Two Laws in One Community’ in Aborigines and Change, Berndt, R. ed. Canberra: Australian Institute of Aboriginal Studies, for a fuller account of the Beswick situation.

32 Vachon, D. ‘Political Consciousness and Land Rights among the Australian Western Desert People’ in Leacock E. and R. Lee, eds. 1982. Politics and History in Band Societies, Cambridge: Cambridge University Press, 483.

33 Sandall, R. 2001. The Culture Cult: Designer Tribalism and Other Essays. Boulder: Westview.

34 See The Weekend Australian, 19-20 February 2001.

35 Brennan, F. 1998. ‘Land Rights—the Religious Factor’ in Religious Business, Charlesworth, M.

ed. Cambridge: Cambridge University Press, 170.

36 Quoted in Brennan, 1998, 169.

37 Brennan, 1998, 168.

38 Sackett, L. 1988. ‘Drinking, Development and Discipline in a Desert Context’, Social Analysis, 24: 70, 76.

39 Tatz, C. 1990. Aboriginal Violence: A Return to Pessimism, Journal of Social Issues, 25: 250-1.

40 Hoebel, E. 1969. ‘Keresan Pueblo Law’ in Law in Culture and Society. Nader, L. ed. Chicago: Aldine, 92, 110, 115-16.

41 Duff, A. 1999. Both Sides of the Moon. Sydney: Random House, 294.

42 Kaberry, 1939, 130.

43 Vidal, G. ‘Monotheism and Its Discontents’ reprinted in Joshi, S. ed. 2000. Atheism: A Reader, New York: Prometheus Books, 305.

44 Brennan, 1998, 171.