Histories of Colonialism, Legality, and Aboriginality

I

It is hard to write a history about something that is still happening - like a biography of a person still alive or a history of a people still existing. The problem is not that the historian cannot know those parts of the story that have yet to take place. Rather, the problem is that the historian's interpretation of the story so far may be influenced - consciously or unconsciously - by a sense of how the story might (or should) turn out and by an appreciation that the way in which the story is presented can become part of the story, influencing the way it does turn out.¹ Moral evaluations of past actions are particularly problematic in this respect.² Condemning a people of the ancient past as wicked will have only indirect practical implications today, but to condemn the past acts of a living nation as wicked is to identify possibilities of redemption, reparation, and reconciliation. The writer of a history about something that is still happening therefore has a special responsibility to appreciate that choices about how to portray the past may affect the ways in which moral discourse unfolds today.³

To write a history of the common law and its relationship to Aboriginal peoples in colonies and former colonies is to write a history of something that is still happening. Historians may see the Mohegan Indian land claim in colonial Connecticut (to take one example) as a legal artefact excavated from the records of an eighteenth-century society now dead and gone, but for lawyers this old case is part of the present legal discourse about Aboriginal rights, and in that sense it is alive with normative potential.⁴ This use of old cases in new legal arguments is, of course, just an example of the 'common law mind' at work: since at least the sixteenth century, common law discourse has tended to reject linear views of history in favour of a conception of time that bends the present back upon the past, and the past forward upon the present, so that the past always has a normative presence.⁵ It is an interpretive method that the legal historian cannot adopt but cannot ignore. In writing the history of the common law and Aboriginal peoples, then, the writer must be sensitive to the fact that this is a relationship within a common law discourse that is still unfolding.

This claim is hardly uncontroversial. It appears to advocate committing the 'sin' of reading legal history backwards.⁶ It may be said to encourage a distortion of law's past out of concern for law's present and future. But is sensitivity on the part of the legal historian to the way that historical analysis relates to present legal concerns always improper? The key to successful legal history, as to any history, may be not escaping 'presentist' concerns altogether but acknowledging and addressing their inevitability openly.⁷ '[W]e can view the past, and achieve our understanding of the past,' writes E.H. Carr, 'only through the eyes of the present,' and our ability to transcend our own historical situation therefore depends upon the 'sensitivity' with which we recognize the extent of our involvement in it.⁸

The recent publication of two important books - Paul McHugh's Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination and Peter Russell's Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism, provides an opportunity to reflect upon these complex issues. Both books seek to explain the history of the common law and Aboriginal peoples, from first contact to modern times, and thus to represent histories of something that is 'still happening.' The books make broadly similar points about these histories. First, they emphasize the instrumental quality of 'settler' law: the law of the settler society was used as an instrument of colonization to deny aboriginality and, later, as an instrument of decolonization to recognize aboriginality. Second, they emphasize the paradoxical quality of law in this respect. Through recognizing aboriginality, law denied (and denies) important...