Summary jurisprudence in unsettled Places: culture, 'miscognition' and sentencing law.

Abstract

Summary courts of jurisdiction in central Australia 'miscognise' culture by not recognising that the everyday practices of settler Australians are cultural practices. This has implications for sentencing law: settler Australian cultural practices are transformed into norms, against which those who have 'distinctive' (different from settler) cultural practices are judged. The racialised logics of this process affect the interpretation of the material presented in the sentencing hearing. A typical approach of sentencing courts is to associate the cause of criminality with a defendant's departure from western social practices that have become normalised in Australia. This becomes problematic for desert peoples, where their everyday practices are distinctive from that of the settler Australian norm. This can result in distinctive cultural practices being mistaken as the underlying cause of criminality, leading to the stigmatisation of desert peoples' cultural and legal practices - which occurred in several of the case studies presented in this dissertation. One consequence of this stigmatisation, which I witnessed in my research, was that defence lawyers tended not to make submissions that suggested that their clients engaged in distinctive cultural practices, and legal actors conducted their cases as if they had little insight into their client's distinctive ways of being. One effect of this was that valued cultural practices, legal philosophies and associated practices had no influence on sentencing court jurisprudence. This undermined a purported value of the common law (including sentencing law) - its responsiveness to its cultural and normative context. This dissertation explores the implications of this misrepresentation - or 'miscognition' - for the jurisprudence that these courts produce. Exploring the everyday practices of the courts, which harden problematic 'common sense' into legal concepts, reveals not only the privileging of western cultural practices in some cases. In their everyday production of jurisprudence, the observed summary courts were affected by the underlying settler perspective of entitlement to dominate this place. Legal representatives typically avoided critiquing the contribution colonialism may have made to criminality. Case studies include; one instance of a magistrate (and appeal court justice) in effect decriminalising coloniser-settler practices that the Northern Territory Parliament had impugned; other instances of magistrates asserting a settler monopoly over the legal field and denouncing Aboriginal law and the desert people who asserted its legitimacy, effectiveness and ongoing relevance; other instances in which the court appeared uninterested in identifying and addressing the more complex underlying causes of crime; and in a series of interrelated cases, magistrates exhorted desistance of Aboriginal legal and cultural practices that are socially constructive for desert people. In its pursuit of this colonialist objective, the court risked abrogating its responsibility for its own traditions - that is, to uphold the rule of law - and risked transgressing the civil rights that justify the existence of the criminal court in the Anglophone system of governance. Show more