A Dialogical Encounter with an Indigenous Jurisprudence

Abstract

This thesis is a logos — the beginning of a new paradigm in legal theory. Its objective is to begin a new line of intellectual inquiry. It is meant to open up a new theoretical framework within which different Indigenous peoples can explore and consider their legal regimes. Thus this thesis is an attempt to offer the reader a ‘dialogical encounter with an Indigenous jurisprudence’. Hence I carry out this act of legal reclamation by redefining jurisprudentia through my Yugumbeh language and determining its meaning through the concepts of talngai and gawarima. Thus it becomes a Talngai-gawarima jurisprudence. This Talngai-gawarima jurisprudence will bring the reader into a dialogical encounter with a reading of the law of Corpus Australis — that law is conceptualised as Land is the Law.

This definition gives shape to the jurisprudential framework that orders the chapters — a shape that is not just abstract but physical and metaphysical; a shape that is circular and concentric at the same time, and so allows for the triadic layering of meaning to each reading. I have constructed this visual representation as follows: the outer circle is the cosmology, so that the human never forgets that they are inside a universe — a universe that has a law. This law is found in the second circle, which on one hand resembles the ancient Greek law of physis, but on the other hand is a law based on relationship and so is titled in this thesis as the Law of Relationship. This is a relationship that orders the placing of the individual in the innermost circle and patterns their rights and responsibilities into the Land.

The jurisprudential texts which inform the theoretical framework of this thesis are found in the works of three Senior Law Men: SLM Bill Neidjie, SLM David Mowaljarlai and SLM Wandjuk Marika, who have turned to the literate tradition to bring to our attention the urgent message that the Djang (primordial energy) is out of balance and the rebalancing of that Djang is up to the individual through their lawful behaviour, a behaviour which patterns them back into land. The source of the imbalance, I argue, was the sublimation of Women’s law and their ceremonial access to the Land.

To test this hypothesis, I carried out a reading of three contemporary narratives (Whale Rider, Thunderheart and Plains of Promise) which address issues relating to Indigenous peoples and their law. In each of the jurisprudential readings, I demonstrate how Indigenous peoples and their laws are actualised. At the end of each chapter, I also reiterate the importance of the reintegration of women’s law and ceremony if the gift of law which the Senior Law Men are offering is to be recognised by other laws. This thesis, therefore, is a new story of law about an ancient knowing, a knowing which calls to the present to re-balance behaviour and understanding of Land if we are to survive. This call is to Indigenous peoples and is about the importance of understanding their law as Land is the Law.