An Aboriginal Jurisprudential Examination of Constitutional Recognition

Abstract

Situating ourselves as a site of law through an Aboriginal jurisprudential modality is unequivocally required to even begin to understand the Aboriginal jurisprudential feeling of lawfulness. However, we must do so a priori, to even begin to understand the necessary feeling required for lawfulness to commence its emergence from within. It will be shown how experiencing this feeling represents the cosmological inheritance of feeling lawful through the paradigm of an Aboriginal jurisprudential modality and though represented in corporeal form, it internally galvanises a person’s relationships with other life forms, inter alia. This is the first step in understanding an Aboriginal jurisprudential examination for the constitutional recognition of Aboriginal and Torres Strait Islander (ATSI) peoples in Australia. It will then be our task to recognise this feeling of lawfulness and how it is intrinsic to the law of relationship. Further then, it will be demonstrated how the law of relationship provides for balancing energies. It is at this point, where the feeling of legality rather than the governance of men is crucial to as much as a result of, the enactment(s) of the law of relationship. Following this, we will then be introduced to the law of diplomacy along with its intrinsic model for rights and responsibilities and view how these diplomacies work in an equal triumvirate manner – a triadic organising – with the laws of feeling and relationship. With an understanding of the interrelatedness of these three laws – these legal doctrines – it will be demonstrated how Anglo-Australian ATSI constitutional recognition, without greater ATSI jurisprudential instruction, is simply another exercise in ideological and racial parsimony in Australia. It is ultimately the purpose of this article to present an exemplar of an Aboriginal jurisprudential model(s) to critique current proposals for constitutional recognition of ATSI peoples as lacking true and proper engagement with ATSI jurisprudence and concepts of lawfulness.