Australia's Judicial Revolution: Aboriginal Land Rights and the Transformation of Liberalism

Abstract

The recognition of Aboriginal land rights in Australia over the last few decades marks a political and legal shift from classical to "expressivist" or "neo-romantic" liberalism. Classical liberalism's emphasis on order, economic progress, and security of expectations could not easily accommodate Aboriginal demands for separate, collectively owned enclaves within which their cultures could flourish. These demands have rested on the religious connection of Aborigines to their land, and the concept of property associated with it, as recorded in stories from the "Dreamtime." Recent High Court decisions have fashioned a doctrine of native title, distinct from common law property rights, that defines land ownership partly in light of cultural self-expression, and not merely as a function of labor and exchange.