Courts, Culture, Bullshit: A Critical Approach to Cultural Defence Claims

Abstract

The topic of bullshit has gained some notoriety in Australian politics and law in response to claims that certain acts that are offences under crimes legislation are permitted or extenuated by traditional Aboriginal law. This paper examines the role that courts and the Australian Parliament have played in legitimating bullshit law discourses. I accept Harry Frankfurt’s definition of bullshit as including things said without regard to their verity, which I use to criticise courts for their acquiescent approach to bullshit arguments. In trials, uncritical acceptance of these arguments has led judges to claim that Aboriginal defendants are less morally culpable than others on the basis that they did not understand that the offences (including sexual assault of a minor) were wrong. I draw on critical theories, especially Australian feminist theory, to show how courts’ adoption of these arguments fosters a discourse of otherness, presenting Aboriginal men as backward and abusive and Aboriginal women as victims. I argue that this discourse was furthered by the 2007 Intervention, with the Howard Government implying that traditional law provided excuses for criminal acts. My conclusion focuses on how understanding bullshit can contribute to human rights discussions by critically evaluating the verity and merit of customary claims and generating awareness of the power structures involved. Such a critical approach would ensure that culture continues to exist and develop in a manner consistent with human rights.