Witnessing Whiteness: Law and Narrative Knowledge

Abstract

In this article, I interrogate the reception of testimonial evidence given by Lorna Cubillo in the trial of Cubillo v Commonwealth (2000) (‘Cubillo’), the landmark action taken by members of the Stolen Generations. Drawing on Lyotard’s account of the distinction between narrative knowledge and scientific knowledge, I argue that while law makes its claim to legitimacy through demonstrable proof, it must ultimately seek an appeal to narrative forms of knowledge. The relationship between law and narrative is key to a critical reading of the Cubillo decision, which provides an important site for an analysis of the function of whiteness in the treatment of evidence in Anglo-Australian law. I argue that through reliance on legal positivism as the method of judicial interpretation, the decision privileges forms of ‘scientific’ knowledge which most readily support dominant paradigms of historical truth. At the same time, the significance of ‘narrative’ knowledge to the arguments presented in the case, particularly that which does not support notions of white cultural memory, is discredited.