The precedents on which law derives its integrity are often derived from an earlier era wherein the cultural, social and economic contexts that necessitated legal change are out-dated. In this way, the law is perpetually behind the social world it governs as is demonstrated in three incidents, three different times, and three different moods endemic to Australian society which broke down laws that were supposedly flexible enough to withstand the nuances of cultural change.
July 4, 1857.
The white miners in the Buckland River, two hours north of Melbourne, resolved to drive the Chinese immigrants away. It was the middle of the Gold Rush, and the Chinese, with their unique mining skills and expertise, posed an economic threat to the Europeans. It is one of the first instances of white disdain for the ‘alien’ (Willard, 1978: 25). The violence used in the riots was notable: Chinese men were beaten, robbed, and their belongings were thrown into the river. The camps were burnt down. Three people were killed. More fell ill from the freezing temperatures after fleeing into the bush. Local authorities condemned the riots, calling them ‘deplorable’ and ‘disgraceful’ (Willard, 1978: 25). The trial was held a month later and reported in the local gazette. Yet, so strong was the affinity of the jurors towards the rioters, so distrustful of the Chinese testators, that the perpetrators were acquitted ‘amid the cheers of bystanders’ (Willard, 1978: 26). In the book that recounts this event, in delicate handwriting next to the paragraph titled ‘Juries Acquit Rioters,’ a previous reader has left the note, ‘miscarriage of justice’.
While I agree with the writer’s sentiment, I am of the belief that justice has worked exactly as it was prescribed to do: the law is the final bulwark that social change must break if it is to become manifest in society. The weight of stare decisis is overbearing and the law operates on its own flow of time; the interaction between the common law, of the legal principles consolidated across a number of cases before the court, with itself and with statute illustrates how evasive the process of time is in legal contexts.1 Bruno Latour observes that we ought not to consider law as the source of the social, but rather, as the result of it (Latour, 2002: iix). This is the point at which jurists and thinkers must depart. To invert the understanding of lawmaking in such a way as to reveal how the law is at once a reflection of the society it upholds and the framework that is to be broken in order to change in any meaningful sense. There are multiple points at which the law breaks and the consequences of each reverberate in different ways. However, what the conscientious objector, the murderer, and the judiciary that applies fundamentally unjust laws all share is an effect from the way they are situated in the sphere of legal doctrine.
The law regulates, it enforces, and it answers, but it is at once subject to its own internal logic. For jurists, the declaratory theory of law states that the answer to the question before the court can always be found if one casts their eye over the vast stretches of precedent with care (Dworkin, 1986). The theory is favoured in two crucial Australian cases: Mabo v Queensland, and Wik Peoples v Queensland handed down in 1992 and 1994 respectively. Both Mabo and Wik exemplify the force of the common law and how it operates in addressing the questions before it. In Mabo, the Court, as a creature of British law, was confronted with a question that had the capacity to repudiate its entire existence. Terra Nullius was declared a legal fiction. Yet it is the response of Justice Brennan that has been entrenched in the teaching of public law for Australian students ever since. He concludes:
[R]ecognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principal of our legal system (Mabo, 1992: 43).
The preservation of the common law rested upon a declaration that the Court may only respond to the effects of terra nullius rather than its foundation at law. Yet Mabo also illustrates the way in which the systemic violence perpetrated by colonists has been received by law. While Justice Brennan does acknowledge the horror that terra nullius created, his Honour reduces the dispossession, removal, genocide and slavery of Indigenous Australians to an unassuming statement about the ‘tide of history’ and where it has left the common law in Australia (Mabo, 1992: 60). In a similar vein, Justice Gummow in Wik states that the difficulty in mediating the Pastoral Lands Act with the rights of the Wik people lay in the fact that the concept of native title had not yet been discovered at the time the act was created. He notes:
The concept of ownership by the Crown of all land is a modern one, and its adoption in legal theory may have been related to Imperial expansion in the seventeenth and eighteenth centuries, well after the decline of feudalism (Wik, 1996: 151).
The connection here, of colonisation to jurisprudence and the effect that it has had upon Native Title rights in Australia, conveys the unstated acknowledgement by the courts as to the role that historical violence has had upon current understandings of Indigenous land rights. While it shares, to some extent, an affinity with the reasoning of the Court in the Buckland River riots, it also illustrates a move away from an overt endorsement of white violence towards marginalised populations, and instead to an ‘objective neutrality’. It is, in other words, an example of Alain Badiou’s assertion that situations considering human rights ‘are always dealing with a political situation, one that calls for a political thought practice, one that is peopled by its own authentic actors’ (Badiou, 2001: 13).
Speculation as to whether it is possible to fully articulate violence at all is well established; since Benjamin’s critique, the relationship of the law with violence has been postulated as some variant of coercion at the hands of the state. Yet Robert M Cover, in his seminal work ‘Violence and The Word,’ asserts in his opening sentence: ‘Legal interpretation takes place in a field of pain and death’ (Cover, 1986: 1). For Cover, violence and legal reasoning are inextricable from one another; it is upon violence and fear of it that rulings derive their validity. In a system that generates violence, both symbolic and in reality, those who perpetuate legal systems must render their actions intelligible and rational in order to maintain social adherence (Cover, 1986: 1). In Cover’s understanding, the protester and the judge are one and the same: each is within a violent institution but merely speaks from a different position (Cover, 1986: 1618). Thus, in law, however, restrained it may be by doctrine, violence underlies all facets of reasoning in a myriad of ways that moves beyond the idea of the powerful state versus the individual.
Hannah Arendt posits this view in her own reflection when she notes: ‘Politically speaking … loss of power becomes a temptation to substitute violence for power’ (Arendt, 1972: 153) For Arendt, violence results in impotence. Her acknowledgement of the relationship between political events and violence provides a means of examining contemporary legal events. Arendt notes that what is meant by violence is often power: that being ‘the human ability not just to act but to act in concert’ (Arendt, 1972: 143). It is distinct again from strength which denotes an individual entity and which may prove itself in relation to other persons but is ‘essentially independent of them’ (1972: 143). Even the strongest individual may be overpowered by the many. Finally, Arendt declares ’force’ as the ‘energy released by … social movements’ (1972: 144).
These analyses of violence and its counterparts illuminate the nuances of what is meant by violence and power in relation to the social and further illustrate that the law has had difficulty receiving the crowd regardless of what form it may take. The law apprehends racial conflict, economic crises, and political upheaval in superficial terms whenever the crowd is present. The Buckland Riot, shaped by economic fragility and cultural resentment of Chinese migrants, was violent in its symbolism and the diaspora that resulted from it. Any Australian knows the extent and severity of white supremacy in the history of the nation since Colonial invasion, yet the legal response is one that demonstrates the inability of the law to effectively address the context that gave rise to Buckland.
Ours is a world where social coercion ruptures public thought faster than the law. The effect is an answer that has failed at its roots. As Badiou observes: ‘Every will to inscribe an idea of justice or equality turns bad. Every collective will to the Good creates Evil’ (Badiou, 2001: 13). He argues that this is so because of the ‘contempt’ of man towards the situation of humanity as a whole: the recognition and rejection of ‘evil’ delineates into an emulation of the evil it attempts to suppress (Badiou, 2001: 14). The Rule of Law then is the entrenched ethical framework through which all processes must have ethics applied to them. It necessarily identifies evil and works against it. Badiou proposes instead to challenge frameworks of ethics by two theses of note. His first is that:
It is from our positive capability for Good and thus from our boundary-breaking treatment of possibilities and our refusal of conservatism, including the conservation of being, that we are to identify Evil — not vice versa (Badiou, 2001: 16).
This capacity for the Good, derived from the breakage of boundaries itself, provides an answer to the question of the law and the law answering the crowd. Yet locating it in Australia’s cultural landscape is evasive at best. In the wake of Wik, the Native Title Act was amended beyond recognition of its former function as a restraint of the rights of the Crown. Badiou’s next thesis, however, is that:
All humanity has its root in the identification in thought of singular situations. There is no ethics in general. There are only…ethics of processes by which we treat the possibilities of a situation (Badiou, 2001: 16).
Buckland, Mabo and Wik all yielded outcomes that had an intense effect on the Australian national identity.
When this thesis is applied to the process of the crowd — its formation, its rupture of the flow of quotidian life and of ideas and its eventual breakage — gives rise not merely to an ethics or a law of crowds. Rather, it confronts the premise that the crowd may attempt to be encapsulated in reason; however, this is, to an extent, ‘ineffable’ (Wall, 2016: 408). There is no mere distinction between the law as sole rationality and the crowd as fundamental irrationality. Further, conceptualisations of the many and the one does little to clarify the phenomena of violence and the crowd. The identity and the ethics of the individual are purported to dissolve when in a crowd and instead individuals assume a collective identity with the crowd based on what psychologists call the Elaborated Social Identity Model which traces the fluidity of the movement of the crowd (Wall, 2016: 401, 407). This is true of the peaceful protest, the inevitable movement through city train carriages, and the riot. Violence then is said to be the work of a small few amongst otherwise peaceful protestors (Wall, 2016: 407).
It is worth reiterating that the crowd does not, and historically has not, only functioned as a righteous disavowal of an unjust government; the converse has often proved to be true. In Australia, however, varied the history of riots are, their place is often linked with race relations. Violence has taken the shape of a crowd that resents immigration and difference. Thus, more than a century after Buckland, the formation and abolition of the White Australia Policy, and the development of an exceptionally multicultural nation, one of the worst riots in recent memory was at Cronulla Beach in 2005. The initial violence began on 11 December and lasted for two days resulting in 285 arrests and 100 charges laid (New South Wales Police, 2006). The Cronulla riots were a conflict between white and Lebanese Australians and are notable for their distinct post-9/11 undercurrent coupled with a longstanding cultural tradition of racism. The language of the Cronulla Riots was racial, with text messages and graffiti circulated such as ‘Go home Arabs,’ ‘wog and leb bashing day’ and, from the Lebanese assailants, ‘Ossie dogs’ were the calls to arms (Cronulla Riots: The day that shocked the nation, 2013). Muslims were suspect, questioned as to their views on Sharia law and 9/11 and, much like the Chinese immigrants before them, were the target of white violence and Nationalist ideals because of fear and anger towards difference. Badiou drawing on Levinas notes that ‘ethics’ posits only a good other. He states:
The problem is that the ‘respect for differences’ and the ethics of human rights do seem to define an identity! And that as a result, the respect for differences applies only to those differences that are reasonably consistent with this identity … Even immigrants in this country [France], as seen by the partisans of ethics, are acceptably different only when they are “integrated” (Badiou, 2012: 24).
This has particularly been the mentality of Australian national identity. The waves of immigration since the Gold Rush have been multiple and distinct. To each, there has been significant adversity faced by the ethnic group in question. Thus, while no two riots, indeed no two crowds the same, there has been a distinct trend in Australia of racial violence towards a particular group whose customs diverge from the ‘Australian’ identity. Whilst Arendt had not conceived of it, her statement that ‘violence … is more the weapon of reform than of revolution’ has particular resonance in Australia’s history (Arendt, 1972: 156). Immigrants have had to reform to the ‘Australian’ way in order to be accepted by the populace as a whole. Indeed, the language of the Cronulla riots is startling in revealing how assailants displayed their nationalist ideals. Far from the singular few, Cronulla demonstrated concentrated group rage towards anyone ‘of middle eastern appearance’ (Four Corners: Riot and Revenge, 2006).
The response to Cronulla was twofold. The legislature passed laws that expanded police powers to stop individuals, conduct searches, and restrict movement. The judiciary sentenced offenders on assault, vandalism, and public disorder charges (NSW Ombudsman, 2006). While the response is, on its surface, a stark contrast to the result in Buckland, Cronulla compounded the dialogue of race issues in Australia. It was, like Buckland, a threshold that was broken, establishing a pattern of suspicion of Middle Eastern immigrants that has grown ever more forceful in the decade following. The legislature is unable to distinguish between protest as a form of democratic expression and targeted racial violence towards minorities. The implications of this are yet to be demonstrated aside from the numerous instances of apparent police misconduct which are often unable to be effectively investigated, due to labyrinthine reporting processes. However, the crowd itself does not become a riot through the actions of a few individuals. Rather, the cyclical oppression of immigrants over the past century has transformed the ethos of this nation to one that has used violence as a means of establishing a frail identity in the face of global change.
January 26, 2017.
I am walking down Swanston Street, one of the busiest in Melbourne’s CBD, on the way to the Invasion Day rally. I attend each year to reflect upon the effect of the British declaration of sovereignty on Indigenous people and to pay my respects. There is an enormous parade moving down Swanston street — musicians, singers, marchers, are playing instruments and singing amid the cheers of onlookers. I see members of the Lebanese community who have formed the atmosphere of the city through successive waves of migration. I see Italians, Vietnamese, Pakistanis and Indians, all who have, at one stage or another, been subject to the rage of white Australia. They wave at the crowd of families with flags in their hands. I think about how Sudanese men between the ages of 16 to 26 are stopped by the police with frightening regularity.
At the steps of Parliament House is the Invasion Day rally. Police are mounted on horses at each end. There are cars at each intersection of Bourke Street. Amid the sea of red, black, and yellow, I notice two people in neon pink vests with clipboards and pens. The official parade has finished and the rally has replaced it. Outside Flinders Street station, beneath the clocks, a gathering of more than 18,000 people protesting the continued celebration of Australia Day goes on for several hours. People sit on the road lighting cigarettes, fires, and chanting. Older men speak to each other about the energy of this particular crowd, how it may be the catalyst for change that will turn the tide of history.
As I stand to leave, a policeman grabs me by the arm and tells me that I am not authorised to go through the road ahead and that I am to navigate my way back through the crowd to find an alternative exit. I comply because I am a law student and an altercation may have consequences as to my fitness to practice in future. But I see the people in the pink vests write it down. I ask them who they are and they tell me that they are legal observers. ‘Our job,’ says the man with dreadlocks tied in a bun, ‘is to ensure that we can provide testimony if anyone is injured by the police.’ In Sydney, a protestor, the frontman of a punk band, set an Australian flag alight. I look up to see whether there is a crime in this or whether the police merely thought that this was grounds to beat and detain him. There is no Bill of Rights in Australia: individual freedom is relegated solely to an implied freedom of political communication found in the Constitution. While this was the band member’s act, the police did not interpret it as such.
It is the energy created by the crowd that the law has, as a rational system, been thus far unable to comprehend in any meaningful way. The isolation of the individual among the group, the deferral of systemic state violence upon groups, and the application of a normative system that necessarily excludes the motivation and movement of a crowd, all speak to the idea that, while the crowd is not inherently irrational, its properties are as such that it eludes coherent analysis in every case. In Australia, these issues are further problematised by the continued inability of the Australian populace to maintain a coherent national identity in the face of immigration. So powerful is the threat of the immigrant to the understanding of what it means to be Australian, that the result has been forceful, large-scale violence to which the law has responded with a legitimisation of state power and coercion. In sum, the crowd in the eyes of the law is one and the same. The solution, however, is not in the harsher prosecution of hate crime or further police power. Instead, it exists outside, for the law is only as effective as the mentality of the civilisation it is to uphold.
Arendt, H. (1972). Crises of the Republic; lying in politics, civil disobedience on violence, thoughts on politics, and revolution (New York: Harcourt Brace Jovanovich)
Badiou, Alain (2001). Ethics: An Essay on the Understanding of Evil, tr. Peter Hallward (London & New York: Verso)
Cover, Robert M. (1986). ‘Violence and the Word’, Faculty Scholarship Series, 2708, http://digitalcommons.law.yale.edu/fss_papers/2708 [accessed 17.11.2017]
Dworkin, Ronald (1986). Law’s Empire, (Cambridge, Mass.: Belknap Press)
Four Corners: Riot and Revenge (2006). [television program] (Ultimo, NSW: Australian Broadcasting Commission)
Latour, B. (2002). Making the Law, (Cambridge: Polity Press)
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1
NSW Ombudsman (2006). Issues Paper: Law Enforcement Legislation Amendment (Public Safety Act) 2005 Review (Sydney: NSW Government) https://www.ombo.nsw.gov.au/__data/assets/pdf_file/0011/4034/Issues-Paper-Law-Enforcement-Legislation-Amendment-Public-Safety-2006.pdf [accessed 04.01.2018]
New South Wales Police (2006). Strike Force Neil Cronulla Riots Review of the Police Response: Media Component, Vol. 3 (Sydney: NSW Government) http://www.abc.net.au/mediawatch/transcripts/ep38cronulla3.pdf [accessed 04.01.2018]
Wall, Illan Rua (2016). ‘The Law of Crowds,’ Legal Studies Vol. 36, no. 3 pp.395-414
The Wik Peoples v The State of Queensland & Ors, The Thayorre People v. The State of Queensland & Ors (1996) 187 CLR 1
Willard, Myra (1978). The History of the White Australia Policy to 1920 (Carlton: University of Melbourne Press)