Mabo Case in Australia: Conflicting Approaches to Common Law?
14 Pages Posted: 22 Oct 2017
Date Written: 2014
After the expansion of the English empire in the 18th century and the establishment of new colonies overseas, the indigenous individuals and their rights constituted a hot topic for the judges and the common law legal system specialists. The core of this topic was the dilemma of what status native laws and their pre-existing rights should have. Indeed, the aboriginal rights became very critical when the indigenous people went to the courts of the common law itself to seek the potential help they wanted.
In 1992, Mabo case in the Australian High Court was a tremendous event regarding the indigenous rights issue, and there were two main judicial approaches to rule in that case. Brennan J was the father of the first approach, and Dawson J was the father of the other.
I argue that according to results of analytical comparative research, Brennan J’s approach is flexible, consistent with the global context, and pays the required attention to the humanitarian aspect of the law. Additionally, Dawson J’s approach is rigid, dehumanising, and restrictively vests the legitimacy only in the common law principles themselves.
Keywords: Indigenous Studies, Australian Indigenous Studies, Legal Systems & Methods, Common Law Reasoning
JEL Classification: K40
Suggested Citation: Suggested Citation