Mabo Case in Australia: Conflicting Approaches to Common Law?

14 Pages Posted: 22 Oct 2017

See all articles by Osayd Awawda

Osayd Awawda

Birzeit University - Faculty of Law and Public Administration; University of Melbourne, Law School, Students

Date Written: 2014

Abstract

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

Awawda, Osayd, Mabo Case in Australia: Conflicting Approaches to Common Law? (2014). Available at SSRN: https://ssrn.com/abstract=3015144 or http://dx.doi.org/10.2139/ssrn.3015144

Osayd Awawda (Contact Author)

Birzeit University - Faculty of Law and Public Administration ( email )

Ramallah
Palestine

HOME PAGE: http://www.birzeit.edu/en/faculty-staff/osayd-awawda

University of Melbourne, Law School, Students ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria
Australia

HOME PAGE: http://https://www.linkedin.com/in/osayd-awawda/

Register to save articles to
your library

Register

Paper statistics

Downloads
14
Abstract Views
123
PlumX Metrics