States of Injustice and Statuses of Legality

This is an extended version of a paper prepared for a workshop on 'Responding to Injustice' at the Julius Stone Institute, University of Sydney, in Dec 2022. An edited version will appear in the collection arising from that workshop, and that will be the version of record.

28 Pages Posted: 24 Jan 2023

See all articles by Nicole Roughan

Nicole Roughan

University of Auckland - Faculty of Law

Date Written: January 22, 2023

Abstract

In The Faces of Injustice, Judith Shklar argued that the abstraction of the normal model of law means it fails to see and respond to the concrete faces of the victims of injustice. This working paper (prepared for a workshop on 'Responding to Injustice' at the Julius Stone Institute in late 2022) argues that, while Shklar’s account may resonate in contexts of continuing colonisation, where state law’s agents are (just as Shklar suggested), agents of injustice, such an account of a faces and voices model of justice fails to recognise the forms and claims of Indigenous legalities that have been displaced and dominated by colonial impositions of settler legal orders.

Legality’s tendency to abstraction offers more complex potential than Shklar’s critique in Faces of Injustice suggests. By abstracting the status of legality away from concrete state law, a theory of law can see and hear interactive or overlapping claims to legality that contest the same mode of normative ordering. Law’s abstraction can then underpin forms of ‘interlegality,’ which offers tools for addressing the interaction and intersection of legal orders in contexts of state-Indigenous interactions. Legality’s forms of abstraction (can be used to imagine forms for just contestation, correction, and distribution of the status(es) of legality.

Keywords: legality, injustice, Indigenous law, supersession, pluralism, interlegality, Judith Shklar, Waldron, tikanga Māori

JEL Classification: K10

Suggested Citation

Roughan, Nicole, States of Injustice and Statuses of Legality (January 22, 2023). This is an extended version of a paper prepared for a workshop on 'Responding to Injustice' at the Julius Stone Institute, University of Sydney, in Dec 2022. An edited version will appear in the collection arising from that workshop, and that will be the version of record., Available at SSRN: https://ssrn.com/abstract=4334039 or http://dx.doi.org/10.2139/ssrn.4334039

Nicole Roughan (Contact Author)

University of Auckland - Faculty of Law ( email )

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Auckland Mail Centre
Auckland, 1142
New Zealand

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