ABSTRACT
In settler-colonies such as Australia and South Africa, the illegitimacy of the colonial
foundation of law and society, and the legacy of racially discriminatory laws have
generated a demand for the renewal of juridical and political institutions. In such
‘postcolonial’ contexts, the juridical and the social (predominantly in the form of
the nation-state) have been undergoing processes of transformation.2 The concern
of this chapter is to set out how ‘postcolonial’ reconciliation presents itself as
the problem of the ‘political’. The discussion will be centred on reconciliation in
Australia. It will be argued that the renewal of the juridical and the political harbours
the contradiction of at once preserving and disavowing colonial sovereignty, law,
and political community. Importantly, it is through a notion of ‘political community’
and the insistent ‘commonality’ of a nation with ‘one-law’ that this ‘postcolonial’
contradiction is sustained. The ‘time’ of reconciliation is marked and delineated
by the possibility of producing a renewed polity or ‘political community’. This
process of re-inscribing the ‘political’ under ‘one-law’ subordinates indigenous
laws and customs, once again, in the name of ‘civilisation’, and its new effigies,
democracy and human rights. Reconciliation, I will demonstrate, returns a form of
domination through the subordination of ‘backward’ indigenous cultures that are
to be overwhelmed by ‘modernity’. I elaborate this argument through a discussion
of recent debates in Australia on whether the causes of high levels of violence and
poverty in indigenous communities is inherent to forms of ‘traditional’ indigenous
‘culture’. How does reconciliation and ‘postcolonial’ renewal of law and society
lead to the re-emergence of the notion of a backward native who must be dragged
into modernity through ‘modern’ law? What is it about the ‘postcolonial’ response to
the demand for responsibility that results in the return of a patronising cultural and
juridical supremacy? Reconciliation has all too readily manifested itself through the
verb ‘to be reconciled’ – for indigenous people to be reconciled to their domination
(Fitzpatrick, 2004, 282ff).
