ABSTRACT
Across national and international frameworks – from UN conventions, reports and policies, and the proliferation of human rights discourses, to national commissions, inquiries and legislative responses – the figure of the child has been the occasion for significant legal and political interventions. In various national contexts, the sentimentalised child has been used to justify state law’s inventions into, and adjudication of, violence, and has become a highly significant figure in the liberal juridico-political imagination. Across civil and criminal legal forms, Australia has developed a carceral imaginary of Aboriginal people that positions Aboriginal children at its centre. This chapter begins by examining Australian law’s sentimental imaginary of children when framing historical injuries within common law and transitional justice frameworks (from Bringing Them Home to the Trevorrow cases) and then theorises the relation of this historical imaginary to the contemporary carceral imaginary, as it disproportionately affects Aboriginal men, women and children.
This chapter then argues for the centrality of the figure of the girl to emergent critical and cultural forms that challenge Australian state law’s violence towards Aboriginal people. We need to shift the critical emphasis away from “the sentimental child” of the liberal imaginary. This critical method means recognising that state law is not the only law operating through any one territory, at any one time. Rather, multiple legal systems co-exist as complex relations – some of which are recognised and met by the majority, most of which are not. In this way, my critical analysis of imaginative literature initiates alternate modes of not only thinking about law, but also constituting law and legal thought. I focus on modes of indigenous law, feminist law, queer and anti-racist law – all laws that become legible in genres defined as “fiction”, in contrast to what I term Australian state law’s aggressive realism.
