Abstract
In colonial nations, such as the land called Australia, the two registers of settler and Indigenous jurisdictions compete at the level of symbolic certainty. In Lacanian psychoanalytic theory neither can arrive at perfect symbolisation but the struggle and the proximity to their arrival can evoke anxiety. What insists to keep this anxiety at bay, in non-Indigenous Australia, is what Jacques Derrida calls justice. As an impossible object, similar to the Lacanian object petit a, justice must be interminably animated to hold this object of desire in play. Humiliation of Indigenous people in Australia is, I argue in this article, one mode of this play. I interrogate the psychoanalytic discussions of anxiety by Freud and Lacan to consider firstly what might be the cause of anxiety for contemporary non-Indigenous Australians and secondly how this anxiety is ‘played out’ on the bodies of Indigenous people through practices of humiliation. As one example of this work of humiliation I consider several scenes of police practice in the Sydney suburb of ‘Redfern’ from the 1991 documentary Cop it Sweet.
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Notes
This is a different configuration from the confrontation with the mother’s womb which, in Slavoj Zizek, brings us back in contact with the Real (2006).
This is readily extended to those that affiliate with legal officials and seek security in jurisdictional certainty in other forms, but I am expressly dealing with officials in this work.
I am referencing comments by Israeli border guards, as discussed in other work: see Rogers (2016).
Winnicott’s title is Playing and Reality (1971), because he believes there is the objective world and the internal world, to say one plays with reality, is to give the dynamic a Lacanian inflection.
The now well recited discussion of ‘imagined communities’ by Anderson (1983).
See Wolfe (2014) for an excellent discussion of the similarities and differences in practices of colonisation in Australia and the Americas.
Assimilation policies and practices also insist at the level of the actions of officials and the exercise of racist beliefs, see Cunneen (2007).
As Douzinas says ‘the tribunal re-discovered the main tenets of natural law: its insistence that a hierarchy of laws exists and that, irrespective of domestic law, universal legal principles prevail’ (2009).
‘In Mabo (No. 2), Brennan J reminded us, again, that in a settled colony, such as Australia, the colonists bring with them “as much of the common law as is applicable to the circumstances of the colony”’ (Dorsett and McVeigh 2002, p. 293).
The ‘Congress of First Nations Peoples’ in Australia is well established and is developing its own governing structures.
As Patton notes ‘if the high court accepts the prior existence of Aboriginal and Islander societies with their own laws and interests in land for the purpose of the common law, then it seems at best inconsistent, at worst hypocritical, to deny prior indigenous sovereignty’ (1996, p. 165).
This was ‘challenged and undercut on the frontiers of the colony. Both the Aborigines and the settlers, albeit for different reasons, continued to take life according to codes of justice that originated from customary sources’ (Muldoon 2008, pp. 61, 62).
As Muldoon further explains ‘The plea hinged upon two distinct claims. In the first instance, counsel claimed that the Aborigine in question was not a person cognizable under British law. He could not be considered an “alien enemy” because no conquest had taken place, he could not be considered an “alien friend” because no alliance had ever been entered into and he could not be considered a British subject because no treaty, “either expressed or understood”, had ever been concluded “between his country and that of the British King”’ (2008, p. 63).
As Lacan says: Is it with these gifts, or with the passwords that give them their salutary nonmeaning, that language begins along with law? For these gifts are already symbols, in the sense that symbol means pact and they are first and foremost signifiers of the pact they constitute as the signified (2006, p. 225).
For Cover it is the pain and death of others that is the site of legal interpretation; for Lacanians it is to one’s own death that speech speaks.
Indigenous people constitute 2–3% of the Australian population. The Northern Territory population is 60% Indigenous people, but most Indigenous people live in the urban centres of Sydney or Melbourne. Redfern in Sydney and Fitzroy in Melbourne have historically housed a disproportionate number of Indigenous people.
As described in Dorothy MacKellar’s much cited poem on Australia ‘My Country’ (1908).
See Janet Chan’s discussion of the multifarious reactions to this documentary (1995).
I have discussed this dynamic (2016) and its relation to Elaine Scarry’s work (1985).
To produce oneself without desire equals death. In one sense the dynamic is similar to the relation with the snitch in the quidditch game in Harry Potter—the game is over, desire is over, once this elusive object is caught, but it is around this object that the entire game is organised.
References
Anderson, Benedict. 1983. Imagined communities: Reflections on the origin and spread of nationalism. London: Verso.
Australian Law Reform Commission (ALRC). 1986. The recognition of Aboriginal customary laws, Report No. 31, pp. 3–17.
Biber, Katherine. 2002. The hooded bandit: Aboriginality, photography and criminality in Smith v The Queen. Current Issues in Criminal Justice 3(3): 286–300.
Black, Christine. 2011. The land is the source of the law: A Dialogic encounter with Indigenous jurisprudence. London, UK: Routledge-Cavendish.
Brockie, Jenny. 1991. Cop it Sweet. ABC TV Documentaries, 66 mins.
Chan, Janet. 1995. Damage control: Media representation and responses to police deviance. Law Text Culture 2: 36–60.
Cover, Robert. 1986. Violence and the word. Yale Law Journal 95: 1601–1629.
Cunneen, Chris. 2006. Racism, discrimination and the over-representation of indigenous people in the criminal justice system: Some conceptual and explanatory issues. Current Issues in Criminal Justice 17(3): 329–346.
Cunneen, Chris. 2007. Assimilation and the re-invention of barbarism. Australian Indigenous Law Review (Special Edition) 11: 42–45.
Derrida, Jacques. 1990. Force of law: The ‘mystical foundation of authority’. Cardozo Law Review 11: 921–1045.
Dolar, Mladen. 2006. Voice and nothing more. Cambridge, MA: MIT Press.
Dorsett, Shaunagh, and Shaun McVeigh. 2002. The law which governs Australia is Australian law. Law and Critique 13(3): 289–309.
Dorsett, Shaunagh, and Shaun McVeigh. 2012. Jurisdiction. London: Routledge.
Douzinas, Costas. 2009. Are rights universal? The Guardian. https://www.theguardian.com/commentisfree/libertycentral/2009/mar/11/liberty-central-deconstructing-rights. Accessed 26 May 2017.
Evans, Dylan. 1996. An introductory dictionary of Lacanian psychoanalysis. New York: Brunner Routledge.
Forbes, C.J., Dowling, J., and Burton, J. 1836. R v Murrell and Bummaree. Sydney Gazette, 19 and 23 February 1836.
Freud, Sigmund. 2001. Beyond the pleasure principle, group psychology and other works (1920–1922). Trans. J. Strachey. London: Vintage.
Gaita, Rai. 2000. A common humanity: Thinking about love and truth and justice. New York: Routledge.
Hoens, Dominiek. 2016. Object a and politics. In Jacques Lacan: Psychoanalysis and politics, ed. S. Tomsic and A. Zevnik. London: Routledge.
Keating, P. 2000. The Redfern Park speech. In Essays on Australian reconciliation, ed. Michelle Grattan, 60–64. Melbourne: Black Inc.
Lacan, Jacques. 1977. Four fundamental concepts of psychoanalysis: Seminar XI, ed. Jacques-Alain Miller, trans. Alan Sheridan. London: Penguin.
Lacan, Jacques. 2006. Ecrits: The first complete edition in English. Trans. Bruce Fink. New York: W.W. Norton & Company.
Lacan, Jacques. 2007. The other side of psychoanalysis: The seminar of Jacques Lacan, Book XVII. Trans. Russell Grigg. London: W.W. Norton & Company.
Langer, Lawrence. 1980. The dilemma of choice in the death camps. Centerpoint 4(Fall): 222–231.
Muldoon, Paul. 2003. Reconciliation and political legitimacy: The old Australia and the new South Africa. Australian Journal of Politics and History 49(2): 182–196.
Muldoon, Paul. 2008. The sovereign exceptions: Colonization and the foundations of society. Social and Legal Studies 17(1): 59–74.
Patton, Paul. 1996. Sovereignty, law and difference: After the Mabo case. Alternatives, Global, Local, Political 21(2): 149–170.
Patton, Paul. 2000. The translation of indigenous land into property: The mere analogy of English jurisprudence… Parallax 6(1): 25–38.
Rogers, Juliet. 2013. Law’s cut on the body of human rights: Female circumcision, torture and sacred flesh. London: Routledge.
Rogers, Juliet. 2016. The work of humiliation—A psychoanalytic understanding of checkpoints, borders and the animation of the legal world. Law and Critique 28(2): 215–233.
Rogers, Juliet. 2017. Is psychoanalysis universal? Politics desire and law in colonial contexts. Journal of Political Psychology 38(4): 685–700.
Rowse, Tim. 1993. After Mabo: Interpreting indigenous traditions. Melbourne: Melbourne University Press.
Rush, Peter. 2005. Surviving common law: Silence and the violence internal to the legal sign. Cardozo Law Review 27(2): 753–766.
Salecl, Renata. 2004. On anxiety. London: Routledge.
Scarry, Elaine. 1985. Body in pain: The making and unmaking of the world. New York: Oxford University Press.
Watson, Irene. 2014. Aboriginal peoples, colonialism and international law: Raw law. London: Routledge Glasshouse.
Winnicott, Donald. 1971. Playing and reality. London: Routledge.
Wolfe, Patrick. 2014. Traces of history: Elementary structures of race. New York: Verso.
Zdenkowski, George. 1994. Customary punishment and pragmatism: Some unresolved dilemmas: The Queen v Wilson Jagamara Wilson. Aboriginal Law Bulletin 3(68): 26–27.
Zizek, Slavoj. 2006. The parallax view. Cambridge, Massachusetts: MIT Press.
Cases
Mabo and Others v Queensland (No. 2) 1992, 175 CLR 1.
R v Murrell and Bummaree [1836] New South Wales Supreme Court 35 (5 February 1836)
R v Lowe, [1827] NSWKR 4; [1827] NSWSupC 32.
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Rogers, J.B. Humiliation, Justice and the Play of Anxiety in Competing Jurisdictions. Law Critique 28, 289–305 (2017). https://doi.org/10.1007/s10978-017-9209-4
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DOI: https://doi.org/10.1007/s10978-017-9209-4