A Beautiful Fiction of Law

Kieran Dolin (University of Western Australia)

This post accompanies Kieran Dolin’s Journal of Victorian Culture article published (2013). It can be read in full here.

Figure 1: Illustration from 'Australia: the first hundred years', by Andrew Garran (1886)

My article, ‘A Beautiful Fiction of Law: Rhetorical Engagements with Terra Nullius in the British Periodical Press in the 1840s,’ emerged out of an interest I have in the way legal ideals percolate throughout Victorian literature and culture. Many writers had legal training, and even without that, educated Victorians drew on the vocabulary of law and justice in addressing ethical and political problems.

One such problem was the ill-treatment of Indigenous peoples in the rapidly expanding empire. The colonization of Australia proceeded on the basis that the continent was terra nullius, a land belonging to no one. Under the cover of this legal fiction, the dispossession of the Aboriginal inhabitants was accomplished.

By the 1840s frontier violence, in particular the decimation of the Tasmanian Aborigines, led humanitarians in Britain and Australia to challenge colonial policy and its legal basis. At the same time, fair-minded white observers in the colony were becoming aware that Indigenous peoples had their own territories and systems of law, and that terra nullius was factually inaccurate.

My article examines books produced by two explorers and one colonist, Edward Eyre, Paul Strzelecki and Edward Landor. All recognize Aboriginal title and consequently debate the legal foundation of white settlement. Their arguments were taken up, and extended, in reviews in major British periodicals. The reviewers made informed use of legal rhetoric, along with sentimental discourses, in challenging the justice of colonial treatment of the land and its Indigenous peoples.

I found one of these reviews in an anthology of nineteenth-century writings on Australia in the British periodical press.[1] Its discussion has a very modern ring to it, for these issues remain current in Australia today. 2012 was the 20th anniversary of the recognition of native title in Australian law in the case of Mabo v. Queensland, and in some ways these writings show how some Victorians grappled with these questions in terms that anticipate our own.

That text led me to seek others that engaged with law and justice in similar depth. What I found was that all these writings, with their passion for justice and their jurisprudential literacy, try to reform colonial practice, and thus to contain Aboriginal rights within an ongoing imperial relationship.

In performing that juggling act, however, they sometimes develop ideas still have visionary potential, such as ‘concurrent right and possession.’

This article is part of a larger project funded by the Australian Research Council in which I am studying the impact of the Mabo decision on Australian literature.

Professor Kieran Dolin is based in the department of English and Cultural Studies at the University of Western Australia


[1] Judith Johnston with Monica Anderson (ed.), Australia Imagined (University of Western Australia Press, 2005). The cover of this book might be a good illustration for this blog entry.

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