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University of Technology Sydney Law Research Series |
Last Updated: 2 June 2017
Encountering Law’s Harm Through Literary Critique: An anti-elegy
of land and sovereignty
Honni van
Rijswijk
Abstract:
This article focuses on the significance of practices of representation to
law’s role in adjudicating harm—both the role
of representation in
the adjudication of past harms, and in law’s present-day assertions of
authority. I focus in particular
on the ways in which questions of harm to the
person, relation to land, and sovereignty have been separated in law, and the
effects
of these practices in constructing legal authority. I turn to
Wright’s The Swan Book (2013) to provide a reading of the
“undoing” of narratives of harm based on the person, and to thereby
critique law’s
representations of harm. I argue that, as an anti-elegy in
the Modernist tradition, Wright’s novel provides a metaphor of harm
and
responsibility that reorganises time, destabilises law’s claims to
authority over the adjudication of harms, and queries
law’s claim to
authority over other legal systems and sovereignties. This reading takes the
framework of harm beyond the personal,
to include the violent histories that
have produced legal concepts including “land,”
“sovereignty” and even
“law” itself—histories and
contexts that are separated and obscured in law.
Keywords:
Modernism and representation; anti-elegy; Alexis
Wright; colonisation; representations of land; figure of the
child
Biographical statement:
Dr Honni van Rijswijk researches
at the intersections of law, literature and legal theory, and has written on
subjects ranging from
the feminist aesthetics of harm, narratives of consent in
Stolen Generations cases, and the significance of Virginia Woolf to tort
law.
She is currently working on a book called The Figure of the Child in the
Legal Imaginary of Violence: Trauma and Futurity in Transnational Contexts,
which examines the significance of the child figure in constituting the
authority of law, in legal formulations of responsibility
for past and present
harms, and to the contemporary rule of law.
Contact details:
Honni.vanRijswijk@uts.edu.au
Faculty of Law, University of Technology Sydney
PO Box 123
Broadway NSW 2007, AUSTRALIA
Encountering Law’s Harm Through
Literary Critique: An anti-elegy of land and sovereignty
Honni van
Rijswijk
“This was the place where the mind of the nation practiced warfare and fought nightly for supremacy, by exercising its power over other people’s land”
“This is where it begins as far as I am concerned. This is the quest to regain sovereignty over my own brain.”
—Alexis Wright, The Swan Book (2013)
LAW’S VIOLENT JURISDICTIONS
Set in the post-apocalyptic
landscape of 2088, and focalized through an Aboriginal teenage girl, Oblivion
Ethylene, nicknamed “Oblivia,”
Alexis Wright’s 2013 novel
The Swan Book is a dystopic history of our future. The Swan Book
unfolds in the Northern Territory within “the world’s most unknown
detention camp,”[1] where
Oblivia and her community live in the wake of catastrophic climate change and
widespread war. Oblivia has survived rape, environmental
devastation, and
continuing colonization. These intersecting harms are figured as “a
virus”[2] that invades her mind
and that she cannot eradicate. This article argues that by figuring such harms
to the person, to the land and
to Aboriginal sovereignty in the genre of the
anti-elegy, The Swan Book offers a counter-imaginary to law’s
representations of harm. Law, I argue, has an elegiac structure: it figures harm
as having
occurred in the past, as something to be resolved and put behind us,
and consequently it has no framework for allocating responsibility
for
continuing harms. In contrast, The Swan Book’s representations of
loss and harm are framed as ongoing conditions of evisceration, which are a
heightened but familiar version
of our present. The novel indexes major traumas
of the twentieth century, which have still to be resolved, and also looks
seventy
years into the future, at a moment in which we are confronted with
losses that further exceed our frameworks of meaning. I argue
that literary
texts such Wright’s anti-elegy enable us to consider what an alternative
framework of harm might mean to law,
and to the development of a jurisprudence
of harm sufficient to meet the losses of our present and our future.
Through
practices that draw on the modernist tradition, as well as Aboriginal lore,
The Swan Book opens out from Oblivia’s trauma to offer a
representation of the interconnectedness of harms, providing a domain from which
to question and critique law’s genres. The anti-elegiac structure provides
a framework within which to connect questions of
harm, agency and land, and to
re-orient the question of harm beyond a personal and even human framework. The
novel thereby makes
visible law’s “jurisdictions” of
representation, and the implicit claims to authority made through law’s
response to harms. Wright’s anti-elegy provides an alternative way through
loss, offering a form that questions law’s
assumptions regarding the
nature and temporality of harms. It provides a framework of harm that is capable
of more completely representing
harm in post-traumatic and postcolonial
contexts, compared to legal processes: of taking proper account of the violent
histories
that have produced legal concepts such as “land,”
“sovereignty” and even “law” itself—histories
and
contexts that are separated and obscured in law.
Reading The Swan
Book as anti-elegy is a challenge to law’s claim to an exclusive
jurisdiction over the adjudication of violence, a claim that is
central to
understanding the constitution of law’s authority in
modernity.[3] This alternative reading
of harm is necessary if we are to understand law’s role in the
adjudication of violence within the
historical context of modernity and, since
this is an Australian archive, under postcolonial conditions—an
understanding that
involves tracing law’s role in adjudicating violence
through time. From the Enlightenment onwards, law has been given a greater
jurisdiction over violence, with increased social and political expectations
that acts of violence will be regulated through legislation,
and adjudicated in
the courts. The recent past has seen the development of criminal and tort law
into novel areas of culpability
and suffering, as well as the development of
transitional justice processes designed to respond to the calamities of
modernity. But
law’s role here is complex and implicated, and law’s
adjudication of violence can itself lead to further
violence.[4] Indeed, for Walter
Benjamin, most law comes from acts of genocidal exclusion. Acts of lawful
violence are required for the continuing
formation of the state: “All
violence as a means is either lawmaking or law-preserving,” and is
“implicated in
the problematic nature of law
itself.”[5] In modernity,
law’s assertion of a jurisdiction over harms has been central to the
constitution of its authority, and yet,
through these adjudications, law’s
own violence is heightened.[6] In his
later reading of Benjamin’s essay, Jacques Derrida focuses on those
moments in which “justice” is asserted
as a response to violence.
While these moments are neither inherently “just nor unjust,”
Derrida says, they are represented as just through a “discourse of
self-legitimation.”[7]
Representational practices are central to assertions of law’s
jurisdictions—such acts are “said to found law or
state.”[8] It is the control
over the means of representation that is crucial, both to the “emergence
of justice”[9] and to the
violence that is inherent in these adjudications. Such legal and state
narratives of violence and justice are also supported
by a teleological,
cause-effect “homogenous [and] empty”
temporality.”[10]
In this
essay, I am interested in how an emphasis on genre can deepen this analysis.
Law’s assertion of jurisdiction over violence
can be thought of as
aggressive realism. Law is aggressive in its assertion of an exclusive
jurisdiction over violence, making an
implied claim that it alone can access the
truth, punish offenders and repair harms. Law’s assertion of jurisdiction
is also
representational, excluding other genres and representational practices
in responding to violence. We need ways to encounter and
intervene in the
complexity of legal imaginaries of violence and harm—imaginaries that are
not available through law’s
own accounts. The following reading of law
through anti-elegy reveals law as representation, and more particularly,
as a particular genre produced through specific historical practices. Reading
law via anti-elegy
also shows the effects of the teleological temporality that
underpins law’s claims to this authority.
A recent turn in the
sub-discipline of law and literature has focused on the significance of
representation to the practice of criticism—particularly
on ways in which
a literary reading becomes a mode of critique of
law.[11] Scholars in this area have
gone beyond thematic readings of texts to examine the roles of form, metaphor,
and narrative as modes
of critique, and have given particular attention to the
ways in which critique can be thought of “as a problem of
genre.”[12] Here, genre is
understood not merely as a “stylistic device,” but as constituting
(and revealing) ways of being.[13]
Genres not only construct “schematic world[s]” with their own
“definition[s] of space, time, moral ethos, and
players,”[14] but can reveal
something of how worlds—including legal worlds—are created and
maintained. Such a critique introduces
a degree of self-consciousness into our
practices of representation, providing a way to think through subjectivity and
authority.
Certain genres and modes have the capacity to introduce a critical
framework or sensibility, foregrounding and making visible certain
narratives
as narratives, which would otherwise be experienced as true and
real. [15] Engaging exemplary
counter-texts in this mode provides a way to challenge law’s forms, not
least through experiences of “affective
dissonance.”[16] Modernist
works are singled out as exemplars of this critical mode because of their
interest in, and critique of, histories and practices
of representation, and
their radical experiments with
form.[17] In particular, their
critique of the Enlightenment projects of philosophy and political thought hold
a special relevance to how we
understand the history and experience of
colonization. These Enlightenment writings produced imaginaries and logics that
justified
Europe’s place in the world; justified harms inflicted in the
creation and protection of private property; and animated the
ways in which the
colonial other was encountered.[18]
THE ANTI-ELEGY AS A MODE OF CRITIQUE
The classical elegy’s
history moves from the Greeks through Shakespeare and into modern and postmodern
forms, wherein the elegy
comes to mean something more ruminative, cerebral, and
darkly sublimating. The elegy works within a loss-consolation paradigm,
providing
a structure through which to move with loss through time, towards the
resolution epitomized in the final line of John Milton’s
“Lycidas”: “Tomorrow to fresh woods and pastures
new.”[19] The elegy provides a
social mediation of harm, and social critique is part of the “elegiac
inheritance.”[20] We can think
of law as having a classical elegiac structure: law figures harm as being
located primarily in the person, as having
occurred in the past, and as being
capable of resolution. Thomas Pfau argues that the elegiac is “the
defining characteristic of aesthetic production in Modernity,” a mode
that increasingly influenced literature, art and theory
from the mid-eighteenth
century onwards.[21] Pfau locates
the power behind this elegiac sensibility in a mourning of ideality, arising
through disenchantment, especially with
those practices of representation that
supported Enlightenment logics and
rationalities.[22] The significance
of the elegiac is also due, Pfau argues, to modern temporality, present too, of
course, in law, which, with its
teleological approach, institutes clear
“programmatic breaks” with the past, bringing about what Walter
Benjamin described
as an “homogenous [and] empty” time that is
inherently mournful.”[23]
The classical elegy was reworked by modernists as they sought new frameworks
and metaphors to respond to the violence of modernity,
especially the rupturing
event of the Great War, which made existing representational forms seem
redundant.[24] From Walter
Benjamin’s angel of history, to Freud’s theories of shock and
psychoanalysis, and on to the transitional
justice processes after World War II,
legal and literary writers throughout the twentieth century sought new forms to
understand
and adjudicate modern
violence.[25]
With its
continuous-present temporality, and its refusal to offer resolution, the
anti-elegy form provides an alternative way through harm. If the classical elegy
structured the resolution
of loss, then the modernist anti-elegy explores, in
the words of Elizabeth Bishop, the “art of
losing.”[26] The modernist
anti-elegy is characterised by resistance to the normative process of
resolution: in Jahan Ramazami’s words,
it entails “not so much
solace as fractured speech, not so much answers as memorable
puzzlings.”[27] Structurally,
final closure is refused, and instead of loss being transcended or redeemed, the
reader continues to be immersed in
loss, inhabiting a state of “resistant
mourning.”[28]
The use of
the anti-elegy as a structural device in the novel is exemplified in the work of
Virginia Woolf: Jacob’s Room
(1922),[29] To the Lighthouse
(1927)[30] and Mrs Dalloway
(1925).[31] On the 27th
June 1925, six weeks after the publication of Mrs Dalloway, Virginia
Woolf wrote in her diary: “I have an idea that I will invent a new name
for my books to supplant ‘novel’.
A new [--] by Virginia Woolf. But
what? Elegy?”[32] Woolf
engaged the anti-elegy to critique a number of social harms. Set in June 1923,
Mrs Dalloway focuses on a single day in which Septimus Smith, a young,
shell-shocked veteran of the war, is driven to suicide; his trauma is famously
twinned with that of Clarissa Dalloway, who is hosting the party, and who has
experienced her share of hidden losses. Instead of
a conventional plot,
characters are connected through their elegiac relation to a multitude of
losses. The literary scholar Tammy
Clewell argues that, “in her sustained
effort to confront the legacy of the war, Woolf repeatedly sought not to heal
wartime
wounds, but to keep them
open.”[33] This refusal to
represent the Great War as a discrete and resolved event means that across these
novels, the war is not figured as
exceptional—rather, war trauma is
resituated as an extension of social institutions and everyday violence. Mrs
Dalloway argues that, when looking for the causes of war, it is important to
look at empire and social institutions, at the family, and civil
society. Yet it
is now difficult for us to fully access the nature of Woolf’s project; the
Great War, and even feminist projects
of representation, have become
familiar—we think we see these harms clearly. Her novels provide
experiences of “affective
dissonance,”[34] of discord
and rupture that provoke the reader to reconsider what they think they know
about harm and responsibility, and about the
significance of harm to civil
society and its institutions.
Alexis Wright’s novels Plains of
Promise (1997), Carpentaria (2006)
[35] and The Swan Book (2013) all
draw on this modernist legacy, but also update it and depart from its concerns,
moving into a domain that is uniquely
postcolonial and even post-human.
Wright’s novels work to escape the “colonising spider’s trap
door”[36] of political, legal
and historical discourses, which assert an exclusive claim to represent reality.
Carpentaria and The Swan Book in particular engage both modernist
and indigenous representational practices and thematize the significance of
practices of representation
to the constitution of authority, and to the
legibility of harms.[37] Even more
than Carpentaria, The Swan Book rejects plot as an organising
structure. Instead, the narrative is held together through a connected
recounting of losses, the novel’s
multiple points of view expressing a
chorus of injuries. Oblivia’s is the main consciousness of the novel. She
has been mute
ever since she was gang-raped as a young child by a group of
petrol-sniffing youths. The loose plot of the novel is based on her
attempt to
regain “sovereignty” over her own
mind.[38]
The novel begins with
the violent internal displacement of Aboriginal people. Oblivia’s home is
a rusted boat on the periphery
of an Aboriginal community that has been pushed
onto a swamp and surrounded by government razor-wire. Hers is just one of the
many
Aboriginal communities that have been targeted by the Australian army,
which has been sent in “to intervene and control the
will, mind and soul
of the Aboriginal people.”[39]
These harms are connected to those of a devastated Europe, where “whole
herds of deer [are] left standing like statues of yellow
ice while blizzards
stormed.” [40] The Europeans
who flee this disaster by boat become “the uncharted floating countries of
condemned humanity”,[41] and
die at sea, “[m]en, women and children captured forever in the ghost nets
of zero geography.”[42] Among
the European refugees is “the maddest person on Earth,” Aunty Bella
Donna of the Champions,[43] a rare
survivor who walks deep into the interior of Australia to find Oblivia, and who
cares for her for some time. In an effort
to stay sane, Oblivia befriends
thousands of black swans who have come to live in the swamp, drawn there by
their own law. The novel
shifts from the connected elegiac consciousness of a
dying world population to the point of view of the land, which is falling away.
The harms suffered by the land as a result of human action (climate change, war)
provoke the land to respond, and it has the authority
to do so. Not only is the
land, in Christine Black’s terms, a “source of
law,”[44] but is also a
grieving subject: “It was land screaming with all of its life to the
swans.”[45] Land is excessive,
rebellious and law-making. Land rebels by producing plagues of rats, owls,
butterflies and locusts, which flourish
and then are cut down; droughts kill
Australia’s green coastal areas; and floods overwhelm the
continent’s desert centre.
ENCOUNTERING HARM BEYOND THE PERSON
The Swan’s Book’s anti-elegy disrupts law’s
teleological narrative of violence through an engagement with “the
apocalypse”
as a trope of harm, not only revealing law as a particular
genre, but also its purported claim over past / present / future. The
apocalypse
has emerged as a significant figure in contemporary cultural and political life,
signifying the vanishing point of history,
and marking a sublime moment in which
harm exceeds the explanatory capacity of humanist
frameworks.[46] But The Swan
Book refuses the exceptionalism of apocalyptic logic, bringing the
apocalypse into civic institutions and private life. Harm is represented
not as
a rupturing event, but as continuous with the everyday: continuous with racism,
assimilation, gender violence, and state law.
We are not located in a world of
eviscerated institutions and frameworks. The post-apocalyptic world of the
novel is continuous
with ours; its legal and social structures, and its
institutions, are merely heightened versions of our own. As the novel begins
with this already devastated world, we are located in a post-apocalyptic
landscape, but with none of the “eventfulness”
of an apocalypse.
The Swan Book’s anti-elegy considers how representation has
operated, and continues to operate, in the context of ongoing colonisation; it
engages the modernist project of challenging Enlightenment categories and
histories of representation. Representations of state law,
of army violence, of
rape, of harms to asylum seekers, and of environmental damage—all concerns
of The Swan Book—are heavily mediated by the histories of western
representational practices. The novel reveals and critiques these
practices.
One of Wright’s stated aims is to represent the continuing
harms suffered by Aboriginal people—to describe the “the
living
hell” of many Aboriginal
lives.[47] While Wright’s work
provides a thematic critique of the harms of postcolonial Australia, it also
goes beyond thematic readings
to connect questions of harm to questions of
representation and authority. Her work asserts not only alternative claims to
truth
from legal narratives, but also challenges the modes in which those truth
claims are made. By representing harm as a question of
“sovereignty,” the novel reveals law’s narrow representation
of harm as relying
on a specific kind of personhood, and offers an alternative
to this framework. Oblivia is trying to “regain sovereignty over
[her] own
brain”.[48] To imagine harm
fully, the book requires us to go beyond the framework of an individual victim
to include the “mind”
of colonisation, of the land, and of
sovereignty. The concept of “the sovereignty of [the]
mind”[49] represents harm to
the person as something that cannot be separated out from the harm that has been
done to land, animals, languages,
sovereignties, cultures and laws. The category
of “person” is opened up, so that personhood—in this case,
Oblivia’s
suffering subjectivity—is represented as an effect of land
and law, as well as of human violence. The novel foregrounds questions
that are
occluded by the law, including the relationship of past harms to the present;
the connection of harms to the land to harms
to the person; and law’s role
in causing harm when it responds to suffering. This broader perceptual framework
challenges law’s
violent assertions of authority based on its claims to
have an exclusive jurisdiction over harms to Aboriginal populations,
jurisdictions
evidenced especially from the early twentieth century to the
present.
Between 1995 and 1997, an Australian federal government agency, the
Human Rights and Equal Opportunity Commission (HREOC), conducted
an inquiry into
the twentieth-century practices in which Aboriginal children were forcibly
removed from their parents.[50]
HREOC’s final report, Bringing Them Home, published in 1997, found
that from approximately 1910 to 1970, between one and three of every ten
indigenous children had been forcibly
removed from their families, and that this
led to ongoing physical and psychological harms. Bringing Them Home found
that removals in the different states and territories were justified through a
range of legislative regimes, including “protectionist”
legislation
that was specific to Aborigines,[51]
and more general welfare-based
legislation.[52] In removing
children, officials often relied on claims of abuse or neglect, evidence for
which was either not required, or which
was justified on the sole basis that the
child was Aboriginal, or was living in
poverty.[53] A number of survivors
of these removals gave evidence to HREOC that they had not been abused or
neglected, and some stated that they
were sent to foster homes or institutions
which were much more violent and abusive than their family of
origin.[54]
This legal violence continues to be present in contemporary regimes. The Northern Territory Intervention was implemented following the publication of the Little Children are Sacred Report (2007),[55] following an Inquiry into child sexual abuse. [56] Although the language of the legislation refers to Aboriginal welfare and wellbeing,[57] the Intervention legislation introduced measures that affect land rights, welfare benefits, and access to services, issues that are essentially about power and authority. The real suffering documented in Little Children Are Sacred is explained in the subsequent legislation and surrounding public debates not as an effect of poverty, structural racism or continuing colonization, or of the intergenerational effects of past traumas caused by the state, such as those documented in Bringing Them Home, but as effects of aberrant family structures, sex crimes, and by the effects of pornography and alcohol. Claiming a role merely in the adjudication of harms taking place in Aboriginal communities, the state asserts its jurisdiction and thereby inflicts harms on those communities. In doing so, it disguises its own violence. The adjudication of harm against the individual becomes an occasion through which the scope of “legitimate” violence by the state is in fact expanded.[58]
Wright’s anti-elegy provides a structure for harm that re-orients law’s assumption (and the assumption of the classical elegy) that the figure of the individual should necessarily be at the centre of understanding harm. It also demonstrates the ways in which refusing this centrality makes visible harms that are otherwise disguised in law. As a “little Aboriginal kid,”[59] Oblivia holds a difficult position within the Australian legal imaginary. It is impossible for her to tell the story of her rape—by members of her own community—without that story being interpreted as a narrative of community or familial dysfunction, and used as the occasion for yet more state intervention. So Oblivia never tells the story of her rape. The harms she suffers are never remedied; and the perpetrators are not brought to justice. Her story does not fall within the genre of a trauma or healing narrative. Rather, The Swan Book narrates harm from Oblivia’s position of representational impossibility. Refusing the rape narrative, the novel explains Oblivia’s suffering through a world of interconnecting environmental, political and legal harms: “like any other long-standing conflict around the world, one act of violation becomes a story of another.”[60] To tell the story of her rape as an event set apart, as a matter of violence between individuals, would omit the intersectionality of its causes—particularly the interrelation of sexual violence with colonialism, poverty and structural racism. It would also reinforce law’s habit of instrumentalizing violence—the history of law’s violent interventions being justified on the basis of the story of one Aboriginal subject harming another, a practice evident from the Aborigines Protection Acts of the twentieth century to the Northern Territory Intervention still in force.
As an anti-elegiac text, The Swan Book leaves the psychoanalytic model
of trauma behind. The attack on Oblivia’s mind’s sovereignty is
figured as a “cut
snake
virus”[61]—interconnected,
infectious, mutable, and uncontainable—in contrast to the structural
aesthetic of the psychoanalytic
trauma paradigm, in which suffering is contained
within the person, and can be resolved. Oblivia says: “If you want to
extract
a virus like this from your head—you can’t come to the door
of its little old-fashion prairie house with passé
kinds of
thinking....”[62] In the late
twentieth century, trauma theorists such as Shoshana Felman, Dori Laub and Cathy
Caruth extended the psychoanalytic framework
of trauma beyond the individual
psyche to account for the collective and intergenerational trauma of events such
as the Holocaust.[63] These
theorists emphasise the role of representation in responding to trauma, and, in
particular, the role of the literary domain
in finding new forms and frameworks
to make suffering legible, emphasising the ways in which the representational
work of witnessing
articulates historical losses. However, these theories and
responses do not fully account for the harms of dispossession caused by
the
history of settler colonialism, and through continuing colonial techniques. The
harms of colonisation call for different kinds
of legal and ethical responses
from those modelled on rupturing, traumatic events such as war: clear events
with a start and a finish.
The harms of colonization instead develop through
accretion.
The quasi-judicial, transitional justice process of the HREOC
Inquiry and the subsequent Bringing Them Home Report tried to find new
forms to respond to harm, and psychoanalytic frameworks were central to this
process. Bringing Them Home explicitly drew on the experiences of the
Shoah Foundation, and its belief in the significance of testimony to the process
of healing
and resolution.[64] The
Report’s framing narrative begins with the transgressions of violence and
removal, and ends with the resolution of harms
and obligations, in which
“all are sorted back into their proper places and all debts are
paid.” [65] Bringing Them
Home’s narrative of tracing a journey home, suggesting that all
journeys and losses return to the same place, imposes closure on
a process that
necessarily cannot (and should not) be
closed.[66] This narrative has the
effect of separating out “events” of forced removal of children from
their ongoing context, and
creates a false distance between policies of past and
present. Policies regarding the Stolen Generations are better understood as
a
series of ongoing practices.[67] The
emphasis in the work of Bringing Them Home is on witnessing harm through
these narratives. The Swan Book uses very different strategies. The
reader is blocked from a sentimental identification with Oblivia. We do not have
ongoing access
to her mind; and we are not taken on a journey of healing or
resolution. As a number of scholars have noted, transitional justice
responses
such as Bringing Them Home tend to be framed through a particular
genre—that of the
sentimental[68]—and even, in
Robert Meister’s terms, of
“melodrama.”[69] Far
from encouraging experiences of “affective
dissonance,”[70] Meister
argues that transitional justice is a genre through which witnesses engage in a
problematic self-focused ethics, which is
evidenced as sentimentality. The power
in this argument lies in its analysis of the vesting of authority: it is neither
the victim
nor the perpetrator but rather the beneficiary who becomes the
main figure addressed and interpellated through the melodrama, who “can
understand themselves as bystanders
who are capable of feeling compassion
without fear.”[71] And of
course, it is the nation-state that is at the heart of the process, the
authority given the power to adjudicate the meaning
of past suffering. Such
aesthetic practices produce the Australian nation as a nation of benevolent
bystanders and beneficiaries
regarding the harms of the past. Non-indigenous
Australians become interpellated into a relationship with indigenous Australians
through their own demonstrations of bystander compassion, rather than through
responsible and responsive action. The Swan Book, however, refuses to
employ the sentimental figure of the child. Oblivia is not a traumatised subject
set apart from her environment,
but shown to be an effect of intersecting
processes, which include the legal and social institutions of the white state.
Wright re-writes the concept of the “mind” that suffers harm,
showing that the history of land, law, and sovereignty are inseparable
from
personal suffering.
READING AUTHORITY AND LAND AS CENTRAL TO
HARM
By rejecting the traditional elegiac narrative of normative healing,
The Swan Book opens up other means of engaging with loss, offering a new
way of understanding land and its discursive production in Australian law.
As a
concept, “land” is innately connected to past and present personal
harms inflicted on Aboriginal people, as well
as to the harms that have been
done to their laws and sovereignty. Australian legal concepts of property and
title have been produced
through the processes of colonization—through the
harms inflicted on Aboriginal people, and through harms inflicted on the
land
itself. But law’s focus on land as property, on the technicalities of
title and interests, and its reduction of sovereignty
to matters of territory,
means that land’s relation to this violence is disguised. The harms of
assimilation, including those
suffered by the Stolen Generations, are
adjudicated separately from Native Title claims regarding land and title,
although they are
innately imbricated. In Australia, Native Title has been the
domain in which Aboriginal sovereignty is encountered (and then displaced)
in
the common law. In these cases, state law has read Aboriginal sovereignty as
finite and as superseded, law refusing to entertain
the possibility of a
plurality of sovereignties and
laws.[72] At best, Aboriginal law
is recognized as having been supported by a sovereignty that once existed, but
which has no authority now.
Following these failed encounters between Aboriginal
and non-Aboriginal laws, Aboriginal authority becomes coded not as law, but
as
“custom.”[73]
In
The Swan Book, land and harm are deeply imbricated, and the land becomes
a grieving, sometimes vengeful subject. When the ecology changes, the
narrator
asks whether it is Law, “doing something to the
country?”[74] When the plagues
begin, the “law spirits” begin travelling the country, trying to
“keep the balance.”[75]
Animal life and land are agents who suffer, make law, and attest to a different
authority from that of the state. To understand Oblivia’s
suffering means
to mourn land and animals, laws, language and culture; and also to understand
that land, animals and laws mourn.
The Swan Book expands the web of
grief, fusing and implicating the blindness of western law, the violence of the
Intervention, and the desecration
of the environment.
At present, there is no
space in state law for Aboriginal authorities to adjudicate either present
claims of violence in Aboriginal
communities, or the historical claims of the
Stolen Generations. These claims are solely heard according to state law. There
have
only been a handful of cases dealing with compensation for survivors of the
Stolen Generations, and only one has
succeeded.[76] In cases such as
Cubillo[77] and
Trevorrow,[78] harms are
framed as only personal, and as disconnected from communities’ removal
from their land, and from their laws, thereby
failing to properly account for
the policies of assimilation that motivated child removals—policies that
went to the heart
of Aboriginal sovereignty, and to Aboriginal rights to
land.[79] These occlusions mean that
the connection between past and present state practices regarding Aboriginal
subjects are also more difficult
to see. The state has targeted Aboriginal
sovereignty, and then erased this violence from the legal record.
In The
Swan Book, as in the earlier Carpentaria, state law is represented
not as a general source of authority but as a particular assertion of authority
represented through a particular
genre, contextualised alongside and against
Aboriginal legal authorities that are also operating within Australian
territory. The
world of The Swan Book is animated by multiple laws and
authorities. The swans move around the country, “following stories for
country that had been
always known to them” because “Swans had Law
too,”[80] they have their own
“Law scriptures”.[81]
The landscape is permeated by “law spirits” who
“scrutinize” the
country.[82] The country has
“law music”, brought up by “old powerful
chants”.[83] Law is innately
bound up with the materiality of the landscape. Men and women are “keepers
of Country”, belonging “wholly”
to “old laws” of
Country;[84] they “were
Country.”[85] The
novel’s thick description of intersecting authorities and laws produces a
version of Australia that is plural and post-national.
This plurality is
emphasized by The Swan Book’s use of genre, as questions of harm
and authority are represented in a number of different modes, placed
side-by-side. Loss
is registered in tones alternatively mournful, comedic,
vengeful and horrific. There are realist details and descriptions, and realist
representations of characters, but there are also multiple excesses to this
mode. The fantastical is evoked as the child Oblivia
sleeps inside a Eucalyptus
tree for ten years, like “Rip van
Winkle”,[86] and a pet monkey
is abandoned after “predicting colossal wars that started to frighten the
life out of everyone”.[87] The
dystopic is represented by the violent upending of the nation’s weather
patterns: the weather has “flipped sides,
swapping southern weather with
that of the north”;[88] and
black swans have migrated to the north of Australia, where they have never lived
before. The epic is evoked as refugees are led
from a European mountaintop by a
holy white swan, who whispers “a greeting of good day and good
fortune”.[89] The swan guides
the refugees to the water and across the seas. And the elegy is evoked as the
losses of the world increase, and are
noted and honoured, as the novel
progresses. The novel adopts a critical self-consciousness regarding its status
as representation,
which law as a genre rejects.
Dorsett and McVeigh suggest
that in Australian law, “[s]overeignty is a matter of authority, and of
submission to authority,
and it is inextricably linked to
territory.”[90] Wright’s
anti-elegy opens up an alternative reading of Australian authority and
sovereignty, which explains the production
of sovereignty not only through
territory, but also through past and continuing harms. Wright’s anti-elegy
connects the history
of invasion, and the violence that was committed against
Aboriginal laws and land, to harms in the present, refusing the
“homogenous
... empty time” of state
law.[91] The Swan Book’s
temporality works against the linear time of modernity, representing the
relationship between law, authority and violence as continuous,
rather than
through discrete periods of past, present, and future.
CONCLUSION:
TOWARDS A TWENTY-FIRST CENTURY JURISPRUDENCE OF HARM
Oblivia fails to
regain her sovereignty. When the novel ends, she is still possessed by the
virus, leaving her, and the world, in
a continuing state of harm. Losses only
intensify as the novel progresses: Bella Donna dies; Warren Finch is
assassinated; nearly
all the swans Oblivia has loved are taken, and finally,
Oblivia moves back to the swamp where she originated, holding the broken
body of
the last remaining swan. In contrast, law employs rigid frameworks for
resolution that insist on a break with the past. Even
the transitional and human
rights processes that have attempted more creative forms to respond to
catastrophe have failed to move
away from this problematic temporality of
resolution. For Meister, the main tropes of these processes, including
reconciliation and
redemption, have an affective logic that is about
“buying more time” for beneficiaries, buying more time “after
evil” but “before
justice.”[92] Anne Orford
contends that transitional justice processes are “centrally
concerned” with time;[93] she
argues that the Bringing them Home Report produces a narrative of
closure, a view of “a unified past and a shared future within the liberal
democratic nation-state.”[94]
The anti-elegiac form provides a metaphor that frames harms as both proximate
and continuing, rather than as distant and in the past.
It leaves resolution as
an open question, and demands ways of relating to harm in the present. The
anti-elegy provides a form to
meet harms that focuses on process, contingency
and possibility, in contrast to law’s genre of aggressive realism, which
fails
to take into account its relation to representation.
The Swan
Book provides a domain in which to critique, encounter and re-vision legal
imaginaries of harm. Moving the framework of harm beyond the
person weakens
law’s violent jurisdictions, and loosens law’s aggressive
representational practices that go to the heart
of law’s authority. These
deconstructive practices can themselves be thought of as essentially
anti-elegiac in mode, “locating
the very possibility of reading and
writing in an impossible desire for presence, completion, and coherence ...
.”[95] We need a twenty-first
century jurisprudence that re-thinks legal relation through a new model of
harm—one that re-organises
the category of personal harm by
contextualising the human in relation to law, land and sovereignties, and
comprehends the specific
histories through which law has enacted judgment, and
through which law continues to act. This strategy is imperative if we are ever
to develop a jurisprudence of legal relation and authority in continuing
colonial contexts, not to mention the context of the Anthropocene
era, in which
we can anticipate unprecedented human-caused harm to the land.
[96]
REFERENCES
[7] Jacques Derrida, “‘Force of Law’: The Mystical Foundation of Authority,” Deconstruction and the Possibility of Justice, trans. Mary Quaintance, eds Drucilla Cornell, Michael Rosenfeld, and David Gray Carlson (1st ed) (New York: Routledge, 1992), 2-67, 36.
[31] Virginia Woolf, Mrs Dalloway (New York: Harcourt, Brace and Co., 1925). See
also Christine Froula, “Mrs. Dalloway's Postwar Elegy: Women, War, and the Art of Mourning,” (2002) Modernism/Modernity 9(1), pp125-163.
University Press, 2011), 63-64.
[79] These cases have been given significant scholarly attention in a number of
contexts. See, for example, Ann Genovese, “Metaphor of redemption, myths of state: Historical accountability in Luhrmann's Australia and Trevorrow v South Australia” (2011) 20 Griffith Law Review 67; Pam O’Connor, “History on Trial: Cubillo and Gunner v The Commonwealth of Australia” [2001] AltLawJl 7; (2001) 26 Alternative Law Journal 27, 30. See also Chris Cuneen and Julia Grix, “The Limitations of Litigation in Stolen Generations Cases” (Research Discussion Paper No 15, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2004); Antonio Buti, “Reparations, Justice Theories and Stolen Generations” [2008] UWALawRw 7; (2008-2009) 34 University of Western Australia Law Review 168; Barbara Ann Hocking and Margaret Stephenson, “Why the Persistent Absence of a Foundational Principle? Indigenous Australians, Proprietary and Family Reparations” in Federico Lenzerini (ed) Reparations for Indigenous Peoples (2008) 477, 520; Robert van Krieken “Is Assimilation Justiciable? Lorna Cubillo and Peter Gunner v Commonwealth” [2001] SydLawRw 10; (2001) 23(2) Sydney Law Review 239; Trish Luker, “‘Postcolonising’ Amnesia in the Discourse of Reconciliation: The Void in the Law’s Response to the Stolen Generations” (2005) 22 Australian Feminist Law Journal 67; Antonio Buti, “The Stolen Generations Litigation Revisited” [2008] MelbULawRw 13; (2008) 32 Melbourne University Law Review 382; and Honni van Rijswijk and Thalia Anthony, “Can the Common Law Adjudicate Historical Suffering? Evaluating South Australia v Lampard-Trevorrow (2010),” (2012) Melbourne University Law Review vol. 36, no. 2, pp. 618-655.
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