Chapter 8 Framing the crimes of colonialism Critical images of aboriginal art and law Chris Cunneen ‘Painting is our foundation. White man calls it art’ Galarrwuy Yunupingu (quoted in Isaacs, 1999: xi). Introduction This chapter considers images of crime and law, and what we, through the lens of cultural criminology, might learn of the nature and experiences of crime represented through the image. Cultural criminology opens a new space for understanding crime, especially where the image is produced by those who are victims of crime and simultaneously without access to other channels of communication within mainstream social and political institutions. The images considered in this chapter are particular: Australian Aboriginal art. These art- works function on two levels, as an expression of Aboriginal law and, more extensively, as a critique of the imposed colonial law. Both in traditional and contemporary society, Aboriginal art is a powerful medium for expressing Aboriginal law and culture. Aboriginal art plays a special role in understanding law in a society that did not rely on the written text. In this context, the image has sacred standing quite distinct from the commodity status of art in contemporary capitalist societies. Art also provides an important material expression and critique of the colonizing process, both as an historical record of events such as massacres, segregation and the denial of civil and political rights, and as an ongoing contemporary postcolo- nial critique of the outcomes of colonization, dispossession and racial discrimina- tion. Aboriginal artists are constantly engaging colonialism, law and the criminal justice system as subject matter for their art. The production of the image is a tool of resistance. There is a sense in which Indigenous art unhinges colonial law as an abstract expression of power and grounds it firmly in the lived experiences of Aboriginal people. For the cultural/critical criminologist, art becomes a rich source of ideas, documentation and insight into the inner workings of an oppressive state formation 55378-Hayward-Ch-08.indd378-Hayward-Ch-08.indd 111515 110/8/20090/8/2009 77:49:14:49:14 PPMM 116 Chris Cunneen and the modes of resistance engendered by oppression. The image becomes a critical tool in both deconstructing oppression and in understanding the political dynamics and contours of resistance. Methodologically, the image becomes both a window on the experiences of victimization (particularly in the cases of state crime considered in this chapter), and a source of documentation of disturbing criminal events (such as mass murder) where the criminal justice institutions of the colonial state have chosen to ignore or deny the existence of such events. Focus Interpreting aboriginal artwork through cultural criminology I have approached Aboriginal art as part of an ongoing project in relation to broadening our understanding of the ‘state crimes’ of colonial regimes and the potential for reparations for historical injustices against Indigenous people in Australia (Cunneen, 2005, 2008). The origins of this research derive from two somewhat disparate strands of influences and thoughts about the production and function of the image. The first is an interest in the technologies and ‘arts’ of resistance. In particular, this was sparked by an interest in some of the academic work on political murals in Northern Ireland. Cultural criminology provides the opportunity to shift the epistemological priority given to certain forms of knowl- edge, and to treat seriously the importance of the image in understanding state crime and political resistance. The second strand has been the role of art in Indigenous society as an expression of law. I have been interested for sometime in debates around the recognition of Aboriginal customary law and the way in which the debate often trivializes the expression of law in a society that does not rely on written texts. It seems self-evident that various forms of art – such as painting, sculpture, dance and song – will have a special place in reproducing social, moral and religious meanings. In short, if law is not reproduced through the written text it will be reproduced in other forms. Cultural criminology offers the potential to revalorize alternative conceptions of the expression of law, that is an understanding of law constituted through the image, rather than law consti- tuted and reproduced as written text. Let us look at these two strands of influence in more detail. An understanding of the northern Irish murals has been influenced by the extensive work of Rolston (2001, 2003, 2004). A key concern has been the role of the murals as public art in imagining community and reaffirming particular identities. The public murals also reinforce and recreate specific historical narra- tives and meanings. As Rolston (2004: 118) states, ‘through these cultural arte- facts they articulate their political hopes and fears, their view of their own identity, their hopes of their past and future, and the political obstacles which they 55378-Hayward-Ch-08.indd378-Hayward-Ch-08.indd 111616 110/8/20090/8/2009 77:49:14:49:14 PPMM Framing the crimes of colonialism 117 see facing them currently or in the future’. I draw three interconnected points from this literature. First, the art work is not seen as simply Art but is clearly bound-up with political activity. The work is both artistic (that, it has a clear aesthetic value) and self-consciously political. The aesthetics and the politics are arguably one. Secondly, the artists are organic to their communities. Their poli- tics is part of the culture and politics of the community they represent, and it is integral to those politics. The art and the artists can be seen more specifically as organic in a Gramscian sense, as growing out of a political constituency and speaking to and for that community. Thirdly, the art has the power to articulate and celebrate historical and political causes and aspirations. In Sivanandan’s (1990) terms, it is part of the way ‘communities of resistance’ develop, under- stand themselves and maintain solidarity and support. The example of the murals of Northern Ireland leads more generally into the literature on the technologies and arts of resistance. Scott (1990: xi) discusses how shared critiques of domination occur among ‘subordinates’ outside the immediate control of the dominant. The subordinate are likely ‘to create and defend a social space in which offstage dissent to the official transcript of power relations may be voiced’. There is a difference between what is said in the face of power to what is said ‘offstage’ – this is the ‘hidden transcript’ which is pro- duced for a different audience than the public transcript. The extent to which these transcripts are hidden will vary on a range of factors. When the affronts of power are ‘suffered systematically by a whole race, class, or strata, then the fan- tasy [of revenge and confrontation] can become a collective cultural product’ (1990: 9). The work of historians like EP Thompson (1974) also has influenced our understandings of resistance. Thompson was interested in the popular discon- tent, riot and disorder among working class and rural poor. He was interested in the traditions of counter theatre and theatrical symbolism and ‘the acts of dark- ness’. Similarly, Bakhtin’s (1984) celebration of carnival and riot as part of medieval folk culture, of the process of turning the ‘world inside out’ presented new understandings of resistance – an understanding we attempted to apply in a study of leisure-based antipolice riots (Cunneen et al., 1989). Overall these lead to a focus on the cultures of resistance among the subordinated – to what Scott calls the ‘infrapolitics of subordinate groups’ that constitute various forms of resistance (1990: 19). These broad approaches to the cultures of resistance provide a context for the analysis of Indigenous art. The second strand to the argument involves a consideration of Aboriginal art as a powerful medium for expressing Aboriginal law and culture. Aboriginal art plays a special role in understanding law in a society that did not rely on the written text. Stated simply, this is the idea that we can see Aboriginal art as ‘law’. By ‘law’, I mean the body of rules that govern a society, rules that generally reflect moral and ethical principles, which proscribe certain forms of behaviour, and are enforceable through sanctions or punishment. As lawyers or criminologists, we see and understand the following as law. 55378-Hayward-Ch-08.indd378-Hayward-Ch-08.indd 111717 110/8/20090/8/2009 77:49:14:49:14 PPMM 118 Chris Cunneen Crimes Act 1900 Part 3 – Offences against the person Division 1 – Homicide 17 (Repealed) 17A Date of death (1) The rule of law that it is conclusively presumed that an injury was not the cause of death of a person if the person died after the expiration of the period of a year and a day after the date on which the person received the injury is abrogated. (2) This section does not apply in respect of an injury received before the commencement of this section. 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.