ACRAWSA e-journal, Vol. 4, No. 2, 2008 EDITORIAL: LAW, RACE AND WHITENESS TRISH LUKER & JENNIFER NIELSEN We acknowledge the sovereignty of peoples’ position in relation to their the many Indigenous Nations of society’s colonial past (see Moreton- Australia, and pay our respects to Robinson 2004a: viii). their ancestors, Elders and peoples— of the past, present and future. By contrast, in Australia, Irene Watson and Aileen Moreton-Robinson have led The contributions to this special issue of the field in interrogating and the ACRAWSA e-journal critically deconstructing the function of whiteness interrogate the interface of Anglo- in Anglo-Australian law and its disavowal Australian law and legal systems, race of Indigenous sovereignty. Their and whiteness. They seek to expose the scholarship is positioned within racialisation of legal discourse and call Indigenous epistemology and ontology, into question the normative white and draws on critical whiteness theory to subject of Anglo-Australian law. Anglo- expose the hegemony of whiteness Australian law obscures the hegemonic within Anglo-Australian legal discursive function of whiteness through its liberal and institutional practices. Watson has claims to neutrality, objectivity and engaged in a sustained critique of the rationality, and the promotion of formal, contemporary colonialism of white rather than substantive, equality. As in sovereignty, a ‘sovereignty of violence, other discursive domains, whiteness not of law that is always known’ (2002: operates within law as the invisible norm 257), which has introduced Australian by which an originary and unquestioned legal scholarship to new conversations legitimacy is claimed. involving decolonisation, a process of dissolving and thinking outside law’s Groundbreaking work drawing on imposed regimes of white colonial critical whiteness studies has highlighted thought (Watson 1998: 31). Moreton- law’s agency in establishing and Robinson’s work also offers a compelling maintaining racialised power, premised paradigm for analyses of legal on the ‘normality’ of whiteness and the discourse, in that it deconstructs the legitimacy of its claim to privilege. In the ‘possessive logic of patriarchial white United States, legal theorists such as sovereignty’, which she has, for instance, Cheryl A Harris, Kimberlé Crenshaw, deployed in relation to the reception of Richard Delgado, Mari Matsuda and claims for native title recognition others have developed the insights of (2004b). critical race theory to articulate a critique of whiteness and to deconstruct Despite these significant foundations for the liberal notions of race and equality bringing critical whiteness theory to the underpinning civil rights discourse important site of law, there has been (Crenshaw et al, 1995: xiv; and see only limited attention in Australia to the Delgado & Stefancic (eds) 1997: Part IV). field. Indeed, this is the first issue of an However, this work largely fails to Australian journal devoted to the theme. acknowledge or address the concerns Moreton-Robinson has indentified the of Indigenous peoples within ‘Western’ lack of attention given by Australian societies or the complexity of ‘minority’ ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2008 LUKER & NIELSEN: EDITORIAL legal scholars to issues related to race as ‘scientific knowledge’ as the basis for indicative of our ‘agency’ in the demonstrable proof. Using a site of ‘reproduction and maintenance of testimonial evidence from the landmark racial hierarchies’ (Moreton-Robinson action taken by members of the Stolen 2007: 85). That is, our lack of Generations, Luker argues that despite engagement with the concerns and evidence presented by Lorna Cubillo epistemologies of the raced ‘other’ is which revealed the systematic practice not merely a silence, but is also silenc ing , of Indigenous child removal, this was oppressive and self-serving. In editing this rejected by the court because it did not special issue of the ACRAWSA e-journal , meet the legal standard for proof. At we hope to have interrupted this silence the same time, evidence founded in and encouraged further scholarship in narrative forms of knowledge, which the field of critical whiteness theory and revealed the function of whiteness in law. supporting dominant paradigms of historical truth, were discredited. Naomi Fisher opens the issue with a piece entitled ‘Out of Context: The In ‘Pinned like a Butterfly: Whiteness and Liberalisation and Appropriation of Racial Hatred Laws’, Karen O’Connell “Customary” Law as Assimilatory analyses the Federal Magistrates Court’s Practice’. Writing up ‘strong’ from her decision in McLeod v Power (2003), a position as an ‘Aboriginal woman case involving a white prison officer’s learning and journeying back to her complaint of racial vilification against an culture, place and identity’ (p 1), Fisher Aboriginal woman. Despite a finding argues that common law’s claim to that vindicates the Aboriginal woman, have ‘recognised’ Aboriginal Law is O’Connell exposes the hypervisibility erroneous because the ‘dialogue’ accorded to ‘blackness’ in the decision, between Aboriginal Law and common which sits in stark contrast to the failure law is one-sided. She points out that any to reveal the significance of whiteness. claim by common law to ‘recognise’ She argues that an approach to law Aboriginal Law is false because the which foregrounds embodiment in racial common law refuses to engage in a hatred cases can render whiteness dialogue with the knowledges and Law visible and that by exposing whiteness to founded in Aboriginal context and examination, a more coherent racial ontology. The effect of the common identity for whites and a richer and fairer law’s liberal discourse (monologue) is to system of law may emerge. grant legitimacy and power only to itself, and thus reiterate white hegemony Greta Bird reverses the conventional through the assimilation and focus of legal analysis in her contribution appropriation of Aboriginal peoples and ‘The White Subject as the Liberal Law, enmeshing them at sites of Subject’ by engaging—through personal bureaucratic and legislative intervention storytelling—in an analysis of her own and control. position as the full citizen, the ‘white liberal subject’. Bird identifies a The hegemony of liberalism in legal significant moment in her understanding discourse is further deconstructed in the of whiteness that enabled her to reflect contributions that follow. In ‘Witnessing on her own subjectivity as a white legal Whiteness: Law and Narrative academic and to identify her Knowledge’, Trish Luker critiques the experience of white race privilege. In privileging within legal positivism of an the desire to develop an ethics of epistemological framework grounded in alterity, Bird explores and acknowledges 2 LUKER & NIELSEN: EDITORIAL the construction of her white subjectivity In addition to these formal scholarly living in a raced nation, to set her own works, we are very pleased to be able to ethical goals towards resisting and include creative works which speak to challenging her own whiteness. the theme of this issue (a rare event in legal scholarship). The first, by Edwina Finex Ndhlovu’s contribution, ‘A Critical Howell, offers three short pieces of Discourse Analysis of the Language creative writing under the title, ‘It’s Question in Australia's Immigration Captain Cook all Over Again …’. Policies: 1901–1957’, draws insights from Howell’s work is followed by two poems the conceptual framework of critical by Benna Coyne. Taking advantage of discourse analysis to interrogate the use the ACRAWSA e-journal ’s digital and abuse of language testing as a tool environment, Benna performs both for racial and political exclusion in poems. The first, ‘Suffering from Australia from 1901 to 1957. Marking an Sovereignty’ is performed as a voice important period in the development of piece, while in the second, Benna racialisation in Australian legal discourse, collaborates with composer Giordano to the construction of ‘undesirable’ present ‘The Sound of Whiteness’. immigrant subjects reminds us of the unstable nature of racialised categories The issue also includes a rejoinder from of otherness. This remains an abiding Denise Cuthbert to the piece by Damien issue as the language question Riggs published in the last issue of the continues to feature prominently in journal in which Riggs criticised public debates on Australia’s citizenship Cuthbert’s foregrounding of the and immigration laws. experience of white adoptive mothers in a research project examining the Jennifer Nielsen’s contribution, adoption/fostering of Indigenous ‘Whiteness and Anti-Discrimination children. Cuthbert responds to Riggs by Law—It’s in the Design’, analyses the providing an account of the racialised effect of law’s liberal notion of development of her ethical research formal equality. Using the Anti- parameters in which she considered her Discrimination Act 1977 (NSW) as a case own subjective position as a white study, she argues that despite the researcher and the politics of assertion of ‘race-neutrality’ promoted representation. Cuthbert affirms the by formal equality, the Act operates to importance in politically-engaged produce a selective colour-blindness research of reporting and analysing all that stabilises and reproduces the voices, Indigenous and non-Indigenous. dominance of white privilege. Nielsen then extends her analysis to the Finally, there are two book reviews: contemporary