Unconscious Racism: Scrutinizing Judicial Reasoning in 'Stolen Generation' Cases

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Title Unconscious Racism: Scrutinizing Judicial Reasoning in 'Stolen Generation' Cases
Author Marchetti, Elena Maria; Ransley, Janet Ann
Journal Name Social & Legal Studies
Editor David Cowan
Year Published 2005
Place of publication London
Publisher SAGE Publications
Abstract Like other western legal systems, Australian law is based on notions of the rule of law, justice and equality. Legal formalistic ideology would have us believe that as long as the law as it appears 'on the books' is applied equally for all, justice will prevail. For Indigenous Australian people, formal equality means that their claims for land, compensation and the recognition of their culture must be assessed through the eyes of white judges in white courts. Even when those judges strive to apply the law equally, they will inevitably be applying Eurocentric beliefs and values. In two recent significant cases concerning Indigenous claims for their removal from their families as children, those beliefs and values have tended to invalidate not only the legal claims themselves, but also aspects of the Indigenous culture. This article argues that the formal application of legal principles to these claims by Australian courts and judges leads to the exclusion of Indigenous narratives, which ultimately can be construed as evidence of unconscious racism. Charles Lawrence's cultural meaning test is used to critique the reasoning of the judges in two leading Australian cases concerning the 'stolen generation' and to expose the unconscious racism that still exists in the Australian liberal legal system.
Peer Reviewed Yes
Published Yes
Publisher URI http://sls.sagepub.com/cgi/content/abstract/14/4/533
Copyright Statement Copyright 2005 Sage Publications. Reproduced in accordance with the copyright policy of the publisher. First published in Social & Legal Studies. This journal is available online: http://sls.sagepub.com/content/vol14/issue4/
Volume 14
Issue Number 4
Page from 533
Page to 552
ISSN 0964-6639
Date Accessioned 2006-03-06
Language en_AU
Research Centre Key Centre for Ethics, Law, Justice and Governance; ARC Centre of Excellence in Policing and Security
Faculty Faculty of Arts
Subject Law and Society
URI http://hdl.handle.net/10072/4147
Publication Type Journal Articles (Refereed Article)
Publication Type Code c1

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