A Means and Measure of Civilisation: Colonial Authorities and Indigenous Law in Australasia

Abstract

British commentators on colonial policy in the early to mid-nineteenth century often treated the existence of indigenous customary law and adjudicative forums as an indication of ‘civilisation’. However, not all customary laws were considered ‘civilised’ enough to be acknowledged by the British authorities. Furthermore, most British policy and debate was assimilationist. This article surveys two different assimilationist approaches. ‘Exceptionalist’ proposals favoured modifying the application of English law to indigenous peoples as a preliminary step towards assimilation. Such schemes can be contrasted with proposals for the ‘strict application’ of English law over indigenous peoples. In practice, however, the distinction between the two approaches was often blurred. Commentators and officials treated law as a means and measure of civilisation. The tension between these two roles often contributed to confused and ambiguous discussions of the application of English law to indigenous peoples. This article, therefore, suggests that Henry Reynolds’ views on British attitudes to indigenous customary law are overstated. The article concludes with a brief discussion of the distinction between legal and historical reasoning, and the limited implications of my historical arguments for the legal reasoning of cases such as Mabo and Wik.