根深蒂固的殖民主义:从两个量刑条款探讨土著权利的收回

M. Williams
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引用次数: 3

摘要

本文在2000年代中期由两个不同的政府引入的关于在量刑中使用土著法律的两项立法条款的背景下,反思了新自由主义的全球现象解释了澳大利亚当代对土著权利承认的退缩。每一项量刑条款都旨在解决司法部门对暴力侵害土著妇女和儿童行为的容忍,特别是司法部门对此土著法律的误解。但这些条款反映了在承认土著法律方面的两极分化的政策:其中一项是由领土政府提出的,该政府明确奉行尊重土著知识和促进土著自决的政策;另一种是由联邦政府引入的,作为在该地区对原住民生活实施公开干预和控制政策的一部分。联邦条款实际上使领土条款无效。文章发现,虽然新自由主义促进了土著权利的收回,但它并没有完全解释这种收回。撤回被更好地理解为殖民主义长期趋势的一部分,这一趋势从未被打乱,并以各种当代话语为目的。在这种情况下,人们可以确定女权主义逻辑和倡导(希望支持土著妇女的利益)是为殖民主义的目的服务的;更微妙和反本质主义的女权主义立场也可能被扭曲到这个目的。这篇文章的另一个发现是,即使是试图尊重原住民权利和承认原住民法律的立法条款也无法实现其起草者的意图,因为它所插入的框架尚未被非殖民化。这两条规定的故事为以下论点提供了一些支持:澳大利亚从未放弃殖民主义,殖民主义将利用(并在必要时扭曲)其他话语,以促进其不断剥夺和剥夺第一民族人民合法性的目的。
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Innervating Colonialism: Exploring the Retraction of Indigenous Rights Through Two Sentencing Provisions
This essay reflects on the contention that the global phenomenon of neoliberalism explains the contemporary retreat from Indigenous rights recognition in Australia in the context of two legislative provisions concerning the use of Aboriginal law in sentencing that was introduced in the mid-2000s by two different governments. Each sentencing provision purported to address claims of judicial tolerance of violence against Aboriginal women and children, specifically judicial misperceptions of Aboriginal law regarding this. But the provisions reflect polarised policies regarding recognition of Aboriginal law: one was introduced by a territory government that explicitly pursued a policy of respectful engagement with indigenous knowledges and the advancement of Indigenous self-determination; the other was introduced by a federal government as part of a larger imposition in that territory of a policy of overt intervention and control into the lives of Aboriginal peoples. The federal provision effectively rendered the territory provision nugatory. What the essay finds is that while neoliberalism facilitated the retraction of Indigenous rights, it does not fully explain that retraction. The retraction is better understood as part of a longer trend of colonialism that has never been disrupted, and that has enlisted to its ends various contemporary discourses. In this case, one can identify feminist logics and advocacy (hoping to support the interests of Indigenous women) are enlisted to serve colonialism's purposes; more nuanced and anti-essentialist feminist positionings may also be twisted to this end. A further finding of this essay is that even the legislative provision that attempted to respect Aboriginal rights and recognise Aboriginal law could not achieve what its drafters intended, because the framework into which it was inserted had not been decolonised. The story of these two provisions offers some support to the contention that Australia has never desisted in colonialism, and that colonialism will draw upon (and twist where necessary) other discourses to facilitate its ends of continually dispossessing and delegitimising first nation peoples here.
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1
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