Customary Law Vs Colonial Lore: Deconstructing Legal Imperialism In Southwest Jurisprudence

1. The Semantic and Political Distinction: Lore vs Law

In colonial discourse and Australian popular media, the customary legal traditions of Indigenous peoples are frequently dismissed as 'lore'—a condescending semantic label implying informal folk mythology, superstitious stories, or primitive social habits.^[1] In truth, the Bibbullmun system of justice is a fully functional, highly sophisticated body of Customary Law (Koorliny Kaartdijin).^[2] It possesses every element recognised in modern legal jurisprudence: defined legislative origins in the Nyitting, clear procedural codes of evidence, formal adjudicative bodies (councils of elders), recognised remedies and sanctions (kardup), and an overarching constitutional structure governing land tenure, marriage, and diplomatic relations.^[3]

2. The Imposition of Imperial Legal Monism

When the British Crown proclaimed sovereignty over south-western Australia in 1829, it operated on the violent doctrine of legal monism—the presumption that only one legal system (English common law) could exist within the territory.^[4] Early colonial courts, such as in the notorious trials following the 1830s frontier conflicts, refused to recognise Bibbullmun law, treating Aboriginal warriors who executed customary justice as common murderers.^[5] Despite this imperial suppression, Bibbullmun law continued to operate concurrently beneath the surface of settler society, resolving kinship disputes, enforcing marriage rules, and maintaining sacred site taboos in defiance of colonial magistrates.^[6]

3. Jurisprudential Comparison: Customary Law vs English Common Law

The philosophical foundations of Bibbullmun customary law diverge fundamentally from English jurisprudence.^[7] English common law is anthropocentric, adversarial, and punitive—prioritising the protection of private property and relying on carceral incarceration to punish individual offenders.^[8] In contrast, Bibbullmun law is ecological, consensual, and restorative.^[9] Its paramount objective is not retribution, but the restoration of social equilibrium and cosmic harmony between human kinship networks (moort) and the living earth (boodjar). Sanctions such as spearing trials (kardup) or compensatory material payments were designed to resolve grievances swiftly and publicly without tearing apart the social fabric.^[10]

4. Toward Legal Pluralism and Constitutional Recognition

The contemporary refusal of the Australian legal system to formally recognise Aboriginal customary law constitutes an ongoing violation of international human rights.^[11] Article 34 of the United Nations Declaration on the Rights of Indigenous Peoples explicitly affirms that First Nations have the right to promote, develop, and maintain their institutional structures and distinctive judicial customs.^[12] Reforming the Western Australian judicial system to accommodate genuine legal pluralism—recognising customary dispute resolution and elder-led diversionary courts—is essential for dismantling systemic over-incarceration and achieving true decolonial justice.^[13]