Agony, Exclusion and Colonial Reproduction: A critical examination of the Doctrine of Difference in Aotearoa New Zealand
Young, Stephen; Fitzgerald, George
This article examines how contemporary legal discourse perpetuates and reproduces colonial structures and some less risky alternatives. It does so through an inquiry into how First Peoples enter into legal relationships with the Crown. In this inquiry, we combine the doctrine of discovery, a well-known concept in the literature of Indigenous peoples and law, with the “dynamic of difference”, a concept stemming from ‘Third World Approaches to International Law’, to generate what we call the “doctrine of difference”. The doctrine of difference aids in orienting legal discourse within broader conceptualisations of power to better understand the risks that arise when First Peoples enter into legal relationships with the Crown. One way of entering into legal relationships is to use rights-based legal discourse. Through the doctrine of difference, we argue that this requires rights claimants to construct themselves as subjects of a pre-existing legal discourse, which reproduces the universalising and naturalising dynamics associated with colonialism. In contrast, First Peoples may enter into a legal relationship through an agonistic deliberative process that re-centres and invests in place-based legalities, languages and forms of life. Such agonistic deliberative alternatives may partially avoid some of the universalising and naturalising effects (re)produced by rights-based legal discourse.
Publisher: Thomson Reuters
Published in: New Zealand Universities Law Review, volume 29, issue 2
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Keywords: Indigenous peoples; rights; rights-based discourse; colonial; imperial; settler-state; doctrine of difference; agonism; exclusion; power
Research Type: Journal Article
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