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The history of colonialism carries with it the conflicting impulses to both condemn its reckless momentum and to postulate the deliberateness of its evolution. However, to accept wholeheartedly Seeley��s assertion that British imperialism developed in a state of obliviousness would ignore the conscious and systematic decisions made by both the colonizers and their indigenous subjects. Certainly the colonizing nations may not have realized the full extent and impacts of their increasingly overwhelming urge to conquer. Nevertheless, they undertook the processes of colonization with certain established principles that guided their interactions with the people they were conquering. Understanding a history of colonialism requires assessing how the colonizing nation dealt with the legal status of the indigenous population, and to what degree various societal principles influenced the legal position these conquered peoples assumed.

Recent controversies over indigenous land rights and legal ethics in Australia reveal the importance of studying colonial legal theory with respect to the Aboriginal people. The 1992 trial of Mabo v. Queensland saw the culmination of a series of late 20th century legal appeals to the principle of Native Title. As Aboriginal scholar Henry Reynolds reports, ��In Mabo the High Court decided that�� while the Crown gained the so-called radical title to the land, the indigenous people continued to maintain a legal interest in their ancestral territories which survived until it was formally extinguished.��² The decision proliferated a subsequent reparations movement, still ongoing, that seeks both official apologies for the historical maltreatment of Aborigines as well as actual recompense in the form of reallocating land to various tribes. Until Mabo, however, the colonial legacy of the terra nullius principle bound Australian Aborigines to a legal position that neither recognized their ancient territorial claims to the land nor granted their customary laws sovereignty. To understand the importance of Mabo, then, we must understand the process by which Aborigines came to hold the legal status they later sought to overthrow.

A history of the treatment of Aborigines implies a history of the understanding of Aborigines. Changes in the way colonial law regarded Aborigines undoubtedly entailed changes in the way those creating colonial law perceived their Aboriginal subjects. The study of man, formalized as ethnology and later anthropology, thus constitutes a crucial element in the development of the Aboriginal legal position. But what was the role of anthropology in this development? Stated differently, what was the relationship between the science of anthropology and the Aboriginal legal theory that manifested in colonial native policy? One may propose that the power of anthropology as a science determined the political decisions that affected Aboriginal legal status. Conversely, one could suggest that the financial and political power of the colonial government placed anthropology in a dependent state, such that it existed solely to serve the interests of the colonial project. A third alternative might suggest that the relationship between anthropology and legal theory was tenuous at best, and that the changes seen within those fields reflect nothing more than the blind momentum of an indeterminate colonial expansion.

In this essay I explore the nature of this science-law relationship in Australia, focusing on its development throughout the 19th century and into the early years of Australian nationhood (after 1901). First, I outline the course of legal theory with respect to Aborigines, singling out four distinct legal positions attributed to Aborigines during the 19th century. I then discuss the development of anthropology in 19th century Australia, paying particular attention to the enduring ties between the emerging science and colonial politics. Finally, I analyze the relationship between the legal developments and anthropological study during this time. I argue that, contrary to the alternatives posited above, Aboriginal legal theory and anthropology in Australia were related not causally but complementarily, propelled by the greater force of British scientific and social thought. Changes in the British social understanding of societal progress and the nature of man provoked consequent changes in both the institutional study of man—anthropology—and in the institutions that determined how men were regarded under the law. In this way, I argue, anthropology and Aboriginal legal status, closely linked by colonial politics, became defined by the larger scientific principles that moved them.

¹The Columbia Dictionary of Quotations, New York: Columbia Univ. Press, 1995.
²Henry Reynolds, Aboriginal Sovereignty, St. Leonards: Allen & Unwin, 1996: 116.

Land and Law: The Changing Rights of the Aborigine
"Political Science" in the 19th Century
Scientific Philosophy: Prime Mover, Grand Catalyst
Concluding Remarks: Where Are We Now?