Decolonizing the Rule of Law: Mabo's case and Postcolonial Constitutionalism

Oxford Journal of Legal Studies 17 (2):253-280 (1997)
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Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular conceptions of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law?
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