Peter Russell, a distinguished Canadian student of the politics of the judiciary, asks if ‘my people’ – the English settlers of Australia, Canada, New Zealand, and the US – can live honourably. Is their authority defensible against indigenous people’s charge that ‘my people’ bullied them out of their sovereignty? Because European colonial power has been shadowed by a sense of moral unease, interpreting the colonists’ laws matters. ‘There is a lot of leeway in the law,’ Russell observes, ‘and no more so than in legal cultures based on the common law.’ The High Court of Australia’s decisions in Mabo (1992) and Wik (1996) – making native title recognisable to the common law – seemed to Russell to confirm judges’ potential to be the conscience of liberal constitutionalism.
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