Complicity as legal responsibility

Publication Type:
Journal Article
Law and Literature, 2018, 30 (1), pp. 149 - 165
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© 2017 by The Cardozo School of Law of Yeshiva University. Complicity is emerging as a key cultural and critical term for understanding settler responsibility in postcolonial contexts - especially in thinking through the sense of responsibility arrived at through transitional justice processes. But what sense can we make of complicity within more pedestrian legal processes? Here, I examine an emergent narrative of complicity in “everyday law” through the framework of evaluating harms provided by the Royal Commission into Institutional Reponses to Child Sexual Abuse (“the Commission”). I analyze one case study in particular - the 19th public hearing of the Commission was held between October 22 and 31, 2014, and on November 14, 2014 (“the Bethcar Case Study”) - to provide a reading of complicity in the context of everyday legal proceedings that took place within the wider context of Australia’s postcolonial reckoning of harms suffered by the Stolen Generations. This article focuses on the role and conduct of lawyers, and of law, in the civil proceedings relating to institutional responsibility for abuse, a process at a seeming distance from the scene of original trauma. I argue that the Commission makes available a narrative of the lawyers’ role in the ongoing violence against survivors - one story and case study that, as it concerns abuse in the context of the removal of Aboriginal children, is part of wider structural violence against Aboriginal people. The Commission provides a rich source for analyzing these legal processes and provides an archive of lawyers’ responsibility that is not normally made available through law. It examines the complicity of the legal profession in harms produced by the legal system itself.
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