Metaphoric Sovereignty and the Australian Settler Colonial State

There is a pronounced anxiety within Australian jurisprudence at the use of metaphor in the creation of the law. This essay argues that the anxiety is symptomatic of the fact that metaphor is not only the source of Australian law, but the source of this law’s very (il)legitimacy. To develop this argument the first half of the essay focuses on Australian High Court cases that have addressed the use of metaphor in the creation of the law. Here the essay draws out two observations. The first is the Court’s prohibition against metaphorical legal reasoning; the second is the fact that metaphor is nonetheless the source of Australian law. This picks up on Justice Kirby’s observation, that British law was extended over Australia based on a claim to ‘occupy’ and ‘possess’ a continent upon which the British had barely set foot. The essay argues that these two observations are connected: the Court’s repudiation of metaphorical legal reasoning cannot be understood separately from the role that metaphor played in the violent foundation of Australian law. The second part of the essay is an attempt to think more carefully about how metaphor, and the metaphor of the body, has shaped and substantiated colonial sovereignty, and how this contrasts and interacts with First Nations’ sovereignty. The focus here is on a public festival held in 1850 to inaugurate the Colony of Victoria. The festival involved a public performance in which the colonists gave expression to their fantasy of being the rightful sovereign of the land, while including First Nations within it, as a constitutive part of the colonial body politic. But the festival also highlights the failure of the colonial effort to extinguish First Nation sovereignty through their inclusion. While colonial sovereignty is metaphorical, First Nations’ sovereignty is ontological – resulting in a state in which Aboriginal and Torres Strait Islander peoples are both a constitutive part of the Australian body politic and sovereign First Nations