Udayana Journal of Law and Culture
Vol. 01 No.2, July 2017

Comparison and Co-existence:
Sources and Purpose of Authority in the Australian,

Madayin and Talmudic Legal Systems

Claire Powell*
Charles Darwin University School of Law, Darwin, Australia

1. Introduction

The continuing assertion of the unitary nature of the Australian legal system
has perpetuated an antagonist relationship with Aboriginal systems of law since
colonisation.1 However, it is generally accepted that customary international law
requires acknowledgement of the rights of indigenous people to ‘regulate autonomously
their internal affairs according to their customary law and to establish, maintain and
develop their own legal and political institutions, in a way that is consistent with the
rules on fundamental human rights’ and that ‘(s)tates have the obligation to recognize

* Correspondence: s249223@students.cdu.edu.au.
1 On the application of Australian law to the Aboriginal population see R v Jack Congo Murrell

(1836) 1 Legge 72; on the unitary nature of Australian law see Kruger v Commonwealth (1997) 190 CLR 1.
More recent High Court rulings, particularly concerned with the influence of international law have reaffirmed
the sovereignty of Australian law, see CPCF v Minister for Immigration and Border Protection [2015] HCA 1
at 211.

Abstract

This article will compare Australian, Madayin and Talmudic law in terms of their respective sources and purposes.
It will focus on the characterisation of each system to highlight conceptual similarities and differences which
affect their operation and,in particular, their commensurability with other systems. Specific areas of law
concerned with coexistence are identified as being both crucial and particularly problematic. Notwithstanding
Australian government statements and High Court rulings asserting the sovereignty of Australian law, it will
be argued that no legal system is self-contained. Accommodations are essential and require legislators to
grapple with the difficulties of reconciling differing conceptualisations using an informed comparative framework.
Talmudic law is considered here as an example of a system which has demonstrated the ability to coexist
adaptively with a variety of other systems without compromising its integrity.

Keywords: Australia, Indigenous, Talmudic, law, Co-existence.

How to Cite: Powell, Claire. 2017. “Comparison And Co-Existence: Sources And Purpose Of Authority In
The Australian, Madayin And Talmudic Legal Systems”. Udayana Journal Of law And Culture
1 (2): 141-156. doi:10.24843/UJLC.2017.v01.i02.p04.

doI: https://doi.org/10.24843/UJLC.2017.v01.i02.p04

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Vol. 01, No. 2, July 2017, 141-156

and ensure respect for the laws, traditions and customs of indigenous peoples.2 The
extended negotiation process leading to Australia’s eventual acceptance of the UN
Declaration of the Rights of Indigenous Peoples demonstrates the deep-rooted reluctance
to deviate from this position and highlights the view of successive Australian governments
and the High Court of the sovereignty of Australian law.3 In so far as substantive
acknowledgement of specific Indigenous legal rights does exist, for example in relation
to land rights and culturally appropriate education, it has been hard won and framed
more in terms of concessions than rights.4

Talmudic law by contrast provides an unusual example of a legal system, which
is fundamentally pluralistic.5 It has endured, successfully operating in parallel with a
highly diverse range of other legal systems, for more than two thousand years and is
used here to highlight the scope of possibilities for effective accommodation between
systems with seemingly antithetical legal concepts. The analysis in this article
suggests future avenues for research to facilitate this process of accommodation both
in Australia and elsewhere, particularly in jurisdictions where indigenous systems of
law are evident.

2. Result and discussion

2.1. Australian Legal System

The Australian Constitution (the Constitution) is the foundational source of the
Australian legal system authorising the division and exercise of power ‘to make laws
for the peace, order, and good government’6 of the nation. Unlike chthonic systems
of law, Australian law is formally independent of other sources of authority, including
religious and moral authority, although the influence of the Christian tradition in
the inception of Australian law is evident from the Preamble to the Constitution
‘relying on the blessing of Almighty God.’ As McKennna, Simpson and Williams have
observed, however, the framers, recognising the interpretative potential of including
those words, were careful to reject any particular or direct religious authority,
preserving religious neutrality under the provisions of s116.7 The development of

2 International Law Association, The Hague Conference (2010) Rights of Indigenous Peoples 74
International Law Association Report Conference, 834 2010, 910.

3 See Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Kirby, J and
other immigration law rulings on the influence of international law and human rights law on Australian law
for example CPCF v Minister for Immigration and Border Protection [2015] HCA 1.

4 Mabo v Commonwealth (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1; on
culturally appropriate education and specifically use of Aboriginal languages in education see Calma,
Tom,”Sustaining Indigenous Education, Language and Culture”, speech delivered at World Indigenous People’s
Conference: Education on 9 December 2008.

5 Menachem Elon (i),“Law, Truth, And Peace: ‘The Three Pillars Of The World’,” New York University
Journal of International law & Politics 19 (1996), 440.

6 Australian Constitution,s61 for example.
7 Mark McKenna, Amelia Simpson and George Williams, “First Words: The Preamble To The

Australian Constitution,” University of New South Wales Law Journal 24 (2001), 386; Australian Constitution,
s116 “The Commonwealth shall not make any law for establishing any religion, or for imposing any
religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be
required as a qualification for any office or public trust under the Commonwealth.”

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Australian law continues to be shaped by prevailing social norms, including religion
and morality as will be discussed below.

The scope of Australian law is clearly defined according to specific areas of
human action, including primarily administrative law, constitutional law, contract
law, criminal law, environment and planning law, equity, family law, property law and
tort law. Law, subject to constitutional consistency, is sourced from both case law by
means of a system of legal precedent and legislation made in Parliament. There is a
formal separation of powers into the Legislature, Executive and Judiciary. Case law is
subordinate to legislation, according to the operation of the doctrine of parliamentary
supremacy.8 A hierarchy of courts throughout Australia has enabled the development
of a single common law.

Ultimate control of the legal system lies with the citizenry through a chain of
responsibility, which is known as responsible democracy,9 whereby the government
‘is chosen by, accountable to, and owes its continued existence to, the legislature,’10
whose representatives are democratically elected by the citizenry according to the
provisions of the Constitution.11 The Constitution itself may only be altered by the
domestic legislature with the approval of the majority of citizens in the majority
of states by means of referendum.12 The purpose of the Australian legal system
has therefore been described as enabling the demos to rule.13 Other commentators
have stressed the continuing acceptance of the Constitution ‘as fundamental legal
rules of [the] system and the basic constitutive documents of [the] community’,14 its
Grundnorm.15

2.2. Madayin

Madayin (or Ngarra16) operating in North-East Arnhem land is wholly integrated
with the overall philosophy of the Yolngu, who in habit that land. Until very recently

8 A.V. Dicey, Introduction to the Study of the law of the Constitution (Indianapolis, Liberty Classics,
first published 1885, 8th ed, 1915, reprint 1982), cxlviii.

9 Theophanous v Herald and Weekly Times (1994) 182 CLR 104.
10 John McMillan, Gareth Evans and Haddon Storey, Australia’s Constitution: Time for Change?.

(Sydney: Law Foundation of New South Wales and George Allen & Unwin Australia, 1983), 209.
11 Australian Constitution, ss 7, 24.
12 Ibid, s 128.
13 Danial Kelly (i), “The Legal and Religious Nature of Aboriginal Customary Law: Focus on

Madayin”,University of Notre Dame Australian Legal Review 16 (2014), 73.
14 Leslie Zines, Constitutional Change in the Commonwealth. (Cambridge: Cambridge University

Press, 1991), 27 and see John Quick and Robert Garran, The Annotated Constitution of the Australian
Commonwealth (Sydney: Angus and Robertson, first published 1901, 3rd ed 1995), 988 ‘In the Constitution
of the Commonwealth ‘of course there is no absolute sovereignty, but a quasi-sovereignty which resides in
the people of the Commonwealth. who may express their will on constitutional questions through a majority
of the electors voting and a majority of the States.’

15 Hans Kelsen, Pure Theory of law, legality and legitimacy (Oxford: Oxford University Press, 2007), 56.
16 George Pascoe Gaymarani, “An Introduction to the Ngarra Law of Arnhem Land”, Northern Territory

law Journal 1 (2011), 283.

143

no legal authorities had been in written form, but were rather completely oral.17 The
need to provide a written record of the law to enable it to be interpreted by Australian
lawmakers and academics has now been recognised.18

According to the Yolngu there is no separation from law, it has been there since
time immemorial ‘when the world was nothing…(the) law created this country’.19 It is
believed to have been embedded in the landscape and its inhabitants by a mythical
being (Wangara),20 governing every facet of existence to maintain a state of Magaya,
where there is peace, harmony and order,21 and where all life may flourish. It
includes sacred places and objects such as art works, songs and ceremonies associated
with the law.

Magaya is achieved by means of obligatory ceremonies, which reinforce the
ascribed relationships between and among individuals and the land they inhabit
and most fundamentally through the practice of a fertility philosophy.22 It has been
described as a theocracy in the sense of government by deity as interpreted b y
ecclesiastical authorities.23

2.3. Talmudic Law

The Talmudic system also represents a comprehensive, existential philosophy
prescribing conduct in all areas of life. Halakhah, translated as the way or path to
walk, captures this sense, referring to that portion of the Talmud which deals with
the law.24 Sources of authority are in both written and oral form and it is believed
that the entire Talmud is derived from God and revealed to Moses.25 Although Judaism
predates Moses, the reception of the law is taken to be the beginning of Talmudic law.26
The written sources are vast, complex in their interrelatedness and multi-layered,
although not necessarily hierarchically according to their respective degree of authority.
The initial process of writing the Talmud was undertaken as a protective measure in
response to the diaspora and consequent loss of political sovereignty, as a means of

17 Ibid., 284.56.
18 Danial Kelly (ii),“Foundation Sources and Purposes of Authority in Madayin”, Victoria University

law & Justice Journal 4 (2014), 48.
19 Gaymarani, op.cit., 245.
20 Kelly(ii), op.cit., 49.
21 Gaymarani, op.cit., 286.
22 Kelly(ii), op.cit., 52.
23 Ronald M. Berndt, An Adjustment Movement in Arnhem Land, Northern Territory of Australia

(Paris: Cashiers de L’Homme, Mouton), 1962) 14.
24 Encyclopaedic Australian Legal Dictionary, http://www.lexisnexis.com.ezproxy.cdu.edu.au/au/

legal/results/enhdocview.do?docLinkInd=true&ersKey=23_T25738853566&format=GNBFULL&startDocN
o=0&resultsUrlKey=0_T25738853569&backKey=20_T25738853570&csi=267785&docNo=2&fromDocPrevi
ew=true&scrollToPosition=0.

25 8th Principle, From the 13 Principles of Faith, Maimonides, That we believe that the entire Torah
which we possess today is the Torah given to Moses, and that it was given in its entirety by the Almighty.

26 H. Patrick Glenn, legal Traditions of the World (Oxford: Oxford University Press, 3rd ed, 2007), 94.

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safeguarding the law.27 The fundamental basis of Talmudic law is the Pentateuch,
referred to as the Torah, which may also signify the entirety of Talmudic law.28

The Mishnah comprises a collection of legal rules derived through interpretation
of the Torah by sages and arranged in volumes according to their subject matter.
The volumes are entitled Zera’im (Seeds): concerning prayer and agriculture; Mo’ed
(Festival) concerning holy days; Nashim (Women) containing the laws concerning
marriage and divorce; Nezikin (Damages), covering civil and criminal law; Kodashim
(Holy Things), encompassing temple rituals, sacrifices and dietary laws; and Toharot
(Purities), delineating the laws of ritual purity and impurity.

The Jerusalem and Babylonian Talmuds were the first written records of
debates and opinions on the Mishnah and remain the basic books of law equivalent
to customary law. Each version has enjoyed different relative levels of authority
historically. It has been argued that the Talmud is of higher authority than the
Torah and that even God is bound by customary law.29 Subsequent to the Talmud
a body of written responsa has developed recording learned rabbinical opinion with
biblical authority on the application of the law.30

The oral tradition, which began with Moses interpreting the Torah, is considered
divine and has been continued by adherents through a process of repetition and rote
learning, as an obligatory practice.31 Much of the oral law has been translated into
written form, as outlined above. Elon describes the Torah and the body of oral law
as the Grundnorm of Talmudic law and the subsequent responsa as constituting
the case law.32

The overall purpose of Talmudic law is encapsulated by the concept of Halakhah,
whereby practice is directed to enhancing well-being and refining humanity.33 The
primary imperatives, derived from authoritative Talmudic sources, are law, truth
and peace.34 Commentators have also identified the restoration of harmony, drawing

27 Ibid., 98.
28 Ibid., 95.
29 Bava Metzia 59a-b (the Oven of aknai) where Rabbi Joshua disputing a heavenly voice claims

“It is not in Heaven”; God replies “My children have defeated Me….”.
30 Deut.17:9 “Go to the priests, who are Levites and to the judge who is in office at that time. Inquire

of them and they will give you the verdict.”
31 Maimonides, Introduction to the Talmud, Trans, and Annot. Z lampel (New York: Judaica Press,

1975), 35.
32 Menachem Elon(ii), “The Legal System of Jewish Law”, New York University Journal of International

law & Politics17 (1984), 229-230.
33 Emunot VeDeot, Saadia Gaon (Babylon/Iraq 900 CE), The Guide for the Perplexed; Moses Maimonides

(Spain/North Africa 1200 CE); Midrash Bereishit Rabbah 44.
34 For example, Menachem Elon (i) focuses on these Imperatives Emanating From the Talmud for

Example in the Mishnah [M] Avot 1:18, quoting Zechariah 8:16.

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parallels with other chthonic systems, such as Madayin35 and similarly the affirmation
of the love of God,36 echoing the ceremonial practices of Yolngu.

2.4. Comparison of Key Characteristics in the Three Systems

The foundational separation of law from other systems of authority in the
Australian legal system contrasts sharply with the integration of Madayin and
Talmudic law with the whole social order. It conforms closely to Mattei’s rule of
professional law,37 resting on the ‘supposition that law constitutes an autonomous
body of rules independent and separate from, although not uninfluenced by, religion,
morality, and other social norms.’ In this sense and formally it is a predominantly
positive law system, although in practice the application of precedent in common
law systems relies on the acknowledgement of community standards, thus weakening
its positivistic basis.38 This is quite unlike Madayin law based firmly on natural law
and controlling the whole social order, including religion, culture and politics, which
conforms to Mattei’s conception of rule of traditional law.39 It not only defines and
enforces relationships between people, with nature and with the divine40 but also
prescribes the rules of social order and practice, including education, child-rearing,
sexual relations and marriage.41 Talmudic law also has a theocratic basis but reflects
a separation from autochthony as monotheism assigns people the role of law making
in partnership with the divine.42 Thus, although clearly a natural law system, with
no separation of the religious and cultural from law, secular authority to legislate
has been clearly recognised at least since medieval times. The substance of the law,
however, remains in rabbinical control.43 Laws are categorised as either issura,
concerning religious law, which includes matters of family law, such as marriage and
divorce, and ritual matters, or mamona, concerning secular matters, including most
civil and criminal law. Issura law is strictly rabbinically controlled. while mamona
is amenable to the application of secular authority. However, as most law has an

35 Glenn, op.cit., 99.
36 Ibid., 104.
37 Ugo Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”,

American Journal of Comparative law45(1997), 31.
38 Joseph Dainow,“The Civil Law and the Common Law: Some Points of Comparison”,The American

Journal of Comparative law15 (1966), 425.
39 Ibid.,35.
40 Ronald. M Berndt, “A Profile of Good and Bad in Australian Aboriginal Religion”, Charles Strong

Memorial Lecture 1979 reprinted from Colloquium Journal of the Australian and New Zealand Society for
Theological Studies, 18.

41 Gaymarani, op.cit,. 288.
42 As God placed creation in Adam’s hands with the instruction to ‘rule over it’ Genesis 1:28-30. The

Talmud also instructs people to work and protect; to complete the process of creation; and to partner
with God.

43 See for example, Maimonides, Yad, at Gezelah 5:14 ‘The principle of the matter is the following:
any law that the king will enact which applies generally and not only to a single individual is not thievery;
and whenever he will take from a particular individual only, except by law applicable to everyone, this is
unlawful and robbery.

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issura component it remains subject to rabbinical scrutiny and any secular law on
issura will be held to be invalid to the extent that it is inconsistent with a Talmudic
ritual precept.44 Overall it encompasses all areas of law represented in common law
systems, including the Australian legal system.

2.5. Means of Interpretation

To understand legal authority it is important to consider the accepted means
of interpretation. In Australian law judges interpret the law, determine disputes and
judge the legitimacy of legislation. If laws are ultra vires, beyond the power of legal
authority, they will be struck down as unconstitutional.45 Similarly, the rabbis in
their judgements and responsa trace a thread of reasoning to Talmudic sources in
order to establish validity.46 In the Australian system judgement is final (appeals
excepted), according to the principle of Res judicata, and is reached on the basis of
evidence put by opposing parties, resulting in a winner and a loser.47 Madayin and
Talmudic law in contrast, aim to re-establish harmony using negotiation processes.
The Ngarra court operates in a completely open adjudicative process.48 The elders sit
to discuss matters of law, to determine policy and also have authority from the Yolngu
community, including parties to disputes, to make binding judgements. Judgements
are made by male and female clan leaders through open discussion with the parties
and their families. Each party is represented and mediators are used and normally a
negotiated settlement (makarrata) is reached to which the offender agrees. Rabbinical
courts (Bet din), although generally without state authority, are often regarded as
decisors settling matters in private law.49 They are more concerned with establishing
truth than efficiency or stability.50 There are no appeal provisions but parties may
return to the same court if they consider the initial judgement to be erroneous, thus
not recognising Res judicata.51 Rabbinical courts in Israel claim to be based on Talmudic
law, but in practice they have adopted contemporary procedures.52

44 R. Simeon Duran, Responsa (Tashbez) 1:158.
45 Humane Society International Inc v Minister for the Environment and Heritage (2003) 126

FCR 205.
46 David Luban, “The Coiled Serpent of Argument: Reason, Authority, and Law in A Talmudic Tale”,

Chicago-Kent law Review 79 (2004), 1286.
47 Dainow,op.cit., 35.
48 Gaymarani, op.cit., 286.
49 Perry Dane, “The Yoke of Heaven”,University of Toronto Law Journal 44(1994) 353.
50 Elon(i), loc.cit.
51 Yuval Sinai, “Reconsidering Res Judicata: A Comparative Perspective”, Duke Journal of Comparative

& International law 21 (2010), 365.
52 Jewish Virtual Library, “Encyclopaedia Judaica, Practice and Procedure”,http://www.jewishvir-

tuallibrary.org/practice-procedure.

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2.6. Evolution and Adaptation

Australian law has a fixed starting point at Federation in 1901, though because
Australia received English law at the establishment of the colonies, it could be argued
that the roots of Australian law extend back through English history.53 The Australian
constitutional framework has endured since Federation, preserving its core precepts,
while adapting to changing social circumstances, technical advances and the
influence of precedent.54 Australian law is described as sovereign rather than
eclectic, a characteristic evoked repeatedly by opponents of the recognition of
Aboriginal customary law.55 The iconoclastic ruling in Mabo cautioned in similar
terms,56 reflecting the High Court’s resistance to accepting any plurality of laws.
Nevertheless, the legal system has incorporated elements of Indigenous legal practice,
particularly through as an extension of restorative justice programmes, including
elements of circle sentencing in several jurisdictions.57

Talmudic law is traced to the revelation of the Torah, the Grundnorm of the
system.58 Since the compilation of the Babylonian Talmud Halakah continued to
develop through the responsa, forming a dynamic body of law comparable to case
law.59 Subsequent exile and the creation of a diasporic Jewish population has
precipitated a legal system without fixed geographical jurisdiction. A massive volume
of responsa material has developed through the application and adaptation of
Talmudic law to local social and economic conditions, leading to the development
of new substantive areas of law concerned with, for example, public administration,
tax and criminal justice.60

In exile Jewish communities were generally empowered to resolve internal legal
disputes by the respective jurisdictional government.61 That recognition has ceased

53 Geoffrey Lindell (i), “Why Is Australia’s Constitution Binding?: The Reasons In 1900 and Now, and
The Effect of Independence”, Federal law Review 6 (1986), 29.

54 See Geoffrey Lindell (ii), “Expansion or Contraction? Some Reflections About the Recent Judicial
Developments on Representative Democracy”, Adelaide law Review20 (1998), 111-146; Amelia Simpson
and George Williams, “International Law and Constitutional Interpretation”, 11 PLR 205.

55 Australian Law Reform Commission,“Recognition of Aboriginal Customary Laws”, Report No. 31,
12 June 1986, paragraph 118. Divisiveness and the ‘One Law’. A view strongly stated in several submissions
was that recognition would create an undesirable form of legal pluralism, and that it would be divisive or
an affront to public opinion. Proponents of these views argue that there should be ‘one law for all,[59] and
that the goal should be ‘social equality for Aborigines within the concept of racial unity and integration’.

56 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 29 ‘In discharging its duty to declare the common
law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and
human rights if their adoption would fracture the skeleton of principle which gives the body of our law its
shape and internal consistency.’

57 See for example Richards, Kelly. ‘Police-referred Restorative Justice for Juveniles in Australia’
[online]. Trends and Issues in Crime and Criminal Justice, No. 398, Aug 2010: [1]-8, http://search.informit.
com.au.ezproxy.cdu.edu.au/documentSummary;dn=846094200631694;res=IELHSS.

58 Kelsen, loc.cit.
59 Elon(i), op.cit., 239.
60 Ibid., 233.
61 Ibid., 231.

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since the process of emancipation in the 18th century, whereby Jews have been
accorded the same rights and responsibilities as other members of society. However,
the development and influence of Talmudic law has continued, including the parallel
operation of rabbinical courts alongside state civil courts, authorised in Israel to
adjudicate personal law matters.62

It is understood that Madayin has been in existence since time immemorial, but
is nevertheless a dynamic system, open to influence from Australian law, syncretic
and also relative in that there are generally no hard and fast rules. Commentators have
observed that chthonic systems are by their nature dynamic, internally contested
and syncretic, immersed as they are in their respective landscapes.63 No indigenous
system, including Madayin, exists in an autonomous jurisdiction and therefore their
authorities and practices develop in response to an evolving relationship with the
overarching polity and changing social conditions and attitudes.

2.7. Co-existence With other Legal Systems

The ability to accept, or at least recognise, alien sources of authority is challenging
for all sovereign states. Since R v Jack Congo Murrell (1836) 1 Legge 72 it was taken
to be settled in principle that Australian law applies to the Aboriginal population.
England chose to weaken the erst while chthonic law by imposing its law on the
indigenous population. This has not been the case uniformly in other parts of the
world. Glenn, for example, cites Ghana, where the colonising English strengthened
pre-existing chthonic law providing constitutional recognition.64 Several states in
South America now practise well-developed systems of legal pluralism with special
jurisdictions of indigenous law65 recognised in the constitutions of Peru, Bolivia,
Ecuador and Venezuela since the 1990s, including the right to administer justice in
their own territories. These developments reflect an international trend to recognise
indigenous dispute resolution practices to address the acknowledged inequities in
the justice systems.66

Failure to recognise customary law in the Australian legal system continues to
result in significant injustice to the Aboriginal population as a consequence of

62 Foundations of Law 5740-1980, Sefer Ha-Chukim No. 978 at 163 (July 31, 1980) (official collection
of statutes of the State of Israel).s48 Where a court is required to decide a legal question for which there is
no answer in statutory law, judicial precedent, or by analogy, the question shall be determined in the light
of the principles of freedom, justice, equity, and peace of the Jewish heritage.

63 Rachel Sieder, “The Challenge of Indigenous Legal Systems: Beyond Paradigms of Recognition”,
Brown Journal of World Affairs 18 (2012), 106; Glenn, op.cit., 78.

64 Glenn, op.cit., 82.
65 Sieder, op.cit., 3.
66 Ibid., 104.

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differing conceptions of legal relations and responsibility, particularly where customary
law governs conduct. A Yolngu person’s place in the universe is ascribed with clear,
inescapable duties and responsibilities to other people according to kinship relations.67
Yolngu also share corresponding responsibilities to ‘preserve critical order of the
natural world’68 of which they are an integral part by caring for country. They construe
their position as entailing obligations rather than rights, a concept that has developed
from individualistic, property-based legal systems, such as the Australian system.

Glenn discusses the incompatibility of chthonic systems of common ownership
with property law,69 problems which have been highlighted in the area of copyright
for art works.70 Under Aboriginal law traditional owners are responsible for any
unauthorised reproduction of sacred objects, even where they may have no direct
control of that occurrence, and are liable to severe punishment. Attention has also
been drawn to the risks of ignoring Aboriginal conceptions of responsibility in the
area of criminal law. In the case of a fatal car accident Australian law assigns
responsibility to the driver of the vehicle but under customary law all occupants of
the car and the driver’s close kin would be held responsible for failing to keep the
driver safe.71

The High Court’s ruling that Aboriginality is irrelevant to the sentencing
process72 means that Aboriginal plaintiffs are judged disregarding their customary
obligations and they may misunderstand the charges against them pleading
inappropriately as a consequence, a situation exacerbated by the paucity of appropriate
legal services.73 The ruling may also be seen as being antithetical to the rule of law and
contrary to international law.74 Recommendations of the Australian Law Reform

67 Gaymarani, op.cit., 290-5.
68 Edward Goldsmith, The Way: An Ecological Worldview (London: Random Century, 1992) xi-xvii.
69 Glen, op.cit., 61.
70 Milpurrurru v Indofurn Pty ltd (1995) 6 AIPJ 185 para 13.
71 Tatum Hands, “Teaching An Old Dog New Tricks: Recognition of Aboriginal Customary Law in

Western Australia”, Indigenous law Bulletin6 (2006), 14.
72 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
73 See Chris Cunneen, Fiona Allison, and Melanie Schwartz,“Access to justice for Aboriginal People

in the Northern Territory”, Australian Journal of Social Issues 49, No. 2 (2014): 219-240, http://search.
informit.com.au.ezproxy.cdu.edu.au/documentSummary;dn=453499071087937;res=IELFSC.

74 For example Article 27 of the United Nations Declaration on the Rights of Indigenous People
annexed to GA Res 61/295, UNGAOR 61st Sess No 49, Vol 111, UN Dox A/61/49 (2008) 15, states: ‘States
shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent,
impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions,
customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining
to their lands, territories and resources, including those which were traditionally owned or otherwise oc-
cupied or used. Indigenous peoples shall have the right to participate in this process; and also Universal
Declaration of Human Rights, G.A. Res. 217A, Art. 74, U.N. GAOR, 3d Sess., 183d plen. mtg., U.N. Doc.
A/810 (Dec. 10, 1948); International Covenant on Economic, Social and Cultural Rights art. 2(3), Dec. 16,
1966, 993 U.N.T.S. 23.

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Commission (ALRC) report in 198675 and the subsequent Law Council of Australia
report in 200676 were framed in terms of a need for accommodation. The ALRC
concluded that the risks of pluralism can be avoided or minimised and that it was
an appropriate response ‘for a geographically wide-spread and culturally diverse
society.’77

Yolngu elders generally accept the authority of Australian law78 and have
demonstrated some willingness to change traditional practices to comply with the
requirements of Australian law. Punishments, such as spearing, have been adapted
to be symbolic rather than inflicting serious injury and there has been a recognition that
the physical punishment of women constitutes domestic violence and is unacceptable.79

Talmudic law similarly emphasises the centrality of obligation (Mitvah) rather
than rights, in particular to study the law; to fulfill obligations to demonstrate love
of God;80 and to do what is right and good.81 Jewish law holds people accountable
for any damage they cause, whether intentional or accidental, unless the damage
is completely unavoidable.82 There is a long history of co-existence with other legal
systems and accordingly the principle of dina de-makikhuta dina (the law of the
land) accepts the authority of the respective jurisdiction in which Jews are living.83
The validity of various provisions of alien legal systems in civil matters is recognised,
even if they are contrary to Jewish law. However, the law of the secular authority is
not valid if it is inconsistent with an aspect of issura84 or infringes the basic concepts of
justice, morality, equity and freedom. Contracts have thereby been voided where the
debtor agreed to imprisonment for non-payment. Under Jewish law no-one can agree
to lose their freedom and laws must apply equally to all members of the community
without discrimination. Otherwise a law is considered unlawful and to constitute
robbery.85 A sophisticated system of mechanisms to deal with conflict of laws has
developed, whereby pluralism in debate is condoned in the process of discovering

75 Australian Law Reform Commission,loc.cit.
76 Ibid.
77 Ibid., paragraph 118.
78 Ibid.Gaymarani, op.cit., 299-300.
79 Danial Kelly (iii), “The Black and White of Wunungmurra”, Northern Territory Law Journal 2

(2012), 234.
80 See R. Cover, “Obligation: A Jewish Jurisprudence of the Social Order”, Journal of law and Religion

5 (1987), 65 on the superiority of an obligation perspective.
81 Deuteronomy 6:18.
82 Authority in the Mishna eg Maimonides, Mishna Torah, Laws of Damager, 6:15.
83 Baba Kamma 113b.
84 Elon(i), op.cit., 223.
85 Ibid., 224. The principle of the matter is the following: any law that the king will enact which

applies generally and not only to a single individual is not thievery; and whenever he will take from a
particular individual only, except by law applicable to everyone, this is unlawful and robbery’ quoting
Maimonides.

151

the means to achieve uniformity in practice and to maintain the imperative to abide
by the spirit of the law.86 Rabbis have thus developed lines of reasoning, including
elaborate legal fictions, to enable acceptable solutions to be reached.87

3. Conclusion

This article has highlighted some of the significant similarities and differences
in the sources of authority and purpose of Madayin, Talmudic and Australian law.
Attention has been drawn to the importance of jurisprudential construction in
understanding the operation of these systems, particularly in terms of their different
positions on a spectrum from being purely positivist to being wholly based on natural
law. In chthonic systems like Madayin and to a lesser extent Talmudic law, a legal
wrong by disrupting harmony, inflicts a social wound88 and the parties negotiate
a solution to reestablish the natural order. The truth is paramount. A wrong in
common law systems such as Australian law broadly breaches individual legal rights
and the law provides remedies on the basis of contested evidence. This perspective
explains the Madayin and Talmudic emphasis on obligations and responsibilities
to maintain the natural order compared with the Australian focus on individual
rights. Similarities have also been identified, notably that all three systems rely on
the mediation of law through respectively elders, rabbis and judges, who trace lines
of legal reasoning derived from the relevant authorities. With these observations
in mind and considering the geo-political context of each system it is argued that
cooperative co-existence is crucial and Talmudic law offers an interesting model for
consideration.

86 Elon (ii), op.cit., 469.
87 Ibid., 456.
88 Glenn, op.cit., 68.

Comparison and Co-existence: Sources and Purpose of Authority
in the Australian, Madayin and Talmudic Legal Systems

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Vol. 01 No.2, July 2017

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