Legal pluralism in "White Australia"
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In chapter 14 of her book titled Australianama, Samia Khatun explores the concept of “brideprice” and its various understandings within Western contexts. She argues that “‘Brideprice’ is an anthropological category invented in British colonial texts about colonised people” as to be able to shape a certain narrative surrounding their religious practices as a way of justifying the dehumanisation of Afghan/South Asians in “the period that Australian troops were deployed to Afghanistan in 2001” (Khatun, 142, 144). The hypocrisy here, however, lies in the fact that the concept of “brideprice” was also prevalent in European societies, but “from the late nineteenth century” it “became one of a constellation of indicators that colonised societies languished at the stages of ‘tradition’ or ‘savagery’ far behind British arrival at ‘modern’ and ‘civilised’ marriage” (Khatun, 144).
Through the telling of the story of a 17 year old Afghan girl named Shamsulnissa, Samia Khatun also speaks of the creation of “White Australia” in 1901, whereby “six separate British colonies federated into […] a settler dominion independent from British rule” (152). Laws were implemented in order to “restrict the movement of Asian merchants, workers, and their capital”, out of fear of racial mixing and in the name of the protection of white labour from non-white immigrants such as Afghan traders (in the case of Shamsulnissa and her family) (Khatun, 151). In spite of the oppressive policies put in place by “White Australia”, South Asians and Afghans made use of legal pluralism, in other words the simultaneous use of “Mohamedan law” (shari’a) and “English law”, to counter the restrictions imposed on them. This did, however, cause some conflict in Australian courts when Abraham Mohament was trying to plead against the “estates Shamsulnissa, Kamernissa and their mother Bibi Ismat” being “invested into the Australian camel business” (Khatun, 151). That is to say that the Australian courts were clearly trying to use the wealth and capital of non-white traders by bending the policies for their own benefit. Fortunately, by pursuing legal challenges against the government and insisting on using “Mohamedan law”, which was what was used to initially bind the contract, after facing restrictions when importing camels to Australia, Shamsulnissa’s younger brother managed to sue “the Western Australian government for ‘breach of contract’” and “claimed damages of £13,463” (Khatun, 152). It is clear that the Afghan camel traders would not be passive victims of discriminatory policies, but active agents in resisting them.
It is also worth mentioning that Afghans and South Asians navigated Australia’s racial restrictions through cross-cultural marriages, which we can see in the case of Adelaide, who “was engaged to camel merchant Moosha Balooch” (Khatun, 154). This union between a South Asian man and an aboriginal woman, organised by Adelaide’s father, ensured that her livelihood was secured, but it also meant that Moosha would be able to evade the “nationalist legislation” that had “erected racially exclusive borders” (Khatun, 155).