‘Enacted in the destiny of sedentary peoples’: racism, discovery and the grounds of law

Abstract

Whilst the racial, and racist, basis of the doctrine of discovery is a modern innovation, the doctrine owes much to its pre-modern forms and ethos. The finding and settlement of putatively unknown lands has long been attended with mythic and religious justification and with rituals of appropriation all of which strikingly resemble modern practice. Similarity in this case, however, serves to dramatize difference. What marks modern discovery of the occidental variety is the displacement of the mythic and religious by a combination of racism and legalism. The story of that displacement is told here along with an analysis of the poverty, not to say vacuity, of the doctrine of discovery as a justification for imperial appropriation. Since the story is told in broadly historical terms, its conception of the modern relies on the temporal ‘depth’ which historians usually attribute to this term, the discoveries of Columbus here providing something of a benchmark. But this account of the doctrine of discovery is not an antiquarian exercise, not a tale told in a now entirely discovered world, the unfolding of which may have had its reasons for regret but is now decidedly done with. Rather, this account is modern also in the sense of having current significance, of discovery’s still being an impelling force in the treatment of peoples supposedly once discovered and in the self-identity of those who would claim to have once discovered them, an identity which extends to the grounding of the discoverer’s law. Following the preponderant legal authority on discovery, my ‘case’ study here will come from the history of the United States. The parallels with the Australian situation are, it would seem, close