Rights and citizenship
8
Until recently, the topics of rights and citizenship had not received general sociological attention (Somers, 1994: 64; Turner, 1993). This absence can be partly attributed to sociologists’ overwhelming concern with the social and their consequent focus on such collectivities as community, family and organizations, whereas rights have been interpreted as individual attributes. Secondly, the nation state, which for the most part of the twentieth century had been viewed as the source of citizenship, was of greater concern to political scientists, while sociologists studied such transnational processes as modernization, capitalism, industrialization, social class and bureaucratization. Thirdly, the view that any concept of rights is inevitably associated with morality, values and ethics and therefore beyond the realm of objective empirical investigation, or that rights are legal constructions or philosophical abstractions, perhaps rendered them outside the primary interests of the sociologist.
Nonetheless, rights and citizenship were not ignored by social theorists in the past (see for example Parsons, 1967). The current renewed interest in rights and citizenship follows the force of international events, especially the fall of communism in eastern Europe and the establishment of constitutional, democratic polities, the formation of the European Union, and the impossibility of viewing nation states as independent of supranational forces and relations, especially global capital and consumerism. Social movements and institutions that cross national boundaries have become the focus for claims about social rights and citizenship uncoupled from the nation state. Regardless of their position on the political spectrum, social movement activists usually adopt the language and discourse of rights and advocate the attainment or recognition of rights for particular constituencies.
This chapter examines recent elaborations on the concept of citizenship and associated rights among sociologists. While there is a general view that citizenship is more inclusive than such other traditional concepts as class and gender, there is little faith in the capacity of nation states to guarantee rights through domestic legal systems due to the weakening of national polities in the face of international economic forces, widespread telecommunications and large-scale migration. Some writers identify these trends as evidence of globalization and, instead of talking about citizenship rights underwritten by nation states, they shift attention to human rights being in an international context. Inevitably, the role of law is evident in these developments, especially the increasing impact of international law on the prerogatives of national legal systems. Even so, the concept of an international community that recognizes human rights remains utopian. The usual starting point for contemporary discussions of citizenship is T.H. Marshall’s essay entitled ‘Citizenship and Social Class’, first published in 1950 but given as a series of lectures at Cambridge University the previous year.
The views of T.H. Marshall
For Marshall, citizenship is ‘a status bestowed on those who are full members of a community’ (1992: 18). It is an attribute or characteristic that people possess by virtue of belonging to a collectivity. Marshall extended the notion of citizenship from a narrow concept of formal rights to one that embraced social entitlements to include ‘the whole range [of issues] from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society’ (1992: 8). Citizenship requires a direct sense of community membership based on loyalty to a civilization, which is a common possession. Marshall identifies three elements of the concept of citizenship: civil, political and social.
- Civil rights These include those rights necessary for individual freedom, namely liberty, freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice. The institutions most closely associated with civil rights are courts of justice that espouse the doctrines of the rule of law and due process. In the economic sphere, civil rights are characterized by free labour, that is, freedom from feudal ties and obligations, thus allowing social mobility, and the capacity to enter into employment contracts (which also requires geographical mobility). Marshall recognizes that such freedoms were limited and applied only to adult male members of the community, ‘since the status of women, or at least of married women, was in some important respects peculiar’ (1992: 12). Thus civil rights mean legal freedom, a formal status that may not be actually realized. Marshall specifies another subdimension of citizenship, namely industrial citizenship. Trade unionism has facilitated the advancement of collective civil rights that exist parallel with and supplementary to the system of political citizenship. While civil rights relate to individuals, trade unions are able to exercise vital civil rights collectively, therefore constituting a vehicle for raising the social and economic status of their members (Marshall, 1992: 26, 40). Industrial citizenship became significant as workers either did not possess or had not learned to use the political right of franchise.
- Political rights These enable participation in the exercise of political power, either as a member of a body invested with political authority, for example the parliament and local government councils, or as an elector of the members of the political body. In western capitalist democracies, political rights have expanded by paying a stipend to members of parliament to enable those members of society who do not have other sources of income or wealth to be involved, and by extending the franchise from male property owners to all adult male citizens, women, racial or ethnic minorities and to younger people.
- Social rights These refer to a minimum level of economic welfare, social security and living standards that are attendant on being a member of a collectivity. Social rights were the most clearly developed in the first two-thirds of the twentieth century, with the emergence of the welfare state and collective commitments to public education, housing, health, welfare and security in western capitalist democracies. The original source of social rights was membership of local communities and functional associations that were progressively replaced by the Elizabethan Poor Laws and a national system of wage regulation (Lockyer, 1964: 137–40). While the original Poor Laws championed the social rights of citizenship, by the nineteenth century they had come to do the opposite: poor relief was not an integral aspect of the rights of the citizen, but entailed forfeiting political rights and abrogating personal liberty by internment in the workhouse. Receipt of poor relief resulted in stigmatization and social exclusion. Possession of social rights did not guarantee other forms of citizenship. This was also the case with various Factory Acts that limited women’s paid work during the nineteenth century: ‘Women were protected because they were not citizens. If they wished to enjoy full and responsible citizenship, they must forgo protection’ (Marshall, 1992: 14–15).
While the concept of citizenship existed in medieval times (and back to classical Greece and Rome), Marshall says that its history entails a differentiation of the elements, with citizenship growing from a local into a national institution. He considers that the evolution of citizenship has been in continuous progress over the past centuries and identifies the formative period of the different dimensions of citizenship with different centuries (acknowledging some overlap): civil rights belonged to the eighteenth century; political rights to the nineteenth; and social rights to the twentieth century (at least to the first two-thirds of it). Marshall’s general conception of citizenship, then, emphasizes its sequential and cumulative nature, although he recognizes some unevenness, especially in relation to gender.
Marshall’s primary interest is to assess the impact of citizenship on social inequality: the two forces emerged as a central contradiction during the twentieth century, yet are able to coexist. On the one side, all who possess citizenship status are equal with respect to the attached rights and duties, but social class is a system of inequality. While not arguing for direct causation, Marshall suggests that the growth of national citizenship coincides with the rise of capitalism by asking:
How is it that these two opposing principles could grow and flourish side by side in the same soil? … The equality implicit in the concept of citizenship, even though limited in content, undermined the inequality of the class system, which was in principle a total inequality. (Marshall, 1992: 18–19)
Until the twentieth century, with the resurgence of social rights, citizenship and the social-class system remained compatible. Civil rights constituted the earliest forms of citizenship and were indispensable to a competitive, free-market economy that required the mobility of labour and capital. As civil rights were intensely individual in origin, they complemented the individualistic phase of capitalism and, indeed, were necessary to the maintenance of that particular form of inequality. This was especially salient in employment relations, which rely on contractual agreements between parties who are formally free and equal in status, though not necessarily equivalent in bargaining power. The blatant inequalities that emerged despite the equal possession of civil rights were not due to defects in civil rights but to an absence of social rights. Inability to enforce or implement rights derives from the unequal distribution of wealth, class prejudice and the very high cost of legal action. Ironically, civil rights, the possession of which might be more widespread or universal than other rights, are among the most difficult to realize because of a reliance on the legal system and the prohibitive cost of litigation (Marshall, 1992: 20–6). This resonates with Weber’s discussion of the distinctiveness (and irrational dimensions) of the English legal system, which was able to deny substantive justice to economically weak segments and support, even reproduce, the interests of the capitalist classes while maintaining the ideology of formal legal equality (see Chapter 2).
A growing national consciousness and the extension of political rights enabled the establishment of social rights via the exercise of political power. By the beginning of the twentieth century, social rights were being incorporated into the status of citizenship, thus creating a universal right to real income not proportionate to the market value of the claimant. What is distinctive about social rights in the twentieth century is the shift in emphasis from ameliorating the conditions of the most disadvantaged individuals to attempting to modify the whole pattern of social inequality through governmental social insurance schemes, which are established legislatively and implemented bureaucratically (Hasenfeld et al., 1987: 397–401). Full citizenship requires the collective provision of certain services and benefits: ‘The obligation of the state is towards society as a whole, whose remedy in case of default lies in parliament or a local council, instead of to individual citizens, whose remedy lies in a court of law, or at least in a quasi-judicial tribunal’ (Marshall, 1992: 35). Schemes to remove the barriers between civil rights and their remedies include legal aid, guaranteed minimum wages, pensions, national health schemes and public housing provision.
Clearly, citizenship is not synonymous with equality. Citizenship operates as an instrument of social stratification, especially through education and in its relationship with the occupational structure. Members of the community have the right to equality of opportunity but not to equality of outcome (Marshall, 1992: 38–9). Status differences are compatible with democratic citizenship as long as they are not too vast, but exist within a population united in a single civilization or national identity, and are not the result of hereditary privilege. Inequalities can be tolerated and reproduced within an egalitarian society when they are neither too dynamic nor result in pressures for radical social change.
General criticisms
Marshall’s conceptualization of citizenship as evolutionary, progressive, becoming more inclusive and ameliorating the negative, gross inequalities of the capitalist market has been widely criticized (Roche, 1987: 368–75). His view of citizenship is often unclear: he refers to three dimensions of citizenship at the outset, but then usually refers to different types of citizenship. The possession of some citizenship rights can weaken others, for example social rights based on family membership and actual or potential motherhood accorded to women in the workplace undermined their civil rights, especially their restriction from certain kinds of jobs, or paid employment altogether. With the shrinking of the welfare state since the 1970s, it is obvious that the achievement of rights is not cumulative or collectively guaranteed. Social rights provided by the welfare state are clearly reversible and not to be taken for granted (Turner, 1990: 192). Turner holds that: ‘The Marshallian framework has been eroded because economic changes, technological innovation and globalization have transformed the nature of work, war and the social relations of reproduction. The three routes – employment, war service and family formation – to effective citizenship no longer provide a firm socio-economic framework within which social rights can be enjoyed’ (2001: 203).
To be fair, however, Marshall (along with many others) could not have predicted the fate of the welfare state in the last quarter of the twentieth century. For Marshall, social class was the main dimension of inequality. He mentioned (but without theoretical attention) sex differences – specifically the exclusion of women from the occupational structure and from political rights – but did not attend to other dimensions of inequality, namely race, ethnicity and sexuality.
Marshall’s discussion is entirely about England, which begs the question of whether he considered it to be the prototype of imminent development in capitalist, western democratic societies. His scheme may fit the English example (and there is some doubt about this), but it is historically and comparatively inappropriate to other societies (Mann, 1987: 339–40). While his concept of citizenship is tied by definition to the nation state, Marshall spent little time theorizing it (Roche, 1995: 716–19). Some commentators point out the decreasing capacity of the state to grant rights and realize citizenship and have moved toward discussing human rights in an international or global context. Many nation states do not reflect a notion of collective membership or a single, overriding national identity. National governments have explicitly and directly denied citizens access to resources and opportunities, engaged in political repression, acted contrary to international law and violated the rights of ethnic minorities. This is true of western democracies as well as nondemocratic states (Cohen, 1993: 102–3).
In developing a more contemporary concept of citizenship Turner treats ‘citizenship as a particular case of social rights’ (1997: 5). He views all economic, cultural and political rights as social rights (as distinct from human rights), because they all depend on membership of a nation state that grants or recognizes them. After examining the history of citizenship in a number of western nations, Turner proposes two essential factors: first, the passive or active nature of citizenship, that is, whether it is developed from above via the state, or from below through local associations; and second, the distinction between public and private arenas within civil society and the creation of a public domain of political activity. He then generates a model of four types of democratic polities as social contexts for the realization of citizenship rights:
- Revolutionary: exemplified by the case of France, where popular struggle and a revolutionary conception of active citizenship combined with a strong public arena for citizen political participation and the achievement of new social rights following the French Revolution in 1789.
- Passive: indicated by the English case, where citizenship derived from above after the constitutional settlement of 1688, which created the British citizen as the British subject and established a relatively strong public (or collective) domain allowing relatively active citizenship.
- Liberal: adopted in the post-revolutionary USA, where the polity is constituted as participatory but is weakened by an emphasis on individualism and privacy.
- Plebiscitary democracy: for example in Germany, where the individual citizen is submerged in the sacredness of the state while Lutheranism supports privacy and prioritized ethical and moral action within family life, thus resulting in a passive citizenship that collapsed into fascism (Turner, 1990: 206–10; 1997: 15–16).
From a Durkheimian perspective, Turner argues that in a secular society dominated by the nation state, public debates are no longer dominated by religious concerns and institutions; they are replaced by citizenship, which provides the common language or discourse, set of identities and value system. Thus citizenship is a form of social solidarity (Turner, 1997: 10). Turner has not relinquished the desire to articulate types or dimensions of citizenship nor forsaken an essentially evolutionary, albeit cross-cultural, perspective. He also expresses ambivalence about the concept of citizenship in his formulation of human rights that transcend, and may be in conflict with, national citizenship rights (Roche, 1995: 725).
Taking a very different approach, Somers argues that the development and precise character of modern citizenship are as much direct outcomes of medieval institutional and cultural foundations as they are based on the intervening forces of capitalist revolutions and class formation in the seventeenth and eighteenth centuries (Somers, 1994: 83). She disputes that the development of the civil, political and social components of citizenship coincided with epochs of economic development; denies that the supersession of local differences by national uniformity is a precondition of modern citizenship; and disagrees that citizenship practices vary according to categories of social actors, especially classes (Somers, 1993: 608). Her historical research points to the peculiarities of the English legal system and the regional and institutional conditions under which various rights are realized. She argues that virtually all English communities claimed, exercised, benefited and suffered from both the expansion and contraction of all three types of citizenship rights long before the triumph of their alleged capitalist cause (Somers, 1994: 77).
Somers adopts an institutional and narrative focus that uses a relational rather than a categorical approach to analysing social arrangements, viewed as indeterminate configurations of cultural and institutional relationships. From this perspective she proposes that:
rather than in the transition to capitalism or in the ‘birth of class society’, the conditions for the possibility of citizenship rights can be located in the 12th–14th century legal revolution of medieval England that produced both national and local public (participatory) spheres as well as a national political culture based on the idealized master narrative of English legal and constitutional rights. (Somers, 1994: 73, emphasis in original)
Her central argument is that depending on their context or setting, laws that are applicable to all members of a nation state can be instruments of state or elite control or, alternatively, may represent popular citizenship rights.
Somers notes that the institutionalization of citizenship rights that does not correspond to the transition from feudalism to capitalism was a contingent and uneven process. Local legal processes generated different patterns of justice and rights in different types of English regions. She divides regions of eighteenth-century England into arable areas, characterized by strong manorial control and a weak capacity for local participation, and pastoral regions, which were the opposite.1 England’s nationwide legal institutions, and the universal legal discourses that emerged from Henry II’s initial combination of the central state with local public (non-feudal) jurisdictional units to create a national public law with a local (and participatory) implementation, were still in place in the eighteenth century (Somers, 1993: 596). These cultural patterns formed part of the interaction between England’s participatory legal institutions and the presence of contrasting regional political cultures. A culture of localism and participatory practices made the meaning of citizenship highly contested and variable, depending on the distribution of power to exercise those rights (Somers, 1993: 592–6; 1994: 98–9).
Only the people from the pastoral, later rural-industrial and eventually industrial villages from the fourteenth century onwards demonstrated explicitly positive expectations of their public political, social and civil rights. The absence of powerful social and political elites, the longer history of legal freedom and the presence of more solidaristic popular communities meant that civil liberties and public participatory law promoted more favourable outcomes for the labouring population. There is less evidence for such expectations on the part of labouring peoples located in the arable regions, comprised primarily of large commercial agricultural labour or unfree villeins. Indeed, the poor among these regions were more likely to view the law as oppressive. Thus the capacity for participatory association in the pastoral communities enabled greater interaction with national laws and their translation into citizenship rights (Somers, 1993: 593–5, 601–3; 1994: 81–2, 97).
Marshall implies that modern citizenship rights are society wide and universal in scope, that is, they are available to categories of people (by definition, because social rights are not individual rights). In contrast, Somers suggests that rather than being a category of social status, the rights of citizenship comprise a bundle of enforceable claims that are variably and contingently appropriated by members of small civil societies and differentiated legal cultures within one nation state. Rights are not logically attached to any one social category or persons, but are resources (cultural and institutional) that must be appropriated and in turn given meaning in the practical context of power and social relations (Somers, 1994: 78–9). Somers argues that England’s formal national law produced highly localized and multiple practices of rights and enforcement practices. The conversion of laws to rights was local and contingent in effect and always adapted to local circumstances as a consequence of England’s peculiar national hybrid legal infrastructure that conjoined national, county and local spheres. The English crown was able to achieve territorial-wide legal unification by forging institutional links with prefeudal public juridical units and local administrative centres. It was also able to construct a national legal sphere by incorporating into a single formal entity the pre-existing public legal and governing bodies, their political institutions and practices, resulting in an early national state that incorporated a majority of juridical and administrative units into a single entity without dismantling the original local bodies.
Public national institutions and local juries, the constabulary and the assizes (courts) mediated the relations between the crown and citizens. Political citizenship existed as a result of compulsory participation in local governance, administration and law. Social citizenship in the fourteenth century existed in a collection of national laws regulating labour relations and poor laws. The most significant feature of English welfare and industrial policies was that they were implemented through the normal channels and processes of government and law. For example, labour policies were implemented via the courts, which served as tribunals, while local justices and constables served as the administrative personnel to enforce regulations (Somers, 1993: 598; 1994: 77–8). The plasticity of England’s legal structure enabled the formulation of national laws, with enforcement arrangements relying on local personnel in communities. This argument is compatible with Marshall’s comments about a fusion between different types of rights before they became differentiated into his tripartite concept. Somers maintains that:
citizenship practices emerge from the articulation of national organizations and universal rules with the particularism and varying political cultures of local environments (types of civil society). … As such, citizenship practices are also a source of political identity – the translation of this identity into a rights-based positive citizenship identity depends entirely on the contexts of activation. (Somers, 1993: 589, emphasis in original)
Freedom and independence were conditional, not on freedom from the state, but on their rights as members of the English polity to make claims on the national state through local participation.
The tension that Somers identifies between the formal declaration and possession of rights and the conditions under which they can be mobilized or realized points to regional differences, thus suggesting that Marshall’s observations about England and citizenship are too imprecise. The realization of citizenship rights also varies in terms of other social characteristics and associated resources, including gender and race.
Gender and citizenship
The assumption that civil and political rights are equally available to all citizens to use in securing greater social rights ignores gender differences in access to the realization of those rights. Social services can be a right of citizenship, or their level and type may depend on labour-force participation, marital or family status, or financial need. Feminist theory and research highlight the subjugation of women in the private sphere of the family which, according to liberal political and legal theory, ought to be free of state interference. Discussions of civil rights and contractual arrangements enacted in the public sphere did not resonate with the marriage contract (Pateman, 1988: 154–88). Social rights to welfare resources reflect and constitute relations between men and women in terms of sexuality, marriage, fertility, parenthood and kinship. Rights to control one’s body and sexual person, as in marriage, consent to sexual activity and the control of fertility and reproduction, are contested issues for women. Relations of domination based on control of women’s bodies and sexuality in the family, the workplace and public spaces compromise women’s capacity to participate in the polity as citizens and affect their potential to assert and access social rights (Orloff, 1993: 309; 1996: 534; Shaver, 1990: 4–7).
Rather than having a universalistic or equal application, public social provision differentially affects women’s material situations and shapes gender relations. Much discussion on the welfare state adopts explicitly gender-neutral concepts, but the categories of worker, state-market relations, stratification, citizenship and decommodification imply a male-based referent, or ideal-type employee. The male worker often serves as the ideal-typical citizen in analyses of social rights, with commentators addressing those dimensions of state social provision that are most relevant for male wage earners, for example programmes that compensate workers for losses incurred in the paid labour market, such as old-age pensions and unemployment benefits (Orloff, 1993: 307–8). Welfare provision is often viewed as deriving from the state or markets without recognizing the importance of families and women’s unpaid work to the provision of social welfare. Women perform a disproportionate share of welfare work (which is often undervalued in terms of benefits and occupational status or credibility), whether it is provided by the state, private organizations, corporations or the family.
In many western systems of social provision, men’s claims are based on paid work, while most women’s claims derive from familial or marital roles, that is, on the basis of unpaid domestic and caring work and on their relationship to family members. In some countries, for example the USA, the social assistance programmes on which many single mothers rely are politically less legitimate, less generously funded and entail more surveillance than do contributory social insurance programmes on which most unemployed and retired wage-earning men rely (Orloff, 1993: 315). National differences and institutional arrangements shape the relationship between gender and welfare entitlements (Orloff, 1996: 64–8). For example, Australian welfare programmes are funded from general tax revenue, with entitlement independent of employment history. This noncontributory approach provides some women with a degree of financial and sexual independence not available under other social insurance schemes, where eligibility is attached to labour-market participation and benefits linked with labour-market performance. The shift in Australian social security over the past few decades has redefined the underlying basis of welfare assistance from a logic of gender difference to one of gender neutrality in the rules and conditions of entitlements (Bryson, 1995: 64–8; Shaver, 1990: 13; 1995: 143–5). However, this is also occurring at a time when the amounts and types of benefits available are in decline. In the USA, historical sources of gender bias linked to contributory social security benefits have declined, but race, class and marital-status disadvantages linked to noncontributory benefits remain. The gender gap in retired worker benefits persists as a result of gender differences in wages, female employees’ tendency to interrupt paid employment for unpaid domestic responsibilities, and the elimination of minimum benefit levels (Meyer, 1996: 462).
Orloff proposes expanding the concept of social rights to include an examination of family law and the legal frameworks and social programmes dealing with legal personhood and the control of one’s bodily capacities and functions. She suggests two new dimensions, namely access to paid work (affected by government employment policies) and the capacity to form and maintain an autonomous household. The state is woman friendly to the extent that it enhances women’s leverage within marriage or increases the standards of living of woman-maintained families (Orloff, 1993: 318–21). Ironically, in the former socialist regimes of eastern Europe, women enjoyed more social rights than did their western counterparts. With the reunification of Germany, the disintegration of the Soviet Union and the establishment of market economies and constitutional democracies, women’s rights to abortion and childcare, as well as their access to equal employment and political representation, have been severely curtailed (Ferree, 1994: 598; Rosenberg, 1991: 129; Ziélinska, 1993: 69–85).
Race and citizenship
Questions of race and citizenship have emerged in a number of contexts, many of which look to the law and legal institutions for remedies to effect social change. This section examines three such contexts: (i) institutionalized racism; (ii) hate crimes; and (iii) migration issues.
Institutionalized racism
The Stephen Lawrence Inquiry in the United Kingdom highlighted the pervasiveness of racism and racially motivated crime and documented the widespread distrust between police and minority ethnic communities (Bridges, 1999). A sudden, short, violent attack on an Afro-Caribbean man by a group of white youths in 1993 resulting in his death led to a public inquiry that concluded: ‘Stephen Lawrence’s murder was simply and solely and unequivocally motivated by racism’ (Macpherson, 1999: para 1.11). The police response and investigation were found to amount to institutional racism, defined by the inquiry as:
the collective failure of an organization to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can also be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people. (1999: para 6.34)
In a number of instances, indigenous peoples in Australia (and elsewhere) have sought redress for past wrongs in contemporary courts, with mixed results (Behrendt, 2004; Gale, 2005). The high point was the Mabo case (1992) in which the High Court agreed that the land rights of indigenous Australians were not nullified by British settlement and persisted where Aboriginal people and Torres Strait Islanders could demonstrate sufficient ties with the land. The litigants successfully drew on international law, in particular the concept of ‘terra nullius’, and the jurisprudence of other common-law countries to argue that Australia was not uninhabited or without law at the point of European settlement (Behrendt, 2004).
There has however been less success in regard to the ‘stolen generation’ litigation (Scott, 2004: 193–7). An analysis of two recent cases regarding indigenous legal claims for their compulsory removal from their families as children, state institutionalization and maltreatment shows the ways in which Eurocentric views and values permeate contemporary judicial reasoning (Marchetti and Ransley, 2005). In these cases the international law on genocide, as defined by the 1948 International Convention on the Prevention and Punishment of the Crime of Genocide, though argued by the litigants was not accepted. The High Court found no evidence supporting a conclusion that the removal of children policy amounted to an intention to destroy a racial group. Liberal legal formalism, legal doctrine and rules, Marchetti and Ransley argue, resulted in the evidence of indigenous witnesses being weighted less than that of non-indigenous witnesses and written not oral testimony being accorded relevance rendering indigenous witnesses less credible than their non-indigenous counterparts (2005: 549). The authors conclude: ‘The Australian legal system being never intended to encompass the narratives of Indigenous people and the fact that it continues to operate in a hegemonic manner supports the view that racism in Australian courts exists, particularly at an unconscious level’ (Marchetti and Ransley, 2005: 548).