The 1992 Mabo v Queensland (No 2) decision marked a watershed in Australian legal history, as the High Court formally rejected the doctrine of terra nullius and acknowledged the existence of native title. But legal revolutions are rarely what they seem. This article argues that the recognition of native title in Mabo and its reaffirmation in Yunupingu v Commonwealth (2023) exemplify Pierre Bourdieu’s notion of the juridical field as a space of symbolic power, where recognition operates through misrecognition, and legal change functions to preserve more profound continuities. Rather than view these cases as ruptures, we should read them as legal adaptations to shifting external pressures, filtered through the internal logic of the field. The law’s symbolic capital depends on its ability to appear autonomous and rational, even as it embeds colonial structures of domination. Native title law illustrates how the juridical field absorbs critique without transforming its epistemological foundations.
Bourdieu’s Juridical Field
In “The Force of Law: Toward a Sociology of the Juridical Field,” Bourdieu reconceptualises law not as an objective or neutral system, but as a field governed by its logic, rules of entry, and forms of capital. Legal actors are shaped by a shared habitus and a belief in the field’s autonomy—what Bourdieu calls illusio. They compete to produce legal interpretations that are admissible within this space, where legitimacy depends not on truth but on conformity to accepted forms of legal reasoning.
This field is not closed to external forces, but its adaptability is internalised through symbolic reinterpretation. When Indigenous claims enter this space, they are reframed through its categories, languages, and logics. What emerges as recognition is, in fact, a strategic accommodation that leaves core structures intact.
Crucially, Bourdieu insists that law must be historicised. Legal norms do not emerge in a vacuum; they are the contingent outcomes of social and political struggles, subsequently presented as neutral doctrine. The juridical field’s relative autonomy allows it to mask its political character. As norms evolve, legal actors reinterpret precedent to maintain internal coherence—what Bourdieu describes as the “historicisation of the norm.”
This conceptual lens reframes the Mabo and Yunupingu decisions. What appears as progress is, in fact, a recalibration of symbolic power: a way to incorporate new claims while preserving the architecture of settler sovereignty.
Native Title as Symbolic Violence
Legal recognition, when analysed through Bourdieu’s theory, functions as a form of symbolic violence. Native title is a prime example: a legal mechanism that purports to acknowledge Indigenous rights while reinforcing colonial categories of land and property. Recognition is granted only when claims are refracted through the logic of common law—continuity, exclusivity, and adherence to legal norms established by the coloniser.
This process imposes epistemic violence. Indigenous relationships to Country—rooted in ontologies irreducible to Western property law—are forced into a framework that distorts or renders them null. Misrecognition becomes the price of recognition. The symbolic capital of the legal field lies precisely in its ability to universalise its categories as neutral, despite their historical and cultural specificity.
The illusio of the legal field—the shared belief that law is a legitimate and autonomous site of justice—conceals this violence. Recognition appears as a gift, rather than a demand for translation and transformation. As a result, native title law often produces a loss in the guise of a remedy.
Here, Bourdieu’s account of symbolic power is vital: the effectiveness of law depends on its appearance as neutral. The legal field’s power lies not only in what it excludes, but in what it transforms—recasting ontological claims into procedural ones, and depoliticising struggles for sovereignty into technical questions of title.
Case Studies: Mabo and Yunupingu
Mabo v Queensland (No 2) is often lauded for overturning the doctrine of terra nullius. Yet it left intact the foundations of Crown sovereignty and the doctrine of tenure. Native title was recognised not as a disruption of Australian law, but as a supplement to it, valid only where it conformed to existing legal categories. Justice Brennan’s judgment framed this shift as aligning Australian law with morality, but Bourdieu shows us this was a re-legitimation, not a rupture.
The decision followed sustained Indigenous activism, international critique, and changing public sentiment. These pressures compelled the legal field to act. But its action was conditioned by the field’s internal logic: native title was defined in terms legible to the common law, making recognition dependent on evidentiary continuity, exclusivity, and non-extinguishment.
Similarly, Yunupingu v Commonwealth (2023) affirmed that the Commonwealth’s extinguishment of native title without compensation violated constitutional protections. The Full Court rejected earlier doctrines that denied the proprietary nature of native title and held that “just terms” were required under s 51(xxxi). This appeared progressive. Yet, the judgment still required the Gumatj people to frame their dispossession in the language of constitutional property rights. The recognition of harm occurred only within a framework that affirmed Crown title and assumed settler sovereignty.
Both cases illustrate the historicisation of norms and the reproduction of legal illusio. Legal actors responded to shifting political and social pressures by reaffirming the field’s internal logic—the result: structural continuity masquerading as doctrinal evolution.
Notably, neither case allowed Indigenous law to stand on its terms. Instead, it was refashioned to appear as progress without undermining the epistemic foundations of settler law. The field thus translated critique into a stabilising force, absorbing challenges while reinforcing the legitimacy of its terms.
Conclusion
The juridical field, as theorised by Bourdieu, helps us grasp why native title law in Australia, despite moments of apparent progress, continues to serve the settler-colonial order. The symbolic violence of recognition lies in its capacity to incorporate without disrupting; to validate claims only by refashioning them into acceptable legal form.
Mabo and Yunupingu reflect the field’s capacity for adaptation. But the field’s logic remains intact: legal recognition is granted only when Indigenous sovereignty is depoliticised and reformulated through the terms of Crown law. Until the epistemic terms of the juridical field are reimagined, native title will continue to serve as a mode of containment, rather than a path to decolonial justice.
Reimagining legal recognition necessitates a critical examination of the field itself. It requires us to see that the law is not simply slow to change—it is structured to preserve the status quo. And in this preservation lies the endurance of colonial power, masked by the language of legal progress.
If Bourdieu shows us anything, it is that the field will not undo itself. Disruption must come from elsewhere—through epistemic disobedience, collective resistance, and the refusal to play by the field’s rules. The future of justice for Indigenous peoples depends not on further recognition but on the dismantling of the terms under which recognition is offered.
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