Magna Carta and Me Part 3 of 10: Law vs Lore – Sovereignty, Accountability and Justice Before 1788

In the telling of Australia’s legal history, 1215 and the sealing of the Magna Carta is often cited as the birth of the rule of law. But this narrative, while central to British constitutional evolution, misrepresents the truth of these lands. Long before European ships sailed into Botany Bay, First Nations peoples across the continent lived under systems of justice, responsibility, and restraint that had been maintained for millennia.

These systems are often referred to collectively as Lore. And herein lies a critical distinction. While the British brought Law—written, codified, and enforced through colonial institutions—Aboriginal peoples already lived within the bounds of Lore—oral, spiritual, intergenerational and inseparable from Country.

This article is not merely a reflection on Magna Carta’s historical influence. It is a proposition: that Lore constituted a complete and sovereign legal system. Not a primitive precursor to Western law, but a fully-formed jurisprudence whose authority and legitimacy continue today, despite centuries of legal erasure.

What Is Lore?

Lore is often mischaracterised as ‘custom’ or ‘tradition’. These are inadequate colonial frames. Lore is law. It is spiritual, ceremonial, environmental and relational. It tells people how to live, how to govern themselves, and how to interact with all living things. It governs marriage, resource sharing, conflict resolution, and the conduct of leaders.

Unlike Western law, which is often imposed from above and administered through courts, Lore emerges from Country and is passed down through language, story, and ceremony. It is binding, enforceable, and its breach carries consequences—social, spiritual and communal.

LORE is not only a guide for personal behaviour, but a legal code that maintains order, ensures justice, and sustains balance. It cannot be amended by individuals or institutions. Its authority comes not from a king, a parliament or a constitution, but from the Dreaming—the ancestral creation narratives that encode moral law into the land itself.

Law vs Lore: Contrasts in Foundation and Function

Feature	Western Law (Post-1215)	Aboriginal Lore
Origin	Crown/Parliament, formal institutions	Dreaming, Country, Ancestors
Format	Written statutes, judicial precedent	Oral transmission, songlines, ceremonial law
Enforcement	Courts, police, hierarchical punishment	Elders, community, ceremonial sanction
Ownership	State monopoly	Communally held and passed through kinship
Purpose	Regulate society, maintain civil order	Sustain balance, restore harmony, uphold respect
Adaptability	Amended by vote, judicial interpretation	Evolved through ceremony and law-keeping roles

Where Law is adversarial, often punitive, and based on individual rights, Lore is communal, restorative, and emphasises responsibilities. Where Law often privileges the written record, Lore preserves truth through oral knowledge, with obligations on those who receive and transmit it.

In Western law, disputes are resolved through judgment; in Aboriginal Lore, through restoration—a return to relational and ecological balance.

Lore as Sovereign Legal System

The Magna Carta introduced the revolutionary idea that the king was not above the law. But in Aboriginal societies, no person—no Elder, no warrior, no custodian—was ever above Lore. Power was distributed and conditional. Authority had to be earned through responsibility, age, and ceremonial progression. And even those with knowledge could be held to account by the community and its Elders.

Magna Carta and Me Part 3 of 10: Law vs Lore – Sovereignty, Accountability and Justice Before 1788

There was no king to rebel against, no need for a charter to limit executive abuse. Lore was already the ultimate authority.

As such, Lore should not be viewed as a form of proto-law awaiting codification. It is law. It regulated every dimension of life and still does in many communities today. It is living law, despite settler law’s historic refusal to recognise it.

The Impact of Invasion

With colonisation came the violent imposition of foreign Law and the deliberate displacement of Lore. British legal doctrine claimed terra nullius—land belonging to no one—and dismissed Indigenous law as irrelevant.

Yet as the High Court finally recognised in Mabo v Queensland (No 2) (1992), Aboriginal and Torres Strait Islander laws and customs survived colonisation. Native title rests not on Western property concepts but on continued recognition of Lore and cultural connection to land.

This was more than a legal victory—it was an acknowledgment that Aboriginal law never ceded. That justice did not arrive in 1788—it was already here.

Why This Matters in Employment and Human Rights Advocacy

In today’s workplace disputes, the tension between Law and Lore is not abstract. As an advocate, I see clients subjected to rigid procedures that fail to account for cultural obligations, kinship ties, or collective identity. I see policy frameworks built on procedural fairness that ignore the deeper, restorative justice found in First Nations approaches to conflict.

Understanding Lore challenges us to rethink what justice looks like. It invites a system that listens before judging, restores before punishing, and respects before regulating. These are not quaint alternatives—they are sovereign, ancient practices that have worked for tens of thousands of years.

In the realm of human rights, Lore also provides a counter-narrative. While international instruments emphasise rights, Aboriginal Lore emphasises responsibilities—to land, community, and future generations. It is a holistic, integrated system of values and consequences.

Final Proposition

We do not need to search for an Aboriginal Magna Carta. The concept is redundant.

Aboriginal nations already had systems of justice that demanded accountability, governed conduct, and constrained power. Lore is not law’s cousin—it is law’s older sibling.

The question for modern Australia is not whether Lore fits within our legal system, but whether our legal system is mature enough to recognise Lore on its own terms—as equal, sovereign, and enduring.

Do you think Lore should be recognised on its own terms?

• Yes
• No

Written by Brian AJ Newman

Descendant of the Anaiwan, Ngarigo and Wiradjuri Peoples

Employment and Human Rights Advocate

Read more on this series at www.bajn.au

Next in the series: Part 4 – The Rule of Law: From Magna Carta to Modern Workplace Justice in Australia