Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Danse Macabre by Desmond Manderson

Danse Macabre: Temporalities of Law in the Visual Arts

Author(s): Desmond Manderson

The visual arts offer refreshing and novel resources through which to understand the representation, power, ideology and critique of law. This vibrantly interdisciplinary book brings the burgeoning field to a new maturity through extended close readings of major works by artists from Pieter Bruegel and Gustav Klimt to Gordon Bennett and Rafael Cauduro. At each point, the author puts these works of art into a complex dance with legal and social history, and with recent developments in legal and art theory. Manderson uses the idea of time and temporality as a focal point through which to explore how the work of art engages with and constitutes law and human lives. In the symmetries and asymmetries caused by the vibrating harmonic resonances of these triple forces - time, law, art - lies a way of not only understanding the world, but also transforming it.

Centre: CLAH

Research theme: Legal Theory

The Enchantment of the Long-haired Rat: A Rodent History of Australia

The Enchantment of the Long-haired Rat: A Rodent History of Australia

Author(s): Tim Bonyhady

The fascinating story of a much-maligned and little-understood native Australian rodent.

The long-haired rat breeds and spreads prodigiously after big rains. Its irruptions were plagues to European colonists, whofeared and loathed all rats, but times of feasting for Aboriginal people.

Tim Bonyhady explores the place of the long-haired rat in Aboriginal culture. He recounts how settler Australians responded to it, learned about it and, occasionally, came to recognise the wonder of it. And he reconstructs its changing,shrinking landscape—once filled with bilbies, letter-winged kites and inland taipans, but now increasingly the domain of feral cats.

An astonishing history, The Enchantment of the Long-haired Rat illuminates a species, a continent, its climate and its people like never before.

Centre: CLAH

Research theme: Indigenous Peoples and the Law

Law, Love and Freedom

Law, Love and Freedom: From the Sacred to the Secular

Author(s): Joshua Neoh

How does one lead a life of law, love, and freedom? This inquiry has very deep roots in the Judeo-Christian tradition. Indeed, the divergent answers to this inquiry mark the transition from Judeo to Christian. This book returns to those roots to trace the twists and turns that these ideas have taken as they move from the sacred to the secular. It relates our most important mode of social organization, law, to two of our most cherished values, love and freedom. In this book, Joshua Neoh sketches the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism). Law, Love, and Freedom brings together a diverse cast of characters, including Paul and Luther, Augustine and Aquinas, monks and Gnostics, and constitutionalists and anarchists. This book is valuable to any lawyers, philosophers, theologians and historians, who are interested in law as a humanistic discipline.

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Centre: CIPL, CLAH

Research theme: Law and Religion, Legal Theory

The Feminist Fandango with the Legal Academy

Author(s): Margaret Thornton

This chapter argues that the fortunes of feminism in the Australian legal academy are closely intertwined with the prevailing political ideology. Social liberalism, with its commitment to egalitarianism, a robust civil society and a modicum of tolerance for the Other coincided with the flowering of second wave feminism. This led to the appointment of feminist academics in law schools and the incorporation of feminist perspectives into their teaching. In contrast, neoliberalism, with its aggressive entrepreneurialism and promotion of the self, encouraged sloughing off a commitment to feminist values. Taking its cue from neoliberalism and reacting against the second wave, postfeminism initially also resulted in a depoliticisation and a turning away from collective action, but signs of a revived feminism caused neoliberalism to move in quickly and colonise it. Mirroring the values of neoliberalism, this incarnation of postfeminism, which one might term ‘neoliberal feminism’, encouraged entrepreneurialism and productivity, particularly on the part of upwardly mobile individual women. It also resonated with the neoliberal law school where students were anxious to secure a position on the corporate track in light of mounting tuition debts and increased competition. More recently, there has been a reaction against neoliberalism which has, once again, brought with it a revived incarnation of feminism and a progressive understanding of the ‘post’.

The fandango in the title carries with it not only the idea of different movements, but also variations in tempo, and even a change of partners. The metaphor is designed to encapsulate the character of the dance between the prevailing political ideology and feminism, and the way that it is reflected in the legal academy. The fandango also refers to the more fluid relationship between feminism and its ‘post’. With postfeminism, we see a constellation of performers, some moving backwards and others forward, often at the same time, which highlights its ambiguity and elusiveness. In adopting a temporal trajectory, this chapter seeks to problematise the ‘post’ in postfeminism, underscoring how it may be simultaneously both reactive and progressive according to the constellation of values that prevail at a particular moment in time.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Martyrdom, Antinomianism, and the Prioritising of Christians - Towards a Political Theology of Refugee Resettlement

Author(s): Matthew Zagor

This article considers the approaches taken in the United States (US) and Australia to prioritising the resettlement of Christians from Syria and Iraq. Focusing first upon respective models and the immediate political factors that lead to their adoption, it analyses in depth the specific role played by the evangelical constituency in the US, and their theologically-infused concern for the “persecuted church” in “enslaved” lands. Recognising this movement enjoys less influence in Australia, the article considers the ways in which Australia’s resettlement policies and political narratives have nonetheless increasingly participated in tropes familiar to classical antinomian political theology, not least that resettlement is tied to a redemptive generosity of the State that works to denigrate and undermine the legal obligations demanded by those who arrive irregularly by boat. The article also critiques the use of “vulnerability” as a touchstone principle for the fair allocation of scarce resettlement places, and its propensity to be used for cherry-picking purposes. Finally, as part of the argument that resettlement is susceptible to being used as a vehicle for those motivated by more explicit theological concerns, the article explores the leveraging for political, redemptive, and eschatological purposes of images and narratives of the “martyred” middle-eastern Christian.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Towards the Uberisation of Legal Practice

Author(s): Margaret Thornton

Uber and Airbnb signify new ways of working and doing business by facilitating direct access to providers through new digitalised platforms. The gig economy is also beginning to percolate into legal practice through what is colloquially known as NewLaw. Eschewing plush offices, permanent staff and the rigidity of time billing, NewLaw offers cheaper services to clients to compete more effectively with traditional law firms. For individual lawyers, autonomy, flexibility, a balanced life, well-being and even happiness are the claimed benefits. The downside appears that NewLaw favours senior and experienced lawyers while disproportionately affecting recent graduates. This article draws on interviews with lawyers in Australian and English NewLaw firms to evaluate the pros and cons of NewLaw.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Visual: Representations, Technologies, and Critique

Law and the Visual: Representations, Technologies, and Critique

Editor(s): Desmond Manderson

In Law and the Visual, leading legal theorists, art historians, and critics come together to present new work examining the intersection between legal and visual discourses. Proceeding chronologically, the volume offers leading analyses of the juncture between legal and visual culture as witnessed from the fifteenth to the twenty-first centuries. Editor Desmond Manderson provides a contextual introduction that draws out and articulates three central themes: visual representations of the law, visual technologies in the law, and aesthetic critiques of law. A ground breaking contribution to an increasingly vibrant field of inquiry, Law and the Visual will inform the debate on the relationship between legal and visual culture for years to come.

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Centre: CLAH

Research theme: Law and Gender, Law and Psychology, Law and Religion

Here and Now: From Aestheticizing Politics to Politicizing Art

Author(s): Desmond Manderson

The nation is not a natural construction. It is mediated through representations and particularly through representations with a sensory component. Images therefore are primary means through which a collection identity is established. They serve to constitute myths of belonging; to distinguish friend from enemy, as Schmitt put it. They tell stories; they create models and examples that frame our social existence. But they also generate the icons and symbols whose repetition and familiarity - flags, monuments, even colour combinations - etch habits of feeling and mental associations deep into our psyche.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Oral History, Gender and Law

Author(s): Kim Rubenstein

This article considers the relationship between law and gender by sharing information about an oral history project analysing the experience of women lawyers in the public, civic space and women’s experience of lawyering in Australia and of Australian lawyers working in the international context.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Oral History, Gender and Law

Author(s): Kim Rubenstein

This article considers the relationship between law and gender by sharing information about an oral history project analysing the experience of women lawyers in the public, civic space and women’s experience of lawyering in Australia and of Australian lawyers working in the international context.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Power, Control and Citizenship: The Uluru Statement from the Heart as Active Citizenship

Author(s): Kim Rubenstein

Who governs and how they govern is central to the questions of power, control and citizenship that are at the core of a democratic society. The Uluru Statement from the Heart is the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. There the First Peoples from across the country formed a consensus position on the form constitutional recognition should take. This article argues that the Uluru Statement from the Heart affirms a commitment to ‘active citizenship’ that draws from a belief in the equal power of the governors and the governed. This understanding of the Uluru Statement from the Heart enables it to be promoted as a document for all Australians, both in the spirit of reconciliation and in its affirmation of a commitment to an equality underpinning Australian citizenship in the 21st century. By examining how citizenship in Australia has evolved as a legal concept and by reflecting on how law is a fundamental tool for providing a ‘meaningful limitation of the lawgiver’s power in favour of the agency of the legal subject’, this article examines the Uluru Statement from the Heart as a commitment to the importance of recognising the nature of the proper relationship between the law giver and those subject to the law — the citizenry. To exercise power within a democratic framework, as opposed to brute force or sheer will over the subject, involves recognising the agency of the citizenry. This idea not only enables reconciliation to be a meaningful and restorative act but one that recalibrates the exercise of power in Australia to benefit all Australians by affirming a commitment to all Australians equal citizenship as active agents.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Social Status: The Last Bastion of Discrimination

Author(s): Margaret Thornton

Despite the increasing inequality between rich and poor, there is resistance towards proscribing discrimination on the basis of socioeconomic status. This resistance is marked in Anglophone countries, namely, Australia, New Zealand, Canada, the UK, the US and South Africa, countries that are located in the high inequality/low mobility extreme in terms of socioeconomic status. This article argues that the resistance is associated with the embrace of neoliberalism, a political value system that extols the free market, individualism and profit maximisation. The commitment to competition policy necessarily produces inequality in contradistinction to equality, which informs the philosophical underpinnings of anti-discrimination legislation. Even in the comparatively few jurisdictions where legislation on the basis of social status or a cognate attribute exists, the legislative model is restrictive and the number of complaints minuscule. Most notably, an overview of the Anglophone countries reveals that there is a dearth of complaints involving national and multinational corporations, the primary wealth creators of the neoliberal state that are also major employers. Although employment generally gives rise to the preponderance of discrimination complaints on grounds such as race and sex, it is suggested that the resistance to social status discrimination serves to protect private corporations from scrutiny.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Blindness Visible: Law, Time and Bruegel's Justice

Author(s): Desmond Manderson

Printed in 1559, Bruegel's 'Justicia' appears at first glance to be a spatial representation of law—a snapshot, a mis en scène. But it is essentially about time. Bruegel's image overlays three different perspectives on the hitherto unexplored relationship between time, responsibility, and legal authority, revealing the hidden anachronism of law. At the same time, law is shown not merely to be a concept or a symbolic form, but a physical practice engraved in the flesh of those who carry it out and suffer it. Justicia takes as its method art's anachronic discourse and power of embodiment; and presents as its thesis the role of anachronic discourse and corporeal experience to the law. These insights were pertinent to the situation of law in the sixteenth century, but they are of far broader significance than that.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

How the Higher Education 'Industry' Shapes the Discipline of Law

Author(s): Margaret Thornton

This article argues that a constellation of factors combine to encourage law graduates to pursue a career in corporate law at the expense of alternative destinations. Most notable are the increasingly high tuition fees law students are charged, but the respective roles of government, the admitting authorities, law schools and the profession cannot be discounted. Each change in policy renders resistance more difficult. The proposed higher education changes contained in the 2017 Australian Federal Budget are exemplary. As it is already assumed that law can be offered cheaply while charging high fees, the Budget cuts could induce universities to increase the number of law students as well as the cost of discretionary law degrees, such as the Juris Doctor. This would not only increase competition for law-related jobs in the labour market, but it would also effect a more vocational orientation to the law curriculum.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Challenging the Legal Profession A Century On: The Case of Edith Haynes

Author(s): Margaret Thornton

This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Court Records As Archives: The Need for Law Reform to Ensure Access

Author(s): Andrew Henderson, Kim Rubenstein

The Federal Court of Australia performs a fundamentally important role within Australia’s democratic system. It has served as a site for the disputation, negotiation and resolution of issues fundamentally important to Australian society. It does so in the context of a constitutional system affirming the principle of separation of powers and the rule of law, as a means of preserving and enforcing the rights of individuals and navigating the boundaries of the powers of the state. In that context, its records, gathered both through the internal workings of the court and through the cases that come before it, contain a narrative shaping our contemporary understanding of the rights of the individual and the role of the state. Despite the importance of its records in that narrative, the preservation and access to the Federal Court’s records continues to be seen through the lens of traditional understandings of the management of litigation. This paper explores the Federal Court’s role within the broader context of constructing our understanding of the roles and responsibilities of citizenship and illustrates the importance of the Court’s records as an archival resource. In doing so, it highlights the parallels and inconsistencies between traditional archival institutions and the Court in relation to selection, preservation and access to records.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal Education, Legal History and Ethnology, Migration and Movement of Peoples, The Legal Profession

Law Student Wellbeing: A Neoliberal Conundrum

Author(s): Margaret Thornton

The discourse around student wellness is a marked feature of the 21st century Australian legal academy. It has resulted in various initiatives on the part of law schools, including the development of a national forum. The phenomenon relates to psychological distress experienced by students ascertained through surveys they themselves have completed. Proposed remedies tend to focus on improving the law school pedagogical experience. This article argues that the neoliberalisation of higher education is invariably overlooked in the literature as a primary cause of stress, even though it is responsible for the high fees, large classes and an increasingly competitive job market. The ratcheting up of fees places pressure on students to vie with one another for highly remunerated employment in the corporate world. In this way, law graduates productively serve the new knowledge economy and the individualisation of their psychological distress effectively deflects attention away from the neoliberal agenda.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Squeezing the Life Out of Lawyers: Legal Practice in the Market Embrace

Author(s): Margaret Thornton

Neoliberalism is the dominant ideology of our time and shows no sign of abating. The undue deference accorded the economy and capital accumulation means that comparatively little attention is paid to the pressures this involves for workers. Although conventionally viewed as privileged professionals, lawyers in corporate law firms have been profoundly affected by the neoliberal turn as firms have expanded from local to national, to global entities, with the aim of maximising profits and making themselves competitive on the world stage. Although corporate clients may be located in a different hemisphere they still expect 24/7 availability of lawyers in contrast to what they normally expect of other professionals, such as accountants. A corollary of global competition is the ratcheting up of billable hours, which has engendered stress and depression. The pressure for firms to be more productive has resulted in increased levels of incivility, including bullying. Despite a plethora of reports attesting to the deleterious effects of stress, scant attention is paid to the neoliberalisation of legal practice. This article argues that the tendency to individualise and pathologise the adverse effects of stress and uncivil behaviours deflects attention away from the political factors that animate them.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Adventures in the Grey Zone: Constitutionalism, Rights and the Review of Executive Power in the Migration Context

Author(s): Matthew Zagor

The physical and legal isolation of the irregularly arriving non-citizen in Australia is a product of various legal strategies, from legislation mandating detention to the experimental 'excision' of parts of the country from the operation of statute and the scrutiny of the courts. Australia's innovative use of legislation to carve out spaces within which an unencumbered sovereign executive power can expand has unsurprisingly seen commentators turn to cosmological metaphors. This chapter builds upon David Dyzhenhaus' nuanced description of these spaces as 'grey holes' where the impression of legality is created by legislative and judicial endorsement of strategies which exclude meaningful judicial review of executive conduct. By reference to five recent cases in which these strategies were challenged, it explores the curious attempt to use the law in order to suspend the law, the changeable role of the judiciary in both consolidating and piercing these legislatively carved exclusionary zones, and the muscular anti-dialogic reassertion of legislative dominance that invariably accompanies perceived judicial interference. The chapter's principal aim is to use these case studies to map out the current state of both constitutional doctrine and institutional relations with respect to the rights of non-citizens in the exercise of executive power in Australia. It contrasts the notorious rights reluctance of the Australian political system and its culture of deference and trust in the executive with the impressive architecture of administrative justice developed over the past three decades, and considers the tension that surrounds contemporary appeals to 'sovereignty' as source of power, as well as the contentious role played by traditional legalism as both a shield and a sword in the court's juridical arsenal for scrutinizing rights-precluding executive conduct.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

The Mirage of Merit: Reconstituting the 'Ideal Academic'

Author(s): Margaret Thornton

This paper takes a hard look at merit and the ideal academic, twin concepts that have been accorded short shrift by the scholarly literature. For the most authoritative positions, the ideal displays all the hallmarks of Benchmark Man. Despite the ostensible 'feminisation' of the academy, the liberal myth that merit is stable, objective and calculable lingers on. As a counterpoint to the feminisation thesis, it is argued that a remasculinisation of the academy is occurring as a result of the transformation of higher education wrought by the new knowledge economy. In response, the ideal academic has become a 'technopreneur' – a scientific researcher with business acumen who produces academic capitalism. This new ideal academic evinces a distinctly masculinist hue in contrast to the less-than-ideal academic – the humanities or social science teacher with large classes, who is more likely to be both casualised and feminised.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

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