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.

Between the Positivism of the Old and the Nihilism of the Young: Justice and the Novel in DH Lawrence

Author(s): Desmond Manderson

A reactionary political ideology appears to contaminate much of Lawrence's post-war writing particularly in the three so-called 'leadership novels' from the 1920s: Aaron's Rod, Kangaroo, and The Plumed Serpent. In keeping with recent scholarly approaches, I think Kangaroo deserves better. Written in 1922 while Lawrence was on a brief visit to Australia, in the very heat of post-war despair and the romantic turn from modernity it engendered, Kangaroo responds directly to the disorientation of the Great War and its implications for art and politics. Lawrence's conception that writing is a way of learning through imaginative experience and not a mere report on what one knows, is central to his vision of literature, of relationships, and, indeed, of justice - a vision he explicitly articulated in a quite prodigious body of writing on the nature and value of 'the novel', written at the same time. Here is a particular lesson for the law; another forum in which our convictions and our dogmatism are often in play and must be checked by listening hard - reluctantly even - to the particular contexts and experiences that confront us. The willingness to check and adjust our convictions where most they are felt is a hard ask, but it is what distinguishes good writing from bad: and good judges from bad. 'Trial and error' is not an insult. It is the difficult challenge of modernist literature and the difficult virtue of the rule of law. Lawrence's experience of and reflections on literature are in this respect emblematic of a third way - between what Leo Strauss, writing about the crisis of modernity in the wake of the first world war, called 'the nihilism of the young and the positivism of the old.'

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Crocodile Tears: The Intervention and the Obligation to Consult

Author(s): Desmond Manderson

This paper evaluates recent legislation which extends the paternalistic policies in relation to indigenous affairs inaugurated at the time of the Northern Territory Intervention in 2007. The paper analyses the national and international legal obligations to consult indigenous people in relation to these laws and argues that the obligations have not been carried out in good faith and amount to a serious distortion and undermining of those obligations which will impact for generations on relations with aboriginal people in Australia.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Modernism, Polarity, and the Rule of Law

Author(s): Desmond Manderson

In this paper I use the history of modernism at the end of the first world war to cast new light on current debates in the rule of law. I argue that ideas of polarity and discord, eg in the work of DH Lawrence, enrich the debate between positivist and romantic theories of the rule of law. The history of modernism both clarifies those debates and shows us a third path between the impoverished alternatives that continue to bedevil debates in this area. Understanding the rule of law through the lens of modernism, and in particular through the language of polarity, disturbs the hegemonic reason of positivism and the hegemonic unreason of romanticism alike. Polarity’s backwards-and-forwards movement of constant correction, adjustment, and metamorphosis cannot resolve the opposition between general rules and specific circumstances, between narrative’s attention to uniqueness and difference and the public demand for an articulated and defensible interpretation of existing principles; instead, both sides remain continually in play. The imperfectability of justice turns the rule of law into an endless process of reassessment and learning. The irreducible tension of polarity or contradiction generates a public process of call and answer, in which our opinions are constantly amended and tested against the challenge of the voices of others. Against positivists’ assertion of law’s perfection and the romantics’ of its perfectibility - the former a claim of purity centered on the past and the second a dream of it focused on the future - the current approach seeks to find in the critique of modernity a way to understand the rule of law while fully embracing our present imperfection, our fragmentation, and the imperfection and fragmentation of justice with us. My argument has been for us to learn to accept and build on these qualities of the human condition, with which modernism was so absorbed, rather than to fear or deny them. Indeed, an awareness that lack lies at the heart of the human condition implies an abiding humility about our human capacities with specific relevance to the claims that institutions might make. In the wake of the first World Ware, modernist art and literature in particular seems to have striven to achieve greater understanding not by maintaining its closure, determinacy, or authority - but by undermining it. That is a trick that the rule of law might do well to emulate.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Modernism, Polarity, and the Rule of Law

Author(s): Desmond Manderson

In this paper I use the history of modernism at the end of the first world war to cast new light on current debates in the rule of law. I argue that ideas of polarity and discord, eg in the work of DH Lawrence, enrich the debate between positivist and romantic theories of the rule of law. The history of modernism both clarifies those debates and shows us a third path between the impoverished alternatives that continue to bedevil debates in this area. Understanding the rule of law through the lens of modernism, and in particular through the language of polarity, disturbs the hegemonic reason of positivism and the hegemonic unreason of romanticism alike. Polarity’s backwards-and-forwards movement of constant correction, adjustment, and metamorphosis cannot resolve the opposition between general rules and specific circumstances, between narrative’s attention to uniqueness and difference and the public demand for an articulated and defensible interpretation of existing principles; instead, both sides remain continually in play. The imperfectability of justice turns the rule of law into an endless process of reassessment and learning. The irreducible tension of polarity or contradiction generates a public process of call and answer, in which our opinions are constantly amended and tested against the challenge of the voices of others. Against positivists’ assertion of law’s perfection and the romantics’ of its perfectibility - the former a claim of purity centered on the past and the second a dream of it focused on the future - the current approach seeks to find in the critique of modernity a way to understand the rule of law while fully embracing our present imperfection, our fragmentation, and the imperfection and fragmentation of justice with us. My argument has been for us to learn to accept and build on these qualities of the human condition, with which modernism was so absorbed, rather than to fear or deny them. Indeed, an awareness that lack lies at the heart of the human condition implies an abiding humility about our human capacities with specific relevance to the claims that institutions might make. In the wake of the first World Ware, modernist art and literature in particular seems to have striven to achieve greater understanding not by maintaining its closure, determinacy, or authority - but by undermining it. That is a trick that the rule of law might do well to emulate.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Book cover

Kangaroo Courts and the Rule of Law - the Legacy of Modernism

Author(s): Desmond Manderson

Kangaroo Courts and the Rule of Law -The Legacy of Modernism addresses the legacy of contemporary critiques of language for the concept of the rule of law. Between those who care about the rule of law and those who are interested in contemporary legal theory, there has been a dialogue of the deaf, which cannot continue. Starting from the position that contemporary critiques of linguistic meaning and legal certainty are too important to be dismissed, Desmond Manderson takes up the political and intellectual challenge they pose. Can the rule of law be re-configured in light of the critical turn of the past several years in legal theory, rather than being steadfastly opposed to it? Pursuing a reflection upon the relationship between law and the humanities, the book stages an encounter between the influential theoretical work of Jacques Derrida and MIkhail Bakhtin, and D.H. Lawrence's strange and misunderstood novel Kangaroo (1923).

Order your copy online

Centre: CLAH

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Social Justice, Law, Governance and Development, Legal Theory

Citizenship and the Boundaries of the Constitution

Author(s): Kim Rubenstein

Citizenship is a prime site for comparison between different constitutional systems, for the idea of citizenship, and the ideals it is taken to represent, go to the heart of how states are constituted and defined. Who is governed by the constitution? What are the boundaries of the constitution? The definition of the class of 'citizens' of a state and the identification of their rights, privileges and responsibilities is one way to answer these questions, and is a core function of national constitutions and a central concern of public law. In this chapter, we consider several written constitutions and attempt to convey some of the diversity in constitutional approaches to this fundamental and universal project for nation states.

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

An Inconstant Affair: Feminism and the Legal Academy

Author(s): Margaret Thornton

Drawing on the Australian experience, this chapter shows how the fortunes of feminist legal theory (FLT) are closely imbricated with those of the state. The trajectory of the discomfiting liaison between feminism and the legal academy is traced over three decades to highlight the contingent nature of FLT, particularly the sensitivity to the prevailing political climate in which the pendulum swing from social liberalism to neoliberalism induces uncertainty and instability. It will be shown that under social liberalism, FLT received a modicum of acceptance within the legal academy but began to contract and then wither with the onset of neoliberalism. This has not only been disastrous for FLT, but it has also subtly brought about a remasculinisation of the academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Recognition and Narrative Identities: The Legal Creation, Alienation and Liberation of the Refugee

Author(s): Matthew Zagor

That a refugee often has a transformative experience in their encounter with a status determination regime is uncontentious. The practical need for legal recognition of a pre-existing status for the purpose of protection marries with a very personal need for recognition of one’s experience. The granting or withholding of either type of recognition has consequences for the various identities created in the process. Both depend upon the story told, and the manner of its reception.

This paper arose initially out of my own anecdotal experience as a legal representative for refugees over many years. It found its genesis in reflections on the role I played in helping shape the story that would be told to administrative decisions makers by my clients, and my growing concern that I was complicit in a process of legal institutionalisation, distortion and even alienation of something ‘authentic’ in the refugee experience and identity. As will become apparent, I am no longer so damning of my role and that of my fellow lawyers and decision-makers, or indeed of the ‘regulative discourse’ imposed by refugee law itself. The refugee has more agency than perhaps appears at first blush. I am also more questioning of my own original assumptions about authenticity, categorisation and recognition.

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

'I am the Law'! – Perspectives of Legality and Illegality in the Israeli Army

Author(s): Matthew Zagor

The language of morality and legality infuses every aspect of the Middle East conflict. From repeated assertions by officials that Israel has "the most moral army in the world" to justifications for specific military tactics and operations by reference to self-defence and proportionality, the public rhetoric is one of legal right and moral obligation. Less often heard are the voices of those on the ground whose daily experience is lived within the legal quagmire portrayed by their leaders in such uncompromising terms. This Article explores the opaque normative boundaries surrounding the actions of a specific group within the Israeli military, soldiers returning from duty in Hebron in the Occupied Palestinian Territories. By examining interviews with these soldiers by an Israeli NGO, it identifies different narratives of legality and illegality which inform their conduct, contrasting their failure to adhere to conventional legal discourses with the broader "legalisation" of military activities. Seeking an explanation for this disjunction, it explores the ways in which the soldiers' stories nonetheless reflect attempts to negotiate various normative and legal realities. It places these within the legal landscape of the Occupied Palestinian Territories which has been normatively re-imagined by various forces in Israeli society, from the judicially-endorsed discourse of deterrence manifested in the day-to-day practices of brutality, intimidation and "demonstrating power", to the growing influence of nationalist-religious interpretations of self-defence and the misuse of post-modernist theory by the military establishment to "smooth out" the moral and legal urban architectures of occupation. The Article concludes by considering the hope for change evident in the very act of soldiers telling ethically-oriented stories about their selves, and in the existence of a movement willing to provide the space for such reflections in an attempt to confront Israeli society with the day-to-day experiences of the soldier in the Occupied Palestinian Territories.

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

Book Review: Michael Kirby: Paradoxes and Principles

Author(s): Kim Rubenstein

Janet Malcolm, in her brilliant rumination on the problem of biography in The Silent Woman: Sylvia Plath and Ted Hughes, writes:

… the narratives called biographies pale and shrink in the face of the disorderly actuality that is a life. … The goal is to make a space where a few ideas and images and feelings may be so arranged that a reader will want to linger awhile among them, rather than to flee…

A desire to linger awhile is certainly my reaction to reading and enjoying this fulsome account of the first 70 years of Michael Kirby’s life (drawing on over 117 metres of personal records held by the National Archives of Australia, extensive speeches and other papers prepared by the subject, not to mention his court judgments). Brown also skilfully makes space for a few central images and feelings to assist one’s progress through this extensive and absorbing book. The opening image shared with the reader is of the Khyber Pass, where Kirby was travelling for the second time with partner Johan van Vloten. It is 17 December 1973 and ‘This time, at least, there were no guns’. Three and a half years earlier, Afridi tribesmen ‘brandishing rifles’ asked if he was British and ‘the young Australian traveller answered yes’.

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

Elementary Considerations of Humanity

Author(s): Matthew Zagor

International law has long been infused with a vague commitment towards an indeterminate notion of humanity. An examination of humanity as a specific normative idea in the historical discourse of international law provides a platform for better understanding the rhetorical and substantive meaning of ‘elementary considerations of humanity’ in the seminal Corfu Channel case, as well as Judge Alverez’s use of the more affective (and perhaps honest) term ‘sentiments of humanity’ in his separate opinion. With the Court otherwise silent as to the content, scope and status of the principle, such background informs the judicial attitudinal stance taken towards this apparently ‘self-evident’ principle, as well as the values which the Court and other international tribunals would subsequently bring to their norm creation and enforcement roles, not least with respect to general principles as a source of law. Drawing upon the work of Koskenniemi and the analyses of the Martens clause by scholars such as Meron and Cassese, the chapter places particular emphasis on the political, normative and empathetic potential of the term, and its inherent relationship to a foundational, essentialist and idealistic notion of humanity which continues to gain strength in the discipline.

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

An Unbounded Duty of Care

Author(s): Desmond Manderson

This chapter explores the relationship of Levinas to Law with specific relationship to ideas of responsibility and proximity in the duty of care.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Mikhail Bakhtin and the Field of Law and Literature

Author(s): Desmond Manderson

This essay takes as its focus the work of Mikhail Bakhtin, a leading literary theorist who has, to date, received relatively little attention in the field of law and literature. Central themes in the work of Bakhtin include the dialogic quality of the novel and its ethical implications, its commitment to singularity and context, its comprehensive critique of authority and, tying all of these features together, the importance of form and style to our understanding of the experience of literature. These themes all pay attention less to the subject-matter or content of particular works of literature than to its historical trajectory, its distinctive characteristics, and its approach to language. This is perhaps one important way in which Bakhtin’s approach is distinct from the focus on 'narrative' which is so much the staple of law and literature writing. The novel’s 'heteroglossia', as Bakhtin puts it - its irony, ambiguity, and ‘doubleness’ - is neither a serendipitous features of certain texts nor a secondary element of normatively driven ‘story-telling’, but structural and stylistic characteristics of the novel as such. Bakhtin thus problematizes the treatment of narrative and the authenticity of voice assumed in much of the standard literature. While Bakhtin brings to these arguments an unprecedented sweep and command of detail, and a highly distinctive vocabulary for analysis, his arguments parallel the work of the other twentieth-century writers on literature. In particular, writing at the same critical historical moment, Bakhtin’s claims are echoed in D.H. Lawrence’s own essays on the novel, and illustrated - indeed, performed - in his fiction.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Modernism and the Critique of Law and Literature

Author(s): Desmond Manderson

‘Law and literature’ suffers from two besetting weaknesses: first, a concentration on substance and plot and, second, a salvific belief in the capacity of literature to cure law or perfect its justice. The first fails to question the Platonic ideal that the purpose of art is mimetic. The second fails to question the romantic ideal that the purpose of art is to heal the world’s wounds. Too often in opening a dialogue with law we fail to capture the real experience or worth of literature - a worth irreducible to either the morality it ‘stands for’, or to the coherence or harmony it promises. Indeed, the aesthetic ideals of modernism, which so dramatically altered the landscape of literature, philosophy and politics around the turn of the (twentieth) century, reject just these claims. Modernism - to be more sharply distinguished from ‘modernity’ than it often is - produced instead a heightened attentiveness to questions of style, form, and language, and to questions of diversity and subjectivity in voice and perspective. Modernism cast off the aesthetic ideologies of mimesis and romanticism and opened up claims of truth, progress, and perfection to the destabilizing subtlety of irony. This essay’s focus on modernist irony, with particular attention to the work of Mikhail Bakhtin, suggests a very different orientation and defense of ‘law and literature’.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Fission to Fusion: From Improvisation and Formalism in Law and Music

Author(s): Desmond Manderson

This paper asks the question, what happened to improvisation in the classical music tradition? why did it so dramatically decline in legitimacy and practice around the classical era. This apper draws connections between musical, legal, and political history in order to demonstrate the cultural change in the eighteenth century transformed people's understandings of texts, authority, legitimacy, and genius, in ways that changed the relationship of interpretation to textual authenticity with lasting effects in both music and legal professions. This paper thus continues the work on legal and musical history begun by this author in Statuta v Acts, Et Lex Perpetua, and Songs Without Music.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

An Inconstant Affair: Feminism and the Legal Academy

Author(s): Margaret Thornton

Drawing on the Australian experience, this chapter shows how the fortunes of feminist legal theory (FLT) are closely imbricated with those of the state. The trajectory of the discomfiting liaison between feminism and the legal academy is traced over three decades to highlight the contingent nature of FLT, particularly the sensitivity to the prevailing political climate in which the pendulum swing from social liberalism to neoliberalism induces uncertainty and instability. It will be shown that under social liberalism, FLT received a modicum of acceptance within the legal academy but began to contract and then wither with the onset of neoliberalism. This has not only been disastrous for FLT, but it has also subtly brought about a remasculinisation of the academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Mikhail Bakhtin and the Field of Law and Literature

Author(s): Desmond Manderson

This essay takes as its focus the work of Mikhail Bakhtin, a leading literary theorist who has, to date, received relatively little attention in the field of law and literature. Central themes in the work of Bakhtin include the dialogic quality of the novel and its ethical implications, its commitment to singularity and context, its comprehensive critique of authority and, tying all of these features together, the importance of form and style to our understanding of the experience of literature. These themes all pay attention less to the subject-matter or content of particular works of literature than to its historical trajectory, its distinctive characteristics, and its approach to language. This is perhaps one important way in which Bakhtin’s approach is distinct from the focus on 'narrative' which is so much the staple of law and literature writing. The novel’s 'heteroglossia', as Bakhtin puts it - its irony, ambiguity, and ‘doubleness’ - is neither a serendipitous features of certain texts nor a secondary element of normatively driven ‘story-telling’, but structural and stylistic characteristics of the novel as such. Bakhtin thus problematizes the treatment of narrative and the authenticity of voice assumed in much of the standard literature. While Bakhtin brings to these arguments an unprecedented sweep and command of detail, and a highly distinctive vocabulary for analysis, his arguments parallel the work of the other twentieth-century writers on literature. In particular, writing at the same critical historical moment, Bakhtin’s claims are echoed in D.H. Lawrence’s own essays on the novel, and illustrated - indeed, performed - in his fiction.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Recognition and Narrative Identities: The Legal Creation, Alienation and Liberation of the Refugee

Author(s): Matthew Zagor

That a refugee often has a transformative experience in their encounter with a status determination regime is uncontentious. The practical need for legal recognition of a pre-existing status for the purpose of protection marries with a very personal need for recognition of one’s experience. The granting or withholding of either type of recognition has consequences for the various identities created in the process. Both depend upon the story told, and the manner of its reception.

This paper arose initially out of my own anecdotal experience as a legal representative for refugees over many years. It found its genesis in reflections on the role I played in helping shape the story that would be told to administrative decisions makers by my clients, and my growing concern that I was complicit in a process of legal institutionalisation, distortion and even alienation of something ‘authentic’ in the refugee experience and identity. As will become apparent, I am no longer so damning of my role and that of my fellow lawyers and decision-makers, or indeed of the ‘regulative discourse’ imposed by refugee law itself. The refugee has more agency than perhaps appears at first blush. I am also more questioning of my own original assumptions about authenticity, categorisation and recognition.

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

Neoliberal Melancholia: The Case of Feminist Legal Scholarship

Author(s): Margaret Thornton

This paper arises out of a concern for the future of feminist legal scholarship in the academy. First, it considers the significance of the implosion of the category ‘woman’, suggesting that it should be understood in its particular epistemic context. Secondly, it considers the impact of the contemporary market paradigm on feminist legal scholarship and on feminist academics generally. As the prognosis is not optimistic, the paper poses the question as to whether the more appropriate site for feminist legal academics might be outside the academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Technocentrism in the Law School: Why the Gender and Colour of Law Remain the Same

Author(s): Margaret Thornton

Despite valiant endeavours by feminist, critical race, and Queer scholars to transform the legal culture, the transformative project has been limited because of the power of corporatism, a phenomenon deemed marginal to the currently fashionable micropolitical sites of critical scholarship. However, liberal, as well as postmodern scholarship, has largely preferred to ignore the ramifications of the “new economy,” which includes a marked political shift to the right, the contraction of the public sphere, the privatization of public goods, globalization, and a preoccupation with efficiency, economic rationalism, and profits. This paper argues that technical reasoning, or “technocentrism,” has enabled corporatism to evade scrutiny. It explores the meaning of “technocentrism,” with particular regard to legal education. Because corporate power does not operate from a unitary site, but is diffused, the paper shows how it impacts upon legal education from multiple sites, from outside as well as inside the legal academy in a concerted endeavour to maintain the status quo.

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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