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.

German Law Journal

Contemporary Research and the Ambiguity of Critique

Author(s): Margaret Thornton

Within the marketised context of higher education, research is valued less for its contribution to scholarship than for its income-generating capacity and value to end users. Commodification has significant ramifications for academic freedom as can be seen by the example of research consultancies. Academic freedom is also being affected by the direct interference of neoliberal governments in research policy. While terror censorship is a dramatic manifestation of interference, critical research is also affected by the everyday practices of the contemporary academy. All these factors contribute to the production of de-politicised knowledge.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

German Law Journal

The Law School, the Market and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of "customer" and "service provider". Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

From this Time Forward

'From this Time Forward... I Pledge My Loyalty to Australia': Loyalty, Citizenship and Constitutional Law in Australia

Author(s): Kim Rubenstein

A major change in Australian citizenship law occurred on 4 April 2002. On that day, the governor-general of Australia assented to the passage of the Australian Citizenship Amendment Act 2002 (Cth). Before that date, Australian citizens who took up a new citizenship (like Rupert Murdoch taking up US citizenship) automatically lost their Australian citizenship. Central to the former provision, and the 2002 changes, is a view of loyalty and allegiance to the nation-state. This chapter examines how those concepts of loyalty and allegiance are central to discussions on citizenship, and how they are reflected in Australian citizenship law. Moreover, it argues that the change on dual citizenship in Australia has constitutional ramifications; for example, section 44 of the Constitution prevents dual citizens from running for parliament. The chapter concludes with the proposal that the Constitution needs amendment to reflect modern notions of commitment over outdated notions of sole allegiance to one country.

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

'Otherness' on the Bench: How Merit is Gendered

Author(s): Margaret Thornton

This paper focuses on the construction of merit as the key selection criterion for judging. It will show how merit has been masculinised within the social script so as to militate against the acceptance of women as judges. The social construction of the feminine in terms of disorder in the public sphere fans doubts that women are appointable - certainly not in significant numbers to the most senior levels of the bench. It is argued that merit, far from being an objective criterion, operates as a rhetorical device shaped by power. The paper will draw on media representations of women judges in three recent Australian scenarios: an appointment to the High Court; the appointment of almost 50 percent women to Victorian benches; and the scapegoating of a female chief magistrate (resulting in imprisonment) in Queensland.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The Gender Trap: Flexible Work in Corporate Legal Practice

Author(s): Margaret Thornton

Despite the fact that women comprise well over 50 per cent of law graduates in many parts of the world, women lawyers continue to be clustered disproportionately in the lower echelons of the profession. This paper considers the role of flexible work as a gender equity strategy and is illuminated by interviews with lawyers in élite corporate firms in Australia. It is argued that far from being a panacea, flexible work is being invoked to confine women to subordinate roles and to restrict access to partnerships. Not only is there a residual suspicion of the feminine in positions of authority and resistance to the idea of bodily absence from the workplace, the contemporary market discourse has erased a commitment to social justice and equality.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The Demise of Diversity in Legal Education

Author(s): Margaret Thornton

This paper explores the contradictions arising from the simultaneous commitment to globalisation and diversity. The backdrop to the study is the marked shift to the right that has occurred in State and federal politics, emulating the global trend that has resulted in neo-liberalism supplanting social liberalism as the dominant ideology.

Neo-liberalism, or market liberalism, necessarily locates its subjects within the market where they are expected to vie with one another for survival and success.

Globalisation is one manifestation of neo-liberal competition policy which, along with corporatisation and privatisation, displays little interest in diversity politices, other than as a means of enhancing market image. Indeed, the feminine is constructed as incompatible with corporatisation and competition. Just as the political shift to the right has witnessed a dilution, if not a complete disbandonment, of formal social justice measures. there has been a tendency to dismantle feminist legal studies subjects, as well as to contract critical and theoretical content of all kinds. The paper considesr how neo-liberal and globalising imperatives are impacting on legal education in (1) the appointment of academic staff; (2) the shaping of the curriculum; (3) the profile of the 'consumers' of legal education; (4) the cartography of legal knowledge.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Feminism and the Changing State: The Case of Sex Discrimination

Author(s): Margaret Thornton

This paper examines the ambiguous relationship between feminism and the state through the lens of sex discrimination legislation. Particular attention will be paid to the changing nature of the state as manifested by its political trajectory from social liberalism to neoliberalism over the last few decades. As a creature of social liberalism, the passage of sex discrimination legislation was animated by notions of collective good and redistributive justice, but now that neoliberalism is in the ascendancy, we see a resiling from these values in favour of private good and promotion of the self through the market. This cluster of values associated with neoliberalism not only serves to reify the socially dominant strands of masculinity, it also goes hand-in-glove with neoconservatism, which is intent on restricting the inchoate freedoms of women. The erosion of social liberal measures has caused many feminists to feel more kindly disposed towards the liberal state. Some attempt to unravel the contradictions relating to feminism and the state with particular regard to the key discourses of equality of opportunity.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Loyalty and Membership: Globalization and its Impact on Citizenship, Multiculturalism, and the Australian Community

Author(s): Kim Rubenstein

This chapter argues that differing views underpinning the debate about dual citizenship are mirrored in policy discourse about the place of multiculturalism in Australia. Globalization has and continues to have a substantial impact upon legal status and membership and identity in both the nation-state and in the international legal system. These legal changes reflect the shifting notions of membership both in the Australian domestic framework and in the international framework. Moreover, these changes must be taken into account in balancing rights and responsibilities in a diverse society, so that multiculturalism and cultural diversity continue to be affirmed within the legal framework and public policy in the same way dual citizenship has been accepted.

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

Looking for the 'Heart' of the National Political Community: Regulating Membership in Australia

Author(s): Kim Rubenstein

When a community determines who can come into its territory, and who can later become full members, it reflects upon and reaches, in the words of United States academic Linda Bosniak, 'deep into the heart of the national political community, and profoundly affects the nature of relations among those residing within.' Given Australia is fundamentally a nation of people who have at some point relatively recently been outsiders, let in by those who have arrived ahead of them, there is a lot unresolved within the 'heart' of Australia.

In this article, I draw from my work on Australian citizenship to argue that the phenomenon of offshore processing is part of an overall policy that forces outside of the community, and further from citizenship and membership, the 'alien'. It is a product of the Australian constitution which defines who its members are, by who they are not. This is a consequence of a constitution that gives the Commonwealth immense power over 'aliens' - a power that reflects back upon those who are not aliens, and impacts upon the identity of all Australian citizens. Finally, it is a result of a belief by those in power that the state has an absolute right to determine who comes into its borders.

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

Corrosive Leadership (or Bullying by Another Name): A Corollary of the Corporatised Academy?

Author(s): Margaret Thornton

The literature reveals that the incidence of bullying is increasing in corporate workplaces everywhere. While the data is scant, it suggests that bullying in universities is also on the increase. Interviews with Australian academics support this finding. It is argued that the trend has to be understood in light of the pathology of corporatisation, which is designed to make academics do more with less. The focus on productivity parallels the harassment to which workers in the private sector may be subjected in the hope that they will work harder and maximise profits. Avenues of redress are considered which show that dignitary harms remain inchoate as legal harms. While common law and anti-discrimination legislation regimes may occasionally offer a remedy to targeted individuals, it is averred that these avenues are incapable of addressing the causative political factors that induce corrosive leadership.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The Retreat from the Critical: Social Science Research in the Corporatised University

Author(s): Margaret Thornton

This paper considers how the contemporary environment is inducing a less critical approach towards research and impacting on academic freedom. It argues that it is not only the interventionist acts of Ministers and terror censorship that academics need to worry about, for the need to satisfy funding bodies is more insidiously exercising a depoliticising effect on research.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The Evisceration of Equal Employment Opportunity in Higher Education

Author(s): Margaret Thornton

This paper considers the way in which neoliberalism has impacted on equal employment opportunity (EEO) within the academy. Instead of a focus on the common good, there has been a shift to promotion of the self within the market. Higher education has not been immune from the contemporary imperative to commodify and privatise. Corporatisation has resulted in top-down managerialism, perennial auditing and the production of academics as neoliberal subjects. Within this context, identity politics have either moved to the periphery or disappeared altogether.

Against the background of the ramifications of the socio-political shift and the transformation of the university, the paper considers the rise and fall of EEO and the emergence of new discourses, such as that of diversity, which better suit the market metanarrative. The market has also induced a shift away from staff to students, inviting the question is to whether EEO is now passé.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Governor Arthur’s Proclamation: Aboriginal People and the Deferral of the Rule of Law

Author(s): Desmond Manderson

2007 was a tumultuous year in Australian politics, culminating on November 24 with Federal elections in which the highly conservative Liberal Party government led by Mr. John Howard was, after eleven years in government, decisively defeated at the polls. Of particular note in that result was the defeat of the Prime Minister in his own electorate, and the dramatic and unexpected defeat of the Minister for Families and Indigenous Affairs, Mal Brough, in his. Both have now left politics for good. But their legacy lives on, and it is my contention that the most significant aspect of that legacy is legislation which, enacted with unseemly haste and in the dying days of the Parliament, profoundly alters the legal treatment of Australian Aboriginal people in the Northern Territory, a self-governing but sparsely populated region the size of France, Italy, and Spain combined. One-third of the Territory’s population is Aboriginal, far and away the most proportionally significant Indigenous population in the country. Yet very little serious analysis of the sweeping and complex laws proclaimed in August 2007 has been attempted. Such an analysis remains crucial not just because of the relationship between Indigenous and other people which it reflects but because the Labor Party, albeit reluctantly, voted in favor of the legislation when it was enacted. Now in government it has shown a marked reluctance to re-open the issue. Indeed at times Jenny Macklin, the new Minister for Indigenous Affairs, has talked about extending the laws to other Australian jurisdictions. Furthermore, to the extent that the new government has mooted changes to aspects of the legislation, the Labor Party does not have a majority in the Senate and will consequently face considerable difficulty in getting its amendments through the Parliament. Given the wave of emotion on which the legislative package was carried, and with which criticisms to its provisions are still fiercely met, they may feel disinclined to try very hard. Unless a serious critique is mounted which demonstrates as clearly as possible the ways in which these laws undermine basic principles of the Australian legal system, the opportunity to amend them will soon be lost and the fate of many Aboriginal communities as soon sealed. In bringing readers’ attention to the implications of the laws pertaining to the ‘intervention in the Northern Territory’, and which ought to concern all who have an interest in upholding the traditions of common law legality, I propose in this essay to set the contemporary issues against a broader theoretical debate, and with the assistance of two distinct perspectives.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

‘As If’ - the Court of Shakespeare and the Relationships of Law and Literature

Author(s): Desmond Manderson

The Shakespeare Moot Court is a form of serious play that inspires participating legal and literary students and professors to think about interdisciplinary in a new way - by doing it. Members of the Court apply their analytical and argumentative skills to the task of creating the law of Shakespeare, tackling matters of public concern such as same-sex marriage, crimes against humanity, and freedom of religion. In the course, senior Law students and graduate students from English team up to argue cases in the “Court of Shakespeare” (where the sole Institutes, Codex, and Digest are comprised by the plays of William Shakespeare). The Court involves students (as counsel) and Shakespeareans and legal scholars (as judges) in a competitive and collaborative form of play whose object is to engage with Shakespeare’s plays in order to render judgments concerning particular contemporary legal problems. In the first part, this essay reflects on critical practice in Shakespeare studies and the argues that the legal model of the moot court offers this practice dimensions of accountability, corrigibility, and temporality which are essential to the future of the critical practice of literary studies. Above all the Shakespeare Moot Court provides a new and necessary way of restoring Shakespeare criticism, or some significant part of it, to the public realm. In the second part, the argument is reversed. The literary conceit of the Shakespeare Moot Project serves to dramatize that literature’s very different orientation offers to the world of law a vital reminder that the question of judgment is always imbricated in the character, experiences, and subjectivity of the judge. This perspective, which was indeed universally understood as integral to the exercise of judgment, whether literary or legal, in Shakespeare’s time, seems in many ways to have been forgotten or sidelined in most modern understandings of law. For the literary theorist, the “privatization” of literature from the late eighteenth century on has obscured its role in public discourse, as the first part argues. For the legal theorist, as the second part argues, the “publicization” of law from the late eighteenth century on has obscured its connection to personal responsibility. The two arguments together demonstrate that the Enlightenment’s project of defining and dividing disciplines - allocating the realm of public action to law and that of private feeling to literature - has come at the cost of the relevance of one and the humanity of the other.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Response: ‘And it Really Was a Kitten, after All.’

Author(s): Desmond Manderson

This essay is the author response to a symposium on Proximity, Levinas and the Soul of Law published in the Australian Journal of Legal Philosophy in 2008.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Desert Island Disks (Ten Reveries on Pedagogy in Law and the Humanities)

Author(s): Desmond Manderson

Novel in form and content, this essay makes a case for interdisciplinary pedagogy in legal education and research by focusing on cultural representations of law - on the meanings of and about law to be found in literature, art, music, and other social and daily forms. The essay develops a theory of law as found in the everyday, on the distinction between legal and non-legal forms of representation and discourse, and on the ethical responsibility of connection law students experiences of the world to their classroom learning.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Legal Theory in Wonderland

Author(s): Desmond Manderson

Forms part of the symposium issue of Australian Journal of Legal Philosophy to discuss Desmond Manderson's Proximity, Levinas and the Soul of Law. Here the author presents a critique of his own work on responsibility, tort law, and the philosophy of Levinas

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Governor Arthur’s Proclamation: Aboriginal People and the Deferral of the Rule of Law

Author(s): Desmond Manderson

2007 was a tumultuous year in Australian politics, culminating on November 24 with Federal elections in which the highly conservative Liberal Party government led by Mr. John Howard was, after eleven years in government, decisively defeated at the polls. Of particular note in that result was the defeat of the Prime Minister in his own electorate, and the dramatic and unexpected defeat of the Minister for Families and Indigenous Affairs, Mal Brough, in his. Both have now left politics for good. But their legacy lives on, and it is my contention that the most significant aspect of that legacy is legislation which, enacted with unseemly haste and in the dying days of the Parliament, profoundly alters the legal treatment of Australian Aboriginal people in the Northern Territory, a self-governing but sparsely populated region the size of France, Italy, and Spain combined. One-third of the Territory’s population is Aboriginal, far and away the most proportionally significant Indigenous population in the country. Yet very little serious analysis of the sweeping and complex laws proclaimed in August 2007 has been attempted. Such an analysis remains crucial not just because of the relationship between Indigenous and other people which it reflects but because the Labor Party, albeit reluctantly, voted in favor of the legislation when it was enacted. Now in government it has shown a marked reluctance to re-open the issue. Indeed at times Jenny Macklin, the new Minister for Indigenous Affairs, has talked about extending the laws to other Australian jurisdictions. Furthermore, to the extent that the new government has mooted changes to aspects of the legislation, the Labor Party does not have a majority in the Senate and will consequently face considerable difficulty in getting its amendments through the Parliament. Given the wave of emotion on which the legislative package was carried, and with which criticisms to its provisions are still fiercely met, they may feel disinclined to try very hard. Unless a serious critique is mounted which demonstrates as clearly as possible the ways in which these laws undermine basic principles of the Australian legal system, the opportunity to amend them will soon be lost and the fate of many Aboriginal communities as soon sealed. In bringing readers’ attention to the implications of the laws pertaining to the ‘intervention in the Northern Territory’, and which ought to concern all who have an interest in upholding the traditions of common law legality, I propose in this essay to set the contemporary issues against a broader theoretical debate, and with the assistance of two distinct perspectives.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Pages

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team