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.

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

‘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

'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

Uncertainty and Exclusion: Detention of Aliens and the High Court

Author(s): Matthew Zagor

In a series of judgments in late 2004, the High Court found that the Migration Act 1958 (Cth) unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid. The cases are significant not only for reflecting different approaches to statutory construction, the aliens power and the potential protections offered by Ch III - the manifest issues before the Court - but for the broader perspectives of Australia's constitutional arrangements and the control of public power. With specific reference to the judgments in Al-Kateb and Re Woolley, this paper argues that the majority were inherently informed by a largely unstated assumption about the Court's constitutional role that relies upon an unprecedented deference to the other branches of government, as well as an attitude towards aliens as a category - reflected in the rhetoric of control, exclusion and unlawfulness - that echoes a regrettable part of Australia's constitutional inheritance. By neglecting to state or address these assumptions upfront, and by failing to present a coherent test to stand in the stead of the protection which earlier case law had promised, the majority's reasoning loses both its moral authority and legal coherency.

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

Chair of the Citizenship Council

Author(s): Kim Rubenstein

This chapter appears in a collection honouring Sir Ninian Stephen, former Australian High Court Judge and Governor General. The chapter examines Sir Ninian's contributions to citizenship law in both a domestic and international context. Indeed, the chapter straddles both aspects of this book's division: Sir Ninian's domestic and international contributions. It begins by concentrating upon his Australian contributions in this field and then moves on to reflect in particular on his judgment in the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Proscecutor v Dusko Tadic, which had important statements about nationality in an international humanitarian law context. As I too am interested in both jurisdictions, the chapter reflects upon the contrasts and similarities of Sir Ninian's contribution to those different jurisdictions and what they may tell us about Sir Ninian's framework for thinking about citizenship. In doing so, it is my contention that Sir Ninian is a role model to all seeking to be cosmopolitan citizens in an ever increasingly connected world.

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

Advancing Citizenship: The Legal Armory and its Limits

Author(s): Kim Rubenstein

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.

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

Here I Am: Illuminating and Delimiting Responsibility

Author(s): Desmond Manderson

The ethics of Emmanuel Levinas and the law of negligence are in many ways surprisingly well-suited. Levinas offers a sustained meditation on the relationship of ethics, responsibility and justice, and he does so using precisely the language of the duty of care, of neighbourhood, and of proximity. ‘Perhaps because of current moral maxims in which the word neighbour occurs, we have ceased to be surprised by all that is involved in proximity and approach.’ Here then is a philosopher, largely unknown to doctrinal legal theory, who at last speaks the language of torts. This paper seeks to explore the connection between Levinas and doctrines of care and responsibility in the common law, struggling in particular with the relationship between ethics and law or politics, between the unlimited responsibility canvassed by Levinas and the necessity for limitation and definition embedded in legal forms.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Advancing Citizenship: The Legal Armory and its Limits

Author(s): Kim Rubenstein

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Uncertainty and Exclusion: Detention of Aliens and the High Court

Author(s): Matthew Zagor

In a series of judgments in late 2004, the High Court found that the Migration Act 1958 (Cth) unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid. The cases are significant not only for reflecting different approaches to statutory construction, the aliens power and the potential protections offered by Ch III - the manifest issues before the Court - but for the broader perspectives of Australia's constitutional arrangements and the control of public power. With specific reference to the judgments in Al-Kateb and Re Woolley, this paper argues that the majority were inherently informed by a largely unstated assumption about the Court's constitutional role that relies upon an unprecedented deference to the other branches of government, as well as an attitude towards aliens as a category - reflected in the rhetoric of control, exclusion and unlawfulness - that echoes a regrettable part of Australia's constitutional inheritance. By neglecting to state or address these assumptions upfront, and by failing to present a coherent test to stand in the stead of the protection which earlier case law had promised, the majority's reasoning loses both its moral authority and legal coherency.

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 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

Rethinking Nationality in International Humanitarian Law

Author(s): Kim Rubenstein

Nationality has been central to law's understanding of membership. Moreover, the formal legal relationship between the individual and the state is that of citizenship - or nationality. However, as this chapter argues, various forces in the international context, including globalisation and the contrasting phenomena of fragmentation, express tensions besetting traditional notions of state membership in an international framework.

This chapter begins by looking at some of the issues underpinning the larger question of the role of nationality in humanitarian law. It then explores those questions in the context of the former Yugoslavia and in particular through the judgment of the War Crimes Tribunal for the Former Yugoslavia in the case of Tadic. It argues that nationality should not necessarily be a determinative factor when applying humanitarian law.

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Coffee House: Habitus and Performance Among Law Students

Author(s): Desmond Manderson

Drawing on the work of Pierre Bourdieu and Judith Butler, we develop a detailed ethnography of a social space in a major law school, and explore its socialization of the students there. ‘Coffee House’ is a weekly social event sponsored by Canadian law firms offering free drink and food to the students present. We argue that this event and the actors involved profoundly change student identities and alter educational aspirations. Although the students themselves insist that ‘nothing is going on,’ our ethnography suggests that in ‘Coffee House’ identity is developed through performances, and in the accumulation of symbolic capital, until ultimately students come to feel their future career path is not a matter of choice, but destiny. We explore the important work of Bourdieu through this setting, but ultimately we resist his determinism, and suggest instead that, following the work of Butler, identity is a more complicated and fluid dynamic between space, repetition, and performance. It appears that a personal unconscious transformation amongst law students attending Coffee House is underway; yet opportunities to change the meaning of this space and these performances remain.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Gluttony: The End of Private Law

Author(s): Desmond Manderson

Starting from St Thomas Aquinas, the best known of the medieval commentators on the Seven Deadly Sins, the sin of gluttony has suffered from certain ambiguities. This chapter attempts to clarify the nature and the problematic of glutton, with particular reference to an aspect of contemporary significance: the treatment and consumption of animals. The author finds this treatment both scandalous, secretive, and emblematic of a much broader problem of the modern world – commodification. This, too, is a form of modern gluttony from which neither law nor philosophy is immune. In order to draw forth these connections between our approach to law, to knowledge, and to food, the author draws on recent fiction by Nobel laureate J M Coetzee, and the ethical philosophy of Emmanuel Levinas. He argues for a restructuring of how we think about ‘the lives of animals’ which will respond to the idea of gluttony in both its immediate sense and in its metaphorical extension. Perhaps our gluttonous appetites can be tamed, not by knowledge and not by justice, but by ethics.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Emmanuel Levinas and the Philosophy of Negligence

Author(s): Desmond Manderson

Over the past hundred years, the law of negligence has transformed itself, and in the process transformed our sense of the obligations we all owe to everybody around us – local governments for the services they provide, banks and professionals for the advice they give, drivers on the road, doctors in the surgery, homeowners for their guests or visitors, and even for the trespassers who might pay them a call. Yet what is now compendiously described as ‘the duty of care’ is in some ways an unusual obligation. It is not the outcome of an agreement founded on self-interest, like a contract. It is not a duty owed to the community as a whole and acted on by the State, like criminal law. It describes a personal responsibility we owe to others which has been placed upon us without our consent. It is a kind of debt that each of us owes to others although we never consciously accrued it. Thus it raises in a distinctly personal way one of the oldest questions of law itself: ‘Am I my brother’s keeper?’ What does it mean to be responsible? This is not a question that is easier to answer for us than for Cain. In this article I argue that the idea of responsibility articulated in the law of negligence comes from what might be termed our literal response-ability: it implies a duty to respond to others stemming not from our abstract sameness to others, but rather from our particular difference from them. Responsibility is not a quid pro quo — it is asymmetrical, a duty to listen to the breath of others just in so far as their interests diverge from our own. The duty of care emerges not because we have a will (which the law of contract respects) or a body (which the criminal law protects) but because we have a soul.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Tortologies

Author(s): Desmond Manderson

It matters how we conjugate the world. The grammar in which one frames an area of law indicates what is seen to be important about it and why. How did law arise and to what end? These questions have generated a variety of powerful myths surrounding the origin of law. Over the past several years, I have been working on a project which has attempted to articulate the insights of Levinas to a legal audience, with particular reference to the distinct idea of responsibility in tort law. Above all, as I hope this essay will go on to illustrate, Levinas offers a point of departure in trying to understand why we ought to be responsible for others that is radically unlike the standard grammars and philosophical reference points which have to date governed our understanding of this responsibility. Levinas suggests that we can understand responsibility in quite a different way, and in a manner that both captures something central to the legal discourse, and - just as relevantly - central to our own experience. Law is, after all, not just a structure of arbitrary rules of co-ordination. It is a story as to the way in which our society re-attaches commitments to their proper authors. Responsibility is not a judicial auto-da-fe but an influential narrative about who we are.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Coffee House: Habitus and Performance Among Law Students

Author(s): Desmond Manderson

Drawing on the work of Pierre Bourdieu and Judith Butler, we develop a detailed ethnography of a social space in a major law school, and explore its socialization of the students there. ‘Coffee House’ is a weekly social event sponsored by Canadian law firms offering free drink and food to the students present. We argue that this event and the actors involved profoundly change student identities and alter educational aspirations. Although the students themselves insist that ‘nothing is going on,’ our ethnography suggests that in ‘Coffee House’ identity is developed through performances, and in the accumulation of symbolic capital, until ultimately students come to feel their future career path is not a matter of choice, but destiny. We explore the important work of Bourdieu through this setting, but ultimately we resist his determinism, and suggest instead that, following the work of Butler, identity is a more complicated and fluid dynamic between space, repetition, and performance. It appears that a personal unconscious transformation amongst law students attending Coffee House is underway; yet opportunities to change the meaning of this space and these performances remain.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Emmanuel Levinas and the Philosophy of Negligence

Author(s): Desmond Manderson

Over the past hundred years, the law of negligence has transformed itself, and in the process transformed our sense of the obligations we all owe to everybody around us – local governments for the services they provide, banks and professionals for the advice they give, drivers on the road, doctors in the surgery, homeowners for their guests or visitors, and even for the trespassers who might pay them a call. Yet what is now compendiously described as ‘the duty of care’ is in some ways an unusual obligation. It is not the outcome of an agreement founded on self-interest, like a contract. It is not a duty owed to the community as a whole and acted on by the State, like criminal law. It describes a personal responsibility we owe to others which has been placed upon us without our consent. It is a kind of debt that each of us owes to others although we never consciously accrued it. Thus it raises in a distinctly personal way one of the oldest questions of law itself: ‘Am I my brother’s keeper?’ What does it mean to be responsible? This is not a question that is easier to answer for us than for Cain. In this article I argue that the idea of responsibility articulated in the law of negligence comes from what might be termed our literal response-ability: it implies a duty to respond to others stemming not from our abstract sameness to others, but rather from our particular difference from them. Responsibility is not a quid pro quo — it is asymmetrical, a duty to listen to the breath of others just in so far as their interests diverge from our own. The duty of care emerges not because we have a will (which the law of contract respects) or a body (which the criminal law protects) but because we have a soul.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

The Influence of Chinese Immigration on Citizenship

Author(s): Kim Rubenstein

This article is from a paper given at a conference in 2000 which sought to do two things. First it draws out some of the legal issues central to citizenship and displays how they relate to the other disciplines in the development of citizenship in Australia. It argues there has not been a clear legal framework within which to develop an understanding of citizenship in Australia. Secondly, it argues that Chinese immigration to Australia in the second half of the 19th century was central to the evolution of citizenship in this country. Moreover, this factor has influenced the development of a legal framework that is confused, ambiguous, and contradictory about citizenship.

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

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