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.

In the Tout Court of Shakespeare: Interdisciplinary Pedagogy in Law

Author(s): Desmond Manderson

A great civilization, said Robert Cover, is to be judged by the quality of its law no less than its literature or engineering or science. In particular he meant by law a nomos, which is to say a way of being in the law experienced by members of that community, a way in which their law is seen to be related to their literature, and their engineering, and their science, as part of a continually relevant cultural interaction. I have for a long time been looking for ways to properly integrate methods of interdisciplinary thinking into my writing and teaching. Typically one does this by using literary or other texts to shed light on the law. But this is a form of parallel play and not a real integration. My commitment to an interdisciplinary approach is far stronger than any mere comparativism. Law is a literature and, which is more, literature is law, in its form, its power, its interpretative strategies, its discursive effects. Now one might respond by insisting that law cannot be conjured out of nothingness: it requires a specific institutional form that authorizes and enforces it. But that is entirely to confuse cause and effect. The question of form is undoubtedly relevant to legal – as to any – meaning and rhetoric, but institutionalization within specific State-driven structures is not. The treatment of law as if its meaning and its legitimacy were somehow separate from the cultural forces that give birth to it and in relation to which it is understood, has led scholars to make of law a mere technic for dispute resolution, and a purely hermetic practice beholden to nothing but its own logic. The failure to appreciate that law’s value stems from its cultural integration has amounted to a systematic impoverishment of its capacities and of its relevance to the community as a whole. I have often wondered how best to dramatize some of these issues: to ask students to imagine what it might be like to experience the birth of law, and to invite them to be responsible for the emergence of interpretative and normative principles; to encourage them to explore the interpretative connections and differences between literature and law in a real setting; to provide a forum in which students and teachers can think carefully about how our normative beliefs find their way into and through objective legal texts, forming and yet being constrained by its meaning.

In particular, I have always thought that any sufficiently rich body of textual material could serve as the basis of a legal system, and would pose very similar questions as to how those texts become binding and meaningful under the day to day pressures of judicial reasoning. Moreover, I think there is a real advantage in approaching these complex questions indirectly, offering therefore to teach students about law (or droit or Recht) – its genesis and evolution, its structures of reasoning and rhetoric, and the relationship of facts to texts to norms – without ever making the mistake of reducing it to the content of any particular ‘law’ (or loi or Gesetz ) whatsoever. The current essay explores a pedagogical experiment in which English and Law students worked together to found a ‘court of Shakespeare’ as an ongoing practice of legal genesis, constitution, and interpretation.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

From Hunger to Love: Myths of the Source, Interpretation, and Constitution of Law in Children's Literature

Author(s): Desmond Manderson

Children's literature is an important and wildly unappreciated source of law: a repository of myth that develops, in children, life-long understandings of law and our relationship to laws. It is not a question of "law and literature" but of literature as law, and law as literature. The article takes the celebrated book by Maurice Sendak, "Where the Wild Things Are", as a case study through which to develop an argument as to the origin and nature of legal consciousness in children. The book demonstrates Norbert Elias' proposition that children's process of up-bringing is precisely a miniature re-enactment of the development of modern civilization in the West. However, the article goes much further than this in arguing that Sendak's story explores precisely what it means to begin to learn how to "interpret" a legal text. One orthodox position would have it that a civilized child simply "obeys" their parents. But Sendak's text dramatizes the inherent difficulties that children face in understanding what it means to be obedient. These difficulties are insoluble, endemic, and intensely felt. To understand a civilized relationship to law as children begin to perceive it requires us to develop a more complicated jurisprudential position. The child Max resolves his proto-legal dilemma, at the end of the dream sequence that forms the centerpiece of the book, through an idea of legal responsibility that is quite distinct from that of legal obedience. The essay argues that "Where the Wild Things Are" asks us to understand love and law as institutions that require us to think about what they are for, in order to interpret what they mean. Drawing on the ethical philosophy of Emmanuel Levinas, the article concludes that to love the law, or to promise to honor the law of the family one loves, demands an on-going commitment to think about its purposes and its justice. Such a commitment is incommensurable with literalism, legalism, or positivism.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Love on Trial: Nature, Law and Same-Sex Marriage in the Court of Shakespeare

Author(s): Desmond Manderson

This paper provides the text of a judgment on the legality of same sex marriage in the court of Shakespeare, a radically interdisciplinary pedagogical experiment undertaken by ENglish and Law students at McGill University. The court considered oral arguments and briefs from counsel on the meaning of marriage in the Shakespearean corpus, particular the marriage comedies, and further examined the jurisprudential practices of the Court, and the question of interpretation over time. The question is, is marriage immutable or cultural dynamic and what does a careful reading of Shakesepare tell us about these legal and social questions?

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

The Care of Strangers

Author(s): Desmond Manderson

Using the story of Antigone as a foil, this essay attempts to reframe questions of legal responsibility in the case of asylum and refugee law through the lens of Emmanuel Levinas. Using this framework, the article argues that questions of sovereignty must be recast as questions of hospitality. The fundamental test of justice is one of hospitality to the stranger. Too bad for us, but we do not have a say in the matter. In this, we are already the chosen people.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Apocryphal Jurisprudence

Author(s): Desmond Manderson

The purpose of the present article is to present to readers a conspectus of post-structural perspectives on legal theory which, I will argue, have been gravely misunderstood precisely because they have so often been discussed within the inappropriate terms of the bounded disagreement between CLS and positivism. My argument is rather to clarify the ways in which these new approaches ask very different questions and derive from different and irreconcilable concerns. Recent scholarship has sometimes spoken about jurisprudence as a battle between two warring tribes: “the orthodoxy” and “the heresy”. A heresy is a disagreement within a tradition, and a tradition, far from being a static structure of rules or doctrines, is an argument through time. On one level, then, a heresy challenges the conventional answers within a tradition, but on another level, it confirms precisely the power and relevance of its questions. To wage war requires a disagreement as to denomination, but an agreement as to currency. The field of mars must be determined; cannons must meet cannons; victory must be recognizable.4 Ironically, hierarchs and heresiarchs, patron saints and sinners, desperately need each other, for they mutually constitute their own importance: what they reject on the level of content, they sustain on the level of discourse. The current essay suggests that poststructural and critical theories of law represent neither heresy nor orthodoxy, but an apocrypha – a range of rejected or disputed perspectives that cast a thwart light on standard questions and open up a very different mode of engagement and range of responses. Using the seminal Australian case of Kruger as its case study, this essay shows how apocryphal jurisprudence might destabilize orthodox and heretical approaches to law alike.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

From Oxymoron to Intersection: An Epidemiology of Legal Research

Author(s): Desmond Manderson

This paper surveys legal research in Australia. Using both theoretical and empirical work, it argues for a significant shift towards humanistic, theoretical, and interdisciplinary scholarship in law and explores the implications for legal research and for postgraduate supervision of this shift.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Mandatory Sentences and The Constitution: Discretion, Responsibility, and Judicial Process

Author(s): Desmond Manderson

This article argues that mandatory sentences are unconstitutional under Australian law. The constitutional challenge most likely to succeed is not based on the practical severity or otherwise of the law, but instead based on an argument of incompatibility with the judicial process. This is an argument which has only been clarified since the High Court’s decision in Kable v Director of Public Prosecutions (NSW), itself decided long after Palling. The real issue is not the existence of prosecutorial discretion but the striking absence of any countervailing judicial discretion. This balancing discretion is central to the idea of judicial process as we understand it. In the normal course of events, if a prosecutor decides to use his or her discretion to pursue an essentially trivial matter, the Court may refuse to impose a fine, or suspend the sentence, or discharge the matter. Undoubtedly there are limits to these powers in some legislation, but these limits do not completely eliminate judicial discretion although they may constrain it. More specifically, we argue that mandatory sentencing provisions require courts to act in a way which is incompatible with the obligation to act judicially. We examine the evolution of what we call the ‘doctrine of incompatibility’ in an effort to give more concrete meaning to the idea of acting in accordance with the judicial process. Our purpose in this article is not to comprehensively define what constitutes the judicial process. Rather, we argue that the judicial process at least requires that those who preside over the process act judicially, and we seek to explore what it means to act judicially. We contend that the act of judgment must have integrity and independence, secured at the very least by procedural fairness, and arguably, by equal justice. Moreover, the act of judgment must involve some degree of independent judicial discretion in determining sentence. Some element of genuine judicial discretion is necessary in legitimating the judicial role, and thus in maintaining public confidence in the courts. The history of the English, and later the Australian common law cannot be read as suggesting that the legislature enjoys unlimited power to completely eliminate judicial discretion in imposition of punishment.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Et Lex Perpetua: Dying Declarations and Mozart’s Requiem

Author(s): Desmond Manderson

This essay presents a joint history of music and society in relation to legal change particularly in the law of evidence, around 1750. the paper argues that the dramatic changes in both fields reflected similar social transformations which together changed their normative structure and assumptions, their relationship to text, interpretation, and authenticity, and their affective, instrumental, and normative ambitions. The history of music and the history of law are imbricated and entwined. Mozart's Requiem and the law on Dying Declarations are both transitional moments in the birth of formalist in law and music alike; both reflect changing and powerful ideas about text, meaning, interpretation, and, ultimately, about death.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Modes of Law: Music and Legal Theory - An Interdisciplinary Workshop Introduction

Author(s): Desmond Manderson

This essay introduces an interdisciplinary symposium held at Cardozo School of Law in New York, and argues for a new field of study on the relationship between music and legla theory - historical, social, semiotic, symbolic, and theoretical. The symposium gathered leading figures from fields of legal theory, social theory, and musicology to present their work.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Et Lex Perpetua: Dying Declarations and Mozart’s Requiem

Author(s): Desmond Manderson

This essay presents a joint history of music and society in relation to legal change particularly in the law of evidence, around 1750. the paper argues that the dramatic changes in both fields reflected similar social transformations which together changed their normative structure and assumptions, their relationship to text, interpretation, and authenticity, and their affective, instrumental, and normative ambitions. The history of music and the history of law are imbricated and entwined. Mozart's Requiem and the law on Dying Declarations are both transitional moments in the birth of formalist in law and music alike; both reflect changing and powerful ideas about text, meaning, interpretation, and, ultimately, about death.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Modes of Law: Music and Legal Theory - An Interdisciplinary Workshop Introduction

Author(s): Desmond Manderson

This essay introduces an interdisciplinary symposium held at Cardozo School of Law in New York, and argues for a new field of study on the relationship between music and legla theory - historical, social, semiotic, symbolic, and theoretical. The symposium gathered leading figures from fields of legal theory, social theory, and musicology to present their work.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Statuta and Acts: Interpretation, Music, and Early English Legislation

Author(s): Desmond Manderson

This article compares music and law in the period 1200-1500 in order to highlight the shared social and textual history of each, looking particularly at changing ideas of normativity, authority, and textuality in each genre and arguing for the significance of music for the changing social meaning of law and law for the changing social meaning of music. Formal, textual,a nd social analysis cohere to develop an argument for music as an important field of inquiry into the cultural representation of law.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Corporate Governance and the Impact of Legal Obligations on Decision Making in Corporate Australia

Author(s): Stephen Bottomley

This paper reports upon an empirical study of the place of law and legal duties in the governance of Australian public companies. A fuller discussion of the findings from this empirical research project is to be found in: Tomasic and Bottomley, Directing the Top 500: Corporate Governance and Accountability in Australian Companies, (Sydney, Allen & Unwin, 1993). The debate concerning the legal duties and obligations of management of corporations became quite heated in Australia following the corporate excesses of the 1980s. Many corporations exploited the looseness of the legal rules for the control of business; weak regulatory structures also operated to the disadvantage of shareholders and creditors. The study is based upon data derived from a series of interviews conducted with officers from the top 500 Australian listed public companies. Interviews were held with 95 public company directors and 55 advisers of public companies. The adviser group comprised leading corporate lawyers, liquidators, auditors and corporate regulators. Interviews took place in five Australian state capital cities and all interviews were undertaken personally by the principal investigators. This article examines perceptions of corporate citizenship held by directors and goes on to contrast these with actual corporate decision making in the context of the legal requirements placed upon directors of Australian companies. The article also examines the structure of Australian corporate decision making processes by the board of directors.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Pages

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