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.

The Dancer from the Dance

The Dancer from the Dance

Author(s): Desmond Manderson

This essay argues that representations of public space both illustrate concepts of governance in visual terms, and actively constitute, through image, those modes. Starting from images of public space in Lorenzetti and Hobbes, the author moves to consider contemporary representations of public space under the influence of neoliberalism. A particular focus is place on video games as constitutive of relations to the public realm, space and order. A sub theme of the essay is the role of pandemics in how we constitute a vision of the public realm. Lorenzetti, Hobbes, and neoliberalism can both be seen as having been profoundly influenced by concepts and varieties of disease.

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Centre: CLAH

Research theme: The Legal Profession

Editors' Introduction to Index Volume 2 (2020)

Editors' Introduction to Index Volume 2 (2020)

Author(s): Desmond Manderson

This introduction contextualises the new interdisciplinary field of law and visual studies, with a particular emphasis on new work on Australian legal and art history.

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Centre: CLAH

Research theme: The Legal Profession

Danse Macabre by Desmond Manderson

Danse Macabre: Temporalities of Law in the Visual Arts

Author(s): Desmond Manderson

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

Centre: CLAH

Research theme: Legal Theory

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Blindness Visible: Law, Time and Bruegel's Justice

Author(s): Desmond Manderson

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

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Centre: CLAH

Research theme: Legal Theory

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Here and Now: From Aestheticizing Politics to Politicizing Art

Author(s): Desmond Manderson

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

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Centre: CLAH

Research theme: Legal Theory

Visual: Representations, Technologies, and Critique

Law and the Visual: Representations, Technologies, and Critique

Editor(s): Desmond Manderson

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

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Centre: CLAH

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

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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

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

Crocodile Tears

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.

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Centre: CLAH

Research theme: Legal Theory

Between the Positivism

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

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).

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Centre: CLAH

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

Mikhail Bakhtin and the Field of Law and Literature

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

Fission to Fusion

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

Mikhail Bakhtin and the Field of Law and Literature (2012) 8 Journal of Law, Culture, and the Humanities 1-22

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

An Unbounded Duty of Care

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

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

Judgment in Law and the Humanities

Judgment in Law and the Humanities

Author(s): Desmond Manderson

The interdisciplinary temperament of ‘law and the humanities’ is both perplexing for law, and intriguing for the humanities. This perplexity and this intrigue come to a head precisely over one of the most important institutional necessities and problems of law: judgment. If a text is not a truth but a debate; if it embodies not one story or meaning but many; if a statute, let us say, or a court case cannot be neatly separated from literature, or rhetoric, or politics – then there is literature, and rhetoric, and politics, in every interpretation and in every decision. One of the central questions that the influence of the humanities on law raises is this: how, and with what legitimacy, can judgment take place if the texts on which judges base their decision do not – even in principle, let alone in practice – yield ‘one right answer.’ Over the past few years, as the question of judgment has ever more urgently weighed upon scholars within the broad church of the humanities, at least two kinds of answer have emerged: one broadly speaking influenced by Derrida’s later work and the other, equally schematically, taking Heidegger as its point of departure. Now these two streams draw very closely on a common intellectual tradition and share many points of similarity. Nevertheless I wish to insist in this essay that the two strands part company on the crucial question of judgment in law. In this chapter I focus on these two divergent paths now open to law and the humanities. The key difference between them (although not everyone will agree) lies in the transcendentalism – I would say the Romanticism – of the latter, and the relativism pragmatism – I would say the humanism – of the former. This chapter argues that we have both social and intellectual reasons to prefer the humanist perspective over its romantic alternative. Drawing on the language of deconstruction, and the experience of literature that lies at its heart, I want to defend an understanding of the purpose and nature of legal judgment which places as its central concern the provisional and multi-vocal experience of human discourse. From this we might develop a theory of judgment that is neither positivist nor Romantic.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Judgment in Law and the Humanities

Judgment in Law and the Humanities

Author(s): Desmond Manderson

The interdisciplinary temperament of ‘law and the humanities’ is both perplexing for law, and intriguing for the humanities. This perplexity and this intrigue come to a head precisely over one of the most important institutional necessities and problems of law: judgment. If a text is not a truth but a debate; if it embodies not one story or meaning but many; if a statute, let us say, or a court case cannot be neatly separated from literature, or rhetoric, or politics – then there is literature, and rhetoric, and politics, in every interpretation and in every decision. One of the central questions that the influence of the humanities on law raises is this: how, and with what legitimacy, can judgment take place if the texts on which judges base their decision do not – even in principle, let alone in practice – yield ‘one right answer.’ Over the past few years, as the question of judgment has ever more urgently weighed upon scholars within the broad church of the humanities, at least two kinds of answer have emerged: one broadly speaking influenced by Derrida’s later work and the other, equally schematically, taking Heidegger as its point of departure. Now these two streams draw very closely on a common intellectual tradition and share many points of similarity. Nevertheless I wish to insist in this essay that the two strands part company on the crucial question of judgment in law. In this chapter I focus on these two divergent paths now open to law and the humanities. The key difference between them (although not everyone will agree) lies in the transcendentalism – I would say the Romanticism – of the latter, and the relativism pragmatism – I would say the humanism – of the former. This chapter argues that we have both social and intellectual reasons to prefer the humanist perspective over its romantic alternative. Drawing on the language of deconstruction, and the experience of literature that lies at its heart, I want to defend an understanding of the purpose and nature of legal judgment which places as its central concern the provisional and multi-vocal experience of human discourse. From this we might develop a theory of judgment that is neither positivist nor Romantic.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

HLA Hart, Lon Fuller and the Ghosts of Legal Interpretation

Author(s): Desmond Manderson

Henry James’ short novel The Turn of the Screw appeared in 1898. It is a ghost story, uncanny both in content and in form. It relates such uneventful events that the reader is left turning from interpretation to interpretation, trying to determine just what is going on. Yet like the ghosts themselves, wherever we look, there is nothing to see. Until the very last sentence of the book, which hits one like a fist, nothing happens, nothing is proved, and yet a palpable feeling of tension and anxiety builds. It is therefore not fanciful to suggest that the real power of the story lies not in its narrative but in its rhetoric. The book creates a mood of anxiety that infects the reader’s reading. This is what one might call the ‘performative’ dimension of the story. James’ tale constitutes a reader, alert but confused, who thereby experiences the feeling of being part of a ghost story rather than merely reading about one. Sixty years later, HLA Hart and Lon Fuller likewise do not merely describe two different approaches to legal interpretation: in their style, rhetoric and structure they perform these approaches. This essay similarly wishes to connect its argument with its form and for this reason I have chosen to devote considerable space to discussing a work of literature. The Turn of the Screw illuminates certain essential features of the Hart/Fuller debate. Both are tales about law, interpretation, and ghosts. Through James, this essay argues that the debate between Hart and Fuller epitomizes legal interpretation as haunted. Rhetorically, they present two largely incommensurable visions of law. Yet their efforts to exclude the other’s approach fails. But instead of choosing between Hart and Fuller we can gain a richer understanding of legal interpretation if we treat their performance as mutual and interactive. I do not mean that Hart and Fuller can in any way be reconciled through compromise or synthesis. I mean rather that each remains ‘haunted’, and therefore productively unsettled, by the perspective of the other. To be haunted is never to be comfortable with one’s judgment or knowledge, never at peace. This may be ‘a horror’ in a story, but necessary in a legal system.

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Centre: CLAH

Research theme: Legal Theory

Shakespeare and Judgment.

Shakespeare and Judgment: The Renewal of Law and Literature

Author(s): Desmond Manderson

Legal theorist Desmond Manderson and Shakespearean Paul Yachnin develop parallel arguments that seek to restore a public dimension of responsibility to literary studies and a private dimension of responsibility to law. Their arguments issue from their work as the creators of the Shakespeare Moot Court at McGill University, a course in which graduate English students team up with senior Law students to argue cases in “Court of Shakespeare,” where the sole Institutes, Codex, and Digest are comprised by the plays of Shakespeare. Yachnin argues that modern literary studies suffers from impermanence and isolation from real-world concerns and that it can redress these limitations — developing attributes of corrigibility, temporality, judgment, and publicity — by learning from law. Manderson finds modern legal judgment bereft of affective engagement with the subjects of law and wedded to an ideal of objectivity, regulation, and impersonality. Literature can restore to legal judgment the elements of narrative, character, context, and self-reflection. Together, the essays argue that the question of judgment, so integral to the disciplines of law and of literature, needs the renewal that an inter-disciplinary engagement provides.

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Centre: CLAH

Research theme: Legal Theory

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