Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

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When Is the Advancement of Religion Not a Charitable Purpose?

Author(s): Pauline Ridge

This article addresses the question of why religious groups receive charitable status in relation to religious activities by considering when the current law does not grant charitable status to purposes that advance religion. The jurisdictional focus is upon Australian law, with some reference to other jurisdictions whose law also derives from the English common law of charity. After an overview of the charity law landscape in Australia, the article explains and critically evaluates the grounds upon which charitable status may be refused to purposes that advance religion. The article then considers two considerations that have emerged in twenty first century charity law and that are relevant to the charitable status of religious groups. These concern human rights, particularly the right to freedom of religion, and the use of charity law to regulate religious activity.

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Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

Law, Love and Freedom

Law, Love and Freedom: From the Sacred to the Secular

Author(s): Joshua Neoh

How does one lead a life of law, love, and freedom? This inquiry has very deep roots in the Judeo-Christian tradition. Indeed, the divergent answers to this inquiry mark the transition from Judeo to Christian. This book returns to those roots to trace the twists and turns that these ideas have taken as they move from the sacred to the secular. It relates our most important mode of social organization, law, to two of our most cherished values, love and freedom. In this book, Joshua Neoh sketches the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism). Law, Love, and Freedom brings together a diverse cast of characters, including Paul and Luther, Augustine and Aquinas, monks and Gnostics, and constitutionalists and anarchists. This book is valuable to any lawyers, philosophers, theologians and historians, who are interested in law as a humanistic discipline.

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Centre: CIPL, CLAH

Research theme: Law and Religion, Legal Theory

Martyrdom, Antinomianism, and the Prioritising of Christians - Towards a Political Theology of Refugee Resettlement

Author(s): Matthew Zagor

This article considers the approaches taken in the United States (US) and Australia to prioritising the resettlement of Christians from Syria and Iraq. Focusing first upon respective models and the immediate political factors that lead to their adoption, it analyses in depth the specific role played by the evangelical constituency in the US, and their theologically-infused concern for the “persecuted church” in “enslaved” lands. Recognising this movement enjoys less influence in Australia, the article considers the ways in which Australia’s resettlement policies and political narratives have nonetheless increasingly participated in tropes familiar to classical antinomian political theology, not least that resettlement is tied to a redemptive generosity of the State that works to denigrate and undermine the legal obligations demanded by those who arrive irregularly by boat. The article also critiques the use of “vulnerability” as a touchstone principle for the fair allocation of scarce resettlement places, and its propensity to be used for cherry-picking purposes. Finally, as part of the argument that resettlement is susceptible to being used as a vehicle for those motivated by more explicit theological concerns, the article explores the leveraging for political, redemptive, and eschatological purposes of images and narratives of the “martyred” middle-eastern Christian.

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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

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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Not-for-Profit Law and Freedom of Religion

Author(s): Pauline Ridge

The discussion in this chapter of particular intersections between English not-for-profit law and the right to freedom of religion highlights some problems in the existing law. The following suggestions for reform merit further attention. First, ‘religion’ should be defined as widely as possible in order to protect freedom of religion and to promote clarity in legal reasoning. Secondly, in relation to Article 14’s application to religious groups a conceptual framework is needed to determine when it is legitimate for the State to discriminate between religious groups by way of fiscal policy and to more clearly delineate the margin of appreciation afforded to the State when doing so.

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Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

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Modern Equity: Revolution or Renewal from Within?

Author(s): Pauline Ridge

Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.

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Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

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Rights, Religious Pluralism and the Recognition of Difference: Off the scales of justice

Author(s):

Human rights and their principles of interpretation are the leading legal paradigms of our time. Freedom of religion occupies a pivotal position in rights discourses, and the principles supporting its interpretation receive increasing attention from courts and legislative bodies. This book critically evaluates religious pluralism as an emerging legal principle arising from attempts to define the boundaries of  freedom of religion. It examines religious pluralism as an underlying aspect of different human rights regimes and constitutional traditions.

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Centre: CIPL

Research theme: Human Rights Law and Policy, Law and Religion

Europe at the Edge of Pluralism

Europe at the Edge of Pluralism

Editor(s): , Magdalena Kmak

This volume tackles contemporary problems of legal accommodation of diversity in Europe and recent developments in the area in diverse European legal regimes. Despite professing the motto 'Unity in Diversity,' Europe appears to be struggling with discord rather than unity. Legal discussions reflect a crisis when it comes to matters of migration, accommodation of minorities, and dealing with the growing heterogeneity of European societies. The book illustrates that the current legal conundrums stem from European oscillation between, on the one hand, acknowledging the need of accommodation, and, on the other, the tendencies to preserve existing legal traditions. It claims that these opposite tendencies have led Europe to the edge of pluralism. This 'edge' - just as with the linguistic interpretation of the word 'edge' - carries multiple meanings, conveying a plethora of problems encountered by law when dealing with diversity. The book explores and illustrates these multiple 'edges of pluralism,' tracing back their origins and examining the contemporary legal conundrums they have led to.

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Centre: CIPL

Research theme: Human Rights Law and Policy, Law and Gender, Law and Religion, Migration and Movement of Peoples

Adventures in the Grey Zone

Adventures in the Grey Zone: Constitutionalism, Rights and the Review of Executive Power in the Migration Context

Author(s): Matthew Zagor

The physical and legal isolation of the irregularly arriving non-citizen in Australia is a product of various legal strategies, from legislation mandating detention to the experimental 'excision' of parts of the country from the operation of statute and the scrutiny of the courts. Australia's innovative use of legislation to carve out spaces within which an unencumbered sovereign executive power can expand has unsurprisingly seen commentators turn to cosmological metaphors. This chapter builds upon David Dyzhenhaus' nuanced description of these spaces as 'grey holes' where the impression of legality is created by legislative and judicial endorsement of strategies which exclude meaningful judicial review of executive conduct. By reference to five recent cases in which these strategies were challenged, it explores the curious attempt to use the law in order to suspend the law, the changeable role of the judiciary in both consolidating and piercing these legislatively carved exclusionary zones, and the muscular anti-dialogic reassertion of legislative dominance that invariably accompanies perceived judicial interference. The chapter's principal aim is to use these case studies to map out the current state of both constitutional doctrine and institutional relations with respect to the rights of non-citizens in the exercise of executive power in Australia. It contrasts the notorious rights reluctance of the Australian political system and its culture of deference and trust in the executive with the impressive architecture of administrative justice developed over the past three decades, and considers the tension that surrounds contemporary appeals to 'sovereignty' as source of power, as well as the contentious role played by traditional legalism as both a shield and a sword in the court's juridical arsenal for scrutinizing rights-precluding executive conduct.

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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

Cognitive Dissonance

Cognitive Dissonance: The Catholic Church and International Human Rights Law Discourse

Author(s): Alex Bruce

On 10 December 2008, the world celebrated the 60th anniversary of the Universal Declaration of Human Rights (‘the UDHR’). A formative influence on the UDHR was the Catholic social justice tradition and during his long pontificate, John Paul II described the UDHR as ‘one of the highest expressions of the human conscience of our time.’ John Paul II was repeatedly nominated for the Nobel Peace Prize for his emphasis on the importance of human rights.

However, after his death in April 2005, commentators began a concerted attack on the human rights record of the Church generally and John Paul II particularly. John Paul II had allegedly ‘waged a ceaseless war against human rights’, and had done ‘more to spread AIDS in Africa than prostitution and the trucking industry combined’. These attacks were deeply ironic given John Paul II’s consistently expressed fear that the liberal western democracies of North America and Western Europe were incubating a ‘culture of death’.

This article investigates the immense gap between these two positions by demonstrating how extreme cognitive dissonance has developed in characterising the contribution of the Church generally and John Paul II particularly to international human rights discourse. It will examine how critics are attempting to resolve this dissonance in their favour through their attacks on both the Church’s status in international law and on its teachings on particular human rights issues such as contraception and arresting the spread of the HIV/AIDS epidemic. This article will argue that these criticisms are characterised more by rhetoric than reason and as such, fail to understand the foundations of the Church’s views. As a result, the Church’s concerns about the ethical and philosophical underpinnings of various human rights initiatives of contemporary liberal democracies remain caricatured, misunderstood and ridiculed.

Given the prophetic nature of John Paul II’s warnings against a flourishing culture of death, the paper concludes that the ability of stakeholders, governments and Non-Governmental Organisations (‘NGOs’) to engage seriously with the Church in its continued presence in international law and in its approach to the philosophical foundations of international human rights discourse remains seriously flawed.

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Centre: CCL, CIPL

Research theme: Animals and the Law, Law and Religion, Private Law

Labelling Illogic? Food Animal Welfare & the Australian Consumer Law

Author(s): Alex Bruce

This article is intended as the first of two exploring whether, and to what extent an existing regulatory regime in the form of the new Australian Consumer Law ("the ACL") and the economic forces of informed consumer demand that it protects, can be employed to advance food animal welfare initiatives and the address practices associated with the religious slaughter of animals.

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Centre: CCL, CIPL

Research theme: Animals and the Law, Law and Religion, Private Law

Recognition and Narrative Identities

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

Author(s): Matthew Zagor

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

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

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Do Sacred Cows Make the Best Hamburgers

Do Sacred Cows Make the Best Hamburgers? The Legal Regulation of Religious Slaughter of Animals

Author(s): Alex Bruce

There is now a significant body of literature demonstrating the close link between religious beliefs and the choices consumers make in their purchasing decisions. Studies into the relationship between religion and consumer preferences also demonstrate the formative role that religion plays in influencing the choice of food consumption.

Despite recent and more sophisticated scientific studies suggesting that animals experience more pain when slaughtered by religious ritual, the practice is not likely to be prohibited. Although there is a general movement in Western societies toward increased recognition of animal interests and welfare, there is no philosophical consensus attributing sufficient weight to the interests of animals that would outweigh human rights claims recognised through freedom of religious practice.

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Centre: CCL, CIPL

Research theme: Animals and the Law, Law and Religion, Private Law

Elementary Considerations of Humanity

Elementary Considerations of Humanity

Author(s): Matthew Zagor

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

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Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

I am the Law

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

Author(s): Matthew Zagor

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

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Recognition and Narrative Identities

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

Author(s): Matthew Zagor

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

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

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

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Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

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

Judicial Rhetoric and Constitutional Identity

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

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

England and the Rediscovery of Constitutional Faith

England and the Rediscovery of Constitutional Faith

Author(s): Matthew Zagor

England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’.

The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.

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

Animals and the Trade Practices Act

Animals and the Trade Practices Act: The Return of the Descartes Ghost

Author(s): Alex Bruce

French philosopher Rene Descartes thought animals were little more than inanimate objects without the capacity to think or feel pain. At the time, Descartes was influenced by the prevailing mechanistic conception of the natural world in which phenomena could be explained in simple mechanical terms.

This article examines the way in which the Trade Practices Act has been utilized by various litigants when the interests of those litigants have involved animals. It suggests that the dominating philosophical influence of the Act is grounded in Cartesian principles, thus making no differentiation in principle or application between animals and other inanimate objects as economic goods.

Read on SSRN

Centre: CCL, CIPL

Research theme: Animals and the Law, Law and Religion, Private Law

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