Pub Date : 2022-01-02DOI: 10.1080/10383441.2022.2060650
Jessie Hohmann
ABSTRACT This article makes a twofold contribution to a human rights-centred response to domestic servitude as a modern form of slavery. First, it offers a conceptualisation of domestic servitude as a comprehensive and specific violation of the human right to housing, based on a reading of the right to housing as sitting at a crucial juncture of the public and private. Victims of domestic servitude experience a violation of the right to housing, the nature of which strikingly demonstrates both how housing sits at the nexus of the public and the private; and that the enjoyment of rights in both those spheres is crucial to a person’s experience of dignity, peace and security. This conceptualisation deepens our understanding of the right to housing, and the condition of domestic servitude as a violation of human rights. This article’s second aim is to demonstrate how the commitment to fulfilling the human right to housing underpins a better policy response to modern slavery in Australia. It opens a conversation on how a social rights-based response is one that would better serve victim/survivors, offering a more meaningful and targeted response to the harms they suffer.
{"title":"Conceptualising domestic servitude as a violation of the human right to housing and reframing Australian policy responses","authors":"Jessie Hohmann","doi":"10.1080/10383441.2022.2060650","DOIUrl":"https://doi.org/10.1080/10383441.2022.2060650","url":null,"abstract":"ABSTRACT This article makes a twofold contribution to a human rights-centred response to domestic servitude as a modern form of slavery. First, it offers a conceptualisation of domestic servitude as a comprehensive and specific violation of the human right to housing, based on a reading of the right to housing as sitting at a crucial juncture of the public and private. Victims of domestic servitude experience a violation of the right to housing, the nature of which strikingly demonstrates both how housing sits at the nexus of the public and the private; and that the enjoyment of rights in both those spheres is crucial to a person’s experience of dignity, peace and security. This conceptualisation deepens our understanding of the right to housing, and the condition of domestic servitude as a violation of human rights. This article’s second aim is to demonstrate how the commitment to fulfilling the human right to housing underpins a better policy response to modern slavery in Australia. It opens a conversation on how a social rights-based response is one that would better serve victim/survivors, offering a more meaningful and targeted response to the harms they suffer.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"31 1","pages":"98 - 122"},"PeriodicalIF":1.2,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41339590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-02DOI: 10.1080/10383441.2021.2016047
S. Chalmers
ABSTRACT The year 2020 marked the first meeting between an Australian government – the Government of Victoria – and First Nations in a treaty-making process. Given the importance of this, it is timely to recall a moment when another opportunity to meet was missed. That moment was a foundational one for the nascent colonial state: a public festival held in 1850 to celebrate the inauguration of the Colony of Victoria. There are two aspects to this festival that are of interest here. The first is how it was a ‘constitutional’ event involving an act of jurisdiction that gave shape to the lawful authority of the colonists, to the legal subjectivity of Aboriginal peoples, and to legal relations between the Colony and First Nations. The second aspect, implicit in the first, is how the festival was also an ‘international’ meeting, which the colonists failed to attend. As the article shows, these two aspects – the festival as constitutional event and as jurisdictional encounter – are inseparable, the success of the former being integral to the failure of the latter. And it is this failure that the colonial state must still contend with as it begins treaty negotiations almost two centuries later.
{"title":"The festival as constitutional event and as jurisdictional encounter: colonial Victoria and the Independent Order of Black Fellows","authors":"S. Chalmers","doi":"10.1080/10383441.2021.2016047","DOIUrl":"https://doi.org/10.1080/10383441.2021.2016047","url":null,"abstract":"ABSTRACT The year 2020 marked the first meeting between an Australian government – the Government of Victoria – and First Nations in a treaty-making process. Given the importance of this, it is timely to recall a moment when another opportunity to meet was missed. That moment was a foundational one for the nascent colonial state: a public festival held in 1850 to celebrate the inauguration of the Colony of Victoria. There are two aspects to this festival that are of interest here. The first is how it was a ‘constitutional’ event involving an act of jurisdiction that gave shape to the lawful authority of the colonists, to the legal subjectivity of Aboriginal peoples, and to legal relations between the Colony and First Nations. The second aspect, implicit in the first, is how the festival was also an ‘international’ meeting, which the colonists failed to attend. As the article shows, these two aspects – the festival as constitutional event and as jurisdictional encounter – are inseparable, the success of the former being integral to the failure of the latter. And it is this failure that the colonial state must still contend with as it begins treaty negotiations almost two centuries later.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"557 - 577"},"PeriodicalIF":1.2,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46015051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-02DOI: 10.1080/10383441.2021.1996891
S. Bielefeld
ABSTRACT The Australian Federal Government claims that the Cashless Debit Card (CDC) is a necessary ‘support’ that generates positive outcomes. Despite contrary evidence revealed through independent research and problems with the scheme also apparent in government-commissioned research, the dominant political narrative accompanying the CDC remains intractable. The CDC has been characterised by elites as helpful ‘practical love’ for those in need of government income support. However, many of those with lived experience of the CDC report that the scheme imposes difficulties with basic bill payment, undermines sound financial management, and stigmatises cardholders. The majority of Aboriginal and Torres Strait Islander organisations who have gone on the public record strongly condemn the scheme in its compulsory iteration, as do prominent First Nations Senators. Taking these issues into consideration, this article examines whether the CDC is best characterised as ‘redemptive’ or ‘repressive violence’. In doing so, it reflects on colonial conceptions of ‘care’, which are deeply paternalistic, and contrasts this with an approach that promotes self-determination and autonomy. This analysis is situated in the context of neoliberal marketisation of welfare state practices, where heavy handed regulatory frameworks have proven lucrative for industry interests.
{"title":"Cashless welfare transfers and Australia’s First Nations: redemptive or repressive violence?","authors":"S. Bielefeld","doi":"10.1080/10383441.2021.1996891","DOIUrl":"https://doi.org/10.1080/10383441.2021.1996891","url":null,"abstract":"ABSTRACT The Australian Federal Government claims that the Cashless Debit Card (CDC) is a necessary ‘support’ that generates positive outcomes. Despite contrary evidence revealed through independent research and problems with the scheme also apparent in government-commissioned research, the dominant political narrative accompanying the CDC remains intractable. The CDC has been characterised by elites as helpful ‘practical love’ for those in need of government income support. However, many of those with lived experience of the CDC report that the scheme imposes difficulties with basic bill payment, undermines sound financial management, and stigmatises cardholders. The majority of Aboriginal and Torres Strait Islander organisations who have gone on the public record strongly condemn the scheme in its compulsory iteration, as do prominent First Nations Senators. Taking these issues into consideration, this article examines whether the CDC is best characterised as ‘redemptive’ or ‘repressive violence’. In doing so, it reflects on colonial conceptions of ‘care’, which are deeply paternalistic, and contrasts this with an approach that promotes self-determination and autonomy. This analysis is situated in the context of neoliberal marketisation of welfare state practices, where heavy handed regulatory frameworks have proven lucrative for industry interests.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"597 - 620"},"PeriodicalIF":1.2,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41906731","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-02DOI: 10.1080/10383441.2021.1996890
T. Mitchell
ABSTRACT Even though approximately 97% of criminal offences are finalised in the summary jurisdiction, the High Court has only considered the nature of summary jurisdiction once: in 1930 in Munday v Gill. In that case, Isaacs CJ and Dixon J provided different characterisations of the summary jurisdiction. According to Dixon J, in the majority, in the summary jurisdiction efficiency may be prioritised over strict adherence to common law protections of the accused because it deals with minor criminal matters that are between subject and subject. In dissent, Isaacs CJ characterised summary criminal matters as between the Crown and subject, arguing that common law protections are as important in the summary jurisdiction as in the higher courts. Dixon J’s judgment is still cited as an accurate characterisation of the summary jurisdiction today, and yet the summary jurisdiction has transformed in the nine decades that have elapsed since the case was decided. This is reason to think Munday v Gill should be revisited. This article offers a critical analysis of the case by placing it in its social and historical context, showing that Isaacs CJ’s characterisation is more relevant today than that of Dixon J. It makes the case that because of this transformation, it is necessary to re-think the nature of a fair trial in the summary jurisdiction.
{"title":"Munday v Gill revisited: rethinking the summary jurisdiction","authors":"T. Mitchell","doi":"10.1080/10383441.2021.1996890","DOIUrl":"https://doi.org/10.1080/10383441.2021.1996890","url":null,"abstract":"ABSTRACT Even though approximately 97% of criminal offences are finalised in the summary jurisdiction, the High Court has only considered the nature of summary jurisdiction once: in 1930 in Munday v Gill. In that case, Isaacs CJ and Dixon J provided different characterisations of the summary jurisdiction. According to Dixon J, in the majority, in the summary jurisdiction efficiency may be prioritised over strict adherence to common law protections of the accused because it deals with minor criminal matters that are between subject and subject. In dissent, Isaacs CJ characterised summary criminal matters as between the Crown and subject, arguing that common law protections are as important in the summary jurisdiction as in the higher courts. Dixon J’s judgment is still cited as an accurate characterisation of the summary jurisdiction today, and yet the summary jurisdiction has transformed in the nine decades that have elapsed since the case was decided. This is reason to think Munday v Gill should be revisited. This article offers a critical analysis of the case by placing it in its social and historical context, showing that Isaacs CJ’s characterisation is more relevant today than that of Dixon J. It makes the case that because of this transformation, it is necessary to re-think the nature of a fair trial in the summary jurisdiction.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"578 - 596"},"PeriodicalIF":1.2,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42056983","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10383441.2022.2037882
Jade-Ann Reeves, Timothy D. Peters
ABSTRACT This article critically analyses the novelty of the legal personhood of nature and, in particular, whether it signals cracks in the anthropocentrism of Western law. Drawing upon the work of Michel Foucault and Roberto Esposito, it contributes to the theorisation of environmental personhood by focusing on the biopolitical nature of personhood itself. It does so by engaging in a critical examination of the attribution of legal personality to the Whanganui River in Aotearoa New Zealand as the most detailed and sophisticated legislative example to date of legally personifying a natural thing. Working through three key conceptual terms in Foucault’s and Esposito’s work (population, personhood and immunisation), we demonstrate the way in which a biopolitical analysis raises questions about whether ascribing legal personhood to nature addresses anthropocentrism and its effects. We draw attention to the risk of ascribing legal personhood to nature, which is that, instead of signalling an ontological shift in the Western anthropocentric understandings of environment, it operates within and reinforces the dominant legal worldview – unless, that is, the granting of personhood to nature calls into question the dominant paradigm of personhood itself. The article concludes by suggesting alternative ways of developing human understandings of, and relationship with, nature.
{"title":"Responding to anthropocentrism with anthropocentrism: the biopolitics of environmental personhood","authors":"Jade-Ann Reeves, Timothy D. Peters","doi":"10.1080/10383441.2022.2037882","DOIUrl":"https://doi.org/10.1080/10383441.2022.2037882","url":null,"abstract":"ABSTRACT This article critically analyses the novelty of the legal personhood of nature and, in particular, whether it signals cracks in the anthropocentrism of Western law. Drawing upon the work of Michel Foucault and Roberto Esposito, it contributes to the theorisation of environmental personhood by focusing on the biopolitical nature of personhood itself. It does so by engaging in a critical examination of the attribution of legal personality to the Whanganui River in Aotearoa New Zealand as the most detailed and sophisticated legislative example to date of legally personifying a natural thing. Working through three key conceptual terms in Foucault’s and Esposito’s work (population, personhood and immunisation), we demonstrate the way in which a biopolitical analysis raises questions about whether ascribing legal personhood to nature addresses anthropocentrism and its effects. We draw attention to the risk of ascribing legal personhood to nature, which is that, instead of signalling an ontological shift in the Western anthropocentric understandings of environment, it operates within and reinforces the dominant legal worldview – unless, that is, the granting of personhood to nature calls into question the dominant paradigm of personhood itself. The article concludes by suggesting alternative ways of developing human understandings of, and relationship with, nature.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"474 - 504"},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41365392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10383441.2021.1996881
Visa A. J. Kurki
ABSTRACT This article seeks to contribute to a theoretical framework for understanding the status of children as legal persons in Western legal systems. Analytic legal philosophers have done much work in analysing concepts relevant for understanding the legal status of children. However, they have usually not approached childhood as a topic that warrants investigation in its own right, distinct from both infancy and adulthood. The article presents two main arguments. It will, first, argue against the occasional claim – made especially by some scholars working in the civil-law tradition – that even infants have the legal capacity to bear duties under private law. The article challenges this conception: such duties are borne by the infants’ representatives, and infants should therefore be seen as purely passive legal persons. The article then turns to legal competences held by children. Insufficient attention has been paid to the idiosyncratic features of children’s competences. A new framework is offered, which distinguishes three categories of competences: independent competences, negative competences, and dependent competences. Independent competences enable their holder to effect a legal change that, ordinarily, cannot be prevented by others. The latter two types of competences are particularly relevant in the case of children.
{"title":"Active but not independent: the legal personhood of children","authors":"Visa A. J. Kurki","doi":"10.1080/10383441.2021.1996881","DOIUrl":"https://doi.org/10.1080/10383441.2021.1996881","url":null,"abstract":"ABSTRACT This article seeks to contribute to a theoretical framework for understanding the status of children as legal persons in Western legal systems. Analytic legal philosophers have done much work in analysing concepts relevant for understanding the legal status of children. However, they have usually not approached childhood as a topic that warrants investigation in its own right, distinct from both infancy and adulthood. The article presents two main arguments. It will, first, argue against the occasional claim – made especially by some scholars working in the civil-law tradition – that even infants have the legal capacity to bear duties under private law. The article challenges this conception: such duties are borne by the infants’ representatives, and infants should therefore be seen as purely passive legal persons. The article then turns to legal competences held by children. Insufficient attention has been paid to the idiosyncratic features of children’s competences. A new framework is offered, which distinguishes three categories of competences: independent competences, negative competences, and dependent competences. Independent competences enable their holder to effect a legal change that, ordinarily, cannot be prevented by others. The latter two types of competences are particularly relevant in the case of children.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"395 - 412"},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48361707","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10383441.2022.2035947
Eilionóir Flynn
ABSTRACT The negotiation of the United Nations Convention on the Rights of Persons with Disabilities and in particular Article 12 on Equal Recognition Before the Law, has given rise to new understandings, descriptions and definitions of legal personhood. Emerging international jurisprudence has focused on the point at which restrictions on the exercise of legal capacity amount to a violation of an individual’s legal personhood. With this new thinking comes a need for new terminology, but also the risk that new terms may be applied to old concepts without a full understanding of the paradigm shift required. This article will explore the symbolic power of the language governing individuals’ exercise of legal capacity, its relationship to notions of personhood and legal agency and its codification in law. In particular, it will examine the cognitive dissonance often present in domestic laws which purport to implement Article 12, which state their desire to ‘empower’ disabled people and to recognise their personhood, while simultaneously describing how individuals’ legal agency can be restricted or denied. Drawing on ideas of epistemic disruption (Yamin, 2009; Fricker, 2007), this article considers how we might reframe legislative language to better reflect the radical ideology of Article 12.
{"title":"Law, language and personhood: disrupting definitions of legal capacity","authors":"Eilionóir Flynn","doi":"10.1080/10383441.2022.2035947","DOIUrl":"https://doi.org/10.1080/10383441.2022.2035947","url":null,"abstract":"ABSTRACT The negotiation of the United Nations Convention on the Rights of Persons with Disabilities and in particular Article 12 on Equal Recognition Before the Law, has given rise to new understandings, descriptions and definitions of legal personhood. Emerging international jurisprudence has focused on the point at which restrictions on the exercise of legal capacity amount to a violation of an individual’s legal personhood. With this new thinking comes a need for new terminology, but also the risk that new terms may be applied to old concepts without a full understanding of the paradigm shift required. This article will explore the symbolic power of the language governing individuals’ exercise of legal capacity, its relationship to notions of personhood and legal agency and its codification in law. In particular, it will examine the cognitive dissonance often present in domestic laws which purport to implement Article 12, which state their desire to ‘empower’ disabled people and to recognise their personhood, while simultaneously describing how individuals’ legal agency can be restricted or denied. Drawing on ideas of epistemic disruption (Yamin, 2009; Fricker, 2007), this article considers how we might reframe legislative language to better reflect the radical ideology of Article 12.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"374 - 394"},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43927878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10383441.2021.2003743
Rachael Mortiaux
ABSTRACT The health and integrity of New Zealand’s essential coastal marine area is deteriorating, while a fragmented and inadequately implemented statutory framework fails to effectively manage threats to New Zealand’s marine environment. In an attempt to respond to these issues, I suggest that legal personhood could be used to support increased environmental protection of marine areas and resources. Drawing on comparative examples from New Zealand and internationally, I consider the recognition of ecosystems as legal persons within regulatory and governance models, and argue that legal personhood could similarly be applied to New Zealand’s coastal marine area. If implemented correctly, I argue that legal personhood could, critically, shift the relationship between humans and Nature, thereby elevating the interests of the coastal marine area above those who exploit it, and support more collaborative and holistic environmental management.
{"title":"Righting Aotearoa’s coastal marine area: a case for legal personhood to enhance environmental protection","authors":"Rachael Mortiaux","doi":"10.1080/10383441.2021.2003743","DOIUrl":"https://doi.org/10.1080/10383441.2021.2003743","url":null,"abstract":"ABSTRACT The health and integrity of New Zealand’s essential coastal marine area is deteriorating, while a fragmented and inadequately implemented statutory framework fails to effectively manage threats to New Zealand’s marine environment. In an attempt to respond to these issues, I suggest that legal personhood could be used to support increased environmental protection of marine areas and resources. Drawing on comparative examples from New Zealand and internationally, I consider the recognition of ecosystems as legal persons within regulatory and governance models, and argue that legal personhood could similarly be applied to New Zealand’s coastal marine area. If implemented correctly, I argue that legal personhood could, critically, shift the relationship between humans and Nature, thereby elevating the interests of the coastal marine area above those who exploit it, and support more collaborative and holistic environmental management.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"413 - 437"},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46374018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10383441.2021.1982119
E. Macpherson, Axel Borchgrevink, R. Ranjan, Catalina Vallejo Piedrahíta
ABSTRACT Laws that recognise rivers and their ecosystems as legal persons or subjects with their own rights, duties and obligations have been associated with theories of environmental constitutionalism. However, the extent to, and manner in which, constitutional law (with its elevated status) has been instrumental in the conferral of these ‘riverine rights’ is still not well-understood. In this article, we consider the constitutional relevance of the recognition of rivers as legal persons or subjects in Aotearoa New Zealand, Colombia and India. We argue that in these three countries riverine rights are constitutional experiments: as small-scale, ad hoc and ultimately incomplete attempts to transcend seemingly ineffective regulatory frameworks for rivers. However, they are also incremental, and influential, steps in a broader project of more fundamental social and environmental reform.
{"title":"Where ordinary laws fall short: ‘riverine rights’ and constitutionalism","authors":"E. Macpherson, Axel Borchgrevink, R. Ranjan, Catalina Vallejo Piedrahíta","doi":"10.1080/10383441.2021.1982119","DOIUrl":"https://doi.org/10.1080/10383441.2021.1982119","url":null,"abstract":"ABSTRACT Laws that recognise rivers and their ecosystems as legal persons or subjects with their own rights, duties and obligations have been associated with theories of environmental constitutionalism. However, the extent to, and manner in which, constitutional law (with its elevated status) has been instrumental in the conferral of these ‘riverine rights’ is still not well-understood. In this article, we consider the constitutional relevance of the recognition of rivers as legal persons or subjects in Aotearoa New Zealand, Colombia and India. We argue that in these three countries riverine rights are constitutional experiments: as small-scale, ad hoc and ultimately incomplete attempts to transcend seemingly ineffective regulatory frameworks for rivers. However, they are also incremental, and influential, steps in a broader project of more fundamental social and environmental reform.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"438 - 473"},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48563901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/10383441.2021.2044440
N. Naffine
I am honoured to write the foreword for these new writings on legal personhood. I find them stimulating and provocative and I wish to rise to their provocations. They have pressed me to see law, and the idea of its subject, according to other world views. I want to engage with this new body of work, albeit briefly, and offer my counter provocations. There is a richness of material and ideas on offer here and a great range of themes, as the authors inquire into the legal status of corporations, people with a disability, children, and non-human life and entities. One concern I have is with the suggestion of several writers that natural entities, such as rivers, have intention and wisdom, even a spiritual dimension, and for this among other reasons should be recognised as persons. The reason for my disquiet is not the cosmologies themselves (after all we are all embedded in belief systems), but their invocation as a moral and legal basis of personhood. The problem is that this style of argument has an unwitting and unfortunate similarity to the approach adopted by influential British men to endow themselves with power via the concept of the legal person. For they too invoked a set of deep beliefs in their natural value and they were convinced that it made them quite naturally persons. In other words, (as the editors observe) the concept of the legal person has been used to consolidate the power of white Western men and they did so by claiming that by nature they were the right type of beings for personhood and legal subjecthood. Their idea was that educated white men had innately superior qualities which women lacked, and that law should follow nature; it should follow the man. Therefore, only men should be persons. Thus the concept of the person was openly deployed by the senior men of British law to advance the interests of their sex and to subjugate women. It was used by some of the most distinguished men of law who have remained revered figures in the legal pantheon. These men said explicitly that they as men were, in essence, natural and moral agents and they should therefore have the rights that such superior beings demanded. This claim to natural rightness and superiority was asserted without supporting evidence and yet it was advanced with total conviction. For this was how these men understood themselves to be. It was their belief system. The enduring effect of these deeply self-serving unconsidered convictions about male right has been departure from principle and the abuse of what might have been regarded as the natural rights of the other half of the population. The claims of male right have never been closely inspected, within mainstream jurisprudence, let alone made the subject of critical evaluation or apology. Personhood, therefore, has a worrying history. My continuing concern is that as grants of personhood are being sought for nonhuman beings and natural entities, to protect them from human depredation, the case for these grants o
{"title":"The perils of personhood: a foreword","authors":"N. Naffine","doi":"10.1080/10383441.2021.2044440","DOIUrl":"https://doi.org/10.1080/10383441.2021.2044440","url":null,"abstract":"I am honoured to write the foreword for these new writings on legal personhood. I find them stimulating and provocative and I wish to rise to their provocations. They have pressed me to see law, and the idea of its subject, according to other world views. I want to engage with this new body of work, albeit briefly, and offer my counter provocations. There is a richness of material and ideas on offer here and a great range of themes, as the authors inquire into the legal status of corporations, people with a disability, children, and non-human life and entities. One concern I have is with the suggestion of several writers that natural entities, such as rivers, have intention and wisdom, even a spiritual dimension, and for this among other reasons should be recognised as persons. The reason for my disquiet is not the cosmologies themselves (after all we are all embedded in belief systems), but their invocation as a moral and legal basis of personhood. The problem is that this style of argument has an unwitting and unfortunate similarity to the approach adopted by influential British men to endow themselves with power via the concept of the legal person. For they too invoked a set of deep beliefs in their natural value and they were convinced that it made them quite naturally persons. In other words, (as the editors observe) the concept of the legal person has been used to consolidate the power of white Western men and they did so by claiming that by nature they were the right type of beings for personhood and legal subjecthood. Their idea was that educated white men had innately superior qualities which women lacked, and that law should follow nature; it should follow the man. Therefore, only men should be persons. Thus the concept of the person was openly deployed by the senior men of British law to advance the interests of their sex and to subjugate women. It was used by some of the most distinguished men of law who have remained revered figures in the legal pantheon. These men said explicitly that they as men were, in essence, natural and moral agents and they should therefore have the rights that such superior beings demanded. This claim to natural rightness and superiority was asserted without supporting evidence and yet it was advanced with total conviction. For this was how these men understood themselves to be. It was their belief system. The enduring effect of these deeply self-serving unconsidered convictions about male right has been departure from principle and the abuse of what might have been regarded as the natural rights of the other half of the population. The claims of male right have never been closely inspected, within mainstream jurisprudence, let alone made the subject of critical evaluation or apology. Personhood, therefore, has a worrying history. My continuing concern is that as grants of personhood are being sought for nonhuman beings and natural entities, to protect them from human depredation, the case for these grants o","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"337 - 338"},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47038742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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