Pub Date : 2021-07-03DOI: 10.1080/10383441.2021.2044438
E. O’Donnell, Anna Arstein-Kerslake
The twenty-first century has already been characterised by substantive shifts in theory and law on legal personhood. There have been profound legal commitments to the full personhood of disabled people, dramatic new applications of personhood to natural entities such as rivers, and ongoing debates on the legal personhood of animals, artificial intelligence, and corporations and their public interest responsibilities. These shifts present an opportunity to re-examine our understanding of legal personhood. We may be able to move away from the white, European, able-bodied, cis-gender male approach to legal personhood that has dominated much of the world. This dominant approach was developed throughout the last several centuries and has largely met the needs of feudal lords, slave owners, colonial settlers, husbands, capitalists, and others that have held positions of social privilege and had the power and freedom to influence the development of theory and law. In line with the interests of these groups, the approach to legal personhood that has developed is largely in line with liberal political values that prioritise individualism and often ignores the relational nature of our socio-legal world. It emphasises the role of the state as one of non-interference with the freedom of the individual. However, this definition assumes that the individual has the power and privilege necessary to move deftly through the socio-legal world to secure their rights and interests. It disadvantages most groups and individuals that are not experiencing high levels of power and privilege and doesn’t recognise the inherent interdependence that we all live within and benefit from. In describing her concern related to this dominant conception of personhood, Ngaire Naffine stated:
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Pub Date : 2021-07-03DOI: 10.1080/10383441.2021.2003744
Anna Arstein-Kerslake, E. O’Donnell, Rosemary Kayess, Joanne M Watson
ABSTRACT People with disability have demanded the recognition of full legal personhood in order to realise their rights and to overcome dominance and oppression. Legal personhood is also being claimed for similar reasons for natural entities, including rivers, forests, and mountains. However, the prevailing neo-liberal understanding of legal personhood relies on the individual exercising personhood independently. This may not be enough to secure the interests and realise the rights of people with disability, natural entities, or other cohorts that are not experiencing a wealth of power and privilege. In this article, we attempt to overcome centuries of (white, able-bodied, cis gender) male centric theory of legal personhood. We reject the dominant conceptions of personhood from liberal political theory that emphasise an atomistic, isolated individual making independent decisions. Instead, we argue for a different conception of legal personhood – relational personhood. We use insights from feminist theories of relational autonomy as well as the experience of disability to help us re-conceptualise personhood to embrace exercising autonomy through a collaborative process of acknowledging, interpreting and acting on an individual’s expressions of will and preference. We then apply this new conception to the recognition of legal personhood in nature and explore how natural entities can exercise their personhood via their relationships with humans – and, in particular, Indigenous Peoples, who have developed close relationships with natural entities over centuries. Our aim is to demonstrate the utility of a conception of legal personhood that encompass the reality of the interdependence of all individuals and entities.
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Pub Date : 2021-07-03DOI: 10.1080/10383441.2021.1996882
Alessandro Pelizzon, Anne Poelina, Afshin Akhtar-Khavari, Cristy Clark, Sarah Laborde, Elizabeth Macpherson, K. O’Bryan, Erin O’Donnell, J. Page
ABSTRACT Since the momentous release of the Montecristi Constitution of Ecuador in 2008, which recognised Nature, or Pacha Mama, as a subject of rights, the rights of Nature movement across the world has gained exponential momentum, with numerous jurisdictions worldwide now recognising some form of legal subjectivity vested upon Nature. In particular, since 2017, river personhood has dominated news headlines around the world as one of the most recognisable forms of Nature’s novel subjectivity. The emergence of legal personhood for nature, however, has been far from uncontroversial, and numerous critiques have been advanced against the use of such a legal category – traditionally applied to humans and their abstract creations (such as States and corporations) – to the natural world, resulting in numerous calls for an alternative category of legal personhood (one that some rights of Nature advocates have termed an ‘environmental person’). Against the backdrop of this emerging debate, this paper acknowledges the work undertaken by the Martuwarra Fitzroy River Council (Martuwarra Council), which was established in 2018 in the Kimberley region of Western Australia by six independent Indigenous nations to preserve, promote and protect their ancestral River from ongoing destructive ‘development’. The Council believes it is time to recognise the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. This paper, therefore, begins with a dialogical translation of one First Law story relating to Yoongoorrookoo, the ancestral serpent being, to create a semantic bridge between two apparently distant legal worldviews. A dialogical comparative analysis is then followed to posit and explore the concept of an ‘ancestral person’ as a novel comparative tool that may be able not only to capture the idea of Nature as a legal subject, but also complex Indigenous worldviews that see Nature – in this case instantiated in the Martuwarra – as an ancestral being enmeshed in a relationship of interdependence and guardianship between the human and the nonhuman world. To instantiate and embody such relationships, the paper directly, and somewhat provocatively, acknowledges the River itself, the Martuwarra RiverOfLife, as the primary participant in such dialogue, an embodied non-human co-author who began a conversation then left to human writers to continue.
自2008年《厄瓜多尔蒙特克里斯蒂宪法》(Montecristi Constitution of Ecuador，简称Pacha Mama)颁布以来，全球范围内的自然权利运动获得了指数级的发展势头，世界各地的许多司法管辖区现在都承认某种形式的法律主体性赋予了自然。特别是，自2017年以来，河流人格作为大自然新颖主体性的最可识别形式之一，占据了世界各地的新闻头条。然而，自然法律人格的出现远非没有争议，许多批评已经提出反对使用这种法律类别-传统上适用于人类及其抽象创造(如国家和公司)-对自然界，导致许多人呼吁另一种法律人格类别(一些自然权利倡导者称之为“环境人”)。在这一新兴辩论的背景下，本文承认马图瓦拉菲茨罗伊河理事会(马图瓦拉理事会)所做的工作，该理事会于2018年由六个独立的土著民族在西澳大利亚金伯利地区成立，旨在保护、促进和保护其祖先的河流免受持续的破坏性“开发”。理事会认为，现在是时候承认与河流有关的土著法律或“第一法律”的现有和持续的法律权威，以便通过法律非殖民化进程保持其完整性。《第一定律》与殖民时期的《第一定律》明显不同，因为它的原则不是用规则、政策和程序来表达的，而是通过故事来表达的。因此，本文从一个关于Yoongoorrookoo(蛇的祖先)的第一定律故事的对话翻译开始，在两种明显遥远的法律世界观之间建立一个语义桥梁。然后进行对话比较分析，假设和探索“祖先人”的概念，作为一种新的比较工具，它不仅可以捕捉到自然作为法律主体的概念，而且还可以捕捉到复杂的土著世界观，即将自然视为人类和非人类世界之间相互依存和监护关系的祖先-在这种情况下，Martuwarra的例子就是如此。为了实例化和体现这种关系，这篇论文直接地，有点挑衅地承认，这条河本身，即马图瓦拉生命之河，是这种对话的主要参与者，是一个化身的非人类合作者，他开始了一场对话，然后留给人类作家继续。
{"title":"Yoongoorrookoo","authors":"Alessandro Pelizzon, Anne Poelina, Afshin Akhtar-Khavari, Cristy Clark, Sarah Laborde, Elizabeth Macpherson, K. O’Bryan, Erin O’Donnell, J. Page","doi":"10.1080/10383441.2021.1996882","DOIUrl":"https://doi.org/10.1080/10383441.2021.1996882","url":null,"abstract":"ABSTRACT Since the momentous release of the Montecristi Constitution of Ecuador in 2008, which recognised Nature, or Pacha Mama, as a subject of rights, the rights of Nature movement across the world has gained exponential momentum, with numerous jurisdictions worldwide now recognising some form of legal subjectivity vested upon Nature. In particular, since 2017, river personhood has dominated news headlines around the world as one of the most recognisable forms of Nature’s novel subjectivity. The emergence of legal personhood for nature, however, has been far from uncontroversial, and numerous critiques have been advanced against the use of such a legal category – traditionally applied to humans and their abstract creations (such as States and corporations) – to the natural world, resulting in numerous calls for an alternative category of legal personhood (one that some rights of Nature advocates have termed an ‘environmental person’). Against the backdrop of this emerging debate, this paper acknowledges the work undertaken by the Martuwarra Fitzroy River Council (Martuwarra Council), which was established in 2018 in the Kimberley region of Western Australia by six independent Indigenous nations to preserve, promote and protect their ancestral River from ongoing destructive ‘development’. The Council believes it is time to recognise the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. This paper, therefore, begins with a dialogical translation of one First Law story relating to Yoongoorrookoo, the ancestral serpent being, to create a semantic bridge between two apparently distant legal worldviews. A dialogical comparative analysis is then followed to posit and explore the concept of an ‘ancestral person’ as a novel comparative tool that may be able not only to capture the idea of Nature as a legal subject, but also complex Indigenous worldviews that see Nature – in this case instantiated in the Martuwarra – as an ancestral being enmeshed in a relationship of interdependence and guardianship between the human and the nonhuman world. To instantiate and embody such relationships, the paper directly, and somewhat provocatively, acknowledges the River itself, the Martuwarra RiverOfLife, as the primary participant in such dialogue, an embodied non-human co-author who began a conversation then left to human writers to continue.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"505 - 529"},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42087219","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: 10.1080/10383441.2021.2003742
M. Worthington, P. Spender
ABSTRACT Legal personality – its nature and function – has become a topic of renewed interest. In particular, there is increasing interest in extending existing categories of legal personality. While contemporary discussion of legal personality is directed at comparably novel ends, aspects of the discussion are familiar, mirroring broader patterns of thought evident in historical treatments of the subject. Most familiar of all is the pronounced conceptual uncertainty that continues to surround legal personality as a device. This uncertainty may compromise efforts to successfully create and manage new forms of legal person. Proceeding from an understanding of legal personality as function, and the elements of legal personality as the terms of a licence, we explore considerations essential to the effective design of synthetic legal persons, including the need for clarity with respect to immediate purpose, designated legal capacities and the conditions against which the grant of legal personality might be made by the State. Drawing on the historical example of the corporation as the first truly ‘synthetic' legal person in Anglo-Australian law we tell a cautionary tale about the conferral of synthetic legal personality, contrasting the flawed design of the corporate device with that of new ‘environmental' devices, including New Zealand’s Whanganui River.
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Pub Date : 2021-04-03DOI: 10.1080/10383441.2021.1925410
Chris Dent
ABSTRACT Patents for invention have a history that goes back centuries in England. As a result, they can be used to interrogate changes in the practices of governance that occurred over that time (and further back). Using the ideas of Michel Foucault, that described the conditions of possibility for ‘governmentality’, an analysis of patents over military equipment allows a reconception of Foucault’s modes of governance. Military patents facilitate the goals of research, given the centrality of the monopolies of the use of force in the modern state. The revised model presented here indicates that over the millennium governance shifted from feudal, to the governmentalist, via a period that was neither fully feudal, nor fully governmental.
{"title":"Patents over military equipment: shifting uses for shifting modes of governance","authors":"Chris Dent","doi":"10.1080/10383441.2021.1925410","DOIUrl":"https://doi.org/10.1080/10383441.2021.1925410","url":null,"abstract":"ABSTRACT Patents for invention have a history that goes back centuries in England. As a result, they can be used to interrogate changes in the practices of governance that occurred over that time (and further back). Using the ideas of Michel Foucault, that described the conditions of possibility for ‘governmentality’, an analysis of patents over military equipment allows a reconception of Foucault’s modes of governance. Military patents facilitate the goals of research, given the centrality of the monopolies of the use of force in the modern state. The revised model presented here indicates that over the millennium governance shifted from feudal, to the governmentalist, via a period that was neither fully feudal, nor fully governmental.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"295 - 312"},"PeriodicalIF":1.2,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1925410","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46033819","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 : 2021-04-03DOI: 10.1080/10383441.2021.1895542
G. Golding
ABSTRACT The notion of employment as a relational contract has received much academic attention and is gradually being recognised by common law courts in judicial decision-making. This article focuses on a primary question: what impact, if any, could that relational classification have on the remedies available where an employment contract is breached? Given that this question has not yet been considered judicially, and only mentioned in passing in academic writing, this article seeks to probe the question by traversing existing judicial and academic understandings of employment contracts as relational in nature. It then considers the potential impact that the relational classification may have on the remedies available to employees whose employment contracts have been wrongfully terminated by their employer. Three options are put forward in respect of the potential impact on the remedy available for breach, each of which is underpinned by a combined theoretical and doctrinal analysis. First, it is suggested that awards for specific performance may become more prevalent. Secondly, there may be a place for a special category of relational damages. Finally, it is acknowledged that the relational classification may end up having no impact on the available remedy at all.
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Pub Date : 2021-04-03DOI: 10.1080/10383441.2021.1925411
Tamara Tulich, S. Murray, Natalie Skead
ABSTRACT Preventive justice as a field of scholarship emerged in response to the proliferation of preventive measures in the later part of the twentieth Century, and the threat preventive measures pose to individual liberties. Collectively, this scholarship seeks to articulate principled limits on state action to prevent harm. However, preventive justice remains an emergent field of scholarship, with many outstanding questions about its scope, utility and the expediency of its normative project. In the decision in Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236, the High Court, for the first time, engages with preventive justice scholarship. This article examines how the distinctions between the majority and minority treatment of the Kable principle in Vella illuminate many of the debates and challenges raised in the literature on preventive justice, the implications of this division across the Court and what it means more broadly for preventive justice in Australia.
摘要预防性司法作为一个学术领域，是在20世纪后半叶预防性措施泛滥以及预防性措施对个人自由构成威胁的情况下出现的。总的来说，这项研究试图阐明国家防止伤害行动的原则限制。然而，预防性司法仍然是一个新兴的学术领域，其规范性项目的范围、效用和便利性存在许多悬而未决的问题。在Vella v Commissioner of Police（NSW）（2019）93 ALJR 1236的裁决中，高等法院首次参与了预防性司法奖学金。本文探讨了Vella案中对Kable原则的多数人和少数人待遇之间的区别如何阐明了关于预防性司法的文献中提出的许多辩论和挑战，这种划分对整个法院的影响，以及它对澳大利亚预防性司法更广泛的意义。
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Pub Date : 2021-04-03DOI: 10.1080/10383441.2021.1895546
C. Dellora, Luke Beck
ABSTRACT This article presents the first comprehensive overview and analysis of the Australian law and practice of imposing fees for unrequested police services. It acts on Lippert and Walby’s recent call for scholarly analysis of user-pays policing ‘to break free of standard disciplinary confines’. One aim of this paper therefore is to start filling this gap in the literature by giving more prominence to substantive legal analyses of user-pays policing. The purpose of this article is both practical and analytical. The practical purpose of this article is to contribute to the literature by providing a detailed examination of the legal framework for imposing fees for unrequested police services in Australia. The analytical purpose of this article is two-fold: to isolate imposing fees for police services as a distinct category of user-pays policing and to critically evaluate the practice of imposing fees for police services in one Australian jurisdiction as a case study.
{"title":"Imposing fees for police services in Australia","authors":"C. Dellora, Luke Beck","doi":"10.1080/10383441.2021.1895546","DOIUrl":"https://doi.org/10.1080/10383441.2021.1895546","url":null,"abstract":"ABSTRACT This article presents the first comprehensive overview and analysis of the Australian law and practice of imposing fees for unrequested police services. It acts on Lippert and Walby’s recent call for scholarly analysis of user-pays policing ‘to break free of standard disciplinary confines’. One aim of this paper therefore is to start filling this gap in the literature by giving more prominence to substantive legal analyses of user-pays policing. The purpose of this article is both practical and analytical. The practical purpose of this article is to contribute to the literature by providing a detailed examination of the legal framework for imposing fees for unrequested police services in Australia. The analytical purpose of this article is two-fold: to isolate imposing fees for police services as a distinct category of user-pays policing and to critically evaluate the practice of imposing fees for police services in one Australian jurisdiction as a case study.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"313 - 336"},"PeriodicalIF":1.2,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1895546","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45760223","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 : 2021-04-03DOI: 10.1080/10383441.2021.1901356
Vincent Goding, Kieran Tranter
ABSTRACT Technology law scholarship has a tendency towards the dramatic. Technology causes disruption. Law must catch-up; it must ensure potential benefits from technology and avoid potential harms. There are even concerns that law, as an organiser of human life, is itself becoming eclipsed by forms of technological management. What is often not focused on is the practical process through which concerns about technology become transmuted into legal forms within specific jurisdictions. This paper examines the 23 years of Australian law concerning embryos and human cloning. Inspired by Carl Schmitt’s criticism of modernity’s political institutions and the laws they produce, what is identified is a machine that runs itself. It is shown to be a highly automated process whereby technical experts manage competing values. Rather than law regulating technology or technology regulating law; the Australian study suggests that law and its making, is technological.
{"title":"‘The machine runs itself’: law is technology and Australian embryo and human cloning law","authors":"Vincent Goding, Kieran Tranter","doi":"10.1080/10383441.2021.1901356","DOIUrl":"https://doi.org/10.1080/10383441.2021.1901356","url":null,"abstract":"ABSTRACT Technology law scholarship has a tendency towards the dramatic. Technology causes disruption. Law must catch-up; it must ensure potential benefits from technology and avoid potential harms. There are even concerns that law, as an organiser of human life, is itself becoming eclipsed by forms of technological management. What is often not focused on is the practical process through which concerns about technology become transmuted into legal forms within specific jurisdictions. This paper examines the 23 years of Australian law concerning embryos and human cloning. Inspired by Carl Schmitt’s criticism of modernity’s political institutions and the laws they produce, what is identified is a machine that runs itself. It is shown to be a highly automated process whereby technical experts manage competing values. Rather than law regulating technology or technology regulating law; the Australian study suggests that law and its making, is technological.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"240 - 269"},"PeriodicalIF":1.2,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1901356","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47493943","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 : 2021-01-02DOI: 10.1080/10383441.2021.1996884
Imran Ahmed
ABSTRACT What do language policy in Pakistan and the drive to Islamise the state have in common? In the wake of independence, Pakistan emerged as a state striving to create a nation and it looked both to language and religion in search of constructing its Islamic national identity. This paper looks at the darker side of the nation-building process in the country, with a specific focus on the role of language in the struggle to purify Pakistan of its un-Islamic elements and at the shifting nature on the discourse of Islamic nationhood in the country. In particular, it spotlights how politics and law function not only to determine what constitutes an Islamic language and blasphemous speech but, in doing so, also construct the Islamic nation and its ‘Other’.
{"title":"Not Islamic enough?: Bangla, Blasphemy and the law in Pakistan","authors":"Imran Ahmed","doi":"10.1080/10383441.2021.1996884","DOIUrl":"https://doi.org/10.1080/10383441.2021.1996884","url":null,"abstract":"ABSTRACT What do language policy in Pakistan and the drive to Islamise the state have in common? In the wake of independence, Pakistan emerged as a state striving to create a nation and it looked both to language and religion in search of constructing its Islamic national identity. This paper looks at the darker side of the nation-building process in the country, with a specific focus on the role of language in the struggle to purify Pakistan of its un-Islamic elements and at the shifting nature on the discourse of Islamic nationhood in the country. In particular, it spotlights how politics and law function not only to determine what constitutes an Islamic language and blasphemous speech but, in doing so, also construct the Islamic nation and its ‘Other’.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":"30 1","pages":"148 - 165"},"PeriodicalIF":1.2,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48082603","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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