2018 Seminar Series

The School of Law and Justice Seminar Series showcases the research by School of Law and Justice staff, postgraduate students and visiting researchers.

Following is an archive of Seminars that were held during 2018.

Professor Renata Salecl

Professor Renata Salecl

Ignorance in Times of Post-Truth

Professor Renata Salecl

25 January 2018 at Lismore campus with Zoom links to other locations.

What happened to our attention at the time of "post-truth"? Why do we quickly ignore the facts and close our eyes to unpleasant information? Ignorance and denial are all present today. Jacques Lacan coined the term “passion for ignorance” when he observed people’s avoidance of traumatic truth.

This presentation will question how this passion operates in today’s times and which new forms of denials emerged with the development of science, especially genetics and neuroscience. While ignorance is often perceived in a negative way, there are a number of situations where it is in the best interest of the individual.

The lecture will look at cases when “ignorance is bliss” and when it is of help that love is blind.

Professor Renata Salecl is a Slovene philosopher, sociologist and legal theorist. She is the author of Choice, On Anxiety and The Spoils of Freedom, to name a few. She is a senior researcher at the Institute of Criminology, Faculty of Law at the University of Ljubljana, and holds a professorship at Birkbeck College, University of London, as well as being a visiting professor at the Department of Social Science, Health and Medicine at King’s College, London. She has been a visiting professor at London School of Economics, lecturing on the topic of emotions and law. Every year she lectures at Benjamin N. Cardozo School of Law, on Psychoanalysis and Law. Her books have been translated into 13 languages and she has given a well-known, much viewed TED talk on anxiety and choice.

Gregory Durston, An Overview of the Admiralty Sessions 1536-1834

An Overview of the Admiralty Sessions 1536-1834

Gregory Durston

8 February 2018 at Lismore campus with Zoom links to other locations.

The growth in England and then Britain's merchant marine from the medieval period onwards meant that an increasing number of criminal offences were committed on or against the country's vessels while they were at sea.

Between 1536 and 1834, such crimes were determined at the Admiralty Sessions if brought to trial. This was a special part of the wider Admiralty Court, which, unlike the other forums in the same tribunal, used English common law procedure rather than Roman civil law to try its cases. To a modest extent, this produced a 'hybrid' court, dominated by the common law but influenced by aspects of Europe's other major legal tradition. The Admiralty Sessions also had their own (highly singular) regime for executing convicts, used the Marshalsea prison to hold their suspects and displayed the Admiralty Court's ceremonial silver oar at their hearings and hangings.

During the near three centuries of its existence, the Admiralty Sessions faced enormous legal and logistical problems. The crimes they tried might occur thousands of miles and months of sailing time away from England. Assembling evidence that would 'stand up' in front of a jury was a constant challenge, not least because of the peripatetic lives of the seafarers who provided most of their witnesses. The forum's relationship with terrestrial criminal courts in England was often difficult and the demarcation between their respective jurisdictions was complicated and subject to change.

Despite all of these problems, the court experienced significant successes, as well as notable failures, in its battle with a litany of serious maritime crimes, ranging from piracy to murder at sea. It also spawned a series of Vice-Admiralty Courts in English and British colonies around the world.

This lecture will seek to introduce this little remembered court to a wider audience.

Gregory Durston read History for his first degree before turning to the law and training for the bar. For many years, he was Reader in Law at Kingston University in England, where he is still an Honorary Fellow.

Portrait of William MacNeil

Professor William MacNeil, Dean of Law and Head, School of Law and Justice at SCU

Waldo’s Beautiful Things: Possessing & Possession in Laura

Professor William MacNeil, Southern Cross University

5 April 2018 at Lismore campus with Zoom links to other locations.

Otto Preminger’s 1940s noir classic, Laura, has been read by Lacanian cultural critic, Joan Copjec, as an allegory of “liberalist envy” with the character of Waldo Lydecker functioning as a critique of John Rawls’ ‘theory of justice’ and its predication upon a subject redistributing resources under the neutral, and presumably, envy-free ‘veil of ignorance’.

Such a reading assumes that Laura’s issues are, largely, legal, even jurisprudential—a position with which I have no quibble. But I want to depart from Copjec’s reading in this paper, especially in her focus on the subject and its constitution, as well as combustion. For I propose to read Laura as a film not so much concerned with subjects as objects—or, more simply, things. And what spectacularly beautiful things Laura proffers: exquisite objets d’art, chic fashion, striking design. All of which points to a certain kind of psychic condition which, I will argue, underpins Laura: namely, fetishism. And the fetish nonpareil in the film is, of course, Laura herself. She is the not so ‘obscure object of desire’ for all and sundry, possessing everyone in the film, and, in turn, being treated by those possessed, as a possessionherself—though the nature of these sorts of possessory regimes differ dramatically.

I want to explore Laura’s competing possessory regimes, utilising psychoanalytic concepts such as hysteria, repetition compulsion and the death drive, as well as fetishism and sado-masochism to unpack this vivid filmic representation of the ‘Law of Desire’ as a desire for what I take to be law’s objet petit a—feminine sexuality itself.

Professor William MacNeil is a scholar of jurisprudence and cultural legal studies. He is The Honourable John Dowd Chair in Law, as well as Dean and Head of the School of Law and Justice, Southern Cross University, Australia. His most recent book, Novel Judgements: Legal Theory as Fiction (Routledge, 2013),won the Penny Pether Prize for Scholarship in Law, Literature and the Humanities. MacNeil is the editor of Edinburgh Critical Studies in Law, Literature and the Humanities and is, at present, working on a study of jurisprudence in science fiction, fantasy and horror. As of February 2017, Professor MacNeil is the Chair of the Council of Australian Law Deans.

Associate Professor Nicole Graham, USyd Law School

Associate Professor Nicole Graham, University of Sydney Law School

Property and Proportionality

Associate Professor Nicole Graham, University of Sydney Law School

3 May 2018 at Lismore campus with Zoom links to other locations.

The legitimacy of land use regulations over private property in Australian states and territories has been increasingly publicly challenged on the premise of a narrative in which unfettered property rights are fundamental to the architecture of law and modern society. The debate is framed as one between a private right to property and the public interest in environmental regulation of private land. However, this framework obscures geographical, historical and legal facts.

Geographically, the environment is not outside private property. Historically, property has long been a dynamic institution that has adapted to changing socio-economic contexts. Legally, a right to property is not absolute but qualified by earlier, concurrent, prospective, successive and competing interests. The framing of the debate between private property rights in land and public environmental regulation also revives another debate about whether a property right is a ‘human right’ at all.

In the recent ‘Freedoms Inquiry’ Report of the Australian Law Reform Commission, the proportionality principle was identified as one method by which law-makers might evaluate the validity of public regulations of private land use. Conventionally reserved for debate concerning the protection of fundamental civil rights, such as the right to political communication, the extension of the use of the proportionality principle to resolve tensions and disputes over the regulation of private property elevates property rights to a status not previously seen in Australia. This paper considers the use of the proportionality principle within the context of the taxonomy of Australian laws, and the potential risks and benefits for a continent that is largely privately held.

Dr Nicole Graham is an Associate Professor at the University of Sydney Law School. She teaches and researches in the fields of property law and theory, and legal geography. Nicole has written on the relationship between law, environment and culture with a particular focus on property rights, natural resource regulation and the concept of place. Nicole has received teaching awards for her work teaching property law, is recognised as a highly effective first year specialist, and has made significant contributions to educational development in embedding Indigenous laws and perspectives into the law curriculum; and sustainability in legal education.

Professor Mark Lunney, UNE

Professor Mark Lunney, UNE School of Law

Tort Law’s place in Australian history: different views, different stories

Professor Mark Lunney, UNE School of Law

24 May 2018 at Lismore campus with Zoom links to other locations.

There has been very little attempt to historicise Australian private law in as part of wider Australian history.

Apart from the important efforts of scholars to consider the impact of the imported common law on Australia’s indigenous populations, the substantive content of that private law has, with some important exceptions, been largely neglected by both legal historians and historians more generally. To the extent that it has been considered the view has been taken that Australian courts and legislatures simply followed the English common law. It was only when Australia broke free from its imperial shackles could genuine contributions to common law development be made.

In this seminar, I argue that this is a simplistic view that fails to recognise the intellectual and cultural milieu in which Australian legal practitioners operated. By reading back into legal history a bifurcated view of Australian nationalism we risk missing the genuine innovation made to the common law of tort by generations of Australian lawyers.

Mark Lunney is a Professor in the School of Law at the University of New England, Armidale, Australia, and a Visiting Professor at the Dickson Poon School of Law, King’s College London.

He trained as a solicitor in Brisbane before obtaining an LLM from the University of Cambridge. Between 1991-2003 he was Lecturer, Senior Lecturer and Reader at the School of Law, King's College London. He was an Associate Professor in the School of Law at the University of New England between 2003-2011 and from 2011-2012 he was Professor and Director of Research in the ANU College of Law.

His research interests are the law of tort, and the history of the common law and legal profession. He has published extensively on the law of torts in both Australia and the United Kingdom (see, for example, Barker, Cane, Lunney & Trindade, The Law of Torts in Australia (5th edn, 2012) and Lunney & Oliphant, Tort Law: Text and Materials (5th edn, 2013).

He is also a contributing editor to the practitioners’ reference work Tort Law (3rd edn, 2015, Butterworths Common Law Series). He is the inaugural Australian member, and a member of the Executive Committee, of the World Tort Law Society, and is a Council member of the Francis Forbes Society for Australian Legal History. His monograph, A History of Australian Tort Law 1901-1945: England’s Obedient Servant?’ was published by Cambridge University Press in 2018.

Dr Cristy Clark, Southern Cross University

Race, austerity and water justice in the US: Fighting for the human right to water in Detroit and Flint, Michigan

Dr Cristy Clark, Southern Cross University

5 July 2018 at Lismore Campus and via Zoom at other locations.

The United States Constitution does not explicitly recognize the human right to water, but residents and social movements still turned to rights-based claims in court, in the legislature and on the streets when the City of Detroit began cutting off the water supply of thousands of households in early 2014 as part of wider austerity measures being imposed in response to its ongoing financial troubles.  Earlier austerity measures had included increasing tariffs with the result that water bills had increased by 119 percent over a decade and many households could no longer afford to pay.

Austerity logic also resulted in the Flint water system being switched from the Detroit to the Flint River in April 2014. Authorities were well aware that the Flint River water was unsafe, and residents noticed problems immediately, but it took longer to have their plight recognised as a human rights issue. Three years later the water is still not safe. In both Detroit and Flint, the imposition of austerity through the anti-democratic means of Emergency Management has been influenced by systematic and structural racism, and the effects on residential water services have also reflected this democratic deficit and racialized political landscape. 

This presentation will analyse the water crises in both cities and the social movements that grew up in response, with a view to understanding how the articulation of the human right to water has developed in the US.

Dr Cristy Clark is a lecturer and researcher at the Southern Cross University School of Law and Justice. She completed her PhD at UNSW on comparative water governance, community participation and the human right to water. Her research continues to focus on the intersection of water governance, community participation, human rights, and the environment.

Dr Edward Mussawir, Griffith University Law School

Dr Edward Mussawir, Griffith Law Schoo

Several Bees or a Full Swarm?

Dr Edward Mussawir, Griffith Law School

2 August 2018 at the Gold Coast campus and via Zoom at other locations.

The philosophy of Gilles Deleuze is sometimes acknowledged for its affinity both for certain kinds of animals or animal-'becomings' as well as for jurisprudence as a mode of thought in relation to law. 

This paper explores the close connection that Deleuze’s ‘casuistic’ conception of jurisprudence has with the method and technique of the classical Roman jurists.  It does this by paying close attention to the appearance of the animal (the bees) in a fragment concerning liability under the lex Aquilia.  A rather atypical and awkwardly phrased ‘case’, the example of the bees in Ulpian’s text reveals how the animal can occupy a remarkable centrality in the thought of law: not so much as metaphor but as jurisprudential ‘diagram’ capable of refining and extending juridical institutions.  Offering a conception of law that can, in Deleuze’s words, ‘do without any subject of rights’, the casuistry of Roman law provides some unexpected avenues into the contemporary projects of anti-humanism and non-anthropocentrism in law.

Dr Edward Mussawir is a Senior Lecturer in the Griffith Law School. His research covers various themes in jurisprudence including jurisdiction, judgment, legal personality, the legal status of animals and the work of Gilles Deleuze. He is also the Managing Editor of the Griffith Law Review: Law, Theory, Society.

Dr Olga Jurasz, Open University Law School (UK)

Dr Olga Jurasz, Open University Law School (UK)

Feminist engagements with fragmented international law: the case of jus post bellum

Dr Olga Jurasz, Open University Law School (UK)

28 August 2018 at the Gold Coast campus and via Zoom at other locations.

This paper explores the future of feminist engagements with international law in light of its growing fragmentation. Employing jus post bellum as a case study, this paper analyses the current status of international law’s response to the situation of women in the aftermath of modern conflicts and the place of gender within these developments. The arguments presented here are informed by three perspectives: growing fragmentation of international law, gender as a factor shaping international law, and emergence of jus post bellum - a concept of post-conflict law.

Dr Olga Jurasz is a Senior Lecturer in Law at the Open University (UK). Olga’s main area of research is international law, human rights and transitional justice. She is particularly interested in how various mechanisms of public international law address post-conflict situations and how women’s rights are protected during the process of transition from war to peace. Olga has published widely in the areas of her research for both academic and non-academic audiences. She is currently working on the British Academy funded project ‘Making international law work for women post-conflict: new voices’.

Dr Julen Etxabe, University of Helsinki.

Dr Julen Etxabe, University of Helsinki

The Travelling and the Troubled Language of Human Rights

Dr Julen Etxabe, University of Helsinki

9 October 2018 at Lismore campus and via Zoom at other locations.

A growing body of scholarship suggests that judges all over the world – from Canada to South Africa, from India to Israel, from Western Europe to Australia – increasingly consult, and borrow from, the decisions of other courts as persuasive authority. The scholarship on “judicial dialogues” and its cognates (i.e. transjudicial communications, cross-fertilizations, uses of foreign and comparative law, etc.) tells us who engages with whom and how often, suggesting underlying reasons and patterns for this relatively new phenomenon. Whether or not such dialogue of judges amounts to a new “global community of courts” (Slaughter) that underscores the cosmopolitan and universalist ambitions of human rights discourse, the fact is that the traditional hierarchy of sources, as well as conventional forms of legal reasoning and legal authority, are being profoundly challenged.

While some welcome these developments as part of the new global order, others see them as endangering the autonomy and certainty of law. However, neither side of the debate tends to consider that the very act of “travelling” has an effect on the language of human rights, and “troubles” its universalist aspirations. In order to lay out the implications of my argument, I will pursue one fertile example of borrowing, which will serve further to connect the jurisprudence of the European Court of Human Rights, the Supreme Court of Canada, the South African Constitutional Court, and the High Court of Australia. 

Julen Etxabe is docent in legal theory from the University of Helsinki and writes in the areas of legal and political theory, law and humanities, and human rights. As a Fulbright scholar, he completed his SJD at the University of Michigan Law School with James Boyd White. He has taught at the University of Michigan (2008-10) and at the Faculty of Law of the University of Helsinki since 2010. He was a research fellow at the Helsinki Collegium for Advanced Studies (2014-2017) and co-editor in chief of No-Foundations: An Interdisciplinary Journal of Law and Justice from 2012 to 2017. 

He is the author of The Experience of Tragic Judgment (Routledge 2013) and the editor of three other books, most recently Rancière and Law (Routledge 2018) and Cultural History of Law in Antiquity (Bloomsbury, forthcoming). His current book project entitled Judicial Dialogues and the Conversation of Democracy seeks to unearth a distinct “dialogical” form of judgment that is emerging in the context of International Human Rights and transforming inherited notions of legal reasoning, legal authority, human rights, and the rule of law more generally. 

Professor Heather Douglas, TC Beirne School of Law, University of Queensland

Professor Heather Douglas, TC Beirne School of Law, University of Queensland

Using Law and Leaving Violence

Professor Heather Douglas, TC Beirne School of Law, University of Queensland

19 October 2018 at the Gold Coast campus and via Zoom at other locations.

Drawing on interviews with women who have engaged with law to leave domestic violence this seminar maps women’s engagement with different aspects of law over time. It identifies differences in engagements linked to intersecting identities. In particular, it considers the different legal processes experienced by migrant women with insecure migration status and Aboriginal and Torres Strait Islander women. Mapping women’s engagement shows the length of time women are caught up in legal processes, especially when they are involved in child and property matters. It demonstrates the complexity of their interactions with the law, and, for many women, their deepening enmeshment in legal processes over time. While some women developed innovative approaches to ensuring their safety and that of their children, using the language and tools of law in innovative ways, in many cases women experienced legal processes as an extension of abuse. Building on the literature (eg Smart,1989; Stak, 2007; Goodmark, 2012) that has identified that abusers sometimes use legal processes to extend their control over victims post-separation, this paper considers how abusers’ multiple applications, appeals and other legal actions operate to intensify women’s enmeshment with the abuser and the legal system over time.

Heather Douglas is a Professor of Law, an Australian Research Council Future Fellow and a Fellow of the Academy of Social Sciences in Australia and the Australian Academy of Law. She is based at The Law School, University of Queensland. Heather was the lead investigator on the Australian Feminist Judgments Project and the project leader for the National Domestic and Family Violence Bench Book. Heather has published widely on domestic violence and child protection. Her recent work under her future fellowship focuses on women’s experience of legal engagement as part of their response to domestic and family violence.