Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights

The High Court's recent rights jurisprudence has been unusually controversial. This paper argues that it is possible to evaluate the important developments in the Court's jurisprudence by examining the philosophical foundations of its understanding of rights. Relying on the distinction between utilitarian rights and natural and human rights, the paper discerns in the Court's traditional legalism as well as its more recent jurisprudence of implied rights a consistent commitment to a utilitarian conception of rights. In contrast, the paper argues that the Court's human rights jurisprudence represents a fundamental shift in its view of rights and judicial review, with far-reaching consequences for Australian constitutionalism and liberalism.     

High Court Review 2007–08: A Changing Bench,But Business as Usual?

This year's High Court Review analyses the major developments in the Court's composition and jurisprudence for the two-year period from 2007 to 2008, with a primary focus on the Court's role as chief interpreter of the Commonwealth Constitution, the political implications of the Court's vision of the federal compact and its interpretation of the concept of representative democracy in Australia. As an inherently political institution with considerable policy influence, the first part of the Review analyses the changing composition of the bench with reference to two new appointments made in 2008. The second half of the Review turns to developments in the Court's constitutional jurisprudence. The Court's role as an arbiter of federal-State relations is explored through two important section 51 decisions concerning the scope of the Commonwealth government's legislative power: Attorney-General (Vic) v Andrews and Thomas v Mowbray. Finally, the Review analyses the Court's construction of the Constitution as providing for a system of representative government in two cases concerning voting rights: Bennett v The Commonwealth and Roach v Electoral Commissioner.     

The Supreme Court and Juvenile Justice

For so many things I thank the Historical Society profoundly, but place right at the top of my list the delightful opportunity your invitation has given me to read the prior Annual Lectures—interesting, exciting, thoroughly intimidating—touching on the Court's history, its cases, its people, even its wives (the subject of Justice Ginsburg's 1999 lecture). Wholly apart from the Society's many initiatives to preserve the Court's history and increase public awareness of its contributions to our nation, the now nearly three dozen Annual Lectures alone offer an amazing insight into this great institution.     

When Nazi dreams come true: The third Reich's internal struggle over the future of Europe after a German victory

In the present article it is argued that Pieter de la Court's Political Maxims of the State of Holland presented a remarkably consistent grand strategy for Holland in relation to its Dutch allies and the European powers. I present an outline of this strategy, which was built around the accomplishment and defence of commercial goals; I sketch a historical context that takes into account the general historical shift from tribute-taking agrarian societies towards commercial wealth-generating polities, and also the violent contemporary military and ideological background against which De la Court's strategy stands out; I argue that his strategy can be understood by his use of three basic game theoretic concepts (prisoner's dilemma, assurance game and free-riding); and I stress the distinctive character of De la Court's work, by comparing the practical and strategic use of these concepts in the Maxims with the function of the same concepts in the philosophical contract theories of Thomas Hobbes and Benedict de Spinoza.     

Cooper v. Aaron (1958): A Hidden Story of Unanimity and Division

Contemporary and later commentators emphasized the Supreme Court's forceful affirmation of its own authority in Cooper v. Aaron (1958). The case was the Court's first significant test of states' rights opposition denying that Brown v. Board of Education (1954) (Brown I) and the Brown II (1955) decree permitting gradual implementation were legitimate constitutional law. Indeed, following the Court's announcement of Cooper v. Aaron in September 1958, Arkansas Governor Orval Faubus and his followers closed the very same Little Rock schools the Supreme Court had ordered desegregated. Black students' rights did not prevail until summer 1959. In Arkansas and elsewhere, defiance initially triumphed over the Supreme Court's self‐assertive power. ¹     

THE TIME OF THE SELF AND THE TIME OF THE OTHER

What is time? This essay offers an attempt to think again about this oldest of philosophical questions by engaging David Hoy's recent book, The Time of Our Lives: A Critical History of Temporality, which proposes a “history of time‐consciousness” in twentieth‐century European philosophy. Hoy's book traces the turn‐of‐the‐century debate between Husserl and Bergson about the different senses of time across the various configurations of hermeneutics, deconstruction, poststructuralism, and feminist theory. For him, what is at stake in such a project is to distinguish between the scientific‐objective “time of the universe” and the phenomenology of human temporality, “the time of our lives.” Hoy's approach is to organize his book around the three tenses of time—past/present/future—and to view objective‐scientific time as derived from the more primordial forms of temporalizing lived experience that occur in our interpretation of time. In my reading of Hoy's work, I attempt to explore how “time” (lived, experiential, phenomenological) can be read not in terms of “consciousness” (Hoy's thematic), but in terms of the self's relationship with an Other. That is, my aim is less to establish a continental tradition about time‐consciousness, understood through the methods of genealogy, phenomenology, or critical theory, than it is to situate the problem of time in terms of an ethics of the Other. In simple terms, I read Hoy's project as too bound up with an egological interpretation of consciousness. By reflecting on time through the relationship to the Other rather than as a mode of the self's own “time‐consciousness,” I attempt to think through the ethical consequences for understanding temporality and its connection to justice.     

High Court Review 2001: Politics,Legalism and the Gleeson Court

This article provides a general political review of recent High Court decisions that have significant implications for Australian constitutionalism. In examining the Court's judgments on issues such as cross-vesting schemes, immigration and Native Title, it seeks to articulate major themes in the Court's jurisprudence and delineate the important and changing role of the High Court in Australian politics. The article is the first in what this journal intends to be an annual review of the High Court from a political-science perspective.     

THE OPEN LETTERS OF SERGEI BORISOV: FROM THE HISTORY OF PHOTOGRAPHY IN THE ALTAI

The present study focuses on the biography and artistic heritage of S.I. Borisov, one of Barnaul's most successful photographers of the early 20th century. Borisov's archive is kept at the Altai State Museum of Local Studies and includes materials from his photographical expeditions to the Altai in 1907–1914. The analysis of the photographs given here creates an image of this multiethnic region as it was at that time in all its diversity of culture and tradition.     

3. BEYOND REPRESENTATION: PICTORIAL TEMPORALITY AND THE RELATIONAL TIME OF THE EVENT

Pictures are often connected with the mediation of the event but, paradoxically, not with temporality as such. Although there are several existing approaches that focus on the interplay between the event and its literary representation, the relation between pictorial time and the temporal constitution of the event remains unexplored. The field of image theory has offered insights into the multiple dimensions of the picture's temporality. It has shown that the picture's temporality concerns not only the depicted event but also the picture's immanent modes of producing different temporalities within one pictorial plane. The picture thus not only makes visible but also generates multilayered times of the event. This article brings together insights from image theory and from theories of historical times to demonstrate the relationship between the times of the event and the inner logic of the picture. In order to identify the various qualities of the picture that structure the times of the event, this article uses the case study of Reinhart Koselleck's practical and theoretical work with pictures. This article reads Koselleck's approaches to pictures alongside new insights concerning the relationality of time to the event and the picture. By exploring the picture's agency with regards to the politics of time, this article lays bare the picture's potential to structure the times of the event.     

THE REFLEXIVE TEST OF HAYDEN WHITE'S METAHISTORY

This paper assesses Hayden White's Metahistory through the test of reflexivity; that is, it asks whether the book's “general theory of the structure of that mode of thought which is called ‘historical”’ applies, as it should, to its own history of nineteenth‐century “historical consciousness.” Most components of the theoretical apparatus—the various concepts invoked in the “theory of the historical work” and in the “theory of tropes”—fail the reflexivity test; further, it emerges that those same components are also seriously flawed on other grounds. The sole and partial exception is the concept of emplotment, which passes the reflexivity test, albeit with qualifications, but more particularly has the virtue of illuminating the traditional history of history against which Metahistory's own story was pitched; and this result provides an ironic and unexpected vindication of Metahistory's underlying vision. Thus the book's fundamental insight—that the form of historical writing is epistemologically consequential—can be retained, even though its two theories should now be set aside.     

HEIDEGGER,LATOUR AND THE REIFICATION OF THINGS: THE INVERSION AND SPATIAL ENCLOSURE OF THE SUBSTANTIVE LANDSCAPE OF THINGS – THE LAKE DISTRICT CASE

“Thing” has undergone reification, and it has done so together with its linguistic “conjoined twin” – “landscape”. Whereas thing once was the name for meetings where people assembled to treat common things that matter, things, in the modern sense, have become physical objects (things as matter). Likewise, landscape's meaning has been reified from being a polity constituted by common thing meetings treating substantive things that matter, to becoming a spatial assemblage of physical things as matter. To fully grasp the contemporary meaning of both things and landscape it is necessary to understand the way in which those meanings are the intertwined outcome of a process of revolutionary inversion, or turning inside–out, by which the meaning of things has been spatialized, enclosed, individualized, privatized, scaled and reified as a constituent of the mental and social landscape of modernity. The potentiality of the concept of thing lies, it will be argued, in its continued containment of older, subaltern meanings that can work to empower an alternative “non‐modern” understanding of things along the lines of, but distinct from, Bruno Latour's notion of Dingpolitik, which will be termed “thing politics” here. This argument is analysed in relation to Martin Heidegger's concept of the “thing”, and exemplified by the mandate of the European Landscape Convention, and the modern planning usage of Landscape Character Assessment and Ecosystem Services, as applied to England's Lake District.     

The Passenger Cases Reconsidered in Transatlantic Commerce Clause History

The Supreme Court's 5–4 decision in the Passenger Cases (1849) overturned two Northern states' taxes on poor foreign immigrants. The Court's eight opinions disputed whether destitute transatlantic immigrants arriving in U.S. ports were legally and constitutionally “persons” like fugitive slaves fleeing the South, free African Americans residing in the U.S.‐Canadian borderlands, and black seamen working on ships entering Southern ports. The eight opinions issued in the case, as Charles Warren noted, raised fundamental constitutional questions concerning whether U.S. congressional or state authority was exclusive or concurrent over persons moving in interstate and international business, reflecting wider sectional struggles fostering the Civil War. ¹ More recently, Mary Bilder and others examined connections among indentured contract labor, race‐based American slavery, and the Court's antebellum Commerce Clause decisions to establish that foreign immigrants were commercial objects subject to regulation through the Constitution's Commerce Clause. ² Southerners and Northern pro‐slavery supporters argued, however, that fugitive slaves and free blacks crossing interstate and international borders were “persons” who could be regulated or altogether excluded under state police powers. ³     

JURY DECISION MAKING MODELS AND THE SUPREME COURT: THE JURY CASES FROM WILLIAMS v. FLORIDA TO BALLEW v. GEORGIA*

This article analyzes recent U.S. Supreme Court decisions in cases relating to the size and unanimity of juries as an example of the use (and abuse) of social science by the Court in the realm of policy analysis. The four cases reviewed “cast an unflattering light on the U.S. Supreme Court's ability to integrate social science findings into public law.”     

“WITHOUT THINKERS … NO THEORIES OF THE WORLD”

Tim Crane's books Aspects of Psychologism and The Objects of Thought present a perspective on human intentionality based on internalism about mental contents. Crane understands intentionality as the defining aspect of the mental. The theory of intentionality that he formulates is similar to that of John Searle when it comes to ontological commitments, but it is also marked by a more traditional approach that retains the concept of intentional objects as its central aspect. In this review I examine the implications of Crane's internalism for the philosophy of history, by comparing his views with some well‐known arguments in favor of externalism about mental contents, such as Hilary Putnam's “Twin Earth” and Tyler Burge's “arthritis” mental experiments. Although internalism about mental contents such as Crane's is a minority view among contemporary analytic philosophers, I argue that it has significant advantages when it comes to the philosophy of history, because it is much better aligned with standard interpretive procedures in historical research. At the same time, externalism about mental contents typically results in inappropriate contextualizations and approaches that most practicing historians will find awkward. More generally, it is possible to argue that over decades, analytic philosophers’ externalist tendencies have significantly contributed to the reduced interest in their views among philosophers of history. The final section of the article reviews the implication of Crane's views on nonconceptual contents of human perception for art historiography.     

THE MISSING NARRATIVIST TURN IN THE HISTORIOGRAPHY OF SCIENCE

The narrativist turn of the 1970s and 1980s transformed the discussion of general history. With the rejection of Rankean historical realism, the focus shifted to the historian as a narrator and on narratives as literary products. Oddly, the historiography of science took a turn in the opposite direction at the same time. The social turn in the historiography of science emphasized studying science as a material and practical activity with traceable and documentable traits. This empirization of the field has led to an understanding that history of science could be directly describable from scientific practice alone without acknowledging the role of the historian as a constructor of narratives about these practices. Contemporary historians of science tend to be critical of science's ability to describe its object—nature, as it is—but they often are not similarly skeptical of their own abilities to describe their object: past science, as it is. I will argue that historiography of science can only gain from a belated narrativist turn.     

WRITING THE HISTORY OF SPINOZISM

In this essay I reflect on Knox Peden's Spinoza contra Phenomenology, a history of French rationalist Spinozism in the mid‐twentieth century. The book marks an important intervention in modern French and European intellectual history, depicting the importance of Baruch Spinoza's thought in the negotiation of and resistance to the phenomenology that captivated much of twentieth‐century French intellectual life. With philosophical and historical sophistication, Peden tells the story of several relatively overlooked thinkers while also providing substantially new contexts and interpretations of the well‐known Louis Althusser and Gilles Deleuze. While accounting for Peden's major accomplishment, my aim is also to situate his work among a number of recent works in the history of Spinozism in order to reflect on the specific methodological questions that pertain to the widely varying appropriations of Spinoza's thought since the seventeenth century. In particular, I reflect on Peden's claim that Spinoza's thought cannot provide an actionable politics, a claim that runs counter to nearly two centuries of leftist forms of Spinozism. I offer a short account of some of the ways that theorists have mobilized Spinoza's thought for political purposes, redefining “action” itself in Spinozist terms. I then conclude by reflecting on the dimensions of Spinoza's thought (and recent interpretations of it) that make it possible for such significantly different claims about its political potential to be credible.     

TO WRITE THE HISTORY OF EQUALITY

This article discusses the history of equality and recent efforts to write that history in the context of a detailed discussion of Siep Stuurman's The Invention of Humanity: Equality and Cultural Difference in World History. It begins by pointing out the surprising paucity of writing on the history of equality, particularly its conceptual and intellectual history, despite that notion's centrality in modern political and philosophical discussion. It proceeds to examine recent efforts to make amends for that lack. What Pierre Rosanvallon has described as the contemporary “crisis of equality” gives urgency to these efforts, while also, it is suggested, providing an opportunity to more fully explore the contingencies and complexities of this beguiling notion. Stuurman's examination of the invention and deployment of “cross‐cultural equality”—the basic equality of all people living in the world, regardless of gender, religion, ethnicity, or race—is an important step in this exploration. But as Samuel Moyn has emphasized in his own recent intervention on the history of social rights in an unequal world, it is not, on its own, enough. Future efforts to write the history of equality must integrate the social and economic dimensions of the idea more fully in an effort to better understand our contemporary dilemma.     

The role of attitudinal,institutional and environmental factors in explaining variations in the dissent rate on the High Court of Australia

This paper examines the role of attitudinal, institutional and environmental factors in explaining the dissent rate on the High Court of Australia (hereafter High Court) using data for the period 1904–2001. The paper's main conclusion is that the majority of attitudinal and institutional factors tested are important predictors of variation in the dissent rate while the urbanisation rate, which is used to measure socio-political complexity, has no statistically significant effect on the High Court's dissent rate.     

Separation of Powers in Australia

This article argues that the nature and character of separation of powers in Australia has been fundamentally shaped and defined by the High Court, which chose a Blackstonian, common law conception of separation of judicial powers in preference to the principles elaborated in The Federalist and articulated in the American Constitution. But the Court's recent jurisprudence, including its admission that it makes the law, has presented unprecedented theoretical and political challenges to the concept of separation of judicial power in Australia, including a transformation in the role of the attorneygeneral, the creation of new institutions and a move towards an American conception of checks and balances. Thus this article suggests that the Court continues to exercise a profound influence on the formulation of separation of powers in Australia.     

MODERNITY: A PROBLEMATIC CATEGORY IN THE HISTORY OF EMOTIONS

Emotions in History: Lost and Found by Ute Frevert is a lively introduction to some of the issues that historians must address when writing about emotions. Emotions in History notes some of the uses emotions have had in both public and private life, and it charts the changing fate of several emotions—particularly acedia, honor, and compassion—that have been either “lost” or “found” over time. Nevertheless, it suffers from a notion of modernity that obscures rather than clarifies. Making “modernity” the cause of changes in emotional ideas, comportment, and feeling, it cuts today's society off from its earlier roots and fails to see the continuities not only in emotions themselves but also in the mechanisms by which emotions have changed over time. Frevert's assumption that only the modern world has been interested in emotions is belied by eloquent learned writings on the topic in the medieval period (though not using the term “emotions”). Further, modernity is not alone in having effective mechanisms by which ideal standards of emotions and their expression are transmitted to a larger public.