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.     

Justice Breyer's Constitutional Jurisprudence: Active Liberty and Pragmatism

This analysis of Associate Justice Stephen Breyer's jurisprudence proceeds from his first book devoted to this subject, Active Liberty, a term he derives from Benjamin Constant and that Breyer defines as participatory democracy. Active Liberty and two subsequent books, as well as numerous off-bench writings, explain his jurisprudence of pragmatism, an approach he contrasts with originalism. This article addresses three general questions: Is Breyer's jurisprudence, founded on active liberty and pragmatism, fundamentally consistent with the design of the Constitution? Does his jurisprudence support his opinions in the constitutional decisions examined, a number of which are also treated in his books and articles? In a system that is designed to empower and to limit government, do his jurisprudence and judicial decisions constrain judges? This last question is especially important because of Breyer's thesis “that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts.” Breyer believes that his theory of active liberty ameliorates the democratic anomaly between a system “based on representation and accountability” that at the same time entrusts “final or near-final” authority to unelected judges who are insulated from public opinion.     

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.     

Collaboration or obstruction? Rebel group behavior during natural disaster relief in the Philippines

Under what conditions do rebel groups collaborate with the government in disaster relief operations? Despite the fact that many natural disasters occur in armed conflict contexts, little is known about the impact of conflict actors on natural disaster relief efforts. Affected by the same typhoon, the Moro Islamic Liberation Front (MILF) and the New People's Army (NPA) behaved differently in the aftermath of the natural disaster. While the MILF collaborated with the government in relief efforts, the NPA did not. This article explains this variation by arguing that the level of hostility between the rebel group and the state in the pre-disaster period as well as the type of social contract that exists between the rebels and the local population shape collaboration during natural disaster relief efforts. The theoretical argument is explored through a comparative case study between these two rebel groups in the aftermath of a devastating typhoon in the Philippines in 2012.     

The Epilogue in the Book of Qohelet

Abstract

Various objective reasons have led to the development of a vast and elaborate literature on the Epilogue in the Book of Qohelet. This study presents a Sitz im Leben based approach to the Epilogue, which capitalizes on the known historical reality during the Hellenistic period in which Qohelet lived. It views the Epilogue as an expression of Qohelet’s deep apprehensions of the challenges that faced his people. From this perspective it is natural to consider Qohelet as being the author of the Epilogue. The Epilogue is not about what he says in the book but what he has to say to his people. As a wise man concerned with the welfare of his people he urges them: keep records, though it is wearisome; be aware that secrets would be leaked; fear God; and, obey His commandments. These are his essentials for survival.     

Democracy in Justice Kennedy's America: Reading Obergefell with Tocqueville

Justice Anthony Kennedy cites Alexis de Tocqueville in support of the majority opinion in Obergefell v. Hodges. But Kennedy's citation leaves much out of Tocqueville's original text. Looking at what Kennedy erases in his quotation of Tocqueville indicates some of the broader cultural and historic erasures that are present in the Obergefell decision (and in the Supreme Court's latter-day treatment of marriage and the family in general). Standing Obergefell next to Tocqueville yields suggestive possibilities for evaluating the evolution of recent Supreme Court jurisprudence—and recent American political thought, more generally speaking—on questions of marriage and family. Specifically, reading Obergefell with Tocqueville reveals the intellectual and political weakness of the contemporary Supreme Court.     

Emancipation or Enclosement? The Spatialization of Difference and Urban Ethnic Contestation in Colombia

Abstract: The focus of this article is a paradox inherent in the political effects of spatial claims undertaken by multicultural policies in many nation states: though territory is considered as one of the primary means of achieving autonomy and self‐determination, it is at the same time a mechanism that encloses difference. Through a combination of archival and ethnographic research I study the political effects of binding indigenous people's minority rights with indigenous reservations in Colombia. I focus on analyzing the legal ways in which an “ethnic indigenous type” has been attached to an “ethnic indigenous rural topos” in the jurisprudence of the Colombian Constitutional Court. I also examine how ethnic groups in the capital city of Bogotá have questioned the multicultural ideals of indigeneity and the romantic desires of what an indigenous place should look like. Ultimately, my intention is to draw attention both analytically and politically, to the necessity of more thorough analyses of the consequences of strict forms of spatializing ethnicity.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

Who speaks for Islam?: ‘authenticity’ and the interpretation of Islamic law in America's war on terror

Recognising that America's response to the events of 11 September would do well to maintain a sharp distinction between the ‘war on terror’ and a war ‘against Islam’, this article argues that American diplomatic rhetoric would benefit from an explicit effort to engage ‘frameworks of legitimacy’ within Islam, including the terms of Islamic jurisprudence and Islamic legal debate. The article examines the merits of such an approach in the context of several recent diplomatic dilemmas, including the Jyllens-Posten cartoon controversy. It concludes with an assessment of the American (domestic) political environment within which this approach tends to encounter its most ardent critics.     

The Sense of Oklahomaness: Contributions of Psychogeography to the Study of American Culture

What the authors are calling “Oklahomaness” is meant to evoke that (psychogeographic) feeling of what it is to be Oklahoman, both as experienced by Oklahomans and by those outside Oklahoma as well. While this study will delineate Oklahomaness per se, the authors hope that it will stimulate the reader's imagination so that the reader might take from it a new way of looking at, and feeling into, the human sculpting of natural and social space.     

Rousseau,Pufendorf and the eighteenth-century natural law tradition

The relationship between the political theory of Rousseau and modern natural law continues to be the subject of debate, both with regard to Rousseau's faithfulness to the idea of natural law itself and regarding the precise extent of the debt he owed to his predecessors. In this article the author re-examines this relationship by focusing attention on what has been defined as the protestant tradition of natural law. In particular she concentrates on the political and theoretical exercise that Jean Barbeyrac had sought to perform by constructing a particular version of this tradition, namely that of using the science of natural law to promote a policy of tolerance between protestants and to justify the right of citizens to resist catholic sovereigns who denied them religious freedom, as well as the right of protestant countries to come to the aid of persecuted fellow believers. The thesis asserts that Rousseau was fully aware of this exercise, just as he was aware that some of Barbeyrac's ideas had been adopted and reworked by another illustrious Genevan, Jean-Jacques Burlamaqui, a member of the Small Council, to support anti-populist and antidemocratic politics in Geneva. Viewed in this way it is possible to perceive in Rousseau's political thought not so much a “first crisis” of natural law as an intention to reformulate this science from a republican perspective in order to derive rigorous principles of political law from it. And in developing his republican political theory Rousseau took up and overturned the analysis of democratic sovereignty carried out by Pufendorf, who in opposing the “pro-monarchist” excesses of authors such as Hobbes and Horn had unhesitatingly demonstrated the complete validity of democratic sovereignty.     

步入近代的中日文学交流——以19世纪七、八十年代为中心

19世纪七、八十年代,参与中日文学交流的主要是中国驻日使馆官员以及旅日文人。他们多为饱学之士,且好交友喜翰墨,常与东瀛的一流文人宴饮赋诗、笔谈雅会,创作了许多脍炙人口的诗赋篇章。这种面对面的交流,极大地刺激了日本诗人的创作欲望,有力地促进了日本汉文学的复兴与发展。同时,他们还以游记、随笔等形式,把自己在日本的所见、所闻以及亲身体验等介绍给国人,为国内同胞了解日本的文学艺术、世俗人情、自然风物等提供了生动、翔实的资料。     

Supreme Court Activism in Economic Policy in the Waning Days of the New Deal: Interpreting the Fair Labor Standards Act, 1941–1946

Students of the Supreme Court universally agree that it made a dramatic shift in 1937. First, in West Coast Hotel Company v. Parrish, ¹ it retreated from the unbridled use of the Fourteenth Amendment's Due Process Clause to invalidate state economic regulatory legislation. Then, in National Labor Relations Board v. Jones and Laughlin Steel Corporation , ² the Justices widened the reach of congressional power under the Commerce Clause. This looser reading of the Commerce Clause was solidified in 1941 with United States v. Darby Lumber Company ³ and Wickard v. Filburn. ⁴ So decisive were these cases in dividing what went before from what came afterward that Bernard Schwartz has said, "The 1937 reversal marked the accession of what may be considered the second Hughes Court—so different was its jurisprudence from that of the Hughes Court that had preceded it." ⁵ Whereas the defining jurisprudence of the former had been close supervision of economic policy, the latter refused to second guess the economic wisdom of congressional (and state) regulatory initiatives. Alpheus T. Mason summarized Justice Harlan Fisk Stone's approach, which was indicative of the entire Court of this era, as one that would not say that "no economic legislation would ever violate constitutional restraints, [but that] … in this area the court's role would be strictly confined." ⁶ Confirming this approach, between 1937 and 1957 the Supreme Court struck down only four federal statutes as unconstitutional, none of which were economic in nature. ⁷     

Witchcraft,Human Nature,and Political Theology in Jean Bodin’s de la Démonomanie des sorciers

ABSTRACT

Jean Bodin (1530–1596) is most well-known as the thinker Carl Schmitt credits for modern absolutist sovereignty and political theology. Contemporary critics of sovereignty, following Schmitt, ascribe to Bodin a theological politics of obedience and the negation of individual and collective human freedom through authoritarian discipline (Cocks, Joan. On Sovereignty and Other Political Delusions. London: Bloomsbury Academic, 2014). Yet, a dedicated study of Bodin’s own political theology remains wanting. His most extensive discussion of theology and law is in his more obscure work on the jurisprudence of witchcraft. In de la Démonomanie des sorciers (1580), Bodin provides a theological account of a divinely created rational order where benevolence and evil are at work in the world. Humans must exercise the free will to choose between them. Bodin’s theological anthropology anchors his political theology with important implications for the proper exercise of human political power within the natural and divine order.     

The spring,the seed and the tree: Gregory of Tours on the wonders of nature

In the preface to his liturgical calendar The reckoning of the course of the stars Bishop Gregory of Tours (538–594) — author also of Ten books of histories and Eight books of miracles as well as of a Commentary on the understanding of the Psalter (of which, however, only fragments are preserved) — declares God's “wonders” of the natural world to be superior to the seven ancient wonders of the world. The reason for this is that the latter, being works of men, are subject to decay and destruction, while the former, as miraculous works of God, are divinely sustained and renewed daily or annually, thereby becoming imperishable. An examination of the associative contexts in which two of these wonders — the sea (enlarged to include water in its various forms) and plant life — occur in the rest of Gregory's works reveals several essential themes of his thinking not only about nature, but also about God, man and society. Thought, for him, nature as a (divinely sustained) system of regularities does exist as a kind of backdrop, sudden unpredictable divine — and sometimes diabolic — action in and through phenomena occupies the center of the stage. Gregory tends to see this action in the shape of what he regards as pre-existing images or patterns of invisible spiritual truth, to which the visible, even material, structure of events must necessarily conform. He shows, too, how this action could reflect as well as meet various needs of the individual and of society as a whole. An association which recurs almost constantly in his treatment of divine action in these natural phenomena, which he sometimes describes as analogous to that in man, is precisely that with the cluster of closely related concepts of renewal, rebirth and creation ex nihilo. Together with what appears as an extreme, as it were ‘poetical’, sensitivity to sudden perceptions and intuitions, something like a longing for and surrender to what he describes as “astonished admiration” may have helped to make possible his recognition of that which he designated as divine creative power in the world of visible reality as well as in man's inner experience. His seeing this as an essential dynamic of the holy may mean that he felt it to be a fundamental need and concern not only of the individual personality but also, more obscurely, of the society in which he found himself.     

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 Sun and the Shakers,Again: Enga,Ipili, and Somaip Perspectives on the Cult of Ain Part One

ABSTRACT In the middle 1940s, at a time when white people were just beginning to penetrate the western highlands of what would become Papua New Guinea, a cult spread quickly among Engas, Ipili speakers, and Somaips. In the seminal article ‘The Sun and the Shakers' published almost 40 years ago, Mervyn J. Meggitt would call this cult the ‘Cult of Ain.’ The cult's core feature involved a massive sacrifice of pigs to the sun in an attempt to enlist the sun's aid. Participants stared at the sun and shook, entering a trance‐like state. While massive pig sacrifices to the sun occurred in all cult variants, local versions of the cult differed in emphasizing one or two themes: acquiring wealth (pigs and pearlshells but also white manufactured goods) and/or ascending to the sky. Interpretations of the cult reflect this variation, some focusing on apparent cargo cultic dimensions while others train on the cult's millenarian aspects. This reprise of Meggitt's article argues that the themes of wealth acquisition and ascent to the sky were at base the same, intelligible with respect to the cosmological discourse that so clearly informed all the cult's manifestations (hence the emphasis upon the sun), a discourse that this article attempts to interpret. This, the first of a two‐part article, summarizes what is known of Cult of Ain variants, highlighting the features other reporters have emphasized as well as those that may provide insight into underlying cultural and even transcultural logics.     

Aspects of continuity and change in the Italian placitum, 962-72

In the preface to his liturgical calendar The reckoning of the course of the stars Bishop Gregory of Tours (538–594) — author also of Ten books of histories and Eight books of miracles as well as of a Commentary on the understanding of the Psalter (of which, however, only fragments are preserved) — declares God's “wonders” of the natural world to be superior to the seven ancient wonders of the world. The reason for this is that the latter, being works of men, are subject to decay and destruction, while the former, as miraculous works of God, are divinely sustained and renewed daily or annually, thereby becoming imperishable. An examination of the associative contexts in which two of these wonders — the sea (enlarged to include water in its various forms) and plant life — occur in the rest of Gregory's works reveals several essential themes of his thinking not only about nature, but also about God, man and society. Thought, for him, nature as a (divinely sustained) system of regularities does exist as a kind of backdrop, sudden unpredictable divine — and sometimes diabolic — action in and through phenomena occupies the center of the stage. Gregory tends to see this action in the shape of what he regards as pre-existing images or patterns of invisible spiritual truth, to which the visible, even material, structure of events must necessarily conform. He shows, too, how this action could reflect as well as meet various needs of the individual and of society as a whole. An association which recurs almost constantly in his treatment of divine action in these natural phenomena, which he sometimes describes as analogous to that in man, is precisely that with the cluster of closely related concepts of renewal, rebirth and creation ex nihilo. Together with what appears as an extreme, as it were ‘poetical’, sensitivity to sudden perceptions and intuitions, something like a longing for and surrender to what he describes as “astonished admiration” may have helped to make possible his recognition of that which he designated as divine creative power in the world of visible reality as well as in man's inner experience. His seeing this as an essential dynamic of the holy may mean that he felt it to be a fundamental need and concern not only of the individual personality but also, more obscurely, of the society in which he found himself.     

ON LAWFULNESS IN HISTORY AND HISTORIOGRAPHY

The use of general and universal laws in historiography has been the subject of debate ever since the end of the nineteenth century. Since the 1970s there has been a growing consensus that general laws such as those in the natural sciences are not applicable in the scientific writing of history. We will argue against this consensus view, not by claiming that the underlying conception of what historiography is—or should be—is wrong, but by contending that it is based on a misconception of what general laws such as those of the natural sciences are. We will show that a revised notion of law, one inspired by the work of Sandra D. Mitchell, in tandem with Jim Woodward's notion of “invariance,” is indeed applicable to historiography, much in the same way as it is to most other scientific disciplines. Having developed a more adequate account of general laws, we then show, by means of three examples, that what are called “pragmatic laws” and “invariance” do in fact play a role in history in several interesting ways. These examples—from cultural history, economic history, and the history of religion—have been selected on the basis of their diversity in order to illustrate the widespread use of pragmatic laws in history.     

Walker Connor's political psychology

In a 2002 overview, Daniele Conversi rightly highlights ‘Nationalism as an emotional bond’ as a central theme in Walker Connor's works. Nearly half a century on from Connor's initial assertions, the discipline of psychology has made important strides in understanding the social‐psychological dynamics that influence nationalist feelings. Building on this base of psychological evidence, this essay asks two questions. First, to what degree are Connor's claims supported by or compatible with what psychologists now know? Second, to the extent that Connor's arguments are correct, to what degree have scholarly understandings of nationalist politics recognised the implications of Connor's insights? I conclude that Connor's insights stand up remarkably well, but few have picked up on them, to the lasting detriment of our field of study.