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.     

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.     

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.     

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     

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.     

Bounded political contestation: the domestic translation of international health and housing rights in Australia

Political contestation within liberal democratic states is an important, albeit limited, guide in defining how these states domestically implement their international human rights obligations. While often ritualistically endorsing human rights standards, political actors allow themselves a limited policy space with their domestic political contest circumscribed by more pervasive influences, often at odds with the state's international commitments. This article examines recent health and housing policy initiatives by Australia's two major political parties and assesses them against its international commitments. Applying a social constructivist approach, this article argues that the dominant neoliberal political discourse and the state's institutional structure set contextual boundaries to the parties’ policy contestation and reveal the limited influence of domestic political contestation in determining Australia's rights implementation.     

The Responsibility to Protect and the International Criminal Court: counteracting the crisis

The establishment of the Responsibility to Protect (R2P) process and the International Criminal Court (ICC) were seen by many to constitute significant progress in the protection of human rights. However, these institutions are now in crisis, due in large part to their failure to prevent or prosecute recent acute human rights abuses in Syria. There have been two responses to this crisis: the first assumes that the crisis is caused by the current structures of international governance, in particular the power of the United Nations Security Council (UNSC), and calls for radical reform. The second sees possibilities within the current structure and advocates making R2P and the ICC more closely aligned under UNSC control. The article argues that both responses are mistaken and sets out an argument in favour of refocusing on the complementary nature of each institution. The Court's most successful actions have been in exercising the powers afforded by its complementary jurisdiction in situations such as Colombia. Similarly, R2P works more successfully at preventing conflict and changing expectations of acceptable state behaviour than it does at confronting situations in which large‐scale violence has begun. The article argues that the ICC and R2P should focus on ‘positive complementarity’ agendas, with the ICC devoting more resources to assisting states to build legal capacity in order to deter future conflict through stronger domestic criminal systems, and advocates of R2P focusing less on intervention in live conflict situations and more on building within states the capacity and resources to protect their own populations.     

Polygamy and Legislation in Contemporary Iran: An Analysis of the Public Legal Discourse

The purpose of this article is to analyze the interaction between different interpretations of Islamic jurisprudence in Iran and state law. It focuses on the public legal discourse about the new Family Draft Law in 2007–08, especially Article 23 regulating polygamous marriages and removing necessity for the first wife's permission. The participants in this public legal debate, which took place on the internet and in the media, were civil society organizations, especially women's organizations, the Shiite clergy, and state representatives. The article argues that even in a non-democratic, theocratic state such as the Islamic Republic of Iran, public discourse promoted by the named actors can challenge and influence state legislation. The removal of Article 23 from the Draft confirms this argument, but in the law of 2013 the requirement for the first wife's permission is not found. By looking at the arguments brought forward in the public discourse, the article demonstrates that the arguments are mainly “Islamic,” and none refers to international human rights, as this seems to be a kind of taboo in the political discourse.     

High Court Review 2004: Limits on the Judicial Protection of Rights

The High Court's role of judicial review has often been examined for its impact on rights protection, an area of particular interest in Australia due to the historical lack of an explicit bill of rights in either statutory or constitutional form. In 2004 rights issues were presented in particularly stark relief in several key cases, demonstrating the difficulties of the role of judicial review in the Australian constitutional framework. The cases analysed here produce compelling evidence of the limitations of relying on judicial review for rights protection within the Australian system of government. They demonstrate that in the absence of a clearer framework for the protection of rights the judiciary can uphold unambiguous decisions of the legislature enshrined in statute, even where and when those provisions are considered to override the rule of law, international standards and human rights principles.     

European Union Constructive Engagement with Iran (2000–2004): An Exercise in Conditional Human Rights Diplomacy

In 2002, the European Union (EU) announced that it would enter a Trade and Cooperation Agreement with Iran. The deepening of economic and diplomatic relations between the EU and Iran was, however, linked by the Commission to progress in four areas: human rights, non-proliferation, terrorism and the Middle East Peace Process. This article argues that the current focus on efforts to find a solution to Iran's nuclear ambitions has overshadowed the dynamics of EU human rights diplomacy towards that country. Unlike diplomatic pressure on the non-proliferation issue, the EU-Iran Human Rights Dialogue did not only enjoy great support by politicians and human rights activists, but did indeed result in changes in legislation and policies aimed at the protection of human rights. Europe's multi-track strategy allowed Iranian activists and members of the legal profession to approach the notion of human rights from within the Shi'a notion of justice and rationality and thus managed to assert Islamic roots for human rights and uncovered the very secular realities of human rights violations in the Islamic Republic. The Dialogue was launched at a critical juncture in Iran's reformist movement and helped likeminded politicians, particularly the executive and parliament, to gain momentum domestically and credibility internationally. While efforts at reform were and still are often impeded by the country's competing centers of power, this article argues that efforts to promote and protect human rights in Iran must not be sacrificed for concerns over the nuclear issue.     

The nationalisation of the human rights debate in Egypt

ABSTRACT. The study of nationalism in Egypt has often focused on Arab nationalism and its relevance to the post‐colonial state building process. The current article shifts the focus to the Egyptian state's strategic use of nationalism as a mechanism for survival and for shoring up its failing legitimacy. In particular, the case of the human rights debate is chosen to show the regime's most recent attempt to ‘nationalise’ a rising movement which promotes universalism and poses a threat to the notion of the nation's homogeneity. By misrepresenting human rights organisations as mouthpieces of Western imperialist powers, the regime has managed to create an image of these organisations as posing a threat to Egypt's national security and undermining its international ‘reputation’. More recently, however, the state has refined its discourse on human rights by promoting an image whereby it is the ‘official agent’ of a more nationalistically defined human rights movement.     

MINDING THE BUSINESS OF THE SUPREME COURT: SOME THOUGHTS ON THE EFFECTS OF THE JUDGES' BILL OF 1925*

Twice at least in the Court's first too centuries it has found itself inundated with litigation that has outstripped its abilities to process it. Congress has from time to time had to make adjustments in the Supreme Court's jurisdiction so that the court could cope with its caseload. These “reforms” are potentially quite, important., yet few scholars have studied the effects, intended and unintended, of them. This paper reviews and criticize the scholarship on the effects of one especially interesting reform, the Judges' Bill of 1925, Along the way I offer a number of suggestions ore offered on how social scientists might in the future go about studying the effects of judical-reform.     

Oliver O'Donovan's Critique of Autonomy

Abstract

More than any other contemporary theologian, Oliver O'Donovan has revived political theology as a field of enquiry. Yet O'Donovan has been consistent in his critique of the modern idea of autonomy, judging it to be at odds with the more communitarian idea of covenanted community found in the Hebrew Bible/Old Testament. He contrasts this modern idea, and its political implications, with the older biblical idea, also adding some basic points from Aristotle's idea of the polis. But unlike many contemporary communitarians, O'Donovan is also able to incorporate the idea of human rights into his political theology. He sees this supposedly modern idea having fuller precedence in the biblical idea of mishpat ("justice"), which he takes to be God's primordial claim on His covenanted community, a claim that sufficiently grounds both individual rights and communal rights and which enables them to function together. However, O'Donovan draws the line when it comes to the modern social contract theory, arguing that it is at odds with biblical teaching that the primary responsibility of rulers is to divine law. While agreeing with O'Donovan's rejection of autonomy and his acceptance of human rights, this paper argues against O'Donovan's theological rejection of social contract theory. Instead, it argues that a social contract is consistent with the doctrine of the covenant; indeed that the very possibility of the social contract is best explained by the doctrine of the covenant, and that this acceptance of the social contract serves the best political interests of covenanted communities (like the Jewish People and the Christian Church) in an otherwise secular world.     

James Mill's treatment of religion and the History of British India

James Mill's History of British India’ (1817) played a major role in re-shaping the English policy and attitudes in India throughout the nineteenth century. This article questions the widely held view that the ‘HBI’ heralded the utilitarian justification of colonisation found for instance in John Stuart Mill's writings. It suggests that James Mill's role as a proponent of ‘utilitarian imperialism’ has been overstated, and argues that much of Mill's criticism of Indian society arose from the continuing influence of his religious education as well as from his links with a network of Presbyterian and Evangelical thinkers. It is only after his death that the colonialist views put forward in the History of British India were re-interpreted in light of his later attachment to utilitarianism.     

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.     

Unlocking Australia's Relationship with the Middle East

Historically, Australia's interests in the Middle East related primarily to its role in the Commonwealth imperial defence system which resulted in the deployment of Australian forces in the Middle East during both the First and Second World Wars. Similarly, the current involvement of Australian troops in Iraq and Afghanistan is driven by the country's strategic alliance with the United States. However, Australia's current involvement reflects a multifaceted relationship that spans economic, political and strategic spheres. Yet it is at the level of cultural and civilisational contacts that this relationship appears at its most vulnerable. This paper argues that a deeper understanding of this cultural dimension combined with a broader emphasis on good governance and human rights would be conducive to more robust ties in the longer term.     

Is absolute secularity conceivable?

ABSTRACT

This paper critically examines the prospects for thoroughly secular thought. It does so in relation to recent theories of secularization (and especially Charles Taylor’s and Hans Blumenberg’s) as well as by attending to two very different intellectual projects, one mounted by Jeremy Bentham (in particular his concept of felicity or happiness), the other by Michael Oakeshott. It argues that Bentham’s utilitarian account of happiness depends on a Christian conceptual structure, and that Oakeshott’s understanding of philosophy as a practice of questioning presents a brighter hope for thoroughly secular thought.     

Women's Rights as Human Rights after the End of History

This article is based on the 2022 Gender & History annual lecture. It reconsiders the recent history of women's rights as human rights. The collapse of communism in Eastern Europe and the Soviet Union brought to an end a twentieth-century discourse of women's rights, understood not only as legal norms, but as a political language harnessed to a narrative of women as a collective subject progressing towards emancipation and equality. This was enabled by an international order in which human rights were tied to visions of self-determination, social rights and strong states, creating spaces for new subjects to make their voices heard in international law, albeit in particular and circumscribed ways. After 1989, women were again written into international law primarily as victims of violence, while the emergence of gender as a category of analysis challenged the notion of ‘women’ as a collective subject of rights. The story of women's rights, the article concludes, suggests that recent revisionist histories of human rights as a neoliberal utopia are only one part of a more complex human rights history.     

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.