Copyright (c) 2009 University of Wollongong All rights reserved. http://ro.uow.edu.au/lawpapers Recent documents in Faculty of Law - Papers en-us Wed, 11 Nov 2009 16:09:23 PST 3600 http://ro.uow.edu.au/lawpapers/57 http://ro.uow.edu.au/lawpapers/57 Tue, 18 Aug 2009 21:06:03 PDT This paper reviews the recent work by Australian labour lawyers that has embraced the 'new regulation' and in particular the idea of law as regulation. This approach has recast the academic study of labour law as being concerned with regulation of the labour market. While much of this work has concentrated on expanding the field of labour law to include many areas of law affecting the labour market (beyond the employer-employee relationship), the work has also developed the view of law as a mechanism of state regulation. The paper examines how the 'regulatory turn' in Australian labour law has affected the accounts it provides, and assesses the connection between seeing the labour market as the field of study and the adoption of a regulatory perspective to the study of labour law. A. D. Frazer http://ro.uow.edu.au/lawpapers/56 http://ro.uow.edu.au/lawpapers/56 Sun, 26 Jul 2009 21:36:07 PDT This article examines the prospect for more fruitful collaborative research between labour law and industrial relations, using recent studies in labour law as a starting point. An increased and more sophisticated interest in labour law as regulation, particularly in Australia, has moved the discipline towards some of the traditional interest areas of industrial relations. However there remains a need for more empirically-based research, with the social reality of law as its primary focus. The legal studies paradigm is not well geared to social science research and an interdisciplinary approach is required. Industrial relations is the obvious candidate for such a partnership, but it currently lacks the basis for a law-centred methodology. The paper argues that the established field of sociology of law provides the most suitable basis for such work. To adopt this approach would, however, require scholars in both labour law and industrial relations to move onto new terrain and to ask new questions. A. D. Frazer http://ro.uow.edu.au/lawpapers/55 http://ro.uow.edu.au/lawpapers/55 Tue, 24 Feb 2009 16:45:51 PST Three cities, three days, how many senses? I lost count in the eruption of designer menus, philosophy "master classes," children's activity spaces, all night music parties, herbs and spices, exhibitions including Picasso erotica, and strolls past the flower, fish and formaggio sections of the market in Modena. The latest edition of the city's philosophy festival organized each year since 2001 was dedicated to the senses. From Friday to Sunday, 16-18 September, 2005 Modena and its smaller neighbors Carpi and Sassuolo gave over their piazzas, exhibition spaces, libraries, restaurants and churches to the festival. The trains between the three centers were crowded with "cultural commuters," who were invited to scheduled en route discussions with various philosophers on a number of the trips. R. Mohr http://ro.uow.edu.au/lawpapers/54 http://ro.uow.edu.au/lawpapers/54 Tue, 24 Feb 2009 16:31:57 PST Kaarlo Tuori, professor of law, judge, and counsellor to the Constitutional Committee of the Finnish Parliament, has embarked on an ambitious project. He aims to build on the positivism of Kelsen and Hart, but to discover a normative justification of law which goes beyond their limited validity claims. This is the 'critical' element which he adds to 'legal positivism'. Kelsen's basic norm and Hart's rule of recognition are irreducible underlying principles. The arbitrary nature of such principles is intellectually suspect, while their internal self referentiality renders them morally sterile. The law is the law -- because we recognise it as such or because it is founded on the basic norm -- and as such it is valid. This leads to a lack of critical purchase, which is the fundamental drawback of positivism when confronted by natural law or other ethically based theories. Classical mid-twentieth century positivism offers no ethical foundation outside the declared law from which we may criticise unjust laws. R. Mohr http://ro.uow.edu.au/lawpapers/53 http://ro.uow.edu.au/lawpapers/53 Tue, 24 Feb 2009 15:22:03 PST Law has had a traditional reference to land, conceived as territory, in the notion of a jurisdiction, where the law of the land applies equally to all individuals. Recent critiques of this view have suggested that a plurality of laws may apply in particular places. How this spatial pluralism impacts on dominant views of law is considered through two instances in which law has interacted with competing conceptions of place and territory in relations between European and Indigenous Australians. Space, law and identity are seen to constitute each other in complex forms. Indigenous beliefs and practices challenge the claims to universality of Western conceptions of law and space deriving from Roman law and spatial practices. R. Mohr http://ro.uow.edu.au/lawpapers/52 http://ro.uow.edu.au/lawpapers/52 Tue, 24 Feb 2009 14:06:58 PST The contributions to this edition of Law Text Culture arose from a series of workshops and seminars which Luke McNamara and I organised through the Legal Intersections Research Centre at the University of Wollongong during 2001 and 2002. Having recently formed a research group focusing on the social and disciplinary intersections of law, we set out to explore these intersections with the help of colleagues working in law, humanities and social sciences in Australia, North America and Europe. Some of their contributions to this exploration are collected here. R. Mohr http://ro.uow.edu.au/lawpapers/51 http://ro.uow.edu.au/lawpapers/51 Tue, 24 Feb 2009 13:37:42 PST This elegant, wide-ranging and stimulating book has everything but the music. In graphic form, even the music is available as a frontispiece to each chapter, introduced with an extract from the score of the music for which it is named. The work begins with a 'Prelude' and 'Fugue' (Bach) and has a 'Requiem' (Mozart) on the death penalty, while 'Quartet for the End of Time' (Messiaen) opposes modernism and the reification of law, looking to space (in legal geography), rather than time, for the source of a 'critical pluralism'. Surprisingly, this apparently precious device works, and it works at a number of levels. Analogies with the pieces of music help to illustrate the point of each chapter and the playful counterpoint between the music and the argument is a source of, well, aesthetic pleasure. By drawing our attention to the appreciation of formal structure shared by music and law, as in the sparse, elegant prose of the opening 'Prelude', Desmond Manderson uses the format of the book to illustrate his theory. R. Mohr http://ro.uow.edu.au/lawpapers/50 http://ro.uow.edu.au/lawpapers/50 Mon, 23 Feb 2009 20:50:45 PST Discussions of globailisation arose in the late twentieth century out of economic discourse about market liberalisation and the scale and global reach of transnational corporations. Legal discussions of the subject have tended to follow in the wake of these economic and geopolitical trends. R. Mohr http://ro.uow.edu.au/lawpapers/49 http://ro.uow.edu.au/lawpapers/49 Mon, 23 Feb 2009 20:40:44 PST The evaluation of judges' performance takes place in many ways. Traditionally, there are avenues of appeal and legal accountability mechanisms. More recently, ministries of justice and judicial councils across Europe have introduced a range of complaints mechanisms, quality assessment procedures and other managerial methods of judging judges and the courts within which they operate. This paper reports on a study of these mechanisms in nine member countries of the European Union. Our purpose is to survey the possible ways in which the judiciary can be evaluated, with a view to improving those practices and, ultimately, contributing to a better functioning of the courts. The study focuses on judges within the institutional context of courts. The staffs of courts are commonly employed by a ministry of justice or some other executive body. A ministry is responsible for allocating funds and accounting to parliament for their expenditure. In many European countries (including six of the nine discussed here) the status of judges (discipline, promotion, transfer, appointment), and in Denmark and the Netherlands also the management of courts, is under the direct responsibility of a judicial council which has substantial judicial representation and a degree of independence from the executive government. R. Mohr http://ro.uow.edu.au/lawpapers/47 http://ro.uow.edu.au/lawpapers/47 Sun, 22 Feb 2009 20:38:22 PST Indigenous land claims in Australia have brought Indigenous law into contact with the Australian common law, changing some of the terms of each of these systems of law. By tracing these contacts back to one of the first engagements, when the Yolngu people of northern Australia framed a petition to parliament in pictorial descriptions of their law, I explore the means by which changes have occurred. This is characterised as a process of mutual framings and re-framings. The delicate and contentious issue of meaning change in Yolngu law and in Australian common law's dealings with Indigenous law is examined in order to illuminate the ways in which meaning change may be understood in an epistemological and semiotic framework. The most recent common law decisions in land claims have begun to recognise a mutual relationship between common law and Indigenous law. This has occurred most notably at the edges of western law's epistemological practice, in its dealings with historical and Indigenous sources. The success of Yolngu epistemological and legal engagement with the dominant Australian society and its law suggests a means of understanding some of the ways in which meaning may change in response to changing contexts. This relationship can be seen through Yolngu categories of "inside" and "outside", or in terms of the cultural context of semiotic interpretation. Meanings may change within each frame, not through the simple incorporation or adoption of "outside" concepts, but through shifts in the broader context of meaning. R. Mohr