Copyright (c) 2010 University of Wollongong All rights reserved. http://ro.uow.edu.au/ltc Recent documents in Law Text Culture en-us Wed, 17 Mar 2010 22:31:06 PDT 3600 http://ro.uow.edu.au/ltc/vol1/iss1/2 http://ro.uow.edu.au/ltc/vol1/iss1/2 Tue, 16 Mar 2010 16:14:29 PDT Contemporary culture is currently characterised by distinct movements both from within and without universities which are questioning, rethinking, and rewriting the parameters and ground of traditional academic disciplines. Law/Text/Culture situates itself within this mobile and changing cultural context; it seeks to enable the articulation of the issues and development of the theories and practices generated by disciplinary crossings between fields and bodies of knowledge that have traditionally been seen as discrete and autonomous. Law/Text/Culture is a journal committed to producing intersections of the law, textuality and all aspects of culture. It publishes work across a range of genres - from artwork to the traditional scholarly essay. It invites work which crosses borders - of genres and institutions, as well as disciplines and fields. The journal accepts work from people working outside and inside traditional educational and legal settings. Law/Text/Culture is particularly concerned with both the law's textuality, that is, the specific textual forms by which the law circulates within a culture, and also the multiplicity of texts and subjects which the law touches and shapes, and which, in turn, impact on and change the law. This differentiates Law/Text/Culture from other interdisciplinary journals devoted to the fields of law and the humanities and law and literature. Robin Handley http://ro.uow.edu.au/ltc/vol1/iss1/1 http://ro.uow.edu.au/ltc/vol1/iss1/1 Mon, 30 Mar 2009 21:30:57 PDT About a month ago, I had a frantic phone call from a new Australian woman named Ramya, of Lebanese descent. She implored me to help her son, a Higher School Certificate student of GranvilIe Boys' High School, as he was given an assignment on the subject of Aboriginal law. He had to write up an in-depth study into forms of Aboriginal customary law and punishment, and why it should be recognised as an acceptable form of trial for Aborigines. I was flabbergasted! I was desperately trying to explain to her how ironic it was that the education system now wanted to know about Aboriginal law when in fact we were dispossessed of our own land, that we urban Kooris were forced to assimilate and give up our languages and culture and become like white people. We were forced to conform to their laws and standards, the laws and standards of the invaders of our country, because we were never allowed to be our damn selves, as we are an oppressed people. We had our own laws, and a very democratic society before the whiteman stuck his nose into our affairs, and literally stuffed our culture up! Besides, I told her that some of our laws were sacred and not to be spoken about to anyone, only our own tribal people. I told this lady that I would do my best to help her son with what information [had, as I could only speak about the laws of my own Bundjalung people, because it would be wrong of me to talk about any other tribal laws. R. L. Ginibi http://ro.uow.edu.au/ltc/vol8/iss1/12 http://ro.uow.edu.au/ltc/vol8/iss1/12 Mon, 30 Mar 2009 20:47:39 PDT With alarming alacrity, Professor Dauvergne spotted that one of my published pieces had already used the title of this article (cf Fitzpatrick 1995). That title is taken from Bagehot's saying of nation: 'We know what it is when you do not ask us, but we cannot very quickly explain or define it' (Bagehot nd: 20-1). The first excuse for recycling this title is that it is strikingly suited to the concern of this issue of Law Text Culture with challenging nation. Bluntly, my argument will be that we find it difficult to challenge nation because we cannot say what it is so as to identify it explicitly and thence confront it. A little more exactly, we are unable to do this from within the uniform plane of modernity since nation occupies a sacral dimension of being which the modern cannot integrate. Giving effect to that dimension may enable us to challenge modernist conceptions of nation, however. The other excuse for titular repetition refines that challenge. It stems not so much from wanting to reverse the more usual academic practice -- offering here the same title but a different paper instead of much the same paper with a different title -- as from wanting to intimate a continuance, a sustaining of nation despite, and because of, its elusiveness, and from wanting to show how, in terms of that very sustaining, nation is challenged intrinsically. This is where law, inevitably, will come in. P. Fitzpatrick http://ro.uow.edu.au/ltc/vol8/iss1/11 http://ro.uow.edu.au/ltc/vol8/iss1/11 Mon, 30 Mar 2009 20:44:33 PDT While 'the citizen' is believed to signify the universal, there is no universal sex. Because men monopolised the civic space until a century ago, the paradigmatic citizen has been constructed as male. Since enfranchisement, women have been wrestling with the phrase 'women and citizenship'. For men, the and is read as conjunctive; for women, it remains disjunctive. M. Thornton http://ro.uow.edu.au/ltc/vol8/iss1/10 http://ro.uow.edu.au/ltc/vol8/iss1/10 Mon, 30 Mar 2009 20:42:32 PDT As aspects of decolonisation, indigenous and other colonised peoples' historical claims for cultural survival, and for distinct identity, remain unresolved issues in modern international law. Following the salt-water doctrine1 which resulted in the loss of solidarity between the indigenous peoples in the enclave colonies and their counterparts in the third world, these claims have been pursued, for the most part, by the former within a narrow political rubric of human rights and self-determination. This contribution examines the complicity of the colonial nation-state, both as a concept, and an actor in marginalising the indigenous peoples of the enclave territories, and in empowering their counterparts in far-flung places. It notes that since the mid-20th century, however, the United Nations has provided a platform for indigenous peoples to challenge the circumscribing stranglehold of the nation-state as the ultimate arbiter of their claims. The protection of traditional knowledge of both the indigenous peoples in enclave territories and their non-Western counterparts elsewhere provides a rallying point in this endeavour. C. Oguamanam http://ro.uow.edu.au/ltc/vol8/iss1/9 http://ro.uow.edu.au/ltc/vol8/iss1/9 Mon, 30 Mar 2009 20:39:45 PDT Nation continues to be an embarrassment for the cosmopolitan commentator, whether legally inclined or not. As one manifestation of globalisation's other the nation refuses to accept its proper place in the progress of world history, as a transient reaction to empire. Like social democracy in Marxism, the epoch of nations was expected to dissolve itself, under the impulse of history, to make way for a higher level of political consciousness: if only the pragmatic regionalism represented by the European Community. Instead the spectre lingers, haunting Europe in particular but elsewhere in general, and threatening to be 'always with us' even after the poor have been successfully assimilated or dispersed. J. R. Morss http://ro.uow.edu.au/ltc/vol8/iss1/8 http://ro.uow.edu.au/ltc/vol8/iss1/8 Mon, 30 Mar 2009 20:37:04 PDT Although it was published more than 20 years ago, in a world that was geopolitically dramatically different from our own, it is difficult to approach the subject of nation without invoking Benedict Anderson's Imagined Communities. This small book has come to serve as an almost mandatory point of reference for academic discussions of the modern nation. And although many disagree with Anderson's analysis that 'from the start, nation was conceived in language not in blood' (Anderson 1991: 133), in the wake of his book it is difficult to consider nation and its relation to community without also considering the modern discursive and cultural forms through which they are each conjured and connected. That is, Anderson saliently observed that the link between community and nation is made, not found. R. Buchanan http://ro.uow.edu.au/ltc/vol8/iss1/7 http://ro.uow.edu.au/ltc/vol8/iss1/7 Mon, 30 Mar 2009 20:33:15 PDT Artworks: Sunday Flea Market, New York Facts, Not Opinions Firetrap Midtown Karate Dojo, New York City God Bless Spanish Cathedral 1 Spanish Cathedral 2 A Rest for Authority E. Arbel http://ro.uow.edu.au/ltc/vol8/iss1/6 http://ro.uow.edu.au/ltc/vol8/iss1/6 Mon, 30 Mar 2009 20:25:04 PDT The spirit in this article is that of liberal democracy, that precisely state of affairs in which there exists a separation of powers among the executive, legislature and judiciary, an independence of the judiciary and a substantive independence of the legislature from the executive. Additionally, in the 19th century there was added to this structure, in the United Kingdom and subsequently in the Australian colonies, a tenured civil service. Writers in mid to late Victorian Britain saw this addition as a necessary restraint on a Parliament elected by an ever-widening franchise comparable -- if one listens to Maine's gloomy assessment of popularly elected legislatures (Maine 1897, Essay II) -- to the process of judicial review established in the United States. However undemocratic in origin, the civil service nevertheless operated by guaranteeing -- in the eyes of the political 'establishment' -- disinterested advice to secretaries of state and ministers, to help ensure that those selected to government were, so far as possible, given the information upon which to make choices, and therefore to carry responsibility to the legislature for those choices. Its very paternalism in restraining 'irresponsible' popular politics helped ensure the answerability of government to popular politics. I. Duncanson http://ro.uow.edu.au/ltc/vol8/iss1/5 http://ro.uow.edu.au/ltc/vol8/iss1/5 Mon, 30 Mar 2009 20:22:13 PDT It is a commonplace observation that historically established modes of state formation are inadequately adapted to global social scale (see for example Kettl 2000; and for a theoretically sophisticated treatment of this issue Sassen 2000), although as we shall see this observation underestimates the dynamic by which this adaptation is currently occurring. Many commentators seem to conclude from the current lack of fit between the established type of state formation and global social scale that the state as such is not adequate to the demands of governing global society. This view conflates the two distinct dimensions of political organisation and social scale. Political organisation does have to be able to work with social scale, of that we can be certain, but the nature of their relationship is not one of containment. The state does not contain society, nor is it the role of the state to express society. Rather the role of the state is to provide the institutional order that brings society to account in relation to the procedural and substantive norms of justice. Units of political organisation do not have to match units of social organisation for there to be a relationship between them. A. Yeatman http://ro.uow.edu.au/ltc/vol8/iss1/4 http://ro.uow.edu.au/ltc/vol8/iss1/4 Mon, 30 Mar 2009 20:18:20 PDT The courthouse, especially as conceived and consumed at the zenith of the British Empire, exemplifies the symbolic no less than the regulatory work assigned to architecture in the ordering of modern society (Pevsner 1976, Markus 1993, Paré 1978, Collins 1971, Carter 1983). The courthouse was frequently the major public building erected in the urban settlements colonising the margins of Empire. Moreover the courthouse was largely unaffected by the sectarian associations attaching to religious, governmental and even commercial structures. The material presence of the courthouse, generally superior to that of contemporary buildings in scale, structure and decoration, was a major incident in the assertion and articulation of both distant imperial and local colonial authority. That presence reinforced the actual and associational processes of spatial ordering and socialising particularly inscribed in property ownership (Lefebvre 1991, Perera 1998). The assignment of property was, in the popular adage, nine-tenths of the law and the symbolic function of the courthouse was enhanced by the promotion of greater visual and historical literacy within the dominant imperial citizenry (Leonard 1995, Levine 1992). Existing on the cusp between popular and mass culture, this type of predominantly bourgeois literacy eventuated from the advent of popular publication and increased public education (Adorno 2001, Bourdieu 1991, Lloyd & Thomas 1998). Both exploited the bodies of knowledge that legitimated imperial claims to displace or erase aboriginal peoples and cultures (Foucault 1980). These effects will be demonstrated through the analysis of the commissioning and reception of the courthouses built in British Columbia during the first major waves of British and European settlement and resource development in the late Victorian and Edwardian decades (Barman 1996, Mills 1977). Drawing upon comparative historical, formalist, deconstructivist, postcolonial and discursive methods, the main argument is the emergence of a new level of interactive emblematic communication between their fabric and the citizenry (Bouilloud 1997). This symbolic dialogue was, it is contended, almost as significant in the fabrication of the colonial state as the regulating systems enacted within the courthouse. R. Windsor Liscombe http://ro.uow.edu.au/ltc/vol8/iss1/3 http://ro.uow.edu.au/ltc/vol8/iss1/3 Mon, 30 Mar 2009 20:03:10 PDT This article begins with a statement, and with a scene. The statement is a reasonably straightforward one: Australia claims 42 per cent of the distant offshore continent of Antarctica as its national territory. Or, to make this article's governing statement speak directly to the themes of this issue: nearly half of Antarctica is part of the Australian nation; it is Australian space. This statement's validity depends on national perspective: the 1959 Antarctic Treaty, which upholds Australia's claim, also allows other nations to refuse to recognise it. Only four nations -- France, Norway, New Zealand, and Britain, all Antarctic claimants themselves -- recognise Australia's massive polar claim; to the rest, Antarctica remains non-sovereign, non-national space. Yet whether or not other nations recognise Australia's Antarctic claim is not the focus of this article: the subject of analysis here is the complex set of cultural technologies through which six million square kilometres of Antarctica became Australian. How, exactly, did Antarctica become an Australian territorial possession? What are the cultural processes through which Antarctic land became Australian space? As a means of answering this question, this article focuses on a key moment, or scene, in the history of the Australian Antarctic Territory (AAT). The article then unpacks this moment, examining the ways in which three articulated cultural technologies -- representation, international territorial law, and the body of the explorer -- together initiated this massive space of Australian national possession. C. Collis http://ro.uow.edu.au/ltc/vol8/iss1/2 http://ro.uow.edu.au/ltc/vol8/iss1/2 Mon, 30 Mar 2009 19:59:41 PDT This paper has grown out of the practice of the Shepparton Koori Court in Victoria (Australia). It reflects the views of two 'insiders' to the process -- the first sitting magistrate and the first enabling Aboriginal Justice Officer. We do not pretend that our views of the court's operations in its first 18 months are anything other than our own unabridged social and cultural constructions of what we have seen and heard in the court as hearings and procedure have evolved. This is not a paper replete with data and external evaluation. We have not collected statistics on our court. We present our thoughts on what we have observed. We do not present an analytical paper and we have not explored theoretical underpinnings about the place of Indigenous people in the imposed legal system. This paper is essentially descriptive. We believe this is the place to start -- describing the changes in the culture of the court and the jurisprudence of the post-colonial state. In our view it is only after we start this conversation, in this way, that we can start to understand how much work we still have to do. We believe that in engaging insiders and outsiders in the sort of description which follows we can start to unpack our complex exclusiveness with its insistent inclusiveness. Aboriginal people are statistically more likely to come before a court than non-Aboriginal people, yet they are invariably outsiders to the process. We think our paper starts to uncover reasons why this is so and how we can, in practice, remedy this situation. K. Auty http://ro.uow.edu.au/ltc/vol8/iss1/1 http://ro.uow.edu.au/ltc/vol8/iss1/1 Mon, 30 Mar 2009 19:51:04 PDT What I most like about the idea of 'challenging nation' is what it has brought us over the past two years. Initially we wanted an idea that would act as an umbrella for people interested in Australia here at the University of British Columbia, a concept that would make sense of the diversity of their scholarship across disciplines. 'Challenging nation' worked for that purpose, and that group of people developed and supported the Challenging Nation Lectures in 2003-04. But once we invited eight other people, somehow plausibly connected to Australia with something to say about nation, the challenge took off in different ways. C. Dauvergne http://ro.uow.edu.au/ltc/vol9/iss1/10 http://ro.uow.edu.au/ltc/vol9/iss1/10 Sun, 29 Mar 2009 22:13:35 PDT Hannah Arendt's account of the trial of Adolf Eichmann has haunted commentators since it was first published in 1963. The meaning of the trial, as a foundational event for the State of Israel, and the meaning of the trial as a point of visibility for the hundreds of witnesses, is endlessly examined in the literature on Eichmann in Jerusalem. The ghosts of the people lost to the Nazi regime haunt the trial, as do the voices of the witnesses, and the desires and efforts of the prosecutor, the judges, and Eichmann himself. Like all texts, Eichmann in Jerusalem is haunted as a matter of course, is made up of invisible and inaudible participants among the words that can be read and re-read. This essay is a meditation on the hauntings within this text, from within the genre of haunted literature. It reads Eichmann in Jerusalem as, finally, a ghost story. T. Flessas http://ro.uow.edu.au/ltc/vol9/iss1/9 http://ro.uow.edu.au/ltc/vol9/iss1/9 Sun, 29 Mar 2009 22:11:00 PDT Going to the beach in Australia is a way of getting to the borders of nowhere in the sense that no-one lives on the beach. It is under limited circumstances that one can say 'Come to the beach'; it is somewhere only to 'go'. Like death, one only goes. But unlike death, one comes back, repeatedly (cf Derrida 1979). The repetition and pleasure of death are at the centre of the beach experience. Once you step onto the sand you are in a space away from life, set away from the city, set away from normal civilisation. Yet the everyday follows you, for though this is the beach, it is still the world. It is a place of being and becoming. Whether you will come back would depend on how you 'hold acquaintance with the waves' (Twelfth Night I ii). A. Mooney http://ro.uow.edu.au/ltc/vol9/iss1/8 http://ro.uow.edu.au/ltc/vol9/iss1/8 Sun, 29 Mar 2009 22:06:27 PDT The wheelchair has become a stereotypical symbol of physical disability. The image may appear as a picture, as on parking signs with a blue background and a white figure sitting in a wheelchair, or in reality when one sees an actual person sitting in one. Both images are useful in characterising the governance of the handicapped parking space, a field that presents a unique case study in the interpretation and enforcement of law. The parking space is legally reserved for vehicles marked by the Blue Wheelchair which hangs as a tag from the rearview mirror or on the licence plate; but at the same time it is socially reserved for vehicles driven by a person who is dependent upon an actual wheelchair. Law enforces this space formally by ticketing and/or towing violating vehicles. Society enforces this space informally through the disciplining gaze of onlookers. Legal enforcement is based upon the presence of the Blue Wheelchair symbol as it matches the sign that towers above the reserved spot. Social enforcement judges and disciplines through the qualifying observation of visible disability in the form of a wheelchair. However, what happens when a Blue Wheelchair symbol is present, but an actual wheelchair is absent? Which source of legitimacy is treated as the more authoritative? S. Marusek http://ro.uow.edu.au/ltc/vol9/iss1/7 http://ro.uow.edu.au/ltc/vol9/iss1/7 Sun, 29 Mar 2009 22:01:15 PDT In this paper, I take up de Certeau's invitation to attend to the spatial practices that 'secretly structure the determining conditions of social life' (1984: 97). I do so conscious of Moran's reminder that 'the corporeal is never far away from the spatial themes of law' (2003: 91), and Eisenstein's assertion that to become more specific 'is actually to encompass more of humanity'. (1994: 4). Practices of democracy (and practices of justice) presume and implicate very specific kinds of spaces and bodies. In attempting to re-imagine democracy, Eisenstein suggests that we focus on the body of the pregnant woman, a body that has been the object of extensive analysis and regulation. The shifting and blurred boundary between the woman and the life she carries is the subject of contestation (Fried 1990). The body of the woman is characterised by some as permeable, by others as inviolable. The foetus is sometimes conceptualised as part of the woman's body, at other times as merely enclosed within her body, and the discussion often turns to contests of rights between mother and foetus (Thomson 1986). Always marked by race, class, and ability, the pregnant body is sometimes celebrated, sometimes reviled (Solinger 1992). R. Johnson http://ro.uow.edu.au/ltc/vol9/iss1/6 http://ro.uow.edu.au/ltc/vol9/iss1/6 Sun, 29 Mar 2009 21:56:38 PDT In this essay I will read one of the Mexican muralist Diego Rivera's (1886-1957) most important works, 'Detroit Industry' (1932-33, Detroit Institute of Arts [DIA], Detroit, Michigan, USA), as a work about the nature of community construction. 'Detroit Industry' depicts a car factory in Detroit in the early 1930s, the labour processes that are involved in the production of the car, and the community's labour that sustains and reproduces itself. Rivera is a communist straightforwardly depicting labour and alienation in the capitalist mode of production, and the problems that this presents for building a community. The Marxist critique of the bourgeois state is at the core of the problematic of community construction, though not the sole difficulty. J. McKay http://ro.uow.edu.au/ltc/vol9/iss1/5 http://ro.uow.edu.au/ltc/vol9/iss1/5 Sun, 29 Mar 2009 21:47:00 PDT On the front cover of the Oxford Companion to Aboriginal Art and Culture an Aboriginal man in a red loin cloth appears dancing on a brightly coloured canvas. He is dwarfed by the size of the painting, and is doubly lost amid the 'riotous colour', the lines, circles and swirls of his platform, the Ngurrara Canvas II. This is Nyilpirr Spider Snell, an artist from the Kimberley/Great Sandy Desert region of North Western Australia, performing the Kurtal -- or snake dreaming dance -- in Canberra to 'remind those sitting on the High Court of the depth of [his peoples'] claim' (Native Title Newsletter 2002: 4). K. Anker