10 October 2009

Publish And Be Damned?

A paper on 'Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory' by Paul Robinson, Michael Cahill & Daniel Bartels argues that
Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.
The paper summarises the results of
an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment.

Blackmail is not only a common subject of scholarly theorizing, but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. [The paper] reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community’s views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment.

The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory.

09 October 2009

Human Rights

The Australian government has released the report of the National Human Rights Consultation Committee, a gathering of the Great & the Good comprising Father Frank Brennan, Mary Kostakidis, Mick Palmer and Tammy Williams.

That report was submitted to the Attorney-General, the Hon Robert McClelland MP, on 30 September 2009. It reflects over 35,000 submissions and community input via "66 community roundtables and three days of public hearings", collectively described by Mr McClelland in his 8 October speech as "most extensive consultation on human rights issues, and probably on any issue at all, in Australia's history". Metrics, metrics, uber alles!

The Attorney-General has also announced the start of public consultation on the 188 page report of the Access to Justice Taskforce [PDF], which was released along with the 16 page Strategic Framework for Access to Justice [PDF] on 23 September. The report features recommendations regarding improved access to the federal civil justice system. Submissions as part of that consultation can be made through consultation fora, online or by snail/email. The deadline for submissions is 30 October 2009, arguably not a very generous timeframe.

The Strategic Framework is described as
based on five key principles of accessibility, appropriateness, equity, efficiency and effectiveness and will support a justice system that aims to:

* allocate resources more efficiently;
* promote fair outcomes;
* encourage the early resolution of problems and disputes;
* enable matters to be directed to the most appropriate method for resolution;
* identify broader issues which may cause specific legal problems; and
* empower individuals, where possible, to resolve their own disputes.
The Attorney-General commented that
Increasingly, the experience of ordinary Australians dealing with the justice system is marked by confusion and complexity. People often don't understand legal events, what to do or where to seek assistance, while many are excluded because information is complicated or simply difficult to find.

The Framework looks at how the justice system operates as a whole and in doing so, seeks to encourage better information, early intervention, and improved avenues to resolve disputes without the need for litigation.
A modest starting point for improved access might be to reconsider A-G's electronic publishing system, which resulted in non-intuitive URLS of daunting length for both documents.

The National Human Rights Committee report 'went live' with the Attorney-General's words that
most people who participated in the Consultation are convinced that Australia is one of the best places to live.

Australians can indeed be proud of our nation. We enjoy a strong parliamentary democracy, with universal suffrage and a clear system of checks and balances which contribute to maintaining our strong and independent democratic institutions, underpinned by the rule of law that applies equally to all – irrespective of any office a person may hold.

Our common law recognises a number of human rights principles and we have a range of anti-discrimination laws to prohibit unfair discrimination on the grounds such as race, age, sex and disability.
The meaningfulness of remedies under those statutes for sometimes problematical. Mr McClelland indicated that
We are also a party to a number of international instruments which outline fundamental human rights that are recognised by the international community. Australians are well served by the Australian Human Rights Commission, the Ombudsman and our independent judiciary. In addition to this institutional framework, Australia also has an independent media and a robust non-government organisation sector.
The Minister then conceded that "the patchwork quilt of protections needs some mending", noting that
it is fair to say that the Committee's observation that Australia has a 'patchwork quilt' of protection for human rights is quite apt.

For most of us the 'patchwork quilt' is working well. But, as the Committee's report highlights, there are times when individuals, especially those who are vulnerable or disadvantaged, miss out including the homeless, people with disabilities, children at risk and Indigenous Australians.
He goes on to explain that
The report shows that there are many views on how human rights and responsibilities should be protected, promoted and realised.

Unsurprisingly, there are strong views firmly held on the merits or otherwise of a Human Rights Act.

However, as the report clearly shows there are many ways to protect and promote human rights including through enhanced education and improved parliamentary scrutiny.

The report shows that too many Australians are not informed about what 'human rights' are or how they are currently protected.

The need for increased human rights education was clearly a re-occurring issue in many of the roundtables, the written submissions and surveys conducted.

The Government agrees that human rights education can play an important role. It is important to ensure that people not only understand their rights but also, more broadly, the role of human rights and responsibilities in our community.
Dollops of wholesome 'Third Way' civics lessons and fridge magnets to accompany a non-entrenched and non-justiciable Charter of human rights?

It is disappointing that the report envisages such a weak Charter (rather than adopting the Canadian model) and proposes that the legislation should be restricted to the national government. As one constitutional law expert commented to me, "apparently it's OK to let the States and Territories remove rights".

Horror Stories

Having read Christian Pross' Paying For The Past: The Struggle Over Reparations For Surviving Victims of the Nazi Terror (Baltimore: Johns Hopkins Uni Press 1998) on the way back from Melbourne on Wednesday I was in no mood for the conjunction of a New York Magazine item on violence against gay men in Iraq - the usual nastiness (beating, decapitation, castration, supergluing the victim's anus, carving bad words on the victim's chest or face) - and claims that Joseph Massad has got tenure ("a life-time teaching post") at Columbia U.

Pross is interesting for a view of resistance within the German legal, insurance and medical establishments to recognising psychological or other harm suffered by inmates of concentration and death camps ... a resistance evident in wilful insistence on the provision of proof that injuries were attributable to time spent behind the wire, distortion of evidence by claim assessors and arbitrary decisionmaking by people who in some cases had moved from executive positions in the killing machine to posts in local government saying yay or nay to representations from ailing 60, 70 and 80 year olds. As a passenger on the flight noted, sometimes bureaucratic rationality is a real bummer.

Massad has gained attention for polemics against Israel (characterised as an illegitimate colonialist Orientalist state) and for 'Re-Orienting Desire: The Gay International and the Arab World' in 14(2) Public Culture (2002) 361-385. That article - reflected in his Desiring Arabs (Chicago: Chicago Uni Press 2007) - claims that "the Gay International" (more sinister than the Homintern - oops, the Comintern - and of course so very very Orientalist) is engaged in a global conspiracy directed at the Muslim world by the secular/Christian West.

Along the way he'd offered treats such as comparison of Israel with Nazi Germany (apparently both are engaged in genocide) and claims such as "The only constant in Palestinian lives for the last century of Zionist atrocities has been resistance to the Zionist project of erasing them from the face of the earth". Uh huh

A spirited review by the Guardian's Brian Whitaker comments that
While it may be interesting to consider how far modern (western) constructs of sexual identity have been adopted (or not) by various cultures, in terms of sexual rights the question is largely irrelevant: it is the behaviour that is liable to be penalised, regardless of how people describe themselves. ... much Arab activism (of all kinds) is organised from abroad. Inevitably, in Massad's eyes, that turns the activists into "native informants", aiding and abetting the western "missionaries".

Massad appears similarly blinkered to the human cost of the prevailing attitudes towards homosexuality in Arab countries: the murders of gay men in Iraq, entrapment by the police in Egypt, the arrests of men who "behave like women" in Saudi Arabia, the beatings at the hands of families, the futile and potentially harmful psychiatric "cures", blackmail, the lack of state protection, and more. There is no real acknowledgment of a problem that Arabs should attend to.
Nicely put. A core attribute of universal rights (such as the right not to be sealed with superglue) is that they are universal, not magicked away if there is a palm tree or a camel or a yurt or an elephant in proximity.

People who regard human rights as an undesirable import might refer to the persuasive analysis in Bede Harris' acute submission [PDF] to Australia's National Human Rights Consultation - discussed elsewhere in this blog - and to two papers by Eric Heinze.

His 'Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech' [here] comments that
All European states prohibit some form of hate speech. US law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.
Heinze's 'Truth and Myth in Critical Race Theory and Latcrit: Human Rights and the Ethnocentrism of Anti-Ethnocentrism' in 20(2) National Black Law Journal (2008) 62-107 [here] argues that
Critical race theorists and LatCrits argue that, throughout US history, norms promising liberty and equality have been myths. They examine the formalisms of US rights discourse through the lens of a realist jurisprudence, arguing that guarantees of 'equal protection' or 'due process' have failed non-dominant groups throughout long histories of slavery, segregation, subordination, and ongoing exclusion. However, a number of them merely substitute a simplistic myth of US-is-good with an equally simplistic myth of US-is-bad. Scholars such as Mari Matsuda, Richard Delgado, Celina Romany, Berta Esperanza Hernández-Truyol, Elisabeth Iglesias condemn those who praise the black letter of US law while overlooking its brutal realities; yet they then take precisely that approach to non-US legal regimes, such as the standard norms of international human rights law, praising the black-letter norms while ignoring the oppressive politics and histories of many of the powerful countries and institutions behind them. Far from overcoming American ethnocentrism, they thereby recapitulate it. Within an ever more global discourse of human rights, critical theorists can only retain credibility by applying the same realist methods to international and non-US regimes that they demand for US law.

05 October 2009


Yesterday's entertainment was attending the grand final (at the High Court) of the national constitutional law mooting competition. (I'd had fun judging in one of the finals). UC made it to the grand - judged by Chief Justice Robert French, constitutional law expert Bede Harris and Dean R - but went down to the University of Queensland team. Nice questioning by Dr Harris

All in all it was a good effort from the ISAACS Law Society (with a bit of help from LexisNexis), which managed an event that brings together law students from across Australia.