The payment to British authors by American publishers during the mid-19th century, when the works of British authors did not have any American copyright protection, is sometimes presented as evidence that authors can be well rewarded without the need of copyright protection. The introduction of this evidence to economists came largely from Arnold Plant’s 1934 critique of copyright, which relied on a UK Royal Commission Report published in 1878. In this paper I examine the evidence put forward in the Royal Commission Report as well as data on payments to British Authors from a leading American publisher during the mid-1800s. The conclusion I reach is that most British authors were not paid by American publishers and the majority of those who were paid received considerably less than they would have received under copyright. Further, a cartel-like agreement among leading American publishers enhanced the payments to British authors beyond what they would have received in a market with modern antitrust laws, thus overstating author payments without copyright.
06 November 2015
'Paradise Lost? The Payment of British Authors in 19th Century America’s Copyright Wilderness' by Stan J. Liebowitz argues
Schmitt, witches and the sublime?
‘Political Sublime. Heterodoxy and Jurisdiction at the Origin of Modernity’ by P.G.Monateri states
Luthmann refers to an Opposition by the plaintiffs as being what
‘Political Sublime. Heterodoxy and Jurisdiction at the Origin of Modernity’ by P.G.Monateri states
The aim of this paper is to show the demonological origin of modernity, which entails a "sublime" aspect of the political exceeding the words by which we try to capture its nature.
My paper proceeds using the lexicon of the Italian Theory (Agamben and Esposito) to analyse the parallel between King James I and Jean Bodin. Both authors developed the modern conceptions of political sovereignty and both were engaged in witch-trials, writing extensive treatises on the matter. This parallel locates the question of heterodoxy/orthodoxy in the very threshold of modernity.
My tentative conclusion is the possibility of a link between the politicization of the magic world and the genealogy of modernity, reversing, in a way, the standard approach of political theology in favour of a demonological archeology of modern European concepts of law and politics.Monateri refers to “the strange interconnections between the rise of the modern concept of sovereignty and the political, and the Jurisdiction over the magic and witchcraft, especially in two different but parallel figures as king James I of England and Jean Bodin in France”, going on to comment
Both authors have indeed written extensively on withcraft, the former in his Demonolgie and the latter in his Demonomanie, and both, as it is well known, have crafted, by practice and in theory, key features of the modern purely political concept of sovereignty.
As such this work is part of an ongoing project of rethinking the origin of modernity and its genealogy pointing at the the sublime aspects of the political. From this standpoint I use what is now labeled as "Italian Theory" and its lexicon to push it into a contingent but different aspect, targeting the "ineffable" of the political.
According to this recent intellectual path, here I use the term political as the English translation of the German term "Das Politisch", to designate the concept of what is political beyond the standard reference denoted by words as politics or policies.
Secondly for "sublime" I mean to make reference to those features of human sensibility re-discovered by Edmund Burke, pointing to what is "beyond words" and probably beyond explicit and clear thought. So everything which is at the same time terrific but attractive, hazardous but seducing, too large or too huge but unescapable, is "sublime". To capture the idea it is enough for the moment to remember that from the standpoint of Burke's aesthetics the sunny mediterranean in daylight is a piece of beauty, but the stormy north sea swaddled in darkness is sublime.
My investigation is then about the dark side of the genealogy of the modern political which happened to be denied by rationalism and to fall into latency, but that persists as a remnant, a residue, exceeding our capacity to verbalise thoroughly what politics is at national and international level.
What, then does it lie at the heart of our political conceptions? What is exactly defeating rationalism in the domain of politics? What is the existential nature of political decisions? Which kind of ghosts are still dominating a globalized world, and isn't the West, after all, one of the most exotic places in this world today?
Of course, having to do with witchcraft and the romantic sublime my theory copes with the place of heterodoxy within the transformations which moulded the surface of European rationalism, as a standard for global orthodoxy, in the scientific appraisal of the political and legal domain. I would like to stress the use of these categories instead of the more common divide between rationalism and irrationalism.
Those who had to do with witches weren't irrationalist at all, they simply had a social ontology different from ours, whereas it is true that many of them, as Bodin, have been condemned as heterodox by the Church.
Also Burke was certainly not an irrational politician, but a very thoughtful and practical one, even if romanticism and its aesthetics raised as a form of heterodoxy in the field of aesthetics and in definition of beauty.
Having to do with witchcraft and the sublime my research tries also to supersede the theory of political theology as an historical account on the genealogy of modernity following the plot of the fall: once there were theological concepts moulding our understanding of the world and the law; these concepts decayed into pure political and legal conceptions, and, as a consequence, modern political orders are but broken pieces of a fallen theology, haunted by its memory.
According to me, these accounts, as long as they follow this plot, are themselves a form of self-improving theological understanding of our political tradition, implying a sense of nostalgia for the pre-politcal world. From this standpoint they can be labeled as "orthodox" as they still believe in a lost paradise of theological ontology surviving under the surface of modernity. On the contrary I think that the birth of the political represented a major fracture in the history of the West, and that its origins were much more heterodox than expected.
My main claim is, indeed, that of a demonological origin of modernity, which lies also at the heart of the romantic aesthetics of the sublime, reversing Schmitt's paradigm, as long as it entails a condemnation of political romanticism, seeing it as a form of eternal discussion avoiding the central point of decision.
At the opposite my project is to show how the pure political element in Western thought emerged from the heterodoxy of magic, and that its "ineffable" dimension was a major concern of romantic aesthetics. In this way my project, following what has recently be labeled as an "aesthetic turn in political thought", will be developed here only in its premises, and, henceforth, my present attempt will focus only on just two main works: James's Demonologie and Bodin's Demonomanie.
Following this path, in the second paragraph I shall present the evolution of the English legislation on magic, to see how it started, at the threshold of modernity, transforming witchcraft into a felony, a political crime of high treason, performing a strong politicization of it. In the third paragraph I shall discuss King James's conceptions about witchcraft and the arcana imperii, the mysteries of prerogative royal. Then in the fourth paragraph I shall cope with the book of Jean Bodin on the Demonomanie and his reflections on the Republic, which led him to his famous definition of sovereignty. My main point will be to remember that the Church condemned the books of Bodin as heterodox, precisely because they offered a political theory of magic.
On this basis I shall formulate my first tentative conclusions in the fifth paragraph, linking, as I said, demonology, heterodoxy and the aesthetics of the sublime.I have meanwhile pointing students to New York Supreme Court filing by Richard Luthmann in a dispute with Foley and others (Court index 150175/2014) which features both robust language and a reference to sttlement of a commercial dispute though trial by combat.
Luthmann refers to an Opposition by the plaintiffs as being what
when viewed in a light most favorable to opposing counsel - [can] only be termed as a glorified comic book piled on top of pure and adulterated extortion wrapped in a transparent abuse of legal process.Trial by combat? Luthmann provides the reader with an eight page outline of UK and US law regarding trial by combat, noting that
The last certain trial by battle in England occurred in 1446: a servant accused his master of treason, and the master drank too much wine before the battle and was slain by the servant. ... The last certain judicial battle in Britain was in Scotland in 1597, when Adam Bruntfield accused James Carmichael of murder and killed him in battle.Luthmann notes
Pronouncing judgement in favor of the accused's plea claiming the wager of battle, Justice Bayley of the King's Bench said that:
'One of the inconveniences of this procedure is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation'.
The accusation was quickly withdrawn after this judgment. Parliament abolished wager of battle the following year, in 1819, and at the same time they also abolished the writ of right and criminal appeals.He goes on to argue that
At the times of the ratification of the Bill of Rights in 1791, trial by combat was not outlawed in any of the Thirteen Original United States (including the State of New York), all of whom inherited British common law upon independence in 1776.
Since then, no American court in post-independence United States to the undersigned’s knowledge has addressed the issue, and thus trial by combat remains a right reserved to the people and a valid alternative to civil actionbefore concluding
The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.
'Big Data and The Phantom Public: Walter Lippmann and the fallacy of data privacy self-management' by Jonathan A Obar in (2015) Big Data and Society argues
"The digital citizen today maintains a perpetual information illiteracy—an intellectual detachment from the rapidly expanding universe of Big Data. The digital citizen knows they are somehow affected by what is going on. Internet evolution continually, terms of service statements regularly, and data privacy mentions occasionally, serve as reminders that they are being swept along by great drifts of circumstance.""Yet the Internet’s data-driven affairs are in no convincing way the affairs of the digital citizen. Big Data’s operations are for the most part invisible, managed at distant centers, from behind the scenes, by unnamed powers. As a private person, the digital citizen does not know for certain what is going on, or who is doing it, or where they are being carried. No newspaper reports their environment so that they can grasp it; no school has taught them how to imagine it; their ideals, often, do not fit with it. Digital citizens live in a world which they cannot see, do not understand and are unable to direct. In the cold light of experience the digital citizen knows that data privacy self-management is a fiction."Had The Phantom Public been written today, and Walter Lippmann been concerned with the nature of our digital existence, perhaps this is how his opening chapter would have read. In 1927, critiquing what he refers to as “the mystical fallacy of democracy” (p. 28), Lippmann decries academic and popular misconceptions suggesting that individuals can be self-governing in a democracy. With language now infamous for its fiery and at times offensive tone, Lippmann challenges perpetuations of democratic delusion; spoken sedatives that, to this day, are strategically prescribed by politicians aiming to assuage publics that might otherwise fear political marginalization. Almost 90 years later, his words and his pragmatism are as relevant as ever, and should be applied in new contexts where similarly romantic and impractical calls for self-governance quiet those easily sedated, concurrently wasting time, money and energy in the pursuit of what Walter Lippmann called an “unattainable ideal” (p. 29).
This paper begins with a review of Lippmann’s ‘fallacy of democracy,’ allowing for further conceptualization of the ‘fallacy of data privacy self-management.’ What follows is a policy analysis of recent privacy efforts by the US government that perpetuate the data privacy self-management fallacy. The analysis begins with a look at data proliferation, linked to a sweeping digitization of everyday life, and a Big Data industry that is growing as quickly as its stockpiles. The myriad data sources and data collectors will be emphasized in an attempt to highlight the complexity and impossibility of data privacy self-management. Calls for data self-governance by the Federal Trade Commission (FTC), the White House, and the US Congress are presented next, with brief references to Lippmann’s critique interspersed. Recent research supporting the view that data privacy self-management is a fallacy will be described. The discussion section summarizes the critique and briefly introduces a more pragmatic approach to the challenges identified, and one in need of further inquiry—representative data management.
03 November 2015
A predictable and preventable path: Aboriginal people with mental and cognitive disabilities in the criminal justice system [PDF] by Eileen Baldry, Ruth McCausland, Leanne Dowse and Elizabeth McEntyre comments
Aboriginal and Torres Strait Islander peoples with mental and cognitive disabilities are significantly over-represented in Australian criminal justice systems. However there has been a lack of critically informed evidence, analysis and co-ordinated policy and service response on this most pressing human rights issue. The Indigenous Australians with Mental Health Disorders and Cognitive Disability in the Criminal Justice System (IAMHDCD) Project brings an innovative Indigenous-informed mixed method research approach that provides, for the first time, a critical analysis of systems interactions and responses to the complex needs of Indigenous people with disability in criminal justice. It draws on the mental health disorder and cognitive disability MHDCD Dataset, which contains lifelong administrative information on a cohort of 2,731 persons who have been in prison in NSW and whose mental health and cognitive impairment diagnoses are known. All NSW criminal justice agencies (Corrective Services, Police, Juvenile Justice, Courts, Legal Aid) and human service agencies (Housing, Ageing Disability and Home Care, Community Services, Justice Health and Health NSW) have provided data relating to these individuals. A quarter (676) of the cohort is Aboriginal and/or Torres Strait Islander: 583 Indigenous men (21% of the whole cohort and 86% of the Indigenous sub- cohort) and 93 Indigenous women (3% of the whole cohort and 14% of the Indigenous sub-cohort). This has enabled the compilation of administrative de-identified lifecourse ‘pathway’ case studies for Aboriginal people in the Dataset, providing a broad, dynamic, trans-criminal justice and human service understanding of their involvement in the criminal justice system. It also reports on a qualitative investigation of the experiences of Aboriginal women and men who have mental and cognitive disability and who have been in the criminal justice system undertaken in four communities in NSW and one community in the NT. Analyses and interpretation of these quantitative and qualitative findings are informed by the conceptual tools of decolonisation, complexity and critical methodologies in the fields of criminology, race, feminist and disability studies.
Our research team has developed an in-depth picture of the interactions of diagnoses, vulnerabilities, complex support needs and intensive interventions and how these coalesce for Aboriginal people with mental and cognitive disabilities in the criminal justice system. New understandings of the interactions amongst criminal justice and social, health, disability and other human services for Aboriginal people with complex support needs in two Australian criminal justice systems (NSW and NT) are detailed. This report sets out detailed quantitative analysis of the 676 Indigenous women and men in the MHDCD cohort as well as views of community members regarding systemic and social challenges, service failures, positive program interventions, and culturally responsive approaches and remedies. This project provides innovative theoretical and applied knowledge that can assist in the reduction of the unacceptably high level of Aboriginal people with mental and cognitive disabilities in Australian criminal justice systems.
Indigenous people in the MHDCD cohort are significantly more likely to have experienced earlier and more frequent contact with the criminal justice system and greater disadvantage than non-Indigenous people. Indigenous people in the cohort were significantly more likely to: have been in out-of-home-care, to come into contact with police at a younger age and at a higher rate as a victim and offender, to have higher numbers and rates of convictions, more episodes of remand, and higher rates of homelessness than non-Indigenous people. People in the cohort with complex support needs (multiple diagnoses and disability) in particular are significantly more likely to have earlier contact with police, to have been Juvenile Justice clients, and to have more police and prison episodes throughout their lives than those with a single or no diagnosis. Yet the data also highlights that most of the offences by Indigenous people in the cohort were in the less serious categories of offences – theft and related offences, public order offences, offences against justice procedures, government security and government operations, and traffic and vehicle regulatory offences.
Indigenous women in the cohort experienced the highest rate of complex needs. Indigenous women were significantly more likely than non-Indigenous women to have been in out-of-home care as children. They experienced their first police contact at a younger age and had a significantly higher number of police contacts and convictions across their lives than non-Indigenous women in the cohort. Indigenous women were more likely than non-Indigenous women to have been in custody as juveniles. They had significantly more remand episodes and custodial episodes over their lifetime. Indigenous women with complex needs in particular have significantly higher convictions and episodes of incarceration than their male and non-Indigenous peers. They were more likely to have been homeless and to have been victims of crime than non-Indigenous women in the cohort.
This analysis confirms and extends initial findings that Indigenous women and men in the MHDCD cohort experience multiple, interlocking and compounding disadvantageous circumstances, and highlights their early and frequent contact with criminal justice agencies. The needs of Indigenous people in the cohort emerge as particularly acute and poorly serviced by past and current policy and program approaches.
Institutional racism, stigma and discrimination are common, marginalising and destructive experiences for Aboriginal people with mental and cognitive disabilities. Interviewees reported discrimination and stigma experienced on the basis of their Aboriginality, their disabilities, and in regard to the criminalisation of their behaviour, affecting their access to education, employment, housing and just legal outcomes.
An assimilationist approach was perceived as still pervasive amongst many of those working within criminal justice and human service agencies, with little recognition of the ongoing impact of colonisation, intergenerational trauma, and grief and loss for Aboriginal peoples. The lack of understanding and recognition around cognitive impairment was perceived as a key problem exacerbating contact with the criminal justice system. The over- representation of Aboriginal people with mental and cognitive disabilities in the criminal justice system was described as normalised in every community and context we investigated. Disability emerged as part of the accepted overall presentation of Aboriginal people with multiple and complex support needs in the criminal justice system. The view that Aboriginal people with disability should be managed by criminal justice agencies, that this is ‘just how it is’, permeates all agencies’ practice. What emerged strongly from the data was the systemic normalisation of disadvantage, disability and offending, with the conflation of these seen most clearly in people with complex support needs.
Many Aboriginal people who end up in the criminal justice system have early lives marked by poverty, instability and violence, without access to good primary health care or early childhood education. What emerged from the qualitative interviewees is the way that an Aboriginal child with an intellectual disability or Fetal Alcohol Spectrum Disorder (FASD) rarely receives early diagnosis or positive intervention, resulting in their disengagement or expulsion from school at a relatively young age. Drug and alcohol misuse by young people is a common experience, along with emerging mental health issues. Frequent out of home care placements, which break down resulting in homelessness, are often experienced. Aboriginal people with mental and cognitive disabilities were described as particularly at risk of physical and sexual violence from a young age, Aboriginal girls and women in particular. Increased police contact as a person of interest in relation to minor theft or public order offences is a common pathway, with the likelihood of a number of court appearances before a juvenile justice custodial period. Moving into adulthood, drug and alcohol misuse and mental health-related illnesses tend to worsen, often accompanied by increased experience of violence and self-harm, more serious offending and longer periods in custody. Trauma and violence emerged as common and pervasive experiences for Aboriginal people with mental and cognitive disabilities in the criminal justice system.
Other than occasional crisis-related admissions into hospital, there are reportedly few positive health and wellbeing options for this group. Drug and alcohol rehabilitation is often only available in a regional centre, which may be many hundreds of kilometres away, and even then, excludes people with a cognitive impairment. Mental health services are unable to accept people with drug or alcohol addiction. The few diversionary programs that aim to assist people whose offending is connected to their drug and alcohol addiction will not accept those with a history of violence. Incarceration becomes the default option in the absence of available or appropriate community-based care, housing or support. The multiple and complex support needs experienced by many Aboriginal people in the criminal justice system can then be understood as emerging from the siloed institutional responses to their circumstances; as in effect created from those responses. Negative, punitive criminal justice interventions rather than positive human or community based service interactions are the norm. Aboriginal people articulated the need for a holistic, integrated, culturally responsive model of care with rigorous client and community accountability to support Aboriginal people with multiple and complex support needs to reduce contact with the criminal justice system.
What these findings mean
The findings of this project unequivocally demonstrate that pathways into and around the criminal justice system for many Aboriginal people with mental and cognitive disabilities in NSW and the NT are embedded and entrenched by the absence of coherent frameworks for holistic disability, education and human services support. Aboriginal people with mental and cognitive disabilities are forced into the criminal justice system early in life in the absence of alternative pathways. Although this also applies to non-Indigenous people with mental and cognitive disabilities who are highly disadvantaged, the impact on Aboriginal people is significantly greater across all the measures and experiences gathered in the studies across the project. Interrogation of the MHDCD Dataset and information gathering through interviews was purposive and selective rather than representative, yet the synchronicity across the findings points to a commonality of experience for Indigenous people with mental and cognitive disabilities. Together these findings indicate that thousands of Aboriginal people with mental and cognitive impairment are being ‘managed’ by criminal justice systems in lieu of support in the community. Systems of control rather than care or protection are being invoked for this group, often from a very young age. The findings of this project highlight the ways that Aboriginal people with mental and cognitive disabilities experience multiple, interlocking and compounding disadvantageous circumstances.
The serious implications of poor diagnosis and unclear definitions of mental and cognitive disability are starkly highlighted in this research. The findings demonstrate that there is a severe and widespread lack of appropriate early diagnosis and positive culturally responsive support for Indigenous children and young people with cognitive impairment. This is connected to schools and police viewing certain kinds of behaviour through a prism of institutional racism rather than disability, as well as Indigenous community reluctance to have children assessed using particular criteria that are perceived as stigmatising and leading to negative intervention in Aboriginal families. For adults in the criminal justice system, cognitive impairment is either not recognised at all, or if recognised, poorly understood. For many Aboriginal people, diagnosis of their cognitive impairment comes with assessment on entry to prison. However such a diagnosis rarely leads to appropriate services or support while in prison; analysis of the data reveals that subsequent interventions tend to continue to foreground offending behaviour rather than complex social disadvantage or disability, mental health or alcohol and other drug (AOD) support needs. Our findings illuminate the particular challenges and vulnerabilities facing Indigenous women with mental and cognitive disabilities as the most disadvantaged group in our cohort in terms of their multiple and complex support needs.
During the course of the project, our research influenced and was in turn informed by the work of the Aboriginal Disability Justice Campaign and reports by the Australian Human Rights Commission and NSW and Victorian Law Reform Commissions (Baldry 2014). There is a growing awareness of the devastating impacts of current legislation, policies and practices on Indigenous people with mental and cognitive impairment and a need for an evidence-informed response by political leaders, policy makers, people working in criminal justice systems (police, magistrates, correctional officers, parole officers) and service providers. This report articulates a clear agenda for action.
Solutions from the community
Based on the qualitative and quantitative findings of our study, we recommend that the following five principles and associated strategies should underpin policy review and implementation:
Principle 1: Self-Determination
Self-determination is key to improving access to and exercise of human rights and to the wellbeing of Aboriginal and Torres Strait Islander people with mental and cognitive disability, especially for those in the criminal justice system.
Strategies: • Indigenous-led knowledge and solutions and community-based services should be appropriately supported and resourced. • The particular disadvantage faced by women and people in regional and remote areas should be foregrounded in any policy response to this issue. • Resources to build the cultural competency and security of non-Indigenous agencies, organisations and communities who work with Aboriginal and Torres Strait Islander people with mental and cognitive impairment who are in contact with the criminal justice system should be provided.
Principle 2: Person-Centred Support
Person-centred support which is culturally and circumstantially appropriate is essential for Aboriginal and Torres Strait Islander people with mental and cognitive disability, placing an individual at the centre of their own care in identifying and making decisions about their needs for their own recovery.
Strategies • Disability services in each jurisdiction, along with the NDIS should ensure there is a complex support needs strategy supporting Aboriginal and Torres Strait Islander people with disability in contact with criminal justice agencies. • Specialised accommodation and treatment options for Aboriginal and Torres Strait Islander people with mental and cognitive disability in the criminal justice system should be made available in the community to prevent incarceration and in custodial settings to improve wellbeing. • Aboriginal and Torres Strait Islander people with mental and cognitive disability who are at risk of harm to themselves or others and who have been in the custody of police or corrections should not be returned to their community without specialist support.
Principle 3: Holistic and Flexible Approach
A defined and operationalised holistic and flexible approach in services for Aboriginal and Torres Strait Islander people with mental and cognitive disability and complex support needs is needed from first contact with service systems.
Strategies • Early recognition via maternal and infant health services, early childhood and school education, community health services and police should lead to positive and preventive support allowing Aboriginal and Torres Strait Islander children and young people with disability to develop and flourish. • A range of ‘step-down’ accommodation options for people with cognitive impairment in the criminal justice system should be available. The NSW Community Justice Program (CJP) provides a useful template. • Community based sentencing options should be appropriately resourced, integrated and inclusive so they have the capacity and approach needed to support Indigenous people with mental and cognitive disability
Principle 4: Integrated Services
Integrated services are better equipped to provide effective referral, information sharing and case management to support Aboriginal and Torres Strait Islander people with mental and cognitive disability in the criminal justice system
Strategies • Justice, Corrections and Human Services departments and relevant non-government services should take a collaborative approach to designing program pathways for people with multiple needs who require support across all the human and justice sectors. • All prisoners with cognitive impairment must be referred to the public advocate of that jurisdiction
Principle 5: Culture, Disability and Gender-informed practice
It is vital that Aboriginal and Torres Strait Islander people’s understandings of ‘disability’ and ‘impairment’ inform all approaches to the development and implementation of policy and practice for Indigenous people with mental and cognitive disability in the criminal justice system, with particular consideration of issues facing Aboriginal and Torres Strait Islander women.
Strategies • Better education and information are needed for police, teachers, education support workers, lawyers, magistrates, health, corrections, disability and community service providers regarding understanding and working with Aboriginal and Torres Strait Islander women and men with cognitive impairment, mental health disorders and complex support needs. • Information and resources are needed for Indigenous communities, families and carers, provided in a culturally informed and accessible way. • The distinct and specific needs of Aboriginal and Torres Strait Islander women should be foregrounded in such education and information.
02 November 2015
'The Commonwealth’s Non-statutory Executive Power' by Nicholas Condylis in  39(2) Melbourne University Law Review 5 comments
The nature and ambit of the Commonwealth’s non-statutory executive power under s 61 of the Constitution is now the subject of heavy debate. The contest is between those who argue that s 61 should be interpreted consistently with Australia’s character and status as a modern and federal nation (‘the inherent view’), and those who give greater emphasis to Australia’s common law heritage and the role of the royal prerogative (‘the common law view’). This article critically analyses both these viewpoints, and considers whether there is scope for reconciling their core propositions. Drawing on the broader notion of the symbiotic relationship between the Constitution and the common law, and its application to the dynamic between s 61 and the prerogative, it is contended that a more balanced conception of the Commonwealth’s non-statutory executive power is achievable. It is argued that, if the supporters of the common law view accept that the Commonwealth’s non-statutory executive power may be released from the traditional limitations placed on the English Crown and thereby adapted to suit a modern and federal context, an indigenous version of the prerogative may be retained as the measure of the ambit of this power. An indigenous prerogative reconciles the core propositions of the inherent view and the common law view and therefore supports the principal contention of this article.Condylis argues
Section 61 of the Commonwealth Constitution states that ‘[t]he executive power of the Commonwealth is vested in the Queen’, is ‘exercisable by the Governor-General’, and ‘extends to the execution and maintenance of [the] Constitution, and of the laws of the Commonwealth’. From this last expression, two types of power may be deduced. The first is ‘statutory executive power’ due to the Commonwealth’s ability to act in ‘execution’ of the Constitution and federal laws. This power presents few interpretational difficulties, as recourse may be had to the constitutional or legislative provision which the Commonwealth is administering to measure the lawfulness of the impugned action. The second derives from the Commonwealth’s ability to ‘maintain’ the Constitution, which has been interpreted to mean a power to act without legislative authorisation. While this power is also ‘statutory’ in the sense that it derives from the Constitution, it is often referred to as ‘non-statutory executive power’, reflecting the absence of parliamentary approval. This power is considerably more difficult to interpret. This is because, when the Commonwealth acts without legislation, there is no ‘measuring-rod’ in s 61 against which the constitutionality of such action may be tested. Thus, the provision leaves this great power ‘described but not defined’ and therefore ‘shrouded in mystery’.
Due to this textual ambiguity, the nature and ambit of the Commonwealth’s non-statutory executive power has always been debateable. There are now two competing views. The first view, principally developed by the High Court of Australia, argues that the power is to be sourced directly in s 61 and given content by interpreting the provision consistently with the Commonwealth’s character and status as a national government (‘the inherent view’). This view first emerged in the latter half of the 20th century, when the High Court began to consider whether s 61 might contain a form of nonstatutory executive power that was not derived from, or recognised by, the common law.
The second view, advanced by some of Australia’s leading constitutional scholars, posits that the non-statutory aspect of s 61 can only be given sufficient meaning by reference to the Crown’s prerogative powers (‘the common law view’). The lineage of this view is more complicated. While it crystallised in academic writings as a response to the rise of an inherent form of non-statutory executive power, commencing with Professor George Winterton’s text Parliament, the Executive and the Governor-General, it may also be understood as defending the once orthodox position on the issue. The debate is now at a stage where both viewpoints are becoming increasingly sophisticated, with each position developing its own core propositions. The inherent view is currently preferred by the High Court, and is evolving on a case-by-case basis. By contrast, the common law view still prevails in the literature, as its contemporary proponents continue to advance the argument originally developed by Professor Winterton.
In the recent decisions of Pape v Commissioner of Taxation (‘Pape’), Williams v Commonwealth (‘Williams [No 1]’) and Williams v Commonwealth [No 2] (‘Williams [No 2]’), the High Court has left the taxonomy of the nonstatutory aspect of s 61 in some confusion. Before these three cases, the anatomy of the power centred on the Crown’s royal prerogative; that is, under A V Dicey’s broader definition, ‘the residue of discretionary or arbitrary authority … legally left in the hands of the Crown’. This included the Crown’s unique powers, varying from the mundane ability to coin money, to more extensive powers such as the ability to declare war. It also included the Crown’s ordinary powers, such as the capacity to make contracts or convey land. Alongside the prerogative existed an inherent (or ‘nationhood’) power, which the High Court began to develop in the mid-1970s. In its infancy, this power allowed the Commonwealth to perform limited functions for the benefit of the nation, and was narrow in its application.
After Pape, Williams [No 1] and Williams [No 2], however, it seems that this inherent power is threatening to become the key source of the Commonwealth’s ability to act without legislation. In turn, the ‘preponderant drift’ away from the prerogative towards this inherent form of non-statutory executive power, has perpetuated the assumption that the inherent view and the common law view are ‘contending for ascendancy’ and are therefore mutually exclusive.
This article seeks to challenge that assumption. The principal contention that will be advanced is that s 61 may be approached in a more balanced way that draws on the core propositions of both the inherent view and the common law view. This contention will be supported by an evaluation of an article written by Professor William Gummow (as he now is), namely, ‘The Constitution: Ultimate Foundation of Australian Law?’, regarding the ‘symbiotic relationship’ between the Constitution and the common law. As Professor Gummow explains, there are terms in the Constitution that rely on the common law for conceptual guidance, and conversely, there are aspects of the common law that depend on the Constitution to adapt outmoded English legal concepts to the federal context in which they now operate.
It will be argued that this ‘symbiotic relationship’ is applicable to the dynamic between s 61 and the prerogative, and this should be seen as the analytical middle ground between the inherent view and the common law view. Through this lens, both positions become relevant when establishing how s 61 relies on the prerogative for interpretational clarity, and conversely, how the prerogative, as recognised under the English common law, is not suited to the legal realities of an independent, modern and federal polity. It will be proposed that, if the supporters of the common law view accept that the Commonwealth’s non-statutory executive power may be released from the traditional limitations placed on the English Crown and thereby adapted to suit a modern and federal context, an indigenous version of the prerogative, as developed by the Australian common law, may be retained as the measure of the ambit of this power. An indigenous prerogative reconciles the core propositions of the inherent view and the common law view, and therefore supports the contention that a more balanced conception of the Commonwealth’s non-statutory executive power is achievable.
This argument will be developed in three parts. Part II will explain the current debate concerning the Commonwealth’s non-statutory executive power. This will be achieved by providing an elucidation of the emergence of the inherent view and the common law view in the case law and literature respectively, and then articulating the core propositions underpinning each viewpoint.
Part III will establish that there is an assumption that these two viewpoints are mutually exclusive, and then explore whether this assumption is rebuttable. This will be achieved by identifying the premise from which the core propositions of each viewpoint derive, and comparing each premise to identify the critical point at which these two positions diverge, to see if a middle ground may be reasoned on this issue. The tentative conclusion will be drawn, based on one reading of Professor Gummow’s article, that the common law view proceeds from the false premise that there is a continuum between Australia’s common law heritage and its post-colonial constitutional framework, with the resultant triumph of the inherent view.
In Part IV, this article will enter the debate by arguing against this conclusion, and demonstrate how a more subtle reading of Professor Gummow’s article suggests that a middle ground does exist between both viewpoints. This will be achieved by exploring the symbiotic relationship between the Constitution and the common law, and the way this idea of mutual dependence has been developed in other contexts outside of executive power. This notion will then be applied to the relationship between s 61 and the prerogative, showing how an indigenous prerogative appeases the core concerns of both viewpoints.
The logic behind this argument will then be tested against the facts of the recent High Court case, CPCF v Minister for Immigration and Border Protection (‘CPCF’), which raised questions concerning the interpretation of s 61. The principal contention of this article will be confirmed: that the inherent view and the common law view are not mutually exclusive positions, and may be analytically united to devise a more balanced conception of the Commonwealth’s non-statutory executive power.
'The Political Turn In Animal Rights' by Tony Milligan in (2015) 1(1) Politics and Animals 6-15 comments
Some of the most important, influential, and original texts on the standing of animals have, in recent years, been written not by philosophical ethicists but by political theorists such as Sue Donaldson and Will Kymlicka (2011), Robert Garner (2013), Alasdair Cochrane (2012), and Siobhan O'Sullivan (2011). What follows will argue that their work is partly constitutive of a "political turn" in the discourse of animal rights. Section I will try to shed some light on this idea of a political turn and its driving motivations. Sections II and III will try to show that the turn involves a simultaneous constraining of conceptions of human/animal equality and a broadened appeal to liberal political values. Section IV will address a concern that such a constrained conception of equality, and the allied pragmatism which goes with it, may drive the turn toward rapprochement with animal exploitation through an abandonment of the project of animal liberation. I will suggest that such a danger only arises if key commitments of the turn are combined with a further set of commitments concerning autonomy and agency, commitments that are best left behind. The concluding section, V, will briefly comment on the merits of the kind of discourse that the turn (so far) has involved.Milligan argues
It is no great secret that some of the most important, influential, and original texts on the standing of animals have, in recent years, been written by political theorists rather than (in the manner of Peter Singer and Tom Regan) philosophical ethicists. Here, I have in mind various texts by Sue Donaldson and Will Kymlicka (2011), Robert Garner (2013), Alasdair Cochrane (2012), and Siobhan O'Sullivan (2011), among others. Their political background has, as we might expect, shaped their tone and sense of relevance. However, a stronger claim can be made: that their work is partly constitutive of a "political turn" in what, for lack of a better way of putting matters, I will call the discourse of "animal rights." (With the latter serving as a placeholder for talk about liberation, various sorts of robust concern, entitlements, and care as well as rights in the strict sense.) In what follows, the first section will try to shed some light on this idea of a political turn and some light also upon its driving motivations. Sections II and III will try to show that the turn involves a simultaneous constraining of conceptions of human/animal equality and a broadened appeal to liberal political values. Section IV will address a concern that such a constrained conception of equality, and the allied pragmatism which goes with it, may drive the turn toward rapprochement with animal exploitation through an abandonment of the project of animal liberation. I will suggest that such a danger only arises if key commitments of the turn are combined with a further set of commitments concerning autonomy and agency, commitments which are best left behind. ...
As a provisional gloss, the turn toward the political has emerged in response to two familiar fracture lines within the animal rights discourse. On the one hand, the longstanding dispute about whether to focus with Peter Singer (1995) upon animal interests or with Tom Regan (2003) upon explicit claims about rights. The suggestion of at least some of the authors mentioned above (conspicuously Robert Garner and Alasdair Cochrane) is that, in retrospect, there is much less to this dispute than has sometimes been imagined. It emerged, in a sense, out of an agreed-upon but problematic conception of rights, one in which the possession of special features, such as autonomous rational agency or being the subject-of-a-life, was required to underpin rights claims. The alternative conception, in which rights require only an interest which is strong enough to support the attribution of duties on the part of others, has always been less cognitively demanding, and hence more inclusive. As such, it looks like it should always have been the best option for any comparably inclusive theory of animal rights (Feinberg, 1971/1980). The implication is that the Singer/Regan debate emerged largely out of a mistaken allegiance to the losing side in the rights wars.
On the other hand, and perhaps more conspicuously, the turn texts have been a response to the influential contrast which Gary Francione (1996; also 2000 and 2008) has drawn between "abolitionism" (a true defense of animal rights) and "new welfarism" (which ineffectively champions welfare-based animal interests while often masquerading as a rights discourse). Commitment to abolitionism entails opposition to reforms (and to campaigning for reforms) which modify rather than end exploitative practices. It is closely allied to extinctionism, the view that where animal dependency upon humans is entrenched (as it is with most domesticated animals) the creatures concerned should be prevented from breeding in order to prevent a similar abusive dependency in the future. Such animals (including companion animals) should be bred out of existence in order to avoid further rights violations by people like us. Abolitionism of this sort, while influential in the United States, has been more cautiously received elsewhere, and has been reframed by critics as a form of "fundamentalism" or "puritanism." Robert Garner (Francine & Garner, 2010) uses "fundamentalism," whereas I have used "puritanism" in the past (Milligan, 2010), although both terms risk missing the extent to which abolitionism has itself tended to fracture into multiple and rival positions (Milligan, 2015).
The texts of the political turn share with a Francione-style abolitionism (hereafter, simply "abolitionism") the view that we need a replacement approach toward animal rights that will take the place of the first-wave Singer and Regan theories. However, they uniformly regard abolitionism as a poor candidate. Indeed, Robert Garner's published debate with Gary Francione conveys a good idea of the differing pragmatic-versus-uncompromising temperaments of those involved (Francine & Garner, 2010). At times, any real communication breaks down as each pursue their separate agendas. Even so, given that abolitionism is itself subject to fractures, there is the possibility that a sufficiently nuanced version might eventually converge with the turn texts over a range of matters. This does raise the tempting prospect that we might set out a "necessary and sufficient conditions" account of the turn, which could automatically exclude any such prospect. Alternatively, we might try to understand the turn by specifying what it involves "for the most part" or "to an extent," and this is an approach that will not automatically generate a clear exclusion of all future abolitionist positions. My general methodological inclinations are sympathetic to the latter option for a familiar reason: necessary and sufficient conditions approaches within ethics, politics, and social theory tend to generate micro-industries around the discovery of exceptions, the specification of odd cases and outliers. We may then find that we want to include or to exclude something but the specified necessary and sufficient conditions prevent us from doing so.
In line with this, I will be concerned with what "largely holds," what is true "up-to-a-point," or true "in many cases." When it comes to the identification of a shift in the focus of the animal rights discourse (albeit a localized shift), it is not obvious that we need to ask for anything more. In line with this, it may readily be conceded that no individual text exemplifies all of the relevant politicizing commitments that are listed below, and that a rival list with only some of the same entries might also capture a good deal. Yet, the list is not arbitrary. It is not a chance configuration. There are, as we shall see, piecemeal reasons why these commitments hang together.
i. A broadening of the appeal to liberal values.
ii. The return to a strong emphasis upon animal interests but in the context of a rights theory rather than a Singer-style consequentialism.
iii. An emphasis upon positive rights rather than negative rights or welfare considerations alone.
iv. A downgrading of the argument from marginal cases so that it is called upon to play only a peripheral role.
v. A broadly pragmatic attitude towards political engagement and compromise.
The final claim comes close to being a consequence of the others. At least, we can understand why someone who was committed to (i)–(iv) might look sympathetically upon (v). The list is not intended to be exhaustive, but rather symptomatic. There are other claims, or at least commitments that I should like to include, and from which a fuller treatment of this issue might benefit, e.g. commitments such as the consideration of animal interests as part of the common good or the inclusion of animals within the scope of a theory of justice. However, the list as given includes enough to make sense of the idea that a distinctive and, up to a point, cohesive series of moves have been made. The list also includes both considerations of value (and how to capture or express claims about value) and a more explicitly strategic orientation. And here, it is my contention that these two have come to be closely related. That is to say, a broadly pragmatic political outlook has shaped a conception of how questions of value are best framed and answered, with a resulting downgrading of the argument from marginal cases and an increased emphasis upon the tension between our treatment of animals and those liberal values which are supposed to govern political life in democratic societies. Moreover, while most of the above commitments do not automatically exclude abolitionism, there is clearly a difficulty with regard to such pragmatism.
However, this consideration alone may be less significant than it seems. The same is, after all, true of Donaldson and Kymlicka's Zoopolis: A Political Theory of Animal Rights (2011), which argues not simply for animal rights but for animal citizenship, and this might arguably make it an instance of utopian discourse as far from pragmatism as any existing abolitionist text. Yet I have taken Zoopolis to be one of the standing exemplars of a political turn text, albeit one that may strike us as significantly different from the other exemplary texts. Therefore, we might be inclined to secure a clearer exclusion of abolitionism by insisting that pragmatism is a non-negotiable political-turn feature. Other matters might be "up to a point" but we could insist that this really is a necessary precondition. Such an exclusion would have to sacrifice Donaldson and Kymlicka (2011) but the sacrifice might seem to be worthwhile.
Here, I will offer three considerations against any such move. First, it would involve a reversion to the model of "necessary and sufficient conditions" discourse and we have (as previously indicated) good reasons of a general theoretical sort to regard the latter as problematic. Second, the way in which Donaldson and Kymlicka (2011) line up with turn texts on other matters seems far from coincidental and makes such an exclusion suspect, too focused upon a single consideration. What motivates the other turn texts also, and very clearly, motivates this text. We may, for example, attend to the insistence upon point (iii) for a rights framework that extends far beyond the negative rights that have been the primary focus of Francione (2008) and, to some extent, Regan (2004, see also 2001 and 2003). For understandable reasons, animal rights theorists have always tended to place the greatest emphasis upon the ending of various harmful practices such as slaughter and intrusive experimentation (some, most, or all). But this alone tells us little about the end-game of animal rights. It tells us little about what kinds of defensible human–animal relations might be put in place after, or instead of, animal exploitation. It tells us about entitlements to be left alone rather than positive entitlements to inclusion and support by the political community. Abolitionism solves the problem by fell-swoop by embracing extinctionism. Donaldson and Kymlicka (2011), together with all of the other texts cited, treat this option as morally indefensible as well as politically unrealistic.
And so the thought has been that a more robust and positive conception of rights is needed. The strongest way in which this can be done is to follow Donaldson and Kymlicka and to insist not simply upon the consideration of animal interests, but to insist upon the consideration of such interests as part of the common good. (And these two are not the same.) From this, we can begin to see the ways in which the individual commitments, which are set out above, connect with one another in a manner that makes any comprehensive disentangling impractical. Nor is it obvious that we must regard pragmatism as an exception to this entangling in order to make room for Donaldson and Kymlicka. There is, arguably, a deep level of pragmatism in their work, particularly in its driving motivation of responding to both abolitionism and extinctionism, albeit this is a level of pragmatism that does not prevent their articulation of a broadly utopian position.
Finally, it is not obvious that any effectively motivating and cohesive discourse of animal rights, even one which is broadly pragmatic, could actually afford to dispense entirely with a utopian strand, even if only in the shape of what John Rawls has referred to as the realizable utopia of an "ideal theory" (Rawls, 1971). Indeed, Robert Garner has recently drawn upon the latter in order to provide constraints to ensure that a reasonable pragmatism (in the shape of a "non-ideal theory"), which falls short of the best imaginable outcome, does not make the latter harder to achieve (Garner, 2013). Here, we stray again into a broader domain of political theory without any reassurance that animal politics will function in an exceptional way: utopian imagery may work its way into more pragmatic discourses and cannot perhaps be permanently exiled from the latter, but this is a general problem for political theory and not in any way a special issue for animal rights.