Zombies and Lexomancy

The Weapons Prohibition Act 1998 (NSW) provides under '7 Offence of unauthorised possession or use of prohibited weapon': 

 (1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit. Maximum penalty—imprisonment for 14 years.

A 'prohibited weapon means anything described in Schedule 1' . 

Schedule 1(8) refers to

A zombie knife or other device that has a multi-edged blade, including a serrated section of blade, and— (a) is advertised or otherwise made available for sale using images or words that suggest the knife or device is intended to be used for violence, whether actual or threatened, against a person or fictional creature (such as a zombie), or (b) has, on the blade or handle, images, words or markings that suggest the knife or device is intended to be used for violence, whether actual or threatened, against a person or fictional creature (such as a zombie), or has been used to inflict violence. 

There is reference the weapon in R v Ford [2023] NSWDC 86, NSW Land and Housing Corporation v Traynor [2021] NSWCATAP 383, James v NSW Land and Housing Corporation [2020] NSWCATAP 64, R v Richards [2021] NSWDC 603 and other reports. 

In R v Bagnall [2021] NSWDC 738 the Court states 

In the offender’s right rear jeans pocket, police located a spring-loaded wooden handled flick knife. A flick knife is a prohibited weapon under Schedule 1 of the Weapons Prohibition Act 1988. (I note that in terms of the items covered under Sch 1 that a flick knife, in my view, falls towards the lower end of seriousness. Schedule 1 contains such items as a push dagger, a trench knife, which is a knife which has knuckledusters over the handle, what is referred to as a zombie knife, but also bombs, grenades, rockets, missiles, and mines, slingshots, blowguns or blow darts, flamethrowers, and Taser guns, as well as items with concealable blades, such as walking sticks, or a Bowen knife belt. In my view, a flick knife is towards the lower end of seriousness in terms of the prohibited weapons listed in Sch 1).

'Lexomancy: law and magic in the pseudolegal writings of the sovereign citizen movement' is a doctoral dissertation by David Griffin (Cardiff, 2022): 

 The Sovereign Citizen movement is a loosely organized collection of anti-government conspiracy theorists found around the world. According to their pseudolegal theories, Sovereign Citizens believe that through the filing of certain forms and the raising of certain arguments in court, they can force the legal system and its representatives to do (or not do) anything they desire, including give them access to secret government funds or dismiss criminal charges against them. Though there are clear similarities between the documents that Sovereign Citizens submit to courts and those submitted by actual attorneys, Sovereign Citizen documents often contain features that are completely out of place in standard legal discourse, including the use of thumbprints as seals and atypical formatting when writing personal names (e.g. “first-middle;last”). With its focus on American Sovereign Citizens and the specific legal documents that they are imitating, this thesis is the first thorough linguistic examination of the relationship between the Sovereign Citizen pseudolegal courtroom filing (“PCF”) and legitimate courtroom filing (“LCF”) genres. The PCF genre, it is proposed, is best understood as a “parasitic” genre preying upon its “host,” the LCF genre. By incorporating aspects of LCFs into their own writings, the authors of PCFs hope to imbue them with the authority of the legitimate legal system. In this way, PCFs can also be understood as instances of imitative magical practice and their more distinctive elements as the magical “heightening” of features which their authors view as particularly emblematic of legitimate legal authority. Because the comparison of the PCF and LCF genres requires a greater understanding of the natute of legal language than currently exists in the literature, this thesis also makes a significant new contribution to the linguistic knowledge of the register of legal English. It is hoped that an increased understanding of the nature of Sovereign Citizen pseudolegal discourse will help representatives of the legal system understand and combat the spread of the Sovereign Citizen movement and related conspiracy theories.

Time Travel

With imminent release of the special 'Zombies issue of Canberra Law Review in mind it is interesting to see 'The Law of Time Travel' by Akiva Miller, who comments

Even as time machines remain as fictional as ever, time-travel stories hold important lessons for legal reasoning. Starting from the ancient paradigms of prophecy, the article explores the key features of the genre. Considering four key time-travel themes — the self-fulfilling prophecy, predictive policing, evil time-travelers, and getting one shot to undo a fateful moment — the article discusses how time-travel movies express subtle (and not-so-subtle) critiques of cornerstone legal concepts such as mens rea, culpability, obedience to law and individual freedom, regulation of information asymmetries, and negligence. Through this analysis, the article aims to introduce time-travel movies into the broader field of law and film studies.

Miller states

Engaging with the law starts with imagining hypothetical situations: what would I have done if I we’re in the defendant’s shoes? What will I do if the other guy doesn’t keep to the contract? What will government officials do if I do this or that? We learn and teach the law through stories—cases—of real disputes and the judgements that followed them, and we calculate our interactions with government bodies and each other by tracing the law’s blueprint to help us anticipate their possible reactions to our actions. It is no surprise, therefore, that fiction and storytelling play such an important role for honing our ideas of laws and morality. 

If all stories are thought experiments, then time travel stories choose especially good laboratory conditions. In the real world, the messy connections between knowledge, action, and outcome are hard to untangle. Time travel stories are like the frictionless universe of the theoretical physicist. Instead of uncertainty, the hero is given perfect foresight of a future course of events. The hero can then play with the variables, choosing a point on the space-time continuum to tinker with the trajectory of causes and effects. The hero’s success or failure brings into focus other determinants of our lives’ stories, such as fate, luck, morality, weakness, and folly. 

Time travel stories1 are especially well suited for examining questions of moral choices and the pursuit of justice. Real-life judgment is invariably distorted by hindsight; the answer to the question “what should I do” is always different from the answer to “what should I have done”. The genre’s pattern is familiar: looking at the devastations of crime and calamity, a fictional hero is driven by a moral impulse to set things right, and is given a chance to do something about it. But even with 20/20 hindsight, it is not easy to do the right thing the second time around. Obstacles abound, and results are not guaranteed. In this way, stories of time-travelling heroes illuminate the factors that stymie and blind us from taking moral action and achieving justice.

Zombies

'When the Apocalypse Comes Will Anything Change?: Gay Marriage, Black Lives Matter, and the Rule of Law' by Andrew Chongseh Kim in (2016) 3(1) Savannah Law Review comments

Most conceptions of life after the apocalypse, be it nuclear,  zombie, ; natural disaster, or otherwise, are dominated by a single image: lawlessness.  After society collapses, the rule of law ceases to function. Whether one person owns a particular house no longer depends on clean title, the statute of frauds,  nor whether the person’s adverse possession was “open and notorious.”  It depends mostly on whether that person has enough guns to keep everyone else (or everything else) out. To be more precise, after civilization falls, a person’s individual rights will be limited to those rights one can enforce with force, and those rights others are willing to respect voluntarily. Beyond statutory law, common law, or even “natural law,” this is a law of nature.  Although the laws of nature will become more obvious after the apocalypse, they are as true today as they will be when civilization falls.

Under the laws of nature, rights and laws matter only to the extent they are enforced. People scavenging for food in empty supermarkets will rarely pause to ask whether the corporation that owns the store has abandoned its property interests in the Twinkies on the shelves.  Rather, they will simply take what they  want, ignoring niceties like shoplifting laws or words like “felony burglary” that currently have great meaning. Similarly, desperate men and women who encounter others with useful goods will often try to take them by force. When one person is willing to kill another for that person’s possessions, the true owner of those goods depends not on who invested personal labor to create the goods, or who captured the goods from the wild, but on who is stronger. 

Even when zombies walk the earth, however, most people will not simply shoot everyone they see. For example, even the most ruthless woman might hesitate to take a gun belonging to another, particularly if that gun is loaded and pointed at her. Others will voluntarily respect the rights of others, believing that it is wrong to take from others even if it would be convenient for themselves. Finally, people will often decide that they will be better off working together, even if the terms of working together are not as fun or fair as they would like. These principles of the laws of nature (force, voluntary respect, and communality) help us understand the character of the rule of law today. First, with respect to the vaunted rule of law, consider a few United States Supreme Court cases: Bush v. Gore, King v. Burwell, Obergefell v. Hodges, Ledbetter v. Goodyear Tire and Rubber Company, and Korematsu v. United States. Almost all readers familiar with these cases can point to at least one case they believe was not only wrongly decided, but one in which they believe the majority opinion flouted the rules of statutory and constitutional interpretation the Justices of the Court have sworn to uphold. Although the decisions in many ways flout the rule of law, they are obeyed as law, even by most of those who disagree with them. Why do almost all of us obey and follow laws we think were enacted or enforced in contravention of the law? One can speak of the legitimacy of the process used in creating the laws, or faith in the democratic process to correct major errors. Ultimately, however, the answer comes down to the fact that, for most of us, the costs of resisting laws we find illegitimate are simply higher than the costs of cooperating with what most accept is the law. For example, the Affordable Care Act (ACA), colloquially known as Obamacare, requires most large employers to offer health insurance to their full - time employees. Although some employers have attempted to reduce their obligations under the ACA by reclassifying employees as part - time, it appears that few, if any, major employers are choosing to ignore the law completely.  Given the uproar of people who claim that the ACA is unconstitutional,  it is unlikely that this massive compliance can be explained because everyone believes that the ACA is legitimate.   Rather, they follow the law because a majority of the Court has ruled that the ACA is constitutional,  and employers are generally quite certain that, right or wrong, the government would impose large penalties upon those refusing to obey the law. Moreover, they know that the relevant government agents and banks would cooperate in collecting those penalties as well. As a result of this national consensus that rulings by a majority of the Court will be followed, a consensus of five people dressed in rather simple robes largely have the power to impose whatever law they choose. As such, the laws of our entire country can be, and sometimes are, determined by a tyranny of five.

At the same time, however, today, just like after the apocalypse, people sometimes refuse to obey the rules most of us choose to follow. Whether the rules people flaunt have any meaning depends on whether, and to what extent, they are enforced. For example, Brown v. Board of Education  declared school segregation unconstitutional.   Nonetheless, many schools remained segregated for years after 1954, because state and local governments, as well as common citizens, resisted, often with violent force.   Indeed, it was not until 1963 that the first African - American students enrolled in previously “white” Alabama schools, and only after federal authorities called in armed soldiers to face down the state patrolmen and angry civilians who aggressively enforced segregation.  Although African Americans had a right to a desegregated education under the Constitution, they did not have that right in any practical sense until those rights were enforced by government might.

In Part II of this Article, I explain the nature of laws and governance after the apocalypse. In Part III, I argue that the laws of nature are fundamental to our society and, indeed, have been recognized in our courts and society today. Lastly, in Part IV, I explore two important timely issues, same - sex marriage and the Black Lives Matter movement, in light of the laws of nature.

Zombies and personhood

'We’re All Infected: Legal Personhood, Bare Life and The Walking Dead' by Mitchell Travis in (2015) 28(4) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 787-800 argues that

greater theoretical attention should be paid to the figure of the zombie in the fields of law, cultural studies and philosophy. Using The Walking Dead as a point of critical departure concepts of legal personhood are interrogated in relation to permanent vegetative states, bare life and the notion of the third person. Ultimately, the paper recommends a rejection of personhood; instead favouring a legal and philosophical engagement with humanity and embodiment. Personhood, it is suggested, creates a barrier in law allowing individuals in certain contexts (and in certain embodied states) to be rendered non-persons and thus outside the scope of legal rights. An approach that rejects personhood in favour of embodiment would allow individuals to enjoy their rights without being subject to such discrimination. It is also suggested that the concept of the human, itself complicated by the figure of the zombie, allows for legal engagement with a greater number of putative rights claimants including admixed embryos, cyborgs and the zombie.

'Zombies, International Relations, and the Production of Danger: Critical Security Studies versus the Living Dead' by Jason J. Morissette in (2014) 36(2) Studies in Popular Culture 1-27 comments

In recent years, zombie fiction has clawed its way out of the grave and into mainstream popular culture. Once only a small niche in the broader horror genre, zombies — and depictions of the “zombie apocalypse” in particular—have emerged as a cultural phenomenon in the past decade, as the living dead have infected film, television, literature, and video games with their unique brand of putrescent terror. The United States Centers for Disease Control and Prevention even launched a section on its website titled “Preparedness 101: Zombie Apocalypse” in 2011, capitalizing on the zombie craze to promote disaster readiness (Khan). Why has zombie fiction struck such a chord with contemporary audiences? In a 2008 interview, filmmaker and architect of the modern zombie genre George A. Romero indicated that, in his mind, the zombie apocalypse represents “a global change of some kind. And the stories are about how people respond or fail to respond to this” (McConnell). In turn, Romero’s cinematic mis- sion statement could just as easily describe the field of international relations and its scholarly emphasis on understanding how state and non-state actors alike respond to any number of global challenges, ranging from nuclear proliferation to climate change to the abuse of human rights. 

In Theories of International Politics and Zombies, Daniel W. Drezner describes the living dead as both “one of the fastest-growing concerns in international relations” and “an important puzzle to scholars of international relations” (1). As Drezner goes on to demonstrate in his work, the fictional threat of zombies can serve as a powerful metaphor through which to explore and deconstruct the discipline’s core assump- tions. To this end, he applies various theoretical perspectives drawn from the field of international relations - most notably the realist, liberal, and social constructivist paradigms - to the imagined landscape of the zombie apocalypse, shedding light on what kinds of global responses each school of thought might predict under these dire circumstances. Woven throughout Drezner’s analysis is the underlying fictional assumption that zombies, as depicted in works of popular culture, constitute an existential threat to the state, creating a security environment in which war with the undead is virtually inevitable. The present article questions this assumption from the perspective of critical security studies (CSS), exploring the securitization of the undead and the production of danger in fictional human-zombie relations. How does the hegemonic discourse surrounding the zombie apocalypse predispose states to respond with violence? Why are these outbreaks so frequently presented as threats to the survival of the state and not as humanitarian crises or global health emergencies? This article argues that the imagined securitization of zombies creates a world in which the discourse of fighting the zombie apocalypse delegitimizes any effort to instead solve the zombie apocalypse. Moreover, the present article contends that strikingly similar discourses routinely shape the “real world” of foreign policy with regards to such controversial issues as terrorism and nuclear proliferation, privileging violent responses over less coercive options.

'On the Conceptual, Psychological, and Moral Status of Zombies, Swamp‐Beings, and Other ‘Behaviourally Indistinguishable’ Creatures' by Julia Tanney in (2004) 69(1) Philosophy and Phenomenological Research 173-186 comments

In this paper 1 argue that it would be unprincipled to withhold mental predicates from our behavioural duplicates however unlike us they are “on the inside.” My arguments are unusual insofar as they rely neither on an implicit commitment to logical behaviourism in any of its various forms nor to a verificationist theory of meaning. Nor do they depend upon prior metaphysical commitments or to philosophical “intuitions”. Rather, in assembling reminders about how the application of our consciousness and propositional attitude concepts are ordinarily defended, I argue on explanatory and moral grounds that they cannot be legitimately withheld from creatures who behave, and who would continue to behave, like us. I urge that we should therefore reject the invitation to revise the application of these concepts in the ways that would be required by recent proposals in the philosophy of mind.

'Between the Living and Undead: How Zombie Cinema Reflects the Social Construction of Risk, the Anxious Self, and Disease Pandemic' by Robert Wonser and David Boyns in (2016) The Sociological Quarterly comments

The zombie film has become an important component of contemporary popular culture. The sociological nature of the themes addressed by these films reflect prominent social concerns, and lend themselves to sociological analysis as texts themselves. This article examines the zombie film genre, its history, predominant themes, and its illustration of sociological dynamics related to identity, collective behavior, disease, contagion, and the privileges that come from social inequality. Particular attention is placed on what the zombie films, themselves, can tell us about society and how they illustrate sociological principles. First, we examine the origins and history of zombie cinema. Next, we move to a discussion of the central narrative devices around which zombie films are organized. In particular, we focus on two narratives in zombie films: those that emphasize zombie possession; and those that focus on the sociological risks of zombie pandemics. The discussion then moves to an analysis of zombies as selves, and how zombie films express cultural anxieties about selfhood, loss of autonomy, and threats of de-individualization. We then explore the roles of power and privilege in the social epidemiology of zombification, paying particular attention to how those who succumb to zombiedom illustrate the sociological dynamics of health disparities in the real world. Finally, the sociology of infectious disease is used to address how zombiedom correlates with real disease outbreaks, what we know about the social aspects of infectious disease transmission, and the sociology of pandemics.

 The authors go on to argue

While in zombie cinema protagonists frequently debate the existential situation of the infected, the aggression of zombies toward the living causes them to be encountered, and usually defined, as ecological adversaries to humans. As such, killing the infected is not only deemed acceptable in zombie films, it is necessary for the survival of humankind. Consequently, in some films (e.g., Dawn of the Dead and Zombieland), individual zombies are sniped wantonly for sport. In other films (e.g., Day of the Dead and 28 Days Later) they are warehoused for crass experimentation. With the issue of zombie selfhood as a pivot-point, however, many protagonists are confronted with moral questions over the human nature of the zombie. Is killing a zombie equivalent to killing a human? How can one kill what is already dead? What are the implications of killing a human that does not have a self?

The moral struggle over the personhood of the zombie is an important narrative device in much of zombie cinema, and is a salient subtext of many such films. Because a zombie is human in appearance, but exists without self, there are ambiguities as to whether or not they should be considered full-fledged members of the human community. If zombies are infected, but still living people, then the harm inflicted on them by the uninfected is problematic. If, however, zombies are in fact dead, devoid of personhood, and aggressive, then humans are under no real social or moral imperative to help, protect, or refrain from killing them. This predicament is a central theme underscoring the drama of zombie cinema: Are zombies people with suspended selves deserving to be saved; or are they undead ghouls to be feared and ultimately exterminated for the survival of the human species?

As a narrative focus, the moral quandary about zombies and their selfhood is directly explored in many zombie films. As a consequence, individuals like Hershel Green are often portrayed as unwilling to kill their infected friends and family members. This is also illustrated in films like Dawn of the Dead and Shaun of the Dead. What if Hershel Green is right and a residue of the human self remains? As examples of the prevalence of this theme, zombie films like Fido, Shaun of the Dead, and Day of the Dead all examine the potential existence of a vestigial self among zombies. In Day of the Dead, Romero uses the setting of the shopping mall to create an allegory of mindless consumerism and give his protagonists the opportunity to debate the existential situation of the zombie. During one famous scene, zombies lumber aimlessly past abandoned storefronts and pause to stare blankly at forsaken window displays. A group of humans (including Francine and Stephen) who have taken refuge on the rooftop of the mall comment on the paradoxical behavior of the zombies and reflect on their absence of selfhood:

Francine:What are they doing?Why do they come here?

Stephen:Some kind of instinct. Memory of what they used to do.This was an important place in their lives.

That the zombies appear to have some memory left of their living past raises the question as to whether or not some semblance of selfhood remains. Similar examinations of the selfhood of zombies are further explored in Land of the Dead (2005), where some zombies continue to instinctually engage in their old jobs, most notably “Big Daddy” who repeatedly pantomimes the pumping of gasoline.

The clearest philosophical treatment of selfhood and the zombie comes, perhaps, from Day of the Dead (1985). In this film, a scientist named Dr. Logan attempts to socialize zombies through behaviorist systems of punishment and reward. Logan has trained one zombie, whom he has named “Bub,” to engage in simple human behaviors and to use basic language. His efforts are met with some success. In conversation with his assistant Sarah, Logan remarks:

Dr. Logan: You see, Sarah, they're – they are us. They are the extensions of us. They are the same animal, simply functioning less perfectly. They can be fooled, you see? They can be tricked into being good little girls and boys, The same way we were tricked into it on the promise of some reward to come.

For Logan, while zombies may have lost their own sense of self, they may have retained the capacity to learn, if properly taught using stimulus and response conditioning.

In one memorable scene depicting Logan's socialization experiments, he gives Bub a telephone to play with: Dr. Logan:

He remembers. He remembers everything that he used to … [Giving Bub a telephone, Bub puts the phone to his ear.]

Extraordinary isn't it? That's right, Bub! Say hello to your Aunt Alicia! Say, “Hello, Aunt Alicia!” “Hello!” Bub: A-… a-… alloooooleeeeesha!

In another example, Bub engages in some purposeful “communication” with Captain Rhodes as Bub salutes him:

[Bub salutes the group and stands at attention.] Dr. Logan: Apparently he was in the military! Return the salute! See what he does!

Captain Rhodes: You want me to salute that pile of walking pus? Salute my ass!

Dr. Logan: Your ignorance is exceeded only by your charm, Captain. How can we expect them to behave if we act barbarically ourselves?

As Land of the Dead informs us, while lacking a fully formed self, zombies are capable of behavioristic conditioning. To Dr. Logan it seems, this development could signal the need to reevaluate how we understand zombies; not as mindless cannibals but something more akin to wild animals capable of at least some rudimentary training.

In some films, such as the comedy Shaun of the Dead, the moral issue of zombie selfhood is taken to an extreme. While saving Shaun and his girlfriend, Shaun's best friend Ed is overwhelmed by zombies and succumbs to the attack. As the film closes, the viewer finds that Shaun has kept a zombified (and potentially threatening) Ed “alive” in his backyard shed so they can continue to play video games together. While Ed does not appear to have a sense of self, he is regarded by Shaun as a person with a socially meaningful life. Of course, zombies like Ed create ambiguities surrounding the sociological membership of the zombified in the world of humans, but highlight selfhood as an important theme in zombie cinema. Even Ed remains a threat to the uninfected. The primary danger of the zombie is that with their bite they threaten to steal away individual selfhood, and reduce a human to their “bare life,” a de-individualized member of an anonymous mass.

Finding the nature of law?

'The Misguided Search for the Nature of Law'  (Osgoode Legal Studies Research Paper No. 34, 2015) by  Dan Priel comments

Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence is not conceptual, since if these arguments are true, they imply that critiques of conceptual jurisprudence are misguided. I argue that such arguments involve a terminological change more than a challenge or a substantive alternative to conceptual jurisprudence. I then turn to examining conceptual jurisprudence itself. I distinguish between two families of views on concepts, “externalism,” which conceives of concepts as abstract entities, and “internalism,” which conceives of concepts as basic units of thought. Because of this difference, these two views lead to two quite different characterizations of conceptual jurisprudence, each calling for different response. Nevertheless, I argue that both are unsuccessful. I offer a series of arguments against each view: the main argument against the externalist position is that it is viciously circular (as it necessarily assumes the view of law it defends); the main argument against the internalist view is a bad form of sociology. I conclude with brief hints as to what a non-conceptual jurisprudence would look like.

Priel states

The question I want to examine in this article looks deceptively simple: What is the object of jurisprudence? What is it about? For many legal philosophers the answer to this question is obvious: Jurisprudence is about law. Stated in a bit more detail, jurisprudence is, first and foremost, a value-neutral description of the nature of law. What I hope to show is that this seemingly obvious answer hides more than it reveals. Presented slightly differently, my target is what is sometimes called “conceptual jurisprudence,” an inquiry about law that purports to explicate, elucidate, or describe the “concept,” the “essence,” or the “nature” of law. In this essay I am trying to get a clearer sense of what is the thing being explicated, elucidated, or described. I consider various ways of answering this question. My conclusion is that conceptual jurisprudence is a hopeless enterprise. If this is true, this requires some fundamental rethinking of what is still perceived as a fundamental aim of philosophical reflection about law.  

To many defenders of this enterprise, the search for the nature or concept of law calls for clarifying and defending “conceptual analysis,” a traditional philosophical practice aimed at identifying the true nature of things. Much of the work on the aims of jurisprudence thus focused on the viability of conceptual analysis in general. Among those, Brian Leiter has probably been the most persistent critic of conceptual jurisprudence. He did so mainly by relying on general criticisms of conceptual analysis, which he then applied to the domain of jurisprudence. At times he drew on W.V.O. Quine’s work against the analytic/synthetic distinction. Quine’s argument, in a nutshell, was that conceptual analysis seeks to discover analytic truths, i.e. truth in virtue of the meaning of terms alone. If (as Quine argued) there are no analytic truths, then there is no such thing as conceptual analysis, of law as much as of anything else. A second line of argument in Leiter’s criticism of conceptual jurisprudence, again following more general critiques of conceptual analysis, has been to argue that philosophers’ failure to provide an adequate analysis of even one concept strongly suggest (even if they do not prove) that the entire enterprise is misguided.  While I do think defenders of conceptual jurisprudence have done little (even in response to Leiter’s work) to acknowledge, let alone address, the many works challenging conceptual analysis in general philosophical literature, I think Leiter’s strategy is inadequate for two reasons. First, in some of his writings Leiter seems to suggest that there is universal agreement outside legal philosophy that conceptual analysis is dead. He writes, for example, “post-Quine, we know (don’t we?) that the analytic-synthetic distinction does not mark an epistemic difference but a socio-historical one.” No doubt, if conceptual analysis in general is indefensible, the same must be true of any special case of it. But the philosophical terrain is not as clear as Leiter presents it, and Quine’s arguments are not nowadays universally accepted. The second, and to my mine more important, shortcoming of Leiter’s approach, is its inattention to the details of conceptual jurisprudence. Different writers mean different, sometimes inconsistent, things when they refer to “conceptual jurisprudence,” when they say they seek to identify “the concept/essence/nature of law,” or when they say they are answering the question “what is law?” Until these different senses are disentangled, a defender of conceptual jurisprudence may reply that what she means by conceptual jurisprudence is not affected by Quine’s (and by implication, Leiter’s) critique. My approach therefore takes on the particular arguments found in jurisprudential literature and assesses each of them individually.  This makes for a longer, and perhaps more arduous, discussion, but given the comprehensiveness of my case against conceptual jurisprudence, this approach is inescapable.  

To illustrate this last point about the need to take individual arguments on their own, I will begin with a view that at first blush may appear to be entirely congruent with Leiter’s. Cognizant perhaps of the bad reputation of conceptual analysis in contemporary philosophy, several legal philosophers have argued that it is a mistake to think that jurisprudence has much to do with conceptual analysis at all. I have no doubt Leiter intended his critique to capture the work of these scholars, but so long as they claim that jurisprudence has little or nothing to do with conceptual analysis, they can declare criticisms of conceptual analysis, however sound, as having no bearing on jurisprudence. It is therefore important to examine these arguments closely and show why their arguments fail, why what are being presented as arguments dismissing conceptual jurisprudence are actually affirmation of it.  

That is the task of Part I. Following that I turn to discussing the various senses of conceptual jurisprudence. I begin by distinguishing between two families of views, which I call “externalism” and “internalism.” Roughly speaking, externalists think of concepts as entities that in some way exist outside (and regardless) of human minds, internalists treat concepts as building blocks of thought. Matters get even more complicated because there are different variants of each view. Parts II and III are dedicated to distinguishing among these different views, which are often confused in existing literature, and pointing out what I think are their weaknesses. After concluding with that discussion I turn in Part IV to several residual issues that may explain both the attraction of conceptual theories of law and their enduring popularity. Part V concludes by hinting at possible alternatives to the currently dominant conceptual jurisprudence.  

It goes without saying that I hope to convince readers that conceptual jurisprudence is not a viable enterprise, but I recognize that I am unlikely to convince everyone. I hope that even those who remain unconvinced will benefit from recognizing the need for greater clarity on what it is that they are doing when they engage in conceptual jurisprudence.

Asking "Is Jurisprudence Conceptual?" Priel goes on to state

Several writers have recently criticized the suggestion that jurisprudence is conceptual. Jurisprudence is, rather, about explaining “law itself,” not the concept of law. John Gardner, for example, wrote that “[t]he label ‘conceptual’ may give the unhappy impression that the object of study is the concept, rather than the thing of which the concept is the concept, in this case law.” Michael Moore argued that “[g]eneral jurisprudence should eschew…conceptual analysis in favour of studying the phenomenon itself, law.” And Andrei Marmor claimed that analytic jurisprudence “is not an exercise in conceptual analysis.” Instead, he stated, “an explanation of law is an explanation of observable phenomena, even if the phenomena are of a social kind.” Plainly, if these views are correct, my targeting contemporary analytic jurisprudence for its commitment to conceptual analysis is an attack on a straw man.  

Marmor’s suggestion is the most comprehensively argued, so I will start with it. It is a mistake to think that jurisprudence is concerned with conceptual analysis, he says, because the “the main methodological thrust of legal positivism is reductionism, not conceptual analysis.” The reduction in question involves “offer[ing] an explanation of law in terms of something more foundational in nature, that is, in terms of social facts, which, in turn, can be explained by reference to people’s actual conduct, beliefs, and attitudes.”  

As a description of the jurisprudential terrain this claim is revisionist in two senses. First, it flies in the face of much evidence that shows that many legal philosophers see themselves as engaged in conceptual jurisprudence: The most famous book in twentieth century jurisprudence is entitled The Concept of Law. When its author, H.L.A. Hart, reflected of his philosophical outlook he detailed his commitment to what he called “linguistic philosophy” and more specifically his indebtedness, above all others, to J.L. Austin, whose work focused on careful analysis of words and concepts. Marmor’s claim also ignores Joseph Raz’s statement in the opening pages of Practical Reason and Norms that the book was “primarily an essay in conceptual analysis,” and to the numerous defenses (some of them discussed below) of conceptual analysis within jurisprudence. To defend his view Marmor must say that not only have critics of conceptual jurisprudence misunderstood jurisprudential debates, but that all these legal philosophers (many of whose substantive views Marmor actually endorses) did not understand what they were doing. Second, to say that the methodological thrust of legal positivism is reductionism of obligations in terms of individual attitudes implies that both two of the most prominent legal positivists of the last century, Hans Kelsen and Joseph Raz, are nonpositivists. Marmor is of course entitled to redefine the boundaries between positivism and non-positivism in any he wishes, but that suggests that the argument is revisionary rather than accounting for what one finds in jurisprudential literature itself. Moreover, there is a high price for this revision: By presenting the debate between positivists and non-positivists as a debate about legal reduction, Marmor implies that the fighting camps agree on what things count as laws and only disagree on the right way to explain those things, namely on whether one can explain them reductively or not. As is well-known, however, one of the things that positivist and non-positivists disagree about is which things count as laws (for example, the status of unjust laws).  

On closer inspection it appears that Marmor’s claims involve more a redefining of terms than a challenge to conceptual jurisprudence. When he says that jurisprudence is not concerned with conceptual analysis, it is because he gives the latter a rather unusual understanding, saying it is “not distinguishable from the meaning of words in a given setting.” But that is just not how most people writing on concepts and conceptual analysis understand the term. When Raz recently said (repeating views he had expressed decades ago) that jurisprudence is not concerned with word meanings, he did not do so for the sake of distinguishing his work from conceptual analysis, for only a page later he went on to explain what concepts were (not word meanings) and explain the role of conceptual analysis within jurisprudence. Similarly, when Hart said that he was not seeking the meaning of words, he said this not in order to show that he was not doing conceptual analysis, but in order to distinguish what he was doing—conceptual analysis— from lexicography. Once again, Marmor could attribute massive confusion to all those defenders of conceptual jurisprudence, because they did not really do what they thought they were doing. I will suggest, however, they are not confused; or rather, not on this point. When we examine what defenders of conceptual jurisprudence mean by the term, it turns out that they do (or attempt to do) what they say they are doing. The surprising finding is a different one: Marmor’s views on what legal philosophy is about, presented (in the same essay) as an alternative for conceptual analysis, turn out to be a defense of conceptual jurisprudence.  

To make the case for the alternative, supposedly non-conceptual, understanding of jurisprudence, Marmor argues that legal positivism is primarily a theory about reduction. In saying that ,however, he confuses a general methodological commitment with a substantive view about law. Right at the beginning of The Concept of Law Hart stated that “neither law nor any other form of social structure can be understood without an appreciation of certain crucial distinctions between two different kinds of statement,”20 namely internal and external statements. As these words make clear, Hart did not think this was a thesis about law; he took this to be a general claim about all social practices (“social structures” in his words). But Hart’s book was not a book in the philosophy of social science. If it had been, it would not have had any claim to fame, for the distinction between internal and external points of view and the explanation of social practices in terms of individual attitudes was largely assumed in the book rather than argued for, and is in any case far from original to Hart. Whatever value The Concept of Law may have lies in its contribution to the understanding of a particular social practice. The central theses in the book are not claims about the right way to explain social phenomena, they are an explanation of a particular social phenomenon. Claims such as that law is a “union of primary and secondary rules,” or that “[t]here are…two minimum conditions necessary and sufficient for the existence of a legal system,” are not methodological claims about reduction in the explanation of social phenomena (in general), and even if they presuppose certain ideas about the explanation of social phenomena, they themselves are presented as conceptual claims about law.  

Moreover, many of the debates in jurisprudence have little or nothing to do with the question of reduction. For example, the debate between inclusive and exclusive legal positivists (to which Marmor contributed) cannot be about reduction, because much of it is conducted between scholars who share roughly the same views about reduction. Thus, even if one were to accept the claim that the main dividing line between positivism and non-positivism touches on the question of reduction, it leaves much of the jurisprudential terrain untouched. That terrain, I will argue, is conceptual.  

Finally, Marmor presents reductionism as a methodological position that is somehow to be contrasted with conceptual analysis, but it is not immediately obvious that the two are in conflict. Frank Jackson’s defense of “modest” conceptual analysis is offered as a necessary ingredient in the reductive project of defending physicalism. This is particularly important in this context, because as will be discussed in more detail below, in the very same essay Marmor defends a view that is in important respects similar to Jackson’s. Like Jackson, Marmor ends up defending a version of conceptual analysis (albeit of a very different from Jackson’s) as a preliminary step in a reductive account.  

We can set aside, then, the question of reduction as an irrelevant distraction. This does not yet answer the main line of argument of the scholars who say that jurisprudence is not conceptual. Jurisprudence, they say, is about describing or explaining the law itself, and not any “concept” of law. That was what both Gardner and Moore stated. Strictly speaking, however, these claims are clearly false. First, because any description of “law itself” would have to study a myriad of events, the behaviors and attitudes of a large number of individuals, and certain social and institutional structures. This is not at all what legal philosophers are interested in. For if legal philosophers, studying “the thing of which the concept is the concept,” then their methods would have been plainly inadequate for the task at hand. Law, the “thing,” is something that exists in the world, and so investigating it requires an empirical inquiry of things in the world, not the examination of abstract entities.

What philosophers are seeking is an account of all the properties those things in the world have in virtue of which they count as law. That is a wholly different inquiry from the search for “law itself.” Only a page after Gardner’s remark just quoted he says that “[t]he question of what it takes to qualify [as law], Hart’s main question, is a classificatory one.” Marmor too, after dismissing conceptual jurisprudence, argues that substantive analytic jurisprudence (as opposed to its methodological assumptions) is concerned with identifying the “essential features” of law. All this is quite different from explaining actual “social phenomena.” It is, at most, an articulation of what something must be for the sake of explaining that social phenomena.  

Furthermore, when one looks at how proponents of this view aim to do that, what we find is the familiar conceptual inquiry, conducted in the very same way as conceptual analysis, namely by examining our intuitions regarding certain thought experiments. Marmor, for example, specifies the method of discovering the essential features of law in the following way: “A feature of a social practice is essential to it if without it the practice would either not have existed at all or would have been radically different from what it is.” And this, he tells us, is to be discovered by “ask[ing] whether a practice that is similar in all other respects [to law], but lacks [feature] F, is still close enough to what we recognize as law in our society.”  

This is where the challenge to the conceptualist understanding of jurisprudence collapses. To see this, one needs to notice two kinds of philosophical thought experiments. One kind, exemplified by some famous thought experiments in the philosophy of mind—what is like to be a bat, the Chinese room, Mary and her red rose, the zombies, and so on—are designed to act as reductios, showing the possibility or impossibility of certain claims about what things are in the world. They aim to do that by showing that a view must be wrong, because it entails an absurd outcome. Thus, such claims are intended to tell us what things in the world must or cannot be. To examine the question of consciousness, for example, we are asked to imagine whether “philosophical zombies” are possible—whether creatures that are in every respect indistinguishable from humans but have no consciousness can exist.  

Besides the vigorous debates on these questions themselves, there is a lively debate within philosophy on whether (or when) we can trust arguments based on such thought experiments. These, however, are not at all the kind of thought experiments Marmor and other legal philosophers have in mind. Here, the aim is to tell us what something is. The best known examples of thought experiments of this kind are the so-called Gettier cases in epistemology. In these thought experiments we are asked to imagine a scenario and decide whether we should still call it an instance of “knowledge,” or—if it any different—whether it is an instance of knowledge. That is conceptual (or analytic) epistemology, and it is its exactly legal counterpart that Marmor proposes is the primary task of jurisprudence. The thought experiments proposed by Marmor do not aim to ask whether a slightly-changed social practice he imagines (law without a certain feature we find in law in the real world) is impossible. The practices we are asked to imagine in order to examine the essential features of law is clearly conceivable, possible and not absurd. The only question the imagined social practice is supposed to help us answer is whether we should still call it “law,” or—if it is any different—whether it is law. (Presumably if it is law, it is also correct to call it “law”.) This is what most people within legal philosophy call “conceptual jurisprudence,” and this is the target of this essay. Thus, both what Marmor presents as an alternative to conceptual analysis and the method he proposes to answer his question are identical to those of conceptual legal philosophers. But since my debate is not over terminology, if one does not wish to call this inquiry “conceptual analysis,” so be it: Call it “the search for the nature (or essence) of law.” That is what Marmor, Gardner, and Moore think is a fundamental task of jurisprudence, and that (too) is the target of this essay. 

'Metaphor of the Living Dead: Or, the Effect of the Zombie Apocalypse on Public Policy Discourse' by Daniel W. Drezner in (2014) 81(4) Social Research: An International Quarterly 825-849 comments

Whether one looks at films, songs, games, or books, the zombie genre is clearly on the rise. According to conservative estimates, well more than one-third of all zombie films have been released since the September 11, 2001, terrorist attacks (Bishop 2008). By any observable metric, the living dead have become the hottest paranormal pop culture phenomenon of this century. As the pace of zombie movie production has accelerated, the 2013 film version of World War Z has grossed more than half a billion dollars worldwide. Robert Kirkwood’s AMC series The Walking Dead has become a ratings powerhouse. Pundits, corporations, interest groups, and even government agencies have embraced the living dead as a tool for developing and advancing their own ideas and interests. 

Why do zombies continue to ride so high in the cultural sky? And, frankly, is this good for the humans? The spread of the living dead reflects a variety of anxieties in an American body politic buffeted by asymmetric threats and economic uncertainty. Surfing the cultural zeitgeist, a number of actors have adopted the zombie trope to advance their own political message. There are clear advantages in using the living dead as a pop culture hook for promoting political and policy ideas. The superficial homogeneity of the zombie canon, however,  also poses some drawbacks for its use going forward. Simply put, zombies are unique in genre literature in emphasizing the breakdown of modern society in the wake of an external threat. In propagating this narrative, constant references to the zombie canon can reinforce an apocalyptic perception about the future of modern society. As interest groups also appropriate and exploit the zombie narrative to pursue their own political agendas, their millenarian rhetoric helps to lay the groundwork for the societal breakdown that they claim to fear. The best solution to this conundrum lies in an embrace of more heterogeneous zombie narratives.

Robert Smith (ed) Mathematical Modelling of Zombies (University of Ottawa Press, 2014) - in building on the famous 2009 'When zombies attack!: Mathematical modelling of an outbreak of zombie infection' by Munz, Hudea, Imad and Smith - features several chapters of interest to scholars of personhood and emergencies, including

What Can Zombies Teach Us About Mathematics by Robert Smith 

Viral Spread of a Zombie Media Story by Robert Smith 

The Undead: A Plague on Humanity of a Powerful New Tool for Epidemiological Research by  Jane M. Heffernan and Derek J. Wilson 

When Zombies Attack! Alternate Ending by Phil Munz 

When Humans Strike Back! Adaptive Strategies for Zombie Attacks by Bard Ermentrout and Kyle Ermentrout 

Increasing Survivability in a Zombie Epidemic by Ben Tippett 

How Long Can We Survive? by Thomas E. Woolley, Ruth E. Baker, Eamonn A. Gaffney and Philip K. Maini 

Demographics of Zombies in the United States by Daniel Zelterman 

Is It Safe to Go Out Yet? Statistical Inference in a Zombie Outbreak Model by Ben Calderhead, Mark Girolami and Desmond J. Higham 

Is There a Zombicidal Maniac Near You? You'd Better Hope So! by Nick Beeton, Alex Hoare and Brody Walker 

An Evolvable Linear Representation for Simulating Government Policy in Zombie Outbreaks by Daniel Ashlock, Joseph Alexander Brown and Clinton Innes

Zombie Theory

'From the classical polis to the neoliberal camp: mapping the bipolitical regimes of the undead in Dawn Of The Dead, Zomi 2 and 28 Days Later' by Tamas Nagypal in (2014) 13(2) Journal of Cultural & Religious Theory 13 [PDF] is claimed to

map the (bio)political conflicts around the undead body that emerged in early postmodern zombie films and to look at a possible contemporary resolution of these conflicts in the genre’s currently dominant form. The theoretical starting point of the analysis is the Lacanian psychoanalytic concept of the living dead developed by Slavoj Zizek that links the sublime bodies of the undead, situated outside normative social boundaries, to a revolutionary mode of subjectivity. His model allows to read these films as allegories for popular uprisings against the global neoliberal consensus forming in the late 1970s that stroke a heavy blow at underprivileged populations by advocating the dismantling of the welfare state and the deregulation of the market through an increase of privatization and individual responsibility. 

At the time of George Romero’s Dawn of the Dead (1978) and Lucio Fulci’s Zombi 2 (1979) the new status quo is not yet solidified, which is why, I suggest, these films try to locate the problem of the emergent global mass of bodies, deemed superfluous for the entrepreneurial logic of neoliberal production, in the framework of the classical exclusory politics of the city-state threatened by the revolution of the proletariat. It is Fulci’s film which takes an ultra-leftist stance here by supporting, with the risk of appearing ridiculous, the political takeover of the world by its underclass zombies while Romero’s Dawn remains skeptical about the power of the masses, retreating rather to a conservative position of established middle class family values and patriarchy. By contrast, in Danny Boyle’s 28 Days Later (2002), a film that has arguably jumpstarted and renewed the zombie genre for the 21st century after 9/11, the biopolitical apocalypse, i.e. the Western bourgeois citizen’s indistinction from the precarious bodies of displaced Third World masses, is not a threat anymore but an irreversible event of the past which seems to make classical political struggles both on the right and the left pointless. To analyze this shift, I utilize Giorgio Agamben’s concept of the camp as the biopolitical paradigm of modernity to demonstrate how in the permanent state of emergency issued in 28 Days Later because of the zombie-plague, the non-infected human subjects become treated as undead themselves, as bare life in the zone of indistinction they encounter in the refugee camp they seek shelter in. I argue that Boyle even goes a step further in the conclusion of his film presenting a scenario where the successful elimination of the fascist-type prison camp with its sovereign military leader and temporarily fixed boundaries between inside and outside actually leads to the universal extension of the zone of indistinction rather than to its overcoming. With the disappearance of the zombies as exceptions, their status becomes internalized by the film’s surviving characters, indicating the successful transformation of their consciousness about their precarity caused by the absence of the state into self-responsibility aligned with the (re)productive purposes of neoliberal governmentality.

Nagypal goes on to comment

In Dawn of the Dead, the classical political model of the city is applied by the four leading characters when they occupy a shopping mall full of zombies. Their plan is to clear the building, barricade the entrances, and make a space for themselves safely separated from the external threat. Despite their classical aspirations, however, their project is already overdetermined by biopolitical concerns since the aim of their actions, much like the aim of the mall as an institution, is to preserve their biological lives and to survive through enjoying the fruits of consumerism. The real question is, then, how are their lives nonetheless separated from the living dead whom they discover wandering around in the shopping center resembling mindless consumers? The key difference is that in the eyes of the protagonists, the zombies can’t consume/enjoy “properly”. As one of the characters points out, they are drawn to the mall because they used to have good memories about it back when they were human, but now it’s just a reflex, a remainder of social conditioning that they are left with after their consciousness is gone. For this reason, Romero’s zombies, rather than being bereft of symbolic substance resemble what Zizek called “dead while alive” subjects who are fully colonized by the dead symbolic order. In the eyes of the people inside, the zombies are not human precisely because they take the symbolic law (the injunction to consume in this case) all too literally; they are trying too hard, unable to enjoy the heaven surrounding them. They resemble psychotics in the Lacanian sense, people for whom the phallus as the signifier of castration is foreclosed, not effective, making them unable to discern the lack in the big Other that would allow for a critical distance from symbolic norms. By contrast, the four main characters perform their superiority through an ironic denigration of middle class consumption rituals of the post-war era; they pretend to be shoppers, mock the installations of commodities, act as if they were on a date in the mall, etc. 

Such a binary, although it masquerades as the critique of suburban bourgeois culture, betrays both a neoconservative and a neoliberal politics. On the one hand, the living dead stand for the horror of a fully realized democratic promise inherent in the blindly equalizing ideal of consumerism, for the conservative fear that the American welfare state would overturn established social hierarchies. On the other hand, this taking refuge in one’s inner resistance to ideological state apparatuses can be seen here also as the founding gesture of a neoliberal ideology that splits the population in two parts, into rational citizens capable of responsibly taking care of themselves in the absence of the state and social security, and mindless zombies who lack the capacity to do so and who thus stand for a biopolitical excess of precarious bodies useless for the new paradigm of capitalist production. Accordingly, the neoliberal-neoconservative project of the four protagonists entails the neutralization of the threat of a universal zone of indistinction by recreating the binaries of the classical polis through the mockery of the biopolitical situation which nonetheless keeps unconsciously controlling their lives. The human equals ironic consumer versus zombie equals mindless consumer distinction is their attempt to resuscitate the ancient opposition between citizen and slave, but this binary remains fragile, which is apparent in the way it ends up being redoubled along gendered lines within the group of the four survivors as Romero makes Fran, the pregnant woman regress into the stereotypical mindless female consumer who cannot quite elevate herself to the ironic reflexivity of the men in her company.

Christopher Flavin's 'The Walking Dead: The Panoptic Gaze and Ideologic Zombies' in the same issue of JCRT comments that

The image of the zombie horde as a sea of undead ghouls, pressed against the fences and barricades surrounding the final pockets of civilized life, is a mainstay of postmodern zombie films and literature. The specifics of the environment vary, from the posh and almost normalized surroundings of the upper classes in Fiddler’s Green (Land of the Dead), to the stark walls and hurricane fencing of a Georgia prison (The Walking Dead), and even the familiar, cozy environs of the Winchester Pub (Shaun of the Dead). The commonality they share is the fixation of the horde on the living who shelter behind the walls and wire, the handful of humans who attract the living dead and represent the individualization and agency which is effaced by assimilation into the horde. The sound and texture of the horde, which varies with each iteration, is underscored by the unwavering gaze of the undead which remains fixed on those inside the defenses. It is this gaze, the ceaseless observation of the living by the dead and the unblinking assessment and interpolation it suggests, that gives the zombie its power to horrify and fascinate. The watchfulness of the zombies outside the walls is, in turn, mirrored by the self-awareness and introspection of the humans who seek to evade the observation of the dead as they must monitor themselves and those around them in order to maintain some sense of security and individuality. The living must watch themselves as closely as they watch the dead, and as closely as they are watched by the dead. 

This heightened state of awareness, bordering on paranoia, becomes a form of panoticism obsessed with watching in all directions and yet seeing only the reflection of the watchers themselves, which partially explains why many are interested in zombies and their utility as a metaphor in the post-millennial age. The consumptive gaze of the ghoul, multiplied thousands of times through the swarming horde, is a natural vehicle for postmodern concerns about information mining, identity theft, cyber-security, NSA monitoring, and the unending observation of security cameras. The gaze of the horde, like that of the information consuming technologies which surround us, never blinks or wavers; it remains focused on its target until the object of its fixation is either consumed entirely or is incorporated into the horde and made an extension of its ideology. The power of the zombie in this environment comes from its automaton nature, its mechanical expression of its fundamental state, and the potential for complete interpolation and consumption it represents. Yet, the zombie retains a somewhat human appearance; it still looks like the person it once was and evokes sympathy and identification from the living. It is only when the individual zombie is subsumed in the horde, surrenders its last vestiges of individuality and becomes an extension of the post-human mass pressing in on the living from all sides, that the zombie becomes both truly dangerous and truly terrifying. 

Read from a Foucaultian perspective, the isolated enclaves of civilization under constant surveillance by both the undead horde and the living residents mirror the evolution of social discipline and control within a carceral system. This interpretation can be analyzed on two fronts. The first of these is as a rhetoric of control and regimentation which develops among the living who function as their own wardens and must recognize their complicity in their own increasingly regimented positions within society. This recognition and voluntary complicity creates a space in which the visible power structures have been atomized to the individual level and in which a degree of continuous surveillance and reinforcement functions unchecked. While not a truly panoptic scenario in itself, the knowledge of being continually watched and the need to continuously watch each other informs each of the characters and their position within their society. Secondly, and perhaps more interestingly, these structures are frequently overlaid on individual zombies, representing them as individuals rather than parts of the horde, which results in a parallel diaspora among the living and the dead, in which the dead mirror the living and become the focus of the terminal gaze of the observed group. 

While the specific elements and individuals represented differ substantially in their response to the threat posed by the undead masses outside the walls, all of them reflect a conscious or unconscious understanding of the need for regiment and enforced order, the effective isolation of the individual and the group from the outside world, and the ingrained need for vigilance on the part of the individual to insure the maintenance of order in the face of externalized chaos. At first glance, the scenarios presented by many zombie films and novels would appear to be versions of Bentham’s panopticon, environments in which the members of the community exist under the potential for constant scrutiny from without and where the potential for the observation of transgressions places the onus of complicity and regimentation on the individual in order to maintain social order and discipline. While this is, in a limited sense, accurate, it is also an incomplete reading. The stratification of society, the degree of isolation imposed on the individual and the community, and the distinctions between the communities inside the walls and those outside reflect aspects of the disciplinary systems outlined by Foucault. However, the practical application of these systems in film, fiction, and in the obsequious zombie walk creates a space in which identity and cultural positioning are questioned and deliberately disrupted. 

The origin of the disruption represented by the modern zombie is much closer to the circumstances described by Michel Foucault in response to a seventeenth century plague, in which a town deliberately isolates itself and regiments its citizenry in an effort to prevent the spread of contagion. The power dynamics which Foucault examines provides a lens for similar regimentation among the survivors of the zombie apocalypse. The plague comparison itself is particularly apt in light of the explanation provided by the films for the existence of the living dead. In the case of Romero’s films, the explanation is provided by unexplained extraterrestrial radiation, while films such as 28 Days Later are plagued by ghouls who are infected with “rage,” which is transmitted through the blood and saliva just as the virus of World War Z is transmitted. The viral, infective metaphor is particularly apt with the technological, post-human implications of the zombie. The metaphor of infection removes human agency from the equation and further alienates the undead from their living counterparts. These vectors underscore the fact that the undead in such films, while they fall securely within the genre of zombie films, are not, technically speaking, zombii or zombies. 

The key difference between the classic zombie and the modern undead is the ideological and subjective positioning in which they both engage. While the terms “zombie,” “living dead,” and “undead” have effectively become nearly interchangeable in the popular culture, the distinction between the three is important here, as the living dead are “technically speaking, not zombies … Romero’s ghouls are incapable of production (including social reproduction) because they lack ideological normaltivity.” By extension, the same claim can be made of the undead in the majority of such films that draw their inspiration from Romero’s work. The normalitivity referred to can be quantified through the production value the undead represent either economically or ideologically, as they are deployed within the film and which is summarily disrupted by the environment in which it is staged. 

The disruption of the economy and ideology of the “normal” world by the individual, albeit because of circumstances beyond their control, is closely aligned with the loss of individual agency and identity. It is not the transition through death the viewer or the character fears, but rather the erasure of ideological independence and the appearance of autonomy. As Stanley Solomon notes, commenting on Romero’s Night of the Living Dead, the terror in the film does not spring from either the existence of the living dead or their distorted mirroring of the living, but rather their implacable nature, the persistence with which they pursue and remain, and the fact that they will eventually succeed in violating the boundaries which keep them at bay and contaminate the living, regardless of the resistance they meet. The threat of sustained violation, penetration, and consumption which begins with their surveillance of the living and corruption of the social order from a distance both makes the eventual collapse of the barriers more horrific and cathartic. While the living will be transformed and subsumed by the horde, the erasure of the individual can be seen as darkly liberating if for no other reason than it ends the threat of constant observation and the rigid discipline the living are forced to maintain if they hope to remain separated from the undead. 

The relentlessness of the zombie, their transgression of social taboos and rejection of the imposed social order, represent an essentialist reduction of the individual to their most basic drives and appetites. This specter of autocannibalism, the consumption of the representative self by the projected self on multiple levels, and the implacability of their desire form the sources of terror that underscore the discipline imposed on the living. Rather than encouraging antisocial behavior, the knowledge of the presence of the living dead surrounding the living on all sides, and the collective confirmation of their potential for observing and subsuming the living serves to unify group identity and social norms, thereby reinforcing the perceived social order and self- monitoring within the human cities as a refutation of this drive.

'Post-Industrial Property' by Julie E. Cohen comments -

The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property is property is instructive. Copyright and patent scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with property rights in land, but the resources at the center of contemporary intellectual property debates about the appropriate extent of rightholder control could not be more different from land. Intellectual resources are routinely sliced and diced, aggregated and fractionated, used and reused, in ways that land is not and could not be. This might mean that intellectual property is not property, as some have argued, or it might mean that we have outgrown the monolithic, land-centric model — that in the post-industrial era of wealth production, the cosmology of property can no longer place terra firma at the center.

This Article develops an account of property as a set of resource-dependent legal institutions characterized by overlapping sets of family resemblances and then reconsiders the intellectual property question. Property in intellectual goods — post-industrial property — resembles property in land in some respects, property in natural resources in other respects, property in corporations in others, and property in intangible financial instruments in still others, but also systematically diverges from each of those other forms of property. Legal institutions for intellectual property must accommodate four important points of divergence: the different incentives of creators and intermediaries; the variety of ways in which intellectual goods are produced; the central importance of intermediation within intellectual property ecologies; and the widespread use of licensing to delineate rights and obligations.

Concision and Zombies

Fans of legal concision and wit will enjoy the short, tongue-in-cheek paper by William Baude from 2013 on 'Zombie Federalism'.

Baude comments that

The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult.

The word “person” appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies. There is no judicial precedent. ... There are no similar clues that the term excludes the undead. Nor is there any good evidence of what James Madison thought about zombies.

This ambiguity is exacerbated by the fact that there are several different types of zombies. ... What’s the best constitutional solution to this problem? Zombie Federalism.

The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law. That is, states can choose to recognize zombie personhood, making them constitutional persons, or not. This allows states to deal with the difficult moral and ethical line-drawing problems about the boundaries of life and death. ... And to the extent that zombies are ambulatory, it will allow them to vote with their feet by shambling to states that recognize zombie personhood.

Baude notes the inconvenient question of whether zombies would be "free persons" or "other persons".

The latter "would reanimate the 3/5 clause, which had previously been thought to be made irrelevant by the constitutional abolition of slavery".

Constructions and creatures

The SMH (along with papers in NZ, such as the Christchurch Press) is claiming that Gerald Shirtcliff, the former construction manager of the Canterbury Television building in Christchurch - which killed 115 people when it collapsed last year - had stolen the identity of a professional engineer and faked an engineering degree.

It's a less benign fraud, if the claims are proven, than that of Stephen Wilce or the fake Mgqumeni Khumalo, supposedly resurrected after having been kept in a South African cave by zombies for two years. (Who would have thought that zombies were so hospitable?).

In evidence last month to the Royal Commission into Building Failure Caused by the Canterbury Earthquakes Shirtcliff claimed to be a "graduate engineer" who had been a supervisor on construction projects in South Africa.

The SMH states that

An investigation by Fairfax Media shows that in 1970 Mr Shirtcliff stole the identity of an English engineer called William Anthony Fisher, with whom he worked in South Africa in 1968 and 1969. 

Mr Shirtcliff has lived in Australia as William Fisher for more than 25 years. [After leaving] South Africa in late 1969 to settle in Sydney, he took on Mr Fisher's identity, including his birthplace, birthdate and his bachelor of engineering degree from the University of Sheffield. 

Mr Shirtcliff used the real Will Fisher's bachelor's degree to gain entry to a masters program at the University of NSW in 1971 and, in 1972, to become a member of the Australian Institute of Engineers. He was awarded a master of engineering science in highway engineering in April 1974. 

He later worked as an engineer for a Sydney firm, then called MacDonald, Wagner and Priddle (to become Connell Wagner and then Aurecon), before returning to New Zealand in the mid-80s to work under his Shirtcliff name. 

In NZ he purported to be a "registered" engineer and at one time a "chartered" engineer. 

Mr Shirtcliff used his new identity on company documents and to try to avoid extradition to NZ on fraud allegations. He spent a week in a Brisbane jail in 2003 before conceding he was Gerald Shirtcliff. 

Shirtcliff is reported as maintaining that he had an engineering degree from Sheffield University, denied misleading the Royal Commission and indicated that he changed his name by deed poll in Australia 40 years ago after "a family rift".

The SMH states that

He denied any of the wrongdoing suggested by Fairfax and threatened to sue if it published the allegations. 

In 2009 Mr Shirtcliff was employed as a contractor by the global engineering consultancy WorleyParsons in Brisbane. Information that Fairfax gave WorleyParsons prompted the firm to launch an immediate investigation, which led to the ''termination of his [Shirtcliff's] relationship with the company'' last month. The firm was reviewing all his work. Almost immediately after leaving WorleyParsons, Mr Shirtcliff joined Sedgman, another international engineering firm in Brisbane, as an independent contractor. On learning about the allegations, Sedgman began inquiries and stopped his contract. 

Engineers Australia, which oversees the registration of engineers, has begun an investigation, as has the University of NSW. A spokeswoman for the university said that if the allegations proved that a degree had been obtained by using false documents, the degree would be cancelled. 

Meanwhile 'Biosurveillance, human rights, and the zombie plague' by Jeremy Youde in (2012) 24(1) Global Change, Peace and Security comments

The International Health Regulations (2005) gave the World Health Organization a central role in collecting biosurveillance data and explicitly recognized the importance of human rights for the first time. Human rights and biosurveillance have a complicated relationship with one another though. Surveillance systems are necessary in order to arrest the spread of infectious disease outbreaks, but these same surveillance systems can be used in discriminatory ways. Is some sort of resolution or detente possible? This article investigates the role of the World Health Organization in implementing these potentially competing imperatives contained within the International Health Regulations (2005). To understand this relationship, it examines how the World Health Organization would implement the International Health Regulations in case of an international zombie outbreak.

 Youde argues

The International Health Regulations (2005) gave the World Health Organization a central role in collecting biosurveillance data and explicitly recognized the importance of human rights for the first time. Human rights and biosurveillance have a complicated relationship with one another though. Surveillance systems are necessary in order to arrest the spread of infectious disease outbreaks, but these same surveillance systems can be used in discriminatory ways. Is some sort of resolution or detente possible? This article investigates the role of the World Health Organization in implementing these potentially competing imperatives contained within the International Health Regulations (2005). To understand this relationship, it examines how the World Health Organization would implement the International Health Regulations in case of an international zombie outbreak.

When an infectious disease outbreak occurs, the international community has a moral and international legal obligation to track its spread and use the data collected for the benefit of the general population. Under the terms of the International Health Regulations (IHR) (2005), the World Health Organization is legally empowered to collect and disseminate biosurveillance data, and WHO's 194 member states are legally obligated to provide this data as one of their core public health functions and use it in a way that respects and promotes human rights. Human rights and biosurveillance have a complicated relationship with one another. On the one hand, surveillance systems are necessary in order to arrest the spread of infectious disease outbreaks so as to better protect the health of all communities. On the other hand, though, these same surveillance systems can be used in discriminatory ways, impose heavy burdens, and abrogate freedom of movement and speech. Is some sort of resolution or detente possible?

In this article, I investigate how the International Health Regulations (2005) empower the World Health Organization to operationalize biosurveillance in a manner that promotes and respects human rights as a transnational good that can benefit humanity as a whole. While this represents a significant step forward for the international community and better integrates biosurveillance and human rights, there remain some ambiguities and underdeveloped protections that deserve greater attention from the World Health Organization.

The real test of any relationship between biosurveillance and human rights, though, comes when it is pushed to its limits. Perhaps no transnational infectious disease outbreak could challenge the international community more than a zombie outbreak. The recent explosion of interest in zombies in popular culture (and academia) ‘provides a window into the subliminal or unstated fears of citizens, and zombies are no different’.1 How well would the relationship between biosurveillance and human rights hold in the face of an outbreak of the undead?

To make this argument, I begin by examining the meaning of biosurveillance. This leads into a discussion of zombies and how representations of zombies in popular culture mirror infectious disease outbreaks. I then move on to explore how this idea has played out in the International Health Regulations. This treaty, the leading health-related treaty in the international community, has witnessed dramatic evolutions in its conceptualization of biosurveillance and the role of human rights. Finally, I examine how the interplay between respecting human rights and drawing on the resources and skills of non-state actors can encourage compliance with the International Health Regulations and safeguarding individual rights. The International Health Regulations’ approach to human rights is not perfect, but its current form is a significant improvement over the past.

Zombies and No-Names

The delicious 'Death and Taxes and Zombies' by Adam Chodorow in (2012) Iowa Law Review comments that -

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk. 

This article fills a glaring gap in the academic literature by examining how the estate and income tax laws apply to the undead. Beginning with the critical question of whether the undead should be considered dead for estate tax purposes, the article continues on to address income tax issues the undead are likely to face. In addition to zombies, the article also considers how estate and income tax laws should apply to vampires and ghosts. Given the difficulties identified herein of applying existing tax law to the undead, new legislation may be warranted. However, any new legislation is certain to raise its own set of problems. The point here is not to identify the appropriate approach. Rather, it is to goad Congress and the IRS into action before it is too late.

In Kryziak v McDonagh [2012] WASC 270 the Court dealt with a 'sovereign citizen', who in a previous matter claimed not to have a name -

By charge PE 26728 of 2011 Tadeusz-Edmund Krysiak was charged with the offence of driving without authority on 15 May 2011 a Mazda sedan, registered number 1DPC-205 on Eastbourne Crescent, Nollamara, whilst not being a person authorised by pt IV A of the Road Traffic Act 1974 (WA) and whose authority to drive at the time was suspended, contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974. 

Before the hearing in the Magistrates Court the applicant had filed by post a document entitled Notice of Reservation of Rights, which can only be described as an extravagant and disjointed polemic asserting that he reserved his exclusive and ancient rights, including a right to jury trial, asserting that all statutes should be in harmony with the common law, and asserting that he could best be described as an authorised agent of the entity 'TadeuszEdmund Krysiak' with limited liability. He asserted that the court had no jurisdiction and that the charge should be dismissed as invalid and that there was evidence of inherent fraud ab initio. This notice asserted a series of discredited and exploded fallacies about legal and constitutional rights see Glew v The Governor of Western Australia [2009] WASC 14; Glew v White [2012] WASCA 138 and Hedley v Spivey [2012] WASCA 116 and, on any view, was a misguided, illinformed and preposterous collection of meaningless protests. 

His case came on for hearing before his Honour, Mr G N Calder in the Magistrates Court at Perth on 26 July 2011. When the case was called a person, presumably the applicant, came forward but upon being asked to identify himself he refused, preferring instead to make submissions to the effect that he reserved all his rights and again refusing to identify himself, saying, 'I reserve all my rights and I am best described as the authorisation to the accused with limited liability'. His Honour refused to allow this person to speak further unless and until he clearly identified himself and directed him to sit in the back of the court. Again, but with some protest, the person who had come forward did so. Then his Honour, having observed that there was no person in the court who had identified themselves as having the name Krysiak and being the accused, directed that the case should proceed in the absence of the accused under s 55 of the Criminal Procedure Act 2004 (WA), it having been established that notice to the accused had been given under s 75. 

At this point, his Honour announced, obviously speaking to the person at the back of the court, that if he were Tadeusz-Edmund Krysiak and identified himself as that person he could participate in the proceedings but, if not, he would not be allowed to participate and the matter would be dealt with under s 55. At this point, Mr Krysiak identified himself and when asked who he was said, 'I am commonly known as TadeuszEdmund Krysiak' and when asked if that was his name he said, 'I don't have a name, sorry, your Honour' and at that point his Honour decided to proceed under s 55 as previously proposed. ...

Further

In both appeals the applicant asserts that the learned magistrate erred by contravening s 115 of the Constitution by making an order for a monetary penalty in Australian dollars knowing that there was no gold or silver coin available as legal tender in payment of a debt and, further, by issuing a monetary penalty in terms of Australian dollars, being Australian currency, payment of which cannot be made as it would breach the Currency Act 1965 (Cth), as there is no currency in circulation above $2 and no valid promissory notes available to discharge debt (see grounds 6 and 7 of SJA 1083 of 2011 and grounds 11 and 12 in SJA 1085 of 2011). 

These are, possibly, the most egregious of all of the applicant's contentions. Arguments to this effect were roundly rejected in Re Skyrings Application (No 2) (1985) 58 ALR 629; (1985) 59 ALJR 561. In that case, Deane J said that there had been:

... a submission that the combined effect of a number of sections of the Constitution is to erect a barrier against the issue by the Commonwealth of paper money as legal tender. The sections of the Constitution upon which particular reliance is placed are ss 51(xii), (xvi) and (xvi) and 115. Mr Skyring also referred to ss 105 and 105A. Additionally, reference was made to the provisions of the Currency Act 1965 (Cth) dealing with coins. The argument, if accepted, would result in the invalidity of s 36(1) of the Reserve Bank Act 1959 (Cth) which provides that 'Australian notes are a legal tender throughout Australia'. 

Similar arguments were also addressed by the Supreme Court of Queensland in Lohe v Gunter [2003] QSC 150 where Holmes J said:

[8] The respondent argued that there was no means by which he might lawfully pay fines or costs because of the failure of the Crown to provide currency as prescribed by the Currency Act 1965, s 16 of that which provides for coinage as legal tender. There was, he said, no legal sanction for the issue of paper money; and there was a lack of correspondence between the face value of coins and the price at which they may be bought using paper money. (He referred to a particular example of a set of gold coins being bought for an amount far in excess of its face value.) 

[9] As to the first part of the respondent’s argument, Deane J in Re Skyring’s Application (No 2) reached the conclusion that there was no constitutional bar against the issue of paper money as legal tender, a view which has been confirmed subsequently on a number of occasions. [Re Skyring (1994) 68 ALJR 618; Skyring v ANZ Banking Group Ltd (Unreported, Court of Appeal No 176/1993, 12 May 1944); Owen v Deputy Commissioner of Taxation (Unreported, Full Court of the Federal Court, Qd 132, 1995. As to the second aspect, in Cusack v Commissioner of Taxation [2002] FCA 1012; [2002] ATC 4676, Cooper J considered an argument which turned around the difference between money as a unit of value and money as currency by which obligations are discharged. There was, he said, a presumption given statutory effect in provisions of the Currency Act and the Reserve Bank Act 1959 that parties contracted and parliament legislated with reference to the nominal value of money as expressed by legal tender; currency when used as legal tender was valued at its face value without regard to its intrinsic worth. The value of coins departed from their face value only when they were not being used as currency and were regarded simply as a commodity. The weight of authority is thus against the respondent’s first point, and the reasoning of Cooper J is persuasive against the second.

Credulity

A reader has pointed me to a UK item regarding an identity scam.

The Daily Mail reports that

To his victims he was an Italian aristocrat, a tragic cancer sufferer, an IT executive, even a songwriter for a famous rock band.

In reality, Scott Travis was nothing more than a jobless conman living on benefits in a shabby council flat in Rochdale.

The smooth-talking chancer constructed a web of lies and fake identities – including Viscount Franco Dibella III – to swindle his girlfriend and a pensioner out of hundreds of thousands of pounds.

Fraudster: Scott Travis posed as an Italian millionaire to con his elderly victim, as well as his own girlfriend Gail Heyworth.

His charades allowed him to buy a £50,000 Lexus car, have cosmetic surgery and stay for six weeks in a £200-a-night hotel alongside showbusiness stars.

He enjoyed weekends in Monte Carlo, employed a chauffeur, drank £80 bottles of Bollinger champagne and wore suits from designer boutiques.

Among his lies, the 44-year-old even claimed to be awaiting a fortune in royalties after writing songs for the British rock band Whitesnake.

Last night, however, Travis was facing up to life behind bars after a jury took just ten minutes to convict him of stealing the £100,000 life savings of an elderly man he conned by pretending to have cancer.

Oh dear. Travis' claims were repellent and almost as colourful as that of the faux Mgqumeni Khumalo, who supposedly resurrected after being kept in a cave by South African zombies for the past two years. The imposter has been charged with fraud.

Thousands of fans flocked to his home and police used water cannon to control the crowd which gathered outside the singer's remote rural home when news of his 'resurrection' spread.

They were there to catch a glimpse of Khulekani 'Mgqumeni' Khumalo - an award-winning Zulu folk musician who died in 2009.

The imposter mounted a police truck to explain to the crowd that he had been kidnapped by zombies who had kept him trapped in remote cave.

He said: 'I have been suffering a lot at the place where I was kept with zombies.

'It was hell there and I am so grateful that I was able to free myself and return to my family and you, my supporters.

'I promise to continue singing once I gather enough strength.'

'I am Mgqumeni. I know that some of you might not believe, but yes, it's true. It's me.'

The man went on: 'I know there are some people who doubt that I am Mgqumeni. You must know that none can pretend to be someone he is not.'

In classic style the imposter's claims were backed up by the dead singer's grandfather, Hlalalimanzi Khumalo, reported as saying "At first I doubted it was he, but, as the time went on, I could see that indeed it was he and as a family we are excited." You would be excited, wouldn't you, if your dead grandson both resurrected (a feat that isn't common) and managed to fend off a cave-full of the flesh-eating undead. We certainly don't see that every day at the University of Canberra, although I do harbour suspicions about whether some colleagues are truly alive or indeed human.

The S African police are reported as becoming involved when Mgqumeni

was unable to answer simple questions about Khumalo's music career - such as when he won one of the country's top music awards.

Doubts were also raised about the fact that the 'resurrected' singer no longer had his distinctive gold tooth and that the deep scars on his face appeared to have healed.

Perhaps the zombies offered him a spot of Botox and cosmetic dentistry as part of the package.

The UK scammer is reported as having -

sowed the seeds for his latest fraud in 2003 when he befriended his elderly victim after reading a newspaper advert the pensioner had placed seeking companionship.

Posing as ‘Franco’, the orphan son of an Italian aristocrat who was set to inherit millions, Travis begged the man for £20,000 for cancer treatment, plus another £9,000 to pay off a gangster.

The pensioner initially went to police, who warned him he might be the victim of a conman, but he decided not to press charges.

Later, Travis returned and claimed he needed a further £35,000 to release cash from the will of his mother, whom he said had died in a car crash in Naples.

He even paid a friend £500 to pose as a gangster who went to the pensioner’s home saying he was going to hurt ‘Franco’ unless the victim paid £30,000.

The pensioner later told police: ‘He was very angry. He said: “If you don’t get my money I’ll shoot you and him.” I was scared to death.’

The court also heard from a taxi driver paid to act as chauffeur for Travis only to be left with an unpaid bill of £1,265. ‘I fell hook, line and sinker for the lies told by him,’ he said. ‘His stories were so good, anybody would have believed them. I felt used, abused and foolish.’

Travis, who was convicted of four offences of obtaining money orders by deception, one of fraud and two offences of blackmail.

I'm reminded of other scammers, some of whom I've highlighted in papers on identity crime.

Christopher Rocancourt for example famously swindled the US rich and famous by variously pretending to be the son of Sophia Loren, a Rockefeller heir, a movie producer, a global financier or the nephew of Dino De Laurentis. The New York Times, with just a dash of hyperbole, claimed that "Women threw themselves at his feet; men threw cash". He had earlier posed as 'Prince Galitzine Christo' and dabbled in diamond smuggling, passport forgery and armed robbery.

Robert Hendy-Freegard reportedly posed as an MI5 officer, convincing people into spending years in hiding while stealing over £650,000 of their savings. It is alleged that he persuaded students and other victims that they were on an IRA hit list through their association with him, leading them to go undercover for years in 'safe houses' and travel on spy missions that featured waiting for hours at railway stations for non-existent people. In Hendy-Freegard v R [2007] EWCA Crim 1236 the Court noted that -

The facts of this case are, happily, extraordinary. The appellant is a confidence trickster who combines seductive charm with an astonishing capacity to deceive. At the heart of what the judge rightly described as a 'web of deceit and lies' was his pretence that he was an undercover agent working variously for MI5 or Scotland Yard. Once his victims were under his influence he took control of their lives, directing them what to do and where to live. His directions often exposed them to substantial hardship. He treated them with callous cruelty and fleeced them and their parents of sums of money totalling approximately £500,000.

Some aspects of the appellant's conduct laid the ground for the charges of dishonesty of which he was convicted. The Crown searched, however, for an offence that would encapsulate all aspects of the appellant's conduct and, in particular, the deprivation, as a result of his malign influence and deception, of his victims' freedom to pursue their own lives. The Crown decided that the offence of kidnapping would fit this bill. A single count of kidnapping was charged in relation to each of the four victims on the basis that it could be shown that each had been induced by deception to make a journey that he or she would not have made had he or she known the truth and that these facts constituted the ingredients of the offence of kidnapping, as identified by Lord Brandon in R v D [1984] 1 AC 778. The judge accepted the latter proposition and directed the jury accordingly. He subsequently treated the two counts of kidnapping in respect of which the jury returned guilty verdicts as enabling him to impose sentences that reflected the overall seriousness of the appellant's behaviour.

Sydney security guard Richard Kahotea was less creative, using forged documents in support of claims that he was a senior ASIO operative, thereby gaining closed court hearings on four occasions and privileges for an associate. Kahotea was convicted and sentenced to 300 hours of community service for making a false statement under oath and using fabricated evidence.

The SMH reported that -

In May 2004 Kahotea told his partner, Suzanne McElroy, that he had resigned from the ASIO because the government was trying to blame someone in the intelligence community for the Bali bombing. He also told her her phones were being tapped, police said.

Ms McElroy panicked and fled to a friend's house, where she drank several glasses of wine. On her way home, she was stopped by police and charged with drink driving.

She appeared at Waverley Local Court in relation to the drink driving charge in June 2004, and asked the magistrate to take into account that she had been anxious and concerned about Kahotea's situation and that her phone had been intercepted by ASIO, police said.

After asking for the court to be closed, Kahotea gave evidence in support of her story. According to the documents tendered to the Downing Centre court, he said he was involved in intelligence in Australia and New Zealand and was the subject of an ASIO investigation that had resulted in Ms McElroy's phone calls being intercepted.

Why stop there?

Two years later, in May 2006, Kahotea appeared twice before the Waverley Local Court for breaching the order. On both occasions he asked for the court to be closed.

He later appeared in the Balmain Local Court on the same charge, and again asked for the court to be closed. According to the police statement tendered to the Downing Centre court, he told the Balmain court he had been a New Zealand defence and intelligence official, and tendered two documents in proof. The court accepted they were genuine.

There was only one problem. The documents have since been identified by the New Zealand Defence Force and the New Zealand Security Intelligence Service as forgeries, the Downing Centre court heard.

A document identical to that tendered to Waverley Local Court and a letter purporting to be Kahotea's resignation letter from ASIO was found on the hard drive of a laptop at his Glebe home, the court heard.

In a police interview Kahotea, who now works as a furniture removalist after his security licence was revoked, admitted to misleading the Waverley court by providing false evidence and to producing the ASIO resignation letter. However he denied forging the documents.

He received a sentence of 300 hours of community service for making a false statement under oath and using fabricated evidence. The SMH in 2008 stated that Kahotea said

his evidence in relation to Ms McElroy's drink driving charge had been "all bullshit" but that he really had been involved in "top secret" operations. He said people in the New Zealand Defence Force had made sure any inquiries about his history would be met with a brick wall.

Ironically the NZ Defence Force were experiencing problems two years later with the amazing Stephen Wilce.

Italian businessman Rosario Poidimani was arrested in 2007 over involvement in a scam centred on the claim that he was the king of Portugal (the last king having expired in 1932). Poidimani allegedly sold imaginary aristocratic titles and fraudulent diplomatic passports, underpinned by imaginary offshore bank accounts and an elaborate throne room. Poidimani has claimed to be innocent and as last month is apparently appealing a sentence of five years in prison for issuing false passports .