Foxes roaming free

One of the treats of teaching at UC is seeing the occasional fox walking through the mist or - as recently - haring after a plump rabbit. After reading Edward Carr's piece on polymaths which laments that

Isaiah Berlin once divided thinkers into two types. Foxes, he wrote, know many things; whereas hedgehogs know one big thing. The foxes used to roam free across the hills. Today the hedgehogs rule

I was reminded of the 1980 NYRB letter by John Bowman examining Berlin's use of a fragment from Archilochus for his 'The Hedgehog and the Fox' and acceptance of Berlin's metaphor.

As quoted by Berlin, Archilochus is saying: "The fox knows many little things. The hedgehog knows one big thing." Berlin then proceeds to compare Tolstoy, the "fox," to Dostoevsky, the "hedgehog," and before he is through the Archilochus epigram seems to be saying that there are two different ways of approaching or knowing reality—put quite simplistically, the way of the far-ranging generalist and the way of the concentrated specialist.

As I admit, that is oversimplifying Berlin's subtle arguments, but it is not my intention to accuse Berlin of anything. I do not even know who is responsible for the translation of the Archilochus that he uses. My point is that it is this reading of the Archilochus epigram that has held sway since Berlin used it many years ago: when people refer to "the hedgehog and the fox" these days, they are usually referring to this contrasting approach to the world. Furthermore, there is a general disposition to favor the way of the fox—although this may be entirely my own bias. For instance, the reviewers of Berlin refer to his "pluralism" and other aspects of our Western-liberal tradition that Berlin so epitomizes in a way that suggests we all are better for knowing a lot of things.

Again, that may be my own prejudice. At the very least we may allow that Berlin's translation — and his thesis — award equal status to these two animals. Yet when we look closer at the original Archilochus, or rather at some other translations, the issue is not so clear. To begin with, "thing" tends to become "trick," and the "one big thing" that Berlin's hedgehog knows is how to curl itself into a ball to escape its enemies—including, presumably, the fox. There is thus the implied, if not explicit, suggestion that although the fox knows many tricks, it is the hedgehog with one "big trick" that ends up defeating the fox. In this reading, Tolstoy and Dostoevsky would not just be taking different routes to reality: they would be in conflict — and Dostoevsky would outfox Tolstoy!

This version of the Archilochus is given its most committed translation by Guy Davenport (Carmina Archilochi: The Fragments of Archilochus: University of California Press, 1964) when he first translates the original with what he states are the literal seven words: "Fox knows many / Hedgehog one / Solid trick." Davenport then provides an alternate translation that he claims expresses the true thrust of the original: "Fox knows / Eleventythree / Tricks and still / Gets caught: / Hedgehog knows / One but it / Always works." Not all translators go this far, but others do imply that (1) the hedgehog's trick is superior to the fox's many tricks, and (2) the hedgehog's trick may actually defeat the fox.

Nor is that the end of the problem. It has been suggested by at least one (hedgehoggy? foxy?) student of this matter that although the hedgehog may roll itself into a ball to elude the fox, it has been observed in nature that a fox may roll said hedgehog down a slope into water, where the hedgehog will either drown or be forced ashore to be killed by the fox. Your reviewers of Berlin may be hinting at this when they write that "an ironist would remark" that the one big thing that the hedgehogs of this world know is "that there is not, or should not be, any hedgehog's thesis about human affairs to expound." (Note that it is the fox's way, again, that is being favored.)

William Harris' commentary on Archilochus [PDF] includes the epigram

No man is praised by his citizens or greatly honored when dead.
We rather follow the favor of the living while we are alive,
and the dead always get the worst part.

Harris states that

This telling line has been so often quoted and perhaps misquoted, that no comment should be necessary, other than to note a personal preference for the staying qualities of the hedgehog who is still peering out of his burrow while the farmer hangs the body of the fox on the barbed wire fence as a reminder of the fate of being a smart aleck.

Poor foxling sharp-ears.

Vanessa Friedman in the Financial Times meanwhile quotes the characterisation of Goldman Sachs as a "great vampire squid wrapped around the face of humanity". Mixed metaphor (Nosferatu meets Alien?, but I get the picture.

Kafka's Law

After an era where vade mecum's included kitty litter such as God is My CoPilot (the big guy's presumably flattered to share the joystick) and the Business Secrets of Attila The Hun (the latter was presumably a hit at Bear Stearns) it was nice this morning to encounter 'In Search of Heimat: A Note on Franz Kafka's Concept of Law' by Reza Banakar in (2010) 22 Law and Literature  on SSRN.

Banakar asks

Are Franz Kafka's descriptions of law and legality a figment of his imagination or do they go beyond his obsessive probing of his neurosis, reflecting issues which also engaged the social and legal theorists of the time? Does Kafka’s conception of law offer anything new in respect to law, justice and bureaucracy, which was not explored by his contemporaries or by later legal scholars?

He uses Kafka's newly-fashionable "office writings" - Franz Kafka: The Office Writings (Princeton University Press, 2009) edited by Stanley Corngold

as a starting point for re-examining the images of law, bureaucracy, hierarchy and authority in his fiction; images which are traditionally treated as metaphors for things other than law. It will argue that the legal images in Kafka’s fiction are worthy of examination, not only because of their bewildering, enigmatic, bizarre, profane and alienating effects, or because of the deeper theological or existential meaning they suggest, but also as a particular concept of law and legality which operates paradoxically as an integral part of the human condition under modernity. To explore this point Kafka's conception of law is placed in the context of his overall writing as a search for Heimat which takes us beyond the instrumental understanding of law advocated by various schools of legal positivism and allows us to grasp law as a form of experience.

Banaker examines

Kafka's "rhetoric" while paying special attention to his day job as an insurance lawyer and a bureaucrat and to his legal and clerical writings, which show he borrowed material from the cases he was involved in to develop some of the characters, settings and images in his fiction. Joseph K. and his inexplicable experience of the law in The Trial were, for example, born out of an actual legal case, while Gregor Samsa and his bizarre transformation into an insect in Metamorphosis were inspired by Kafka's daily work experience. Would Kafka have thought the way he did, constantly striving "to interpret discourse that looks like one thing but might well be another" – often its opposite – had he not been leading a dual life, practicing law during the day and producing fiction during the night? His day job as an insurance lawyer and his nighttime preoccupation as a fiction writer both involved creative writing, one belonging to the world of modern work, the other to art. In Kafka's fiction these two separate worlds merge to uncover the inner contradictions of modernity. ...

The legal aspects of Kafka’s work do not, admittedly, explain his "linguistic imagination", but throw new light on the link between law and his images of legality. They also challenge some of the previous readings of Kafka's work that emphasize the theological, psychoanalytical, ontological, historical, metaphysical and existential interpretations of his fiction at the expense of exploring the role of law in his narratives. It might indeed be true, as noted by Albert Camus, that Kafka's novel The Trial is "the diagnosis", while "The Castle imagines a treatment". This should not, however, distract us from also considering the significance of Kafka's choice of criminal proceedings when making "the diagnosis", and private law when searching for a "treatment". Is Kafka's choice of law arbitrary or does it resonate a concern with the rise of modernity which engaged legal and social theorists of the time? More importantly, does Kafka offer an insight into the complexity of the relationship between modern law, justice and bureaucratic forms of organization, not explored by his contemporaries or by later legal scholars?

I wonder about assumptions regarding modernity, law and bureaucracy (irrational, indifferent or otherwise), given the omnipresence of law and procedure in steam age writers such as Stifter, Balzac, Fontane and Dickens.

Meanwhile, after coffee with Bill, I'm doing a fast re-read of The Big End of Town: Big Business and Corporate Leadership in Twentieth Century Australia (Cambridge University Press, 2004) by Grant Fleming, David Merrett & Simon Ville before looking at How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns (Princeton University Press, 2009) by Audrey Cronin.

Whereof one cannot speak

Derridian, that most generous of scholars despite difficult conditions, has kindly pointed me to debate in the Chronicle of Higher Education about Carlin Romano's attack on the gnome of Todtnauberg in a review of Emmanuel Faye's Heidegger: The Introduction of Nazism Into Philosophy (Yale University Press, 2009). Ooh, what fun - Heidegger true believers and phobes going for it!

Romano starts off modestly by asking

How many scholarly stakes in the heart will we need before Martin Heidegger (1889-1976), still regarded by some as Germany's greatest 20th-century philosopher, reaches his final resting place as a prolific, provincial Nazi hack? Overrated in his prime, bizarrely venerated by acolytes even now, the pretentious old Black Forest babbler makes one wonder whether there's a university-press equivalent of wolfsbane, guaranteed to keep philosophical frauds at a distance.

I moved on to 'A Paradigm Shift in Heidegger Research', a review [PDF] by Thomas Sheehan in (2001) XXXII(2) Continental Philosophy Review 1-20 of the dark prince's Beiträge, complete with gems such as the

definition of Denken: "Thinking no longer appears as a faculty of the mind but as the mystery through which the sway of being sways as the counter-sway of a finite projection and a finite but always already on-going and self-sustaining forth-throw"

Sheehan commented that

The Beiträge hits us at a time of crisis when, in the eyes of many, the Heidegger establishment has painted itself into a corner. It's not just that outsiders don't understand what we're talking about; there is a growing suspicion that we don't either. Heideggerians seem to have abandoned philosophy to become glossolalics. ...

Medard Boss, the Swiss psychiatrist, reports that well into the 1930s Heidegger was plagued by a recurring nightmare in which he is back at his Maturitätsprüfung, the final exam before leaving high school. He freezes up and cannot find the right answer to the examiners' question. It's a terrifying experience ...

I imagine a similar nightmare in which all of us in the Heidegger Conference are compelled, like elementary school children, to take a standardized test in Heidegger. The bell rings out over the schoolyard - say, at my own Mission Dolores Grammar School in San Francisco. Reluctantly we leave our games and, under the watchful eyes of the Sisters of Notre Dame, trudge into our seventh-grade classroom. We slouch into our seats and whisper a desperate prayer to der letzte Gott as the stern-faced Sister Constantia hands each of us a number-two pencil and a bluebook. There is only one question: 'In plain English, define each of the following terms and relate them to one another: Ereignis, Geschick, Lichtung, Austrag, Entzug, Seyn, Sein, Sein, and Wesung'.

What would Sister Constantia think of an undergrad who assumes that John Rawls was channelling Ayn Rand (admittedly an interesting variation on announcement in one 2008 tutorial that Rawls was a Communist, presumably of the godless atheistical babies-for-breakfast and boots-on-the-table variety)?

Time to reread Sheehan's 'A Normal Nazi' [PDF] in (1993) XL(1) New York Review of Books  30-35.

Responses to DNC and Speam

Direct marketing industry advocates and some pessimists argued several years ago that establishment of an Australian Do Not Call (DNC) regime was unviable because there would be no community support ... variously because consumers wouldn't bother to list their numbers on the national DNC register or that most people welcomed unsolicited contact from telemarketers.

That claim was belied by the growth of the register (over one million people signed up within a short time) and community endorsement of DNC litigation. It is also belied by comments in a 77 page report commissioned by ACMA, the national telecommunications regulator.

Community attitudes to unsolicited communications [PDF] "explores community attitudes to unsolicited telemarketing calls and electronic communications, and the awareness and effectiveness of the regimes that regulate these communications".

The report notes that around one in three Australian adults (32%) have registered a number on the DNC Register. Although all of those people have their home number on the Register, only six per cent of all adults have registered their mobile phone numbers. Arguably that is because most people are not yet aware that mobile numbers can be listed and have not become sensitised to inappropriate telemarketing (including speam) involving mobile numbers. "Awareness and knowledge of aspects of the Do Not Call Register Act and the registration process itself are generally low."

The report comments that the Register "appears to have been very effective, particularly for those who have their home phone number registered".

It also suggests that awareness and understanding of spam is "generally high, as is use of spam filters", although email users are typically receiving 23 spam emails per week despite such filtering. SMS or MMS spam is less prevalent, with personal mobile phone users receiving an average of two spam messages per month. Awareness of Australia's anti-spam regime is low, according to ACMA.

The report indicates that

People are generally unsure who they would complain to about unsolicited telemarketing calls. Complaining about unsolicited spam messages, however, is a little clearer, with many opting to contact the telephone or internet service provider. Supporting this, nearly one in four have considered making a complaint, but have not gone through with it (mainly because they didn't know how to).

Justice Logan of the Federal Court this week imposed an aggregate $15.75 million in fines under the anti-spam regime on operators of the 'Mobilegate' speam scam noted here in August.

Mobilegate Ltd, Winning Bid Pty Ltd and three individuals were penalised for a scheme involving premium-priced SMS 'adult chat services' that leveraged numbers garnered through fake personal profiles on dating web sites. In August ACMA gained injunctions and declarations against the two companies and Simon Owen, Tarek Salcedo and Glenn Maughan for breaches of the Spam Act 2003 (Cth) and the Trade Practices Act 1974 (Cth).

Mobilegate and Winning Bid were fined $5m and $3.5m respectively, with fines of $3m imposed on Owen, $3m on Salcedo and $1.25m on Maughan. ACMA has announced that it will continue to pursue a further three respondents.

Red in tooth & claw

And speaking of the canon, a friend has pointed out that F.M. Cornford's Microcosmographia Academica: Being a Guide for the Young Academic Politician is online. Fortunately I am neither young nor an academic politician, so I can enjoy it.

It is a perspective on 'The Economy of Legal Practice as a Symbolic Market: Legal Value as the Product of Social Capital, Universal Knowledge, and State Authority', a feisty article by Yves Dezalay & Bryant Garth in 10(3) Economic Sociology (2009) 8-13 [PDF]. the article offers a point of entry to their Palace Wars book.

Dezalay & Garth comment that

Today the U.S. legal field is in a hegemonic position enabling U.S. lawyers to export prescriptions for the rule of law and to impose U.S. approaches as the best source for a renewal of the social authority of peripheral legal fields initially patterned on Europe. The basis for that hegemonic position is the complex structure of oppositions and complementarities in the United States among the various poles of legal power – scholarly, economic and political – which constitute a kind of built-in anti-cyclical device. Internal tensions and permanent competitive struggles in the U.S. legal field produce new legal opportunities and therefore renewal – as much in academic space as in the political world.

In discussing views of institutional roles they argue [citations deleted] that

relentless pursuit of growth and profit called into question the professional ideal, which had long served to bolster the social credibility of the profession, of a collegial community of equals committed to serve the public interest. This context of a return to basic professional principles helped bring new approaches to the legal profession seeking to reintroduce the political dimension – whether by emphasizing the multiple forms of engagement by cause lawyers or by insisting on the primacy of the political as the basis of the professional project. The emphasis on the political was a reaction to an economic approach considered too reductionist. Even if aspiring to a political theory of law, however, the authors of the new emphasis hold to a very restrictive view of the relationship between legal professionals and the field of political power. Political liberalism, they maintain, characterizes the essence of the history and structures of the bar. They recognize that this political project faces obstacles which slow down or prevent its realization. But they maintain that this project remains inscribed in the very nature of the legal professional model – built around the defense of the freedom of civil society vis-à-vis the encroachments of state authoritarianism. This approach echoes professional ideology, but it remains too narrow, even reductionist.

History shows that legal professionals more often than not put themselves and their expertise in the service of strong rulers (condotierri, caudillos, or political bosses, for example), or military regimes, authoritarian states, colonial powers, and the like. As Kantorowicz (1997) suggests, furthermore, one can suggest that the interventions of lawyers aiming to moderate the authoritarianism of power holders represent primarily a collective strategy of legitimation – for the power holders, and also for themselves – which leads to the role of double agent characteristic of lawyers as "guardians of collective hypocrisy".

Wild Things

Given that Maurice Sendak's in my canon (up there with Syme, Namier, Kirby and Rawls) I was interested to see a letter from Ursula Nordstrom, his editor, about Where The Wild Things Are.

... You asked me how "revolutionary" Where the Wild Things Are is. There have been a good many fine picture books in the past. (Some by Margaret Wise Brown, and illustrated by one of two or three or four talented artists.) But I think Wild Things is the first complete work of art in the picture book field, conceived, written, illustrated, executed in entirety by one person of authentic genius. Most books are written from the outside in. But Wild Things comes from the inside out, if you know what I mean. And I think Maurice's book is the first picture book to recognize the fact that children have powerful emotions, anger and love and hate and only after all that passion, the wanting to be "where someone loved him best of all." I'm writing this in a terrible hurry, so forgive me, please. A lot of good picture books have had fine stories and lovely pictures (Peter Rabbit, the best of Dr. Seuss, Wanda Gag's Millions of Cats), and some have touched beautifully on basic things in a child's life, physical growth, going to bed, coming to terms with a new sister or brother (this is making them sound sappy but they are far from that — I'm thinking of Ruth Krauss' The Growing Story, Margaret Wise Brown's Goodnight Moon, Charlotte Zolotow's Quarreling Book, the Hobans' Baby Sister for Frances). But it just seems to me that Sendak's Where the Wild Things Are goes deeper than previous picture books. And of course his use of three consecutive double-spreads to show what happened when Max cried, "Let the wild rumpus start!" has never been done in any book.

That extract comes from Dear Genius: the collected letters of Ursula Nordstrom (HarperCollins, 2000) edited by Leonard Marcus.

While talking about wild things I note that SSRN offers an extract from Twining's forthcoming General Jurisprudence: Understanding Law from a Global Perspective (Cambridge University Press):

This book explores how globalisation influences the understanding of law. Adopting a broad concept of law and a global perspective, it critically reviews mainstream Western traditions of academic law and legal theory. Its central thesis is that most processes of so-called 'globalisation' take place at sub-global levels and that a healthy cosmopolitan discipline of law should encompass all levels of social relations and the legal ordering of these relations. It illustrates how the mainstream Western canon of jurisprudence needs to be critically reviewed and extended to take account of other legal traditions and cultures. Written by the one of the foremost scholars in the field, this important work presents an exciting alternative vision of jurisprudence. It challenges the traditional canon of legal theorists and guides the reader through a field undergoing seismic changes in the era of globalisation.

As many passports as your bag will fit (and a break or two)?

Sailing under two flags? (And if two, why not three, four or more?) A forthcoming article by Peter Spiro on 'Dual Citizenship as Human Right' in International Journal of Constitutional Law (2009) comments that

For most of modern history, dual citizenship was considered an anomaly at best and an abomination at worst. It has since become a commonplace of globalization. The sequence has been from strong disfavor to toleration; some states have moved to embrace the status. Could plural citizenship now achieve the status of a right?

Spiro argues that there is a case for recognising a right to acquire and/or maintain plural citizenship where an individual is otherwise eligible for the status. He bases that argument on "the optics of freedom of association and liberal autonomy values".

Citizenship comprises both a form of association and a vehicle for individual identity. The liberal state has no business obstructing alternate national ties in the absence of a compelling interest. That interest once existed, to the extent that dual nationality destabilized interstate relations, and explains the historical opprobrium attached to the status. Laws directed at reducing the incidence of dual citizenship may also unjustifiably burden the exercise of political rights.

He concludes that

Today, the material downside risks (if any) posed by plural citizens have dissipated to the point that the state is no longer justified in suppressing the status. To the extent that dual citizenship undermines social solidarities necessary to liberal governance, that is too diffuse an interest to overcome individual autonomy values.

Meanwhile I have been reading judgments on supposed 'breaks' in constitutional authority.

In Joosse v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260; (1998) 73 ALJR 232 various applicants - heard together - argued that the Magistrates Court Act 1996 (Vic), Statute of Westminster Adoption Act 1942 (Cth), Australia Act 1986 (Cth), Judiciary Act 1903 (Cth), County Court Act 1958 (Vic), Legal Profession Practice Act 1958 (Vic), Police Regulation Act 1958 (Vic), Magistrates' Court Act 1989 (Vic), Supreme Court Act 1986 (Vic), the Corporations Law (Cth), Federal Court of Australia Act 1976 (Cth), Workplace Relations Act 1996 (Cth), the Commonwealth Electoral Act 1918 (Cth) and The Taxation Administration Act 1953 (Cth) alongside a swag of other statutes were invalid or inoperative. 

 In all five proceedings the applicants contend that there has been an unremedied, perhaps even irremediable, "break in sovereignty" in Australia that leads to the conclusion that some (perhaps much) legislation apparently passed by the Parliament of the Commonwealth, or one or more State Parliaments, is invalid. The written arguments that have been submitted (and supplemented orally) are not always articulated clearly and logically. Nevertheless, the following elements can be identified in the various submissions. xx First, the Constitution is an Act of the United Kingdom Parliament. Yet it has been held in this Court that sovereignty rests with the people of Australia. This is said to lead to the invalidating of certain of the provisions of the Constitution or, perhaps, to those provisions no longer operating. It is also said to lead to the invalidating of some State or Commonwealth legislation. Why this should be so was not spelled out clearly. Secondly, the references in the Constitution to the Queen were intended as references to the Queen in the sovereignty of the United Kingdom[, yet since the Royal Style and Titles Act 1973 (Cth) the Queen has been the Queen of Australia and there has been no alteration to the Constitution. Accordingly, so the argument goes, the Royal Assent has not been validly given to a number of Acts of the Commonwealth Parliament. Thirdly, Australia attained international recognition of its independent and sovereign identity when it signed the Treaty of Versailles or when it became a founding member of the International Labor Organisation. Yet treaties made by Australia, including in particular the arrangements reflected in the Statute of Westminster Adoption Act 1942 (Cth), were not registered as international arrangements as was required by those parts of the Treaty of Versailles establishing the League of Nations. Again this is said to lead in some unspecified way to the invalidating of some legislation. 

These three principal themes were developed to varying degrees and in various ways in each of the applications now under consideration. Some, but not all, also sought to develop two other points: first that the Commonwealth Electoral Act 1942 being affected by the earlier mentioned difficulties, no legislation passed after a particular date was valid for the want of valid election of members of parliament and second that some international treaties concerning human rights have direct operation in Australian domestic law. Whether or not it is strictly open to me to do so, I am content to deal with the applications on the basis that each advances all of the various points that have been urged in support of any of the particular applications to remove. 

Nevertheless, each application should be dismissed. None of the applicants identifies a point having sufficient merit to warrant removal of the cause concerned into this Court. The points that it is sought to agitate are not arguable. 

"Sovereignty" is a concept that legal scholars have spent much time examining. It is a word that is sometimes used to refer to very different legal concepts and for that reason alone, care must be taken to identify how it is being used. H L A Hart said of the idea of sovereignty that:

"It is worth observing that an uncritical use of the idea of sovereignty has spread similar confusion in the theory both of municipal and international law, and demands in both a similar corrective. Under its influence, we are led to believe that there must in every municipal legal system be a sovereign legislator subject to no legal limitations; just as we are led to believe that international law must be of a certain character because states are sovereign and incapable of legal limitation save by themselves. In both cases, belief in the necessary existence of the legally unlimited sovereign prejudges a question which we can only answer when we examine the actual rules. The question for municipal law is: what is the extent of the supreme legislative authority recognised in this system? For international law it is: what is the maximum area of autonomy which the rules allow to states?"

For present purposes, what is critical is: what is the extent of the supreme legislative authority recognised in this system and what are the rules for recognising what are its valid laws? 

When one examines the history of Australia since 1788 it is possible to identify the emergence of what is now a sovereign and independent nation. Opinions will differ about when sovereignty or independence was attained. Some steps along that way are of particular importance - not least the people of the colonies agreeing "to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution". But when it is said that Australia is now a "sovereign and independent nation" the statement is in part a statement about politics and in part about what Stephen J in China Ocean Shipping Co v South Australia called "the realities of the relationship this century between the United Kingdom and Australia". What those realities were in 1900 can be gauged from the fact that the delegates negotiating with the Imperial authorities in 1900 about the terms in which the Imperial Parliament was to enact the Constitution were well content to seek to persuade the Colonial Office that the "Commonwealth appears to the Delegates to be clearly a 'Colony'". As the century moved on, further attention was given to the place of Imperial legislation in the self-governing dominions. The Imperial Parliament enacted the Statute of Westminster in 1931 but it was not until 1942 that the Commonwealth Parliament enacted legislation adopting the Statute of Westminster. And then in 1986 the Australia Acts were passed. All these Acts deal with the place of Imperial legislation in Australia. Each can be seen as reflecting the then current view of the relationship between Australia and the United Kingdom. In large part, then, each deals with an aspect of political sovereignty. 

Similarly, the way in which Australia has engaged in international dealings can be seen to have changed since federation. And it may be that the Treaty of Versailles or some other international instrument can be seen as according Australia a place in international dealings which it may not have had before the instrument was signed. But what is significant for the disposition of the present applications is not whether the Westminster Parliament could now, or at some earlier time might have been expected to, pass legislation having effect in Australia. Neither is it whether Australia is treated by the international community as having a particular status. The immediate question is what law is to be applied in the courts of Australia. The former questions about the likelihood of Imperial legislation and of international status can be seen as reflecting on whether Australia is an independent and sovereign nation. But they do so in two ways: whether some other polity can or would seek to legislate for this country and whether Australia is treated internationally as having the attributes of sovereignty. Those are not questions that intrude upon the immediate issue of the administration of justice according to law in the courts of Australia. In particular, they do not intrude upon the question of what law is to be applied by the courts. 

That question is resolved by covering cl 5 of the Constitution. It provides:

"This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State".

It is, then, to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look. And necessarily, of course, that will include laws made by the States whose Constitutions are continued, the powers of whose parliaments are continued, and the existing laws of which were continued (subject, in each case, of course, to the Constitution) by ss 106, 107 and 108 of the Constitution. It is not relevant to the inquiry required by covering cl 5 to inquire how Australia has been treated by other nations in its dealings with them or to inquire whether the Westminster Parliament could or could not pass legislation that has effect in Australia. Covering cl 5 provides that the Constitution and the laws made by the Parliament of the Commonwealth under the Constitution are binding on the courts, judges, and people of every State and of every part of the Commonwealth. None of the points that the applicants seek to make touches the validity of any of the laws that are in question or would make those laws any the less binding on the courts, judges, and people. 

As I have noted earlier, the second of the three themes identified by the applicants relies on the Royal Style and Titles Act. As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change. The fact is, it did not. So far as Commonwealth legislation is concerned, it is ss 58, 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Federal Parliament. So far as now relevant, s 58 governs. It provides that the Governor-General "shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name". And there is no material that would suggest that has not been done in the case of each Commonwealth Act that now is challenged.

The Court was similarly unpersuaded of a 'break' in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; 74 ALJR 68; 166 ALR 302 

The Court states

By the present application it is sought to attack the constitutional validity of nine Acts: the "Supreme Court Act" (presumably the Supreme Court Act (ACT)), the Income Tax Assessment Act 1936 (Cth), the Income Tax Assessment Act 1997 (Cth), the Taxation Administration Act 1953 (Cth), the Crimes (Taxation Offences) Act 1980 (Cth), the Fringe Benefits Tax Assessment Act 1986 (Cth), the Fringe Benefits Tax (Application to the Commonwealth) Act 1986 (Cth), the Commonwealth Electoral Act 1918 (Cth) and the Australian Capital Territory (Self-Government) Act 1988 (Cth). Various bases of attack are advanced but all, or nearly all, seem to assert what I described in Joosse as an "unremedied, perhaps even irremediable, 'break in sovereignty' in Australia". The breadth of the attack that it is sought to mount can be gauged from what the Further Amended Notice of Motion says are the "Constitutional issues relating to" the nine Acts I have mentioned:

"a. That this Honourable Court rule that the Royal Commission into the Constitution of 1927 reporting in 1929 and the Inter-Imperial relations Committee of the Imperial Conference 1926 were both incorrect when they ruled as follows in relation to the Dominions and their relationship with Great Britain; 'They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations' (Appendix C- Page 348). And this Honourable Court is requested it further rule that the domestic sovereignty outlined by these bodies does not and did not exist. 

b. That this Honourable Court rule that despite historical links the only legal foundation of law within the borders of the territory of the Commonwealth of Australia is the sovereignty of the people of Australia. 

c. That the legislation under which current proceedings before the Supreme Court of the Australian Capital Territory are made derives only from the legal authority of the Imperial Parliament of the United Kingdom through the Commonwealth of Australia Constitution Act 1900 (UK) and is therefore ultra vires within the sovereign nation of Australia. 

d. Under the terms of current United Kingdom legislation being the Immigration Act 1972 (UK) which supersedes and overrides prior British legislation all Australian citizens are declared to neither be British citizens, nor British residents and to have no entitlements under British law. 

e. By this instrument of the Imperial Parliament all United Kingdom Acts covered by the Imperial Acts Application Act (Cth) insofar as they apply Imperial law to Australian citizens are thereby rendered null and void. 

f. Further that the continued application of Imperial law within Australia is in contravention of the decision of the Commonwealth Parliament on 1 October 1919 unanimously ratifying the Treaty of Versailles and explicitly by the motion of the Prime Minister and Attorney General dated 10 September 1919 accepting new independent nation status for Australia. 

g. That the creation of the Instrument of Accession to the Covenant of the League of Nations arising directly from the above mentioned decision by the Commonwealth Parliament to be ratified and be bound by the terms of the treaty and the lodgement, acceptance and registration of the Instrument by the Secretariat of the League of Nations constituted a formal acknowledgment of the sovereign independence of the Commonwealth of Australia. 

h. That the speech by the Prime Minister, being a legally qualified person, in the House of Representatives on 10 September 1919 as recorded in the Hansard, pages 12163 to 12179, is a recognisable legal precedent establishing the independence of the Commonwealth of Australia as from the date on which the binding treaty was signed 28 June 1919. 

i. Further that all courts within the judicial system of Australia are bound by the decision of the superior court of the Nation, being the Parliament of the Commonwealth on the first day of October 1919 recorded at page 12815 of the Parliamentary Hansard, ratifying and accepting as binding the new sovereign status of Australia constitutes a binding legal precedent over all inferior courts including the High Court. 

j. That this 1919 decision of the Parliament was acknowledged and reaffirmed by the Parliament in the Report of the Senate Legal and Constitutional References Committee on the Commonwealth Power to Make and Implement Treaties dated November 1995 which was tabled and approved by the Parliament. 

k. That Section 4 of the Commonwealth of Australia Constitution Act 1900 (UK) establishes a legal entity, the Commonwealth of Australia, as a subordinate colonial possession of the Crown. 

l. That the Constitution of the Commonwealth of Australia being the subordinate Section 9 of the Commonwealth of Australia Constitution Act 1900 (UK) (See Quick and Garran - 'Annotated Constitution of the Australian Commonwealth 1901') setting up the method of government of legal entity established by S4 is dependent upon of the antecedent Sections 1 - 8 of the said Act and requires the continued application of all eight antecedent sections to remain in force. 

m. That the change of status to independent nation as duly and validly made by the vote of the Parliament of the Commonwealth on 1 October 1919 with the consent of the Crown and the United Kingdom Government changed the status of the legal entity established by S4 thereby causing the lapse of all antecedent sections pertinent to the former colonial status and thereby invalidating the operation of S9 insofar as it depends on the antecedent clauses. 

n. That no legal instrument exists or has existed under the doctrine known as the law of State succession to enable the continued unmodified application of British colonial law within the internationally recognised borders of the new sovereign State of Australia. 

o. That the transfer of sovereignty from the Crown of the United Kingdom to the sovereign people of Australia with effect from 28 June 1919 was not codified, limited or modified in any way capable of overcoming the break in legal continuity necessarily arising from the event. 

p. That the sovereignty of the people of Australia is not, has not and cannot be expressed through any extant legal instrument, institution, parliament or judicial body since no plebiscite, referendum, enactment of the former Imperial power, or other instrument exists conveying the informed consent of the Australian people to such expression. 

q. That all Federal elections held since 1919 have been held under the Electoral Act 1918, a law wholly dependent on the sovereign authority of the Imperial Parliament but whose application to Australian citizens was voided by the Immigration Act 1972 (UK). 

r. Further that from 26 January 1949 the electoral role for such elections has included names of voters created as Australian citizens under the National Citizenship Act 1948. Since no power exists within S9 of the Commonwealth of Australia Constitution Act 1900 (UK) to create other than British citizens it therefore follows that parliaments since 26 January 1949 have been elected by unqualified voters and therefore have no status as representatives of the Australian people."

Bikies on Burley-Griffin

The South Australian Attorney-General, as forecast, has migrated disagreement about the state's anti-bikie law to the High Court.

The Hon Michael Atkinson indicated that the SA Solicitor-General "has today filed documents appealing the decision of the Full Court of the Supreme Court in the matter of Totani & Another vs. the State of South Australia". That decision, discussed recently in this blog, saw the Supreme Court eviscerate over-sold and badly-written legislation - the Serious and Organised Crime (Control) Act 2008 (SA) - that "forms part of the Government's attack on organised crime". Organised crime is represented by 'Outlaw Motorcycle Gangs' (aka OMGs or Bikies), the sort of people you might not want to ask home for tea & sympathy from great aunt Hilda but who - like any other citizen - are not beyond the law and shouldn't be pursued in a way that erodes fundamental principles of the Australian justice system.

In Totani & Anor v The State of South Australia [2009] SASC 301 the Court noted that

the process of depriving a person of their right to and freedom of association on pain of imprisonment for up to five years, although formally performed by a State court which exercises Federal jurisdiction, is in fact performed to a large extent by a member of the Executive Government in a manner which gives the appearance of being done by the Court. But the process is devoid of the fundamental protections which the law affords in the making of such an order, namely the right to have significant and possibly disputed factual issues determined by an independent and impartial judicial officer and the right to be informed of and to answer the case put against the person.

Undaunted by the bad news last month, Mr Atkinson commented that

we are willing to test the constitutional boundaries in order to take the fight to the outlaw motorcycle gangs. So we don't feel the least embarrassed or regretful that we took the fight up to the gangs to the very limit.

His media release today announced that

The challenge is important as the Supreme Court judgment could effect [sic] the Parliament's powers powers in legislating on behalf of the people of South Australia.

Quite so: one rationale for a supreme court is to determine the constitutionality of statute law and act as a restraint on 'elected dictatorship'. Mr Atkinson went on to state that

I have been confident" in this legislation from the outset and I'm equally certain that we will prevail in the highest court in the nation.

The effort in making a special application to the High Court and persuading that court of the virtue of the SA statute might have been better invested in fixing the legislation, rather than in grandstanding that "I remain steadfast in my conviction" - everyone loves a steadfast politician - "that this legislation is necessary and appropriate to stop the violence, the drug dealing and the extortion created by organised crime in South Australia".

The SA Premier chimed in on Twitter this afternoon, announcing that

we are lodging our appeal to High Court today re our anti crime gang laws after SA Supreme Court struck out one section of our legislation

The Attorney-General's media release emphasised that the Supreme Court "held that one section" of the Act was "invalid" and "rendered only one subsection ... invalid". That is correct ... but they are key provisions of the statute. It remains to be seen whether the High Court will hold that the SA Supremes got it quite, quite wrong.

Butcher-boy and Ontologies

Can't go to bed without commending an eloquent post by Derridian on Stalin's Willing Executioners. My recollection of Blokhin is his use of a leather butcher's apron and shoulder-length gloves when blowing people's brains out - one doesn't want to muss one's uniform, does one - and his complaint that mass murder at Katyn was giving him a callus on his trigger finger. Work by Blokhin and his peers was intended, among other things, to erase people. 

The superb 'What's in a Name? Some Reflections on the Sociology of Anonymity' by Gary T Marx in (1999) 15(2) The Information Society 99-112 comments 

This article lays out some of the conceptual landscape surrounding anonymity and identifiability in contemporary society. The emphasis is on the cultural level - on normative expectations and justifications, more than on describing actual behavior. It is also on the anonymity of individuals rather than of groups or organizations. (Of course these may be linked, as with infiltrators using pseudonyms working for false-front intelligence agencies.) 

 

I offer some defnitions and conceptual distinctions and identify seven dimensions of identity knowledge. I specify social settings where the opposing values of anonymity or identifiability are required by law, policy, or social expectations. I then suggest 13 questions re ̄ ecting several ethical traditions to guide policy development and assessment in this area. While the tone of the article is tentative in the face of the rapidity of change and the complexity of the issues, I conclude by offering one broad principle involving truth in the nature of naming that I think should apply to computer mediated personal communications. 

 

DEFINITIONS AND CONCEPTS 

 

Let us first define anonymity and relate it to privacy, confidentiality, and secrecy. Anonymity is one polar value of a broad dimension of identifiability versus nonidentifiability. To be fully anonymous means that a person cannot be identified according to any of the seven dimensions of identity knowledge to be discussed later. This in turn is part of a broader variable involving the concealment and revelation of personal information and of information more generally. 

 

Identity knowledge is an aspect of informational privacy. The latter involves the expectation that individuals should be able to control information about themselves. Privacy can be differentiated from confidentiality, which involves a relationship of trust between two or more people in which personal information is known but is not to be revealed to others, or is to be revealed only under restricted conditions. Secrecy refers to a broader category of information protection. It can refer to both withholding the fact that particular information exists (e.g., that a pseudonym is in use) and to its content. 

 

Ironically, anonymity is fundamentally social. Anonymity requires an audience of at least one person. One cannot be anonymous on top of a mountain if there is no form of interaction with others and if no one is aware of the person. Compare the solitude of the Beach Boys’ song In My Room, a lonely, introspective, plaint to unrequited love, to Petula Clark’s desire to experience the freedom of being 'Downtown' where 'no one knows your name'. While similar, only the latter is an example of anonymity. 

 

SEVEN TYPES OF IDENTITY KNOWLEDGE 

 

Identity knowledge has multiple components and there are degrees of identifiability. At least seven broad types of identity knowledge can be specified (Table 1). These are (1) legal name, (2) locatability, (3) pseudonyms that can be linked to legal name and/or locatability - literally a form of pseudo-anonymity, (4) pseudonyms that cannot be linked to other forms of identity knowledge - the equivalent of a real anonymity (except that the name chosen may hint at some aspects of a 'real' identity), (5) pattern knowledge, (6) social categorization, and (7) symbols of eligibility/noneligibility. 

 

1. Identification may involve a person’s legal name. Even though names such as John Smith may be widely shared, the assumption is made that there is only one John Smith born to particular parents at a given time and place. Name usually involves connection to a biological or social lineage and can be a key to a vast amount of other information. It tends to convey a literal meaning (e.g., the child of Joseph and Mary). This aspect of identification is usually the answer to the question 'Who are you?'.  

 

The use of first names only, as was said to traditionally be the case for both providers and clients in houses of ill repute, can offer partial anonymity. The question of whether full, last, first, or no name is expected in social settings may appear to be trivial. But it is in fact the kind of little detail in which big social meanings may reside. 

 

TABLE 

 

Types of identity knowledge 

 

1. Legal name 

 

2. Locatability 

 

3. Pseudonyms linked to name or location 

 

4. Pseudonyms that are not linked to name or location 

 

a. For policy reasons 

 

b. Audience does not realize it’s a pseudonym 

 

5. Pattern knowledge 

 

6. Social categorization 

 

7. Symbols of eligibility/noneligibility issue that only a sociologist could love.

 

2. Identification can refer to a person’s address. This involves location and a reachability,o whether in actual or cyberspace (a telephone number, a mail or e-mail address, an account number). This need not involve knowing the actual identity or even a pseudonym. But it does involve the ability to locate and take various forms of action, such as blocking, granting access, delivering or picking up, charging, penalizing, rewarding, or apprehending. It answers a a where rather than a who question. This can be complicated by more than one person using the same address. 

 

3. Identification may involve alphabetic or numerical symbols such as a social security number or biometric patterns or pseudonyms that can be linked back to a person or an address under restricted conditions. A trusted intermediary and confidentiality are often involved here. These in effect create a buffer and are a compromise solution in which some protection is given to literal identity or location, while meeting needs for some degree of identification. As with name, the symbol is intended to refer to only one individual (but unlike a given name, which can be shared, letters and numbers are sufficient as unique identifiers, whereas when there is more than one John Smith in question, unique identity requires matching to other aspects of identity, such as birth date and parents or address).  Examples include the number given to persons calling tip hot lines for a reward, anonymous bank accounts, on-line services that permit the use of pseudonyms in chat rooms and on bulletin boards, and representations of biometric patterns. 

 

4. Identification may involve symbols, names, or pseudonyms that cannot in the normal course of events be linked back to a person or an address by intermediaries. This may be because of a protective policy against collecting the information. For example, in some states those tested for AIDS are given a number and receive results by calling in their number without ever giving their name or address. Or it may be because a duped audience does not know that the person they are dealing with is using fraudulent identificationÐ for example spies, undercover operatives, and con artists. 

 

5. Identification may be made by reference to distinctive appearance or behavior patterns of persons whose actual identity or locatability is not known (whether because of the impersonal conditions of urban life or secrecy). Being unnamed is not necessarily the same as being unknown. Some information is always evident in face-to-face interaction, because we are all ambulatory autobiographies continuously and unavoidably emitting data for others’ senses and machines. The uncontrollable leakage of some information is a condition of physical and social existence. This has been greatly expanded by new technologies. The patterned conditions of urban life mean that we identify many persons we don’t a knowo (that is, we know neither their names, nor do we know them personally). In everyday encounters (say, riding the subway each day at 8 a.m.) we may come to 'know' other riders in the sense of recognizing them. Skilled graffiti writers may become well known by their 'tags' (signed nicknames) or just their distinctive style, even as their real identity is unknown to most persons (Ferrell, 1996). Persons making anonymous postings to a computer bulletin board may come to be 'known' by others because of the content, tone, or style of their communications. Similarly, detectives may attribute reoccurring crimes to a given individual even though they don’t know the person’s name (e.g., the Unabomber, the Son of Sam, the Red Light Bandit, Jack the Ripper). There are also prosocial examples, such as anonymous donors with a history of giving in predictable ways that makes them 'known' to charities. They are anonymous in the sense that their name and location is not known, but they are different from the anonymous donor who gives only once. 

 

6. Identification may involve social categorization. Many sources of identity are social and do not differentiate the individual from others sharing them (e.g., gender, ethnicity, religion, age, class, education, region, sexual orientation, linguistic patterns, organizational memberships and classifications, health status, employment, leisure activities). Simply being at certain places at particular times can also be a key to presumed identity. 

 

7. Identification may involve certification in which the possession of knowledge (secret passwords, codes) or artifacts (tickets, badges, tattoos, uniforms) or skills (performances such as the ability to swim) labels one as a particular kind of person to be treated in a given way. This is categorical and identifies the possessor as an eligible or ineligible person with no necessary reference to anything more (although the codes and symbols can be highly differentiated with respect to categories of person and levels of eligibility). This is vital to contemporary discussions because it offers a way of balancing control of personal information with legitimate needs such as for reimbursement (e.g., toll roads, phones, photocopy machines, subways) and excluding system abusers. Smart-card technologies with encryption and segmentation make this form of increased importance.

Silent falling of distant stars

Having survived the latest bout of Workshop (like the flu but hurts all over) I'm starting to read The Judicial House of Lords 1876-2009 (Oxford: Oxford Uni Press 2009) edited by Louis Blom-Cooper, Brice Dickson & Gavin Drewry - starting with Michael Kirby's chapter on Australia and New Zealand (pp 339-350) - and listening to a friend sing Hugo Hofmannsthal over the phone ...

Manche freilich müssen drunten sterben
wo die schweren Ruder der Schiffe streifen,
andere wohnen bei dem Steuer droben,
kennen Vogelflug und die Länder der Sterne.

Manche liegen mit immer schweren Gliedern
bei den Wurzeln des verworrenen Lebens,
anderen sind die Stühle gerichtet
bei den Sibyllen, den Königinnen,
und da sitzen sie wie zu Hause,
leichten Hauptes und leichter Hände.

Doch ein Schatten fällt von jenen Leben
in die anderen Leben hinüber,
und die leichten sind an die schweren
wie an Luft und Erde gebunden.

Ganz vergessener Völker Müdigkeiten
kann ich nicht abtun von meinen Lidern,
noch weghalten von der erschrockenen Seele
stummes Niederfallen ferner Sterne.

Viele Geschicke weben neben dem meinen,
durcheinander spielt sie all das Dasein,
und mein Teil ist mehr als dieses Lebens
schlanke Flamme oder schmale Leier.

Granted, some must die below deck,
Where streak the ship's heavy oars.
Others dwell above at the helm,
Knowing flights of birds and realms of stars.

Some lie forever with heavy limbs
At the roots of confused life.
For others are seats prepared
With sibyls and queens
And there they sit as if at home
With light heads and light hands.

Yet a shadow from those other lives
Falls into these lives,
And the light are bound to the heavy
As to the air and earth:
My eyelids cannot shed
Quite forgotten people's weariness,
Nor my terrified soul fend against
The silent falling of distant stars.

Many fates weave beside my own,
Life entangles them all,
And my part is more than this life’s
Slender flame or slim lyre.

Scott Horton's translation puts it thus ...

Many lie always with heavy limbs
At the roots of a life intertwined,
Others have seats prepared for them
With the sibyls, the queens,
And sit there as if at home,
With a giddy head and light hands.

But a shadow falls from those lives
Across and into the others' lives,
And the light are bound to the heavy
As the air is bound to the earth.

The weariness of peoples quite forgotten
I cannot banish from my eyelids,
Neither can I keep away from my terrified soul
The silent descent of distant stars.

Hit and Myth

Having uploaded the slides for tomorrow's intellectual property lecture I should be 'engaging', if that's the word, with Pleading Precedents 6th ed (Pyrmont: Lawbook Co) by Joseph Azize, Peter El Khouri & Edmund Finnane but instead I've been drinking coffee, eating cake (the famous Mycaf mango & macadamia cake), reading The Myth of the Eastern Front: The Nazi-Soviet War in American Popular Culture (Cambridge: Cambridge Uni Press 2008) by Donald Smelser & Edward Davies, and otherwise skiving off.

Smelser & Davies offer a view of US reception of the claim that the Wehrmacht was uninvolved in, indeed unaware of, war crimes in Eastern Europe - reception that extends from eager students at Annapolis through to contemporary Holocaust deniers and wargame aficionados. After that it was good to encounter Barbara Ehrenreich's spirited article 'Are Women Getting Sadder? Or Are We All Just Getting a Lot More Gullible?' and What Are Intellectuals Good For? - A Crooked Timber Seminar on George Scialabba's Book [PDF].

'George Scialabba and the Culture Wars; or, Critique of Judgment' by Michael Berube in the latter work comments that Scialabba "is not altogether fair to Edward Said.

Culture and Imperialism, Scialabba writes, is an inexhaustibly tiresome book. "The writing is clumsy, stilted, verbose, imprecise, and marinated - pickled - in academic jargon"; worse still, "Said's polemical manners, here as elsewhere, are atrocious: sneering, overweening, ad hominem. Too often, he innocently misinterprets or not-so-innocently misrepresents other people's arguments."

Scialabba reportedly questions Said's dissection of an imperial subtext in Jane Austen ('Said & Sensibility', anyone?):

[Said's] interpretive strategy is bold and ingenious. How are we to assess Austen's few references to Antigua, and what are we to make of them interpretively? ... "My contention is that by that very odd combination of casualness and stress, Austen reveals herself to be assuming ... the importance of an empire to the situation at home." This is the hermeneutics of suspicion a la folie. In fact, not much more can usefully be said about the relation of Mansfield Park to the British Empire than that the former was written in the latter. "Extraordinary formal and ideological dependence," my eye. It is just this sort of grandiloquent assertion that excited so many people about Orientalism and that makes Said's celebrity so depressing.