Swatting (or swotting) silks

From Conor Gearty's review in the latest LRB of UK human rights law texts -

Of the three books, Clayton and Tomlinson is the best organised from this point of view. Every known case is in there somewhere and the arrangement of its sections allows busy lawyers swotting up the night before to find what they are looking for reasonably quickly: the ten cases on a certain meaning to be given to ‘inhumane treatment’ under Article 3, for example, or the 15 dealing with the five relevant aspects of the meaning of ‘civil rights’ under Article 6. Lester, Pannick and Herberg is grander in its presentation, but the irrepressibility of human rights law means that it feels rather short if you want instant help. Beatson, Grosz et al is in some ways the best of the three in that it is more reflective, more inclined to look behind the law to think things through. But for this reason it may appeal more to academics (and even brave members of the public) than to litigating lawyers. The barristers’ method is first to identify the issue (this is often the hard bit), then to run off to the books to find the avalanche of cases that will fill out the written submissions on the issue (this is called ‘the common law method’ – it’s been made much easier by the new variant of it, ‘cut and paste’). Then (another hard bit) all of this has to be distilled into a set of principles or precedents which are applied to the facts in a way beneficial to the client – this is often done in court by means of oral submissions. Because British lawyers are simply far too good and because the system is adversarial, all advocates are in perpetual terror of being found out. I know of a case in which a lawyer’s entire written argument was destroyed when the other side pointed out that the law it relied on wasn’t yet in force.

methodological totalitarianism, substantive irrelevance

While reading Duncan Thompson's Pessimism of the Intellect? A History of New Left Review (Monmouth: Merlin Press 2007) and some 'law & culture' or 'culture & technology' journals I have been reminded of the 'Mr Perestroika Letter' debate in the US ten years ago.

In 2000 an anonymous political scientist (or group of pol scientists) under the guise of Mr Perestroika sent an email to a handful of US political scientists, inviting recipients to forward it to others. Within a few days the text had achieved wide distribution within US academia and has been claimed as opening up the discipline.

'The Perestroika Movement in American Political Science and its Lessons for Chinese Political Studies' by Shelley Rigger in 14(4) Journal of Chinese Political Science (2009) 369-382 commented that -

The Perestroika movement's primary objective was to pull the discipline back from what many political scientists saw as a pervasive drift toward methodological totalitarianism and substantive irrelevance. "Substantive irrelevance" referred to the selection of research questions that lent themselves to “cutting edge” methods—even if they had little relation to the facts and problems facing political actors in the real world. In using the phrase "methodological totalitarianism", the Perestroikans, as they came to be called, were calling attention to their perception that only a narrow range of methods and approaches could pass muster with hiring committees at the top universities and editors at the top journals. That narrow range of methods and approaches excluded much of what had traditionally been included in the discipline of political science.

She goes on to note the argument that -

Because publication in the journal is such an important marker of success in the discipline, its preference for a few methods and approaches was making it difficult for scholars who used other methods and approaches to be hired and tenured because their articles were so rarely published in the APSR and its regional offspring. As graduate students became aware of the challenges facing political scientists whose work fell outside the narrow range of acceptable methodologies, some dropped out of the discipline, while others changed their research to make it conform to these preferences—even if it meant sacrificing substantive interest, relevance, even common sense. As Dorian T. Warren put it, "This methodological straightjacket in the broader discipline and in the field of American politics, along with its influence on the subfield of race and politics, impedes relevant and important research on the most pressing political problems facing us today",

It is interesting to speculate about disciplinarity within the legal community, in particular the bias of particular law journals (and inded of faculties) towards invocation of cult figures such as Lacan and Derrida (or even of Zizek, Lyotard, Bhabha and Stiegler, as acolytes weary of the old gods) and an an esoteric style that disguises both a lack of originality and insight. The 'Perestroika' concerns might be addressed to cultural or communication studies journals and conferences that appear committed to legitimating the pretensions of particular schools by excluding cross-disciplinary writing, especially writing that does not exhibit the requisite hermeticism, does not invoke the guru du jour or relies on a different methodology.

The irrelevance of cultural studies journals such as Transformations and Semiophagy (note here) is perhaps not be lamented. We might ask however whether legal scholars, given pretensions to offering more than entertainment or an occupation for the bewildered & self-involved (law does, after all, affect people), should ask whether whether there's a need to break down some of the disciplinary silos and to encourage a shift away from the arid, repetitive use of mantras such as "jouissance" encountered at postgraduate law conferences.

Human Rights Myths

The Castan Centre at Monash University is issuing a series of human rights "myth-busters", each of which focuses on claims about human rights legislation from some of the people opposed to a Human Rights Act for Australia.

The mythbusters are worth reading in their own right. They're also worthy of attention in commemoration of the late Ron Castan QC, a brilliant lawyer and a good man.

The current items are -

Myth 1: The proposed Human Rights Act would shift decision making to unelected judges

Myth 2: Judges would be able to effectively change the law under a Human Rights Act

Myth 3: Judges would use a Human Rights Act to bully politicians into changing laws to comply with human rights

Myth 4: Human rights are too political for judges

Myth 5: Human rights are too vague for judges

Myth 6: A Human Rights Act would be a lawyers' feast

Myth 7: Our human rights are adequately protected already

Slash your wrists ...

... or just move your btm.

The latest promo document from the Australia Council for the Arts, the cultural apparatchiki of Strawberry Hills, announces that 15-24s are "more creative" than their older peers. Whahoo! By the time you get to 40 (there's no life after 50) you are reduced to a feeble hunt for woolly cardies and comfy slippers rather than "engaging" with the internet or having a spirited discussion about St Jack Derrida and Bernard Stiegler?

The Oz Council's More than bums on seats: Australian participation in the arts study was -

conducted for the Research & Strategic Analysis section of the Australia Council by instinct and reason. It paints a comprehensive picture of how Australians participate in the arts today.

This research aims to provide insights into the attitudes and values that influence our creative participation (where we make something ourselves) and our receptive participation (when we attend a live event, an exhibition or read literature).

It's tempting, so tempting, to say ah yes, begone dull empiricism when you can rely on "instinct and reason". Relying on entrail of newt or kaka of bat is so so yesterday! That gibe's unfair: instinct and reason is the name of the research specialist and presumably they're very good at their job. Hats off to them.

Creativity? The Council's summary reports [PDF] that

One in three Australians are already using the internet for the arts - mostly for attendance-related activities (such as researching artists/events or downloading music), but some are using it for creative participation (such as posting works of art, writing blogs or working with others to create art).

The internet is a key tool for the arts

More than half of all 15-24 year olds had used the internet to engage in some form of art during the last year and were more creative online than others. The most widespread online art creations are writing and visual art/film/video, while the most frequent mode of creative participation is being involved in an online community or social network concerned with art in some way.

Creators are more likely to be:

15-24 years
Highly engaged: both participating & attending
Attending Indigenous arts [sic]
High school or tertiary students
Really like the arts

Consumers are more likely to be:

35-64 years
Attending only
Not attending Indigenous arts
In full time paid employment, carring out home duties or retired
Like or neither like or dislike the arts

So, if you're a spotty 16 year old blogger writing deathly prose ("I ate a cheeze sandwich") for an audience that comprises yourself and your cat you are a creator. A keyboard + modem = creativity. David Malouf, eat your heart out.

The 69 page full report suggests that in the yartz it is business as usual. "Australians are more likely to take in someone else's art than to create it themselves". No great revelations there, and perhaps it's a good thing that we're not suffering from a surfeit of wannabe Douanier Rousseaus.

Nine in ten of the Council's population (apparently a 3,000 person sample, with a bit of help from a focus group or two) claimed to have "receptively participated in at least one art form", with four in ten having "creatively participated in the arts" (eg by sewing). Governments should be generous, because "only a small group (7 per cent) were not engaged with the arts in the past 12 months".

Literature is the most popular art form, with 84 per cent reading – mostly novels though one in five read poetry. Creative writing was also popular with 16 per cent engaged, 7 per cent writing a novel or short story and 5 per cent writing poetry.

On a cursory read of the full report and summary it is unclear whether the 5% to 16% is a proportion of all adult Australians, a proportion of 15% of people who read and write or of the 1% who participated in but did not "attend" (presumably because they were on stage) a creative writing event.

Of course the Council's Australians are united in their support for the arts: "Australians' attitudes towards the arts are positive ... They widely believe that the arts should be an important part of every Australians' education, make for a richer and more meaningful life, and that there are plenty of opportunities to get involved."

Young people displayed higher levels of creative participation than the rest of the population. They were more likely to be creatively engaged in visual arts and crafts, theatre and dance, creative writing and music. This was to some degree a reflection of education; with young students more active in creative participation than young workers. Arts participation levels amongst younger people also appeared to be on the rise, with this group more likely to have increased their involvement in the arts in the last year. With a higher concentration of internet users, young people were engaging with the arts in new and evolving ways.

The study adopts the usual funky segmentation: lovers, flirters, un-attached and outsiders ... a 2010 riff on stars, dogs, cows and other quadrant labels from the world of McKinsey.

• The lovers (38%) are highly engaged with the arts and see the arts as an integral part of their lifestyle. They also hold the view that the arts provide them with a more meaningful and richer life as well as help them feel part of their local community.
• The flirters (26%) are more likely to be influenced to attend arts events by their friends than the ‘The lovers’. They like the arts, but are not necessarily convinced that they help them feel part of their local community. However they strongly believe that the arts provide a way of saying important things that need to be said in our society.
• The un-attached (19%) are those who have a neutral attitude towards the arts- many have not actually participated in, or attended any, of the main art forms in the past year, and some have never experienced these art forms at all. While they do not dislike the arts per se they just cannot see the personal relevance of the arts to them.
• The outsiders (17%) believe the arts tend to attract people who are pretentious and elitist. They believe the arts require a reasonable level of understanding to appreciate them fully and therefore the arts are "not for them".

First Australians

Assent has been received for the Constitution (Preamble) Amendment Act 2010 (Qld), which amends the Constitution of Queensland 2001.

The Act inserts a preamble to the state constitution -

The people of Queensland, free and equal citizens of Australia —

(a) intend through this Constitution to foster the peace, welfare and good government of Queensland; and
(b) adopt the principle of the sovereignty of the people, under the rule of law, and the system of representative and responsible government, prescribed by this Constitution; and
(c) honour the Aboriginal peoples and Torres Strait Islander peoples, the First Australians, whose lands, winds and waters we all now share; and pay tribute to their unique values, and their ancient and enduring cultures, which deepen and enrich the life of our community; and
(d) determine to protect our unique environment; and
(e) acknowledge the achievements of our forebears, coming from many backgrounds, who together faced and overcame adversity and injustice, and whose efforts bequeathed to us, and future generations, a realistic opportunity to strive for social harmony; and
(f) resolve, in this the 150th anniversary year of the establishment of Queensland, to nurture our inheritance, and build a society based on democracy, freedom and peace.

The Act also states that -

The Parliament does not in the preamble —

(a) create in any person any legal right or give rise to any civil cause of action; or
(b) affect in any way the interpretation of this Act or of any other law in force in Queensland.