Biodiversity

'No basis for claim that 80% of biodiversity is found in Indigenous territories' by Álvaro Fernández-Llamazares, Julia Fa, Dan Brockington, Eduardo S Brondízio,  Joji Cariño, Esteve Corbera, Maurizio Farhan Ferrari, Daniel Kobei, Pernilla Palmer, Guadalupe Yesenia H Márquez, Zsolt Molnár, Helen Tugendhat and Stephen T Garnett in (2024) Nature comments 

For the past 20 years or so, a claim has been made in all sorts of outlets, from reports and scientific publications to news articles, that 80% of the world’s biodiversity is found in the territories of Indigenous Peoples. Those using this figure invariably aim to highlight the essential roles that Indigenous Peoples have in conserving biodiversity, and seem to have quoted it in the belief that it is based on solid science. 

Numerous studies demonstrate that Indigenous Peoples and their territories are indeed key to safeguarding biodiversity for future generations. But the claim that 80% of the world’s biodiversity is found in Indigenous Peoples’ territories is wrong. 

The continued use of this number by United Nations agencies, non-governmental organizations (NGOs), journalists, conservation biologists and Indigenous activists and advocates, among others, could damage the exact cause that it is being used to support. Efforts to draw on and prioritize Indigenous Peoples’ knowledge in biodiversity conservation, and to protect their governance and rights, could be undermined if the credibility of individuals and organizations who make this claim is questioned. 

The global conservation community must abandon the 80% claim and instead comprehensively acknowledge the crucial roles of Indigenous Peoples in stewarding their lands and seas — and must do so on the basis of already available evidence. ... 

The 80% claim is based on two assumptions: that biodiversity can be divided into countable units, and that these can be mapped spatially at the global level. Neither feat is possible, despite important advances in measuring biodiversity. In fact, according to the Convention on Biological Diversity — a multilateral treaty to develop strategies for the conservation and sustainable use of biological diversity, involving nearly 200 countries — biodiversity is the “diversity within species, between species and of ecosystems”. It is not something that can be easily quantified. 

Even if researchers resorted to using the number of species present as a measure of biodiversity — a narrow yet common proxy — there are still millions of species that have not been described. Furthermore, there is debate over the proportion of described taxa that represents valid species, and knowledge about the geographical distributions of most species is lacking or incomplete. Data on species counts and distributions are especially likely to be missing for Indigenous Peoples’ lands and seas. 

The 80% claim seems to stem from misinterpretations of previously published statements. As advocates for Indigenous Peoples (three of us identify as Indigenous), we have had discussions about this figure over several years with Indigenous leaders at policy forums, on field visits and in research projects. To track its origins and assess how frequently it has been cited in the literature and in what contexts, we searched for combinations of the words ‘Indigenous’, ‘80%’ and ‘biodiversity’, as well as for combinations of their variants, such as ‘eighty’, ‘percent’ and ‘biological diversity’. We conducted our search using Google Scholar and Clarivate’s Web of Science, and included literature published up to 1 August this year. 

Our search found no reference to the 80% assertion before 2002. A report that year by the UN Commission on Sustainable Development, a body tasked with assessing progress on the commitments agreed at the 1992 UN Conference on Environment and Development in Rio de Janeiro, Brazil, stated that Indigenous Peoples “nurture 80% of the world’s biodiversity on ancestral lands and territories”. Over the next six years, similar unattributed statements were made in four other reports (see Supplementary information). However, judging by how commonly the number is cited, it seems to have been a 2008 World Bank report that contributed most to its widespread adoption in the academic literature.

Ecocide

'Criminalizing Ecocide' by Rebecca J. Hamilton -  forthcoming in (2025) Harvard Human Rights Journal - comments 

Amid widespread acknowledgment that we live on a planet in peril, the term "ecocide" packs a powerful rhetorical punch. Extant regulatory approaches to environmental protection feel insufficient in the face of the triple threat of climate change, pollution, and biodiversity loss. International criminal prosecution for ecocide, by contrast, promises to meet the moment, and a recent proposal to introduce ecocide into the canon of core international crimes is gaining traction. Assuming the push to criminalize ecocide continues to gain momentum, this Article argues that the primary (and perhaps, sole) benefit that international criminal law can offer in this context is its expressive power and, that being the case, it is vital to clarify exactly what the expressive message of ecocide should be. The recent burst of scholarly attention to the proposed ecocide definition has largely bypassed this normative groundwork. This Article calls for time to be invested in grappling with hard questions about what exactly the harm is that ecocide seeks to vindicate which, in turn, requires determining how best to conceptualize the relationship that humans have with the natural environment. The Article contends that if the proposed legal definition of ecocide is codified as an international crime, it risks being used to prosecute those who are already marginalized, while reinforcing the artificial (and damaging) conceptual separation of humans from nature that is already entrenched in international law. Nonetheless, there is a window of opportunity, currently open, to embed within the ecocide definition a position that understands humans as inseparable from nature, which would align ecocide's expressive message with long-standing Indigenous epistemologies, emerging human rights jurisprudence, and cutting-edge earth science. Time spent now on re-imagining the normative justification for ecocide's criminalization could put international criminal law in the rare position of being at the vanguard of a progressive movement to build a greener international law. 

Consent

'Capacity to Consent to Sex: A Historical Perspective' by Laura Lammasniemi in (2024) Oxford Journal of Legal Studies 

 provides a historical perspective on capacity to consent to sex. It examines who could make decisions about sex, whose consent mattered and why. The article draws from legal history and from transcripts and testimonies in unreported sexual offence cases in England, heard in the Central Criminal Court in London and the regional assizes between the years of 1918 and 1950. These cases, often involving vulnerable complainants below the age of consent and those with mental disabilities, show that the concept of capacity was neither fixed nor clearly articulated. The article argues that, historically, capacity was not a biological or med- ical construct, but rather a social one, influenced by notions of class, gender and even eugenic ideals. The article demonstrates that, during this period, sexual offence law enabled social and population control, and that, despite significant legislative advances, capacity remains a fraught concept.

Lammasniemi comments 

Who is allowed to consent to sex, and whose consent matters? How does a child gain capacity to consent, and can adults lose it? In this article, I will examine these questions in a historical context. Specifically, I will analyse the boundaries imposed upon women’s and girls’ capacity to consent by criminal law, and how those boundaries were interpreted in English criminal courts in the early 20th century, during the decades leading up to the enactment of the Sexual Offences Act 1956. 

In this article, I advance an argument that the undefined concept of capacity, as used in criminal courts, was neither a biological nor a medical assessment, but rather a social one, influenced by notions of class, gender and eugenic ideals. To support this argument, I will trace the legal history of capacity in this context and draw extensively from transcripts and testimonies in lower-level sexual offence cases. In so doing, I will build upon existing historical scholarship on sexual offences and show that the law failed vulnerable complainants in two distinct ways. First, it failed to sufficiently protect vulnerable people against sexual exploitation and harmful sexual activity. Secondly, it failed to protect the autonomy of those with different capacities, often labelled ‘mentally defective’, and prohibited them from engaging in consensual sexual encounters and romantic relationships. This article and the arguments within are drawn from an analysis of nearly 200 case files of sexual offence cases heard in lower-level courts,  namely the Central Criminal Court in London and the assizes outside London, in the years 1918–50. Of these 200 cases, 135 were accessed through a privileged agreement with the Ministry of Justice. In line with that agreement, all names, locations, dates and identifiable data have been removed, and pseudonyms are used throughout. These cases represent a small fraction of all cases heard in the period, and the files that remain in the archives are fragmented—particularly those from the early years of the 20th century—and consist of partial details of transcripts, testimonies and depositions given at the police station. While record-keeping improved during the interwar years, there are significant gaps in the records; for most cases heard in the period, there were no surviving records beyond names in the Court Books. Where partial details of the case exist, the case details have been triangulated using other available sources—mainly online newspaper archives, along with census and workhouse records—to form a fuller picture of the case or to find the sentence imposed. 

The argument and methods used in this article are significant in three ways. First, I demonstrate that—historically—capacity was a crucial, if undefined, tenet in sexual offences law. There is little legal historical scholarship on capacity to consent to sex. Throughout history, capacity and incapacity have been legislated through medical and mental health law, and therefore most scholarship on capac- ity is focused on this context.6 Yet, there is related historical literature on mental disabilities and institutions7 and on the age of consent, both of which touch upon the concept within a criminal context. Out of this broader, rich scholarship on institutions and regulatory regimes on mental disabilities, I will draw pre- dominantly on scholarship on ‘mental deficiency’, as laws regulating ‘deficiency’ directly interacted with sexual offences law. By analysing the legal history of the concept and associated narratives in criminal courts, I will demonstrate that, historically, capacity as it was used in the courts was not objectively assessed. Instead, this assessment, both in law and in practice, was clouded by external factors such as social class, gender and the ideals of the eugenics movement. Secondly, by examining a range of previously unanalysed, unreported lower-level cases, I shed light on women’s lived experience of law during the period. Analysis of these lower-level trials, rather than those in the then appellant courts of the Court for Crown Cases Reserved or the Court of Criminal Appeal, gives an insight into how criminal law functioned in practice. This practice was often far removed from set principles in the period. The analysis illustrates the difficult experiences of women and girls within the criminal justice system, and how they attempted to navigate that system. Both these contributions are of wider impor- tance, as it was during this period of the late 19th century and early 20th century when legal principles were solidified, and the conceptual foundations of modern sexual offences laws were laid. 

Finally, gaining a better understanding of that legal history is of contemporary relevance, as issues related to capacity are yet to be resolved, despite significant legislative advances in the 2000s. While an assessment of capacity is now built into the language of the law,11 there remains ambiguity over its definition, and the extent to which intoxication, power relations or mental disabilities can impact capacity. 

This article assesses the concept of capacity in the following three sections. In section 2, I discuss the fragmented laws on sexual offences in the period, to illustrate the importance of capacity to the contemporary sexual offences framework, and its conceptual inconsistencies within that framework. In section 3, I focus on children and young people, arguing that, despite clear boundaries setting a minimum age of consent, working-class girls in particular had to attest to their incapacity. Finally, I focus on prosecutions under the Mental Deficiency Act (1913, and discuss capacity and incapacity in the context of mental disability and institutionalisation. The case analysis in section 4 also illustrates the extent to which criminal courts enforced and opted into social control and eugenics, and the impact this had on the lives of women caught in those regulatory regimes.

Spooks

'Espionage Law in the UK and Australia: Balancing Effectiveness and Appropriateness'by Sarah Kendall in (2024) 83(1) The Cambridge Law Journal 62-98 comments 

 After extensive consultations, in July 2023 the UK’s Parliament passed the National Security Act 2023, which introduced sweeping reforms to counter-state threats laws. These included the overhaul of espionage and sabotage offences, the introduction of novel offences for foreign interference, the creation of prevention and investigation measures for individuals believed to be involved in foreign power threat activity and the introduction of the Foreign Influence Registration Scheme (which requires registration of “foreign activity arrangements”). Introducing the first significant reforms to counter-state threats legislation since 1939,  the National Security Act was said to be necessary because the threat of foreign hostile activity against the UK’s interests had evolved since the early 1900s and was growing. 

Just five years earlier, Australia also reformed its counter-state threats laws. Specifically, it modernised its national security laws (including espionage, sabotage and secrecy offences) and introduced unprecedented foreign interference offences, as well as the Foreign Influence Transparency Scheme.  These reforms were said to be necessary to modernise the law so that it could better address the threat posed by today’s foreign actors, including those seeking to interfere with Australian democratic processes or to access critical information on Australia and its allies. 

This article focuses on just one aspect of the national security reforms introduced in the UK and Australia – espionage offences. It engages in a comparative analysis of those laws to determine whether the laws in each country are effective and appropriate, using this analysis to emphasise the importance of laws that balance effectiveness with appropriateness. 

Espionage against the UK and Australia is a growing national security threat that has – at least in Australia – outstripped the threat of terrorism. In July 2020, the UK’s Intelligence and Security Committee published its Russia report, which concluded that Russia currently poses a “significant threat to the UK on a number of fronts – from espionage to interference in democratic processes”. Just two months later, the Law Commission released its Protection of Official Data Report which found that, because of developments in technology, “the threat of espionage … is of a wholly different order than was the case even twenty years ago”  In February 2023, Mike Burgess, Director-General of the Australian Security Intelligence Organisation (ASIO), described espionage and foreign interference as an “unprecedented challenge” and ASIO’s “principal security concern”. He warned that “more Australians are being targeted for espionage and foreign interference than at any time in Australia’s history”. 

Due to the growing nature of the threat, it is imperative that today’s espionage laws are effective in terms of being capable of achieving their intended aim. The objective aim of espionage laws is to address modern espionage (although some governments may arguably have ulterior motives, such as silencing whistleblowers or protestors). Modern espionage generally involves the use of technology and the internet (cyberespionage) by foreign powers (even allies) to collect, store and communicate a range of valuable information, such as military, trade secret and scientific information. 

Academics have argued that Australia’s new 2018 espionage offences are capable of effectively addressing modern espionage. Therefore, Australia’s offences may usefully be compared with the UK’s new 2023 espionage laws to determine whether those laws are also capable of effectively addressing the threat. However, Australia’s espionage offences have also been criticised for being uncertain and overly broad. While this may be what legislators intended, because such laws give law enforcement and intelligence agencies greater powers and flexibility to investigate and prosecute alleged espionage (especially as the nature of espionage may change over time), such laws are not appropriate criminal laws. In particular, laws that are broad and lack clarity have the capacity to capture conduct that should not be criminalised – in the espionage context, for example, the conduct of journalists, whistleblowers, academics and researchers. xx Although the concerns above have not yet played out in Australia, Australian whistleblowers and journalists have been investigated and, in some instances, prosecuted for other national security offences. For example, Witness K, a former Australian Secret Intelligence Service (ASIS) agent, and his security cleared lawyer, Bernard Collaery, were charged with secrecy offences for revealing that ASIS allegedly bugged the offices of the East Timorese Cabinet during treaty negotiations. Military lawyer David McBride compiled a report on alleged war crimes committed by Australian soldiers in Afghanistan, which he leaked to the Australian Broadcasting Corporation (ABC). He was charged with several offences, including unlawfully disclosing a Commonwealth document and theft of Commonwealth property. In 2019, News Corp journalist Annika Smethurst’s home was raided by the Australian Federal Police (AFP) after she published stories on proposed new domestic surveillance powers for the Australian Signals Directorate (ASD). These stories were based on a top-secret departmental memo and, while her conduct appeared to contravene secrecy offences, she was not charged. Just 24 hours later, the AFP raided the Sydney headquarters of the ABC in relation to a report, the “Afghan Files”, published by investigative journalists Dan Oakes and Sam Clarke. This report was based on secret defence force documents and revealed that Australian military personnel had committed severe human rights violations in Afghanistan. Oakes and Clarke were informed that they were under investigation for offences, including unlawfully obtaining information regarding Australia’s defence capabilities, receiving “prescribed” information and receipt of stolen goods, but they have not been charged. While Smethurst, Oakes and Clarke have avoided prosecution to date, the AFP has warned that it will continue to pursue cases like these because they involve a serious breach of national security. 

While the examples above did not involve espionage offences, the conduct of those involved certainly could have constituted espionage under Australian law, and similar conduct in the future could result in charges of espionage. This highlights the importance of laws that are not just effective, but are also appropriate. Appropriateness can encompass a range of considerations, but relevant to this article are two considerations that reflect rule of law values and principles: (1) the clarity of the laws; and (2) whether the laws are appropriate in scope. Espionage laws that are unclear and/or overly broad may be effective but run the risk of being used to punish (or silence) legitimate conduct, such as whistleblowing. 

Laws in the UK and Australia have been chosen for analysis because both countries have similar legal, political and cultural traditions, including strong respect for the rule of law. Furthermore, Australia frequently looks to the UK when conducting official inquiries and reviews and has modelled some of its national security laws and policies on those found in the UK. The UK has borrowed some aspects of Australia’s national security laws too and has looked to Australian law for guidance when determining how to reform its counter-state threats legislation. Additionally, useful comparisons can be made between legal frameworks that have both been introduced to tackle the same threat. 

A final reason why the UK and Australia have been chosen for analysis is that both countries are members of the “Five Eyes” Intelligence Alliance. While this alliance requires the UK, Australia, US, Canada and New Zealand to share intelligence information, Julian Assange/WikiLeaks and Edward Snowden revealed that the global surveillance network was being used (at least by the US) to monitor domestic citizens and close allies, and to engage in industrial espionage. Their leaks sparked global concern over citizens’ privacy rights and highlighted once again the asymmetrical nature of the alliance, with the US setting the agenda.  Steps towards strengthening espionage laws in the UK and Australia could therefore be at the behest of the US – so as to expand the scope of information the US has access to. However, it could also be a sign of rising geopolitical tensions between the Five Eyes and nations such as China and Russia, and of the potential lead up to war. Regardless of the political nuances surrounding why Australia and the UK have reformed their espionage laws, the Five Eyes do ultimately place espionage (and the legal response to espionage) at the centre of their dealings. A comparative analysis of espionage laws in two of the Five Eyes nations is therefore apt. 

This article begins, in Part II, with an overview of “modern espionage”. This is followed, in Part III, with a discussion of the UK’s 2023 espionage laws and how they could be applied in practice. This discussion draws on analysis of the UK’s previous espionage offences and how those offences were applied in practice. Part IV provides an overview of Australia’s 2018 espionage offences, giving examples of how they could apply to real-world scenarios. Part V then compares and contrasts the laws in the two jurisdictions, analysing whether they are capable of effectively meeting the threat of modern espionage. A similar approach is taken in Part VI, which assesses whether the laws are appropriate in terms of their clarity and scope.

Corpus

'Signs of Legal and Pseudolegal Authority: A Corpus-Based Comparison of Contemporary Courtroom Filings' by David Griffin and Dana Roemling in (2024) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique comments 

The purpose of this special issue is to explore the spatial dynamics of and cultural changes in contemporary legal practice. This study aims to do so by considering the layout and design features (i.e. all aspects other than literal word use) of two corpora of contemporary American courtroom filings: one comprising documents written by licensed attorneys and a second comprising documents written by members of the Sovereign Citizen conspiracy movement. Sovereign Citizen courtroom filings are notable for a legally authoritative appearance which belies their irredeemably conspiratorial character . By quantitatively comparing the layout and design features of a corpus of legitimate legal documents to a corpus of pseudolegal (i.e. legal seeming but ungrounded in actual law) documents, this study both empirically identifies the features that characterize legitimate legal courtroom filings and considers the ways in which the “authoritative indexicality” of those features appears to have influenced the appearance of documents produced by members of the Sovereign Citizen movement. Simultaneously, this study also makes a contribution to the field of corpus-assisted multimodal discourse analysis by outlining a novel method of visualization for the quantitative linguistic analysis of layout and design features in static texts. 

2 Pseudolaw, Properly so Called 

This is a multidisciplinary study which draws upon aspects of legal, semiotic, and anthropological theory. It is therefore important to establish from the outset the sense in which its key terms will be employed. This section begins with a brief description of legal positivism, after which it describes the connection between the concepts of law and authority. It then concludes with a discussion of the nature of pseudolaw and the history and beliefs of the Sovereign Citizen movement. 

2.1 Legal Positivism 

This study adopts the legal positivist position regarding the nature of law. In its classic formulation as Austin’s command theory, “[a law] may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. From this starting point, two essential conclusions may be drawn: first, that a law’s validity comes from its own normative force rather than any requisite moral component, and second, that any such normative force stems from the socio-political arrangements of the society in which that law operates. This is not to say that a law cannot be ascribed a particular moral character, but rather to make clear that questions of morality are separate from those of legality and thereby obviate the need to align this study with a particular system of ethics. For the purposes of classifying the data examined below, it is therefore sufficient to say that a given text will be considered “legitimately” legal when it has been produced in line with the expectations of the relevant state or federal branch of the United States government. 

2.2 Author, Actor, and Acts 

Central to Austin’s command theory of law is the ability of an intelligent being to exercise power in a socially sanctioned way over another intelligent being. In practice, the being in the position to exercise power can be thought of as the state itself (or at the very least as a representative of the state) and in modern democracies the source of that social sanction is the consent of the governed (e.g. the “we the people” from the preamble to the United States federal Constitution). This can be mapped directly onto Hobbes’ description of the exercise of authority:

[S]ome have their words and actions Owned by those whom they represent. And then the Person is the Actor, and he that owneth his words and actions, is the Author: In which case the Actor acteth by Authority… So the Right of doing any Action, is called Authority. So that by Authority, is alwayes understood a Right of doing any act: and done by Authority, done by Commission, or License from him whose right it is. [6 emphasis in original] 

In the context of the American legal system, the consent of the governed is the “author” from whom authority springs, the state is the “actor” empowered by that author, and the laws it passes and, when necessary, enforces are its “acts” (see also Bourdieu’s concepts of “authorized actors” and “authorized acts” in [7]). In brief, therefore, the operation of the law can be described as the exercise of authority. ... 

Critically, the form taken by the acts represented in the above diagram, both in terms of their content and their ratification (via, e.g., the use of an enacting statement in a statute or an official seal in a given text), serves to reinforce their connection to the original “author”. This cyclical and self-reinforcing flow of authority within the legal system is crucial to its proper functioning. After all, a “law” in the legal sense is not the same a “law” in the scientific sense [8]; the law of gravity will function as it should regardless of its cultural context, but a speed limit is only effective to the extent that it is enforced by the state. In addition to any particular communicative aims, then, one of the primary semiotic functions of a legal object is to index its connection to authority; just as the presence of smoke likely presages the existence of fire, so too does the presence of a legal signifier point towards an instance of legitimate socially derived authority. 

2.3 The Nature of Pseudolaw 

Pseudolaw, for the purposes of this study, is defined as anything which is “legal-seeming but ungrounded in actual law”. Though this definition is not unusual (see, e.g., Hobbs et al.’s functionally identical definition in [10]), in practice, the terms “pseudolaw” and “pseudolegal” are generally used to refer to a particular class of conspiracy-theory-based practices. The following section will discuss pseudolaw in the context of the Sovereign Citizen movement. First, however, this section will examine the relationship between the concepts of law and pseudolaw more generally. 

The mistaken idea that the legal system possesses some sort of externally verifiable authority is so widespread that it has been described as the “necessary myth [without which] the modern state would collapse” [11, see also 12]. Derrida notes that this has always been the case, claiming that “since the origin of authority… the position of the law can’t by definition rest on anything but [itself]”. Putting to the side some of the more complex ontological issues which arise when attempting to define a self-regulating field such as law, this much is clear: despite their critical role in regulating social relationships, all legal systems are ultimately ephemeral and primed to evanesce in the first moment that their societies decide they are no longer needed. It is worth noting that this conclusion is not actionable in any practical sense; a judge, for example, is unlikely to look kindly upon an argument that insists the law only exists because they pretend that it does. Nevertheless, it is exactly this existential legal ambiguity which gives rise to the existence of pseudolaw. After all, if there is no way to tell in isolation whether something is truly an exercise of socially sanctioned authority, then there is nothing to stop an individual from surrounding a legally meritless argument with legitimate-seeming legal signifiers in the hopes of imbuing that argument with the appearance of authority. 

Because it needs to simultaneously serve the specific technical needs of a range of professions while theoretically remaining entirely accessible to laypeople, legal writing in particular is vulnerable to this sort of attempted authoritative appropriation. Especially in complex texts like statutes or wills, it is much easier for non-lawyers to recognize texts as legal in character than it is for them to parse their particular semantic content; Goodrich describes a person recognizing something as “legal” in this way as being akin to their identifying the use of a foreign language they do not speak. In this way, as long as a given pseudolegal text “sounds” sufficiently legal, a layperson may well interpret it as such. Elsewhere, one of the authors of this study has described the operation of pseudolaw as “parasitic” in the sense that its success depends upon the pre-existence of a “host” (in this case, legitimate legal language) with whose intended functioning it actively interferes [16]. Regardless of the underlying metaphor, what is clear is that pseudolaw cannot exist on its own but is instead dependent upon the established signs of the legitimate legal system. It is not a system of “anti-law”, but instead a derivative pretender that relies upon people’s possessing limited but extant familiarity with real signs of legal authority. 

It is worth briefly distinguishing pseudolegal arguments that are conspiratorial (i.e. grounded in conspiracy theories) from those that are not. A landlord fallaciously claiming that a lease allows them to keep a tenant’s security deposit without cause is making a pseudolegal argument because they are pointing to a legitimate legal sign (in this case, a tenancy agreement) to lend the appearance of authority to a claim that the sign does not support. A landlord who additionally suggests that they are allowed to keep that security deposit because their supposed status as a “Freeman” grants them unlimited authority over the use of their property is making an argument which is both pseudolegal and conspiratorial. Not every meritless legal argument is necessarily pseudolegal; it is entirely possible for a person to make an argument which is grounded in actual law and yet still be wrong from the perspective of the legal system (e.g. because of a superseding statute or precedent of which the person was unaware). Pragmatically speaking, the answers to very few legal questions are ever fully black and white and, in that sense, an argument’s merely being plausible is likely sufficient to elevate it above pseudolegal status. With that said, the development of a full taxonomy of legal wrongness is beyond the scope of this study; it is enough for now to note that the Sovereign Citizen documents examined below can be properly deemed both pseudolegal and grounded in conspiracy theories. 

2.4 “Lexomancy” and the Sovereign Citizen Movement 

The Sovereign Citizen movement is a collection of loosely organized anti-government conspiracy theorists with an increasingly global membership . Despite the movement’s origins in an American far-right white nationalist group in the 1960s, Sovereign Citizens can now be found in “at least” 26 different countries  and come from a wide range of racial and political backgrounds, resulting in a plethora of distinct subgroups with varying degrees of internal organization and frequently incompatible specific beliefs [10, 20]. Conspiracy theorists believe that “a secret, omnipotent individual or group covertly controls the political and social order or some part thereof” and, broadly speaking, Sovereign Citizens believe that by harnessing the methods purportedly used by those secretive omnipotent individuals, they can force the government 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 . For the purposes of this study, the most notable quality of the Sovereign Citizens is their tendency to “[submit] verbose legal filings to various state and federal courts, dressed up in ‘pseudo-scholarly terms and meaningless Latin phrases,’ typically claiming for various reasons [that] courts have no jurisdiction over them”. 

The pseudolegal documents created by members of the Sovereign Citizen movement have been described as an example of “lexomancy” in which legitimate legal signs are used in an effort to talismanically imbue texts with real authority. Law is a highly ritualized field and has been metaphorically described as a form of “social magic”. That metaphor becomes literal, however, once an individual begins to view a legal ritual as having a “special kind of efficacy" and there is broad agreement that this is the best lens through which to view Sovereign Citizen pseudolegal activities. More specifically, Wessinger describes the production of Sovereign Citizen pseudolegal documents as a magical practice in which the Sovereign Citizens “‘imitate the behavior’… [of the government] in order to gain power over that government and its agents” . Essentially, even though Sovereign Citizen pseudolegal theories claim that their authority stems from a distinct and decidedly superior Hobbesian “author” (often, if nebulously, referred to as the “Common Law”) as compared to that of the legitimate legal system, the form taken by their “acts” still indexes the presence of legitimate legal authority. ... 

This process of indexical authoritative appropriation is the focus point of this study. Not only does it offer the opportunity to examine the metaphorical spatial and cultural dynamics of the movement of signifiers of legal authority between legitimate legal texts and their pseudolegal counterparts, but it also offers the chance to consider their literal spatial dynamics by analyzing the typical placement of those features on the page and the ways in which they contribute to a text’s overall authoritative character. 

3 Methodology 

This study compares the layout and design features present in a corpus of documents written by actual attorneys (the “legitimate legal document” or “LLD” corpus) to those present in a corpus of documents written by members of the Sovereign Citizen movement (the “Sovereign Citizen document” or “SCD” corpus). The semantic content of these corpora (i.e. the literal words they contain) has been analyzed elsewhere  and so will be left unaddressed here. Instead, this analysis considers the contents of these corpora as composed visual artefacts, with a focus on how the presence of established legal signs contributes to their overall authoritative character, regardless of whether such authority is legitimately claimed. While reading a legal text in this way is not a novel approach, its combination with corpus linguistic methods is less common. Using the analysis in Griffin as a starting point, then, it is hoped that this study will contribute to both the fields of legal semiotics and of corpus assisted multimodal discourse analysis, as studies of both legal and pseudolegal texts would both benefit from additional empirical grounding..

Wet Ink

In Westpac Banking Corporation v Cahill [2024] WASC 246 - another pseudolaw claim - the Court states  

[29] In response to the Applications, the defendant filed a number of documents on 5 June 2024, as follows:

(a) Document titled 'AFFIDAVIT: Challenge the Jurisdiction of the Supreme Court under "CORAM" Jurisdiction of actor pretending to be a Judge under Chapter III Constitution Sitting in Sedition and Treason', affirmed by the defendant on 4 June 2024, which seeks to challenge the validity of the Application, the affidavits and documents filed by the plaintiff, and the court's authority and jurisdiction; 

(b) Document titled 'Defendant's Challenge to Jurisdiction of the Court', which also seeks to challenge the court's jurisdiction; 

(c) A copy of the chamber summons to strike out the defence and to enter summary judgment annotated and stamped 'Dog‑Latin', 'Legal‑Fiction', 'Counterfeit', 'This Instrument is Defective' and 'This Instrument is not Understood', amongst others; 

(d) Further document titled 'Lawful Challenge to the Jurisdiction of the Supreme Court of Western Australia, District Court of Western Australia and Magistrate Court of Western Australia' and the rules of those courts; and 

(e) Document titled 'Lawful Notice' which, amongst other things, states that the Property is on the market and disputes the validity of the contract and claim.

In response 

 [47] I have considered the Defence and the materials filed by the defendant. They make little if any legal sense. Much of what the defendant says and seeks to rely on are not matters recognised by the law that I must apply in determining the Applications. 

[48] The Defence filed by the defendant does not disclose any reasonable defence or matters which substantiate an arguable defence to the plaintiff's claim. It includes contentions that the plaintiff has no right to enforce the Loan Agreement, Line of Credit or the Mortgage, and that this court has no jurisdiction and no power or authority to make the orders sought. 

[49] The Defence makes a number of assertions which have been described, in other decisions of this court, as 'pseudo-law' and are largely nonsensical. The materials contain broad allegations to the effect that the plaintiff engaged in fraud, did not act in good faith and has been deceptive. No facts are pleaded to support those contentions. 

[50] The defendant also makes statements to the effect that, because the plaintiff is a 'Dead Corporation' and has not provided 'the Genuine Binding Financial Agreement signed in wet ink', it cannot bring its claim. 

[51] The evidence adduced by the plaintiff includes what are deposed to as being true copies of the Loan Agreement and Mortgage signed by the defendant and the terms and conditions that apply to them. As the Court of Appeal stated in Connell v Australia and New Zealand Banking Group Limited, it is sufficient for a bank to produce what is deposed to be a true copy of the original loan agreement signed by all parties to the agreement, without producing 'a wet‑ink signed' document. 

[52] The defendant has not filed any affidavit evidence or submissions in response to the Applications that indicate there is any merit to the matters stated in the Defence. The assertions in the material filed by the defendant have no legal or evidentiary basis. They seek to challenge the court's jurisdiction and draw on matters that have been described as 'pseudolaw', as referred to. They have no basis in law and are without merit.