Nonsense

In Planck & Planck [2024] FedCFamC1F 341 Riethmuller J states ...

 the applicant filed an application on 12 September 2023 seeking: A stay on proceedings ... until authority and jurisdiction has been established as per the following 12 points ... 

 

(1) Provide proof of authority that every judge, registrar, magistrate and public servant employees are commonwealth public officers, as per section 3 definitions of the crimes act 1914 Commonwealth, and 

 

(2) Provide proof of jurisdiction as per crimes act 1914, s4, application of common law of England, and 

 

(3) Provide proof of jurisdiction as per Judiciary act 1903, Section 80, Common law to govern, Common Law of England, and 

 

(4) Provide proof of authority that every judge, registrar, magistrate and public servant employees are commonwealth public officers, as per Chapter III of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and 

 

(5) Provide proof you have made available, Trial by jury, as per s80 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and 

 

(6) I request the instrument, or otherwise information, that demonstrates that the Federal Court of Australia Act 1976 complied with section 58 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, to establish the Federal Court of Australia, and 

 

(7) I request the instrument, or otherwise information, that demonstrates that the Family Law Act 1975 complied with section 58 of the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted in becoming law, to establish the family law act 1975, and 

 

(8) Provide proof that the Governor-General of the Commonwealth of Australia has been appointed by Her Majesty Queen Elizabeth the Second and her heir Charles III of the United Kingdom of Great Britain and Ireland, be appointed by Commission under Letters Patent, Dated 29th October 1900, Royal Sign Manual and Signet and represent The Queen's Most Excellent Majesty, Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms & Territories Queen, Head of the Commonwealth, Defender of the Faith, Section 61 of Our Primary Law, Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, and 

 

(9) Provide proof that the Governor of the State has been appointed by Her Majesty Queen Elizabeth the Second and her heir Charles III of the United Kingdom of Great Britain and Ireland, According to the Letters Patent, Dated 29th October 1900, Royal Sign Manual and Signet and represent The Queen's Most Excellent Majesty, Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms & Territories Queen, Head of the Commonwealth, Defender of the Faith, and 

 

(10) Provide proof of authority as to which Commonwealth entity, you are administrating as per The Public Governance, performance & Accountability Act 2013, chapter 2, division 2 -11. 

 

(11) Provide proof of the oath or affirmation of allegiance as required by the Commonwealth of Australia Constitution Act 1901 as Proclaimed and Gazetted, subscribed by Chief Justice William Alstergren, as provided for in the Schedule, and 

 

(12) If the first requested document cannot be found, I request such a document showing any undertaking that Chief Justice William Alstergren made prior to taking his position in the Federal Court system. (As per original)

Each of the points are drafted as a demand that the court provide proofs to the applicant. This form of request was declined by me during argument, pointing out to the applicant that I am sitting to hear the case and not to be cross-examined by him. It is not the role of the court to provide evidence or opinions, rather, to determine applications made to the court by parties. The approach of the applicant cannot succeed for a number of other reasons:

(a) First, there is a general presumption of regularity (omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium: see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164). The presumption forms part of Australian law: see R v Brewer [1942] HCA 33; (1942) 66 CLR 535, 548; and Cassell v R [2000] HCA 8; (2000) 201 CLR 189 at [17]. If the applicant seeks to challenge the validity of the legislation and appointments of the judges, he bears the onus of raising an evidentiary basis for the claim. It is not open to him to attempt to place himself in the position of arbiter by demanding that the Court prove its authority to him. 

(b) Secondly, there is an element of sophistry in how the applicant frames the argument as it is apparent that he would never be satisfied of any proof provided. On his approach, he will always be able to demand further proof: for example, any witness other than the sovereign would simply be asked to prove their authority, and if the sovereign appeared, no doubt the applicant would require that the sovereign prove his identity and sovereignty. 

(c) Thirdly, it appears from the form of the application that the applicant effectively arrogates to himself the power to issue the ancient writ of quo warranto. Section 75(v) of the Constitution vests original jurisdiction in the High Court in any matter in which a writ of prohibition and mandamus or an injunction is sought against an officer of the Commonwealth. Section 33 of the Judiciary Act 1903 (Cth) also allows the High Court to make orders or direct the issue of constitutional writs. Relief in the nature of quo warranto can be sought from the High Court. The modern process is specified in r 25.17 of the High Court Rules 2004 (Cth), which provides that an injunction or declaration may be granted if an applicant proves that a person has not been validly appointed to an office: see Liston v Davies [1937] HCA 22; (1937) 57 CLR 424 at 445). As the applicant’s argument has the effect that no currently sitting judge in Australia is validly appointed, it is unclear to which court he would need to address his request for the issue of such a writ (presumably either the King or the High Court of England). ...

Further 

Whilst the argument of the applicant, as it is identified in the material, appears long and complex, much of the complexity arises as a result of his adoption of common forms of pseudolegal arguments as described in detail by Judge Rooke in Meads v Meads (2012) 543 AR 215 (Alberta, Canada), and insightfully discussed in a number of articles by Donald J Netolitzky, including “Organized Pseudolegal Commercial Arguments as Magic and Ceremony” [2018] Alberta Law Review 1045; and “The Perfect Weed for this Spoiling Soil: The Ideology, Orientation, Organization, Cohesion, Social Control, and Deleterious Effects of Pseudolaw Social Constructs” (2023) 6 International Journal of Coercion, Abuse, and Manipulation 1. In Australia, pseudolaw has been discussed in a speech delivered by Judge Cash, “A Kind of Magic: The Origins and Culture of Pseudolaw” [2022] QldJSchol 16; and in an article by Harry Hobbs, Stephen Young and Joe McIntyre, “The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand” (2024) 47 UNSW Law Journal 309. 

The applicant’s core argument is that the letters patent and assents to legislation by Queen Elizabeth II are invalid since Her Majesty changed the phrase “under Our Sign Manual and signet” to “under Our Sign Manual and the Great Seal of Australia” and due to changes in the description of the Queen, for example omitting the title “Defender of the Faith”. The purpose of these processes is simply to provide evidence of the sovereign’s actions. The ability to change the method by which the sovereign demonstrates their assent is long recognised. For example, in 1830 the House of Commons passed the Royal Signature By Commission Act 1830 (Imp) to allow King George IV to appoint certain persons to affix the royal signature to instruments, instead of signing, due to his illness affecting his ability to sign documents. Sir R Peel remarked during the First Reading of the Bill:

“The present Bill provides that his Majesty may, by his Royal warrant or commission, to be signed with the sign manual, appoint one or more persons to attach a stamp to those instruments which require the Royal Signature. That stamp will be provided under the direction of the Lord President of the Council. There will be two stamps; one of which will bear the words 'George R.,' and the other, 'G. R.,' the initials only, for such instruments as are usually signed in that way... The stamp can only be affixed by the King's express command, and in the presence of his Majesty, and the party affixing it must attest by his own signature, that the stamp has been affixed by his Majesty's express command, and in the presence of his Majesty” [1149]. 

The applicant’s arguments must fail for a number of reasons: 

(a) Section 6 of the Acts Interpretation Act 1901 (Cth) provides that: The date appearing on the copy of an Act printed by the Government Printer, and purporting to be the date on which the Governor-General assented thereto, or made known the Sovereign’s assent, shall be evidence that such date was the date on which the Governor-General so assented or made known the Sovereign’s assent, and shall be judicially noticed. 

(b) There is no claim that the Queen did not execute the relevant letters patent or give her assent. Even if there is some reason that the form of words are defective, it does not change the underlying reality that these are actions of Queen Elizabeth II. The purpose of the details raised by the applicant are not to convert the document into one that is of legal effect, but rather to provide a suitable mechanism to demonstrate that the acts were those of the sovereign (or the Governor-General): see, for example, the discussions in Rutledge v Victoria [2013] HCA 60; (2013) 251 CLR 457 at [9] – [11] and Coshott v Coshott [2010] FCA 300; (2010) 184 FCR 495 at [24] – [26]. 

(c) The “sign manual” is simply an archaic phrase for a handwritten signature, and the word “signet” simply refers to the seal that is used from time to time. There is no basis for concluding that the sovereign is unable to change the signet that they use, nor that they would be restricted to only one seal to be used in all of their realms. The choice by Elizabeth II to use the Great Seal of Australia (or such other seal as may have been Her Majesty’s pleasure) is not impeachable, at least when done with the assent of Parliament. 

(d) The use of the Great Seal of Australia followed a meeting of the Federal Executive Council at Government House whereby a Royal Warrant was granted on 16 February 1954, as contemplated by the Royal Style and Titles Act 1953 (Cth). Whilst the applicant referred to the schedule, which set out the changes to the royal signs and seals, it was apparent that he had not read the Act itself, which included a provision at s 4(1) that: The assent of the Parliament is hereby given to adoption by Her Majesty, for use in relation to the Commonwealth Royal style of Australia and its Territories, in lieu of the Style and Titles at and Titles in relation present appertaining to the Crown, of the Style and Titles set forth in the Schedule to the RST Act, and to the issue for that purpose by Her Majesty of Her Royal Proclamation under such seal as Her Majesty by Warrant appoints. 

(e) The applicant also failed to note that the Royal Style and Titles Act 1953 (Cth) received the Royal Assent of Queen Elizabeth II. Similarly, the Royal Style and Titles Act 1973 (Cth) again provided Parliament’s consent to the Queen changing her royal style and titles, as were effected by a Royal Warrant on 19 October 1973, just as had occurred with King Edward VII in 1901. 

Arguments of this type have been consistently rejected by many courts, although the applicant addressed none of the authorities: see; Joosse v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260, 263 [12]; Sharples v Arnison [2001] QCA 518; [2002] 2 Qd R 444; Kelly v Campbell [2002] FCA 1125; Gunter v Hollingworth [2002] FCA 943; Lohe v Gunter [2003] QSC 150; Clampett v Hill & Ors [2007] QCA 394; Sprlyan v Wyborn [2019] WASC 227. 

The applicant also complains that various Prime Ministers’ and Cabinet Ministers’ oaths did not include oaths (or affirmations) of allegiance to the Monarch in the form of words set out in the schedule to the Constitution. The oath set out in the Constitution is required to take up a position as a member of the House of Representatives or the Senate. Each Member and Senator takes the oath set out in the Constitution. Since 1991, the oath of allegiance has not been repeated upon being sworn in as a Minister as it has previously been taken. This argument is without foundation. 

The 12 points raised in the Application can be briefly dealt with: 

(1) The applicant has not raised any evidentiary basis for doubting the authority of the Court. 

(2) Section 4 of the Crimes Act 1914 (Cth) deals with common law principles relating to criminal liability for offences pursuant to the legislation. Section 4 is irrelevant to these proceedings. 

(3) Section 80 in Chapter III of the Constitution requires trial by jury for offences prosecuted on indictment. Section 80 is irrelevant to these proceedings. 

(4) The request for proof of authority has been dealt with above. (5) These proceedings do not engage s 80 of the Constitution for the reasons set out at (3) above. (6) The Federal Court of Australia Act 1976 (Cth) is not relevant to these proceedings as the proceedings are not pending in the Federal Court. 

(7) There is no basis to doubt the assent to the Family Law Act for the reasons set out above. 

(8) There is no basis to doubt the appointment of the Governor-General for the reasons set out above. 

(9) Governors of States are irrelevant to the federal jurisdiction and need not be addressed here. 

(10) The Public Governance, Performance and Accountability Act 2013 (Cth) applies to Commonwealth entities exercising executive powers and corporation sole. The Court does not exercise executive powers: see R v Kirby; ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254. Thus, the Public Governance, Performance and Accountability Act is irrelevant to these proceedings. 

(11) and (12) Arguments as to the appointment of the Chief Justice are irrelevant to these proceedings as the case is not being heard by the Chief Justice. As none of the applicant’s arguments have any merit the Application in a Case filed on 12 September 2023 must be dismissed.

Authenticity

'Authentic assessment: from panacea to criticality' by Tim Fawns, Margaret Bearman, Phillip Dawson, Juuso Henrik Nieminen, Kevin Ashford-Rowe and Keith Willey in (2024) Assessment and Evaluation in Higher Education comments 

 Authentic assessment contrasts with ‘traditional’ forms of assessment in ways that appear to be significant and, largely, positive. However, authentic assessment is often invested with superpowers, including the ability to: surmount academic integrity concerns (Sotiriadou et al. 2020); make assessment more inclusive (Nieminen 2024); and ensure relevancy to future personal, social and professional contexts (Ashford-Rowe, Herrington, and Brown 2014; Villarroel et al. 2018; Ajjawi et al. 2020; McArthur 2023). This view finds its way into assessment policies and teaching and learning resources that uncritically blend authenticity with inclusion, integrity or preparation of graduates for the future (e.g. University of Reading 2023; University of Oxford 2024). In this paper, we argue that the promotion of authentic assessment as an answer to a broad range of complex problems unhelpfully positions it as a panacea. 

 

Authentic assessment is often positioned as the ‘silver bullet’ solution for critical, urgent and widespread challenges in our current higher education environment (Ajjawi et al. 2023). While literature supports some potential benefits of authentic assessment in relation to challenges of cheating, inclusion, and the application and future relevance of learning, in principle (Ashford-Rowe, Herrington, and Brown 2014; Villarroel et al. 2018; Sokhanvar, Salehi, and Sokhanvar 2021), there is very limited evidence of how, and the extent to which, authentic assessment actually does this in practice, or the relationship between authenticity and these other concerns (Ajjawi et al. 2023). Indeed, the review by Villarroel et al. (2018) showed that the vast majority of authentic assessment studies do not feature a clear model or practical guidelines for authentic assessment. 

We have concerns that the label ‘authentic assessment’ is sometimes applied without sufficient interrogation of how aspirations of authenticity relate to broader contexts and purposes of assessment. This worry has a historical basis: higher education discourse has seen a range of panacea concepts come and go. Successive educational technologies – including print, radio, television, online, tablets, MOOCs, and now artificial intelligence (AI) – have been associated with ‘magical thinking’ around their capacity to solve complex educational problems (Cuban and Jandrić 2015), with promises of what should happen greatly outstripping the reality of what does happen (Selwyn 2013). Pedagogical innovations – such as student-centredness, constructive alignment, and active learning – have been suggested in response to problems of student learning, engagement and motivation (e.g. Freeman et al. 2014). Even higher education itself is commonly portrayed as a panacea for various global issues such as poverty and unemployment (see, e.g. Ostrowicka 2022). In each case, a concept or label covers over the need for nuanced negotiation and integration of new approaches into particular contexts. Similarly, where the label ‘authentic assessment’ is treated as sufficient explanation for what is actually a complex approach to assessment design and implementation, it can become a distraction (Arnold and Croxford 2024) or even a thought-terminating cliché (Lifton 1961) that hampers important conversations and considerations of the tensions between multiple purposes and practicalities. 

 

In this paper, we examine the relationship between authenticity in assessment and three ‘problems’ it is often purported to address: preparing graduates for their futures; cheating; and inclusion. We have chosen these challenges because of their complexity, their significance, and the primacy of authentic assessment as a solution within current educational discourse. In our discussions, we consider how authenticity can be used as a principle alongside or within more targeted approaches to different assessment purposes. We argue that, if we think beyond authentic assessment as a form of assessment to conceive of authenticity as just one aspect to thoughtfully and judiciously consider within the design, we can more clearly see and address real problems and purposes of assessment and higher education more broadly.

Care

The fascinating 'Care as a constitutional value' by Sandra Fredman in (2024) International Journal of Constitutional Law comments 

 The centrality of care to society is increasingly recognized as an issue of public concern. Although painfully brought into focus during the COVID-19 pandemic, the public importance of care was already receiving attention well before then. Important scholarly work by feminists, labor lawyers, feminist economists, and scholars of relational theory and care ethics has been augmented by developments in international policy and human rights law. In 2015, the world committed itself to the ambitious fifteen-year program “Transforming Our World” through the Sustainable Development Goals (SDGs). SDG 5 promises to recognize and value unpaid care and domestic work, including through the provision of public services and infrastructure, social protection policies, and the promotion of shared responsibility within the household. This is reflected too in the international and regional human rights arena. In its 2019 Centenary Declaration for the Future of Work, the International Labour Organization (ILO) emphasized the importance of the care economy for transformative gender equality, proposing sustained public investment in childcare and long-term care services both to boost the economy and achieve decent work opportunities for women. In 2023, Argentina submitted a request to the Inter-American Court of Human Rights asking the Court to determine, inter alia, the nature and scope of the right to care and its interaction with other rights. To this has been added the voice of the World Bank, which describes “the care economy [as] essential in daily life and a driver of economic growth, human capital development, and employment.” Investments in the care sector, it claims, could produce up to 299 million jobs globally by 2035. Nor does the need for greater attention to care relate solely to its implications for women. It is of central importance to young children and their rights to quality early childhood care and education; to people with disabilities; to older people; and to paid and unpaid care workers. Care work has also been recognized as green and sustainable. 

This raises the question of whether care should be regarded as a constitutional issue, and what that might entail. Traditionally, care was regarded as taking place within the private sphere, beyond the quintessentially public nature of constitutions. Characterized as emotional, intimate, and relational, care appeared an unlikely candidate for constitutional ordering. However, feminists have long noted that the notion of a rigid public–private divide is itself a patriarchal construct, permitting the perpetuation of unequal power structures in the private sphere. Nor is it possible to contain these inequalities within the home. Patriarchal assumptions that care should be performed by women unpaid in the home have spilled over into paid caring work, dragging down the value of paid caring work and increasing the risk of precarity for women entering the paid workforce. 

Acknowledging that care traverses the putative public–private divide does not in itself mean that care should be a constitutional matter. Care could remain an issue for the family or the free market, as has been witnessed by the increasing commodification of care. Or it could be left to ordinary legislation, such as labor law and social security. However, experience reveals the weaknesses in all these approaches, across many jurisdictions. Labor laws have been unable to grapple with unpaid caregiving work, either in itself, or in reducing women’s options in the workforce and depressing their pay. Nor have labor rights reached paid care workers in precarious work. Social protection, where available, is frequently premised on a stigmatic view of recipients, whether caregivers or cared-for, and is increasingly conditional on undertaking formal work. As was starkly apparent during the Covid pandemic, caregiving, whether paid or unpaid, remains a fertile arena for exploitation, both for carers and the cared-for, especially for the most marginalized: migrant, racialized, gendered, poor, and working-class people. Such exploitation is only heightened when care is regarded as a matter for the market. Yet care is at the core of our society. 

This article explores the potential of regarding care as a constitutional issue, rather than addressing it solely within the legislative or regulatory space or leaving it to the family or the private market. I suggest that care is best regarded as a constitutional value, reflecting the reality of our interdependence, and functioning as a crucial counterweight to the fiction that individual freedom can be constituted independently of our social relations. Care as a constitutional value should be regarded as complementing express constitutional commitments to freedom, dignity, and equality, recognizing that relationships are constitutive of the self, and that individuals are partly constituted by society. This is in step with developments towards positive constitutionalism, challenging the premise that the sole function of constitutions is to protect individuals from state interference through largely negative entitlements. Just as freedom, dignity, and equality perform important expressive functions in a constitution, so the recognition of care, implicit or explicit, signals the foundational importance of care to everyone throughout our lives and to society’s ability to reproduce itself. Together with this expressive function, care as a constitutional value should permeate the interpretation of constitutional and other provisions, and enhance accountability for care-related decisions. 

It is not suggested that a constitutional recognition of care will, without more, guarantee that governments, courts, and societies will give care its appropriate value, any more than constitutional commitments to freedom, dignity, and equality, on their own, have brought greater freedom, dignity, or equality to society. Other changes might be needed in the political and institutional structures which embed a constitution. Such issues, which might include changes in judicial appointments, and a broader commitment by the state to redistributive policies, are beyond the scope of this article. Nor is it suggested that a constitution should set out a detailed set of rules in relation to care. Nevertheless, care as a constitutional value can have traction by infusing the interpretation of the constitution, legislation, and policy, requiring the state to pay attention to the value of care in its decision-making. Care as a constitutional value can also act as a catalyst for political activism, legitimating grassroots campaigns for better recognition of care. 

This article is normative, examining how constitutions should be shaped to encompass the foundational value of care in society. At the same time, the article is grounded in existing constitutions. Its exploratory and normative propositions are tested by drawing on constitutions and constitutional jurisprudence in four jurisdictions. Two are from the global south: India and South Africa; and two from the global north: Canada and the United Kingdom. I choose these because their legal systems are primarily in English; they share a colonial past and therefore a somewhat similar common law judicial reasoning process; they regularly cite each other’s jurisprudence; but they are at different developmental stages, have different judicial approaches and differing ways of socializing care, and are therefore interesting to compare. The United Kingdom differs in not having an entrenched, written constitution but gives statutory recognition to the European Convention on Human Rights (ECHR) and has previously incorporated EU law. I also refer briefly to the proposed constitutional changes relating to care in the Irish constitution, rejected in a referendum in 2024. The article does not, however, provide comprehensive case studies of these jurisdictions. Instead, it draws on constitutional texts and jurisprudence in these systems to test the concepts explored here. 

Section 2 examines the challenges of care in the context of the cluster of interlocking care relationships. Section 3 demonstrates the gaps and silos in existing regulatory structures, focusing on labor law and welfare law, as well as the increasing role of the private market. This sets the scene for the central question of what added value a constitutional perspective on care might bring. Section 4 considers the potential role of constitutions, arguing that care is best regarded as a constitutional value, and examining how this might be reconciled with judicial theories of interpretation and principles of the separation of powers. In Section 5, I imagine how care as a constitutional value might reshape judgments and legal principles in a selection of challenging cases in the four jurisdictions.

Gen AI uptake in the US

'The Rapid Adoption of Generative AI' (Federal Reserve Bank of St Louis Working Paper Series, 2024) by Alexander Bick, Adam Blandin and David J Deming comments 

Generative Artificial intelligence (AI) has rapidly emerged as a potentially transformative workplace technology. The large language model (LLM) ChatGPT debuted in November 2022, and by March 2024 the most common generative AI tools had been accessed more than three billion times by hundreds of millions of users each month (Liu and Wang, 2024). Several recent studies have found that generative AI improves worker productivity (Brynjolfsson, Li, and Raymond, 2023; Cui et al., 2024; Dell’Acqua et al., 2023; Noy and Zhang, 2023; Peng, Kalliamvakou, Cihon, and Demirer, 2023). Yet other studies expect only modest impacts of AI on work, depending on how well AI substitutes for complex job tasks (Acemoglu, Autor, Hazell, and Restrepo, 2022; Bloom, Prettner, Saadaoui, and Veruete, 2024). 

The ultimate impact of generative AI on the economy depends on how quickly and intensively the technology is adopted. Yet there is little systematic evidence of the extent to which generative AI is used at work and at home. Who uses generative AI, how much do they use it, and what do they use it for? 

This paper presents results from the first nationally representative U.S. survey of generative AI adoption at work and at home. Our data come from the Real-Time Population Survey (RPS), a nationwide survey that asks the same core questions and follows the same timing and structure of the Current Population Survey (CPS), the monthly labor force survey conducted by the U.S. Census Bureau for the Bureau of Labor Statistics (BLS). We benchmark our survey to national estimates of employment and earnings, ensuring representativeness. Prior research has used the RPS methodology to study work from home during the COVID-19 pandemic, among other topics (Bick and Blandin, 2023; Bick, Blandin, and Mertens, 2023). The survey structure allows us to easily add and modify questions and to track generative AI usage over time within a large representative sample of the U.S. workforce. 

We find that in August 2024, 39.4 percent of the U.S. population age 18-64 used generative AI, with 32.0 percent using it at least once during the week they were surveyed; 28.0 percent of employed respondents used generative AI at work, with most (24.2 percent) using it at least weekly; and 10.6 percent of the employed reporting daily usage at work. Generative AI use is more common outside of work, but less intensive. One in three respondents (32.7 percent) said that they used generative AI outside of work, but only 6.4 percent used it outside of work every day. ChatGPT is by far the most commonly used generative AI program, although many others are reported, including tools that embed AI inside standard office software packages (e.g., Microsoft Copilot). 

How does the speed and intensity of the adoption of generative AI compare with other technologies? Prior research shows that better technologies are adopted faster, and the speed and intensity of technology adoption across countries is highly correlated with economic growth (Beaudry, Doms, and Lewis, 2010; Comin and Hobijn, 2010; Comin and Mestieri, 2018). We compare the speed of adoption of generative AI with two other technologies - the personal computer (PC) and the internet - using data from the CPS Computer and Internet Use Supplement and the International Telecommunication Union (ITU). 

Generative AI has been adopted at a faster pace than PCs or the internet. Generative AI has a 39.5 percent adoption rate after two years, compared with 20 percent for the internet after two years and 20 percent for PCs after three years (the earliest we can measure it). This is driven by faster adoption of generative AI at home compared with the PC, likely because of differences in portability and cost. We find similar adoption rates at work for PCs and for generative AI. (Note that we cannot separate internet usage between home and work.) 

Some scholars argue that generative AI could reduce workplace inequality (e.g., Autor 2024). However, similar to PC adoption, generative AI usage is more common among younger, more educated, and higher-income workers. This is notable because the PC revolution was followed by rising labor market inequality, with computers substituting for routine “middle-skill” tasks while complementing high-skilled labor (Autor, Levy, and Murnane, 2003). The one exception is gender. We find that men are 9 percentage points more likely to use generative AI at work and 7 percent more likely to use it at home. In contrast, PC adoption at work was more common for women, possibly because of the transition between typewriters and word processors and the high female share of secretaries and other administrative occupations. 

Generative AI is used by workers in a broad range of occupations to perform many different workplace tasks. Generative AI adoption is most common in management, business, and computer occupations, with usage rates exceeding 40 percent. Still, one in five “blue collar” workers and one in five workers without a college degree use generative AI regularly on the job as well. This is consistent with Eloundou, Manning, Mishkin, and Rock (2024), who compare generative AI capabilities with the task content of work and find that many occupations will be affected. We asked workers whether they used generative AI to help them perform ten different job tasks, including writing, searching for information, interpreting data or text, coding, data analysis, and others. Among generative AI users at work, all ten tasks in our list had usage rates of at least 25 percent, with writing, interpreting, and administrative help ranked as the most helpful. 

Using responses to questions about both the frequency and the intensity of work usage, we estimate that between 0.5 and 3.5 percent of all work hours in the U.S. are currently being assisted by generative AI. If we assume that generative AI increases task productivity by 25 percent - the median estimate across five randomized studies - this would translate to increase in labor productivity of between 0.125 and 0.875 percentage points at current levels of usage. However, this calculation assumes that small-scale studies are externally valid and should be treated with caution. 

Our results line up broadly with other published surveys of generative AI usage. The most similar study to our is Humlum and Vestergaard (2024), who survey a representative sample of workers in eleven occupations in Denmark about their usage of ChatGPT at work. We find broadly similar usage rates in the occupations covered by both surveys, although the lack of clean correspondence between job codes across countries makes an exact comparison difficult.2 A Pew Research Center survey conducted in February 2024 found that 23 percent of adults in their survey reported ever having used ChatGPT, with higher rates of adoption for younger and more educated respondents (McClain, 2024). A Reuters online survey conducted in six countries in April 2024 found that 18 percent of U.S. respondents used ChatGPT at least weekly, compared to less than 10 percent in Argentina, Denmark, France, Japan, and the United Kingdom (Fletcher and Nielsen, 2024). 

Our study shows that the generative AI is being adopted much faster than previous waves of AI technology. McElheran et al. (2024) find that less than 6 percent of firms had used frontier AI technologies such as machine learning, computer vision, and natural language processing in 2017. Similarly, Acemoglu, Autor, Hazell, and Restrepo (2022) find that only about 3 percent of U.S. firms had adopted predictive AI tools between 2016 and 2018 and Humlum and Meyer (2022) found similarly low adoption rates in Denmark in 2017. Generative AI may be adopted more rapidly because it targets consumers rather than firms. Bonney et al. (2024) report firm-level AI adoption using the Business Trends and Outlook Survey (BTOS), a Census Bureau study that asked firms about AI usage between December 2023 and February 2024. They found that AI adoption rose over the survey period from 3.7 percent in December to 5.4 percent in February, which is a rapid rise but still far below our estimates. Like Bonney et al. (2024), we also find that generative AI usage is higher in large firms. Still, gaps by firm size are far too small to explain the discrepancy between firm and worker usage, suggesting that workers are using generative AI even in firms that haven’t officially adopted it

Pseudolaw

R v Kirsten (a pseudonym) [2024] NSWDC 401 offers an outstanding account of judicial courtesy and the difficulties of dealing with pseudolaw exponents. 

 The judgment states 

 The accused indicated that rather than the name set out in the indictment she would only answer to the name “Kirsten a living woman” or “Kirsten... not her legal fiction name”: Tcpt, 5 August 2024, pp 19 and 42. I indulged her. 

At earlier call-overs she had advised the Court that she would not be legally represented. At trial she said she was not representing herself but “presenting on behalf of herself as a living woman”: Tcpt, 5 August 2024, p 37. I indulged her. 

When the charge was read in front of the accused and the jury panel, she refused to enter a plea. She said: “I need to tell everyone here again in the presence of you jury potentials that I caused this court case, it wasn't the prosecution or the Department or the Court who caused this court case. I'm a living woman, I'm not a legal name, fiction and the matters that bring us here today is partly to address that ongoing problem that in society here of many, many people suffer, we have many, many what we would call unfair cases in every day where children are removed from loving homes on the basis of what's written on a piece of paper where there's not much evidence provided, if any, and where the mums and dads that come in are treated as if they're infants or otherwise incapable of representing themselves.”: Tcpt, 5 August 2024, p 42. 

I entered a not guilty plea on her behalf. A jury of 12 was empanelled. During the empanelling process the accused loudly questioned the fairness of the ballot as most of the jurors called initially were women. She exercised her three challenges. Three female potential jurors were excused. The solicitor advocate, from the Director of Public Prosecutions appearing for the prosecution, indulged her by challenging another two women. A jury of seven women and five men swore oaths or affirmations that they would give a true verdict according to the evidence. 

During the course of the next five days of the trial the accused repeatedly interjected, directed personal insults to me and others, harassed witnesses (including her own sons), refused my directions and orders and talked over me excessively. She repeatedly asserted she was: (a) “In control of the proceedings”; and (b) That I was denying her what she called “procedural fairness”. 

During the course of the 5-day trial, she was cautioned repeatedly that her behaviour was in contempt of court. 

Although I was initially concerned about her fitness to plead it soon become clear that her disobedience was wilful. This was confirmed when she addressed the jury at the end of the trial: see par [217] below. 

I soon formed the opinion that Kirsten was deliberately trying to undermine the trial process in order to the secure a discharge of the jury and a delay in hearing the serious allegation made against her by forcing me into heavy handed action that would make presentation of her defence impossible, thus rendering the trial unfair. 

Accordingly, despite her constant provocations, I indulged her. I also repeatedly asked the jury for their indulgence. 

By Day 5, after the close of the prosecution case, and after giving her the opportunity to present her case, it became apparent that she was seeking to prevent the trial concluding. I again cautioned her that I had the power to deal with her for contempt of court. I particularised those contempts. I gave her the opportunity to seek legal advice. She continued to abuse me and talk over me, further demonstrating her contempt for the Court and its processes. I charged her with contempt of court and had her taken into custody. 

I then offered her the opportunity to address the Court from the dock in a respectful manner. She continued with her attempts to disrupt the proceedings. I had her removed from the Court and made orders that she appear via video link from the cells: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BA. 

The trial proceeded to verdict. She was convicted. I then finalised the contempt proceedings. Kirsten was given an opportunity to defend her actions. Rather than do so she continued with her contemptuous behaviour. I convicted her, but in all the circumstances I felt the only penalty I should impose was that she be held in custody until the rising of the court. 

Her sentence proceedings were adjourned until 18 December 2024. A prosecution detention application was granted. As a sentence involving full-time imprisonment was inevitable, bail had to be refused. There were no special or exceptional circumstances shown to justify a decision to grant bail: Bail Act 2013 (NSW), s 22B. 

Kirsten has indicated that she intends to appeal her conviction. Notwithstanding her assertion that the court’s rules and procedures do not apply to her, she has a right to appeal her conviction and assert error in my decisions: Bradley v The Crown [2020] QCA 252; Maher v R [2021] NSWDC 212 at [9]. During the course of the hearing, I made a number of procedural rulings and legal determinations. The Court staff who prepared a transcript of these proceedings did a magnificent job but given Kirsten's disruptions, and as she constantly talked over me and others, the transcript is difficult to decipher, some rulings were unable to be completed and others required elaboration. 

Accordingly, I now set out some of the critical rulings made during the trial and my reasons for making those rulings. It is important that the reasons for those decisions be put into intelligible form so that what was said and done in this Court can be understood and, if necessary, reviewed. ... 

A judge can go only so far to prevent an accused prejudicing their own case. A judge can advise but cannot require an accused take advice or prevent them acting contrary to that advice. A judge should however, attempt to ensure that the jury focus on the issues and not on irrelevancies. 

At the end of Day 3 as the accused spoke over me, I sought to reduce the potential for prejudice: “Can I just to reinforce two things. I am acutely conscious that we have taken you from your other lives and you should get back to them as soon as possible. I also appreciate that sometimes Kirsten doesn’t listen or doesn’t want to listen. That when I say things, she does the exact opposite. I hope that that has not disturbed you or my insistence that things happen have not disturbed you, but again, I just ask that you continue to focus on the evidence and the material that is relevant to the charge. And you have the formal charge in the indictment and the elements of that charge are set out in it, and I will, when all of the evidence is over, give you a document setting out - breaking that down into what has to be proved beyond reasonable doubt for the prosecution to bring the case and the accused has no obligation to prove her innocence or rebut that case, they have to prove the case beyond reasonable doubt and I’ll keep your focus on that ... as she doesn’t - she can’t hear what I’m saying because she won’t stop talking: Tcpt 7 August 2024 p 321. 

Similar directions were given regularly during the trial: see pars [70], [147] and [166] below. 

Insulting conduct 

At a number of times during the trial and in front of the jury, the accused directed personal insults toward me. For example, “There's a talking parrot in the corner, or the barking dog ...”: Tcpt, 9 August 2024, p 444. 

An insult directed to a judge in open court may amount to a contempt of court as to wilfully insult a judge in the course of proceedings in court necessarily interferes, or tends to interfere, with the course of justice: Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682 at [689]; Ex parte; Tuckerman Re Nash [1970] 3 NSWR 23 at [27]. The critical question is not how the particular judge feels about the insult, but rather whether the conduct undermines the integrity of the court as an institution and thereby weakens the authority of the court and tends to interfere with the administration of justice: R v Davison (1821) 4 B & Aid 329; Ex parte Beltanto; Re Prior [1963] SR (NSW) 190 at [202]; Rich v Attorney General [1999] VSCA 14; (1999) 103 A Crim R 261 (Calloway JA) at [55]; Prothonotary of the Supreme Court v Simon Smiley (Supreme Court (NSW), 8 March 2005 unrep); Prothonotary of the Supreme Court v Hall [2008] NSWSC 994; Prothonotary of the Supreme Court v Fajloun [2016] NSWSC 927. 

Consideration 

Judges should not be thin-skinned. We are acutely conscious of how stressful litigation is. We are acutely conscious of the stresses imposed on a person defending themselves. Not everyone has the capacity to control their emotions. Words are sometimes said in the heat of the moment. Words that are immediately regretted. Here the words were used deliberately. They were not regretted. They were intended to distract the court and produce a reaction that might later be seen to be biased against the accused or undermine the perception of the impartiality that is fundamental to a fair trial: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. I chose not to rise to the ‘bait’. The administration of justice is robust. The insults were both pathetic and bathetic . To respond to them with force or outrage would have added ‘fuel to a fire’. They did not undermine the integrity of the court as an institution. The jury saw through them. The laugh they had was on the accused not the Court. 

Termination of accused's cross-examination of witness 

A judge has a duty to assist an unrepresented accused. A judge also has a duty to every witness called in the proceedings. Section 41 Evidence Act 1995 (NSW) provides that: “The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question")- (a) is misleading or confusing, or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or (d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).” 

During the course of the trial the accused asked many improper and disallowable questions. She asked them of every witness called, including her teenage son, who she called in her own case. I was forced to either, disallow questions put or inform the witness that they need not be answered. More often than not, given the accused refused to formulate proper questions, I was forced to explain to the witness they did not need to respond to an assertion that was not a question. ... 

The accused was brought back to Court and placed in the dock. She was formally charged with contempt of court and particulars provided. She was advised: “Ms [Deleted] who prefers to be known as ‘Kirsten’. You are hereby charged with contempt of court, in that, on 9 August 2022 at Wollongong in the Wollongong District Court, in proceedings before me between You and the Director of Public Prosecutions for the State of New South Wales (the Crown), you did conduct yourself in a manner that had a real tendency to interfere with the administration of justice. 

The particulars of the charge are-- 1. That you have, for the past four days, persistently disobeyed directions of the Court, the orders of the Court, and requests of the Court. 2. You have refused to acknowledge the authority of the Court. 3. You have insulted the judge and others in Court on numerous occasions. 4. Against that background, this morning: a. You refused my requests not to you talked over me. b. You interfered with the conduct of the proceedings. c. You sought to of your own volition, adjourn the proceedings. d. You sought to leave the Court without pausing in your speech so as to enable the trial to properly proceed. e. Despite my showing you all indulgences. You were given the opportunity to desist and comply. The transcript will provide further particulars. You have a right to answer the charge. I will give you an opportunity if you wish, to seek legal advice. If you stop talking, apologise and give me an undertaking that you will allow the proceedings to continue without interruption. I will consider your release. At the moment, I determine that you be kept in custody until you either apologise, or stop your disruptions.”: Tcpt, 9 August 2024, pp 452-454. 

I then asked, “Do you wish to seek to adjourn the charge of contempt or make a defence to it?”: Tcpt, 9 August 2024, p 455. I then directed that pending disposal of the charge; she be kept in custody as the Court determines. 

That bland statement of particulars cannot capture what actually occurred in Court. Nor does it set out her continuing contempt of court. What follows is a transcript of my attempt to particularise the contempt: 

“HIS HONOUR: Yes. So, she is now to be brought before the Court. Put her in the dock. Thank you. Take a seat in the dock. 

ACCUSED: Is the jury coming back or-- 

HIS HONOUR: Take a seat in the dock, you are under arrest. 

ACCUSED: I wasn't aware I was under arrest. 

HIS HONOUR: You weren't listening when I arrested you. 

ACCUSED: Well, it was a bit hard to know what was going on. I was being manhandled against my consent. 

HIS HONOUR: Kirsten [Deleted] who prefers to be known as Kirsten. 

ACCUSED: I am not Kirsten [Deleted]. I don't know who you're talking to. 

HIS HONOUR: You are hereby charged with contempt of Court-- 

ACCUSED: Who has provided evidence that it had anything to do with me? 

HIS HONOUR: --in that, on 9 August 2022 at Wollongong in the Wollongong District Court, in proceedings before me between you and the director of public prosecutions or the state of New South Wales or the Crown, you did conduct yourself in a manner that had a real tendency to interfere with the administration of justice. 

ACCUSED: Never mind your conduct, your Honour. 

HIS HONOUR: The particulars of the charge are-- ACCUSED: Never mind your conduct. 

HIS HONOUR: --that you have, for the past four days, persistently disobeyed directions of the Court, orders of the Court, requests of the Court. You have refused to acknowledge the authority of the Court. It is against that, and insulted the judge and others in Court on numerous occasions. 

ACCUSED: It's all a matter of interpretation and opinion your Honour, that-- 

HIS HONOUR: It is against that background, that this morning when you refused-- 

ACCUSED: --and that's what the jury is supposed to witness. But you don't want the jury to be able to witness this harassment. 

HIS HONOUR: When you talked over me-- 

ACCUSED: Because it was supposed to be before a jury, whatever happens here. 

HIS HONOUR: --when you interfered with the conduct of the proceedings-- 

ACCUSED: You are hiding from a jury-- 

HIS HONOUR: --when you sought to of your own-- 

ACCUSED: --what you are doing behind closed doors with me. 

HIS HONOUR: --volition, adjourn the proceedings and leave the Court without pausing-- 

ACCUSED: We cannot proceed with my chat with my son-- 

HIS HONOUR: --in your speech to enable the trial to properly proceed-- 

ACCUSED: --until there is a jury before us. 

HIS HONOUR: --and having shown you all indulgences. 

ACCUSED: This is against my consent for there to be no witnesses here-- 

HIS HONOUR: You were given the opportunity to desist-- 

ACCUSED: --from my people peers. We will have to-- 

HIS HONOUR: --or comply or-- 

ACCUSED: --call this all fraudulent because it is against my consent to be withheld or detained. 

HIS HONOUR: And the transcript will provide further particulars. 

ACCUSED: I am not under your statutory jurisdiction. It's not law. They are policies. 

HIS HONOUR: I direct you have a right to answer the charge. 

ACCUSED: You haven't even proceeded fairly within your own legal belief that it's lawful. 

HIS HONOUR: And I will give you an opportunity if you wish, to seek legal advice. 

ACCUSED: Yes, you would have to say that, but you know I am here-- 

HIS HONOUR: I can-- 

ACCUSED: --to make remedy as the one who is a living woman-- 

HIS HONOUR: --if you stop talking, apologise-- 

ACCUSED: --who is not what you perceive as a-- 

HIS HONOUR: --and give me an undertaking-- 

ACCUSED: --dead entity, talking to me as a legal fiction. 

HIS HONOUR: --that you will allow the proceedings to continue without interruption. 

ACCUSED: This is just a show of ridiculousness. 

HIS HONOUR: Then I will consider your release, right? 

ACCUSED: So, proceed with your show. 

HIS HONOUR: At the moment, I determine that you be kept in custody until you either apologise or stop your disruptions. 

ACCUSED: Never. 

HIS HONOUR: All right. Can we have the jury brought in, please? 

ACCUSED: You can do as though wilt in your-- 

HIS HONOUR: And in the meantime, directions can sort out that she has been formally charged with contempt-- 

ACCUSED: --sinister attitude. 

HIS HONOUR: --and she has been-- 

ACCUSED: You think you are above the law, and you have all your men and women here-- 

HIS HONOUR: You have been orally advised. 

ACCUSED: --acting as your-- 

HIS HONOUR: Do you wish to seek to adjourn-- 

ACCUSED: --as your-- 

HIS HONOUR: --the charge or-- 

ACCUSED: --you know, gophers, because they get paid to-- 

HIS HONOUR: --make a defence to it? 

ACCUSED: --lock people up at your will, against their consent, and-- 

HIS HONOUR: Pending on disposal of the charge, I direct that you be kept in custody-- 

ACCUSED: --you are calling me someone I am not. 

HIS HONOUR: --as the Court determined. 

ACCUSED: This does not seem to be me. I'm not [Deleted]. I don't know who you're talking about. Do you have any evidence that this refers to me? Tcpt, 9 August 2024, pp 452-455:

Kirsten chose to represent herself. Kirsten chose not to seek advice from lawyers or any guidance from me about her conduct of her trial. She chose not to listen. She chose to obstruct the trial. She chose to proceed on the basis that the laws of New South Wales did not apply to her. She chose to be rude and offensive to the prosecution, witnesses, the judge and the jury. She did so in the presence of her jury. She was fit to be tried. Her actions were deliberate and considered. She was, in all respects, “the maker of her own misfortune”: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [184].

Sovereignty Signifiers

'Symbolic Decolonization and Postal Politics: Sovereignty, Secession and the Stamps of Pseudo-States in Sub-Saharan Africa, c.1960-1979' by Gary Baines in (2024) 2(26) Monde(s) 113-134 comments 

Since its inception, the Universal Postal Union (UPU) has designated its members as “countries” and “territories”. Historically, stamp-issuing members have included non-self-governing entities such as colonies, protectorates, and mandates that were controlled by an imperial or metropolitan power [1]. Following decolonization, the UPU’s membership swelled with the admission of a slew of newly independent nation states. Yet, contrary to the conventions of international relations in the post-colonial world, the UPU has avoided describing its members as “states”. This is arguably a manoeuvre designed to allow the agency to sidestep politically sensitive disputes regarding sovereignty. Taking its cue from United Nations (UN), the UPU has seldom admitted secessionist or self-proclaimed independent states as members. But such states have issued stamps in order to assert their sovereignty so as to further their claims to international recognition in the comity of nations. However, stamps are only fully invested with sovereign power if they are accepted as valid receipts for prepayment for postage on a reciprocal basis with other states [2]. In the case of secessionist or unilaterally independent states in 1960s Sub-Saharan Africa, the UPU refused to recognize their stamps and subjected their mail to sanctions. These measures challenged their sovereign claims. 

Sovereignty is a discursive claim rather than a factual description of realities on the ground [3]. As such, it is contested and contingent [4]. The struggle for sovereignty occurs not only in the political sphere but also in the realm of symbolism. The creation and adoption of new national symbols such as flags and anthems were a critical part of the decolonizing process in former sub-Saharan African colonies which had previously been denied sovereignty. Kenrick refers to efforts to establish the trappings of new sovereign states as symbolic decolonization [5]. His study of the repertoire of symbols created by Rhodesia after its Unilateral Declaration of Independence (UDI) is instructive but makes no reference to stamps. However, Brownell has authored an excellent essay on how the visual rhetoric of Rhodesian stamps projected the white settler state’s claims to sovereignty [6]. Hammet explains how South Africa’s “Bantustans” with their “constrained sovereignty” used stamps to express their nationhood via the tropes of territoriality, identity, and political authority [7]. And Inyang shows that Biafra employed similar signifiers on its stamps to invoke the promise of sovereignty [8]. This paper will suggest that stamps issued by Katanga, Biafra, and Rhodesia to commemorate independence signalled to the world that they had achieved statehood. However, the sovereign claims of the three would-be states were rejected on the grounds that they were not entitled to exercise authority within their territories nor act independently of outside authorities. 

While diplomatic recognition is the prerogative of individual states, collective non-recognition went a long way in determining whether states were accepted in the family of nations. Katanga, Biafra, and Rhodesia were never accorded recognition by the international community. They were not admitted as members of the UN and consequently enjoyed no standing in the UPU. Exclusion of these pseudo-states from the UPU meant disputes over matters such as the franking of stamps and the delivery of mail, and the disruption of international postal services. Much against its better judgment, the UPU’s Directorate became party to the politicization of these services. This much was apparent from the imposition of postal sanctions designed to prevent the reciprocal exchange of mail with these pseudo-states. This paper demonstrates that the contestation over the validity of the pseudo-states’ stamps and the distribution of their mail was part and parcel of their struggle for sovereignty.

'The Shibboleth of Sovereignty' by Martin Loughlin and Stephen Tierney in (2018) Modern Law Review comments 

The legal doctrine of parliamentary sovereignty is such a fundamental tenet of constitutional belief that we commonly assume it to be of ancient provenance. In reality, it is a late-nineteenth century creation. Its author, the Victorian jurist Albert Venn Dicey, presented it as the central element of a work that sought to shift the basis of British constitutional thought. Noting that hitherto the constitution had been treated as a historical phenomenon, he argued that constitutional scholars, having been seduced by speculative ideas, had been drawn into a ‘maze in which the wanderer is perplexed by unreality …, by antiquarianism, and by conventionalism’.  Criticizing those who regarded the constitution as an object of veneration, he maintained that the scholar’s duty must not be to eulogise but merely to analyse and expound. 

Dicey argued that a scientific explanation could be advanced only by establishing a new and autonomous field, that of ‘the law of the constitution’. Noting that Blackstone in his influential Commentaries on the Laws of England of 1765 nowhere uses the term ‘constitutional law’, Dicey claimed to have discovered a new branch of legal knowledge. Deploying a legal positivist method, he defined this new subject as one concerned to analyse ‘all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state’. Having re-orientated the object of study towards the rule order of the British state, Dicey confidently asserted that the basic rule of the constitution is expressed in ‘the doctrine of parliamentary sovereignty’. This is the rule that the Crown-in-Parliament ‘has, under the English constitution, the right to make or unmake any law whatsoever; and, further, that no person or body is recognised ... as having the right to override or set aside the legislation of Parliament’. This foundational doctrine was presented as an objective and technical rule about the relative authority of sources of law. 

Dicey’s great achievement is to have been the first to apply a rigorous juristic method to the study of the British constitution. This provided subsequent generations of lawyers with a clear and relatively simple framework of analysis. But that is not all: his discovery of the ‘law of the constitution’ also caused subsequent generations of lawyers, despite continuing to pay lip service to the evolutionary character of the British constitution, to regard the underlying basic law as of timeless authority. Notwithstanding developments since the late-nineteenth century which have transformed the character of modern government, lawyers continued to uphold his account of the basic rule. 

Continuing adherence to Dicey’s account, we argue, is now creating a ‘hopeless confusion both of language and of thought’ which flows from a failure to distinguish between the particularity of Dicey’s legal doctrine and the general concept of sovereignty. And the failure to recognise that his legal doctrine is inextricably tied to a particular political belief about authority is causing constitutional lawyers to become ‘perplexed by unreality’. 

We aim to substantiate these claims by differentiating Dicey’s legal doctrine from the general concept of sovereignty (sections III and IV) and then examining the contemporary consequences of this conflation (section V). But the political basis of the legal doctrine must first be explained (section II). Our key point is that no sooner had Dicey finished criticizing those who eulogise rather than analyse than he revealed that his fundamental legal doctrine rested its authority on a particular political belief, one which he treated as an article of faith. He hinted at this when noting that ‘the omnipotence or undisputed supremacy throughout the whole country of the central government’ is a feature that has ‘at all times since the Norman Conquest characterised the political institutions of England’. But it came more clearly into view when, within a year of publishing The Law of the Constitution, he published the first of his three books opposing home rule in Ireland. In this work Dicey invoked sovereignty not as a legal doctrine but explicitly as a political precept. Here he argued that home rule, which evidently does not undermine the legal doctrine of parliamentary sovereignty, is nevertheless ‘a plan for revolutionising the constitution of the United Kingdom’. This type of claim can only stem from a political belief of the necessity of maintaining untrammelled authority at the centre. ‘Each successive generation from the reign of Edward I onwards’, he later explained, ‘has laboured to produce that complete political unity which is represented by the absolute sovereignty of the Parliament now sitting at Westminster’. This ‘political unity’ expresses what he called the ‘instinctive policy of English constitutionalists’. Sovereignty is here not being expressed as a formal doctrine; it is a political conviction about the need for an unrestricted central power. 

Notwithstanding his claim to be dispassionately presenting the law of the constitution, Dicey was making a politico-legal argument about sovereignty. His formal legal doctrine is inextricably tied to a substantive political conviction. And it is this politico-legal conception, we argue, that rapidly acquires the status of an article of faith among the British governing class. In blending the political and legal aspects of sovereignty in such an inchoate manner, Dicey presented as ‘the very key-stone of the law of the constitution’ a thoroughly ambiguous conception of sovereignty. Subsequent changes in the conditions of governing might cause us to question those political assumptions and in turn to qualify the meaning and status of the legal doctrine. But this has not happened; Dicey’s unacknowledged and highly particular conception of sovereignty is now preventing the British from thinking creatively about constitutional matters.