Colonialism and the health transition: Aboriginal Australians and poor whites compared, Victoria, 1850–1985

This paper presents the results of the first two longitudinal historical cradle-to-grave datasets constructed in Australia: the Aboriginal population of the state of Victoria, reconstituted backwards using genealogical research and vital registrations, 1835–1930; and an impoverished European population born at the Melbourne Lying-In Hospital, 1857–1900 and traced until 1985. It investigates the hypothesis that the health transition in indigenous people was different from that of the dominant non-indigenous population. Both of these studied sub-populations were highly stressed, resulting in high infant mortality and persistent tuberculosis mortality. The Aboriginal population suffered the additional burdens of racism and social exclusion, even though after the passage of the 1886 ‘Half-Castes Act’, the majority of Aboriginal Victorians were legally ‘white’. The impact of that legislation and the systematic exclusion of Aboriginal Victorians from federal entitlements in the twentieth century sent the Aboriginal health transition into reverse. The contrasting fates of poor whites and ‘unofficial blacks’ during the health transition demonstrate the health burdens of inequality and racial discrimination, and reveal that ‘the gap’ in life expectancy between Indigenous and non-Indigenous Australians is a historical product of long-term government policy and exclusion from citizenship and its entitlements.     

Liberal Forms of Governing Australian Indigenous Peoples

This article considers three different historical events from the point of view of their connections to aspects of the history of liberal political reason: the actions of the British in New South Wales in the early nineteenth century in their claim to sovereignty over Indigenous lands; the establishment of Aboriginal missions and subsequent removal of Aboriginal children in the early twentieth century; and the Northern Territory Emergency Response and suspension of the Australian Commonwealth Racial Discrimination Act (1975) early in the twenty‐first century. The aim is to point to gaps between present claims about liberalism and ‘actual existing liberalism’, review the basis for examining accounts of governance deploying ‘authoritarian liberalism’ and ‘race war’ as central concepts, and call into question the Northern Territory campaign as an ‘exceptional’ event.     

‘A confession of ignorance’: deaths from old age and deciphering cause-of-death statistics in Scotland, 1855–1949

A large amount of the research undertaken in an attempt to discover the reasons underlying the late nineteenth- and early twentieth-century mortality decline in Britain has relied on the statistics published by the Registrars General. The processes by which individual causes of death are recorded and then processed in order to create the statistics are not, however, well understood. In this article, the authors build on previous work to piece together a time series of causes of death for Scotland, which removes many of the discontinuities encountered in the published statistics that result from the Registrar General deciding to update the nosology, or classification system, which was being used to compile his figures. Having regrouped individual causes of death to ‘smooth’ the time series, the authors use the new groups to examine the changing causes of death in Scotland for selected age groups, before turning to undertake a detailed examination of mortality amongst those aged 55 or more. The authors find that when deaths from ‘old age’ in the latter age group are separated from other ‘ill-defined’ causes, it becomes obvious that there was a ‘rebranding’ of cause of death. The authors then use individual-level data from two Scottish communities to further dissect the roles played by ‘informants’ and ‘doctors’ in this rebranding, in order to see how these roles may have altered over time and what the consequences might be for one's view of how mortality changed in Scotland between 1855 and 1949. Finally, the authors argue that their findings have important implications for some of historical demography's most prominent theories: the McKeown thesis and the theory of epidemiological transition.     

Aboriginal youth with foetal alcohol spectrum disorder and enmeshment in the Australian justice system: can an intercultural form of restorative justice make a difference?

Aboriginal youth with Foetal Alcohol Spectrum Disorder (FASD) are overrepresented in the justice system. FASD results from prenatal alcohol exposure, and may lead to cognitive, social and behavioural difficulties that increase susceptibility to contact with the justice system. This paper explores the potential contribution of restorative justice in creating diversionary options for Aboriginal youth with FASD, and related cognitive impairments, to prevent enmeshment in the justice system. The lesson from work in Australia and New Zealand is that restorative justice and Indigenous justice are different, but not irreconcilable, projects. We suggest that there is the potential for creating rich intercultural engagement spaces ‘in between’ restorative practices and Indigenous processes: provided that restorative justice – as an essentially Eurocentric paradigm of the Global North – does not attempt to colonise Indigenous justice. An appropriate model would have Aboriginal people engaged in the planning and management of diversionary options, with greater focus on diversion into place-based, Aboriginal owned and managed services. Restorative justice needs to engage with the historical demands of Indigenous peoples for their land and their way of life; though constantly imperilled by forces of neo-liberalism and colonialism, Indigenous peoples remain resilient and provide a vision of an alternative to Euro-modernity.     

Public Health as Social Justice? A Qualitative Study of Public Health Policy-Makers’ Perspectives

Social justice is often described as the ‘foundation of public health.’ Yet, outside of the theoretical literature the polysemous nature of the concept is rarely acknowledged. To complement recent contributions to normative theory specifically motivated by questions of social justice in public health, this study explores public health policy-makers’ perspectives on the meaning and role of social justice in their practice. This study involved twenty qualitative, semi-structured interviews with public health policy-makers recruited from two programmatic areas of public health [chronic disease prevention (CDP) and public health emergency preparedness and response (PHEPR)] within public health organizations in Canada. Participants’ perspectives appeared to be influenced by the perceived goals belonging to the programmatic area of public health in which they practiced. Those involved in PHEPR indicated that justice-based considerations are viewed as a ‘constraint’ on the aims of this area of practice, which are to minimize overall morbidity and mortality, whereas those involved in CDP indicated that justice-based considerations are ‘part and parcel’ of their work, which seeks primarily to address the unique health needs of (and thus, disparities between) population groups. The aims and activities of different programmatic areas of public health may influence the way in which social justice is perceived in practice. More ought to be done (in theory and in practice) to interrogate how the unique contributions that individual programmatic areas of public health can and should cohere in order to realize the broader aim that public health has as an institution to promote social justice.

     

Economic freedom and economic rights: Direction,significance and ideology

The discussion here takes stock of and analyses the way in which ideas of economic freedom and basic economic rights have evolved during the last half century to generate legal discourse and legal action, and with what effect, with particular reference to Europe as a site for such developments. It is necessary to probe the understanding and purpose of such ‘rights talk’ and also to set the discourse in relevant ideological contexts. For the purpose of this exercise, a broad distinction is drawn between two major categories of economic right. The first category may be broadly described as ‘integration rights’—entrepreneurial in character, forward‐looking and opportunistic in a historical context of supranational integration and trade liberalisation. The second category, in contrast, may be termed ‘vulnerability rights’; these are more protective in character, and serve to enhance the opportunities of the economically disadvantaged, those sections of the population at risk of social exclusion and poverty. An assessment is made, on the one hand, of the achievement of the movement to exploit integration rights, and on the other hand, the prospect for the mobilisation and assertion of vulnerability rights in the wake of governmental policies of austerity.     

Women’s age at last childbearing and its determinants: a case study of Antwerp (Flanders,Belgium) on the basis of the multi-source COR* historical sample

Declines in the age at last childbearing in the first demographic transition reflected conscious changes in fertility behaviour during that period, in particular efforts to limit the total number of children. Such fertility limitation behaviour was the net result of ‘cultural causal factors’ on the one hand and ‘structural and economic causal factors’ on the other hand. This paper analyses the evolution of women’s age at last childbearing by reconstructing women’s life histories based on data from the multi-source COR* historical sample for Antwerp in the period 1846–1920. The paper also assesses the causes of this evolution through a number of theoretically grounded structural/economic, cultural and life course determinants, placing these concepts in a macro-micro framework of methodological individualism. For this purpose, in the first place a Kaplan-Meier analysis is applied to 10-year birth cohorts; a proportional hazard model is also applied to three different birth cohorts (mothers born before 1840; born in the period 1840–1859; and born after 1860); and a range of cultural and life course determinants are analysed, including women’s literacy status, marriage witness characteristics, the seasonality of marriages and births, and birth histories. The analysis confirms the decline in the age at last childbearing especially in the late cohort, and also highlights inter-cohort differences caused by cultural and life course determinants.     

A Fresh Look at Stock Market Short‐termism

In this article, we develop a novel understanding of stock market short‐termism as a social phenomenon. Contrary to formerly popular academic belief, short‐termism is a problem that is highly unlikely to be structurally self‐correcting. An important driver of short‐termism typically elided within standard legal‐academic analyses is the informational centricity of modern stock markets, and resulting pressure on corporate managers to generate fresh ‘news’ indicative of perceived business ‘progress’. We highlight the growing enthusiasm of policy‐makers for a discriminatory ‘two‐tiered’ approach to public company investor relations. Accordingly, long‐term and committed investors are expected to be brought into the company's governance ‘inner circle’, while other investors are implicitly relegated to lowertier ‘outsider’ status. We argue that this supports a discriminatory approach to the allocation of voting entitlements in newly listing companies, enabling committed investors to develop cooperative and sustained governance relations with management unencumbered by ‘outside’ stock market pressures for short‐term financial‐performance outcomes.     

Unequaled Acts of Injustice: Pan‐Indigenous Encounters with Colonial School Systems

This essay reviews a recent film dealing with the forced removal of Australian Aboriginal children from their communities by the Australian government for the best part of 60 years. It uses the review to draw parallels between Australian Aboriginal ‘stolen generations,’ the colonial schooling experienced by the indigenous Maori of New Zealand, the ‘mission school syndrome’ suffered by First Nations people in North America, and the routine punishment for language offenders experienced by the Coorg people from India. Anachronistic as they may seem, such racist policies are not relics of the past but features of modern governance that have only been abandoned relatively recently. In some cases, their ramifications are only just beginning to be felt. Some of the implications for criminology are touched upon. The film is situated in the context of existing video and literary materials dealing with the issue of schooling as a tool for assimilation that readers may find equally informative.     

‘All About That Bass’? Is non‐ideal‐weight discrimination unlawful in the UK?

People of non‐ideal‐weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self‐motivated to make good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers only a very tenuous route for protection, because the Act is based largely on a ‘medical model’ of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely to be enforceable in practice only against state employers. This situation leaves a gap in the law which is remediable only by legislative reform.     

The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted (mis)representation of Nazi law and how this distortion is manifested within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system.     

The Law’s ‘Majestic Equality’

Anatole France’s The Red Lily is best known for this ironic aphorism: ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ The laws mentioned in this aphorism are open to two criticisms. The first criticism is that they forbid conduct that oughtn’t to be forbidden. The second criticism is that they unfairly place greater burdens of compliance on some (here, the poor) than on others (here, the rich). It may be onerous for the poor to comply with the law against, say, sleeping under bridges; not so for the rich. It is this second criticism that I read France as expressing, and it is the reach of this criticism that I explore in this essay. Specifically, I want to ask whether the second criticism may apply to a law even if the first criticism does not – whether there can be laws that are good in the sense that they forbid behavior that genuinely ought to be forbidden, but that are nonetheless unfair in the distribution of compliance burdens they yield. Some examples may tempt us to say ‘no.’ It may be more burdensome for thrill-seekers than for the rest of us to comply with laws against speeding, but that does not make speeding laws unfair. But I argue that the answer is ‘yes.’ Good laws can, and surprisingly often do, yield unfair distributions of compliance burdens. I conclude the essay by showing how remedies for this sort of unfairness might work.     

Getting the stories straight: allowing different voices to tell an ‘effective history’ of special education law in the United States

Traditional historical narratives can serve to mask injustices that exist beneath a celebratory surface of statistics, legislative enactments, and judicial decision-making that may present an impression of continuous progress. With this understanding, this article adopts a framework applying Foucault's distinction between ‘traditional’ and ‘effective’ history to examine the legal foundations of special education in the United States. The ultimate goal of this article is to challenge the assumption that ‘societies follow a developmental pathway, away from superstition, prejudice and cruelty, and in the direction of greater enlightenment and humanity.’ The comparison of ‘traditional’ and ‘effective’ historical narratives is necessary to illustrate some basic—and perhaps flawed—assumptions inherent in traditional narratives.     

The Law of Police Entrapment: Critical Evaluation and Policy Analysis

This article provides a critical analysis of the law of police entrapment and proposes a new foundation for this law. The article shows that the ‘shift of scene’ assumption underlies existing and proposed legal tests for the legitimacy of entrapment. According to this assumption, in some identifiable cases the defendant would have committed a similar offence at a different time and location absent police entrapment. In these cases, entrapment is morally and economically insignificant and hence legitimate. Using probabilistic analysis, the article advances the argument that the ‘shift of scene’ assumption is misguided. Entrapment actually changes (usually raises) the probability of commission, and hence also the defendant’s punishment expectancy, in almost all cases. This increase is hard to justify on grounds of justice or on economic grounds. The article then proposes a different basis for the analysis of entrapment, building on the idea of reallocation of burdens: where the defendant creates particularly heavy burdens that go beyond the offence’s harm expectancy, it is justified to increase his punishment expectancy through entrapment. Furthermore, entrapment should be conceptualized as a mitigating factor, thus allowing the courts to ‘correct’ exaggerated or undue increases in the defendant’s punishment expectancy.     

The advice lawyers give themselves: the Canadian Bar Association's campaign for timekeeping in the mid-twentieth century

This paper is a historical analysis of how the Canadian organized bar urged lawyers to adopt strict timekeeping practices and use time as the basis for their legal fees. The Canadian Bar Association's compilation of data on the legal profession in the late 1940s–the collection of ‘facts’, the ‘scientific’ nature of this collection–foreshadowed the way that the organized bar would couch its advocacy for the practice of timekeeping in the 1970s. The pioneering experts on law office management in Canada promised lawyers significant profit increases and gave minimal attention to the relationship between legal fees and client's interests.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

A Legal Conventionalist Approach to Pollution

There are no moral entitlements with respect to pollution prior to legal conventions that establish them, or so I will argue. While some moral entitlements precede legal conventions, pollution is part of a category of harms against interests that stands apart in this regard. More specifically, pollution is a problematic type of harm that creates liability only under certain conditions. Human interactions lead to harm and to the invasion of others’ space regularly, and therefore we need an account of undue harm as a basis of assigning legal protections (rights) and obligations (duties) to different agents, which creates standards for holding those agents responsible for harm. Absent such positive standards with respect to pollution at the domestic or international level, it does not make sense to hold agents responsible. This fact has two fundamental implications. First, contrary to what some defenders of environmental justice argue, we cannot hold people responsible for polluting without a system of legal rights in place that assigns entitlements, protections, and obligations, and second, contrary to what opponents of environmental regulation claim, the lack of moral entitlements to pollute creates room for quite extensive legal restrictions on people’s ability to pollute for the sake of the environment and human health. Indeed the scope of those restrictions is wide and open-ended.     

Punishment,Fair Play and the Burdens of Citizenship

The fair-play theory of punishment claims that the state is justified in imposing additional burdens on law-breakers, to remove the unfair advantage the latter have enjoyed by disobeying the law. From this perspective, punishment reestablishes a fair distribution of benefits and burdens among all citizens. In this paper, I object to this view by focusing on the case of civil disobedience. I argue that the mere illegality of this conduct is insufficient to establish the agent’s unfair advantage over his lawabiding fellows, hence the imposition of additional burdens upon him through legal punishment. I articulate a broader account of citizens’ fair-play duties, able to capture disobedience as well as obedience to the law. While claiming that some law-breakers may not be treated as free-riders, I also gesture at the fact that some law-obeying citizens may not be ‘playing fair’: in some cases, a failure to engage in civil disobedience represents a failure to do one’s own part within the cooperative scheme of society.

     

Are older deafblind people being left behind? A narrative review of literature on deafblindness through the lens of the United Nations Principles for Older People

Underpinned by the United Nations Convention on the Rights of Persons with Disabilities (CRDP), Agenda 2030 and the Sustainable Development Goals (SDGs) is the international goal to ‘leave no one behind’. However, the World Federation of the Deafblind have argued that deafblind people have been excluded from international welfare and disability development programmes. Despite making up the majority of the deafblind population, it appears that older deafblind people are particularly invisible. The paper builds on the earlier work of others, which translated the UN Principles for Older Persons into the language of older visually impaired adults, by using them here as the lens for a narrative review of the literature on older deafblind people. It argues that existing research demonstrates that older deafblind people are not only being ‘left behind’ in benefitting from implementation of the UN Principles, but also that the focus of the UN Principles themselves risks maintaining or enhancing their exclusion. Further research and policy development with older deafblind people is required to ensure that international and national social welfare policies and provision are not nugatory to the older deafblind population.     

The Governance of Blockchain Financial Networks

Since the emergence of the virtual currency Bitcoin in 2009, a new, Internet‐based way of recording entitlements and enforcing rights has increasingly captured the interest of businesses and governments. The technology is commonly called ‘blockchain’ and is often associated with a closely related phenomenon, the ‘smart contract’. The market is now exploring ways of using these concepts for financial assets, such as securities, fiat money and derivative contracts. This article develops a conceptual framework for the governance of blockchain‐based networks in financial markets. It constructs a vision of how financial regulation and private law should set the boundaries of this new technology in order to protect market participants and societies at large, while at the same time allowing the necessary room for innovation.