Indigenous Australians: Language, and the Law

Indigenous peoples face a number of hurdles intaking cases to Australian law courts. In thecase that the social and economic problems canbe overcome, they face problems related to theintellectual structures of the court and thelanguage and philosophical beliefs that thecourt systems are based on. Derrida shows thatWestern metaphysics privileges speech overwriting, and this counts against indigenouscultures in which narrative knowledge is a formof writing. Due to this privileging, there is adifferend involving the courts and indigenouspeoples which makes the achievement of justicedifficult in the legal arena in Australia. Thisarticle questions whether the courts are thecorrect bodies to deal with indigenous issues.The achievement of justice is made moredifficult again by the truth-producing effectsof legal decisions, which render native titleas a weaker form of property right. Finally,indigenous Australians are caught in a catch-22situation, in which in order to receivejustice, they must Westernise their thought toadapt to the court system, and yet not allowany Westernisation of their culture. Such aWesternisation can be forced upon indigenouspeoples by the truth-producing effects oflanguage.     

Foucault, Law, and Power: A Reassessment

After raising doubts about Foucault's approach to law-power, in the light of various acts of religion-inspired violence on and after 11 September 2001, a case is made against this approach, based on the charge that Foucault ties law far too tightly to what he calls negative power. He makes law part of juridico-sovereignty power, a form of power he regards as outmoded, with an outmoded commitment to sovereignty and the state. It is argued that in attempting to separate law from what he sees as the positive power of modern governmentality, Foucault never understands law's role as a part of a crucial balance - between political power, military power, the social, the cultural, the legal, and the economic - a balance that tries to achieve both individual freedom and the security to enjoy that freedom. An alternative way of understanding law, and of understanding sovereignty and the state - the state under the rule of law - is presented as a much better route to an appreciation of law's part in the balance.     

On the Retirement of William M. Mandel

William M. Mandel began his career as an economic geographer. After wartime duty as Russian Expert for the United Press (1943-1945), he became in 1947 one of the first senior research fellows of Stanford's Hoover Institution, on the invitation of Professor Harold H. Fisher. In 1944 he published his first book, The Soviet Far East and Central Asia.     

Just So: “The Law Which Governs Australia is Australian Law”

This essay provides a gloss on the relationship between the common law and the ‘law of the land’. It does so by turning attention to the technologies and identifications that continue to give Australian jurisdiction its place. These relations repeat the long pattern of the common law ordering of colonisation. They also provide the governmental conditions of legal responsibility for settlement. This revised version was published online in July 2006 with corrections to the Cover Date.     

Violence,Law, and Politics: Hannah Arendt and Robert M. Cover in Comparative Perspective

Despite many significant points of intersection between his work and that of Hannah Arendt, the legal scholar Robert Cover largely declined to engage her perspective, which posed major challenges to his own. While scholars seeking to rethink Cover's legacy in order to develop a jurisprudence of violence have criticized Cover's acquiescence to the Hobbesian model of the sovereign state, they have similarly ignored Arendt's critique of the Hobbesian model and her attempts to build an alternative to it. This article examines central issues of convergence and divergence between Arendt's and Cover's approaches to law, politics, and violence with the aim to redress this neglect of Arendt's perspective. It begins by focusing on their interpretations of the role and significance of the courtroom trial. It then compares their analysis of the character, effects, and implications of domination as a type of organized power and as a means of conceptualizing punishment, before it concentrates on their instrumental conception of violence, the issue of justification, and its relationship to power. The article concludes by arguing that Arendt's approach, which situates an analysis of law and violence within a broader critique of modernity, provides a more trenchant critical framework for examining the rise of the carceral state than does Cover's.     

The Forces of Law: Duty,Coercion, and Power

This paper addresses the relationship between law and coercive force. It defends, against Frederick Schauer's contrary claims, the following propositions: (a) The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. (b) Even if coercion is not part of the concept of law, coercion is connected to law many important ways, and these are amply recognized in contemporary analytic jurisprudence. (c) We cannot determine how important coercion is to the efficacy of law until we know what counts as coercive force. The question of what counts as coercion is not a matter for generalization or stipulation. It requires an explanation of the concept of coercion.     

行政法关键词三十年之流变

通过统计、分析依法行政、法治政府、行政处罚、行政许可、行政复议、行政诉讼、国家赔偿共7个行政法关键词,在1978年至2008年期间的中共全会文件报告、全国人大常委会工作报告、最高人民法院工作报告、最高人民检察院工作报告、全国政协工作报告、国务院和地方政府工作报告以及省部级领导言论中出现的时间、频率和相关度,可以发现,官方和高层领导的行政法治意识明显增强,不过,其对行政法制建设的关注也表现出重原则轻制度、重行为轻监督的特点。同时,关键词“潮起潮落”的现象,在一定程度上反映了行政法治持续发展的动力缺乏问题。