Jonathan Crowe

Australian Constitutional Law: Principles in Movement introduces the core areas of Australian constitutional law in a logical and intuitive way. It follows a thematic and historical approach, utilising the idea of constitutional movement to enable you to see where and how the law was formed, how the law has reached its current state and where it might go in the future.

Concise yet comprehensive, this is an accessible and engaging text. It features a unique pedagogical approach to support your learning and place the law in the context of constitutional values and historical trends.

The third edition of Legal Theory continues to provide a focused summary of key points relating to the main theories and concepts covered in legal theory and jurisprudence courses. The book is aimed primarily at students encountering legal theory for the first time or seeking a concise summary of the area for revision purposes. The third edition contains a new chapter on critical reasoning. Several other parts of the book have been revised and updated to reflect recent developments, including new suggestions for further reading.

Traditional ideas of mediator neutrality and impartiality have come under increasing attack in recent decades. There is, however, a lack of consensus on what should replace them. Mediation Ethics offers a response to this question, developing a new theory of mediation that emphasises its nature as a relational process.

The authors argue that mediation ethics should move away from the untenable notions of mediator neutrality and impartiality and towards a focus on party self-determination. They supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the unique needs and interests of the parties. This new paradigm provides the basis for a picture of the mediation profession as a community with its own internal standards of excellence, as well as a more sophisticated and realistic ethical framework for mediation practice.

Academics in law, social work and psychology will appreciate the book's nuanced account of the dynamics of mediation as a dispute resolution process. Mediation practitioners, including lawyers, social workers and counselors, will find the book a practical and helpful guide to addressing ethical dilemmas. And students of mediation will benefit from the book's clear and up to date overview of the development and principles of mediation ethics.

This thought-provoking Research Handbook provides a snapshot of current research on natural law theory in ethics, politics and law, showcasing the breadth and diversity of contemporary natural law thought. The Research Handbook on Natural Law Theory examines topics such as foundational figures in Western natural law theory, natural law ideas in a variety of religious and cultural traditions, normative foundations of natural law, as well as issues of law and governance. Featuring contributions by leading international scholars, this Research Handbook offers a valuable resource for scholars in law, philosophy, religious studies and related fields.

This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies.

The second edition of Legal Theory continues to provide a focused summary of key points relating to the main theories and concepts covered in Australian legal theory and jurisprudence courses. The clear, succinct and accurate exposition of the core concepts and themes provide an excellent entry point into the subject for students and a concise tool for revision. Diagrams and examples have been used to assist understanding, and recent and emerging perspectives have been included to ensure the text best suits the way legal theory is taught in Australia.

Constitutional deliberation by appellate courts plays a prominent role in public discourse about legal institutions. It is surprising, given this prominence, how little we know about exactly how judges make decisions in constitutional cases. The present chapter explores this topic by drawing on recent research on moral psychology and assessing its possible applications to constitutional decisions. There is now a substantial body of research, exemplified by the work of Jonathan Haidt and Daniel Kahneman, showing that intuitive judgements play a pivotal role in ethical reasoning. People typically react to ethical scenarios by first forming snap judgements about the ethical features of the scenario and then either rationalising or revising these judgements through further reflection. There has, however, so far been little research into the implications of these findings for our understanding of legal processes.

Legal reasoning is traditionally presented as a deliberative and reflective process. This is particularly true of constitutional reasoning, which tends to occur at the higher levels of the judiciary and places greater emphasis on abstract principles. However, the studies mentioned above suggest that constitutional deliberation, like other forms of normative reasoning, is likely to depend significantly on snap judgements. The present chapter seeks to explain how this occurs. It outlines a three-level theory of constitutional deliberation as a form of equilibrium between snap judgements, mid-level rules and background principles. The resulting view bears some resemblance to Ronald Dworkin's much-discussed theory of law as integrity. However, Dworkin's theory (like other leading accounts) largely neglects the relevance of snap judgements. It therefore overlooks the role these judgements play in guiding constitutional decisions and thereby potentially changing the law.

We owe things to animals. I mean: we have duties towards them. Animals, for their part, have rights with respect to us. This kind of language is a straightforward and compelling way of talking about our ethical relationship to animals. However, it invites two common objections. First, it is sometimes argued that, since animals are incapable of engaging in moral discourse or holding duties with regard to other beings, they should not be regarded as bearers of rights. The right-duty relationship, on this view, is necessarily reciprocal. Animals cannot show moral concern towards others, so they do not belong to the moral community.

A related objection concerns the relationship between ethics and justice. Ethics, it is sometimes thought, is concerned with interpersonal relationships, whereas justice considers institutions: duties, rights and so on belong to the latter realm. Furthermore, on this view, the topics must be distinguished. A theory of justice cannot simply restate the demands of ethics. It must make a place for non-ideal theory, asking what institutions we should adopt on the assumption that people will not always behave well. It is one question what people owe to others, ethically speaking, but the issue of what rights and duties people hold is a separate issue.

I want to argue that these two worries rest on a common mistake. The mistake concerns the way they understand the moral community and its relationship to institutional justice. The mistake does not lie in thinking people sometimes act unethically: that is indubitably true. Rather, the mistake lies in thinking that ethical and institutional questions can and should be separated. Interpersonal ethics, I will argue, supplies the basis for community and therefore for justice and law. Justice, then, is subsidiary to ethics; interpersonal relationships supply the foundations for just institutions. We must begin imagining justice on a small scale. The ethical theory of Emmanuel Levinas shows us how this might be done.

The new natural law theorists, such as Germain Grisez, John Finnis and Joseph M Boyle, argue that intentional human action is oriented towards a plurality of basic goods. This focus on the role of the good in orienting action--and its subsequent implications for practical reason, politics and law--is a recurring and central theme of the natural law tradition. The basic goods, according to the new natural law theorists, render human action intelligible. The intelligibility of an action does not guarantee its reasonableness: that depends on whether the action is oriented towards the basic goods in a way that meets the requirements of practical rationality. However, an action that fails to be intelligible will fail to be reasonable, because it is not directed at any underlying good. The intelligibility of an action, on this view, is therefore a necessary, but not sufficient, condition for its reasonableness.

What, then, does it mean for an action to be intelligible or unintelligible? The new natural law theorists have relatively little to say about this question, beyond describing the role of the basic goods in guiding human action. The present chapter builds on this account to argue that actions are intelligible or unintelligible relative to a context of social practices. This understanding of intelligibility reveals an important connection between the basic goods and the common good. The common good, understood as the project of creating a society that offers a wide and generally accessible array of modes of human flourishing, not only facilitates pursuit of the basic goods, but makes the goods possible. It does this by creating a context within which judgments can be made about the intelligibility of intentional conduct.

What are constitutional values and where do they come from? One plausible answer to this question is that constitutional values reflect the functions or purposes of the Constitution and its provisions. However, this response raises the further question of where those functions or purposes themselves come from. This chapter argues that at least some of the functions or purposes that give rise to constitutional values properly derive from contemporary beliefs and attitudes about the Constitution, rather than the intentions of its framers. I begin by examining the concept of a function as it applies to legal texts and other artifacts. I explore the relationship between functions and intentions, showing how functions can arise from contemporary beliefs and attitudes, not just authorial intentions. I discuss the implications of this argument for the notion of ordinary meaning, explaining how the role of contemporary context in shaping the meaning of constitutional texts creates a problem for originalism. I then introduce the idea of constitutional narratives, showing how this helps to make sense of the role of contemporary practices in grounding constitutional values. I argue that constitutional narratives can provide a sound basis for constitutional implications (even when not grounded in authorial intentions). I conclude with a brief comment on functionalist theories of constitutional interpretation.

Law oscillates. It exists in time and therefore in movement. Law changes and this change marks the passage of time. Law’s movement, however, is not simply linear. It is not a one way journey from A to B. It is, rather, an oscillation between centres of gravity. Law moves from A to B, then back to A again. Law returns.

Law’s oscillation takes many forms, but one of the most basic is the movement of law between order and disorder. At the most basic level, humans want to be whole. At the same time, however, they find themselves perpetually divided against themselves and one another by their desires for power, glory and material possessions.

This dual character of human motivation represents the two faces of legal order. Law is both cooperative and competitive. Attempts to preserve the rule of law through force of will cannot mask the tension at the heart of human governance. Things, inevitably, fall apart. And this is the unerring pattern of human history.

The natural law outlook (as defended in the work of the ‘new natural law theorists’, such as Germain Grisez, John Finnis and Joseph M. Boyle ) involves a range of distinctive positions in ethics, political philosophy and jurisprudence. Specifically, it consists of an ethical theory that combines the incommensurability of the basic forms of good with the logical priority of the good over the right; a political theory that holds that all agents have a duty to promote the common good; and a legal theory that combines a normative account of law as social coordination with the ontological claim that law is necessarily a rational standard for conduct.

This chapter explores the metaphysical foundations of these aspects of the natural law position. I will focus particularly on the metaphysical issues raised by the natural law outlook in ethics and jurisprudence. The emphasis placed in natural law ethics on the basic forms of good raises questions about the nature of the goods and their relationship to other sorts of entities. Similarly, the central claim of natural law jurisprudence—that law is necessarily a rational standard for conduct—raises fundamental questions about the nature of law. Natural law authors have adopted some characteristic positions on these issues, but there is significant debate about the details.

Section 51(xxvi) of the Australian Constitution (often called the ‘race power’) provides that the Commonwealth Parliament may make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. The original provision excluded laws concerning ‘the aboriginal race in any State’, but those words were deleted by referendum in 1967. A debate has since raged as to whether the provision can be used to support laws discriminating against Aboriginal and Torres Strait Islander Peoples. The Expert Panel on Constitutional Recognition of Indigenous Australians recommended in its report of January 2012 that this head of power be repealed and replaced with a provision intended to be limited to beneficial laws. However, this proposal raises its own problems of interpretation. This chapter considers whether a replacement for the race power is necessary or desirable given the federal nature of the Constitution. It does so by considering the moral significance of the principle of subsidiarity and its relevance to Aboriginal and Torres Strait Islander Peoples. The worry is sometimes raised that simply repealing the race power would threaten important Commonwealth legislation and spending programs, including the Native Title Act 1993 (Cth). However, these concerns need to be placed within a broader moral and legal context. I suggest that a minimalist strategy of removing s 51(xxvi) from the Constitution without incorporating a reformulated race power offers some important advantages that may outweigh the inconvenience posed by the lack of a replacement provision.

Humans are fallible—and this fallibility is the hardest thing for us to grasp. It is for this reason that the separation of powers—the importance of which ultimately rests on the flawed character of human reason—is continually under threat. This chapter examines the various facets of human fallibility that explain the importance of the separation of powers. It distinguishes epistemological, psychological, ethical and moral forms of fallibility and examines how each of these human failings affects government decisions. The chapter then explores how the modern tripartite separation of powers restrains human fallibility through both substantive and procedural mechanisms.  It concludes with a reflection on the vulnerability of the separation of powers in modern administrative democracies and a plea for the importance of humility in public life. The separation of powers is integral to modern governance—but we can never take it for granted, because the very reasons that make it important also explain why government officials fail to honour it.

This chapter reviews John Finnis, Philosophy of Law: Collected Essays Volume IV (Oxford University Press, 2011). It draws out some central themes of Finnis's work on philosophy of law, focusing on the concepts of normativity, coordination and authority. The chapter also considers some similarities and differences between the natural law theories of Finnis and Michael Detmold, both law students at the University of Adelaide in the late 1950s and early 1960s. I argue that Detmold provides the more convincing account of legal normativity.

Legal reasoning is commonly regarded as a reflective process, in which legal actors -- be they ordinary citizens or judges and other legal officials -- consciously incorporate legal norms into their deliberations when deciding what to do.  However, this picture is misleading.  The primary influence of legal norms on practical decision making takes place at a pre-reflective level. In this chapter, I offer an account of this pre-reflective dimension of law.  I begin by examining the pre-reflective foundations of normative reasoning generally, and then turn to the place of legal norms within that picture.  I contend that both citizens and judges routinely make pre-reflective judgements about the content of legal norms. Furthermore, their initial engagement with those norms invariably takes place within a broader context of pre-reflective values. I then examine the implications of this account for traditional understandings of legal reasoning.  I argue that the pre-reflective dimension of law undermines attempts to draw a sharp distinction between legal and other forms of normative deliberation.

Talk about social or distributive justice, at least among legal and political philosophers, tends to focus heavily on institutions. This way of thinking about justice owes a great deal to John Rawls. Rawls's theory of justice was famously criticised by Robert Nozick, who in turn attracted an influential critique from G. A. Cohen. The story of these critiques is well known, but this article tells it in an unfamiliar way. The common theme in Nozick's and Cohen's arguments, I contend, is that there is a way of thinking about social justice that focuses not primarily on institutions, but rather on interpersonal relationships. I call this idea small justice. Justice, on this view, is identified with whatever institutions would arise through a process of social evolution from ethical interpersonal dealings repeated consistently over time.

Opposition to collective action on climate change takes at least two forms. Some people deny that climate change is occurring or that it is due to human activity. Others maintain that, even if climate change is occurring, we have no duty to do anything about it because our efforts would be futile. This article rebuts the latter line of argument. I argue that: (1) everyone has a duty to do their share for the global common good, which includes doing one's part to combat climate change; (2) the idea that taking action against climate change is futile should be treated with caution, because sometimes actions may seem to make no difference to climate change, when really they do; (3) in any event, the duty to do one's share to combat climate change still applies, even if it is ultimately futile; and (4) this is because not doing one's share for the common good harms oneself, regardless of whether it makes any difference to the wider outcome.

The dominant theoretical approach to the prohibition of exclusionary conduct in competition law distinguishes exclusionary conduct from normal competitive conduct based on their economic outcomes. However, this approach fails to provide a uniform and consistent test for distinguishing the two categories. This article outlines a new account of the wrongness of exclusionary conduct that integrates consequentialist factors within the deontological framework of the moral duty to promote the common good. Exclusionary conduct is wrong because it undermines the role of markets as a salient response to an important social coordination problem in a way that harms the competitive process and social welfare. The prohibition arises from the moral duty to promote the common good in combination with evolved social and economic norms. This approach helps make sense of the distinction between exclusionary conduct and normal competitive behaviour. The article explores and applies this account to the European Union approach to the prohibition of exclusionary conduct under the legal framework provided by art 102 of the Treaty on the Functioning of the European Union.

Jim Allan contends in a recent issue of the Federal Law Review that the High Court's implied rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text and the historical intentions of its authors. Elisa Arcioni's response accepts that constitutional doctrines should be grounded in the text and authorial intentions but argues that the implied rights cases meet this standard. Arcioni is correct, but more can usefully be said about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers' intentions, as I have shown in detail elsewhere, must sometimes ask not only what they had in mind when the text was written but also what those intentions entail in a contemporary setting. This involves placing both the constitutional text and authorial intentions within a broader context of legal and social institutions. The High Court's implied rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the Constitution's intended meaning.

Natural law theories hold that human action is oriented towards certain intrinsic goods and governed by practical principles accessible to us by virtue of our nature. These goods and principles make up the content of natural law. This essay argues that both the content of natural law and our understanding of its requirements evolve throughout human history. This represents a diachronic, rather than synchronic, understanding of natural law. This perspective is contrasted with the ‘new natural law theory’ of Germain Grisez and John Finnis, which depicts natural law as timeless and unchanging. Finnis seems to think that natural law does not change because it exists in the mind of God; however, a belief in God as the source of natural law is equally consistent with a diachronic perspective. I defend this view through reference to the writings of Thomas Aquinas and the structure of the biblical narrative.

This article examines the role of coercion in grounding a prima facie duty to obey the positive law. I argue that there is at least a weak prima facie duty to obey the positive law in a minimally effective and just legal system. The fact that a norm holds positive legal status within a minimally effective and just legal system gives people presumptive reason to believe that the norm is a salient and reasonable means of social coordination and therefore that they have pro tanto reason to follow it. Coercive sanctions may bolster the salience of social norms by giving people incentive to follow them. They also make it more likely that an agent’s decision to follow a particular norm will be reasonable, by creating the prospect that the reasons supplied by the sanctions will override any deficits in the salience or reasonableness of the norm itself. A legal system with strong coercive enforcement is therefore more likely than a less coercive system (other things being equal) to present its subjects with both prima facie and pro tanto moral obligations. This reliance on coercion, however, carries a significant moral hazard, since it may bootstrap inefficient or unreasonable norms into a position of epistemological and moral weight.

This article forms part of a book symposium on Natural Law and the Nature of Law published in the Australasian Journal of Legal Philosophy. It responds to commentaries on the book by Margaret Davies, Joshua Neoh and Matthew Lister. Topics covered include the role of time, nature and place in natural law theory; the relationship between natural law and political discourse; and the role of the state in securing human flourishing.

This article forms part of a book symposium on Natural Law and the Nature of Law published in the Australasian Journal of Legal Philosophy. It introduces the central themes and arguments of the book and reflects on the continuing relevance of natural law ideas today.

Studies show that one in five Australian women has been sexually assaulted in her lifetime. How well does our criminal justice system deal with this problem? Three prominent survivors of sexual violence—Nina Funnell, Bri Lee and Saxon Mullins—shared their experiences with the legal system at a panel discussion hosted by the Faculty of Law at Bond University on 6 June 2019. The panellists discussed the three main stages in the process—police, prosecutions and the courts—and reflected upon the challenges they encountered in their cases, as well as offering suggestions for reform. The panel was chaired by Professor Jonathan Crowe of Bond University and introduced by Professor Nick James, Executive Dean of the Faculty of Law. This is an edited transcript of the discussion.

This article draws on the writings of the French existentialist philosopher Jean-Paul Sartre to offer some insights about the judicial role. It begins by exploring the existentially burdensome character of judging, making reference to Sartre’s discussions of anguish and the moment of decision. The article then examines why different judges approach the demands of their role in contrasting ways, drawing on Sartre’s analysis of various forms of bad faith [mauvaise foi]. The article concludes by sketching an ideal model of the authentic judge, based on Sartre’s discussion of authentic love (or ‘love in the world’). The authentic judge accepts responsibility for her decisions, without disclaiming her authority or denying the contingent nature of her position. She recognises her inherent fallibility, while nonetheless saying: ‘this is what I have chosen’.

Mediator neutrality has attracted significant criticism in recent decades. Some authors, such as Laurence Boulle, have suggested that these criticisms can be avoided by focusing instead on mediator impartiality. This shift is now enshrined in mediator codes of conduct in several jurisdictions, including Australia. This article argues that mediator impartiality fails to provide a tenable foundation for mediation ethics. The concept either reproduces the traditional problems of mediator neutrality or offers mediators and parties little practical guidance in understanding the mediator’s ethical role. In either case, the notion of mediator impartiality itself is effectively empty, meaning it cannot supply a solid foundation for ethical practice.

The role of implications in Australian constitutional law has long been debated. Jeffrey Goldsworthy has argued in a series of influential publications that legitimate constitutional implications must be derived in some way from authorial intentions. I call this the intentionalist model of constitutional implications. The intentionalist model has yielded a sceptical response to several recent High Court decisions, including the ruling in Roach v Electoral Commissioner that the Constitution enshrines an implied conditional guarantee of universal franchise. This article outlines an alternative way of thinking about constitutional implications, which I call the narrative model. I argue that at least some constitutional implications are best understood as arising from historically extended narratives about the relationship of the constitutional text to wider social practices and institutions. The article begins by discussing the limitations of the intentionalist model. It then considers the role of descriptive and normative implications in both factual and fictional narratives, before applying this analysis to the Australian Constitution. I argue that the narrative model offers a plausible basis for the High Court’s reasoning in Roach v Electoral Commissioner.

The distinction between easy and hard cases is well known from the work of Ronald Dworkin. Dworkin focuses primarily on the challenges posed by hard cases. Easy cases, by contrast, remain relatively under-theorized. This article begins by exploring how judges decide easy cases by relying on holistic intuitive judgments. I then build on this analysis by introducing a third category of cases, which I call not-so-easy cases. I argue that easy, not-so-easy and hard cases are distinguished by the extent to which the judge’s intuitive judgments about the factual and legal context for the case yield a clear and determinate outcome. Easy cases are fully resolved at an intuitive level and merely require judges to articulate their decisions; not-so-easy cases are tentatively resolved at an intuitive level but require judges to explain their decisions; and hard cases are unresolved at an intuitive level and require judges to justify their decisions. I offer an account of the decision procedures involved in each type of case. I further contend that most cases heard by appellate courts are not-so-easy cases. The primary task of such courts is therefore best understood as one of explanation (rather than justification). This finding holds important implications for the nature and legitimacy of the judicial role.

The idea that parties bargain in the shadow of the law has been highly influential in research on dispute resolution and family law. Critics have questioned the utility and coherence of the concept, but it continues to be widely accepted. This article draws on an empirical study of access to legal information in a post-separation context to argue for a broader and more realistic understanding of how the shadow of the law influences parties' expectations and strategies in family law matters. Family dispute resolution, we suggest, does not take place in the shadow of the positive law (the law contained in statutes, case law and other formal legal sources), so much as the shadow of the folk law (the law as depicted in informal sources such as online materials and popular media). It follows that there is not just one shadow of the law; rather, there are multiple shadows. These findings hold important implications for government agencies, family dispute resolution providers and others involved in providing information and advice on post-separation issues.

Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political communication under the Australian Constitution. Legislation such as the Crimes Act 1914 (Cth) ('Crimes Act'), the Australian Security Intelligence Organisation Act 1979 (Cth) ('ASIO Act') and the Australian Border Force Act 2015 (Cth) ('Border Force Act') makes it an offence to reveal certain types of information obtained as a Commonwealth officer. The Public Interest Disclosure Act 2013 (Cth) ('PIDA') offers limited protection to whistleblowers in the Commonwealth public sector, but this protection does not extend to information relating to intelligence operations. We argue that blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other. The courts should read down these laws to protect disclosures that hold significant public interest for discussion and debate over government policy or the performance of government officials.

Modern political discourse is characterised by three pervasive and harmful illusions: the illusions of control, desert and revenge. The illusion of control holds that we can manage our social and economic environment to keep ourselves safe from harm. The illusion of desert holds that in a well governed society people generally get what they deserve. The illusion of revenge holds that it is beneficial and legitimate to punish those who transgress legal and social norms. I discuss the role these illusions play in political debates, drawing on work in social psychology to explain their appeal. I then try to imagine a radically new form of political discourse based on accepting that we are not in control, people do not get what they deserve and coercion is not the answer. I argue that this reimagined politics holds important advantages over the current paradigm.

It is becoming more common to speak about mediation as a profession. This raises the question of what form mediation ethics should take in the professional era. This article outlines two ways of thinking about mediation ethics — the regulatory model and the practice model — and considers their suitability to address the challenge of professionalisation. I examine the main features of the two models, then compare them with some core characteristics of mediation as a dispute resolution process. I argue that while it is tempting to associate professionalisation with the regulatory model, the practice model offers some important advantages in the mediation context. I conclude that the mediation profession should aim to strike a balance between the two models, while generally emphasising practice over regulation.

Private military security companies ('PMSCs') are present in almost all United Nations peacekeeping operations. The utilisation of PMSCs by international organisations raises distinct and complex legal issues. This article discusses the status of PMSCs under the international law of armed conflict, focusing particularly on their involvement in UN peacekeeping activities. We argue that assessing the position of PMSCs requires a sharper understanding of the legal status of civilians who may play an active role in hostilities. The role of PMSCs in UN operations, in particular, places pressure on the widespread view that civilians who participate in hostilities thereby violate the law of warfare. The article then reviews the options for holding PMSCs accountable for violations of international law. We argue that this issue is best addressed by treating international humanitarian law, international human rights law and international criminal law as an interlocking body of norms and mechanisms applicable in armed conflict.

This article explores the natural and cultural limits on human kindness towards strangers and non-human animals. I suggest that humans have a deep natural capacity for kindness. However, the duties imposed by this capacity are highly demanding, so we use techniques of ethical avoidance to limit our responsibilities. These techniques play a central role in enabling humans to avoid confronting the suffering caused by practices such as factory farming.

Mediation is increasingly regarded as a nascent profession. This raises some important questions about how the mediation profession should be structured and governed. This article distinguishes two models of professional ethics and considers their appropriateness for mediation. The first model, which I call the 'regulatory model', gives a central role to professional associations in formulating, applying and enforcing ethical codes of conduct. This model has been adopted by the legal profession in Australia and elsewhere. The second model, which I call the 'practice model', views a profession as a community of practice where ethical standards emerge and change organically over time. These standards may be codified, but are mainly enforced through social pressure. I develop the practice model through reference to the concepts of practice and tradition in the work of Alasdair MacIntyre. I then explore the implications of the two models by considering how they might respond to ethical breaches by practitioners suffering from mental illness, before considering their suitability for the mediation community. I contend that the practice model has important advantages over the regulatory model as a framework for mediation ethics.

Over the last 20 to 30 years, the use of mediation in Australia to resolve family disputes has grown significantly. Since the 2006 reforms to the Family Law Act 1975 (Cth), family dispute resolution, a common form of which is family mediation, has effectively become a compulsory first step in post-separation parenting disputes that enter the family law system. There are many good reasons for encouraging parties to participate in family mediation. Mediation is a flexible, cost-effective, time-efficient, more humane, less adversarial way for families to manage and resolve post-separation disputes. Family mediation is also a process that enables party self-determination, empowering the parties to determine together the best arrangements for their family into the future. However, vigilance is required if the capacity of each party to negotiate towards a mutually agreeable outcome is to be effectively sustained and the full potential of the benefits of mediation are truly to be achieved. In this article, we use Ludwig Wittgenstein's concept of a language game and the related notion of a clash of genres to explore some of the underlying conventions and expectations that create challenges for the parties in family mediation. We then consider how mediators might respond to these challenges and the implications this holds for mediator ethics.

This article considers natural law perspectives on the nature of law. Natural law theories are united by what Mark Murphy calls the natural law thesis: law is necessarily a rational standard for conduct. The natural law position comes in strong and weak versions: the strong view holds that a rational defect in a norm renders it legally invalid, while the weak view holds that a rational defect in a legal norm renders it legally defective. The article explores the motivations for the natural law position, before considering three lines of natural law argument found in the literature. I conclude by examining the arguments offered by John Finnis and Murphy in support of the weak natural law view. I suggest that these arguments fail to impugn the strong natural law thesis. Indeed, the functional argument outlined by Murphy provides a plausible route to a hybrid natural law view that incorporates both weak and strong claims.

Humans are fallible—and this fallibility is the hardest thing for us to grasp. It is for this reason that the separation of powers is continually under threat. This article examines the various facets of human fallibility that underpin the separation of powers doctrine. It distinguishes epistemological, psychological, ethical and moral fallibility and considers how each of these human failings is exacerbated by political forces. The article concludes with a reflection on the vulnerability of the separation of powers in modern democracies. The separation of powers is integral to modern governance—but we can never take it for granted, because the very reasons that make it important also explain why officials fail to honour it.

This article is a shortened version of a chapter in Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia: Contemporary Challenges, Future Directions (Federation Press, 2016).

This article engages with Allan Beever's book, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (Oxford University Press, 2013). Beever has written a book about justice. It is also, less obviously, a book about memory. The central claim of the book, as the title suggests, is that there is a particular conception of justice to be found in classical authors that has subsequently been forgotten. Beever sets out to uncover this conception and restore it to its proper place in legal and political theory. The idea of forgotten justice is an intriguing one. It makes me wonder: is justice really the kind of thing that can be forgotten? You might forget your car keys or a book symposium deadline, but what would it mean to forget the normative relevance of interpersonal relations? I suggest that it makes little sense to talk about forgotten justice. We should speak instead about justice remembered.

Sionaidh Douglas-Scott's book, Law after Modernity (Hart, 2013), outlines a sophisticated theory of legal pluralism.  The book makes extensive use of artworks and other cultural images to draw out law's social meanings.  I explore Douglas-Scott's comments on the relationship between art and law through reference to Michèle Le Doeuff's work on the philosophical imaginary.  I then address her views on legal pluralism.  Douglas-Scott argues that legal positivism's failure to adequately capture the complexity of contemporary legal orders makes legal pluralism preferable as a descriptive theory of law.  However, she distances herself from claims that legal pluralism also offers a normatively desirable view of law, arguing that it needs to be supplemented by a theory of critical legal justice.  Douglas-Scott shows a commendable awareness of legal pluralism's descriptive insights and its normative limits, but her account of critical legal justice remains highly tentative.  What, then, lies in the unmapped terrain beyond the limits of legal pluralism?  I suggest the answer lies in overcoming the central assumption shared by both legal positivism and legal pluralism: the idea of law as a product of human authority.

Natural law ethics holds that practical rationality consists in engaging in non-defective ways with a range of fundamental goods. These basic goods are characteristically presented as reflecting the natural properties of humans, but the details of this picture vary widely. This article argues that natural law ethics can usefully be understood as a type of dispositional theory of value, which identifies the basic goods with those objectives that humans are characteristically disposed to pursue and value for their own sake. Natural law theories of practical rationality can then be understood as attempts to capture the principles that would govern engagement with the basic goods under ideal conditions. The article begins by offering an account of normative inclinations as human dispositions both to act in certain ways and to believe that the actions are worthwhile or required. It then explores the implications of this account for natural law ethics, discussing the role of the basic goods in practical rationality, whether the goods may change over time and the connection between the goods and human nature.

What does it mean to think communally about mediation ethics? This article develops a model of mediation ethics that draws on recent literature in moral psychology concerning the formation of ethical judgments. The model rests on a conception of ethical judgment as a practical skill developed over time by repeated exposure to ethical dilemmas. Ethical practice relies on snap judgments that are refined through reflection and dialogue. The resulting picture of mediation ethics is situational, not rule-oriented; diachronic, not synchronic; and community-oriented, not individualistic. The community oriented nature of the model points to the importance of recognising mediation as a profession with its own specialties. It invites further reflection upon the role of the mediation community in promoting ethical discourse and formulating guidelines for practice.

It is commonly stated that law is an artifact, but this claim is rarely explicitly defended. This article submits this statement to closer examination. I argue that law is not straightforwardly covered by the standard philosophical account of artifacts, since not all laws have authors. However, it is possible to extend the account to include it. I then develop an analysis of law as an artifact kind. I contend that law is best regarded as a special type of artifact, which I call an ‘institutional artifact’. On this view, something qualifies as law only if, roughly, it is collectively recognised as law and is constitutively capable of fulfilling law’s function as an artifact. I argue that law’s function as an artifact is to serve as a deontic marker by creating a sense of social obligation. A putative law that is incapable of performing that function for reasons of form or content therefore fails as law, while a law that is not minimally adapted to that function is legally defective.

The relationship between international humanitarian law and international human rights law has been widely debated. Influential discussions have been produced by both the International Court of Justice and the International Law Commission. This article brings a new perspective to this issue, emphasising and contrasting the underlying concepts that the two areas of law rely on for their legitimacy. I argue that while international human rights law derives its legitimacy largely from the value of coherence, international humanitarian law emphasises the notion of acceptance. This contrast has important implications for efforts to integrate the two fields.

The work of Friedrich A Hayek presents a compelling theory of the normative basis for constitutionalism and other related notions, such as the rule of law. It is difficult, however, to avoid a sense of incongruity when seeking to apply Hayekian notions within the context of the modern administrative state. Hayek is widely regarded as a conservative figure, although he famously rejected the label. A comparison between Hayek’s theory and modern modes of governance makes Hayek seem more radical than conservative, since deep reforms would be needed to instantiate anything like his preferred model. How radical, then, is Hayekian constitutionalism? That is the question I explore in this article. The article begins by unpacking the normative foundations for Hayek’s theory of constitutionalism. I then examine the wider implications of the theory for politics and governance, focusing particularly on the role of the state in securing important social goods. I argue that Hayek provides a nuanced account of the place of the rule of law in social governance. However, his account of constitutionalism turns out to have more radical implications than he acknowledges. The article concludes by examining the relationship of Hayekian constitutionalism to the anarchist tradition in political philosophy. I suggest that Hayek’s arguments, considered in light of the striking failures of the contemporary corporatist state, give us reason to question his commitment to statism. Hayekian constitutionalists may have to become reluctant anarchists.

Could there be law without the state? This strikes many people as a strange question. Law is so closely associated today with the edicts of government authorities that it is hard to disentangle the two ideas. This article begins by exploring the conception of law that underpins this mindset. It offers an alternative understanding of law that makes it possible to conceive of a legal order without state authority. The article then asks what legal institutions might look like in the absence of the state and discusses some challenges to law in a stateless society. I argue that it is at least plausible to think that stable sources of legal order could be maintained in a stateless environment. This conception of law without the state provides a useful framework for thinking critically about the limitations of current state-centred legal institutions.

Gary Chartier’s book, Anarchy and Legal Order (Cambridge University Press, 2013), uses the resources of the natural law tradition in ethics to defend a vision of law without the state. It therefore presents a theory of what might be termed natural law anarchism. Some readers may find this combination of views surprising. The most prominent contemporary advocate of natural law theory, John Finnis, heavily emphasises the role of state institutions. However, Finnis’s theory arguably gives a misleading picture of the relationship between natural law and the state. Natural law theory is, in fact, highly hospitable to anarchism. This article begins by exploring the connections between these two ideas. I then look in more detail at some features of Chartier’s argument.

There is a puzzle regarding the place of s 96 in the Australian Constitution. The grants power conferred by the section currently plays a very prominent role in federal arrangements. However, the section reads like a transitional provision, containing the words until the Parliament otherwise provides. It appears in the midst of other transitional provisions and its drafting history suggests it was not intended to be permanent. There is also a puzzle, raised by several justices in Williams v. Commonwealth, about the interaction of s 96 with the Commonwealth spending power under s 61. This article responds to these puzzles by exploring how the fiscal powers of the Commonwealth would operate if s 96 were treated as merely transitional. We argue that construing the section in this way would resolve some tensions in the constitutional framework, as well as having salutary consequences for Australian federalism.

This article examines the circumstances in which fraud will vitiate consent to sex for the purposes of Australian rape law. It begins by summarising the Australian common law position on fraud in rape law, before discussing the relevant legislative provisions and recent case law in the various Australian jurisdictions. It is argued that the common features of legal approaches to this issue in the Australian States and Territories raise potentially serious problems of vagueness and overbreadth. Three possible responses are then examined. The article concludes that the most promising immediate response lies in a purposive judicial attitude to interpreting and applying the statutory framework, rather than further legislative reform or systematic reading down of the relevant provisions.

This article clarifies the relationship between the work of Lon Fuller and the natural law tradition in jurisprudence through a critical engagement with Kristen Rundle's book, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart, 2012). I argue that Fuller's theory engages squarely with the central concern of natural law thought: namely, the idea of law as a rational standard. However, Fuller fails to recognise the full implications of his theory for the role of moral factors in determining legal validity.

International humanitarian law faces a range of ongoing challenges. These include the challenges posed by new and emerging types of weapons, the changing face of armed conflict and the political dynamics of the international community. This article focuses on the challenges these kinds of issues can pose for one of the most fundamental principles of international humanitarian law: namely, the principle of distinction. International humanitarian law encourages a clear and reliable division between combatants and non-combatants. The principle of distinction requires combatants to distinguish at all times between military targets and civilian objects and stipulates that only military targets may be the object of attack. This is arguably the most important principle of the whole law of armed conflict. The principle is undermined if attacking forces cannot readily distinguish combatants from other parties.

This paper examines the distinction between weak and strong varieties of the natural law position in general jurisprudence. I begin by clarifying the distinction, before offering an argument for what I call a hybrid natural law theory, which combines versions of both the weak and strong claims.  Along the way, I criticise Mark Murphy’s arguments for the explanatory priority of the weak natural law view.

There is a burgeoning literature on wellness for law in Australia and other jurisdictions, including several recent edited collections. It is now common for Australian law schools to offer formal wellness programs for students. A growing number of law firms employ wellness specialists and offer wellness programs for employees. This attention to wellness for law is undoubtedly warranted. There is, however, significant uncertainty about what exactly wellness means in this context. Academic discussions frequently refer to markers of psychological distress in law students and legal practitioners, suggesting that wellness consists primarily in eliminating these symptoms. There has also been some discussion of the components of a positive understanding of wellness, mainly focusing on the psychological literature.

My aim in this talk is to build on these discussions to offer some suggestions about how the notion of wellness in law is best understood. The talk begins by exploring some existing views of wellness in the academic literature. I suggest that wellness is not best understood either as the absence of psychological distress or as the presence of life satisfaction or positive affect. I then outline an alternative understanding of wellness that centres around the role of basic values in human flourishing. Wellness, I argue, consists in participating in the various dimensions of human flourishing in a balanced and integrated way. One advantage of this account is that it draws out the fundamental challenge wellness in law poses to existing models of legal education and practice. I therefore conclude with some comments on that issue.

This short piece argues that men should support feminism, but not call themselves feminists. In a nutshell: men publicly identifying as feminists risks eroding one of the few areas of social discourse where women’s voices are emphasised and valued in their own right. It also risks masking the diversity of feminist perspectives, including the complex and fraught intersections of race, class, sexuality, disability, religion and gender. I call this view ‘radical pro-feminism’, because it preserves the radical potential of feminism to pose a genuine challenge to male-dominated power structures. It also challenges traditional gender roles, because it requires men to play a supporting and enabling role, rather than taking the lead and setting the agenda. Men can do many things to support feminism. One of the most important is to help create spaces for women to speak on their own behalf and have their voices heard.

Students studying constitutional law for the first time often find it a challenging area. It is often the most theoretically demanding course they have encountered in their law studies. Two key elements in teaching this area of law are structure and context. It is necessary to present the material in a scaffolded way in order to enable students to build up their knowledge.  It is also necessary to place the law in the context of constitutional values and historical trends if students are to grasp its origins. This talk outlines a framework for integrating these elements into constitutional law teaching by using the organising theme of constitutional movement. The notion of constitutional movement captures the idea that the Australian Constitution is founded on certain organising principles – or centres of gravity – to which the High Court consistently returns in its reasoning. The development of the law can be viewed as an oscillation or movement between these centres of gravity. This framework encourages students to place constitutional law in a historical context and view it as a dynamic and evolving field. It enables them to see how the law has reached its current state and better understand where it might go in the future, while providing a scaffold for deeper learning about constitutional jurisprudence.

This talk considers the definitions of the crime of rape adopted by the International Criminal Tribunals for Rwanda and the Former Yugoslavia. I argue that that rape in wartime is best defined by reference to the element of coercion, as was done by the ICTR in the Akayesu decision, rather than by reference to consent, as suggested in the ICTY cases of Furundzija and Kunarac. I then suggest that domestic approaches to defining rape may have something to learn from the ICTR's approach to sexual assault in wartime.

This talk explores the natural and cultural limits on human kindness towards strangers and non-human animals. I suggest that humans have a deep natural capacity for kindness. However, the duties imposed by this capacity are highly demanding, so we use techniques of ethical avoidance to place limits on our responsibilities. Examples of such techniques include the creation of ethical blindspots and reliance on individual and cultural forms of rationalisation. These techniques play a central role in enabling humans to avoid confronting the suffering caused to animals by practices such as factory farming.

The question of whether men can be feminists raises a variety of broader issues. Some of these relate to whether men can have the kinds of understanding, solidarity and political commitment necessary to qualify as feminists. Others concern the role that men can and should play within the feminist movement. This talk begins by exploring some of the psychological and social barriers men face in understanding and supporting feminism. It then concludes with some practical suggestions as to how men might seek to engage constructively with feminist ideas and objectives.

The thesis examines the theoretical relationship between law and ethics. Its methodology is informed by both the existentialist tradition of ethical phenomenology and the natural law tradition in legal theory. The main claim of the thesis is that a phenomenological analysis of ethical experience, as suggested by the writings of existentialist authors such as Jean-Paul Sartre and Emmanuel Levinas, provides important support for the natural law tradition. This claim is developed and defended through detailed engagement with the natural law theory of John Finnis. Specifically, I contend that Finnis’s account of moral reasoning as applying the principles of practical reasonableness to a context of self-evident, basic values gains significant support from a phenomenological theory of ethical experience. Finnis’s emphasis on the irreducible role of choice in moral deliberation also finds support in the existentialist tradition. However, I criticise some key aspects of Finnis’s theory, including his emphasis on the transcendental character of the basic values and his account of legal obligation. I begin by outlining some central features of the existentialist approach to philosophy. I advance an interpretation of existentialism as ethical phenomenology. I then discuss some possible methodological connections between the existentialist and natural law traditions. This discussion provides the methodological framework for the remainder of the thesis. The thesis develops and defends a substantially original theory of the relationships between law, ethics and politics. The exposition begins with an account of the relationship between law and community that draws upon the work of Finnis and G. W. F. Hegel. I then outline a phenomenological theory of ethical experience, drawing in particular on the writings of Sartre and Levinas. I employ this phenomenological account of ethics to develop a conception of moral reasoning as reflective, good faith engagement with pre-reflective social judgements of ethical significance. This view of ethical experience and moral reasoning is then used as the basis for an examination of the concept of law and its relationship to political discourse. I turn next to the notions of legal authority and obligation. I argue that law, in the focal sense of the term, presents a generic, peremptory obligation that is necessarily moral in character. In the course of the argument, I critically discuss the conceptions of legal authority proposed by Joseph Raz, Adolf Reinach, H. L. A. Hart, John Rawls, Finnis, Jacques Derrida and Hans Kelsen. This view of legal obligation entails there are fundamental moral conditions that positive rules must satisfy to qualify as law, in the focal sense. I explore the nature of the moral framework created by these conditions through a detailed analysis of the ethical foundations of political discourse. I argue that political discourse is founded upon an ontological apprehension of the nature of humans as free, ethical beings, which finds expression in a developed notion of political freedom. I suggest that the distinction between positive and negative forms of freedom advanced by Isaiah Berlin is best understood in terms of the different types of political claims invoked by those conceptions. I develop this theory by reference to the work of Charles Taylor, Gerald C. MacCallum, Wesley Newcomb Hohfeld, W. D. Ross, Robert Nozick and F. A. Hayek. I conclude by discussing the role of ethical experience in the interpretation of legal materials. I argue that ethical judgements play an irreducible role in constructing the natural interpretive context for judicial reasoning. I engage with the work of Hart, Lon L. Fuller, Martin Heidegger, Hans-Georg Gadamer, Ferdinand de Saussure and Ronald Dworkin, among others. In the final substantive chapter of the thesis, the potential for ethical judgements to play a constructive role in judicial action is illustrated through a detailed discussion of the doctrine of government neutrality.