Thabo Meli revisited : the pernicious effects of results-driven decisions

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

The novel as social satire: 60 years later, the wind done gone and the limitations of fair use

The absence of the doctrine of fair use from Australian copyright law has been a bone of contention in Australia after the Australia-United States Free Trade Agreement (FTA). As the Australian government reformed the Copyright Act 1968 (Cth) in the aftermath of the FTA it eschewed the option of adopting fair use. Instead, Australia chose to incorporate a version of fair use into its existing fair dealing framework. Accordingly, the Copyright Amendment Act 2006 (Cth) inserted ss 41A and 103AA into the Copyright Act. These provisions provide that a fair dealing with a copyright protected work does not constitute an infringement if it is done for the purposes of parody or satire. These provisions codify part of the ratio of the United States Supreme Court in the seminal case of Campbell v Acuff Rose Music. However, the parameters of these new provisions are unexplored and the sparse nature of fair dealing jurisprudence means that the true meaning of the provisions is unclear. Moreover, two cases from the United States, SunTrust Bank v Houghton Mifflin and Salinger v Colting, underline just how important it is to have legal rules that protect literary ‘re-writes’. Both cases involved authors using an original novel to ‘write back’ to the original author and the broader culture. ‘Writing back’ or the ‘re-write’ has a firm basis in literature. It adds something invaluable to our culture. The key question is whether our legal landscape can allow it to flourish. This paper examines the interaction between fair use and literary re-writes.

The (zen) Buddhist heart of I ♥ Huckabees

 This paper offers a Buddhist reading of I ♥ Huckabees (2004). I begin with an overview of director David O. Russell's Zen influence to reveal how he weaves the Buddhist metaphor of Indra's net (a metaphor for the doctrine of pratitya-samutpada) and the principles of meditation into the narrative. The main objective, however, is to demonstrate that Russell doesn't merely re-present Buddhist ideals but also attempts to "practice" Buddhism by using the visual vernacular of contemporary media culture to rework film as meditation and meditation as film. In weaving Buddhist ideals into his satire on contemporary culture, I argue that Russell is engaging us in religious and ethico-political reflection.

Why is there nothing rather than something? An essay in the comparative metaphysics of nonbeing

The paper is an essay in the comparative metaphysics of nothingness that begins by pondering why Leibniz thought of the opposite question as the preeminent one. In Eastern philosophical thought, like the numeral ‘zero’ (śānya) that Indian mathematicians first discovered, nothingness as non-being looms large and serves as the first quiver on the imponderables they seem to have encountered (e.g. ‘In the beginning was neither non-being nor being’ RgVeda X.129). The concept of non-being and its permutations of nothing, negation, nullity, receive more sophisticated treatment in the works of grammarians, ritual hermeneuticians, logicians, and their dialectical adversaries, variously across Jaina and Buddhist schools, in respect of the function of negation /the negative copula, nãn, fraying into ontologies of non-existence and extinction; not least also the suggestive tropes that tend to arrest rather than affirm the inexorable being-there of something. After some passing references to interests in non-being and nothingness in contemporary (Western) thinking, the paper dwells at some length on Heidegger’s extensive treatment of nothingness in his 1927 inaugural lecture ‘Was ist Metaphysik?’, published later as What is Metaphysics? The essay however distances itself from any pretensions toward a doctrine of Nihilism.

Functionalism, co-operation, good faith, and the making of the "daily-preventive justice" in contract law theory and practice. A contribution to a rational understanding of good faith and to its future reseasonable developments. Evaluations from

The thoughts and observations contained in this paper were first presented in a preliminary form at the Staff Seminar that I gave at the University of Cape Town (UCT) - Department of Private Law, on Tuesday May 8 2012. The organizers generously offered me a free choice of subject. Such an offer always poses a problem to imaginative people like myself. I finally chose as my subject the role of good faith in contract law theory and practice and then entitled the Seminar “Good Faith & Contracts - Brothers in Arms”. The aim of the talk was to briefly describe what I see behind the doctrine of good faith (and, more broadly, behind the general course of the parties’ behavior before and after the conclusion of an agreement), to then explain the need of its protection and future reasonable developments by challenging the limitations of both traditional and current legal approaches to contract law theory and practice. By adopting a comparative modus investigandi, it emerged that especially in the area of contract law a new law-finding process is emerging in the European continent and it is leading to re-conceive the meta-national legislative interventions by challenging the limits of Hobbes’s Leviathan. As asserted, we ought to not take this process for granted because although there are many forms of social organization, contract is the most pervasive and the law of contract still is the most important vehicle to support and supplement private arrangements. However, the point of departure for theorizing about private law is based on experience. Consequently, despite the growing emphasis on the convergence of national legal systems in Europe, conducting research on private law theory and practice requires that imagination and creativity be matched with prudence. Proficiency has to be aligned with what we have learned from history.

A critique of the political theology of Slavoj Zizek

This chapter critiques the political theology of Slavoj Zizek as beset by social theoretical and strategic political problems. Political theology here is a privileged intellectual terrain on which to simultaneously resolve questions about liberating forms of social cohesion in a post-revolutionary political community and about cultural strategy in the radical program. In connection with the Marxist critique of religious ideology, Zizek’s work represents an important contribution to the research program that emerged from the Althusserian approaches to social theory. But although Zizek has the conceptual resources to generate a dialectical theory of the connection between religious ideology and political strategy, he instead opts for a theory of radical rupture with existing forms of life. Detoured through the encounter with Carl Schmitt, Zizek’s doctrine of radical rupture quickly becomes an inverted Schmittianism, freighted with the problems of the militarisation of politics and the arbitrary designation of enemies that he diagnoses in Schmitt, but does not transcend in his own response. Zizek’s figure of the “religious suspension of the ethical” brings the politics of rupture to its most problematic (and baroque) formulations, revealing the fundamental problem of the ideological representation of political structures.

The right to privacy and corporations

Traditionally the right of privacy has not been recognised at common law. However, recently the High Court has indicated that it may be willing to develop a new tort of invasion of privacy. Several of the justices have stated that the new action would only relate to natural persons, not corporations. This is because the principles said to underpin the right to privacy, autonomy and dignity, are supposedly inapposite to corporations. This article argues that this reasoning is flawed. Neither the right to autonomy nor dignity is capable of underpinning the right to privacy. Hence, no sustainable basis has so far been advanced for restricting the availability of any future tort of invasion of privacy to individuals. This article also questions whether a separate tort is needed in view of the protection already provided to the privacy interests of individuals and corporations under the equitable doctrine of confidence.

Criminal responsibility based on complicity among corporate officers

In a 2001 Issues Paper entitled 'Sentencing: Corporate Offenders', the New South Wales Law Reform Commission outlined a number of reasons for not ascribing liability to individuals within a corporation for unlawful acts arising from the operation of the corporation. One of the reasons raised in the Issues Paper, a reason traditionally used to avoid liability being imposed on individuals for corporate crimes, is that it is conceptually difficult to look behind the form to the substance of a corporate crime in order to establish liability for individual acts, when on the surface the unlawful conduct was caused by a corporation as a collective body. In this article, the authors challenge this position by suggesting that the doctrine of complicity can be used to [*2] pierce the corporate veil and direct criminal liability to those individuals who control the actions of the company. This proposition that company officers can be found liable pursuant to the principles regarding accessorial responsibility is not novel. However, what is unusual is the infrequency with which this wide ranging doctrine is applied in the corporate setting. The focus of this article is to underline the relevance of this doctrine to corporate offenders and, in the process, to assert that the problems of punishing corporate offenders are in principle no different to punishing other crimes which are committed by more than the one offender and can be addressed by the proper application of existing legal principles.

Feudal tenure and native title: revising an enduring fiction

This article argues that the feudal doctrine of tenure continues to endure as the foundation for Australian land law despite its obvious social and historical irrelevance. The doctrine of tenure is a derivation of feudal history. The article examines some of its historical foundations with the aim of highlighting the disparity between the fiction of this inherited form and the reality of a colonial Australian landscape. Particular attention is given to the fact that Australian feudal tenure was always a passive framework. It was disconnected with the landscape and therefore incapable of responding to the needs of colonial expansion. This resulted in a clear disparity between feudal form and the reality of a land system populated by statutory grants. The article argues that feudal tenure was never truly devised as a responsive land system but rather, adopted as a sovereignty device. In this sense, legal history was utilised with the aim of promoting imperial objectives within colonial Australia. Tenure was equated with absolute Crown ownership over all Australian territory despite the fact that this was inconsistent with the orthodox tenets of feudal tenure.
The article argues that the consequence of adopting feudal tenure and absolute Crown ownership has been the estrangement of indigenous rights, title and culture. The creation and legitimisation of a land framework with a fundamentally Eurocentric perspective completely destroyed indigenous interests during the settlement and colonial era. It created an imperial ideology where colonists silently accepted the denial of indigenous identity. The decision of the Mabo High Court to reassess this historical perspective and accept the validity of proven native title claims clearly disturbed tenurial assumptions. However, the High Courts' reification of the feudal form created a fundamental paradox: indigenous title was accepted as a proprietary right within a framework incapable of and unequipped to recognise the fundamentally different cultural perspectives of customary ownership. The article argues that native title cannot evolve within a common law framework that regards ownership as a derivation of the English Crown. It is suggested that ultimately, a pluralist property culture, where indigenous and non-indigenous title exist as equalised entities, can only be properly nurtured with the full and absolute abolition of the feudal doctrine of tenure.

Howard, Downer and the Liberals' realist tradition

The successive Howard Governments sought not only to make foreign policy in response to new regional and global agendas, but to respond to and to seek to manage new forms of electoral challenge with new forms of nationalism. This has resulted in a set of important departures from the major Liberal tradition in international affairs, the claim to a realist approach to foreign policy, and has led to the need to manage the consequences of those departures. The boundary that realism sought to draw between the domestic and international politics, as the spheres of values and interests respectively, became increasingly blurred. In relations with the Asian region the expression of strong domestic (nationalist and internationalist) agendas led initially to distancing from Asian engagement. However, from 2002, a more realist-focused external policy led to new forms of state to state re-engagement in pursuit of national interests. In the commitment to military operations in Iraq, the Anzac legend is interpreted to supply nationalist legitimation which would not normally be required for wars fought for realist (i.e. defensive) reasons. A future Liberal prime minister would lack Howard's touch here. In the debate in the Liberal Party over defence doctrine, an attempt by the Defence Minister to reformulate the realist doctrine of Defence of Australia into an expeditionary construct was rejected.

Substituted consent : from lunatics to corpses

This analysis traces the origins and evolution of the doctrine of surrogate or substituted judgment, especially its application to medical treatment, including non-therapeutic sterilisation, decisions regarding life and death choices, and more recently, removal of sperm or eggs from incompetent, dying or dead males and females. It argues that the doctrine, which has been acknowledged to be a legal fiction, has an effect of devolving legal and moral responsibility for life and death choices, as well as non-consensual, non-beneficial intrusive procedures, from the competent decision-makers to the incompetent patient. It focuses on the subjective nature of the substituted judgment standard; the problematic nature of evidence propounded to establish the putative choices of the incompetent person; lack of transparency relating to the conflict of interest in the process of substituted judgment decision-making; and the absence of voluntariness, which is an essential element of a valid consent.

Australian property law: cases, materials and analysis

"CONTENTS: Concepts of Property; Possession and Title; Fixtures, Encroachment and Boundaries; Adverse Possession; The Doctrine of Tenure and Estates; Leases; Native Title; Equitable Interests; Priority Rules; The Torrens System; Unregistered Interests; Easements; Covenants; Mortgages; Co-ownership."--Provided by publisher.

Death

While death is a central topic from Kierkegaard's earliest journals to the last writings leading up to his 'martyrdom,' he treats death as essentially mysterious. In the Concluding Unscientific Postscript, Johannes Climacus insists that he has not understood death, while the discourse "At a Graveside" speaks of death as "undefinable" and a "riddle." Kierkegaard is also particularly averse to discussing the nature of the afterlife, leading some to claim he views the afterlife merely as a heuristic device for teaching the living to live well. However, Kierkegaard rejects neither the Christian doctrine of resurrection nor the notion of posthumous survival more broadly; rather, the essential moral meaning of death for the living has the interesting effect of making many ways of talking about death morally illegitimate

Catholic girls: the mother-daughter nexus

This paper examines Catholic girlhood, womanhood and the mother–daughter
relationship, and its socio-historical construction within a range of disparate
discourses. The aim of the paper is to deconstruct dominant patriarchal
constructions and images of femininity, particularly those embedded within the
doctrine of Catholicism. Moreover, the paper intends to reveal traces of maternal
connections and relations which are often hidden by more dominant discourses.
Rather than providing a historical account of Catholic girlhood, the object is to tell
a perspectived story of the local and contextual experiences of growing up and
being educated to be a ‘good Catholic woman’ in suburban Melbourne, Australia
in the 1920s and 1960s. In telling the story it is hoped that other women can
momentarily engage with this narrative of Catholic girlhood and the mother–
daughter relationship.