Legal Theories : Contexts and Practices [2nd ed.]

Legal Theories: Contexts and Practices presents legal theory as a living and evolving entity. The reader is brought into its story as an active participant who is challenged to think about where they sit within the history and traditions of legal theory and jurisprudence. This second edition explores how lawyers and the courts adopt theoretical and jurisprudential positions and how they are influenced by the historical, social, cultural, and legal conditions characteristic of the time in which they live. It considers how legal theories, too, are influenced by those conditions, and how these combined forces influence and continue to affect contemporary legal thinking and legal interpretation.

Inference and hypothesis in ethnographic studies

This chapter explores the possibility and exigencies of employing hypotheses, or educated guesses, as the basis for ethnographic research design. The authors’ goal is to examine whether using hypotheses might provide a path to resolve some of the challenges to knowledge claims produced by ethnographic studies. Through resolution of the putative division between qualitative and quantitative research traditions , it is argued that hypotheses can serve as inferential warrants in qualitative and ethnographic studies.

Heathcote’s practice-led teaching: Pioneering research as well as pioneering pedagogy

It is widely recognized that Dorothy Heathcote was a dynamic and radical teacher who transformed and continually reinvented drama teaching. She did this by allowing her emerging thinking and understandings to flow from, and be tested by, regular and intensive ‘practicing’ in the classroom. In this way theoretical claims were grounded and evidenced in authentic classroom practice. And yet, for all her impact, it is rare to hear the claim that Heathcote’s pedagogic breakthroughs resulted from a legitimate research methodology. Clever and charismatic teaching yes; research no. One of the world’s best teachers certainly, but not a researcher; even though every lesson was experimental and every classroom was a site for discovery. This paper investigates that conundrum firstly by acknowledging that Heathcote’s practice-led teaching approach to discovery did not map comfortably on to the established educational research traditions of the day. It argues that traditional research methodologies, with their well-established protocols and methods, could not understand or embrace a research process which does its work by creating ‘fictional realities’ of openness, allegory and uncertainty. In recent years however it can be seen that Heathcote’s practice led-teaching, so essential for advancing the field, closely aligns with what many contemporary researchers are now calling practice-led research or practice as research or, in many Nordic countries, artistic research. A form of performative research, practice-led research has not emerged from the field of education but rather from the creative arts. Seeking to develop ways of researching creative practice which is deeply sympathetic and respectful of that practice, artist-researchers have developed practice-led research “which is initiated in practice, where questions, problems, challenges are identified and formed by the needs of practice and practitioners” (Grey, 1996). This sits comfortably with Heathcote’s classroom priority of “discovering by trial, error and testing; using available materials with respect for their nature, and being guided by this appreciation of their potential” (Heathcote, 1967). The paper will conclude by testing the dynamics of Heathcote’s practice-led teaching against the six conditions of practice-led research (Haseman&Mafe, 2011), a testing which will allow for a re-interpretation and re-housing of Dorothy Heathcote’s classroom-based teaching methodology as a form of performative research in its own right.

Geography and international assessment: Opportunity or distraction

Assessments of students in primary and secondary education are debated among practitioners, policy-makers, and parents. In some countries, assessment scores serve a criterion for passage between levels of education, for example, from secondary school to post-secondary education. Those practices are often traditions and while they come under criticism, they are a long-accepted part of the educational practices within a country. In those countries, the students’ assessment and examination scores are posted in public places or published in local news media. In other countries, assessments are used for the periodic checks on individual student progress. The results of assessments may be used for rating schools, and in some cases, they are used for evaluating the performance of teachers. Assessments are used less often to analyze student performance and make judgments regarding the performance of the curriculum. Even less often, assessments serve to critically establish strategies for the improvement of student learning and educational practices. The ends on the continuum of the assessment debate often focus on the opportunities that assessments present to improve education on one end. The other end is that assessments serve as a major distraction from the important work of teachers by removing classroom room time from instruction. The debate on those issues continues.

Privacy, modesty, hospitality and the design of Muslim homes in Australia

The home environment is conceptualised in prolific ways within the academic literature. A home is an unparalleled base for human settlement and habitation that embodies a sensorial space that is layered with personal memories and traces of history. The success of a home in providing a strong ‘sense of place’ depends on various factors such as geographical location, monetary funds or personal perceptions. A home too, is an influential medium that allows its dwellers to express, perform and continue their cultural traditions and religious faiths. Traditional Islamic teachings and practices involve guidelines that apply directly to the domestic space. The principles of privacy, modesty and hospitality are paramount to these guidelines and each has a significant influence upon the design of Muslim homes and the home owners’ or dwellers’ domestic behaviours. Despite a significant increase of Muslim population in Australia over the last decade, very little is known about their perceptions of domestic life and their use of domestic spaces within an Australian context. This research investigated on how Muslims in Brisbane live and adapt within their Australian homes and if these homes meet their personal and familial needs to perform their daily activities, as well as maintaining and practising their Islamic faiths and traditions. Specific attention has been given to their perceptions on tripartite principles of privacy, modesty, and hospitality (PMH) and how they achieve these three objectives. A qualitative case study approach was used to investigate six Muslim families living in four Brisbane suburbs, consisting of: a) Case Study 1: three Muslim families residing in one suburb of Brisbane and, b) Case Study 2: three international Muslim students living in three different Brisbane suburbs. This research indicates that apart from minor ‘design-related’ difficulties, case study participants were able to continue to perform their daily activities within their current homes through minor changes to the use of the available interior spaces. Above all, case study participants opined that their current Australian homes provide them with adequate safety and privacy for their families without any major disturbances. Insight gained from these cases suggests that greater research attention needs to be given to the potential development of Australian home designs that are adaptable to the ever-changing needs of the Australian multicultural society. Awareness of the multifactorial nature of the influences on Muslims’ perceptions of home and their use of domestic space is needed if architects, building designers, engineers and builders are to be properly equipped to meet the needs of their Muslim clients.

Perceived safety, quality and cultural competency of maternity care for culturally and linguistically diverse women in Queensland

Various policies, plans, and initiatives have been implemented to provide safe, quality, and culturally competent care to patients within Queensland’s healthcare system. A series of models of maternity care are available in Queensland that range from standard public care to private midwifery care. The current study aimed to determine whether identifying as Culturally or Linguistically Diverse (CALD) was associated with the perceived safety, quality, and cultural competency of maternity care from a consumer perspective, and to identify specific needs and preferences of CALD maternity care consumers. Secondary analysis of data collected in the Having a Baby in Queensland Survey 2012 was used to compare the experiences of 655 CALD women to those of 4049 non-CALD women in Queensland, Australia, across three stages of maternity care: pregnancy, labour and birth, and after birth. After adjustment for model of maternity care received and socio-demographic characteristics, CALD women were significantly more likely than non-CALD women to experience suboptimal staff technical competence in pregnancy, overall perceived safety in pregnancy and labour/birth, and interpersonal sensitivity in pregnancy and labour/birth. Approximately 50% of CALD women did not have the choice to use a translator or interpreter, or the gender of their care provider, during labour and birth. Thirteen themes of preferences and needs of CALD maternity care consumers based on ethnicity, cultural beliefs, or traditions were identified, however, these were rarely met. Findings imply that CALD women in Queensland experience disadvantageous maternity care with regards to perceived staff technical competence, safety, and interpersonal sensitivity, and receive care that lacks cultural competence. Improved access to support persons, continuity and choice of carer, and staff availability and training is recommended.

Striving for a better world: Lessons from Freire in Grenada, Jamaica and Australia

The author of this paper considers the influence of Paulo Freire’s pedagogical philosophy on educational practice in three different geographical/political settings. She begins with reflections on her experience as a facilitator at Freire’s seminar, held in Grenada in 1980 for teachers and community educators, on the integration of work and study. This case demonstrates how Freire’s method of dialogic education achieved outcomes for the group of thoughtful collaboration leading to conscientisation in terms of deep reflection on their lives as teachers in Grenada and strategies for decolonising education and society. The second case under consideration is the arts-based pedagogy shaping the work of the Area Youth Foundation (AYF) in Kingston, Jamaica. Young participants, many of them from tough socio-economic backgrounds, are empowered by learning how to articulate their own experiences and relate these to social change. They express this conscientisation by creating stage performances, murals, photo-novella booklets and other artistic products. The third case study describes and evaluates the Honey Ant Reader project in Alice Springs, Australia. Aboriginal children, as well as the adults in their community, learn to read in their local language as well as Australian Standard English, using booklets created from indigenous stories told by community Elders, featuring local customs and traditions. The author analyses how the “Freirean” pedagogy in all three cases exemplifies the process of encouraging the creation of knowledge for progressive social change, rather than teaching preconceived knowledge. This supports her discussion of the extent to which this is authentic to the spirit of the scholar/teacher Paulo Freire, who maintained that in our search for a better society, the world has to be made and remade. Her second, related aim is to raise questions about how education aligned with Freirean pedagogy can contribute to moving social change from the culture circle to the public sphere.

Knowledge, identity, and dilemmas of the self in physical education teacher education

This study draws on an eclectic range of influences. The early research was guided by the traditions of Personal Construct Theory. The study was later extended by drawing on theoretical tenets of social constructionism and the notion of the Saturated Self and Anthony Gidden's work on structuration and his later work on self identity. This has provided a new way of investigating how becoming a PE teacher through constructed knowledge established a professional identity. The data suggest that during the process of constructing professional knowledge, the students forge their identities by establishing 'position' and 'role'. In doing so, the participants in this study experienced a series of dilemmas of professional self. These dilemmas are a product of what Giddens calls high modernity and what Gergen refers to as postmodernity. It seems that to become a PE teacher, the dilemmas must be worked through until a position of ontological security has been achieved. For some this was profoundly difficult. In spite of this, the methods of study allowed the participants to begin to articulate their theories and visions of teaching physical education, and the therapeutic qualities of Kelly's theory encouraged many of the students to 'see it differently' (Rossi, 1997) and to begin to develop a rationale for professional work in physical education based on socially just practices.

Reconnecting theory and practice in pluralistic contexts: Issues and Aristotelian considerations

The purpose of this article is to contribute, from a research practitioner perspective, to the theory–practice gap debate in organization studies, focusing on pluralistic contexts such as project organizing. The current debate is introduced; then the features of the two main philosophical traditions (i.e., modernism and postmodernism) are critically summarized. Then, propositions to reconnect theory and practice according to the Aristotelian premodern ethical and practical philosophy are discussed. Some key implications in the following areas are outlined: roles played by practitioners and scholars; emancipatory praxeological style of reasoning; closing the “phronetic gap”; and the development of “good practice,” ethics, and politics.

‘Beyond all the trends’: Torres Strait Island foods, past, present and future

While trends are cyclical, Indigenous perspectives offer continuity to life’s pathways. One of the current trends is the increasing culinary interest in Indigenous Australian foods, not just in restaurants, but also in home kitchens. This is a recent trend despite Indigenous foods being nutritious and wholesome, and sustaining Indigenous peoples for thousands of years. Home Economics can support, foster and affirm Indigenous foods both within this current mainstream trend and in the future in life sustaining ways. In order to do so, Home Economics need’s to ensure it is prepared, and skilled, with the appropriate knowledge and regard for Indigenous ingredients, foods and foodways. This paper will focus on Torres Strait Islander foods from the Torres Strait and from mainland Australia. It will showcase Torres Strait foods is the past, present and the future. Some of what is presented here is part of a research case study, which involves a literature review, data collection, and photography. In documenting the history of Torres Strait Island food and foodways, the traditions and customs will be kept alive for future generations, and beyond any trends or fashions.

Local experiences, global similarities: Teacher perceptions of the impacts of national testing

Since 2008, Australian schoolchildren in Years 3, 5, 7 and 9 have sat a series of tests each May designed to assess their attainment of basic skills in literacy and numeracy. These tests are known as the National Assessment Program – Literacy and Numeracy (NAPLAN). In 2010, individual school NAPLAN data were first published on the MySchool website which enables comparisons to be made between individual schools and statistically like schools across Australia. NAPLAN represents the increased centrality of the federal government in education, particularly in regards to education policy. One effect of this has been a recast emphasis of education as an economic, rather than democratic, good. As Reid (2009) suggests, this recasting of education within national productivity agendas mobilises commonsense discourses of accountability and transparency. These are common articles of faith for many involved in education administration and bureaucracy; more and better data, and holding people to account for that data, must improve education...

A Submission to the Joint Standing Committee on Treaties on the Anti-Counterfeiting Trade Agreement 2011 (# ACTA)

“If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.” David Fewer “While European and American IP maximalists have pushed for TRIPS-Plus provisions in FTAs and bilateral agreements, they are now pushing for TRIPS-Plus-Plus protections in these various forums.” Susan Sell “ACTA is a threat to the future of a free and open Internet.” Alexander Furnas “Implementing the agreement could open a Pandora's box of potential human rights violations.” Amnesty International. “I will not take part in this masquerade.” Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European Parliament Executive Summary As an independent scholar and expert in intellectual property, I am of the view that the Australian Parliament should reject the adoption of the Anti-Counterfeiting Trade Agreement 2011. I would take issue with the Department of Foreign Affairs and Trade’s rather partisan account of the negotiations, the consultations, and the outcomes associated with the Anti-Counterfeiting Trade Agreement 2011. In my view, the negotiations were secretive and biased; the local consultations were sometimes farcical because of the lack of information about the draft texts of the agreement; and the final text of the Anti-Counterfeiting Trade Agreement 2011 is not in the best interests of Australia, particularly given that it is a net importer of copyright works and trade mark goods and services. I would also express grave reservations about the quality of the rather pitiful National Interest Analysis – and the lack of any regulatory impact statement – associated with the Anti-Counterfeiting Trade Agreement 2011. The assertion that the Anti-Counterfeiting Trade Agreement 2011 does not require legislative measures is questionable – especially given the United States Trade Representative has called the agreement ‘the highest-standard plurilateral agreement ever achieved concerning the enforcement of intellectual property rights.’ It is worthwhile reiterating that there has been much criticism of the secretive and partisan nature of the negotiations surrounding the Anti-Counterfeiting Trade Agreement 2011. Sean Flynn summarizes these concerns: "The negotiation process for ACTA has been a case study in establishing the conditions for effective industry capture of a lawmaking process. Instead of using the relatively transparent and inclusive multilateral processes, ACTA was launched through a closed and secretive “‘club approach’ in which like-minded jurisdictions define enforcement ‘membership’ rules and then invite other countries to join, presumably via other trade agreements.” The most influential developing countries, including Brazil, India, China and Russia, were excluded. Likewise, a series of manoeuvres ensured that public knowledge about the specifics of the agreement and opportunities for input into the process were severely limited. Negotiations were held with mere hours notice to the public as to when and where they would be convened, often in countries half away around the world from where public interest groups are housed. Once there, all negotiation processes were closed to the public. Draft texts were not released before or after most negotiating rounds, and meetings with stakeholders took place only behind closed doors and off the record. A public release of draft text, in April 2010, was followed by no public or on-the-record meetings with negotiators." Moreover, it is disturbing that the Anti-Counterfeiting Trade Agreement 2011 has been driven by ideology and faith, rather than by any evidence-based policy making Professor Duncan Matthews has raised significant questions about the quality of empirical evidence used to support the proposal of Anti-Counterfeiting Trade Agreement 2011: ‘There are concerns that statements about levels of counterfeiting and piracy are based either on customs seizures, with the actual quantities of infringing goods in free circulation in any particular market largely unknown, or on estimated losses derived from industry surveys.’ It is particularly disturbing that, in spite of past criticism, the Department of Foreign Affairs and Trade has supported the Anti-Counterfeiting Trade Agreement 2011, without engaging the Productivity Commission or the Treasury to do a proper economic analysis of the proposed treaty. Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European Parliament, quit his position, and said of the process: "I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly. As rapporteur of this text, I have faced never-before-seen manoeuvres from the right wing of this Parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the Parliament of its right to expression and of the tools at its disposal to convey citizens' legitimate demands.” Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our geographical indications. This agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade." There have been parallel concerns about the process and substance of the Anti-Counterfeiting Trade Agreement 2011 in the context of Australia. I have a number of concerns about the substance of the Anti-Counterfeiting Trade Agreement 2011. First, I am concerned that the Anti-Counterfeiting Trade Agreement 2011 fails to provide appropriate safeguards in respect of human rights, consumer protection, competition, and privacy laws. It is recommended that the new Joint Parliamentary Committee on Human Rights investigate this treaty. Second, I argue that there is a lack of balance to the copyright measures in the Anti-Counterfeiting Trade Agreement 2011 – the definition of piracy is overbroad; the suite of civil remedies, criminal offences, and border measures is excessive; and there is a lack of suitable protection for copyright exceptions, limitations, and remedies. Third, I discuss trade mark law, intermediary liability, and counterfeiting. I express my concerns, in this context, that the Anti-Counterfeiting Trade Agreement 2011 could have an adverse impact upon consumer interests, competition policy, and innovation in the digital economy. I also note, with concern, the lobbying by tobacco industries for the Anti-Counterfeiting Trade Agreement 2011 – and the lack of any recognition in the treaty for the capacity of countries to take measures of tobacco control under the World Health Organization Framework Convention on Tobacco Control. Fourth, I note that the Anti-Counterfeiting Trade Agreement 2011 provides no positive obligations to promote access to essential medicines. It is particularly lamentable that Australia and the United States of America have failed to implement the Doha Declaration on the TRIPS Agreement and Public Health 2001 and the WTO General Council Decision 2003. Fifth, I express concerns about the border measures in the Anti-Counterfeiting Trade Agreement 2011. Such measures lack balance – and unduly favour the interests of intellectual property owners over consumers, importers, and exporters. Moreover, such measures will be costly, as they involve shifting the burden of intellectual property enforcement to customs and border authorities. Interdicting, seizing, and destroying goods may also raise significant trade issues. Finally, I express concern that the Anti-Counterfeiting Trade Agreement 2011 undermines the role of existing international organisations, such as the United Nations, the World Intellectual Property Organization and the World Trade Organization, and subverts international initiatives such as the WIPO Development Agenda 2007. I also question the raison d'être, independence, transparency, and accountability of the proposed new ‘ACTA Committee’. In this context, I am concerned by the shift in the position of the Labor Party in its approach to international treaty-making in relation to intellectual property. The Australian Parliament adopted the Australia-United States Free Trade Agreement 2004, which included a large Chapter on intellectual property. The treaty was a ‘TRIPs-Plus’ agreement, because the obligations were much more extensive and prescriptive than those required under the multilateral framework established by the TRIPS Agreement 1994. During the debate over the Australia-United States Free Trade Agreement 2004, the Labor Party expressed the view that it would seek to mitigate the effects of the TRIPS-Plus Agreement, when at such time it gained power. Far from seeking to ameliorate the effects of the Australia-United States Free Trade Agreement 2004, the Labor Government would seek to lock Australia into a TRIPS-Double Plus Agreement – the Anti-Counterfeiting Trade Agreement 2011. There has not been a clear political explanation for this change in approach to international intellectual property. For both reasons of process and substance, I conclude that the Australian Parliament and the Australian Government should reject the Anti-Counterfeiting Trade Agreement 2011. The Australian Government would do better to endorse the Washington Declaration on Intellectual Property and the Public Interest 2011, and implement its outstanding obligations in respect of access to knowledge, access to essential medicines, and the WIPO Development Agenda 2007. The case study of the Anti-Counterfeiting Trade Agreement 2011 highlights the need for further reforms to the process by which Australia engages in international treaty-making.

The positioning of palliative care in acute care: A multiperspective qualitative study in the context of metastatic melanoma

Objective: The positioning and meaning of palliative care within the healthcare system lacks clarity which adds a level of complexity to the process of transition to palliative care. This study explores the transition to the palliative care process in the acute care context of metastatic melanoma. Method: A theoretical framework drawing on interpretive and critical traditions informs this research. The pragmatism of symbolic interactionism and the critical theory of Habermas brought a broad orientation to the research. Integration of the theoretical framework and grounded-theory methods facilitated data generation and analysis of 29 interviews with patients, family carers, and healthcare professionals. Results: The key analytical findings depict a scope of palliative care that was uncertain for users of the system and for those working within the system. Becoming “palliative” is not a defined event; nor is there unanimity around referral to a palliative care service. As such, ambiguity and tension contribute to the difficulties involved in negotiating the transition to palliative care. Significance of Results: Our findings point to uncertainty around the scopes of practice in the transition to palliative care. The challenge in the transition process lies in achieving greater coherency of care within an increasingly specialized healthcare system. The findings may not only inform those within a metastatic melanoma context but may contribute more broadly to palliative practices within the acute care setting.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

Wife beating: A measure to deal with marital disharmony or a license for misconduct

Wife beating is not a new phenomena rather it has been practiced from pre historic time till date. This was due to the fact that in all the civilizations and under all religions, woman was considered subjugated to men. Her natural physical weakness had also made her vulnerable for violence. Islam reinforced womanhood by protecting her rights and providing her respect in the family and society at large. However, it is not interpreted accurately in male dominant society due to the existence of a patriarchal social setup. Adding to the ignorance regarding the position of women in Islam, the presence of injustice and mal practices in contemporary Muslim societies has been taken up as a weak point of Islam by non Muslims as well by less informed Muslims. The reasons for denying women’s rights in Pakistani society could be summed up as lack of education, ignorance about Islamic teachings, feudal and tribal cultural traditions, male dominated patriarchal attitudes, poverty, unemployment and misinterpretations regarding precise teachings of Quran and Sunnah. There are many misconceptions regarding the stance of Islam on wife beating as well. It is commonly understood that Islam gives permission for wife beating in the Quranic verse 4:34. This article will describe the relationship between husband and wife in the light of Quranic verse4:34 and will explore the sanctions of wife beating and its dimensions. Furthermore, it will aim to remove misunderstandings and prejudged opinions related to the concerned issue, in the light of Quran and Sunnah.