In Natural Law and Natural Rights, John Finnis delves into the past, attempting to revitalise the Thomist natural law tradition cut short by opposing philosophers such as David Hume. In this article, Finnis’s efforts at revival are assessed by way of comparison with—and, indeed, contrast to—the life and art of musician David Bowie. In spite of their extravagant differences, there exist significant points of connection that allow Bowie to be used in interpreting Finnis’s natural law. Bowie’s work—for all its appeals (...) to a Nietzschean ground zero for normative values—shares Finnis’s concern with ordering affairs in a way that will realise humanity’s great potential. In presenting enchanted worlds and evolved characters as an antidote to all that is drab and pointless, Bowie has something to tell his audience about how human beings can thrive. Likewise, natural law holds that a legal system should include certain content that guides people towards a life of “flourishing”. Bowie and Finnis look to the past, plundering it for inspiration and using it as fuel to boost humankind forward. The analogy of Natural Law and Natural Rights and Bowie’s magpie-like relationship to various popular music traditions ultimately reveals that natural law theory is not merely an objective and unchanging edict to be followed without question, but a legacy that is to be recreated by those who carry it into the future. Law’s instruments of critique must not forget these transformative qualities. (shrink)

The rise in popularity in recent times of dystopian fiction is reflective of contemporary anxieties about law: the inhumanity of judicial-coercive machinery; the influence of corporate power; the lack of democratic imagination despite the desperate need for political reform; and the threat of order imposed through violence and victimisation. These dystopian texts often tell fear-inducing stories of law’s failure to protect; or of law’s unsuccessful struggle against unbridled power; or even sometimes of law’s ‘bastardised’ reconstruction. Indeed comics, with their visual (...) and narrative intricacies, thrive on dystopia as a key vehicle for contributing to collective notions of fear and trembling about the future. Yet, at the same time, these texts also contain within them the blueprints for hope—the idea that with transformation, heroic intervention, and/or faith in ‘justice’, the law will ultimately prevail. Law’s ability to be transformed is thus simultaneously portrayed as society’s downfall, AND as the key to enlivening humanity. This article attempts to understand this schismatic role of law as presented in the recent dystopian comic book series From Above by Australian creator Craig Bruyn. In this series set in futuristic Melbourne, where law has given way to an unaccountable corporate rule, the social divide is made manifest by the absence of ‘order’, ‘law’ and ‘justice’ in certain segments of society, and yet hope in law’s return is ever-present. The paper will interrogate expectations of law and justice that is mediated through the complex interaction of fear and hope, and contextualise this within current contemporary anxieties. (shrink)

This article demonstrates that our more sophisticated theories of law lead us to a point where we are no longer able to distinguish law from culture, or society, or the market, or politics or anything of the sort. Not only are the various terms inextricably intertwined (something that other thinkers have observed) but we are no longer in a position to articulate any relations between these various terms at all. It is with this latter realization that the dedifferentiation problem kicks (...) in. Because the various terms cannot be disentangled, we find ourselves in the odd position where there is nothing of any positive character to be said about their relations. Each is already the other and, thus, they can have no relation. This is rather bad news for the ways in which we have traditionally conceived theories of law—indeed any theory that gets off the ground by distinguishing law from a discrete something else (which, on first glance, would seem to include all legal theory). (shrink)

Postcolonial discourse is incredibly diverse and postcolonial art in Australia has numerous critical modes. This paper describes an approach in Contemporary Indigenous art that attempts a critique of the law from within the law rather than outside of it. It takes a radical form of over-proximity, rather than avant-garde distance, and finds the gap and failure in law’s attempt at creating legal subjects of us all. In the work of Gordon Bennett, Danie Mellor and the duo Adam Geczy and Adam (...) Hill, there is a working through the political and legal ramifications of the Indigenous subject in contemporary Australia. The focus on processes of initiation and subjectivization, or what Althusser called “interpellation” and show the effects of this interpellation in the Indigenous subject and offer modes of resistance. The artists are informed by Lacanian notions of subjectivization and utilise this approach to semiotics and power as the starting point for their critique. (shrink)

This article offers an interpretation of lawyers’ reactions to verse judgments, being judicial decisions rendered in rhymed poetry form. While, in recent history, there has been an unexplained break in the close historical connection between poetry and law, some judges nevertheless continue to render their judicial decisions in verse. This has met strong criticism from fellow judges, inevitably, but also from lawyers. However, there is no evidence in academic writing of anyone attempting to explain why lawyers are having these reactions. (...) Endeavouring to fill that void, this research employs hermeneutics to offer an interpretation of lawyers’ reactions to verse judgments. The article analyses the varied opinions uncovered in five qualitative interviews with lawyers of different backgrounds, and contends that a movement of poetry back towards its utilitarian origins would see lawyers change their reaction to verse judgments, instead viewing them as an appropriate form of judicial expression. (shrink)

In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the twin (...) evils of increased unreflective populism and pragmatism evident within many law schools and modern legal institutions. Although a contested term, defenders of the ‘socio-legal’ tradition, who place the humanities at the heart of legal research and education, are obliged to restate with increased determination the utility of the liberal arts and literature to the law profession and wider legal community. In a normative environment, law and narrative are inextricably linked and narrative poetry is not only invaluable to explaining the origins and location of the legal tradition, but also elicits a mode of understanding which transcends the boundaries of narrowlydefined legal hermeneutics—which often only addresses issues of an operational nature. French novelist Flaubert claimed “chaque notaire porte en soi les débris d’un poète” (Flaubert in Madame bovary (trans: Wall, G.), Penguin Classics, London, 1960: 269), paraphrased by American civil rights lawyer, Clarence Darrow, as “inside every lawyer is the wreck of a poet” (Lukas in Big trouble: a murder in a small western town sets off a struggle for the soul of America, Simon & Schuster, New York, 1997: 323). In an age of disenchantment, this paper explores the poetic form as an important medium within which to understand the nature and function of law in a society of differentiated individuals. (shrink)

Music is an inescapable part of social, cultural and political life, and has played a powerful role in mobilising support for popular movements demanding social justice. The impact of David Bowie, Prince and Bob Dylan, for example, on diversity awareness and legislative reform relating to sexuality, gender and racial equality respectively is still felt; with the latter receiving a Nobel Prize in 2016 for ‘having created new poetic expressions within the great American song tradition’. The influence of these composers and (...) performers reached far beyond the concert hall. Conversely, musical propaganda has been a common feature of many dictatorships, most notably Nazism’s Adolf Hitler and Communism’s Joseph Stalin, and is still instrumental in the election campaigns of political parties. US President Donald Trump’s winning retro classic rock campaign playlist conveyed an idealised version of the past which aligned with the tastes and interests of his core constituency, and evoked feelings of nationalistic pride and patriotism. The eclectic selection of upbeat music effectively masked the underlying capitalist initiatives, corporate greed and allegations of financial impropriety that characterised both the Democrat and Republican campaigns. Although unable to impart meaning with the same level of precision as language, music has a potentially broader semantic capacity due to its greater elasticity. It constitutes a common language which has the ability to create a community of people that sings, speaks, reasons, votes and even feels the same way. Accordingly, this article explores the symbiotic relationship between music and law, identity politics and social justice, via the lens of musical semiosis. (shrink)

Criminal labeling is an important process in the typical modern hegemony, serving not only to name and marginalize selected criminals but also to underscore and rationalize the hegemony’s norms. In the contemporary United States, such labeling is especially harsh and reductive. It predictably involves the established criminal justice institutions—police departments, criminal courts, and prisons—and also a wide range of community spokesmen, political figures, and the mass media. Yet despite the hegemony’s apparent determination to criminally label individual men and women and (...) also entire social groups and classes, many popular songs identify and sympathize with the people who have been labeled. Indeed, the criminals themselves are often the most winning voices in those songs’ lyrics. A consideration of three singer/songwriters and three popular songs from different genres reveals how these voices humanize the criminal, thereby problematizing the hegemony’s tendency to label criminals and to reify and then condemn crime. Overall, the selected voices from American popular music illustrate the role the popular arts might play in challenging the hegemony. (shrink)

This paper explores what is apparently a non-topic for Luhmann. Luhmann is preoccupied with decision-making rather than with judgment. The paper argues that Luhmann, attempting to find a way out of the dilemma between the fundamentalism of positivistic legal theory and the relativism of anti-foundationalist post-modern thinking, presents the epistemological–ethical doublet of a “self-binding” of the law. In this bootstrapping manoeuvre decision plays the central part. The paper begins by examining judgment in its relation to decision as considered by non-system-theoretical (...) thinking. Against that background it unfolds the distinction between distinction, form and decision in systems theory and in the system-theoretical observation of the law. The article then discusses Luhmann’s description of the functioning of decision(-making) within the legal system. The hypothesis is that Luhmann blends here cognitive with ethical aspects. Finally, the article addresses Luhmann’s polemics against alternative approaches to his own. The suggestion is that ‘judgment’, in Luhmann’s systems theory, re-enters by the back door as an ethical–theoretical imperative that commands theory’s responsibility for society and law. (shrink)

Through a review of Sara Ramshaw’s, Justice as Improvisation, the essay evaluates recent scholarly directions in the interdisciplinary field of law and music. The essay considers both methodological and epistemological questions motivating this scholarship, and argues that there yet remains the opportunity to pursue with even greater specificity the meaning of music, in terms of its own vocabulary and genre. The new field of law and music is slowly but surely combining these formal considerations with an ever richer vocabulary, and (...) a richer inter-disciplinary dialogue not just about jazz but with it. What might have been a somewhat sterile exercise in virtuosity is turning into a fully-fledged interdisciplinary claim, with its own methodology and its own epistemology, capable of illuminating not just law or music, but both in light of the other. (shrink)

This paper examines the role of performance in law and music as a structural means of their self-programming construction. Music and law are considered as parallel social practices or performative doings. The paper begins with a critical analysis of the special aesthetical features of present-day juridical practice as exemplified by legal trial and legal expertise. Drawing upon reflections on the modern discourse on aesthetics and art, the article then examines in greater detail the specific traits of performance in law and (...) jazz music. Performative processes move from representation to presentation, from a preoccupation with rules and controlling to induced self-programming. Both law and jazz regard the unknown future as a resource for present decisions by “inventing” new possibilities; both require, expand and promote a responsibility that does not follow from statutes nor can be expressed in a code of ethics. Finally, the article addresses the performance situation in jazz. Jazz being polyphonic and improvisational by nature, improvisation makes explicit tradition by staging the context dependency of its performance. It is mediated by the knowledge, the operational history and the communication of the participants. Jazz is an exercise in the possibilities of an “aesthetics of imperfection” which can open up new ways of seeing law and politics. (shrink)

Beginning by offering an overview on legal aesthetic humanisms as a specific embodiment of critical discourse, and discussing the ways the recreation of juridical experience, rationality, and culture underpinning such a criticism, leaving behind monolithic views on textuality, judgment, and subjectivity, positively contributes to unsettling the main assumptions underlying typical understandings of law’s autonomy—mostly those of formal specification of juridical “sources” and “scientific” isolation of legal thought—, this paper argues that simply reproducing aesthetic heterodoxy as the epitome of a humanist (...) ‘alternative to law’, without first debating the very orthodox-heterodox binomial, ends up overlooking the discursive and methodological specificity of law, as a particular experience of practical and normative validity. In this way, it introduces, from an axiological-normative and juridically oriented standpoint, a different—jusaesthetic—argument for re-examining the relationship between law’s praxis, nomos, and community. (shrink)