Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 3 of 3
-
ItemValuing women in Timor Leste: the need to address domestic violence by reforming customary law approaches while improving state justice( 2016)Domestic violence remains prevalent in Timor Leste and is widely considered a normal part of married life for Timorese women. Many women experience deep conflicts in how to respond to violence occurring within relationships that also offer love and children, and are typically at the centre of women’s social, cultural and economic lives. In this context, many see the option of seeking state help as demanding untenably high risks for uncertain overall gain, and fear it will ultimately entail even greater suffering for them and their children. While women who do seek help overwhelmingly turn to customary law systems, these operate within a patriarchal cultural framework that also produces and maintains wider community values of tolerance towards domestic violence. Within these processes, women often find themselves disempowered and dissatisfied with the outcomes they achieve, as they typically fail to recognise and address the violence or deter further abuse, resulting in human rights violations. Drawing on socio-legal tools of analysis, and through 110 detailed interviews with women who have experienced domestic violence and actors involved in customary law systems, this study argues that, despite their serious flaws, there is an urgent need for investment in reform of customary law systems to create an expanded menu of more effective options for women, to tackle the problem of domestic violence in Timor Leste. Using a feminist human rights analysis and critical anthropological theories of legal pluralism and cultural change, this study shows how a progressive realisation approach to reforming customary law norms and procedures by empowering women within customary processes and building on their protective aspects is not only justifiable, but also necessary and viable to better protect women’s rights and to discredit and change dominant attitudes towards domestic violence. While there is no standard script for addressing domestic violence or other manifestations of gender inequality in customary law systems, this research highlights conditions in contemporary Timor Leste and qualities of Timorese customary law systems that provide rich openings for creative reframing and reform of aspects of customary law practice. Expanding legal reform efforts to encompass both customary and state justice systems, while seeking to productively exploit the dynamics between them, provides the best prospects for protecting women and respecting their choices, while sustainably reducing the societal prevalence of spousal violence. This could create a model for change that might also contribute to broader efforts toward gender equality in Timor Leste. The field research undertaken provides a unique and powerful insight into victims’ varied perspectives on what they hope to achieve through interventions into violence, and a nuanced exploration of how customary law authorities see their roles and the potential of customary law systems to help reduce the incidence of domestic violence in Timor Leste. By combining academic analysis with primary field research covering two groups of informants whose views are often overlooked in the literature, this study makes an innovative and original contribution to the legal discourse around strategies for advancing gender equality and women’s rights in plural legal environments, and may have broader relevance in other contexts where women face similar challenges.
-
ItemHannah Arendt and the turn to life in international law( 2013)My dissertation investigates the idea of natality in Hannah Arendt’s writing for the purpose of rereading the biopolitical currents of contemporary international law. By referring to biopolitics, I mean the normalising or regularising techniques by which liberal governmentalities manage the physical conditions of life; and the critical perspective that observes, diagnoses and sometimes resists these techniques. International human rights law is a prominent expression of biopolitics in the first sense and provides a key context in which to observe the patterns and hazards of normalising power. More and more frequently, the liberal politics of life draws strength from different modalities (such as institutional activity and civil society movements) that expand what is recognisable as law or which influence its articulation, directs international agendas that affect the physical security and health of populations, makes clear the service of law to politics (particularly state politics), and significantly, leaves human remainders. My interest in biopolitics encompasses each of these effects but focusses upon the last. The humanitarian call of biopolitics sometimes, if not frequently, belies its real political function. Humanitarian practice also points to historical formations of biopolitics in which life mattered according to an assumed scale of human-ness, leaving some persons superfluous to the idea of life itself, and in due course, vulnerable to radical strategies of exclusion, including disenfranchisement, deportation and genocide. For theorists of biopolitics and international law, the ‘aporias of humanitarianism’ are not new even where exclusion takes less exaggerated forms. Regulatory initiatives relating to communicable disease, sex trafficking and enforced disappearance are present-day examples of the more subtle consequences of delineating or framing certain lives for protection, including the production or re-production of the state. The dilemma produced by biopolitics also relates to the limitations of normative critique. Here, biopolitics is a diagnostic tool that reveals the uneven effects of normalising power globally but fails to imagine normative pathways beyond them. The wager of the dissertation is that a refashioned account of natality offers an alternative resource for rereading the negative patterns of biopolitics in international law today. Like many theorists of biopolitics, Arendt was alert to the dangers of normalising power through her contact with its extreme expression in mid-twentieth century German politics. Nazism presented the fatal flaw of organising power around physical life. Arendt’s concept of natality takes its cue from themes familiar to biopolitics but re-envisages biological processes as a metaphor for politics. Natality literally describes physical birth or human reproduction as a counterpoint for the idea’s further meaning, as a reference for the birth or appearance of each human being as a political subject, and the birth of the body politic as a space for democratic action. In each sense, the metaphor notes an innovation, a beginning, an arrival, a rupture, a founding, a revolution, a re-configuration, a spontaneous and surprising event, an initiative, an origin, a configuration, a coming together, the moment of empowerment, and a reminder that life must be the answer for the delicts of biopolitics. Arendt’s imaginative offering supports a new form of normative critique that observes the implications and possibilities of the body’s unrelenting presence in the regulatory practices of contemporary international law. Her vision beyond biopolitics arguably fulfils, for different ends, the ambition of normalising power to make life (and not death) the subject of global governance.
-
ItemA critical analysis of Pakistan's blasphemy law( 2013)The thesis critically analyzes Pakistan’s blasphemy law and demonstrates that it is a harsh law that violates the rights of both Muslim and non -Muslim citizens of the state. But the idea that repealing this law, as demanded by human rights organizations, will stop the violations of human rights is a misguided one. The thesis recognizes that there are broader religious, political, and social problems surrounding Pakistan’s blasphemy law that provide a particular context to this issue. For this purpose, it examines examples of various social and political problems and incidents that provide the necessary background for understanding the issue of blasphemy in Pakistan. These include incidents of violent public protests, mob justice and extra judicial killings. The thesis argues that Pakistan’s identity as an Islamic state plays a key role in retaining and implementing the blasphemy law. Pakistan upholds its status as an Islamic state by maintaining various religious laws including the blasphemy law and often disregards human rights standards in the name of protection of the state religion. This presents a useful case study for renowned scholar Abdullahi A. An-Na’im’s theory on Islamic state and religious positivism. According to this theory, when religious laws are converted into positive laws, they become static and rigid and a manifestation of state sponsored policies, which is the case in Pakistan’s blasphemy laws. The thesis explores Pakistan’s historical journey to achieve its current status of an Islamic state and the resultant promulgation of religious laws, including blasphemy law, using An-Na’im’s theory as the key approach. It analyzes the provisions of this law and the judicial decisions taken under it to demonstrate its effects and legal problems and identify the various legal trends that the courts have followed in dealing with this issue, concluding that this law often results in the violation of human rights such as freedom of speech and expression, freedom of religion, as well as the right to a fair trial. Finally, the thesis establishes that in Pakistan’s case, international solutions fall short. The ratification and implementation of human rights standards through international treaties cannot provide a solution to Pakistan’s problem of blasphemy law. The thesis uses An-Na’im’s theory of overlapping consensus on the implementation of human rights as the key approach to establish that human rights standards can only be effectively implemented in a state or society when there is an acceptance for such standards from within that society. Pakistan presents an example of such a society that values its purported religious values and laws more than human rights standards. The case of Pakistan and its blasphemy law confirms An-Na’im’s theory that an effective implementation of human rights standards can only take place in a society when that society accepts these standards to be part of their societal and cultural norms. Without such validation from within the society, human rights will continue to be violated in the name of religion.