Melbourne Law School - Theses
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ItemA Theatrical Jurisprudence of Repair( 2023-06)This thesis explores the capacity of law to conduct repair, through learning from acts of legal dissent. I argue that we can better understand the jurisprudential significance of a set of dissenting acts against the colonial sodomy law in India by describing them as activities of repair. The sodomy law, which was enacted in 1860 and struck down by the Indian Supreme Court in 2018, criminalised the intimate lives of queer persons. The dissenting acts that I follow turn away from the sodomy law, staging alternative worlds which allow us to imagine ways of living differently with law. The worlds that they stage are lawful: they are constructed using minor forms and techniques of law. Some of these queer dissidents explicitly use and rework what we might understand as more conventional legal forms: the form of a contract, the form of an affidavit, the form of a judgment. In other instances, they rely upon a form that might not be conventionally understood as a legal form, such as theatre. I start by suggesting that each of these actors offers us a different way of conducting repair. The colonial sodomy law impairs the ability of queer persons in India to forge lawful relations. The acts of dissent that I describe attempt to repair this damage through relying on law’s forms and techniques. Law is the thing that breaks; laws are also the things that are used to remake. Repair allows us to watch and describe how this work of remaking might be done. It also allows us to consider an element of creativity involved in these acts of dissent: things are re-paired, they are paired differently, to create new resources that allow for different ways of living with law. I find my vocabulary of repair by first turning to the US American queer theorist Eve Kosofksy Sedgwick. In her work, Sedgwick names a reparative impulse through paying attention to the ways in which queer people attempt to extract sustenance from the objects of a culture whose avowed desire has often been to not sustain them. I identify a number of training exercises through which Sedgwick attempts to practice this impulse in her own writings. In my first chapter, I draw out these exercises as part of Sedgwick’s ethos. Given that Sedgwick does not have an account of law, I then place these training exercises in relation with a set of writings by US American law and humanities scholars: James Boyd White, Robert Cover, and Patricia Williams. These latter texts are also acts of dissent, in this case against the conventions of legal-theoretical writing. The dissenting writers that I follow turn away from styles of critical scholarship that they find constraining, practicing forms of writing that creatively hold the descriptive work of their enquiry. In doing so, I find that each of these writers offers different kinds of training in repair-work. My thesis proceeds by pairing a different act of queer dissent against the sodomy law in India with the teachings of different sets of US American reparative writers. These pairings are ordered through a particular idiom that anchors each chapter: dramaturgy, attachment, translation, voice, and pedagogy. These idioms allow me to pay attention to a distinct aspect of reparative jurisprudence in each chapter: the staging of reparative dissent (Chapter Two: Dramaturgy); the love for law that might animate reparative dissent (Chapter Three: Attachment); how this love might inhibit ways of listening to dissent and consequently require us to practice an art of recognition and response (Chapter Four: Translation); how writing in a borrowed voice might allow us to practice legal criticism differently (Chapter Five: Voice); and how pedagogy might serve as a means of teaching and transmitting reparative dissent (Chapter Six: Pedagogy). By staging my chapters and inflecting my idioms in this manner, I write within the field of theatrical jurisprudence. Theatrical jurisprudence is characterised by its practitioners’ usage of techniques and practices influenced by theatre and performance to enliven law. In the process, theatrical jurisprudents draw attention to how law is staged - and how it might be staged differently. Writing with the resources offered by this field allows me to pay attention to how my cast of dissenters go about their dissent, and allows their voices, styles, and genres to guide my own writing.
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ItemAn Empire of Conduct: On the Jurisprudence of Criminal Procedure( 2020)Criminal procedure describes the conduct of lawful conduct. This thesis addresses how criminal procedure came to be the preponderant way through which the conduct of law was expressed and represented. A jurisprudential shift in procedure was accompanied by the recruitment of the criminal law into the administration of the British Empire. The argument of the thesis is that this emergence and subsequent transformation is a product of the practical involvement of a series of jurists of criminal law with imperial administration. These jurists include Jeremy Bentham, Thomas Macaulay, Henry Maine, and James Fitzjames Stephen. The thesis follows the jurisprudential writings of these thinkers and their involvements with various styles of imperialism to re-describe their contributions to the development of criminal law in light of this proximity to the government of empire. 'An Empire of Conduct' argues for an increased sensitivity to criminal procedure in thinking about the conduct of empire and the government of lawful conduct. Procedure describes not only how the rules of law apply to those subject to them, but also how those procedures were part of a process to re-organise the holding of office in the administration of law, colonies and government. To this end, the thesis looks at criminal procedure as an example of governmentality, concerned with how styles of conduct, rule and administration were shaped and then in turn shaped the holding of public office. By paying attention to questions of officeholding, it argues that the office of the jurist changes its political valence with respect to procedure: the thesis narrates changes in authorities, autonomies and privileges of office as the ascendency of legislative form, and how hierarchically imposed rules of official and juristic conduct contribute to changes in how law is administered. This thesis contends that criminal procedure is best understood as first inspired and then refined through jurists’ involvement with imperial administration, and simultaneously, as a vector for the development of strategies of government that both facilitated and constrained the emerging British Empire. As a jurisprudence, it accounts for a relationship between procedure as a mode of conduct that standardises the administration of law while providing an idiom for styles of modern government. To this end, the economic structure and material technologies of empire impose themselves in this story: as shipping, commodities, and labour all pose questions that a steadily accreted know-how of procedurally organised criminal law is increasingly marshalled to address.