Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 4 of 4
-
ItemJurisdiction : the expression and representation of law(University of Melbourne, 2009)Theories of legal power in modern jurisprudence have tended to focus upon the metaphysical problematic of sovereignty and its relation to the origin, foundation and purpose of State authority. Questions of jurisdiction on the other hand continue to order the local, technical and technological languages of law, the modalities of legal institution and the aesthetics of judgment, in a way that has remained relatively unaddressed in modern theoretical discourse. Thus, while the major philosophies of law can be characterized by surveying a distinctly `representational' aesthetic of legal authority, the matter of the `expression' of this authority is left to relatively minor jurisdictional arrangements or technical contrivances of law. To address what it means for legal power and authority to be thought within the terms of jurisdiction is also therefore to approach the theme of law 's expression�its affects of speech and its modes of repetition�through the medium of its technical genres. In this thesis, jurisdiction is taken as a practical and theoretical tool which allows one to navigate the plural and expressive dimensions of legal authority. The work of Gilles Deleuze is enlisted in this regard as offering not just an important methodological. recovery of an `expressionism' in philosophy�specifically through Nietzsche and Spinoza�but also a jurisprudence which recasts the major technical terms of jurisdiction (persons, things and actions) in terms of their distinctively expressive or performative modalities. As part of the genres of jurisprudence, the fashioning of persons; possessions and procedures of law involve institutional techniques which cannot be easily reduced to the metaphysical co-ordinates of rational judgment, objectivity or a `subject of rights'. In paying attention to the articulation of these technical genres and their relation to the ordering of legal knowledge, this thesis purports to account specifically for how meaning may attach to the instrument and medium of law and how legal desire maybe registered within the texture and technology of jurisdiction.
-
ItemInternational civil litigation: Balancing foreign interests and private rights( 2019)Foreign elements, expressed in the form of laws, judgments and jurisdictional claims, should be given equal recognition to local interests in the adjudicative process but not so as to thwart the legitimate vindication of private rights. Hence, when defining the boundary of substance and procedure in private international law, procedure should be confined to matters of court process to give wide operation to foreign laws and in the context of jurisdiction, courts should decline to adjudicate where the defendant or action has slender links with the forum. Where however foreign interests operate to defeat the pursuit of legitimate private rights, such as in the case of state immunity and embassy employees or defendants who are victims of fraudulent court judgments abroad, then such interests should be accorded less deference.
-
Item
-
ItemForum non conveniens : issues of precedent and policy( 1991)Until 1988 the Australian cases on the doctrine of forum non conveniens had followed the English case. In particular, Australian superior courts had adopted the liberalisation of that doctrine which had taken place in England since 1974. In 1988 the High Court rejected the English liberalisation in the rather unsatisfactory decision of Oceanic Sun. However, in 1990 the High Court rectified many of the problems present in Oceanic Sun in Voth, and, although it reaffirmed the principle in Oceanic Sun, in practical terms it substantially liberalised the Australian doctrine, although not going as far as the English developments. There is now a distinctive Australian principle of forum non conveniens, which despite the inadequate reasoning leading to its adoption, has some significant practical strengths.