Melbourne Law School - Theses

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    An Empire of Conduct: On the Jurisprudence of Criminal Procedure
    Andrews, Thomas James ( 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.
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    Truth or ‘collateral damage’? Legal parentage, bio-genetic parentage and children’s perspectives
    Robert, Hannah ( 2018)
    This study explores the operation of legal parentage within Australian family law through analysing judgments and legislation in ‘misattributed fatherhood’ cases – where the person who is publicly identified or assumed to be the legal father is shown not to be genetically related to the child. It argues that legal parentage currently performs four different, bundled, functions: recording the child’s origins, designating default parental responsibility, defining the child’s legal kinship identity and assigning economic responsibility. In these judgments, judges generally re-align the child’s legal parentage to match the factual finding regarding the child’s genetic parentage. This often erases the status of a social father as a legal father, and sometimes identifies men who are genetic fathers, but who have not parented the child, as legal parents. In the process, a child’s legal identity and legal kinship relationships may be radically and retrospectively rewritten, with little space for judges to consider the impacts for the child in question, or the child’s own understandings of their legal kinship identity or relationships. Binding these four functions together within legal parentage is rhetoric (judicial, legislative and social) which frames biogenetic parentage as ‘true’ parentage. This ‘biotruth’ rhetoric conflates legal parentage as a question of law with the factual enquiry as to a child’s progenitors. In so doing, it masks the technical complexity of legal parentage and obscures law’s role in shaping, legitimating and constructing legal kinship relationships. It means that the legal definitions of ‘parent’ fail to reflect the complexity and diversity of human family-making (both biological and social) and, in the process, fail to recognise and protect children’s complex interests in information about their origins and the stability of their legal kinship identity and relationships. Biotruth rhetoric within legislative and judicial understandings of legal parentage therefore works to prioritise adherence to a normalised family structure over supporting and securing the relationships on which children rely for their care, kinship identity, and economic support. A more child-centred approach would unbundle these distinct functions, and create space to hear children’s voices on any proposed changes to their legal parentage, and on the release and use of information about their origins.
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    Jurisprudence without law? Law and the image in Giorgio Agamben
    Parsley, Connal Hugh ( 2017)
    This thesis presents an original reading of Italian philosopher Giorgio Agamben, in search of a new jurisprudence fit for the age of law’s indistinction with life. Approaching Agamben's ambivalent proximity to the juridical tradition through the question of representationalism (using contemporary examples like legal personhood, cinematic representation, and political protest), this thesis argues that Agamben demonstrates a paradoxical reinhabitation of the theological and juridical traditions whose object, law, he seeks to overcome in the name of a new ethical life.
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    Food security as social provisioning: insights from the international approach and the Indonesian
    Dirou, Peter Thomas ( 2013)
    The thesis argues that the international community’s struggle to effectively deal with and take responsibility for food crises is rooted in both the structure of international law and the economic thinking that was wired into the early UN organisations. It presents a heterodox conception of economics — institutionalism — as an alternative way of thinking about problems of food and hunger. Building on the institutionalist emphasis on social provisioning, the thesis locates the legal dimension of institutionalist thought within a public law framework that emphasises authority and duty. This approach links economics and jurisprudence and conceptualises economic policy as a duty to provide.
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    Acoustic jurisprudence: listening to the trial of Simon Bikindi
    PARKER, JAMES ( 2013)
    Sound is a fact of life. It is not a fact, however, that contemporary legal scholarship has made any particular efforts to acknowledge, let alone to interrogate in any depth. As a community of jurists we have become deaf to law and to the problem of the acoustic. We must begin to take responsibility for a dimension of legal thought and practice that is no less real or significant simply because we barely attend to it. This thesis argues, therefore, for a specifically acoustic jurisprudence. It proceeds by means of a case study. Between September 2006 and December 2008, Simon Bikindi stood trial at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, accused of inciting genocide with his songs. My analysis of the Bikindi case is pursued according to two main axes. First, the Tribunal’s ‘sonic imagination’: how it thought about matters of acoustics for the purposes of judgment. Second, the ‘judicial soundscape’: the Tribunal’s own acoustics, how sound operated in the courtroom, what work it did, how it was used, ignored, co-opted or otherwise perceived. Each of these two lines of inquiry is further divided into three parts, on the topics of song, speech and sound respectively. I demonstrate how the ICTR drew on, reproduced and gave juridical shape to a whole range of familiar ways of imagining sound in its various forms. And I show how, even though the Tribunal was not always insensitive to matters of acoustics, its approach to Bikindi’s songs displayed an acute form of legal deafness: a real misunderstanding of how songs work, what they do and why they are important. Although the thesis takes the Bikindi case as its main site of analysis, its most important implications are intended to be much broader. Most of all, it is addressed to a gap in the extant literature on the formal, aesthetic and material dimensions of legal practice. Drawing on the jurisprudential literature into which it inserts itself, the emergent field of sound studies and a theological and metaphysical tradition which extends back at least as far back as Ancient Greece, it is both an argument for the importance of attending to questions of sound in law and a first exemplification of what it might mean to do so.
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    A minor jurisprudence of movement
    Barr, Olivia McLeod ( 2012)
    Different offices carry different responsibilities. This thesis addresses the office of jurist and their responsibilities in relation to common law, including the creation and conduct of lawful relations. In Australia, where the dominant form of law continues to be Anglo-Australian common law, it is for the jurist to attend to common law and its practices. By taking seriously the question of office, this thesis shows the jurist how to account for and take responsibility for some of the forms of common law practice as a matter of office. As a way of taking responsibility for this colonial form of law, this thesis creates a minor jurisprudence of movement that accounts for technical and material forms of common law practice. Paying attention to the material dynamic of movement and its relation to the practice of the care of the dead, this thesis reveals how common law moves with a tendency to slide by, unnoticed, through technologies of jurisdiction. Noticing these movements, especially movements in relation to the dead, this thesis carefully engages with two sets of materials, one historical and one contemporary: the historical is a burial party that walked in colonial New South Wales and the contemporary is the struggle to bury the dead in Antarctica. Engaging with these materials with a jurisprudential method of slowness, this thesis narrates and redescribes two vignettes as a way of accounting for the place of movement in the technical and material forms of common law practice. Through the creation of a minor jurisprudence of movement, this thesis offers a better understanding of the place of movement in the technical and material forms of common law practice. In doing so, this thesis challenges the jurist to move well; to attend to the responsibilities of office. While taking responsibility for the practice of a colonial form of law is not an easy task, it is part of what it means for the jurist to take up and hold office. Moving carefully, this thesis offers a way this might be done.