Melbourne Law School - Theses
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ItemMaking-good-again? Law, Aesthetics and Responsibility( 2021)Over the last 75 years since the end of WWII, the state-based gestures of taking responsibility for Wiedergutmachung (restitution) in the aftermath in Germany have been the most visible. But in this thesis, I argue for a new understanding of restitution, encapsulated by the literal translation of Wiedergutmachung in English which is ‘making-good-again.’ I examine the work of selected jurists, authors and artists who all engage with the NS regime and the Holocaust and contend they also offer accounts of restitution; they take responsibility for restitution through the ‘making’ of texts and objects. Parallel to this, I highlight the jurisprudential commentary within their accounts, focusing on questions of form and technique. This thesis therefore tells a different story about restitution which expands across genres, sites and temporalities; it re-writes the jurisprudence of restitution within the context of law and humanities scholarship. There are four main areas of focus. I begin by analysing a form of writing called the ‘gloss’ as published by a German-Jewish lawyer, Dr Walter Schwarz. Dr Schwarz returned to Berlin in the 1950s and practiced as a restitution lawyer, setting up a legal journal, where he also (pseudonymously) published ‘glosses’ which offer an account of the legislative restitution process. The first chapter sets up the way giving an account of restitution can be an ethos – of writing, but also of conduct, of practice. Chapter two is on the theme of writers, audience and responsibility, taking as a starting point the exhortation by W. G. Sebald regarding the role of literature to undertake restitution, and analysing literary works by Alexander Kluge and Heimrad Baecker. Chapter three focuses on visual art and its display, examining art works by Anselm Kiefer and Gerhard Richter. Finally, chapter four is a walking tour of Berlin’s memorial art, following the way making-good-again in the streets of Berlin becomes a question of legal place and movement. The practices of making-good-again examined in this thesis are dynamic, iterative and incomplete: they are practices of failure. Nevertheless, the question of how to conduct restitution emerges as a material question of responsibility asked through the making of texts and objects in different genres, including law. Responsibility in this context is shown to be shaped by practices, personae and places. The resulting thesis is an expansion and re-conceptualisation of the practices of jurisprudence, restitution and responsibility in the context of the aftermath in Germany.
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ItemAesthetics of Image in International Environmental Law( 2020)Environmental treaties often require judgements of aesthetic value yet how these judgements are made is not well understood. This thesis argues that images, particularly photographic images, are central to such judgements but that neither current practice nor scholarship properly account for the significance of images to decisions made under international law. Drawing on debates about aesthetic conceptions of the environment in the visual arts, and in the philosophy of environmental aesthetics, this thesis develops a critical understanding of image and aesthetic value in international law. My aim is to produce a jurisprudence of aesthetics adequate to the task of making image and aesthetic value meaningful in international environmental law. In the thesis, I undertake doctrinal interpretations of aesthetic value for three international environmental treaties – the World Heritage Convention, the Whaling Convention, and the Biodiversity Convention. I find that aesthetic value is conflated and displaced with other environmental values in treaty practice. Aesthetic value is, for example, combined with natural beauty, cultural and ethical values, and overlooked in favour of scientific and economic values of the environment. I consider these practices to compromise reasoned decision-making and, ultimately, the protection of the environment under those treaties. Referencing Anglo-American aesthetic philosophy, I engage visual art to reflect critically on the meaning of aesthetic value from photographs of the environment that I identify as artefacts used in treaty decision-making processes. I employ eco-critical perspectives to examine aesthetic values of natural beauty, the sublime and the picturesque in 19th century landscape art of Western Europe and Britain. Relying on the philosophy of environmental aesthetics, I conceive aesthetic value instead in terms of sensorial experiences of nature shaped by imagination, emotion and knowledge from different cultures. I maintain that this ‘now world’ aesthetic value of the environment can be understood from photographs as important, distinct and capable of protection in international law. I contend that the interrogation of images by international bodies would facilitate the proper judgement of aesthetic and other environmental values to justify the cooperative efforts of a plurality of states in environmental protection. Yet I find that photographs are treated as records of fact in international decision-making processes. They are not formally recognised as representations with layered meanings. To ignore or refuse the place of representational images in international law is improper in jurisprudential terms and inconsistent with the good administration of justice. It also denies international legal practice the concepts and methods required to exploit images for their rhetorical purchase. I conclude that aesthetic methods for the visual arts must be repurposed to articulate meanings for images in the making, implementation and enforcement of international law. In giving close attention to photographs used in treaty decision-making processes, I introduce the philosophy of environmental aesthetics to the interdisciplinary study of law and image, expanding the role of images in international law. I also make the environment’s aesthetic value visible to the practice of international environmental law in the face of indifference, from so many nation states, to the precious nature of the planet.