Melbourne Law School - Research Publications
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ItemTheoretical Disagreement and the Semantic Sting(Oxford University Press (OUP), 2010)Scott Shapiro recently suggested that Ronald Dworkin's critique in Chapter 1 of Law's Empire represents the greatest threat currently facing legal positivism. Shapiro had in mind, not the semantic sting argument ('the SSA'), but rather what I call 'the argument from theoretical disagreement' (or 'the ATD'). I contend that Shapiro was right to focus on the ATD, but that even he underestimated just how serious a challenge it poses to positivism (and perhaps to other theories of law as well). The ATD, I argue, is an objection to any theory of law that denies that legal officials can engage in theoretical disagreement-that is, disagreement about the grounds of law. The SSA then seeks to explain why so many legal philosophers adopt such theories. I argue that the SSA is an implausible explanation of why many legal philosophers deny that theoretical disagreement exists, but that this does not undermine the ATD's contention that they are wrong to do so. Indeed, given the variety of forms that theoretical disagreement can take, Dworkin's positivist critics face a very significant challenge in seeking either to explain away the appearance of theoretical disagreement or to develop forms of positivism that can allow for such disagreement.
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ItemNo Preview AvailableEnforcing oil and gas contracts without courts: Reputational constraints on resource nationalism in Russia and Azerbaijan(Informa UK Limited, 2010-01-01)
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ItemThe Australian Social Inclusion Agenda: A New Approach to Social Policy?(WILEY, 2010-12)The Social Inclusion Agenda (‘SIA’) was introduced by the Australian Labor Party (‘ALP’) in the lead up to the 2007 federal election. The rhetoric was hopeful, proposing to reframe the government's approach to disadvantage. Rhetoric aside, what the then opposition meant when it talked of building social inclusion (‘SI’) was less clear than may have immediately met the eye. This paper offers an introductory analysis and review of the SIA. It first considers why Australia might benefit from a readjustment in its social policy direction, reflecting on the concepts of poverty and Amartya Sen's ‘capabilities approach‘. Second, it offers a critical overview of the main conceptions of SI/Social Exclusion. Third, it applies these first two parts of analysis to developments to date with the SIA. This part, whilst limited in scope and preliminary at best, offers some general comments as to the possibilities and pitfalls of the SIA and proposes the way forward from an analytical perspective in terms of guiding the SIA in a desirable direction.
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ItemThe Curious Case of the Australian Military Court(Taylor & Francis Ltd, 2010)
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ItemADJUDGING THE EXCEPTIONAL AT INTERNATIONAL INVESTMENT LAW: SECURITY, PUBLIC ORDER AND FINANCIAL CRISIS(CAMBRIDGE UNIV PRESS, 2010-04)Abstract This article examines the impact of international law on the ability of States to mitigate the effects of financial crises. It focuses on the invocation of investment treaty disciplines in the aftermath of the 2001–2002 Argentine financial crisis, and the adjudication of Argentina's defence of a state of necessity under both subject treaties and at customary international law. The article uncovers three interpretative methods in the jurisprudence on the relationship between the treaty exception and customary plea of necessity: methodologies I (confluence), II (lex specialis) and III (primary-secondary applications). Method I is the dominant approach in the jurisprudence and the most restrictive of the three readings. The article argues that method I is mistaken both on a careful interpretation of the two legal standards and on a broader historical analysis of the emergence of investment treaty norms. Given these substantive flaws, the article isolates the motivations to account for the popularity of this method through a close reading of the awards. These reveal continuing tensions in the field, not least the problematic suggestion that a single value of protection should exclusively inform our understanding of the purpose of investment treaties. These sociological features of investor–State arbitration should, it is suggested, inform our choice on other interpretative methods. This comes down to an election between methods II (lex specialis) and III (primary–secondary applications). Method III is the most convincing and coherent reading of the relationship between the two legal standards. The article concludes by offering a framework to address the key interpretative questions implicated in that method: (a) the identification and scope of the notion of ‘public order’ and a State's ‘essential security interests’; and (b) the appropriate test of ‘necessity’ or means–end scrutiny.
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ItemSecularism, the Islamic state and the Malaysian legal profession(Walter de Gruyter GmbH, 2010-01-01)
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