Sovereign Power, Normative Universes, Bonded Interpretation and State Exclusion of the Indigenous

An Application of Agamben and Cover to Sophocles’ Antigone and Australian Law

Introduction

I began my jurisprudential analysis of Sophocles’ Antigone[1] through a close reading of the play, exploring, in the first part, the question of legal legitimacy of morality and rights in light of Costas Douzinas’ theory of justice.[2] Now, in continuing my analysis and exploration of the application of legal theory in the understanding and interpretation of the Antigone, I will be begin in the first part of my essay by focusing upon the establishment and operation of Creon’s sovereign authority. My analysis of Creon’s sovereign power will mobilize Giorgio Agamben’s theory of sovereign power and the bare life.[3] In his works, Agamben builds upon Michel Foucault’s insights into biopolitics[4] and upon Walter Benjamin’s[5] and Carl Schmitt’s[6] insights into sovereignty[7] and the state of exception,[8] and in particular the exclusion of bare life such that death is no longer death, but just the ‘fabrication of corpses’. In bringing together evidence from the play related to Creon’s sovereign power and Agamben’s theory, I will demonstrate how the unique and useful formulation brought together by Agamben provides a clear understanding and explanation for the analysis of executive power’s source of legitimacy, both within the Antigone and beyond.

In the second part of my essay, I will turn to undertake a close reading of those parts of the Antigone related to Creon’s law, the exercise of his authority as the state’s judge, and the sentencing of Antigone. In analyzing this aspect of the Antigone, I will be drawing upon the works of Robert Cover, highlighting his development of the concepts of the ‘normative universe’[9] and ‘bonded interpretation’.[10] Through these conceptual frameworks, I will explain the relationship between the interpretation of legal meaning, the application and justification of violence of the law, and the role of the judge within the broader social system of normative values. This will include addressing the conflict between the normative universe under Greek unwritten law and the new normative universe that arguably Creon was trying to create. Finally, in the last section of my essay, I will consider how Agamben’s understanding of the relationship between sovereignty, citizenship and the exclusion of the alien can be utilized in analyzing limits on the capacity of the State to alienate indigenous non-citizens, as raised by the recent exercise of interpreting the Migration Act 1958 (Cth) in the recent decision of the High Court in Love v Commonwealth.[11]

Agamben’s Framework of Sovereignty: Law and Life

Within the exceptional context of the chaos following the demise of Oedipus as king, and the ensuing civil war between the sons of Oedipus,[12] Creon takes the reigns, and proclaims: ‘As I am next in kin to the dead, I now possess the throne and all its powers.’[13] In response to the sovereign exercise of power, the community states: ‘The power is yours, I suppose, to enforce it with the laws, both for the dead and all of us, the living.’[14] The keystone of the constitution of Creon’s new regime is laid in the exclusion of the traitor Polynices,[15] in a sense, not to death as a criminal, but worse, to a death that is not death – figured by his corpse remaining unburied.[16] As a consequence of her defiant disobedience, Antigone herself is proclaimed a traitor,[17] any rights she could claim are stripped from her,[18] and she too is sentenced to a death that is not death – figured by her living burial in the rocky vault.[19] From this broad characterization of the operation of sovereignty and exclusion in Sophocles’ Antigone, I will demonstrate how Antigone illustrates Agamben’s theoretical framework.  

The Paradox of Sovereignty and the State of Exception

Drawing up Schmitt’s classic definition of sovereignty[20] as being both inside and outside of the law, which itself was building up Hobbesian ideas of the place of the sovereign above and outside the social contract,[21] Agamben explains the paradox of sovereignty, by which the very authority by which the legal system is set up is itself constituted without a foundation within the legal system. [22] Whereas Schmitt’s theorizing around the relationship between sovereign and the state of exception was arguably temporary and in close relation to a sovereign decision regarding a factual necessity, Agamben theorized that instead this state of exception was the very originary violence upon which the sovereign state and its authority was founded[23] – and by implication, the state of exception was permanent and an ongoing reality underpinning the legal fiction of the legitimacy of sovereignty.[24]

In this sense, while on one hand, Creon asserted a continuity of sovereignty from Oedipus and his sons, upon the basis of a form of legal succession,[25] on the other hand, it could be argued that he was instead seeking to institute a completely new sovereignty by invoking the necessity precipitated by the necessity of reinstating order after the chaos of civil war.[26] In this sense, Creon’s assertion of sovereignty, as epitomized by his proclamation concerning Polynices’ body,[27] was the decision upon which the suspension of any former ‘unwritten traditions’ was instituted,[28] thus constituting his new sovereignty within the state of exception.

Bare Life – Inclusive Exclusion

            Agamben categorized ‘bare life’ as that form of life which ‘has the peculiar privilege of being that whose exclusion founds the city of men’.[29] Following from this, Agamben considered this violence of exclusion to be the fictional basis upon sovereignty would assert its own legitimacy.[30] Creon’s law regarding Polynices’ corpse, and by extension, anyone who would participate in his burial and mourning rites,[31] can be characterized as an inclusive exclusion,[32] by which Creon constituted his new sovereignty performatively in the very act of proclaiming this exclusion. Within the context of Greek cultural and religious mores, both the prohibition against Polynices’ burial (which excluded him from the traditional rites by which a dead person would be included among ‘the dead’)[33] and the sentencing of Antigone to be buried alive in the rocky vault[34] (which excluded her from life while not dying, a kind of living-death, an exclusion within a ‘zone of indistinction’[35] between life and death, so to speak) are examples of Creon’s use of inclusive exclusion in the institution of his new sovereignty over the city of Thebes.

Death that is Not Death

A final important concept developed by Agamben which is applicable in understanding the structure of the legal system within Sophocles’ Antigone are the related images of the ‘homo sacer’,[36] a human being who is no longer acknowledged as human, who may be killed within committing a crime, and a parallel image which Agamben develops in his ‘Remnants of Auschwitz’,[37] the Muselmann, the being whose slow death by starvation in the heart of the concentration camp ‘marks the threshold between the human and the inhuman’.[38] Their gruesome state prior to dying is unbearable, and, having been stripped of dignity and thoroughly dehumanized. “One hesitates … to call their death, death.”[39] Instead, their body (whether living or dead) becomes just another product of the grisly assembly line, in the ‘fabrication of corpses’.[40]

Both forms of exclusion – Polynices in a state of unburial somewhere between life and death, and Antigone’s living burial in the rocky vault – could be characterized as twin expressions of something akin to Agamben’s utilization of the ancient Roman ‘homo sacer’ or its modern expression in the Muselmann in the concentration camps, giving expression to the violent exclusion involved in the institution of sovereign power. It is in this sense of the ongoing power over life and death, by which Agamben explains the missing connection within Arendt’s work on totalitarianism and on the human condition,[41] as well as Foucault’s understanding of the modern phenomenon of biopolitics.[42] In contrast, Agamben’s inquiry into sovereignty strikes to the heart of the hidden intersection between sovereign power and biopolitical models of power which, rather than being a modern phenomenon, instead lie at the origin of sovereign power and the immemorial arcana imperii, upon which the legal fiction of legitimacy of the force of law has always rested.[43]

Interpretation of Creon’s Law and Sentencing through Cover’s Interpretive Theory

In approaching the interpretation of Creon’s law and his sentencing of Antigone through the lens of Cover’s theory of legal interpretation, it is of note that in one of Cover’s earlier works, he specifically addresses the character of Creon as judge in Sophocles’ Antigone.[44] He only briefly mentions him, mostly in comparison to Billy Budd’s Captain Vere,[45] another fictional character called upon to interpret law attached to the potential application of the death penalty. Cover notes Creon’s apparent one-dimensionality as compared to the depth of character study developed around Captain Vere in Billy Budd.[46] This prelude only introduces the overall examination in this book of the judicial role in the affirmation (and abolition) of slavery in the United States.[47] A similar discussion is developed in his later essay regarding to the origins of judicial activism and the debate over the court’s role in the protection of minority rights.[48] In a sense, the culmination of this analysis was displayed in Cover’s ‘Nomos and Narrative’,[49] where he discusses the place in which law is situated within the broader context of the so-called ‘normative universe’ in society,[50] and the engagement with it through which legal meaning is created.[51] Legal interpretation can have a role in affirming normativity as it is,[52] but can also creatively innovate norm articulation,[53] and have a role in changing the world (or even of creating new ones).[54]

In ‘Violence and the Word’, Cover confronts an aspect of legal interpretation that he argues was being avoided within legal scholarship, the relationship between legal interpretation and the violence of law.[55] ‘Legal interpretation,’ he contends, ‘takes place in a field of pain and death’.[56] This graphic imagery is explained as the relationship between legal interpretative acts and the institution of, and justification of, acts of violence.[57] Although one level, legal interpretation concerns the predictability of practical outcomes (i.e., predicting how a judge will decide a case),[58] legal interpretation involves a binding relation between the elucidation of legal meaning of texts, the actions instituted performatively through the judge’s words (i.e., sentencing), and the social role of a judge within society[59] (which hearkens back to Cover’s work on the relationship between law’s meaning and the ‘normative universe’ of society).[60]

Creon’s Law, Sentencing and ‘Bonded Interpretation’

Cover’s interpretative theory was developed within the context of the American political/legal system which included a separation of powers and the expectation of judicial independence.[61] Turning from the discussion of Creon’s sovereignty to the interpretation of Creon’s law and his sentencing of Antigone, the application of Cover’s theory requires that Creon’s activities be analyzed through the lens of his role as judge. Also, his law must be considered within the broader ‘normative universe’ of ancient Thebes. Our initial understanding of Creon’s law comes through Antigone’s communication to her sister concerning the ‘emergency decree’[62] laid down as ‘martial law’.[63] The law concerns the burial rites for the two sons of Oedipus: while Eteocles as a hero and patriot of the city will receive honour, Polynices, the traitor, will remain unburied and unmourned,[64] and anyone who seeks to honour the traitor through burial or mourning would break the law and be liable to death by stoning outside the city walls.[65] What is important for the first part of Cover’s ‘bonded interpretation’ is how meaning is given to the law by Creon as judge,[66] in particular within the broader context of the ‘normative universe’ – either the ‘universe’ as it currently exists, or arguably, the ‘universe’ that Creon is seeking to create.[67]

Creon makes it clear that the context within which his law exists seeks to articulate a norm of the distinction between patriotism and treachery towards the city-state.[68] This language of the ‘patriot’ and ‘traitor’, and the interpretation of its meaning, continues to develop throughout the play.[69] Relatedly, the normative distinction between ‘friend’ and ‘enemy’, which were initially utilized by both Antigone[70] and the community,[71] are picked up in the language of Creon in his explication of the meaning of his law.[72] The language of ‘enemy’ and ‘traitor’ come together in Creon’s confrontation with Haemon his son.[73]

Beyond the giving meaning to law (which he argues cannot be understood in isolation), Cover’s theory of ‘bonded interpretation’ requires a consideration to the activity of putting law into violence action in sentencing (and its relationship to the authoritative role and legitimacy of the judge)[74] is most clearly demonstrated when our analysis is turned to the actual instances of sentencing in the play. The community responds to the proclamation of Creon’s law and in particular, his exhortation to avoid siding with those who break his orders,[75] by stating, ‘Only a fool could be in love with death.’[76] Although no explicit mention has been made previously by Creon of the death penalty, his reply makes it clear that for there exists within the ‘normative universe’ within which both Creon and the community shares an implication that breaking martial law makes one liable to death – ‘Death is the price – you’re right.’[77] Thus, the application of a death penalty, and in particular, death by stoning outside the city, must be considered as an act of violence, which is intelligible within the normative universe of ancient Thebes.

Turning to the third element of Cover’s ‘bonded interpretation’, it clear that the violence act instituted through legal interpretation cannot be separated from legitimacy given to the role of the judge (and in a sense, their personal complicity with the outcome of legal interpretation).[78] Creon’s confidence to publicly proclaim that Antigone would not escape the ‘most barbaric death’ is based upon his understanding of the legitimacy that the community generally accepts of his judgment.[79] However, one of the challenging elements of the role of the judge within ‘bonded interpretation’ is its relationship to the broader ‘normative universe’ within which it acquires its legitimacy. Two contrary aspects of this ‘normative universe’ threaten the legitimacy of Creon’s adjudication of the law – firstly, the developing understanding that the community supports Antigone’s plight (in particular explained in Haemon’s confrontation with Creon),[80] and second, the presence within the normative universe of the ‘unwritten traditions’ drawn upon by firstly by Antigone,[81] but more authoritatively drawn upon by Tiresias the seer.[82]

In a sense, this confrontation between Creon’s and Tiresias’ interpretations exhibits the clash of two ‘normative universes’,[83] one which Creon, in attempting to create a ‘new world’ fails to account for. The outcome of the play, and the ultimate decision by Creon to overturn his own prior decision, even though too late,[84] demonstrates the importance of understanding the role of a judge within legal interpretation and its interaction within the broader ‘normative universe’ within society.

Applying Agamben’s Theory to the Recent Interpretation of the Migration Act 1958 in the Case of Love v Commonwealth

Since federation, Australian law with regard to citizenship, naturalization and the category of alien is founded upon the exercise of the legislative head of power in the Australian Constitution.[85] Australia has a long history of exclusionary policies,[86] in what has commonly been known as the ‘White Australia Policy’.[87] Until 1948, Australian citizenship didn’t exist as a formal, legal category. Australian citizenship was instituted under the Australian Constitution by the Nationality and Citizenship Act 1948 (Cth) (later renamed as the Australian Citizenship Act in 1973).[88] Although formal citizenship did not exist, being a British subject as an Australian national (or prior to federation, as a colonial inhabitant) was an important aspect of the constitution of Australian society. Prior to the 1967 Referendum, the Indigenous populations of Australia were constitutionally mandated to be excluded from the census.[89] This was significant as the census was important in establishing political representation in proportion to population in the House of Representatives.[90]

Prior to the recent High Court decision in the Love case, citizenship and alienage were considered to be exclusive binary categories – if you were not a citizen, then you were an alien. The High Court case considered the scope of the constitutional head of power upon which the Migration Act was based: In light of the recognition of a special connection to country in Mabo (No 2),[91] could Indigenous people who were not formal citizens be excluded as aliens within the scope of the naturalization and aliens power? Controversially, the High Court decided that, due to the special connection to this country, the application of the Migration Act 1958 (which included ministerial authorization for the removal of visas) was limited in its application to Indigenous individuals. Thus, the High Court recognized a third category of non-alien non-citizens, thus (in light of Agamben’s theory of sovereignty and exclusion) including Indigenous non-citizens within Australia’s political life in a way that the sovereign authority of the executive had previously not recognized.

Conclusion

In my overall research project, I have engaged in an analysis of a jurisprudential reading of Sophocles’ Antigone through the lens of Douzinas’ theory of justice in considering the legal legitimacy of morality and rights, in a consideration of Creon’s sovereignty in light of the Agamben’s theory concerned with sovereign power, the state of exception and the exclusion of bare life, and finally, a consideration of the interpretation of Creon’s law and sentencing activities in light of Cover’s concepts of the ‘normative universe’ and ‘bonded interpretation’. I have also analyzed the implications of the Antigone, for the consideration of the limitations on human rights exercised in legally constraining the activity of climate change protestors within Queensland law, and finally, I have analyzed the constitutional and legislative foundations upon which Australia’s Migration Act was founded, and the challenges to the foundation of Australia’s sovereignty around the limitation of Indigenous recognition on the basis of Agamben’s theory of sovereignty.


[1] All references to Sophocles’ play of Antigone will utilize Sophocles, ‘Antigone’ in The Three Theban Plays: Antigone, Oedipus the King, Oedipus at Colonus, tr Robert Fagles (Allen Lane, 1982) 40 (‘Antigone’).

[2] For example, Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Hart Publishing, 2000).

[3] For Agamben’s books, I will be utilizing the recent publication of the whole Homo Sacer project in nine parts, in Giorgio Agamben, The Omnibus Homo Sacer (Stanford University Press, 2017).

[4] E.g., Michel Foucault, The History of Sexuality, Vol 1: The Will to Know, tr Robert Hurley (Pantheon Books, 1978) Chapter 5.

[5] Walter Benjamin, ‘Critique of Violence’ in Marcus Bullock and Michael W Jennings (eds), Walter Benjamin: Selected Writings, Volume 1, 1913-1926 (Harvard University Press, 1996) 236.

[6] E.g., Carl Schmitt, Political Theology, tr C J Miller (Antelope Hill Publishing, 2020).

[7] Agamben, Giorgio, ‘Homo Sacer: Sovereign Power and Bare Life’, tr Daniel Heller-Roazen in Agamben, Giorgio, The Omnibus Homo Sacer (Stanford University Press, 2017) (‘Homo Sacer’) 5.

[8] Agamben, Giorgio, ‘State of Exception’ tr Kevin Attell in Agamben, Giorgio, The Omnibus Homo Sacer (Stanford University Press, 2017) (‘State of Exception’) 165.

[9] Robert M Cover, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4 (‘Nomos and Narrative’).

[10] Robert M Cover, ‘Violence and the Word’ (1986) 95 The Yale Law Journal 1601 (‘Violence and the Word’).

[11] Love v Commonwealth (2020) 94 ALJR 198 (‘Love’).

[12] A picture eloquently painted by the Parados (Antigone (n 1) ll 117-172), and especially the proclamation by the Community of Creon as ‘the new man for the new day’ (Ibid l 174).

[13] Antigone (n 1) ll 192-193.

[14] Ibid ll 238-240.

[15] Ibid ll 222-231.

[16] Ibid ll 584-585.

[17] Ibid ll 731-32.

[18] Ibid ll 975-77.

[19] Ibid ll 870-74.

[20] Schmitt (n 6).

[21] Giorgio Agamben, ‘Statis: Civil War as a Political Paradigm’, tr Nicholas Heron in Agamben, Giorgio, The Omnibus Homo Sacer (Stanford University Press, 2017) 251.

[22] Agamben, ‘Homo Sacer’ (n 7) 5.

[23] Agamben, ‘State of Exception) (n 8) 226.

[24] Agamben, ‘Homo Sacer’ (n 7) 115-116.

[25] Antigone (n 1) ll 192-193.

[26] Ibid ll 179-182.

[27] Ibid ll 222-231.

[28] Ibid ll 505.

[29] Agamben, ‘Homo Sacer’ (n 7) 10.

[30] Ibid.

[31] Antigone (n 1) ll 222-231.

[32] Agamben, ‘Homo Sacer’ (n 7) 26, 72.

[33] Antigone (n 1) l 31, where Eteocles in contrast ‘goes down to glory among the dead’.

[34] Ibid ll 870-878.

[35] Agamben, ‘Homo Sacer’ (n 7) 76-77.

[36] Ibid 61-63.

[37] Agamben, Giorgio, ‘Remnants of Auschwitz: The Witness and the Archive’, tr Daniel Heller-Roazen in Agamben, Giorgio, The Omnibus Homo Sacer (Stanford University Press, 2017) 767.

[38] Ibid 797.

[39] Ibid 807.

[40] Ibid 808.

[41] Arendt, Hannah, The Human Condition (University of Chicago Press, 1958); Arendt, Hannah, The Origins of Totalitarianism (Harcourt Brace, 1973).

[42] For example, Foucault, Michel, The History of Sexuality, Volume 1: The Will to Know, tr Robert Hurley(Pantheon Books, 1978).

[43] Agamben, ‘Homo Sacer’ (n 7) 9.

[44] Robert M Cover, ‘Prelude: Of Creon and Captain Vere’ in Justice Accused: Antislavery and the Judicial Process (Yale University Press, 1975) 1 (‘Prelude’).

[45] Herman Melville, Billy Budd (Melville House, 2016).

[46] Cover, ‘Prelude’ (n 44) 1-2.

[47] Ibid 6-7.

[48] Robert M Cover, ‘The Origins of Judicial Activism in the Protection of Minorities’ (1982) 91(7) The Yale Law Journal 1287 (‘Origins of Judicial Activism’).

[49] Cover, ‘Nomos and Narrative’ (n 9) 4.

[50] Ibid 7.

[51] Ibid 44.

[52] Gal Hertz, ‘Narratives of justice: Robert Cover’s moral creativity’ (2020) 14(1) Law and Humanities 3.

[53] Robert M Cover, ‘The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation’ (1981) 22 William and Mary Law Review 639, 672-73 (‘Uses of Judicial Redundancy’).

[54] Robert M Cover, ‘The Folktales of Justice: Tales of Jurisdiction’ (1985) 14 Capital University Law Review 179, 191 (‘Folktales of Justice’); Stephen Wizner, ‘Repairing the World through Law: A Reflection on Robert Cover’s Social Activism’ (1996) 8(1) Cardozo Studies in Law and Literature 1.

[55] Cover, ‘Violence and the Word’ (n 10) 1601.

[56] Ibid.

[57] Ibid.

[58] Ibid 1610-1612.

[59] Ibid 1617.

[60] Cover, ‘Nomos and Narrative’ (n 9) 44.

[61] Cover, ‘Origins of Judicial Activism’ (n 48); Cover, ‘Uses of Judicial Redundancy’ (n 53). 

[62] Antigone (n 1) ll 9-10.

[63] Ibid ll 37-38.

[64] Ibid ll 31-36.

[65] Ibid ll 40-42.

[66] Cover, ‘Violence and the Word’ (n 10) 1610.

[67] Cover, ‘Nomos and Narrative’ (n 9) 44.

[68] Antigone (n 1) ll 215-221 for the patriot’s honour and ll 222-231 for the traitor’s indignity.

[69] Ibid ll 232-235, 327, 585.

[70] Ibid ll 11-12.

[71] Ibid ll 236-240.

[72] Ibid ll 588-589.

[73] Ibid ll 729, 732.

[74] Cover, ‘Violence and the Word’ (n 10) 1617.

[75] Antigone (n 1) l 245.

[76] Ibid l 246.

[77] Ibid l 247.

[78] Cover, ‘Violence and the Word’ (n 10) 1617.

[79] Antigone (n 1) ll 545-546.

[80] Ibid ll 777-782.

[81] Ibid l 505.

[82] Ibid ll 1090ff.

[83] Cover, ‘Nomos and Narrative’ (n 9) 44.

[84] Antigone (n 1) ll 1236-37.

[85] Australian Constitution s 51(xix).

[86] E.g., Immigration Restriction Act 1901 (Cth).

[87] Lakshiri Jayasuriya, David Walker and Jan Gothard, Legacies of White Australia: Race, culture, and nation (University of Western Australian Press, 2003).

[88] ‘Defining Moments: Citizenship Act’, National Museum of Australia website (Blog post, 29 April 2021). <https://www.nma.gov.au/defining-moments/resources/citizenship-act>.

[89] Australian Constitution s 127.

[90] Ibid s 24.

[91] Mabo v Queensland (No 2) (1992) 175 CLR 1.

A Sense of Injustice: Sophocles’ Antigone and Douzinas’ Theory of Justice

Introduction

Ever since the first performance of Sophocles’ Antigone,[1] in classical Athens (c. 5th century BC), the play has been the subject of much discussion, analysis, and debate.[2] Although the original setting of the play itself is mythical pre-Trojan War Thebes (c. 13th century BC) – already mythically and historically distant from its original Athenian audience[3] – this play has captured the hearts and attention of philosophers, jurists, and theorists for centuries. Of particular interest to my essay is the so-called ‘ethical turn’ of the 1990s,[4] in response to the ‘crisis of law’ in the 1970s and 1980s,[5] which renewed interest in the play,[6] including by Costas Douzinas.[7]

In summarizing the essence of his jurisprudence, in Critical Jurisprudence (2005), Douzinas helpfully distils down to six key themes that interact in a continual cycle.[8]Reason as the ground of law (which is force), which leads to disputation and conflict, potentially even violence and revolutionary struggle. While law seeks to equate justice with legality, the deep-seated emotional “sense of injustice”[9] drives resistance, revolution, and the pursuit of the impossibility of justice. Although modern, positivist law is founded upon the construct of power-law-reason, dubbed logonomocentrism,[10] deconstruction and critique works to question the status quo, in order to open the way to the continued journey towards the utopian vision of a cosmopolitanism to come[11] – “knowing hell, we imagine the possibility of paradise.”

In analysing the play of Antigone in light of Douzinas’ theory, I will argue that the play is powerfully concerned with similar notions of the impossibility of justice,[12] a deep and abiding “sense of injustice”,[13] and the questioning of the legitimacy of law based upon human reason. Aside from these issues, I will touch upon some of Douzinas’ theorizing around the controversial “right to resistance/revolution” in his most recent work.[14] Finally, I will seek to apply the insights gained from the play to the interaction between Queensland’s human rights legislation[15] and the recent amendments in late 2019 as a governmental response to growing unrest and protest around climate change.[16]

Considering Douzinas’ Early Work on Antigone: How my approach to reading was informed

Much modern (and postmodern) philosophical debate has been dominated by the dialectical analysis of Hegel,[17] as well as the psychoanalytical and ethical analysis of Jacques Lacan.[18] Similarly, Douzinas’ early essays on the Antigone are primarily focused upon Hegel and Lacan, as well as Heidegger’s ontological analysis of Sophocles’ Ode to Man.[19] Douzinas and Warrington appear to rely heavily upon traditional literary interpretations of the play,[20] such as Charles Segal,[21] Vernant and Vidal-Naquet[22] and Goheen.[23] These interpretations conceptualize the play as a binary conflict between Creon (representing law, the state and reason) and Antigone (representing kinship, the family, love and desire) – as Goheen summarized in stating that the play has “two centres of gravity”.[24]

As noted by Peter Euben,[25] this binary understanding inevitably privileges Hegel’s dialectical interpretation of the play, which ultimately privileges Creon’s ‘insist[ence] on rigid distinctions that inscribes hierarchies.’[26] As an alternative to this binary conception, Euben provides a framework of four “centres of gravity”[27] – Creon, Antigone, humanity (as depicted by the chorus, such as in the Ode to Man)[28] and the Athenian audience. Judith Butler’s Antigone’s Claim[29] notes her general agreement with Euben’s framework.[30] Also, in my reading of Butler, the main insight is her critique that both Hegel’s dialectic of state against kinship, and Lacan’s emphasis on kinship as a part of the Symbolic order as opposed to kinship as a social norm, were equally blind to the destabilizing implications of the violation of any conception of idealized kinship being embodied by Antigone as the fruition of an incestuous union.[31] Although Butler questioned their overall validity, she analyses their ideas in detail in order to rework those aspects of their theories.[32]

In applying Euben’s decentering framework, I have found Honig’s dramaturgical approach useful, which:

…treats the text as a performance which may succeed or fail rather than as an argument that may be true or false, right or wrong, paying attention to shifting contexts within the play, how information is circulated, what things are said directly to, or in the presence of, other characters, what may be overheard, things uttered in other character’s absence, or even things that seem to go over a character’s head.[33]

I found her close analysis of the political-historical context of burial politics[34] and of Antigone’s dirge-speech,[35] particularly useful in critiquing the logonomocentrism of Creon’s decree.

Logonomocentrism – Power-Law-Reason

            As an important part of the deconstruction work of postmodern jurisprudence, Douzinas described the construct between the legitimate exercise of power being based upon law, and the legitimacy of law being based upon reason. Legitimacy, within this positivist model, is equated with justice.[36] Creon’s legitimacy is based upon two sources: (1) Creon based his legitimacy upon the right of succession as next in kin to the throne,[37] and assumes, based upon the people’s acceptance of him to that position, that their obedience to his authority is obliged, irrespective of the right or wrong of his laws;[38] and (2) he based his legitimacy upon the reasoned principles of his governance: sound policies without fear, and not holding friendship above the good of the state.[39] Here, we see the power relying upon the legitimacy of succession (law, nomos), and the legitimacy of his laws based upon reasoned principle (reason, logos).

Considering the democratic state that was developing in the 5th century classical Greece,[40] it is interesting to consider the evidence from both Antigone[41] and Haemon[42] regarding the popular support behind Antigone. Also, there are a few times that Creon makes statements to the effect that he is uncertain of his own popular support[43] – eventually going so far as to claim legitimacy despite no popular support, rather than because of it.[44] However, returning to his initial speech asserting his legitimacy, it is clear that he assumed the legitimacy (and justice) of his rule and his laws – in particular, his principle that a patriot would not be treated alike to a traitor – upon the basis of succession and the reasonableness of his principles, especially this one principle he asserts numerous times.[45]

            Initially, Creon’s decree is challenged by Antigone’s ‘law’ – ‘Death longs for the same rites for all’.[46] This is in direct opposition to Creon’s ‘justice’ in treating the patriot differently to the traitor.[47] The conflict between Creon and Antigone becomes more complex and interesting when the final dirge-speech of Antigone arrives, where Antigone describes another ‘law’ of hers – a law which, in her final words, she asserts was ‘alone the law’ that inspired her action – a law of singularity, the uniqueness and irreplaceability of her brother, which could seem to contradict the law of equality for all.[48] Butler addressed this speech in Antigone’s Claim, seeing the two principles not as contradictory, but that the principle of equality married with the principle of singularity generated a unique call upon Antigone to love her brother as a unique, irreplaceable individual, in the same way as the law of the gods would have expected that each person who died would have had someone to answer this unique call for them.[49]

Butler’s approach can be contrasted with Honig’s analysis, where she characterizes this speech in terms of a ‘reason-making speech’ in justifying her ‘law’ – in contrast to (and as a parody of) Creon’s first speech which sought to justify his law and legitimacy.[50]

Honig draws out three important comparisons between Creon’s speech and Antigone’s dirge.

Firstly, based upon an analysis of the legal developments around burial rites by Pericles[51] – a shift between archaic, Homeric Greek burial rites which highlighted the unique individuality of the dead relatives, to the new, Periclean rites, which highlighted the importance of the polis (the city) and of the dead’s immortalization as a part of that polis, with a move away from the emotional, often vengeful, aspects of mourning towards a more socially acceptable form – the likeness to Creon’s edict is evident. Part of that oratory reflected the direction that parents who lost children (for example) should consider them replaceable. Thus, Antigone’s emphasis on Polynices’ irreplaceability could be considered as a parody upon Pericles’ oratory.[52]

Secondly, her dirge echoes Creon’s words to Ismene concerning Antigone’s replaceability – that Haemon could find another ‘field to plow’[53] – in the same way, Antigone says that she would have let a husband rot, because he would be replaceable[54] – which Honig considers as a mockery of Creon.

Finally, she echoes a legend in Herodotus’ history regarding a woman who begs for her brother to be saved due to his irreplaceability, and Darius rewards the woman by saving her son too.[55] Antigone’s reason-giving for her ‘law’ can be juxtaposed with Creon’s reasoning for his legitimacy and the ‘justice’ of his edict, in order to highlight the violence and injustice that can be done in the name of reason and law.[56]

Thus, rather than reading her dirge as a serious work of reasoning in support of the legitimacy of law (as Butler does), Honig suggests that it could be read as a parody and mockery of this construct of legal legitimacy based upon reasoned principles.[57]

The “Sense of Injustice” and the Impossibility of Justice

The “sense of injustice” grounds the conflict between Antigone and Creon, such as when Ismene, seeking to persuade her sister to refrain from defiance, is quickly interrupted by Antigone, ‘No, he has no right to keep me from my own.’[58] The foundation of mankind’s ‘mood and mind for law’[59] is experienced differently by Creon and Antigone – for Creon, reason grounds the legitimacy of state law, whereas for Antigone, this same ‘mood’ and ‘mind’ is experienced in her universal sense of what is just and what is unjust.

Antigone’s ‘gall to break this law’[60] is grounded in this “sense of injustice”, as opposed to an everlasting justice that no mere mortal can change.[61] She was certainly not going to suppress her sense of injustice ‘out of fear of some man’s wounded pride’.[62] In contrast, Creon’s sense of justice drives him to issue the edict in favour of the patriot as a friend of the city and against the traitor as an enemy of the state.[63] In both cases, statements, preceded by a firm ‘No!’ evince the emotion and force of violence involved in the conflict of different conceptions of justice which, in accord with Douzinas’ view, grounds the impossibility of a unifying theory of justice.[64]

A Consideration of Douzinas’ Neo-Marxian Inspired Utopianism and the “Cosmopolitanism to Come”

Related to Douzinas’ understanding concerning the impossibility of justice is his theory around utopianism,[65] drawn from Neo-Marxist theorists, in particular Ernst Bloch.[66] He went on to develop the idea of a cosmopolitanism to come, an impossible vision like a paradise, where justice could be achieved – a world to which those who seek rights and justice are aiming towards, despite the impossibility of ever arriving there. Ernst Bloch, in Natural Law and Human Dignity, suggested an inversion of death as a metaphor in the play as a picture of the utopian vision. [67]

Thus, when Antigone speaks of the glory to come as a consequence of her defiance in the name of justice and kinship,[68] and her reunion with her family in love,[69] although she may not have conceived of this vision of death as a paradisiacal utopia, it wouldn’t be too far a stretch to utilize her language as a metaphor for the outcome that defiance against what is considered bad law, and resistance against injustice, is striving towards. The glory, for Antigone, is eternal, much longer than the temporal here and now.[70]

Applying Antigone in Critiquing Human Rights in Queensland and the Right to Resist

In light of the strong connection in Douzinas’ work between the impossibility of a satisfying theory of justice, and the underlying “sense of injustice” driving conflict, the law (which is force, and can even amount to violence) must seek to legitimize itself, attempting to negate any natural claim to the controversial right of resistance and revolution, the powerful themes drawn out in Antigone can be applied in critiquing the limitations of Queensland’s human rights law,[71] particularly relating to the right to protest,[72] and the freedom of expression of political communication.[73] In 2019 – the same year that Queensland’s Human Rights Act was passed – the government sought to respond to the alleged threat caused by climate change protests to social stability.[74] The law related to the regulation of climate protestors was perceived publicly as a threat to the fundamental freedoms, although the Human Rights Act acknowledges the State’s ability to limit human rights (though, technically, only where they are reasonable, necessary, and for a legitimate purpose).[75] Whereas Antigone perceived herself to be alone and without support, those who resisted Queensland’s law had a measure of solidarity between themselves, if not some support from the public at large.

Conclusion

Having approached Sophocles’ Antigone, from its original historical context, and its various traditional receptions through time, I have considered those critiques offered to these approaches by Butler, Honig and Euben, and have chosen to read the play from a dramaturgical perspective, acknowledging the non-binary nature of the conflicts depicted in the play. In the light of Douzinas’ theory around the impossibility of justice, a sense of injustice, and the cosmopolitanism to come, I have argued that the play concerns to a great extent a critique of the rationalist legitimacy upon which modern positive law is based and highlights the challenges that law faces in coming to terms with the complexity of injustice in the world. Considering this complexity, I have briefly considered the challenges that governments face in attempting to regulate the right to resist and protest in Queensland.


[1] All references to Sophocles’ Antigone will refer to lines from Sophocles, ‘Antigone’ in The Theban Plays: Antigone, Oedipus the King, Oedipus at Colonus, tr Robert Fagles (Penguin Classics, 1984) 59 (‘Antigone’).

[2] For example, some of the earliest extant references to the play in Aristotle, Rhetoric (Digireads.com, 2020) Book I, Chaps 13 and 15; Book III, Chaps 16 and 17.

[3] Peter Euben, ‘Antigone and the Languages of Politics’ in Corrupting Youth: Political Education, Democratic Culture, and Political Theory (Princeton University Press, 1997) 147.

[4] Bonnie Honig, Antigone, Interrupted (Cambridge University Press, 2013) 17.

[5] Jane B Baron, ‘Storytelling and Legal Legitimacy’ (1998) 25(1) Law, Literature, and Interdisciplinarity 63.

[6] Honig (n 4) 23, citing Mark Griffith, ‘The Subject of Desire in Sophocles’ Antigone’ in Victoria Pedrick and Steven M Oberhelman (eds), The Soul of Tragedy: Essays on Athenian Drama (University of Chicago Press, 2005) 91.

[7] Costas Douzinas and Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics, and the Law (Harvester Wheatsheaf, 1994) 25 (‘Justice Miscarried’); Costas Douzinas and Ronnie Warrington, ‘Antigone’s law: A genealogy of jurisprudence’ in Costas Douzinas, Peter Goodrich and Yifat Hachamovitch (eds), Politics, postmodernity and critical legal studies: The legality of the contingent (Taylor & Francis Group, 1994) 187 (‘Antigone’s Law’); Costas Douzinas, ‘Law’s Birth and Antigone’s Death: On Ontological and Psychoanalytical Ethics’ (1995) 16(3/4) Cardozo Law Review 1325 (‘Law’s Birth and Antigone’s Death’); Costas Douzinas, ‘Law Deathbound: Antigone and the Dialectics of Nomos and Thanatos’ in Desmond Manderson (ed), Courting Death: The Law of Mortality (Pluto Press, 1999) 163 (‘Law Deathbound’).

[8] Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Hart, 2005) 18-43 (‘Critical Jurisprudence’).

[9] An important concept derived from pre-Socrates philosophy, as described by Martin Heidegger, Introduction to Metaphysics, tr R Mannheim (Doubleday Anchor Books, 1961), and utilized in Douzinas and Warrington, Justice Miscarried (n 7) 15, 133-35, 183-4, 225; Costas Douzinas, The End of Human Rights: Critical Legal Though at the Turn of the Century (Hart, 2000) 37, 293, 340, 354 (‘The End of Human Rights’); Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Routledge, 2007) 87 (‘Human Rights and Empire’); Costas Douzinas, The Radical Philosophy of Rights (Routledge, 2019) 118-9, 179, 182, 186 (‘The Radical Philosophy of Rights’).

[10] Costas Douzinas and Ronnie Warrington, with Shaun McVeigh, Postmodern Jurisprudence: The Law of Text in the Texts of Law (Routledge, 1991) 91 (‘Postmodern Jurisprudence’).

[11] Douzinas, The End of Human Rights (n 9) 319; Douzinas, Human Rights and Empire (n 9) 291.

[12] Douzinas and Warrington, Justice Miscarried (n 7) 28; Douzinas, The End of Human Rights (n 9) 321; Douzinas, Human Rights and Empire (n 9) 49; Douzinas, The Radical Philosophy of Rights (n 9) 102, 113, 131.

[13] Douzinas and Warrington, Justice Miscarried (n 7) 15, 133-35, 183-4, 225; Douzinas, The End of Human Rights (n 9) 37, 293, 340, 354; Douzinas, Human Rights and Empire (n 9) 87; Douzinas, The Radical Philosophy of Rights (n 9) 118-9, 179, 182, 186.

[14] Douzinas, The Radical Philosophy of Rights (n 9) Part III The right to resistance.

[15] Human Rights Act 2019 (Qld).

[16] Summary Offences and Other Legislation Amendment Act 2019 (Qld), amending the Police Powers and Responsibilities Act 2000 (Qld) and the Summary Offences Act 2005 (Qld).

[17] Georg Wilhelm Friedrich Hegel, Hegel’s Aesthetics: Lectures on Fine Art, Volumes 1 and 2, tr T M Knox (Clarendon Press, 1975); Georg Wilhelm Friedrich Hegel, The Phenomenology of Spirit, ed and tr Terry Pickard (Cambridge University Press, 2018); Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right,ed Allen W Wood, tr H B Nisbet (Cambridge University Press, 1991).

[18] Jacques Lacan, The Ethics of Psychanalysis, 1959-1960: The Seminar of Jacques Lacan, ed Jacques-Alain Miller, tr Dennis Porter (Routledge, 1992), especially ‘The Essence of Tragedy: A commentary on Sophocles’ Antigone’ 242.

[19] Heidegger (n 9), referring to Antigone (n 1) ll 376-416.

[20] Douzinas and Warrington, Justice Miscarried (n 7) 29; Douzinas, ‘Law Deathbound’ (n 7) 191.

[21] Charles Segal, ‘Sophocles’ praise of men and the conflicts of the Antigone’ (1964) 3(2) ARION 46; Charles Segal, Tragedy and Civilization: An Interpretation of Sophocles (Harvard University Press, 1981); Charles Segal, Interpreting Greek Tragedy: Myth, Poetry, Text (Cornell University Press, 1986).

[22] Jean-Pierre Vernant and Pierre Vidal-Naquet, Myth and Tragedy in Ancient Greece (Zone Books, 1990).

[23] Robert Francis Goheen, The Imagery of Sophocles’ Antigone (Princeton University Press, 1951).

[24] Ibid 97.

[25] Euben (n 3) 139.

[26] Ibid 152-153.

[27] Ibid 152.

[28] Antigone (n 1) ll 376-416.

[29] Judith Butler, Antigone’s Claim: Kinship Between Life and Death (Columbia University Press, 2000).

[30] Ibid 5 n 8.

[31] Ibid 5.

[32] Ibid 19, 28-29.

[33] Honig (n 4) 6.

[34] Ibid Chap 4 (‘Mourning, membership, and the politics of exception: plotting Creon’s conspiracy with democracy’).

[35] Ibid Chap 5 (‘From lamentation to logos: Antigone’s conspiracy with language’).

[36] Douzinas and Warrington, with McVeigh, Postmodern Jurisprudence (n 10) 91.

[37] Antigone (n 1) ll 192-193.

[38] Ibid ll 748-751.

[39] Ibid ll 198-202.

[40] Edward M Harris, ‘Antigone the Lawyer, or the Ambiguities of Nomos’ in Edward Harris (ed), Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics (Cambridge University Press, 2006) 41; Josine Blok, Citizenship in Classical Athens (Cambridge University Press, 2017).

[41] Antigone (n 1) ll 563-567, 570-571.

[42] Ibid ll 770-784.

[43] Ibid ll 182-183, 328-335.

[44] Ibid ll 820-825.

[45] Ibid ll 232-235, 585.

[46] Ibid l 584.

[47] Ibid ll 232-235, 585.

[48] Ibid ll 995-1005.

[49] Butler (n 29) 9-10.

[50] Honig (n 4) Chap 5.

[51] Emiliano J Buis, Taming Ares: War, Interstate Law, and Humanitarian Discourse in Classical Greece (Brill, 2018), 116-118; George A Sheets, ‘Conceptualizing International Law in Thucydides’ (1994) 115(1) American Journal of Philology 51.

[52] Antigone (n 1) ll 1003-1004.

[53] Ibid ll 641-643.

[54] Ibid ll 997-999.

[55] Honig (n 4) Chap 5.

[56] Douzinas and Warrington, with McVeigh, Postmodern Jurisprudence (n 10) 91.

[57] Honig (n 4) Chap 5.

[58] Antigone (n 1) ll 58-59 (emphasis added).

[59] Ibid l 396.

[60] Ibid l 498.

[61] Ibid ll 503-508.

[62] Ibid ll 509-511.

[63] Ibid ll 232-235, 585.

[64] Douzinas and Warrington, Justice Miscarried (n 7) 28; Douzinas, The End of Human Rights (n 9) 321; Douzinas, Human Rights and Empire (n 9) 49; Douzinas, The Radical Philosophy of Rights (n 9) 102, 113, 131.

[65] Douzinas, The End of Human Rights (n 9) 319; Douzinas, Human Rights and Empire (n 9) 291.

[66] Ernst Bloch, Natural Law and Human Dignity, tr D J Schmidt (MIT Press, 1988), citing and explained in Douzinas, The Radical Philosophy of Rights (n 9) 104.

[67] Bloch (n 66) 114, 120-121.

[68] Antigone (n 1) ll 31, 86-88, 112-13, 561-562.

[69] Ibid ll 985-993.

[70] Ibid ll 88-90.

[71] Human Rights Act 2019 (Qld).

[72] Ibid s 22 (‘Peaceful assembly and freedom of association’).

[73] Ibid s 21 (‘Freedom of expression’).

[74] Summary Offences and Other Legislation Amendment Act 2019 (Qld), amending the Police Powers and Responsibilities Act 2000 (Qld) and the Summary Offences Act 2005 (Qld).

[75] Human Rights Act 2019 (Qld) s 13.

A Critique of the Development in the High Court’s Jurisprudential Approach: Extinguishment of Native Title and the Principle of Equality before the Law

Introduction

One of the most challenging aspects of the law of native title is its historical underpinnings in the development of international jurisprudence of European colonial powers regarding settlement, conquest and cession,[1] which asserts and legitimises the sovereign power assumed by the Crown to be able to extinguish native title rights and interests,[2] herein after generally referred to as ‘traditional title’ and ‘traditional title rights and interests’, which seems a less derogatory way of referring to it.[3] While repudiating the legal fiction of terra nullius and holding that the Crown’s radical title acquired upon settlement was burdened by the prior traditional title rights and interests, the High Court maintained that tradition title could be extinguished by valid legislative and executive acts.[4] I will argue that, irrespective of which legal test for extinguishment is applied, while the protection of traditional title appeared to be grounded upon the application of the principles of equality, ultimately, because traditional title was deemed to have a “unique status” – due to its source, not from Crown grant, but traditional law and custom – which rendered it uniquely vulnerable to extinguishment, the fact that it is not being protected to the same degree by the universal presumption against Parliament intending to extinguish private property rights, evinces a fundamental rejection of the principles of equality.[5]   

This essay will begin by critically examining the different approaches to equality in Mabo v Queensland (Mabo (No 1)),[6] contrasting the narrower, literal approach of Wilson and Dawson JJ with the broader approach of Brennan, Gaudron, Toohey and Deane JJ. I will explore how these distinctive approaches mirror the tension in international law between the protection of minority rights versus distinctive collective rights, such as the right to self-determination for indigenous peoples.[7] Having laid this foundation, I will examine the underpinnings of the “clear and plain intention” test in Mabo (No 2)[8] in the common law presumption regarding Parliament’s interference with private property rights.[9] I will discuss some of the laws regarding compulsory acquisition and its relationship to extinguishment of native title. Following from this, I will explore the shift in jurisprudential approach towards the “inconsistency of incidents” test,[10] and the later shift back to the “clear and plain intention” test[11] – critically examining the connection between these different approaches and the application (or repudiation) of the principles of equality.[12] Finally, I will examine the critical opinions of the extinguishment of native title in Australian law,[13] the jurisprudence of regret and genuine acknowledgement of difference in developing a pluralistic jurisprudence.[14]

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Recognition of Non-Binary Genders on Birth Certificates: The Case for Gender Abolitionism from Queer & Feminist Perspectives

This is the critical essay based upon my earlier Project Proposal, which you can read here. I achieved 20/20 for my Project Proposal, and this Major Project (my critical essay) achieved 60/60.

Introduction

Considering the important, if not central, place that the law plays in the development and maintenance of social regulation,[1] it is not surprising to see how entrenched the heteronormative/cis-normative conception of sex/gender is within Australian law.[2] This paper will examine the current position in law regarding the recognition of transgender, intersex and other non-binary genders within Australian law,[3] focusing on the ability given to adults to register change from their assigned sex/gender at birth in acknowledgement of their self-identified gender outside the gender binary. This will involve an examination of the historical development of the understanding of sex/gender in UK, Australian and international law, [4] before turning to a close examination of the current Births, Deaths and Marriages Registration (‘BDMR’) laws in Queensland (as an example of the continued persistence of a bio-medical model[5] within Australian law), compared to the more progressive reforms in Tasmania and Victoria (as examples of a move towards a self-identification model of sex/gender).[6]

My critique will involve exploring various aspects of queer and feminist theories that relate to how sex/gender could be conceptualised, the relationship between embodiment and gender, sex as biological fact versus gender as social construct, and of the concept of ‘value-free science’.[7] Applying these various theoretical perspectives, I will critique the relevance of gender in law, and argue for developing towards a genderless society – as envisioned by certain queer and feminist theorists.[8]

Continue reading “Recognition of Non-Binary Genders on Birth Certificates: The Case for Gender Abolitionism from Queer & Feminist Perspectives”

A Critical Examination of the Doctrine of Separate Legal Personality and Piercing/Lifting the Corporate Veil

Introduction

From its inceptions in the late Middle Ages, the incorporation of business activities has remained an area of controversy both in legal scholarship and the political and social sciences. In the early days of the twentieth century, Ambrose Bierce wrote in his Devil’s Dictionary, that a corporation is ‘an ingenious device to obtain profit without individual responsibility.’[1] On many levels, this satirical statement captures the practical realities behind the concept of separate legal personality, limited liability and the veil of incorporation. This essay will examine these doctrines from both traditional theoretical perspectives and critical perspectives, with an emphasis upon the implications for these doctrines to the development of jurisprudence related to corporate groups.[2]

This essay will begin with an introduction to the doctrines of separate legal personality and limited liability, their basis in the general law[3] as well as those relevant sections of the Corporations Act 2001 (Cth) (‘CA’) which affirm them.[4] I will then turn to an examination of the doctrine of the corporate veil, from a traditional theoretical framework in concession[5] and contractarian theories,[6] including a discussion of some of the reasons behind the court’s reluctance to pierce or lift the corporate veil.[7] This will lead into a discussion of the several areas where the courts have decided to pierce or lift the corporate veil in the general law.[8]

Following on from this, I will turn to discuss several critical theories of the corporation – communitarian theories and CSR,[9] feminist critiques of the corporation[10] and Islamic jurisprudence and its relevance to international corporate activities.[11] Thus, I hope to shed light on the potential for recognising theoretical plurality in our understanding of corporate law jurisprudence in Australia.[12]

Continue reading “A Critical Examination of the Doctrine of Separate Legal Personality and Piercing/Lifting the Corporate Veil”

Recognition of Non-Binary Genders on Birth Certificates

Recognition of Non-Binary Genders on Birth Certificates: A Comparison of Biomedical vs Self-Identification Models Underlying State BDMR Laws, with Reference to Feminist & Queer Theories of Sex, Gender and Embodiment

This is the Project Proposal for my current Critical Research Essay for my Gender & The Law Course. I hope my readers appreciate it. I’ll be working on the actual Major Project which will be due in mid-October. Here is the published Major Project (critical essay) which achieved 60/60.

Introduction – Topic Outline

I will be investigating the different models of sex/gender underlying the current differences in legislation regarding change of sex/gender in Queensland[1] compared to more progressive legislation in Victoria[2] and Tasmania.[3] Queensland’s law requires ‘sexual reassignment surgery’,[4] defined as:

A surgical procedure involving the alteration of a person’s reproductive organs carried out – (a) to help the person to be considered to be a member of the opposite sex; or (b) to correct or eliminate ambiguities about the sex of the person.[5]

Births, Deaths and Marriages Registration Act 2003 (Qld), sch 2 (definition of ‘sexual reassignment surgery’).

In contrast, the Victorian and Tasmanian legislation has recently been reformed in 2019 to allow a person to make a declaration of their gender identity based on their own self-identification.[6] Thus, on a spectrum between the traditional gender binary based on the biomedical model and an acknowledgment of gender diversity, based upon an individual’s self-identification of gender identity, Queensland’s law is still closer to the traditional biomedical model, whereas Victoria and Tasmania are much closer to a more progressive self-identification model.

Continue reading “Recognition of Non-Binary Genders on Birth Certificates”