Volume 4 Issue 1 March 2000

Special Edition - Legal Theory

Margaret Davies <introduction >

Kaldowinyeri - Munaintya - In The Beginning
Irene Watson <abstract >

The Public/Private Distinction As A Conceptual Boundary Of The State: A Bifocal Theory Of The State For Feminism
Mary Heath <abstract >

The Immorality Of Unlimited Wealth: The Lockean Limits To The Acquisition and Accumulation Of Private Property
Mark J Rankin <abstract >

Authorised Performances: An Inquiry Into The Sources Of Judicial Authority
Richard Mohr <abstract >

Science, Religion And Law
Reetvinder Kaur Randhawa <abstract >

Why Deconstruction Is Beneficial
Ben Mathews <abstract >

The De-Capitation Of A Discipline, Or How Legal Theory Lost Its Head
Margaret Davies <abstract >

Volume 4 Issue 2 July 2000

First Principles In The Interpretation Of University Statutes
Suzanne Corcoran <abstract >

CLERP Information Reforms - Tinkering At The Edges
Julian Blanchard <abstract >

Land Title Act 1994 (Qld) - Statute For A New Millennium?
Michael Weir <abstract >

Electronic Title In The New Millennium
Sharon Christensen and Amanda Stickley <abstract >

Certainty Of Title In The Torrens System: Shifting Sands
Elizabeth Toomey <abstract >

Garcia - A Softly Softly Approach
Tina Cockburn <abstract >

Synopses - Volume 4 Issue 1 March 2000

Margaret Davies, Special Edition Editor

Over the past twenty years, legal theory has grown considerably from an inward-looking activity focused primarily on understanding the formal law and its relation to "morality", to an expansive and increasingly influential body of thought connected with a range of disciplines other than law. Theory is still frequently centred on analysis and critique of the fundamental nature of law, but the styles of analysis and critique have immensely diversified, while theorists have become much more critical of the traditional jurisprudential assumption that Western law provides a paradigm for understanding law in general. In order to reflect the heterogeneity of theory associated with law, it is now more common to speak of "legal theory" than "jurisprudence".

The explosion of new theory is due to a number of factors. In part it has arisen in direct response to similar developments in theory in the humanities and social sciences, combined with an increased willingness among lawyers to transgress established disciplinary boundaries. However, in many cases it is also the result of an awareness among theorists of the ways in which Western positive law interacts with social mechanisms and is implicated in the reproduction of social hierarchies and structures of power. The established legal values of objectivity, neutrality and impartiality have therefore been subjected to rigorous critical scrutiny.

The articles collected in this edition of the Flinders Journal of Law Reform are not "representative" of the new legal theory, which is far too plural to be represented by a sample of seven articles. However, the articles do illustrate the breadth of thinking associated with law. In particular, they provide an insight into the diversity of approaches which are critical of the Anglo-American tradition of jurisprudence or legal philosophy. Some interrogate specific aspects of this tradition and the law upon which it is based, while some suggest more broadly the limitations of the predominant Western ideas of "law", "state", "knowledge", and "property". The articles depart to varying degrees from that tradition, but it is also important to indicate that the jurisprudential tradition is not necessarily even a point of departure - although all of the articles deal to some extent with the positive law which the dominant culture in Australia takes as its paradigm, the jurisprudential canon is happily marginal in these writings. I take this as a sign of the immense freshness and vitality of legal theory today - and as a promise that all varieties of legal theory will continue to look outwards in an effort to develop responsible and respectful approaches to theorising and constructing legal environments.

 Kaldowinyeri - Munaintya - In The Beginning
Irene Watson

The article "Kaldowinyeri - Munaintya - In the Beginning" is about the origins and original intentions of law; that which I call raw law. Law emanates from Kaldowinyeri - the beginning of time itself. Law first took form in song. Law is naked like the land and its peoples. The colonial legal system is different, it is a layered system of rules and regulations, an imposing one, which buries the essence, and nature of law. This is a writing from 'inside', from my Nunga - Aboriginal - perspective. In writing I engage in a personal struggle to decolonise, this article is part of that ongoing process, this is a writing of a song that still sings within.

 The Public/Private Distinction as a Conceptual Boundary of the State: A Bifocal Theory of the State for Feminism?
Mary Heath

This paper traces the alignment of 'the public' and 'the state' in traditional theories of the state. It critiques the resulting constructions of 'the state' and their adoption by feminist theorists. The author rejects the public/private distinction as a necessary and pre political boundary between state and non-state institutions and actors. She proposes a bifocal analysis of the state as a starting point in producing new approaches for feminist activism. The discursively powerful (public) state would continue as a subject of feminist critique and engagement, together with an alternative focus on conceptions of the state which refuse to recognise the public/private distinction as a conceptual boundary of 'the state'.

 The Immorality Of Unlimited Wealth: The Lockean Limits To The Acquisition And Accummulation Of Private Property
Mark J Rankin

The article focuses on John Locke's theory of private property, as established in his Two Treatises of Government. Locke's theory outlined therein has been used to morally justify unlimited capitalist enterprise. The article challenges this notion, and argues that Locke placed clear limits upon the acquisition and accumulation of private property, and thereby defined the notion of unlimited wealth (ie the dominant contemporary capitalist doctrine) as immoral.

 Authorised Performances: The Procedural Sources of Judicial Authority
Richard Mohr

Judicial authority is commonly seen as deriving from sources such as the state, the people or the law as doctrine. These sources are considered, but found to be insufficient to explain or legitimate judicial authority.

Legal sources are considered in more detail from the point of view of procedure, including location, public participation and the judicial presence. Contemporary procedural regimes in Australian courts are compared to theories of procedural justice as they have been advanced by Rawls, Habermas and others. Many evidentiary and conventional procedures seem to contribute little to ideal communication or procedural fairness, and may even inhibit communication.

Explanations are sought in theories of the performative, advanced by J L Austin and debated by Nancy, Derrida and Bourdieu. Many procedures which appear ritualistic may be seen to enhance the performative impact of judicial authority, by defining the institutional context of that authority. There is a tension between procedural justice and judicial authority.

 Science, Religion And Law
Reetvinder Kaur Randhawa

Western scientific and legal knowledge has come to dominate over other types of knowledge. In this article I consider critiques of the notion of objectivity from within the Western academic tradition, including analyses based on language, storytelling and feminism. The main focus of the article is the contrast between Western objective knowledge and Eastern religious knowledge, in particular the Sikh religion. The comparison illustrates the possibility of other ways of knowing, as science and law have come to dominate Western thought, and also highlights the damaging effect the universalisation of objective knowledge has on the 'other'.

 Why Desconstruction Is Beneficial
Ben Mathews

Jacques Derrida has recently acknowledged his ideas' relevance to legal critique, and has urged a deconstructive approach to law and justice. This discussion identifies deconstruction's capacity to contribute to ongoing legal reconstruction and enhancement of justice. It acknowledges Postmodern ideas and Derrida's notion of différance, which justify a deconstructive attitude. Deconstruction and its motives of responsibility and enhanced justice are explained, emphasising deconstruction's exploratory nature. Weaknesses are noted, particularly Derrida's claim that deconstruction is justice. This discussion concludes that deconstruction's diagnostic value in legal critique is beneficial, but that further strategies are required to inspire normative change.

 The De-Capitation Of A Discipline, Or How Legal Theory Lost Its Head
Margaret Davies

The article reviews twentieth century developments in legal theory, and asks whether it is still possible to speak of "jurisprudence", "legal philosophy", or "legal theory" as having any identity as a discipline within the study of law. It is argued that, whereas the nature of legal theory was once relatively clearly defined, legal theory now encapsulates such a range of different ideas, approaches, and perspectives that there is in fact no "legal theory" but a multiplicity of "legal theories". Not only have the disciplinary boundaries been enlarged, but the political motivations and interdisciplinary affiliations of legal theorists have radically altered. This fragmentation of legal theory is accompanied by a movement away from conceptual purity as an intellectual ideal, and a greater appreciation of the inherent political nature of law. While these developments might amount to a demise of traditional jurisprudence, it is argued that they have created an immensely productive climate for legal theorists generally.

Synopses - Volume 4 Issue 2 July 2000

First Principles In The Interpretation Of University Statutes
Suzanne Corcoran

Professor Corcoran introduced her inaugural lecture which is the basis of the journal article in the following terms:

'This afternoon I would like to speak about the legal conception of a university and the way that conception affects the design of university statutes and should in turn affect the interpretation of those statutes. By 'statutes' I mean university enabling Acts (the Acts which bring universities into being) and the various statutory rules and regulations passed pursuant to delegated authority. I also want to go on and talk about the way that legal conception may be changing and how those changes may transform our traditional notions about the university - or at least create rivals to them.'

 CLERP Information Reforms - Tinkering At The Edges
Julian Blanchard

In this article the author examines the changes introduced by the Corporations Law Review Act 1998 (Cth) and the reforms to be introduced under the Corporate Law Economic Reform Program Bill 1998 (Cth) concerning information disclosures required by corporations to their shareholders. The author establishes a theoretical framework explaining the information needs of shareholders in their role as investors, monitors and citizens. This theoretical framework establishes what information shareholders ideally should receive. The article then outlines the current regulatory disclosure framework and goes on to examine the reforms introduced by the Review Act and proposed under CLERP Bill. The article concludes that while the reforms are largely sensible and designed to simplify the relevant disclosure requirements they are too narrowly focused in view of the theoretical framework developed. The CLERP forms are also contradictory as a matter of policy on the issues of understandability and internationalisation.

 Land Title Act 1994 (Qld): Statute For A New Millennium?
Michael Weir

'The Land Title Act 1994 (Qld) ('LTA') was proclaimed into force on the 14 April 1994. This legislation, including the subsequent amendments, represents one of the most significant reworkings of the Torrens system in Australia which has had implications for conveyancing and land law in this state. It is timely to discuss its innovations, successes and failures five years after its inception. It is worthwhile to ask whether the LTA is a statute which suits the needs and challenges of the new millennium.'

 Electronic Title In The New Millennium
Sharon Christensen and Amanda Stickley

As in all aspects of life and work, technology is making its presence felt with the introduction of electronic title in the Torrens system. Although the use of technology will provide greater access to information and faster registration, streamlining conveyancing, other issues arise. The effect on registration processes, conveyancing practice, the possibility of fraud and indefeasibility all need to be considered. This paper examines the practical and theoretical issues associated with the introduction of electronic title and greater reliance on computer information.

 Certainty Of Title In The Torrens System: Shifting Sands
Elizabeth Toomey

Since the early 20th century, case law has continuously emphasized that the doctrine of certainty of title in our Torrens-based legislation does not destroy the courts' ability to exercise their jurisdiction in personam on grounds of conscience.

This paper analyses a number of recent Australian and New Zealand judgments in which the courts have grappled to satisfy this balance.

Can the indefeasiblity principle be reconciled with an illegal contract? Can the principle of indefeasibility apply to mortgages taken as securities for guarantees? What happens if the indefeasibility of the mortgage profits the mortgagee nothing? Does the alteration of a document amount to an unconscionable act?

The orthodox distinction between fraud and the in personam claim is also being challenged. There is a lack of consistency in the courts' attempts to limit each within defined parameters. Invariably, the level of knowledge and standard of conduct of the registered proprietor is in question.

This paper readdresses the concern that equitable principles could undermine indefeasibility of title and concludes with thoughts for maintaining the integrity of our registration system in the 21st century.

 Garcia One Year On - A Softly Softly Approach
Tina Cockburn

Recently a majority of the High Court in Garcia v National Australia Bank Limited (1998) 194 CLR 395 has affirmed the rule in Yerkey v Jones, though on the basis that it is an example of the general equitable doctrine of unconscionability arising out of an abuse of the trust and confidence in the marriage relationship, rather than assumed subservience or inferior economic position of married women.

It is now over two years since the decision in Garcia was handed down. The courts have adopted a "softly, softly" approach, cautiously applying the majority in Garcia, which has attracted a fair degree of academic and judicial criticism.

The paper is divided into three parts. Part A discusses the facts and decision of Garcia. Part B contains a critical analysis of Garcia. Part C considers decisions which have been handed down since Garcia.