Richard Mohr

Responsibility and the representation of suffering: Australian law in black and white

Richard Mohr — Mon, 07 Nov 2011 14:48:50 PST

Abstract: This article critically analyses the concept of suffering, with particular emphasis on responsibility for and representations of suffering. Suffering is seen as a social relationship, with objective characteristics, classified by Renault as domination, deprivation and the weakening of intersubjective supports (désaffiliation). Veitch and Wolcher have inquired into legal responsibility for suffering. The author adds that suffering is also constructed subjectively, through aesthetic, political and legal representations. This theoretical model of suffering is applied to recent political and legal issues in Australia dealing with an apology for earlier policies of removing Indigenous children from their families, and a more recent aggressive “emergency response” to concerns over child abuse in Aboriginal communities. Indigenous Australians have clearly suffered from colonisation and subsequent policies, while representations of their suffering can be seen to have exacerbated their disempowerment and thus increased suffering. The article proposes recognising responsibility while avoiding the disempowerment of “victims”. It concludes by proposing new approaches to domination, deprivation and disempowerment that may open the way to new constructions of political subjectivity, fostering the redevelopment of intersubjective supports, while increasing awareness of the past causes of suffering.

‘Allontanarsi dalla linea gialla’: distance and access to urban semiosis

R. Mohr — Tue, 06 Apr 2010 16:49:36 PDT

This is an enquiry into the relationship between familiarity and distance in semiotic and related studies. In parallel, it explores our relationship to cities: the familiar as the ground of our daily lives are invisible, while the unfamiliar become vivid in proportion to our ignorance of them. Learning and research may at first appear to involve a process of gaining greater proximity to the subject matter. There are indications from the semiotic and phenomenological traditions that suggest, however, that greater distance is required, in order to question taken-for-granted semiotic bonds and to step outside in order to examine quotidian life experience. The article explores these issues through the experience of a joint project, between a photographer and a sociologist, which documented and analysed a specific urban area in Melbourne, Australia. The results of the project were presented at two gatherings, one in Melbourne and the other in Torino. The different relationships of the two protagonists to the subject matter, and the different degrees of proximity of the two audiences provide the opportunity to reflect on distance as a methodological element in the human sciences. The study draws on phenomenological and semiotic principles to consider whether distance may provide a necessary critical fulcrum, or may trigger insights across the gap of εποχη that are unavailable in the ‘natural attitude’. The methodological and pedagogical points are drawn out of a discussion of the photographs themselves.

Response and responsibilty

Rick Mohr — Tue, 30 Mar 2010 17:13:15 PDT

One year after the Apology to the Stolen Generations, Richard Mohr asks what we mean by 'responsibility' in the context of a government wishing to redress past wrongs. Looking specifically at the Intervention and the suspension of the Racial Discrimination Act, Richard argues that, for the Apology to have any meaning beyond 2008, it is important that the Commonwealth deliver on the concrete measures recommended in Bringing them Home, and provide Aboriginal and Torres Strait Islander people a guarantee against further racist polices, both now and in the future.

Festival Filosofia sui Sensi / Philosophical Festival of the Senses

R. Mohr — Tue, 24 Feb 2009 16:47:35 PST

Three cities, three days, how many senses? I lost count in the eruption of designer menus, philosophy "master classes," children's activity spaces, all night music parties, herbs and spices, exhibitions including Picasso erotica, and strolls past the flower, fish and formaggio sections of the market in Modena. The latest edition of the city's philosophy festival organized each year since 2001 was dedicated to the senses. From Friday to Sunday, 16-18 September, 2005 Modena and its smaller neighbors Carpi and Sassuolo gave over their piazzas, exhibition spaces, libraries, restaurants and churches to the festival. The trains between the three centers were crowded with "cultural commuters," who were invited to scheduled en route discussions with various philosophers on a number of the trips.

(Review) Critical legal positivism by Kaarlo Tuori

R. Mohr — Tue, 24 Feb 2009 16:47:35 PST

Kaarlo Tuori, professor of law, judge, and counsellor to the Constitutional Committee of the Finnish Parliament, has embarked on an ambitious project. He aims to build on the positivism of Kelsen and Hart, but to discover a normative justification of law which goes beyond their limited validity claims. This is the ‘critical’ element which he adds to ‘legal positivism’. Kelsen’s basic norm and Hart’s rule of recognition are irreducible underlying principles. The arbitrary nature of such principles is intellectually suspect, while their internal self referentiality renders them morally sterile. The law is the law — because we recognise it as such or because it is founded on the basic norm — and as such it is valid. This leads to a lack of critical purchase, which is the fundamental drawback of positivism when confronted by natural law or other ethically based theories. Classical mid-twentieth century positivism offers no ethical foundation outside the declared law from which we may criticise unjust laws.

Law and identity in spatial contests

R. Mohr — Tue, 24 Feb 2009 15:25:32 PST

Law has had a traditional reference to land, conceived as territory, in the notion of a jurisdiction, where the law of the land applies equally to all individuals. Recent critiques of this view have suggested that a plurality of laws may apply in particular places. How this spatial pluralism impacts on dominant views of law is considered through two instances in which law has interacted with competing conceptions of place and territory in relations between European and Indigenous Australians. Space, law and identity are seen to constitute each other in complex forms. Indigenous beliefs and practices challenge the claims to universality of Western conceptions of law and space deriving from Roman law and spatial practices.

Reconciling independence and accountability in judicial systems

F. Contini et al. — Tue, 24 Feb 2009 14:32:22 PST

Since the mid 1990s, the contraction of available resources and the spread of ‘new public management’ approaches have presented new challenges to European judicial systems, expecting them to improve simultaneously their efficiency, quality of service delivery and accountability mechanisms, in line with the expectations on other branches of the public sector. Through an analysis of some of the findings of several research projects financed by different institutions, this article considers ways in which these expectations, and the projects to which they give rise, play off against the very different traditions of the law and the judiciary. In various countries these expectations have produced a number of procedural, structural and above all managerial policies that have led to new forms of ‘managerial’ evaluation of the activities of courts and judges. The approaches to be found range from traditional statistical surveys of caseload, largely lacking in any consequences, to performance based remuneration systems that define the salary of individual judges based on the number of cases they decide.

Judicial Evaluation in Context: Principles, Practices and Promise in Nine European Countries

R. Mohr et al. — Tue, 24 Feb 2009 14:25:15 PST

The evaluation of judges’ performance takes place in many ways. Traditionally, there are avenues of appeal and legal accountability mechanisms. More recently, ministries of justice and judicial councils across Europe have introduced a range of complaints mechanisms, quality assessment procedures and other managerial methods of judging judges and the courts within which they operate. This paper reports on a study of these mechanisms in nine member countries of the European Union. Our purpose is to survey the possible ways in which the judiciary can be evaluated, with a view to improving those practices and, ultimately, contributing to a better functioning of the courts. The study focuses on judges within the institutional context of courts. The staffs of courts are commonly employed by a ministry of justice or some other executive body. A ministry is responsible for allocating funds and accounting to parliament for their expenditure. In many European countries (including six of the nine discussed here) the status of judges (discipline, promotion, transfer, appointment), and in Denmark and the Netherlands also the management of courts, is under the direct responsibility of a judicial council which has substantial judicial representation and a degree of independence from the executive government.

Some conditions for culturally diverse deliberation

R. Mohr — Tue, 24 Feb 2009 14:25:15 PST

This is an inquiry into the ways in which reasoning attaches to cultural context. It considers whether to seek grounds for decision-making in some common ground or in a recognition of diversity. The essay considers feminist criticisms of Habermas's discourse ethics and Benhabib's efforts to revise such an approach in response to cultural diversity. While the conditions for communication across cultures may be readily met with good will and good procedures, the conditions for reaching binding or consensual decisions are more challenging. The essay rejects the possibility of universal standards for reasoned decisions on three grounds. Reasons conforming to the standards of a multicultural public cannot rest on a single yardstick. Reasoning cannot be detached, in the Cartesian manner, from the corporeal being who is doing the reasoning. Reasoning is not a private and privileged mental process conforming to a unique set of rules. Drawing particularly on traditions of rhetoric from Aristotle to Perelman, the essay concludes: that reasons must be addressed to diverse audiences; that the affective and bodily specificity of deliberators is of central relevance (it matters who judges are); and that we must all continue our "moral education" in dialogue with diverse groups and ways of thinking.

Living Legal Fictions: Constituting the State or Submerging the Signifier

R. Mohr — Tue, 24 Feb 2009 14:25:14 PST

This is an inquiry into the ways the state is constituted as an effective legal fiction. It is based on the premise that the state was not constituted, once and for all, some three centuries ago (as Bourdieu suggests) but that the existence of the state relies on continuing legal and social processes. The focus is on the translation from the legal to the social, specifically the semiotic interaction between law, space and daily life in the dynamics of this on-going mise en scène. This requires re-thinking a number of semiotic issues: first, Lefebvre's challenge to a semiotics which neglects the place of the material (body, space) and, second, a challenge to Lefebvre's assertions that the state operates in a realm of freedom in switching 'at will' between codes. Third, it is possible to question the conditions by which the state operates as a 'floating signifier' which maintains its domination by overwhelming us with its excess meanings. The inquiry proceeds by analysing the legal semiotics of space in different settings: the axis as an expression of legal and state power, from the courtroom to the capital city (Rome, Washington, Canberra), and street names with legal referents (Montréal and Mexico City, in addition to the above). After considering these self conscious attempts at meaning-making, the article concludes that the legal constitution of the state in urban space is not determined by a single wilful semiotic regime, but (taking insights from de Certeau) is contingent upon the interpretations and enactments of people who use the spaces. Except in the controlled environments of the courtroom and the planned capital city, everyday life is continually reconstituting the meanings of law and the state.

Local court reforms and 'global' law

R. Mohr — Tue, 24 Feb 2009 14:22:27 PST

Discussions of globailisation arose in the late twentieth century out of economic discourse about market liberalisation and the scale and global reach of transnational corporations. Legal discussions of the subject have tended to follow in the wake of these economic and geopolitical trends.

Beyond the bounds

R. Mohr — Tue, 24 Feb 2009 14:22:27 PST

The contributions to this edition of Law Text Culture arose from a series of workshops and seminars which Luke McNamara and I organised through the Legal Intersections Research Centre at the University of Wollongong during 2001 and 2002. Having recently formed a research group focusing on the social and disciplinary intersections of law, we set out to explore these intersections with the help of colleagues working in law, humanities and social sciences in Australia, North America and Europe. Some of their contributions to this exploration are collected here.

(Review) Desmond Manderson, Songs Without Music: Aesthetic Dimensions of Law and Justice

R. Mohr — Tue, 24 Feb 2009 14:22:27 PST

This elegant, wide-ranging and stimulating book has everything but the music. In graphic form, even the music is available as a frontispiece to each chapter, introduced with an extract from the score of the music for which it is named. The work begins with a ‘Prelude’ and ‘Fugue’ (Bach) and has a ‘Requiem’ (Mozart) on the death penalty, while ‘Quartet for the End of Time’ (Messiaen) opposes modernism and the reification of law, looking to space (in legal geography), rather than time, for the source of a ‘critical pluralism’. Surprisingly, this apparently precious device works, and it works at a number of levels. Analogies with the pieces of music help to illustrate the point of each chapter and the playful counterpoint between the music and the argument is a source of, well, aesthetic pleasure. By drawing our attention to the appreciation of formal structure shared by music and law, as in the sparse, elegant prose of the opening ‘Prelude’, Desmond Manderson uses the format of the book to illustrate his theory.

Identity Crisis: Judgment and the Hollow Legal Subject

R. Mohr — Tue, 24 Feb 2009 14:22:26 PST

modern legal subject. There is something missing, a gap in the middle of that subjectivity, which clouds our judgment. This split had its origin in the Enlightenment, its first effect being the separation of knowing from doing. Our experience of the world could only be mediated through self-conscious sense data and thought, without our being in direct contact with the satisfaction of our needs or the consequences of our actions. This new conception of subjectivity has become an impediment to judgment, since splitting the actor from the spectator, and the judge from the life of the community, results in a denial of the capacity to interpret facts in the light of experience.

Shifting Ground: Context and Change in Two Australian Legal Systems

R. Mohr — Tue, 24 Feb 2009 14:22:26 PST

Indigenous land claims in Australia have brought Indigenous law into contact with the Australian common law, changing some of the terms of each of these systems of law. By tracing these contacts back to one of the first engagements, when the Yolngu people of northern Australia framed a petition to parliament in pictorial descriptions of their law, I explore the means by which changes have occurred. This is characterised as a process of mutual framings and re-framings. The delicate and contentious issue of meaning change in Yolngu law and in Australian common law's dealings with Indigenous law is examined in order to illuminate the ways in which meaning change may be understood in an epistemological and semiotic framework. The most recent common law decisions in land claims have begun to recognise a mutual relationship between common law and Indigenous law. This has occurred most notably at the edges of western law's epistemological practice, in its dealings with historical and Indigenous sources. The success of Yolngu epistemological and legal engagement with the dominant Australian society and its law suggests a means of understanding some of the ways in which meaning may change in response to changing contexts. This relationship can be seen through Yolngu categories of "inside" and "outside", or in terms of the cultural context of semiotic interpretation. Meanings may change within each frame, not through the simple incorporation or adoption of "outside" concepts, but through shifts in the broader context of meaning.

Authorised Performances: The Procedural Sources of Judicial Authority

R. Mohr — Tue, 24 Feb 2009 14:22:25 PST

Media criticism of the courts, or perceptions of a declining 'public confidence' in the judiciary have led to concems over law's authority. There has been dcbate on concems over 'judicial activism' in North and South America, Europe and Australia. In Australia this has been played out in political criticism of the judges of the High Court, while other courts have come in for criticism from sections of the media for being too lenient in sentencing and generally being 'soft on crime'. Judicial concern over these criticisms has been expressed in extra-curial responses by High Court judges and in several recent conferences focussing on public perceptions and media representations of the judiciary. Two of these conferences were organised by judicial bodies and all were well attended by judges. Judicial concern over limits and challenges to judicial authority has also been apparent in a number of cases addressing judicial powers.

Making Money Out of Thin Air: The Politics, Law and Economy of Radio Spectrum

R. Mohr — Tue, 24 Feb 2009 14:18:47 PST

[Extract] Reporting on the Australian government's windfall of $1.3 billion from the auction of radio spectrum in 2000, the Australian Financial Review on 5 May quoted Ian Hayne, the man responsible for the marketing exercise, as saying, "This is better than selling sand to the Arabs or ice to Eskimos... We are really selling nothing here." More circumspectly, he added, "Maybe I shouldn't say that; this is about the right to use a natural resource.''1 Some of his New Zealand counterparts may have thought he should not have said that, either, since they were disputing Maori claims to radio spectrum as a natural resource under the treaty of Waitangi.

Flesh and the Person

R. Mohr — Tue, 24 Feb 2009 14:18:46 PST

What connection is there between flesh and the legal person? Flesh is the most material aspect of human existence, while the legal person is one of its most abstract manifestations. The method is a phenomenological analysis of legal records of the body and identity, including everyday documents such as credit cards. These are analysed in terms of the information they contain or refer to, and the physical processes by which they are compiled or activated. These physical traces are linked to law and selfhood by narratives, including those by which we makes sense of our lives as well as forensic narratives that seek to ascribe responsibility for actions. Tracing its ancient origins from theatre, law and theology, the concept of the person is found to have continuing relevance to a conception of self that is dynamic and performative, mediating between the physical and the social. It is capable of attributing identity and responsibility, while at the same time admitting play and indeterminacy into our constructions and narratives of our selves.

Enduring Signs and Obscure Meanings: Contested Coats of Arms in Australian Jurisdictions

R. Mohr — Tue, 24 Feb 2009 14:18:46 PST

In the Australian state of New South Wales judges have sat under the coat of arms of the British monarchy since the nineteenth century (figure 1). Having been accustomed to seeing this symbol over the course of many years doing research in New South Wales courtrooms I was surprised to notice, during some research into the physical form of courts in 2000, that a different coat of arms had appeared above the bench in a new court building. This was the State arms of New South Wales. This change had been officially introduced into new courtrooms by an executive decision in 1995, in the midst of a controversy over Australian republicanism and allegiance to the British monarchy. Further developments saw a bill supporting the use of the State arms introduced into the New South Wales Parliament in 2002, and the whole matter referred to a parliamentary committee which took public submissions on the subject and reported in December 2002.

Territory, Landscape and Law in Three Images of the Basque Country

R. Mohr — Tue, 24 Feb 2009 14:18:45 PST

Spending time in the Basque country while preparing a contribution to a workshop on landscape and identity focussed my attention on how the Basques were expressing their own identity in their own characteristic and lovely landscape. On arriving in Bilbao a few weeks before the regional elections in 2001, I read the Spanish newspaper El Mundo's description of the Basque landscape as a "Gulag", where the populace lived in fear of terrorism and xenophobia. This was hardly the first impression that came to my mind as I walked streets full of election posters, shoppers, and groups of people dropping in to bars to meet friends over a glass of wine.