Category: Legal Theory

What is history, again?


In his AUSPUBLAW blog post on 6 November 2017 discussing Justice Edelman’s dissent in Graham v Minister for Immigration and Border Protection [2017] HCA 33, Julian R Murphy finds evidence of a particular, conservative commitment on … Read the rest

The Rule of Law as an Assumption of the Australian Constitution


In Australian Communist Party v The Commonwealth, Justice Dixon famously asserted that the rule of law ‘forms an assumption’ of the Australian Constitution. This has been cited and repeated with such frequency that it … Read the rest

Chief Justice Susan Kiefel and the politics of judicial diversity


Australian women waited over eighty years for the first woman to sit on the bench of the High Court of Australia. Now, three decades later a particularly resilient glass ceiling has been shattered with the announcement that … Read the rest

When is finality trumped? Kirk and the principle of finality

Sarah-jane Morris


The High Court of Australia has repeatedly stated that it is a ‘central and pervading tenet of the judicial system’ that ‘controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances’, such … Read the rest

Human rights without humanism: Why does Foucault – an avowed anti-humanist – turn to ‘rights’ in his later works?

Ben Golder photoBY BEN GOLDER

The Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations in Paris on December 10, 1948. The result of two years of drafting by a committee of the Commission on Human … Read the rest

The Human Rights ‘History Wars’

Ben Golder photoBY BEN GOLDER

‘The historiography of human rights is currently in great ferment,’ one of its key protagonists recently suggested. ‘Scarcely a decade ago,’ the Harvard historian and law professor, Samuel Moyn, observed, ‘the field did not exist at … Read the rest


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