All the rules and ideas we fill our heads with… Teaching law or training lawyers?

In 1939, Robert Menzies gave the commencement speech at Canberra University College (which would later become the ANU Faculties).  The speech ought to be read by every undergraduate in the country; I had to get a copy brought up from the archives where all the little-read books rest in half sleep, half death.

He delivered the speech in April 1939, shortly after becoming Prime Minister and six months prior to entering Australia into the Second World War.  Menzies worries that the ‘barbaric philosophies of blood and iron are resurgent’ and that democracy is ‘on the defensive’, and he sees in universities part of the answer.

It is difficult, armed with hindsight, not to be cynical.  For all the universities in the Anglophone world, and for all of the leaders with degrees from those universities, there was a lot of sympathy with Nazism among the educated elite.  Their university studies did very little to disabuse them of their worst prejudices.  The same occurs today: how many students really change their minds about The Big Things during their studies?

Menzies gives seven defences of ‘pure’ academic learning.  One of those defences regards practical training and, in particular, the practical training of lawyers — a topic about which I spend a lot of time thinking.

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Life’s a bit and sometimes you die… Automating legal services and abandoning the poor

Every so often, I see a story about how some fourteen-year old with an iPhone has created a lawyer app to deal with parking fines or something.  The praise is always lavish: could this be the end of lawyers?  But it’s nonsense.  As I’ve written before, C-3PO will never be your lawyer.  The law is about meaning and intent, and these things aren’t reducible to mere words.  I have a theory that people are promoting machine-readable statutes for a sinister intent: there’s profit to be made in selling the software that will read statutes written in a particular way.

My conspiracy theories aside, two things have made me think about app lawyers again.  The first is the inability of ordinary people to deal with the Centrelink fiasco.  People are being encouraged to appeal and go through merits review, but there are bigger legal questions at play here: what is the statutory basis for Centrelink’s actions and has the statute been applied correctly?  The second is that I keep getting adverts for mental health apps.  This might say something bad about me, but the adverts are persistent and they make me think about the range of sensitive services (legal services, health services, &c., &c.) that we are outsourcing to app developers.

So the question arises: are we abandoning the poor and vulnerable to robo-services?

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You told me you were ready for the big one, for the big jump… Does legal theory still exist?

There’s an essay by Isaiah Berlin called ‘Does political theory still exist?‘  Like most of Berlin’s writing, it starts off with an interesting question and then smashes up against the rocks of his dull and uninspired thinking.  By 1961, there really hadn’t been a ‘commanding work of political philosophy’ in the twentieth century and so, ‘with suspicious frequency’, people had put the question of whether political theory was still a thing.

By the end of the essay — after we’ve wandered through topics such as whether JFK was really president… again… — Berlin informs us that there’s still work for political theory to do and so it wasn’t really dead.  But right up near the start of the essay, Berlin says something interesting about how intellectual disciplines fall into disrepair.  First, a discipline might just be proven false, its central presuppositions having ‘withered away’ or ‘been discredited or refuted.’  Second, a discipline might have been usurped by new disciplines.

Today — an age of Brexit, Trump, debates about populism, about democratic participation, and about the (counter-)revolutionary impact of technology — there’s not a lot of doubt that political theory has interesting things to say.

But can the same be said of legal theory?

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I remember way back then when everything was true… The case against more Parliament House security

It demonstrates how poor we are at protesting and engaging in political debate that a protest about asylum seeker policy has generated more discussion about the nature of protest and about the adequacy of security of Parliament House.  Don’t get me wrong: the protest was clearly wrongheaded and nonsensical, and I wonder if people’s position on the nature of protest is mostly determined by how they feel about the message of the protest.  But I worry that the public is hostile to protest and political spectacle.

There’s probably another post in me about the nature of disruption, protest, and legitimacy, but it’s fairly dense and full of legal theory issues.  The short version of that post amounts to: ‘Asking if disrupting parliament is legitimate is asking the wrong question.’

In this post, I want to tackle the other limb of the conversation: the security of Parliament House.

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Happy ever after in the market place, Molly lets the children lend a hand… Conservative view on USyd’s Gendergate

The unsavoury parts of Australia’s right wing are gloating about events at the University of Sydney:

A male staffer for a Liberal MP attempted to identify himself as a woman as part of a sneaky factional deal to win a $12,000 executive position in a student election.

Alex Fitton, who works for New South Wales state MP Mark Taylor, vowed he was not a cisgender male in order to become joint general secretary of the University of Sydney Students’ Representative Council on Wednesday night. [Source]

One of Australia’s right wing commentators claimed that this was ‘perhaps the single greatest prank in the history of University of Sydney student politics’ and said that Fitton’s gender was ‘as plain as the penis between Caitlin Jenner’s legs’.  For any person of ordinary intellect, such crassness would suggest that the problem was some toxicity within their own views, but not so for the contemporary mainstream right wing in Australia.  Where once the conservative right stood for the preservation of culture and tradition, now conservative values seem only to protect moral imbeciles and degenerates.

It will become obvious that the problem is obviously not with the University of Sydney’s policies, but with Fitton.

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I bet there’s rich folks eating in a fancy dining car… On ‘no body, no parole laws’

Rita Panahi begins a recent piece with a magic trick:

This is precisely the type of common sense legislation that the state government should be backing. Why should convicted killers be eligible for parole if they refuse to reveal the location of their victim’s body?

To disagree would be to disagree with common sense… but since when is legal policy built on common sense?  Should it be founded upon public intuitions?

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Touch my neck and I’ll touch yours; You in those little high waisted shorts… Should we fund plebiscites? #auspol

There’s a caution in entering the marriage equality plebiscite debate when you’re straight, white and male.  You have no skin in the game like others and so it’s all a bit academic and theoretical.  The benefits of dispassionate, analytical approaches shouldn’t be overstated, but they also shouldn’t be rejected entirely.  There’s a role for them: giving us the language to express why we feel this way or that and letting us communicate with people who disagree with us.

I’ve long held that it’s not possible to be anti-marriage equality and not homophobic.  The only place where that position might be on shaky ground is with radicals who oppose marriage generally (rather than same-sex marriage specifically).  And I also think that a plebiscite is a waste of time but, if we are to have a plebiscite, it follows that both campaigns should receive public funding.  The problem with the public debate is that it’s bogged down in special pleading: that there’s something unique about this topic that means general principles about how to hold plebiscites get thrown out the window.

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No harm it seems to be less free. Not today… Don’t create a norm invalidating invalid voting

I am routinely told that I am a terrible person.  The criticism is not far wrong.  More recently, the criticism is that I didn’t vote properly and have thus let down a thousand generations of noble strugglers who died for my right to vote.

Participating in democracy means enduring a plethora of micro-coercions.  This is legitimate.  We are legitimate.  What you are doing is legitimate.  Why is it legitimate?  Because it is moral.  You are participating.  This is dialogue.  This is discourse.  Democracy.  Voting.  Ballots.

Democratic legitimacy relies upon the Absurd.  We have to collectively accept an amazing amount of nonsense in order to think that power is legitimate and moral.  The moment you try to interrogate those foundations, you quickly discover how flimsy and pathetic they are.

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I lit a match in Vienna tonight, it caused a fire in New York… Press freedom is dead, long live academic freedom

Let us put down our curly wigs and tricorn hats, friends: freedom of the press is nonsense.  It has always been nonsense.  It will always be nonsense.  Journalism is bourgeois entertainment for the privileged chattering classes.

Every slogan we hear about why the press is necessary is dopey.  On Media Watch on Monday, Paul Barry had an enormous sulk about media ownership laws.  ‘Boohoo!’ he complained, ‘One media company was buying another media company and that would be bad for Australia.’  But he could never explain why it would be bad.

Allow us to consider a slightly different question: why do we believe that journalism is an important, essential, very good thing for a democratic society?  The answer is quite simple: because media companies keep telling us so.  But they’re the group of people you should trust the least.  They have an interest in protecting their business model, and — just like vitamin companies keep telling us that we’re not getting enough vitamins, and pharmaceutical companies keep telling us that we need to stockpile more of their drugs — media companies are always going to tell us that we need to protect media companies.

It’s from this pessimistic angle that I want to argue to propositions.  The first is that we should instead consider academia to be the real fourth estate of democracy.  The second is that pessimistic attitudes towards participating journalism are unwarranted and unhelpful.

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Snapshot in the family album… This election season, can we be nice to each other?

I’m a non-partisan conservative, so it shouldn’t surprise anybody that I still don’t know how I’m going to vote when July comes.  Last time, I submitted an invalid vote.  This time, I’m leaning towards voting for the Liberal Party (because my ALP candidate is a total numpty).  More importantly, I’m not the target audience for any of the major political parties.  Getting my vote is difficult because I’m a high-information voter.  Presenting arguments that are about persuasion, trying to engage with people who disagree with you, is resource-intensive and political parties have limited budgets.  A dog-whistle (of either political variety) is cheaper and will get more votes.

Being conservative, I’m subjected to a lot of abuse online.  Progressive males are absolutely the worst, but there’s an entire genre of abuse from female Baby Boomer progressives.  And conservative women online get it a hundred times worse, almost exclusively from brogressives who have internalised a lot of misogyny.  There is an attitude that, if you’re dealing with somebody who has different political beliefs to you, you can take the gloves off and be as vicious as you like.

Matt Bruenig was dumped by Demos as a writer following complaints about his behaviour online.  There will, no doubt, be a lot of thinkpieces written by either side of the political divide, cherrypicking details that suit their argument.  Bruenig’s supporters will claim that he was dropped for using the word ‘scumbag’ and for criticising Clinton supporters (which might affect Demos’ funding).  Bruenig’s detractors will claim that he has a history of encouraging attacks on women and other minorities, and that Demos should be able to protect its reputation from being associated with misogyny and racism.  And so on and so forth.  All good arguments.

Both of these vignettes are really marionette shows of a larger political drama: that political discussion is a blood sport.

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