Griffith Law Review最新文献

{"title":"Righting Aotearoa’s coastal marine area: a case for legal personhood to enhance environmental protection","authors":"Rachael Mortiaux","doi":"10.1080/10383441.2021.2003743","DOIUrl":"https://doi.org/10.1080/10383441.2021.2003743","url":null,"abstract":"ABSTRACT The health and integrity of New Zealand’s essential coastal marine area is deteriorating, while a fragmented and inadequately implemented statutory framework fails to effectively manage threats to New Zealand’s marine environment. In an attempt to respond to these issues, I suggest that legal personhood could be used to support increased environmental protection of marine areas and resources. Drawing on comparative examples from New Zealand and internationally, I consider the recognition of ecosystems as legal persons within regulatory and governance models, and argue that legal personhood could similarly be applied to New Zealand’s coastal marine area. If implemented correctly, I argue that legal personhood could, critically, shift the relationship between humans and Nature, thereby elevating the interests of the coastal marine area above those who exploit it, and support more collaborative and holistic environmental management.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46374018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Where ordinary laws fall short: ‘riverine rights’ and constitutionalism","authors":"E. Macpherson, Axel Borchgrevink, R. Ranjan, Catalina Vallejo Piedrahíta","doi":"10.1080/10383441.2021.1982119","DOIUrl":"https://doi.org/10.1080/10383441.2021.1982119","url":null,"abstract":"ABSTRACT Laws that recognise rivers and their ecosystems as legal persons or subjects with their own rights, duties and obligations have been associated with theories of environmental constitutionalism. However, the extent to, and manner in which, constitutional law (with its elevated status) has been instrumental in the conferral of these ‘riverine rights’ is still not well-understood. In this article, we consider the constitutional relevance of the recognition of rivers as legal persons or subjects in Aotearoa New Zealand, Colombia and India. We argue that in these three countries riverine rights are constitutional experiments: as small-scale, ad hoc and ultimately incomplete attempts to transcend seemingly ineffective regulatory frameworks for rivers. However, they are also incremental, and influential, steps in a broader project of more fundamental social and environmental reform.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48563901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The perils of personhood: a foreword","authors":"N. Naffine","doi":"10.1080/10383441.2021.2044440","DOIUrl":"https://doi.org/10.1080/10383441.2021.2044440","url":null,"abstract":"I am honoured to write the foreword for these new writings on legal personhood. I find them stimulating and provocative and I wish to rise to their provocations. They have pressed me to see law, and the idea of its subject, according to other world views. I want to engage with this new body of work, albeit briefly, and offer my counter provocations. There is a richness of material and ideas on offer here and a great range of themes, as the authors inquire into the legal status of corporations, people with a disability, children, and non-human life and entities. One concern I have is with the suggestion of several writers that natural entities, such as rivers, have intention and wisdom, even a spiritual dimension, and for this among other reasons should be recognised as persons. The reason for my disquiet is not the cosmologies themselves (after all we are all embedded in belief systems), but their invocation as a moral and legal basis of personhood. The problem is that this style of argument has an unwitting and unfortunate similarity to the approach adopted by influential British men to endow themselves with power via the concept of the legal person. For they too invoked a set of deep beliefs in their natural value and they were convinced that it made them quite naturally persons. In other words, (as the editors observe) the concept of the legal person has been used to consolidate the power of white Western men and they did so by claiming that by nature they were the right type of beings for personhood and legal subjecthood. Their idea was that educated white men had innately superior qualities which women lacked, and that law should follow nature; it should follow the man. Therefore, only men should be persons. Thus the concept of the person was openly deployed by the senior men of British law to advance the interests of their sex and to subjugate women. It was used by some of the most distinguished men of law who have remained revered figures in the legal pantheon. These men said explicitly that they as men were, in essence, natural and moral agents and they should therefore have the rights that such superior beings demanded. This claim to natural rightness and superiority was asserted without supporting evidence and yet it was advanced with total conviction. For this was how these men understood themselves to be. It was their belief system. The enduring effect of these deeply self-serving unconsidered convictions about male right has been departure from principle and the abuse of what might have been regarded as the natural rights of the other half of the population. The claims of male right have never been closely inspected, within mainstream jurisprudence, let alone made the subject of critical evaluation or apology. Personhood, therefore, has a worrying history. My continuing concern is that as grants of personhood are being sought for nonhuman beings and natural entities, to protect them from human depredation, the case for these grants o","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47038742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Recognising personhood: the evolving relationship between the legal person and the state","authors":"E. O’Donnell, Anna Arstein-Kerslake","doi":"10.1080/10383441.2021.2044438","DOIUrl":"https://doi.org/10.1080/10383441.2021.2044438","url":null,"abstract":"The twenty-first century has already been characterised by substantive shifts in theory and law on legal personhood. There have been profound legal commitments to the full personhood of disabled people, dramatic new applications of personhood to natural entities such as rivers, and ongoing debates on the legal personhood of animals, artificial intelligence, and corporations and their public interest responsibilities. These shifts present an opportunity to re-examine our understanding of legal personhood. We may be able to move away from the white, European, able-bodied, cis-gender male approach to legal personhood that has dominated much of the world. This dominant approach was developed throughout the last several centuries and has largely met the needs of feudal lords, slave owners, colonial settlers, husbands, capitalists, and others that have held positions of social privilege and had the power and freedom to influence the development of theory and law. In line with the interests of these groups, the approach to legal personhood that has developed is largely in line with liberal political values that prioritise individualism and often ignores the relational nature of our socio-legal world. It emphasises the role of the state as one of non-interference with the freedom of the individual. However, this definition assumes that the individual has the power and privilege necessary to move deftly through the socio-legal world to secure their rights and interests. It disadvantages most groups and individuals that are not experiencing high levels of power and privilege and doesn’t recognise the inherent interdependence that we all live within and benefit from. In describing her concern related to this dominant conception of personhood, Ngaire Naffine stated:","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47471820","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Relational personhood: a conception of legal personhood with insights from disability rights and environmental law","authors":"Anna Arstein-Kerslake, E. O’Donnell, Rosemary Kayess, Joanne M Watson","doi":"10.1080/10383441.2021.2003744","DOIUrl":"https://doi.org/10.1080/10383441.2021.2003744","url":null,"abstract":"ABSTRACT People with disability have demanded the recognition of full legal personhood in order to realise their rights and to overcome dominance and oppression. Legal personhood is also being claimed for similar reasons for natural entities, including rivers, forests, and mountains. However, the prevailing neo-liberal understanding of legal personhood relies on the individual exercising personhood independently. This may not be enough to secure the interests and realise the rights of people with disability, natural entities, or other cohorts that are not experiencing a wealth of power and privilege. In this article, we attempt to overcome centuries of (white, able-bodied, cis gender) male centric theory of legal personhood. We reject the dominant conceptions of personhood from liberal political theory that emphasise an atomistic, isolated individual making independent decisions. Instead, we argue for a different conception of legal personhood – relational personhood. We use insights from feminist theories of relational autonomy as well as the experience of disability to help us re-conceptualise personhood to embrace exercising autonomy through a collaborative process of acknowledging, interpreting and acting on an individual’s expressions of will and preference. We then apply this new conception to the recognition of legal personhood in nature and explore how natural entities can exercise their personhood via their relationships with humans – and, in particular, Indigenous Peoples, who have developed close relationships with natural entities over centuries. Our aim is to demonstrate the utility of a conception of legal personhood that encompass the reality of the interdependence of all individuals and entities.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42313344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Yoongoorrookoo","authors":"Alessandro Pelizzon, Anne Poelina, Afshin Akhtar-Khavari, Cristy Clark, Sarah Laborde, Elizabeth Macpherson, K. O’Bryan, Erin O’Donnell, J. Page","doi":"10.1080/10383441.2021.1996882","DOIUrl":"https://doi.org/10.1080/10383441.2021.1996882","url":null,"abstract":"ABSTRACT Since the momentous release of the Montecristi Constitution of Ecuador in 2008, which recognised Nature, or Pacha Mama, as a subject of rights, the rights of Nature movement across the world has gained exponential momentum, with numerous jurisdictions worldwide now recognising some form of legal subjectivity vested upon Nature. In particular, since 2017, river personhood has dominated news headlines around the world as one of the most recognisable forms of Nature’s novel subjectivity. The emergence of legal personhood for nature, however, has been far from uncontroversial, and numerous critiques have been advanced against the use of such a legal category – traditionally applied to humans and their abstract creations (such as States and corporations) – to the natural world, resulting in numerous calls for an alternative category of legal personhood (one that some rights of Nature advocates have termed an ‘environmental person’). Against the backdrop of this emerging debate, this paper acknowledges the work undertaken by the Martuwarra Fitzroy River Council (Martuwarra Council), which was established in 2018 in the Kimberley region of Western Australia by six independent Indigenous nations to preserve, promote and protect their ancestral River from ongoing destructive ‘development’. The Council believes it is time to recognise the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. This paper, therefore, begins with a dialogical translation of one First Law story relating to Yoongoorrookoo, the ancestral serpent being, to create a semantic bridge between two apparently distant legal worldviews. A dialogical comparative analysis is then followed to posit and explore the concept of an ‘ancestral person’ as a novel comparative tool that may be able not only to capture the idea of Nature as a legal subject, but also complex Indigenous worldviews that see Nature – in this case instantiated in the Martuwarra – as an ancestral being enmeshed in a relationship of interdependence and guardianship between the human and the nonhuman world. To instantiate and embody such relationships, the paper directly, and somewhat provocatively, acknowledges the River itself, the Martuwarra RiverOfLife, as the primary participant in such dialogue, an embodied non-human co-author who began a conversation then left to human writers to continue.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42087219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constructing legal personhood: corporate law’s legacy","authors":"M. Worthington, P. Spender","doi":"10.1080/10383441.2021.2003742","DOIUrl":"https://doi.org/10.1080/10383441.2021.2003742","url":null,"abstract":"ABSTRACT Legal personality – its nature and function – has become a topic of renewed interest. In particular, there is increasing interest in extending existing categories of legal personality. While contemporary discussion of legal personality is directed at comparably novel ends, aspects of the discussion are familiar, mirroring broader patterns of thought evident in historical treatments of the subject. Most familiar of all is the pronounced conceptual uncertainty that continues to surround legal personality as a device. This uncertainty may compromise efforts to successfully create and manage new forms of legal person. Proceeding from an understanding of legal personality as function, and the elements of legal personality as the terms of a licence, we explore considerations essential to the effective design of synthetic legal persons, including the need for clarity with respect to immediate purpose, designated legal capacities and the conditions against which the grant of legal personality might be made by the State. Drawing on the historical example of the corporation as the first truly ‘synthetic' legal person in Anglo-Australian law we tell a cautionary tale about the conferral of synthetic legal personality, contrasting the flawed design of the corporate device with that of new ‘environmental' devices, including New Zealand’s Whanganui River.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42143043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Patents over military equipment: shifting uses for shifting modes of governance","authors":"Chris Dent","doi":"10.1080/10383441.2021.1925410","DOIUrl":"https://doi.org/10.1080/10383441.2021.1925410","url":null,"abstract":"ABSTRACT Patents for invention have a history that goes back centuries in England. As a result, they can be used to interrogate changes in the practices of governance that occurred over that time (and further back). Using the ideas of Michel Foucault, that described the conditions of possibility for ‘governmentality’, an analysis of patents over military equipment allows a reconception of Foucault’s modes of governance. Military patents facilitate the goals of research, given the centrality of the monopolies of the use of force in the modern state. The revised model presented here indicates that over the millennium governance shifted from feudal, to the governmentalist, via a period that was neither fully feudal, nor fully governmental.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1925410","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46033819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Employment as a relational contract and the impact on remedies for breach","authors":"G. Golding","doi":"10.1080/10383441.2021.1895542","DOIUrl":"https://doi.org/10.1080/10383441.2021.1895542","url":null,"abstract":"ABSTRACT The notion of employment as a relational contract has received much academic attention and is gradually being recognised by common law courts in judicial decision-making. This article focuses on a primary question: what impact, if any, could that relational classification have on the remedies available where an employment contract is breached? Given that this question has not yet been considered judicially, and only mentioned in passing in academic writing, this article seeks to probe the question by traversing existing judicial and academic understandings of employment contracts as relational in nature. It then considers the potential impact that the relational classification may have on the remedies available to employees whose employment contracts have been wrongfully terminated by their employer. Three options are put forward in respect of the potential impact on the remedy available for breach, each of which is underpinned by a combined theoretical and doctrinal analysis. First, it is suggested that awards for specific performance may become more prevalent. Secondly, there may be a place for a special category of relational damages. Finally, it is acknowledged that the relational classification may end up having no impact on the available remedy at all.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1895542","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45660186","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Antipodean perspectives on preventive justice: The High Court and Serious Crime Prevention Orders","authors":"Tamara Tulich, S. Murray, Natalie Skead","doi":"10.1080/10383441.2021.1925411","DOIUrl":"https://doi.org/10.1080/10383441.2021.1925411","url":null,"abstract":"ABSTRACT Preventive justice as a field of scholarship emerged in response to the proliferation of preventive measures in the later part of the twentieth Century, and the threat preventive measures pose to individual liberties. Collectively, this scholarship seeks to articulate principled limits on state action to prevent harm. However, preventive justice remains an emergent field of scholarship, with many outstanding questions about its scope, utility and the expediency of its normative project. In the decision in Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236, the High Court, for the first time, engages with preventive justice scholarship. This article examines how the distinctions between the majority and minority treatment of the Kable principle in Vella illuminate many of the debates and challenges raised in the literature on preventive justice, the implications of this division across the Court and what it means more broadly for preventive justice in Australia.","PeriodicalId":45376,"journal":{"name":"Griffith Law Review","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10383441.2021.1925411","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49255827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}