16 August 2016
Tuesday 16 August 2016
Second Floor, Room 224
Melbourne Law School, 185 Pelham Street, Carlton
Professor Yasuo Hasebe, Professor of Constitutional Law at Waseda University
Registrations are essential for this event
The concept of an imposed constitution seems simple and clear. If a written constitution is imposed on a people without their full agreement, that is an imposed constitution, though opinion may differ over what constitutes the ‘full agreement’ of a people for this purpose. Strictly speaking, ‘full agreement’ will require that a majority of the people consent to a constitution through a formal procedure. However, it is unusual to regard every constitution lacking ‘full agreement’ in this strict sense as an imposed constitution. And we may say that, regarding every constitution, at least some part of people acquiesces in it, rather than consenting to it. Whether a constitution is imposed or not is a question of degree, not a question of kind.
Inherent in this concept of imposed constitution is the assumption that constituent power belongs to the people. Therefore, a constitution which a monarch concedes to his or her subjects (constitution octroyée) is also a kind of imposed constitution. The French Charter of 1814 is a model case which influenced the conceded constitutions of Southern German states of 1818–1820, and indirectly the Constitution of the Empire of Japan of 1889.
If a constitution is imposed, it is usually supposed that it lacks legitimacy because the people themselves, as the inherent holders of constituent power, should be able to establish their own constitution. The current Constitution of Japan has sometimes been attacked as an illegitimate constitution imposed by the occupying forces, though we can pose a question of whether it was imposed upon the people at all. Since the concept of the imposed constitution is predicated on the theory of constituent power (pouvoir constituant) of the people, this concept loses its pertinence if the validity and legitimacy of constitutions cannot be explained by the theory of constituent power.
Yasuo Hasebe is Professor of Constitutional Law at Waseda University, President of Japan Association of Constitutional Law and 2016 Weng Yuan-Chang Foundation Chair Professor at National Taiwan University, College of Law.
23 May 2016
Monday 23 May
Ground Floor, Room G29
Melbourne Law School, 185 Pelham Street, Carlton
The Island's Mine: The Signatures of the Robben Island Shakespeare
Professor David Schalkwyk. Academic Director of Global Shakespeare at Queen Mary University of London and the University of Warwick
Between 1977 and 1979, a political prisoner on Robben Island disguised his Collected Works of Shakespeare as a Hindu religious text, and 34 of his fellow prisoners, including Nelson Mandela, signed their names against their favourite passages. That book, known as the "Robben Island Shakespeare" or the "Robben Island Bible" is now celebrated around the world. It was exhibited at the British Museum during the 2012 Olympic Games, at the Folger Shakespeare Library in Washington D.C. in 2013, and in Glasgow for the Commonwealth Games in 2014.
This paper investigates the personal, cultural and political significance of the book and its signatures. It asks why different prisoners might have chosen the passages they did in the light of their personal histories, the meaning of the Shakespeare text, and the political history of the struggle against Apartheid inside the prison and South Africa at large, suggesting ways in which the book may have prefigured South Africa's current political turmoil.
David Schalkwyk is currently Academic Director of Global Shakespeare at Queen Mary University of London and the University of Warwick. He was formerly Director of Research at the Folger Shakespeare Library in Washington D.C. and editor of the Shakespeare Quarterly. Before that he was Professor of English at the University of Cape Town. His books include Speech and Performance in Shakespeare’s Sonnets and Plays (Cambridge, 2002), Literature and the Touch of the Real (Delaware, 2004), and Shakespeare, Love and Service (Cambridge, 2008). His most recent book is Hamlet’s Dreams: The Robben Island Shakespeare, published in 2013 by the Arden Shakespeare.
19 April 2016
Tuesday 19 April
Room 920, Level 9
Melbourne Law School
The New Indian Wars: Tribal Sovereignty, the US Supreme Court and Judicial Violence
Professor Bruce Duthu, Samson Occom Professor of Native American Studies, Dartmouth College
Abstract: In the past four decades, the United States Supreme Court has issued a number of opinions that have drastically diminished the sovereign authority of tribal nations, particularly over non-members of the tribe. Ironically, this judicial posture has operated contemporaneously with a national policy that favors self-determination for the tribal nations. This legal phenomenon operates as a form of judicial violence against Indian tribes and serves to undermine the nation’s formative commitment to a legally plural society. This article suggests that the modern court’s dim view of tribal sovereign powers stems from two interrelated but distinct concerns: (a) the court’s singular focus on the interests of non-members, particularly those living in Indian country; and (b) the court’s stubborn attachment to a vision of American history that contemplated and actively pursued the eradication of an indigenous presence within the American territory.
N. Bruce Duthu is the Samson Occom Professor of Native American Studies at Dartmouth College. An internationally recognized scholar of Native American law and policy, Duthu is the author of SHADOW NATIONS: TRIBAL SOVEREIGNTY AND THE LIMITS OF LEGAL PLURALISM (Oxford University Press 2013) and AMERICAN INDIANS AND THE LAW (Viking/Penguin Press 2008). His co-edited special volume of South Atlantic Quarterly, "Sovereignty, Indigeneity and the Law," won the 2011 CELJ (Council of Editors of Learned Journals) award for Best Special Issue. He has lectured on indigenous rights in various parts of the world, including Russia, China, Bolivia, Italy, France, Australia, New Zealand and Canada.
3 March 2016
Thursday 3 March
Room 831, Level 8
Melnbourne Law School
Party Hopping in Israel: An assessment of the impact of anti-defection laws
Professor Csaba Nikolenyi, Director (Azrieli Institute of Israel Studies)
Abstract: Since 1991, Israel has been among the small number of parliamentary democracies that have passed anti-defection laws that aim to discourage parliamentarians from quitting their party’s parliamentary group.
In this talk, I assess the impact of the Israeli legislation on political parties and the electoral process. My central finding is that legislative attempts to keep Israeli parties united have by and large failed: the overall rate of defections has increased since the law came into effect and political parties have become increasingly less rather than more cohesive and united. Moreover, since defections have been concentrated in the immediate pre-electoral period they have led to more volatility and fragmentation in the electoral competition. I propose that electoral reform may be a more effective, although indirect, way of keeping defections at bay.
CsabaNikolenyi, Director (Azrieli Institute of Israel Studies), received his PhD from the University of British Columbia in 2000 and was hired by Concordia University the same year. His research focuses on the comparative study of political parties, electoral systems and legislatures in post-communist democracies as well as on the political systems of Israel and India. He was former English Co-Editor of the Canadian Journal of Political Science (2006-11). He served as Code Administrator in the Faculty of Arts and Science between 2009 and 2011 and as Chair of the Department of Political Science between 2011 and 2014.
Currently, he is the Director of the Azrieli Institute of Israel Studies. Dr. Nikolenyi has published extensively in comparative politics journals and has authored two books: Minority Government in India (Routledge 2010) and Institutional Design and Party Government in Post-Communist Democracies (Oxford University Press, 2014). He was Visiting Professor at the Hebrew University of Jerusalem (2007-8) and at the Centre for European Studies at the Australian National University (2012).
2 March 2016
Wednesday 2 March
Room 920, Level 9
Melbourne Law School
Too much law and not enough theory: A critique of the Commonwealth Constitution
Dr Bede Harris, Senior Lecturer and Law Discipline Head (Charles Sturt University).
Abstract: The difficulty of amending the Australian Constitution has had the consequence that debate on systemic reform is virtually non-existent. Yet our constitutional arrangements manifest significant flaws: The Constitution is said to be based upon representative democracy, yet our electoral system is grossly unfair. The Constitution embodies responsible government, yet Parliament has few tools available to it to enforce ministerial responsibility. Australia is signatory to international human rights conventions, yet the Constitution protects only a handful of rights. Therefore, looked at from the perspective of constitutional theory, our Constitution is seriously deficient. Despite this, nothing changes. In part this is due to the poor state of civics education – ignorance of how our Constitution works creates fertile ground for constitutional conservatives to stoke fear of reform in the minds of voters. Yet, paradoxically, polls show that voters are increasingly disengaged from, and disenchanted with, our system of government. Drawing upon examples from other jurisdictions, this paper argues for reforms including the establishment of a truly representative electoral system, effective mechanisms for legislative oversight of the executive and protection for the full range of human rights. Such reforms would ensure consistency between the theories our Constitution is based upon what its text provides, and also create an environment in which citizens were fully engaged in the processes of government.
Dr Bede Harris has taught constitutional law in South Africa, New Zealand and Australia. He is currently a Senior Lecturer in Law at Charles Sturt University. His DPhil thesis from the University of Waikato was entitled Freedom of Expression and Human Dignity. His research interests lie in the areas of constitutional reform, human rights and Indigenous law. He participated in the Fulbright Senior Scholar programme where he studied the United States Constitution and native American governmental institutions. He has published numerous articles in the area of public law, in particular on freedom of expression and on legal dualism and the recognition of Indigenous law. His most recent books are Freedom, Democracy and Accountability – A Vision for a New Australian Constitution (2012) and Exploring the Frozen Continent: What Australians Think of Constitutional Reform (2014).
18 February 2016
Thursday 18 February
Room G29, Ground Floor
Melbourne Law School
Banishment in the 21st Century: Citizenship Stripping in Common Law Nations
Sangeetha Pillai - Lecturer in the Faculty of Law and Associate of the Castan Centre for Human Rights Law (Monash University).
Democratic states are responding to the threat of terrorism, and in particular the problem of fighters returning home from conflicts in Iraq and Syria, by introducing laws for the stripping of citizenship. The United Kingdom is a world leader in this area, and is poised to further extend the reach of government power. Its model of citizenship stripping has also inspired like laws in Canada and Australia. This lecture will examine this important legal phenomenon as it is developing across these nations.
Sangeetha Pillai is a Lecturer in the Faculty of Law at Monash University, and an Associate of the Castan Centre for Human Rights Law. Prior to commencing this position, she was a Research Fellow and Director of the Federalism Project at the Gilbert+Tobin Centre of Public Law at UNSW. She specialises in constitutional law and citizenship, and has published and presented widely in these areas. Her PhD, awarded in 2015, examined the constitutional, statutory and common law dimensions of Australian citizenship, and the intersections between these dimensions. Sangeetha has commented widely in the media about the recent changes to Australia’s citizenship revocation laws. She also gave evidence at the Parliamentary Joint Committee on Intelligence and Security Inquiry into the Australian Citizenship (Allegiance to Australia) Bill 2015, and was a speaker at the Parliamentary Roundtable on Citizenship and the Constitution held in 2015.