ORCID Profile
0000-0002-2057-5771
Current Organisations
University of Southern Queensland
,
Bond University
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Publisher: Universidad de Navarra
Date: 30-01-2019
Abstract: This article examines the role of coercion in grounding a prima facie duty to obey the positive law. I argue that there is at least a weak prima facie duty to obey the positive law in a minimally effective and just legal system. The fact that a norm holds positive legal status within a minimally effective and just legal system gives people presumptive reason to believe that the norm is a salient and reasonable means of social coordination and therefore that they have pro tanto reason to follow it. Coercive sanctions may bolster the salience of social norms by giving people incentive to follow them. They also make it more likely that an agent’s decision to follow a particular norm will be reasonable, by creating the prospect that the reasons supplied by the sanctions will override any deficits in the salience or reasonableness of the norm itself. A legal system with strong coercive enforcement is therefore more likely than a less coercive system (other things being equal) to present its subjects with both prima facie and pro tanto moral obligations. This reliance on coercion, however, carries a significant moral hazard, since it may bootstrap inefficient or unreasonable norms into a position of epistemological and moral weight.
Publisher: SAGE Publications
Date: 08-02-2019
Abstract: We are living in the age of online information. Knowledge and information are increasingly accessed through the internet, and the catch-cry ‘I’ll just Google that!’ now has a firm place in the vernacular. Founded in 1998, Google.com has had unprecedented success in changing the way we look for and find online information. This article discusses results of qualitative research on how people experience the process of accessing family law information in a post-separation context. It discusses three important elements of this experience revealed in the data, which are analysed in the context of the impact and use of Google and other search engines as an information source. The article offers some insights about how best to make useful legal information available to non-lawyers.
Publisher: Cambridge University Press
Date: 30-11-2022
Publisher: SAGE Publications
Date: 15-11-2020
Abstract: Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text and the historical intentions of its authors. Elisa Arcioni’s response accepts that constitutional doctrines should be grounded in the text and authorial intentions but argues that the implied rights cases meet this standard. Arcioni is correct, but more can usefully be said about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers’ intentions, as I have shown in detail elsewhere, must sometimes ask not only what they had in mind when the text was written but also what those intentions entail in a contemporary setting. This involves placing both the constitutional text and authorial intentions within a broader context of legal and social institutions. The High Court’s implied rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the Constitution’s intended meaning.
Publisher: SAGE Publications
Date: 09-2013
DOI: 10.22145/FLR.41.3.2
Abstract: This article examines the relevance to judicial interpretation of contextual meaning: the meaning legal texts hold when considered in full light of their social and moral context. I argue first that, as a descriptive matter, contextual meaning is necessarily prior to any more restricted form of textual interpretation that is, the contextual meaning of a legal text is its ordinary meaning. I then contend that, as a normative matter, judges should presumptively apply ordinary or contextual meaning when construing legal materials. The remainder of the article explores the nature and limitations of the contextualist model of judicial practice. The possibility of conflicts between contextual factors at different levels of abstraction makes it necessary to distinguish narrow and wide versions of the contextualist methodology. I argue that wide contextualism offers the best overall account of judicial interpretation. I conclude by examining the practical and normative limitations of this model.
Publisher: SAGE Publications
Date: 09-2016
DOI: 10.1177/0067205X1604400303
Abstract: Cartels have a significantly negative impact on economic welfare. Anti-cartel competition law–such as the provisions of pt IV 1 of the Competition and Consumer Act 2010 (Cth)–tries to tackle this negative impact through civil and criminal remedies. The prohibition of cartels is most commonly justified on economic grounds. However, reference is also often made to broader moral grounds for proscribing cartels–for ex le, it is commonly stated that cartels are deceptive, unfair or engaged in a form of cheating. This article advances a unified account of the moral status of cartels that integrates both economic and moral factors. It does so by emphasising the relationship of cartel behaviour to the moral duty to promote the common good. Cartels are wrong because they undermine the role of open and competitive markets as a salient response to an important social coordination problem in a way that leads to seriously harmful economic outcomes. This combination of factors supplies a robust justification for both civil and criminal sanctions in appropriate cases, thereby affording a principled foundation for the current framework of cartel regulation in Australia.
Publisher: The University of Queensland Law School
Date: 07-11-2021
Abstract: Opposition to collective action on climate change takes at least two forms. Some people deny that climate change is occurring or that it is due to human activity. Others maintain that, even if climate change is occurring, we have no duty to do anything about it because our efforts would be futile. This article rebuts the latter line of argument. I argue that: (1) everyone has a duty to do their share for the global common good, which includes doing one’s part to combat climate change (2) the idea that taking action against climate change is futile should be treated with caution, because sometimes actions may seem to make no difference to climate change, when really they do (3) in any event, the duty to do one’s share to combat climate change still applies, even if it is ultimately futile and (4) this is because not doing one’s share for the common good harms oneself, regardless of whether it makes any difference to the wider outcome.
Publisher: Bond University
Date: 05-01-2021
DOI: 10.53300/001C.18651
Abstract: Natural law theories hold that human action is oriented towards certain intrinsic goods and governed by practical principles accessible to us by virtue of our nature. These goods and principles make up the content of natural law. This essay argues that both the content of natural law and our understanding of its requirements evolve throughout human history. This represents a diachronic, rather than synchronic, understanding of natural law. This perspective is contrasted with the ‘new natural law theory’ of Germain Grisez and John Finnis, which depicts natural law as timeless and unchanging. Finnis seems to think that natural law does not change because it exists in the mind of God however, a belief in God as the source of natural law is equally consistent with a diachronic perspective. I defend this view through reference to the writings of Thomas Aquinas and the structure of the biblical narrative.
Publisher: Edward Elgar Publishing
Date: 10-2019
Publisher: Edward Elgar Publishing
Date: 12-08-2022
Publisher: Routledge
Date: 20-07-2020
Publisher: Wiley
Date: 09-2021
DOI: 10.1111/RAJU.12324
Abstract: Talk about social or distributive justice, at least among legal and political philosophers, tends to focus heavily on institutions. This way of thinking about justice owes a great deal to John Rawls. Rawls’s theory of justice was famously criticised by Robert Nozick, who in turn attracted an influential critique from G. A. Cohen. The story of these critiques is well known, but this article tells it in an unfamiliar way. The common theme in Nozick’s and Cohen’s arguments, I contend, is that there is a way of thinking about social justice that focuses not primarily on institutions, but rather on interpersonal relationships. I call this idea small justice . Justice, on this view, is identified with whatever institutions would arise through a process of social evolution from ethical interpersonal dealings repeated consistently over time.
Publisher: Informa UK Limited
Date: 03-04-2019
Publisher: Emerald Publishing Limited
Date: 07-11-2022
Publisher: SAGE Publications
Date: 09-2010
Publisher: Deakin University
Date: 2007
DOI: 10.21153/DLR2007VOL12NO1ART170
Abstract: This article explores and critiques Ronald Dworkin’s arguments on the value of integrity in law. Dworkin presents integrity in both legislation and adjudication as holding inherent political value. The author defends an alternative theory of the value of integrity, according to which integrity holds instrumental value as part of a legal framework that seeks to realise a particular set of basic values taken to underpin the legal system as a whole. It is argued that this instrumental-value theory explains the value of integrity more satisfactorily than Dworkin’s inherent-value account. The article concludes with a discussion of Dworkin’s ‘one right answer thesis’. Although the proposed theory of integrity does not support a strong version of Dworkin’s thesis, it does suggest that there will be a single correct answer to legal questions more often than for normative deliberation generally.
Publisher: Informa UK Limited
Date: 23-11-2020
Publisher: Edward Elgar Publishing
Date: 07-05-2020
Publisher: Edward Elgar Publishing
Date: 10-2019
Publisher: Informa UK Limited
Date: 02-01-2017
DOI: 10.1080/02763869.2017.1259891
Abstract: This article describes a novel approach for using EndNote to manage and code references in the conduct and reporting of systematic reviews and scoping reviews. The process is simple and easy for reviewers new to both EndNote and systematic reviews. This process allows reviewers to easily conduct and report systematic reviews in line with the internationally recognized PRISMA reporting guidelines and also facilitates the overall task of systematic or scoping review conduct and reporting from the initial search through to structuring the results, discussion, and conclusions in a rigorous, reproducible, and user-friendly manner.
Publisher: Informa UK Limited
Date: 12-2007
Publisher: Cambridge University Press
Date: 2018
Publisher: SAGE Publications
Date: 03-2017
Abstract: This article explores the natural and cultural limits on human kindness towards strangers and non-human animals. I suggest that humans have a deep natural capacity for kindness. However, the duties imposed by this capacity are highly demanding, so we use techniques of ethical avoidance to limit our responsibilities. These techniques play a central role in enabling humans to avoid confronting the suffering caused by practices such as factory farming.
Publisher: SAGE Publications
Date: 07-04-2023
DOI: 10.1177/1037969X231169064
Abstract: This article responds to Oscar Kawamata’s thought-provoking criticisms of the conception of law student well-being that I previously advocated in this journal. Kawamata argues that my objective model of well-being is unrealistic and unhelpful from his perspective as a law student, proposing instead a subjective account grounded in Buddhist philosophy. While acknowledging Kawamata’s valid concerns, I suggest that an idea of well-being with objective elements is still preferable to a purely subjective conception. Put simply, well-being does not just consist in changing your mind sometimes, you need to change your life as well.
Publisher: Informa UK Limited
Date: 08-07-2014
Publisher: Springer Science and Business Media LLC
Date: 03-06-2015
Publisher: Palgrave Macmillan UK
Date: 2009
Publisher: Informa UK Limited
Date: 03-04-2015
Publisher: SAGE Publications
Date: 31-08-2020
Abstract: There is a growing literature on wellness for law in Australia and elsewhere. Significant uncertainty exists, however, about what exactly wellness means in this context. I argue that wellness is not best understood either as the absence of psychological distress or as the presence of life satisfaction or positive affect. I propose an alternative understanding of wellness that centres around the role of basic values in human flourishing. Wellness, I suggest, consists in participating in the various dimensions of human flourishing in a balanced and integrated way. This approach draws out the deep challenges that wellness poses to legal education and practice.
Publisher: Wiley
Date: 03-2012
Publisher: No publisher found
Date: 2008
Publisher: Informa UK Limited
Date: 2011
Publisher: Informa UK Limited
Date: 12-2011
Publisher: Edward Elgar Publishing
Date: 10-2019
Publisher: Edward Elgar Publishing
Date: 10-2019
Publisher: University of Chicago Press
Date: 2012
DOI: 10.1086/663582
Publisher: Routledge
Date: 03-11-2022
Publisher: Cambridge University Press
Date: 16-06-2017
Publisher: Routledge
Date: 06-05-2021
Publisher: SAGE Publications
Date: 06-2012
DOI: 10.22145/FLR.40.2.2
Abstract: The High Court has long struggled with the constitutional status of military tribunals established to hear disciplinary charges against service personnel. The Court's judgments reveal three distinct theories on this issue. The first view holds that military tribunals exercise judicial power, but not ‘the judicial power of the Commonwealth’ within the meaning of s 71 of the Constitution. The second view holds that the power in question is not judicial power at all for constitutional purposes. The third view holds that the power is ‘the judicial power of the Commonwealth’, but can be exercised by courts martial under a limited exception to the rules set out in Chapter III of the Constitution. The first view dominated the High Court's reasoning until Lane v Morrison (2009) 239 CLR 230, where the judges endorsed the second view. This article contends that the first and second views pose insuperable difficulties when placed in their broader constitutional context. The authors therefore argue for the third interpretation. They further argue that the constitutional basis for the third view strongly implies that military tribunals may only exercise jurisdiction over offences by military personnel that relate to service discipline.
Publisher: Oxford University Press (OUP)
Date: 23-11-2019
DOI: 10.1093/SLR/HMY027
Publisher: Edward Elgar Publishing
Date: 30-07-2013
Publisher: Edward Elgar Publishing
Date: 10-2019
Publisher: University of New South Wales Law Journal
Date: 03-2019
DOI: 10.53637/SFAQ6074
Abstract: The role of implications in Australian constitutional law has long been debated. Jeffrey Goldsworthy has argued in a series of influential publications that legitimate constitutional implications must be derived in some way from authorial intentions. I call this the intentionalist model of constitutional implications. The intentionalist model has yielded a sceptical response to several recent High Court decisions, including the ruling in Roach v Electoral Commissioner that the Constitution enshrines an implied conditional guarantee of universal franchise. This article outlines an alternative way of thinking about constitutional implications, which I call the narrative model. I argue that at least some constitutional implications are best understood as arising from historically extended narratives about the relationship of the constitutional text to wider social practices and institutions. The article begins by discussing the limitations of the intentionalist model. It then considers the role of descriptive and normative implications in both factual and fictional narratives, before applying this analysis to the Australian Constitution. I argue that the narrative model offers a plausible basis for the High Court’s reasoning in Roach v Electoral Commissioner.
Publisher: Wiley
Date: 17-02-2015
DOI: 10.1111/RAJU.12066
Publisher: University of Windsor Leddy Library
Date: 10-2008
Abstract: What can we say, in good faith, about the moral status of animals? This article explores the above question through the prism of Emmanuel Levinas’ theory of ethics. I begin by examining the ambiguous position of non-human animals in Levinas’ writings. I argue that Levinas’ theory is best read as suggesting that nonhumans present claims for recognition as ethical beings, but that these demands have a different character to those presented by humans. I then explore the implications of Levinas’ view of ethics for the structure of moral reasoning. I contend that Levinas’ theory yields a conception of moral reasoning as reflective, good faith engagement with primordial social judgements of ethical significance. In the final part of the article, I suggest that it is both possible and constructive to thematise the ethical claims of non-human animals in the language of rights. Indeed, from a Levinasian perspective, animal rights might properly be viewed as a model for the notion of human rights, since they capture the essential asymmetry of the ethical encounter.Que peut-on dire, de bonne foi, au sujet du statut moral des animaux? Cet article examine cette question à travers le prisme de la théorie d’éthique d’Emmanuel Levinas. J’examine d’abord la position ambiguë des animaux non humains dans les écrits de Levinas. Je soutiens que la meilleure façon d’interpréter la théorie de Levinas, c’est qu’elle suggère qu’il y a des raisons de reconnaître un caractère éthique aux êtres non humains, mais que ces raisons diffèrent de celles relatives aux êtres humains. J’examine ensuite les implications de la façon dont Levinas voit l’éthique pour la structure du raisonnement moral. Je prétends que la théorie de Levinas présente une conception du raisonnement moral comme étant un engagement réflectif, de bonne foi, avec des jugements sociaux primordiaux ayant une portée éthique. Dans la dernière partie de l’article, je suggère qu’il est possible et qu’il est constructif de faire une thématique des prétentions éthiques d’animaux non humains en utilisant le langage des droits. En fait, dans la perspective de Levinas, on peut correctement voir les droits des animaux comme modèle pour la notion des droits de la personne, car ils saisissent l’asymétrie essentielle de la rencontre éthique.
Publisher: Cambridge University Press
Date: 22-04-2019
Publisher: The University of Queensland Law School
Date: 28-03-2020
Abstract: This article considers the role of the excuse of mistake of fact in Queensland rape and sexual assault law. We argue that the excuse has undesirable and socially regressive consequences by allowing reference to factors such as the complainant’s social behaviour, relationship to the defendant or lack of overt resistance that are at odds with the definition of free and voluntary consent. The excuse has also led to problematic results in cases involving impaired capacity (such as intoxication, mental incapacity or linguistic incapacity) by the defendant or the complainant. We canvass two potential reforms aimed at addressing these issues. The first would render the excuse inapplicable to the issue of consent in rape and sexual assault cases, while the second would limit the excuse to address its most troubling outcomes.
Publisher: La Trobe University
Date: 16-12-2017
DOI: 10.26826/LAW-IN-CONTEXT.V35I1.33
Abstract: Over the last 20 to 30 years, the use of mediation in Australia to resolve family disputes has grown significantly. Since the 2006 reforms to the Family Law Act 1975 (Cth), family dispute resolution, a common form of which is family mediation, has effectively become a compulsory first step in post-separation parenting disputes that enter the family law system. There are many good reasons for encouraging parties to participate in family mediation. Mediation is a flexible, cost-effective, time-efficient, more humane, less adversarial way for families to manage and resolve post-separation disputes. Family mediation is also a process that enables party self-determination, empowering the parties to determine together the best arrangements for their family into the future. However, vigilance is required if the capacity of each party to negotiate towards a mutually agreeable outcome is to be effectively sustained and the full potential of the benefits of mediation are truly to be achieved. In this article, we use Ludwig Wittgenstein’s concept of a language game and the related notion of a clash of genres to explore some of the underlying conventions and expectations that create challenges for the parties in family mediation. We then consider how mediators might respond to these challenges and the implications this holds for mediator ethics.
Publisher: SAGE Publications
Date: 18-07-2018
Abstract: The paper presents findings from a study into the information experiences of people needing to make post-separation parenting arrangements. Data was collected from 20 participants, through in-depth, semi-structured, telephone interviews. Thematic analysis identified five major themes: Following, Immersion, Interpersonal, History and Context which depict the information experiences of the participants. The findings can be used as an evidence base to inform the design and delivery of support and services provided by government agencies and other community groups supporting the legal information needs of in iduals and families. The work extends current understandings of information experience as an object of study in the information science discipline.
Publisher: Informa UK Limited
Date: 03-04-2022
Publisher: Oxford University Press (OUP)
Date: 2007
DOI: 10.1093/OJLS/GQM019
Publisher: Informa UK Limited
Date: 03-07-2022
Publisher: Informa UK Limited
Date: 02-07-2020
Publisher: Cambridge University Press (CUP)
Date: 07-2015
DOI: 10.1017/ALS.2015.9
Abstract: This article reflects upon the continuing historical denialism concerning the Korean “comfort women” forced into sexual slavery by the Japanese military during World War II. We argue that the refusal of the Japanese government and others to squarely confront this wrong is made possible through the exploitation of a différend in Jean-François Lyotard’s sense of the term. The différend arises from a complex set of social, cultural, and legal sources, including patriarchal, colonial, and nationalistic constructions of the wrong and its victims. We seek to tentatively expose the nature of the différend by identifying these factors. We then sketch the beginnings of a possible response, drawing on Luce Irigaray’s strategy of emphasizing sexual difference and separation to pave the way for reciprocality between the sexes. The testimonies of the “comfort women” must be allowed to speak for themselves before a response can emerge based in other discourses.
Publisher: Wiley
Date: 03-11-2006
No related grants have been discovered for Jonathan Crowe.