Australian Centre for Private Law
2016 events

Topic I am not your (founding) father
Presenter Mikolaj Barczentewicz - Lecturer in Law at Jesus College, Oxford
Venue Don Carathers Meeting Room, Level 5
Dorothy Hill Engineering & Sciences Library
Hawken Bldg (#50)
Time Mon, 04 April 2016, 12:00 pm - 1:00 pm
Contact Law Events, ph: 3365 2523, email: events@law.uq.edu.au
Abstract Lawyers across the globe routinely talk about what the 'founding fathers' or the 'framers' of their constitution (or a founding treaty) meant, expected, intended and so on. The point of this paper is that much of founding fathers talk is confused, because it refers to people who did not make the constitution. I dispel the confusion through analysis of what does it mean to be an agent behind making a constitution as law - what does it mean to be a constitution-maker.

Not only originalists are in a habit of invoking founding fathers. Even anti-originalists do not shy away from supporting their legal positions by reference to what the founding fathers would have wanted. For some reason the founding fathers feel at home in any legal argument. Perhaps this reason is to be found in the sound intuition that there ought to be a connection between laws and exercises of legitimate authority that bring those laws into being. The problem with the founding fathers talk is that in the vast majority of cases it is at odds with this intuition. In other words, the founding fathers, or the framers, are not the ones who made the constitution in question as law. If they were not the constitution-makers, then at least an additional argument is required before one should even think of invoking them in a legal argument concerning interpretation of a law they did not make. Such additional argument is almost always missing.

Hence, the claim I defend in this paper is that lawyers are prone unreflectively to refer to the founding fathers in their legal arguments concerning interpretation of codified constitutions. In many cases such references are unjustifiable, whilst in other cases there is a glaring need for justification, a gaping hole in the legal argument.

This paper will present a general theory of constitution-making, with a particular emphasis on group agency. On my view, to be a maker of a constitution is (1) to act with an intention authoritatively to make the constitution as law and (2) for one's authority to be a reason why the constitution is accepted by the community. Some, or even many, constitutions may fail to have founding fathers in this sense. With the analytical toolkit in hand I will consider the cases of several countries (and one international legal regime) where problematic references to the founding fathers tend to happen and I will answer whether the founding fathers talk in those countries is a complete mistake or whether there is a way of making it work, perhaps by refocusing it on different people or groups: the actual constitution-makers. The legal systems I will consider are: Australia, Canada, the United States, South Africa and the legal regime of the European Convention of Human Rights.
Further information All Welcome, no RSVP required

 

Topic The Tobacco Trade and Investment Cases against Australia: Implications for Australia and the TPP
Presenter Professor Tania Voon - Melbourne Law School
Venue Don Carruthers Meeting Room, Level 5
Dorothy Hill Engineering & Sciences Library
Hawken Bldg (#50)
Time Wed, 23 March 2016, 12:00 pm - 1:00 pm
Contact Law Events, ph: 3365 2523, email: events@law.uq.edu.au
Abstract 2015 was a big year for Australia at the intersection of trade, investment and public health. In May, the World Trade Organization hearing complaints by five countries against Australia in relation to plain tobacco packaging accepted Ukraine's request to suspend its complaint. In October, the negotiations of the 12-country Trans-Pacific Partnership concluded, with the text released publicly in November revealing an unprecedented 'carveout' for investors' claims against tobacco control measures. In December, the tribunal hearing the claim brought by Philip Morris Asia Limited against Australia in relation to plain tobacco packaging dismissed the claim on jurisdictional grounds. This seminar provides an update and analysis of these tobacco cases against Australia, within the context of Australia's trade and investment policy and existing and future agreements.
Further information Tania Voon is Professor at Melbourne Law School and was Associate Dean (Research) from 2012-2014. She is a former Legal Officer of the WTO Appellate Body Secretariat and has previously practised law with King & Wood Mallesons and the Australian Government Solicitor and taught law at Georgetown University, the University of Western Ontario, the University of British Columbia, and several Australian universities. Tania undertook her LLM at Harvard Law School and her PhD at the University of Cambridge. She is the author of Cultural Products and the World Trade Organization (Cambridge University Press, 2007), editor of Trade Liberalisation and International Co-operation: A Legal Analysis of the Trans-Pacific Partnership Agreement (Edward Elgar, 2013), and series editor of the International Economic Law Series of Oxford University Press. Tania is a member of the Roster of Panelists for the Energy Charter Treaty and the Indicative List of Governmental and Non-Governmental Panelists for resolving WTO disputes. She has provided expert advice and training to the Australian Department of Foreign Affairs and Trade, the WTO, the World Health Organization, Telstra, and the McCabe Centre for Law and Cancer. In 2014 she was Senior Emile Noel Fellow at the Jean Monnet Center, NYU Law.

 

Topic The Tapestry of Reason: 
An Inquiry into the Nature of Coherence and its Role in Legal Argument
Presenter Dr Amalia Amaya - Research Fellow at the Institute for Philosophical Research at the National Autonomous University of Mexico
Venue Don Carathers Meeting Room, Level 5
Dorothy Hill Engineering & Sciences Library
Hawken Bldg (#50)
Time Tue, 23 February 2016, 12:00 pm - 1:00 pm
Contact Law Events, ph: 3365 2523, email: events@law.uq.edu.au
Abstract Coherence theories of law and adjudication have been very popular in the last decades. Although these theories significantly advance the case for coherentism in law, a number of problems remain open in the current state of the coherence theory in law. This book attempts to develop a coherence-based model of legal reasoning, which addresses, or at least mitigates, these problems. This model has four main elements: a constraint satisfaction approach to coherence, an explanatory view of coherence-based legal inference; a contextualist approach to legal justification; and a conception of legal justification that importantly depends on the epistemic responsibility of subjects. I conclude the book (and the talk) by exploring the implications of the version of legal coherentism proposed for a general theory of legal reasoning and rationality
Further information Amalia Amaya is Research Fellow at the Institute for Philosophical Research at the National Autonomous University of Mexico. She holds an LLM and a PhD from the European University Institute and an LLM and a SJD from Harvard Law School. She works primarily in philosophy of law, with a particular focus on the epistemology of legal proof, the theory of legal reasoning, and judicial ethics. Some recent publications include: "Exemplarism and Judicial Virtue" (Journal of Law and Literature, 2013), "Coherence, Evidence and Legal Proof" (Legal Theory, 2013) as well as two books Law, Virtue, and Justice (co-edited with Ho Hock Lai) (Hart Publishing, 2012) and The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument (Hart Publishing, 2015).