Life and Death in Private Law

Abstract

In an age of global pandemic and global warming, the concepts of life and death are increasingly and unavoidably present in our every-day lives. At the same time, life and death are at the edges of private law. They are the beginning and end of the legal person that is the private law subject, the instigator and terminator of rights, interests, and obligations, and the nominal separator of particular fields of law (medical law from succession law, for example). In this way, life and death, as legal antonyms, are conceptual fault lines that have the potential to test the limit of private law principles and norms.

This colloquium is a joint enterprise of the Australian Centre of Private Law and the Bar Association of Queensland. It will bring together leading academics, legal practitioners, and members of the judiciary to engage with the shifting sands of life and death in challenging and diverse ways. It will explore what life and death can tell us about private law, and, perhaps, what private law can tell us about the meaning and value of life and death in contemporary society.

Contact

Further information: please contact Dr Kate Falconer k.falconer@law.uq.edu.au

Program

9:15am The Civil Life of Women as Legal Subjects in the 18th and 19th Centuries

Professor Danaya C Wright (University of Florida) (online)

Blackstone’s classic statement on coverture speaks of the legal existence of a women being ‘suspended’ for the duration of the marriage, effectively eliminating the woman as a legal subject. In this way, marriage in the age of Blackstone represented a legally liminal state of being. This chapter explores the manner in which law both created and eliminated women as subjects and as persons in the 18th and 19th centuries. In doing so, it will explore how these ideas of women’s non-existence in law were, and perhaps continue to be, sustained.

10:45am Culturally Varied Succession Law Disputes

Professor Prue Vines (University of New South Wales)

The Anglo-centricity of succession law in Australia and other jurisdictions has often been commented on. In Australia, for example, the differing conceptions of kinship and mourning of Australia’s First Nations peoples are often difficult to place within legislated succession law frameworks. This essay will explore how different values and meanings attached to death (and to life) in various cultural contexts are promoted or ignored in succession law disputes.

11:45am Public Values and Private Rights

Associate Professor Jesse Wall (University of Auckland) (online)

Each life and death is of undoubted importance to the individuals it personally affects. And the particular import of each life and death is unique to each individual. At the same time there is a broader societal and communal interest in life (generally) and death (generally). This chapter explores what happens when the public and the private collide – as in, for example, the private cause of action established by the recently passed ‘Texas Heartbeat Act’.

1:45pm The Ongoing Presence of the Deceased in Private Law Disputes

Dr Kate Falconer (University of Queensland)

Death is traditionally seen as the endpoint for the individual as a legal person. In private law in particular, the post-death person is conceptualised not so much the opposite of the pre-death person, but the absence of the pre-death person. This chapter challenges this accepted view. Drawing on insights from the interdisciplinary field of

death studies, it will assess the extent to which the deceased continues to be present and to have a presence in private law disputes.

2:45pm The Emotions of Life in Death

Professor Heather Conway (Queen’s University Belfast) (online)

The end of life, whether one that is cut short or a life that was well-lived, is a time of intense emotion. Grief however, is only one part of the picture, as death often releases and generates a host of other negative feelings within families. These emotions are heightened when legal disputes triggered by the individual’s death make their way to court. This chapter explores the emotional dynamics of disputes involving surviving family members over arrangements for the deceased’s funeral and, at a later stage, over the distributive contents of the deceased’s will. In analyzing the way in which these matters are resolved, it highlights both the benefits and shortcomings of the applicable legal rules and how judges navigate the complex emotion dynamics that present here.