CHANGING LAW: RIGHTS, REGULATION AND RECONCILIATION

Vol. 16 No.5 (May, 2006), pp.303-305

CHANGING LAW: RIGHTS, REGULATION AND RECONCILIATION by Rosemary Hunter and Mary Keyes (eds). Aldershot, UK: Ashgate, 2005. 200pp. Cloth. $99.95/£55.00. ISBN: 0 7546 2552 4.

Reviewed by Kate Hofmeyr, Balliol College, University of Oxford. Email: kate.hofmeyr [at] balliol.oxford.ac.uk

In CHANGING LAW: RIGHTS, REGULATION AND RECONCILIATION, Rosemary Hunter and Mary Keyes bring together a diverse set of essays broadly connected with the book’s central concern: change. As the editors themselves note, the brief to address the theme of ‘Changing Law’ generated a set of essays of ‘astonishing’ variety, including the relevance of human rights, implications for security of decentralised governance, challenges facing law reform, minority issues, and changes in knowledge production in the legal academy.

In their own right, each essay provides an insightful contribution to its field. In the first section, entitled “Changing States, Changing Rights,” Costas Douzinas, David Saunders and Clifford Shearing grapple, in different ways, with the changing role of the state. The first two essays analyse the role of the state as protector of human rights, with Douzinas offering a skeptical view of human rights’ invocations by states, and Saunders seeking historical support for a view of the state as a protector of security for its citizens. The third essay in the section deals with the increasing fragmentation of governance within the state and the role of private service providers, particularly in the security sector, as participants in a new regime of “nodal governance.” All three essays tackle issues relating to security: security from the state, security by the state, and security within the state. In a time when the limit to what can be justified in the name of security is an open-question, these essays provide interesting perspectives on the role and responsibility of the state as a rights’ protector.

The second section focuses on the changes experienced by law reform bodies and universities. While Richard Collier deals with the effects of globalisation on both the institution itself and its workers, Erica McWilliams addresses the effects of performance-based judgments and accountability on the academic individual. Both authors sound a note of caution regarding the impact of higher education reform. For Collier, the main concerns are the strains which vocationalism and globalisation place on curricula and the diminishing capacity for critical socio-legal scholarship brought about by the declining interest in socio-legal method. For McWilliams, it is the time consumed in carrying out the tasks of self-management which poses a threat to critical socio-legal scholarship.

In the first essay in the section, Reg Graycar reviews the relevance of permanent institutional law reform bodies, with a particular focus on Australia. Graycar’s central concern is to determine whether the law reform [*304] structures and processes which are currently used in Australia facilitate law and the legal system’s capacity to respond to change. In the course of that inquiry, Graycar points to three case studies to highlight the persistent myths and stereotypes which impede the development of effective and responsive legal strategies in the law reform arena. This ineffectiveness makes Graycar generally skeptical about the capacity of law to address some of the most persistent and pernicious social problems.

The final section is entitled “Achieving Justice.” Here the three authors address the claims of marginalised groups who have tended to be the subjects of socially-engaged law reform initiatives and critical legal scholarship. Moreton-Robinson’s essay deals with the doctrine of terra nullius and the role it has played in maintaining Indigenous dispossession and legitimising white sovereignty. She highlights the respects in which the law, by relying on white referents in formulating norms that become the criteria of legal decisions, adopts a purportedly neutral, but in fact normatively skewed baseline for its analysis of matters involving Indigenous claims. While Behrendt continues this theme and remains generally skeptical about the role of law as a source of justice for Indigenous Australians, she encourages us not to loose all faith in the capacity of a rights’ framework to guide Indigenous policy development. According to Behrendt, a rights’ framework has the advantages of both providing a language through which to convey political aspirations and emphasising the need for long-term policy determinations rather than short-term remedies. In order to be effective, though, it must be buttressed by an inclusive approach to consultation and determination to understand the nature and implications of rights that Indigenous communities seek to have protected.

In the third essay in the section, Durbach considers the law’s effectiveness as a vehicle for social justice, but she also focuses on the responsibility of lawyers and legal educators to be conscientious participants in the legal system and advocates of a rights-oriented approach to the law. Her chief concern relates to the present process of rights erosion in Australia and the trumping of self-interest over common ideals and values. Her call is one which should resonate with all those readers who fear the increasing sacrifice of rights in the name of security: the need for fieldtrips to the Republic of Conscience (Heaney, 1998) is not simply a national, but a global, concern.

This brief summary of the essays contained in this collection should give one a sense of the eclectic mix of themes and concerns taken up by the authors. Although the editors highlight the fact that the authors would not necessarily agree with each other on a number of issues, they seek to highlight the continuities between the various essays. They identify three organising principles: states, institutions and justice, into which each of the essays is slotted. Although, in broad terms, these categories work, the links between organising principles are not sufficiently explained. Moreover, the lack of cross-[*305]referencing between essays limits the cohesion of the collection. In a deliberately interdisciplinary book, it is unfortunate that the focus of the collection is not more constrained. Although each essay provides novel insights into the issues explored, one is left with the sense that if the variety of perspectives were dealing with a topic of narrower scope than “changing law,” more may have been gained from the interdisciplinary approach.

REFERENCES:

Heaney, Seamus. 1998. “From the Republic of Conscience.” in OPENED GROUND: SELECTED POEMS 1966-1996. London: Faber and Faber.

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