Liberal Assumptions in Section 116 Cases and Implications for Religious Freedom

2018 ◽  
Vol 46 (1) ◽  
pp. 113-136 ◽  
Author(s):  
Alex Deagon
Keyword(s):  
Social Order ◽  
Religious Freedom ◽  
State Power ◽  
The State ◽  
High Court ◽  
Free Exercise ◽  
Sharp Distinction ◽  
Theoretical Assumptions ◽  
The Future ◽  
High Court Of Australia

It is well known that the ‘free exercise’ and ‘establishment’ clauses in Section 116 of the Australian Constitution have been interpreted narrowly by the High Court of Australia. However, there has been limited examination of theoretical assumptions or perspectives which may have consciously or unconsciously informed this interpretation. This article argues the High Court has adopted liberal assumptions about the nature of religion and its relationship to the state in the Section 116 cases. These liberal assumptions are a sharp distinction between ‘private’ religious and ‘public’ non-religious exercise, that religious freedom is subject to state determinations of what is required for neutrality between religions, and religious freedom is subject to state determinations of what is required for social order. The article proceeds to consider the implications of these assumptions for Section 116 cases in terms of a narrowing of religious freedom and a broadening of state power, and suggests awareness of these issues may produce a more nuanced approach to Section 116 in the future.

State Jurisdictional Residue: What Remains to a State Court When Its Chapter III Functions are Exhausted?

2014 ◽  
Vol 42 (1) ◽  
pp. 1-22
Author(s):  
Helen Irving
Keyword(s):  
Human Rights ◽  
State Power ◽  
Federal Court ◽  
The State ◽  
Judicial Power ◽  
State Court ◽  
High Court ◽  
Federal Jurisdiction ◽  
High Court Of Australia ◽  
Court Of Appeal

Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a ‘declaration of inconsistent interpretation’ made under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the Charter's ‘declaration’ function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the Kable doctrine, by its ‘identity’ as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls ‘State jurisdictional residue.’ In his Honour's words, ‘there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction … could not proceed to exercise the distinct non-judicial power conferred upon it by’ the Charter. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a ‘residual’ State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, particularly in light of the more recent judgment in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Secularism and US Religion Jurisprudence

2017 ◽  
Author(s):  
Caroline Corbin
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Church And State ◽  
The United States ◽  
The State ◽  
Religious Liberty ◽  
Establishment Clause ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Constitutional Jurisprudence

Religious surveys are finding greater percentages of Americans who self-identify as secular. At the same time, religious exemptions under the Free Exercise Clause have become more difficult to obtain. However, religion jurisprudence in the United States has not become more secular for two reasons. First, this greater unwillingness to grant constitutional exemptions reflects a shift in constitutional jurisprudence from “separationism” to “neutrality.” Rather than building a wall between church and state, the Establishment Clause is now interpreted to impose fewer restraints on state-sponsored religion. Second, statutes like the federal Religious Freedom Restoration Act and its state counterparts have not only reestablished separationist era levels of protection for religious liberty but increased them. The result is a religion jurisprudence where religion is accommodated more than ever, while the state has more leeway to advance religion. This combination has unfortunate consequences for both secular people and core secular values, such as antidiscrimination.

Accessing the state: Executive constraints and credible commitment in dictatorship

2019 ◽  
Vol 31 (4) ◽  
pp. 568-599 ◽  
Author(s):  
Anne Meng
Keyword(s):  
Case Studies ◽  
State Power ◽  
The State ◽  
Theoretic Model ◽  
Credible Commitment ◽  
The Future ◽  
Game Theoretic ◽  
Game Theoretic Model ◽  
Distribution Of Power ◽  
Commitment Problems

When do executive constraints provide credible commitment power in dictatorships, and under what conditions do leaders establish such constraints? This article argues that institutions successfully constrain autocrats only when elites are given real access to state power, such as appointments to key governmental positions. I present a game theoretic model in which an autocratic leader decides whether to establish binding constraints at the start of her rule. Doing so shifts the future distribution of power in favor of elites, alleviating commitment problems in bargaining. I show that leaders are likely to place constraints on their own authority when they enter power especially weak, and these initial decisions shape the rest of their rule. Even if a leader enters power in a uniquely weak position vis-á-vis other elites, and is on average, quite strong, the need to alleviate commitment problems in the first period swamps expectations about the future distribution of power. I illustrate the model’s findings through case studies of Cameroon and Côte d’Ivoire.

Crafting Colonial Anxieties: Silk and the Salvation Army in British India,circa1900–1920

2016 ◽  
Vol 50 (3) ◽  
pp. 765-807
Author(s):  
JAGJEET LALLY
Keyword(s):  
Twentieth Century ◽  
Public Opinion ◽  
Social Welfare ◽  
Social Order ◽  
The State ◽  
Salvation Army ◽  
British India ◽  
Public Attention ◽  
Silk Industry ◽  
The Future

AbstractIn the early twentieth century, the Salvation Army in British India transformed its public profile and standing, shifting from being an organization seen by the state as a threat to social order, to being partner to the state in the delivery of social welfare programmes. At the same time, the Army also shaped discussion and anxieties about the precarious position of India's economy and sought to intervene on behalf of the state—or to present itself as doing so—in the rescue of India's traditional industries. The Army was an important actor in debates about the future of traditional industries such as silkworm rearing and silk weaving, and was able to mobilize public opinion to press provincial governments for resources with which to try to resuscitate and rejuvenate India's silk industry. Although the Army's sericulture initiatives failed to thwart the decline of India's silk industry, they generated significant momentum, publicity, and public attention, to some extent transforming the Army's standing in British India and beyond.

scholarly journals Law, State and Religious Freedom in Brazil: A Historical and Constitutional Analysis of Freedom of Belief and Religion

2021 ◽  
Vol 7 (4) ◽  
pp. 541-562
Author(s):  
Micael Fernandes Gomes dos Santos ◽  
Michely Vargas Delpupo Romanello
Keyword(s):  
Supreme Court ◽  
Religious Freedom ◽  
The State ◽  
Free Exercise ◽  
Brazilian State ◽  
Legal Perspective ◽  
Deductive Method ◽  
Freedom Of Belief ◽  
Constitutional Analysis ◽  
Federal Supreme

This research sees to discuss the position of the State regarding Freedom of Belief, under the legal perspective. In other words, as the Brazilian Constitution guarantees freedom and the free exercise of religion in its art. 5, item VI, the question is: May the Brazilian State interfere with the freedom of individual belief, or can it provide legal guarantees so that this freedom is ensured? By the deductive method and by the analysis of recent judgments of the Brazilian Federal Supreme Court in cases of extraordinary appeals, the limits of the State of action or inaction in relation to religious freedom will be upheld, concluding that the State must always ensure the sovereignty of secularity and neutrality in religious matters, observing freedom of belief. Keywords: Religious freedom; Brazilian State; Law

scholarly journals Антиутопические произведения Евгения Замятина и Василя Гигевича: к проблеме сходства и различий

2020 ◽  
Vol 20 ◽  
pp. 7-22
Author(s):  
Anna Alsztyniuk ◽  
Keyword(s):  
State Power ◽  
The State ◽  
The Other ◽  
George Orwell ◽  
Aldous Huxley ◽  
Other Hand ◽  
The Future ◽  
In Captivity

The article analyses Zamyatin’s novel We (1921) and Hihiewicz’s story Martian Journey (1990). Zamyatin is considered to be the father of the anti-utopian genre, and We became a source of inspiration for many writers, including George Orwell and Aldous Huxley. Hihiewicz, in his works, repeatedly portrayed the society of the future, completely subordinated to the system of state power. Similar issues and kinds of narration are the main features that link both analysed works. However, the transformation of Zamyatin’s protagonist is only temporary, as a consequence of which he returns to the initial situation, to the life absolutely subordinated to the state power. On the other hand, Hihiewicz’s protagonists solve existential problems by choosing between life in captivity and death.

scholarly journals The Future of Electricity and Electricity as the Future: The Sociotechnical Imagination of Russian Electrical Engineers in the 19th Century

2020 ◽  
Vol 8 (2) ◽  
pp. 93-114
Author(s):  
Natalia Nikiforova ◽  
Keyword(s):  
Science Fiction ◽  
Social Order ◽  
Electrical Engineering ◽  
The State ◽  
Social Imagination ◽  
The Future ◽  
Electrical Engineers ◽  
The Russian Empire ◽  
Working Device ◽  
The 19Th Century

This article examines Russian engineers’ social imagination about the future through the professional discussions held at the electrotechnical congresses in the nineteenth century. Formulating the prospective future of the industry, the state and society was a collective endeavor, a process in which the identity and mission of engineers were crystallized. Through envisioning the future of technology and its role in the society, engineers revealed their cultural role as mediators between technological innovation, and both the wider public and the state. In order to better understand the manifestations of the shared cultural understandings of a desirable future and social order, the article resorts to Sheila Jasanoff’s concept of sociotechnical imaginaries (Jasanoff & Kim, 2015). The engineering community’s sociotechnical imagination about electricity was shaped around the transformative possibilities of this technology. It was believed that electrical engineering was able not only to accelerate industrial production, but also to solve social, medical and cultural problems, thereby uniting the Russian Empire. Descriptions of the rational, comfortable and beautiful world of the electrified future overlapped in engineering discussions, journalism and science fiction. Positive scenarios emphasized the advantages of electrical engineering and bypassed the problems associated with electrification, constructing an idea of its inevitability. The electrical engineer became a kind of a new cultural hero, who knew how to make a working device or system, and also filled the task of linking the development of technology to the development of society.

Australia—Victoria

2015 ◽  
Author(s):  
Alex Ruck Keene ◽  
Mary Sealy
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
State Level ◽  
The State ◽  
Appellate Court ◽  
High Court ◽  
High Court Of Australia ◽  
Adult Protection ◽  
Administrative Tribunal

Australia is a common law country. Australia is a federation of five states and two territories. Laws affecting adults in need of protection are generally made at state level. In Victoria, adult protection matters are decided by the Victorian Civil and Administrative Tribunal (‘VCAT’) in its Guardianship List. VCAT is the lowest court body—with Magistrates, County, and Supreme Court the hierarchy within the state. The High Court of Australia is the highest appellate court.

Writing South African Legal History: A Prospectus

1989 ◽  
Vol 30 (2) ◽  
pp. 265-288 ◽  
Author(s):  
Martin Chanock
Keyword(s):  
South African ◽  
Legal System ◽  
Social Order ◽  
Legal History ◽  
African State ◽  
State Power ◽  
The State ◽  
The South ◽  
Post Colonial ◽  
Criminal Control

This article outlines the approach to the writing of South African legal history being taken in a book in progress on the South African legal system between 1902 and 1929. It suggests that legalism has been an important part of the political culture of South Africa and that, therefore, an understanding of legal history is necessary to a comprehension of the South African state. It offers a critique of the liberal notion of the rule of law as a defence against state power, arguing that in the South African context ideological and legitimising explanations of law should be de-emphasised in favour of an approach which emphasises the instrumental nature of law in relation to state power. Elements of the existing legal and historical literature are briefly reviewed.The basic orientation is to consider the South African legal system as essentially a post-colonial British system rather than one of ‘Roman-Dutch law’. The study is divided into four parts. The first looks at the making of the state between 1902 and 1910 and considers the role and meaning of courts, law and police in the nature of the state being constructed. The second discusses ‘social control’. It considers the ideological development of criminology and thought about crime: the nature of ‘common law’ crime and criminal law in an era of intensified industrialisation; the development of statutory criminal control over blacks; and the evolution of the criminalising of political opposition. The third part considers the dual system of civil law. It discusses the development of Roman-Dutch law in relation to the legal profession; and outlines the development of the regime of commercial law, in relation to contemporary class and political forces. It also examines the parallel unfolding of the regime of black law governing the marital and proprietal relations of blacks, and embodied in the Native Administration Act of 1927. The final segment describes the growth of the statutory regime and its use in the re-structuring of the social order. It suggests that the core of South African legalism is to be found in the emergence of government through the modern statutory form with its huge delegated powers of legislating and its wide administrative discretions.

The State School Teachers Decision (High Court 1929) Revisited

1987 ◽  
Vol 31 (3) ◽  
pp. 236-251 ◽  
Author(s):  
Andrew Spaull
Keyword(s):  
Industrial Relations ◽  
The State ◽  
Federal State ◽  
Public Employees ◽  
State School ◽  
School Teachers ◽  
High Court ◽  
High Court Of Australia ◽  
Politics And Law ◽  
State Relations

The State School Teachers decision of 1929 was recently overturned in the High Court (June 1986) thereby opening up the possibility for federal teachers organizations to obtain registration in the federal arbitration system, and eventually obtain one or more federal awards. The 1929 decision by the High Court of Australia was a significant decision in education and industrial relations, because it prevented state teachers and other public employees obtaining access to federal awards for the next 54 years. The decision, however, was veiled in unsettled legal argument, because the High Court overturned much of its expansive thinking of the 1918–25 period. Later generations of academic lawyers described the decision as a ‘bad one’ or ‘an anomalous decision’, but they and the current High Court failed to give any satisfactory explanation of why the Court had reached its decision. This paper offers such an explanation, arguing that the decision was not based on law (or the educational situation) but on the High Court's perceptions of the politics of federal-state relations in the period. The state teachers who had asked for a High Court ruling on the application of the Commonwealth's industrial relations powers (section 51 XXXV of the Constitution) to their work and employment were thus dragged momentarily onto the centre stage of Australian politics and law. They found themselves denied access to a federal award because the High Court felt that the federal arbitration ‘experiment’ had caused too much embarrassment to the federal system of government.

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