Abstract
THE ART OF ENVIRONMENTAL LAW: Governing with aesthetics Benjamin J Richardson; Hart Publishing, 2019; 368 pages; $71.99 (paperback) $57.59 (e-book)
In the summer of 2019–20, we watched in horror as bushfires burned across huge swathes of the Australian continent. From hundreds of kilometres away, people witnessed apocalyptic orange skies and smoke clouds. Photographs of scorched landscapes, injured wildlife, firefighters and citizens fleeing were plastered across social media for the world to see. These images were moving and memorable. They inspired fundraising efforts, motivated protests, and spurred discussion at global, national and community levels about the increasingly disastrous effects of our changing climate, and the pressing importance of doing something about it. The role of aesthetics in the experience of, and response to, the Black Summer bushfires is unquestionable, yet somehow it remains largely unexamined. Benjamin J Richardson’s The Art of Environmental Law: Governing with Aesthetics shows us why it deserves closer attention.
The intersections between law and art have been a growing subject of legal discourse and interest in recent years, however this book steers these discussions into what has remained largely unexplored territory: the interplay between aesthetics (being pictorial, musical or other art forms) and environmental law. Richardson draws an inextricable link between two seemingly disparate fields that, once seen, quite literally cannot be unseen, as he traverses topics from climate change to biodiversity conservation, trespassers law to food industry standards, national anthems to taxidermy. His approach to this exploration is multidisciplinary and multi-jurisdictional and draws on art criticism, aesthetic philosophy and many other sources that are ‘not even ostensibly in the realm of law’. And while Richardson caveats that this approach may not be satisfying to traditional ‘black letter lawyers,’ it is perhaps these kinds of lawyers who most need this book.
Richardson begins the book by outlining how aesthetics play an important, if not pivotal, role in mediating human experiences, attitudes and behaviours. Indeed ‘aesthetic expression and appreciation are innate to human species.’ Since the days of even our related hominoid ancestors, they have been used as a means of social and political communication. In our increasingly visual world – one that is full of smartphones and billboards and banners – understanding their influence is of growing significance, particularly the role they play in law, from ‘the politics of its making to the adjudication of its application.’
The book offers a range of case studies (Richardson calls them Stories) to demonstrate the material influence of aesthetics in environmental law: ‘Arts can open human imagination across the enlarging temporal and special dimensions of the Anthropocene.’ Through these stories we learn how understanding and harnessing aesthetic experiences results in positive environmental law outcomes. For example, the effects of a changing climate – much like those memorable orange skies of that summer – can engender stronger environmental laws and offer an evidence base that dictates which areas the law should address. Art also offers great legal promise; artists are now becoming indispensable stakeholders in eco-restoration, and their work can aid strategic interventions against destructive corporate or government practices.
But Richardson makes clear that harnessing aesthetics is not all sunshine and rainbows. The power of aesthetic practices and values does not always lead to positive environmental outcomes – in fact, it can have quite the opposite effect. Throughout history, the ‘seductive power of aesthetic appreciation’ has encouraged the exploitation of natural beauty. The millinery trade is responsible for the extinction of several bird species, for example. In the same vein, our aesthetic preferences can also lead to the persecution of the ‘aesthetically disagreeable’ like notoriously unappealing swamps, which are often targeted in the name of economic progress. Aesthetics can also ‘lead us astray,’ especially when employed in the act of ‘unscrupulous corporate greenwashing,’ which can impair environmental law and progress by encouraging complacency about the adequacy of existing standards.
For these reasons, we need a better understanding of aesthetics (what Richardson refers to as ‘critical’ aesthetics) to inform the way we relate to the visual world around us and to guide us in the right direction when images threaten to lead us off course. In part 3 of the book, aptly titled Aspirations, Richardson explores how we might practically employ critical aesthetics as a tool for facilitating pro-environmental practices. He advocates for ‘a multi-disciplinary integration of aesthetic and non-aesthetic factors to facilitate holistic environmental governance’ and the creative role of artists in this endeavour. Richardson is realistic about the ambiguity and open-endedness of aesthetic qualities that will continue to pose significant challenges for lawmakers, law enforcers and the public alike. But these challenges are not insurmountable – we must simply begin to take aesthetics seriously.
The Art of Environmental Law: Governing with Aesthetics covers a great deal of ground. Richardson artfully weaves discussions of broad and complex environmental challenges with personal anecdotes and interesting tales, like that of a 2018 Missouri court, in sentencing a deer poacher to one year’s imprisonment, added the stipulation that the offender must watch Bambi every month. For a book devoted to the exploration of images, it is a shame that the visual content feels sparce at times. (He would have liked to include more, but the publisher limited him to only 50, the reader is told.) One should, therefore, keep a phone or laptop browser handy when reading. To enhance its contention, the book is also perhaps best read outdoors or, for those of us confined to offices, firms or chambers, at best next to a window, ideally accompanied by the sound of bees and birdsong.
Richardson’s ultimate contention is a humble one: ‘aesthetics should not trump other values or knowledge in environmental policy, but should be respected as indispensable to sound governance.’ After reading The Art of Environmental Law, this somehow feels like an undersell. Environmental governance has always prioritised economic tools and scientific evidence for solutions and, despite the ubiquity of images, we still encounter new environmental laws or policies ignorant of aesthetics. ‘Aesthetics and art should not be seen as fundamentally at odds with the scientific and economic methodologies and knowledge systems that dominate environmental governance, but rather as vital additions.’ While aesthetics have always played a role in environmental law, climate change now brings aesthetic phenomena growing in legal significance. With an increasing number of climate-related emergencies and more images plastered on our phone screens, this is an area that deserves greater attention or, more realistically, urgently needs it.
A SENSE OF COMMON PURPOSE: A history of the Australian Academy of Law David Barker; The Federation Press, 2022; 230 pages; $69.90 (paperback)
It may come as a surprise to legal practitioners, academics, law students and judges alike that, until 2007, there was no organisation which brought together all the ‘elements’ of the discipline of law in Australia. The Australian Academy of Law (AAL) is such an organisation and Professor David Barker, former Dean of the Faculty of Law at the University of Technology Sydney and Foundation Fellow of the AAL, details in A Sense of Common Purpose the founding of the AAL and its successes to date. Professor Barker is ideally placed to chronicle this history. A combination of his mobilisation of the Council of Australian Law Deans (CALD) in the late 1990s and the work of Professor David Weisbrot as President of the Australian Law Reform Commission (ALRC) was the key force that led to the AAL’s establishment on 17 July 2007.
In the opening chapters, Professor Barker describes the ‘seeds’ of the AAL in its pre-foundation years from about 1996 to 2007 and the ‘determination of a small group of academic lawyers resolved to establish an appropriate learned academy to represent all section of Australian legal society’. One surprising stylistic choice which the reader experiences early on is that Professor Barker, a central character, writes in the third person: ‘Professor Barker took it upon himself … to raise this as an item of business on the CALD agenda’. Otherwise, the reader learns that a key source of momentum and legitimacy in the AAL’s pre-foundation years was the ALRC’s Managing Justice (Report 89) of 17 February 2000 which recommended that such an academy be established. An engaging feature of these early chapters, and indeed the book as a whole, is to read about the cameos of many prominent Australian lawyers who left their mark on the AAL or featured at its events: these include the Hon Kevin Lindgren AM QC (President from 2011 to 2020) and the Hon Stephen Gageler (who appeared on the Projects Committee in 2013). Also of interest are the discussions of the equivalent legal institutes in other countries: the Inns of Court in the UK; the American Law Institute in the US; and the Singapore Academy of Law.
The balance of the book is quite literally a ‘blow by blow’ account of every meeting and event at the AAL up until 2021. One theme which emerges during this account is the AAL’s, or at least Professor Barker’s, pre-occupation with maintaining ‘stringent’ standards for the admission of fellows to the Academy while at the same time allowing this young organisation to expand. A second theme which comes through is the AAL’s important role, as was the vision of its founders, in facilitating dialogue between members of ‘the profession’ and ‘academia’: on 30 October 2012, Chief Justice Robert French gave an address entitled ‘Judges and the Academy – Dialogue of the Hard of Hearing’; and on 31 October 2019, Chief Justice Susan Kiefel spoke on the topic of ‘The Academy and the Courts: What do they mean to each other today?’. A third theme of the AAL’s work appears to have been detailed discussion of the nature of legal education in Australia.
After absorbing the detail given by Professor Barker, the reader cannot help but be impressed by the AAL’s trajectory since its foundation. It has succeeded in fostering a membership of exceptional judges, academics and practitioners, including having the incumbent Chief Justice of Australia as the AAL’s patron throughout its history. The chronicle of the Academy’s events is also an interesting lens through which the reader can revisit key points in Australia’s modern legal story: these include a lecture given at The Australian National University on 25 March 2015 by Professor Hilary Charlesworth and Henry Burmester AO QC on the Whaling Case at the International Court of Justice; and a panel discussion held on 25 March 2019 at the Federal Court in New South Wales on what lawyers could learn from the Hayne Royal Commission. Professor Barker also emphasises the AAL’s sense of accomplishment in setting up the Annual Essay Prize – ‘open to anyone, wherever resident, who is studying or has studied legal subjects at a tertiary level, or who is working or has worked in a law-based occupation’ – and a First Nations Scholarship to support the study of law.
The reader may also be forgiven for thinking that some of the detail provided is gratuitous – for example, that ‘neck decorations and miniatures’ were included on the Governor’s invitation to the black-tie foundation buffet dinner on 17 July 2007 at Government House in Queensland – and that the tone is strangely grandiose – the book opens with a quote from Aristotle’s Poetics and concludes by drawing a parallel between the vision of the AAL Foundation Fellows and Wilbur Wright’s invention of human flight. It would also have been interesting for the reader to learn more about the criticism which the AAL had to overcome in its early years. Both Professor Barker and the Hon Murray Gleeson AC in his Foreword hint at such opposition, specifically from the ranks of the judiciary. However, the text’s strictly chronological, analytical structure dulls this colour.
Overwhelming, however, the reader is left with a sense of relief that the AAL exists and gratitude to those who brought it into existence. The reader should also be impressed by the calibre of the AAL’s membership and events, often featuring speakers from the very top of Australia’s judiciary and academia. One key benefit of the AAL is its capacity to facilitate dialogue and goodwill between legal practitioners, judges and academics. This seems fundamental to the discipline of law in Australia. The reader may hope that in the AAL’s pursuit of the most excellent members, it does not forget the young law students, academics, and practitioners who are ultimately its future.
MICRONATIONS AND THE SEARCH FOR SOVEREIGNTY Harry Hobbs and George Williams; Cambridge University Press, 2022; 256 pages; AUD160.95 (hardback) USD88 (eBook)
In the 1980s and ’90s, there was a flourishing of popular books narrating carnivalesque ‘freak shows’ within the law: cases with bizarre facts, statutes with wild provisions, and maverick litigants. The purpose of these books was to entertain, tapping into the same appetite that gave us a wide variety of legal-themed procedurals, sitcoms and biofiction. And, as a person who simply cannot get enough content from the Cabinet of Legal Curios, I was expecting Micronations and the Search for Sovereignty by Harry Hobbs and George Williams to be a scholarly variant of this type of literature. After all, as noted by the authors in the book’s Preface, the prevailing view is that micronations – where eccentrics proudly declare some kind of legal secession from the State – ‘are more suited to humour than serious study’.
Instead of a circus, Hobbs and Williams present bread, problematising micronations by contrasting them with the wave of secessionist movements around the world, like South Sudan, Kosovo, Scotland, Catalonia and Quebec. Intuitively and pre-theoretically, we want to be able to distinguish the serious and important struggles for independence from the trivial and absurd declarations of independence of cranks. When the trivial category apes and mimics the language of the serious – when they are ‘engaging in the rituals of statehood’ – then distinguishing the two categories becomes fraught without appeal to external moral worthiness. Hobbs and Williams also want to distinguish these micronations – for which they appear to hold some kind of affection – from other kinds of pseudo-states and non-states, such as charter cities and the sovereign citizen movement.
Not articulated in the book but sitting in the unspoken background is a basic problem of doctrinal analysis: how do we distinguish good legal claims from law-flavoured nonsense? The problem will always be to distinguish the arguably true from the indisputably false without losing the ambiguity and tensions in the law, and it is this territory that Hobbs and Williams explore extremely well. The authors want to preserve both the intuition that micronations are definitely legal nonsense and the ambiguity about the area of international law related to statehood. They demonstrate that, in this area of law, there is only finite ambiguity and that micronations’ claims are beyond the asymptote of the arguable. Their approach is to articulate the contours of the arguable cases – reflecting on states, non-states, emerging states, and possible future states such as the Vatican City, Andorra, Taiwan, Bougainville, Catalonia and Iraqi Kurdistan – to find the territorial border separating these from the indisputably false legal claims about statehood made by micronations. This approach is fascinating and informs our understanding of the law of statehood.
Less successfully, Hobbs and Williams also explore how micronation non-states perform legitimacy, most notoriously the dark legal magic surrounding invocations of Magna Carta. It is here that the method of the book is at its weakest. Although there was utility in explaining why a micronation was not in the penumbra of arguable law about statehood, the micronations’ claims about Magna Carta are simply and unhelpfully false. Thus, an interesting discussion of Magna Carta in legal history concludes abruptly with: ‘There is no basis upon which the Magna Carta can ground a claim for sovereignty and statehood’. Similar discussions about the Antarctic Treaty and the Law of the Sea end the same way.
If nothing else, Hobbs and Williams show that there is little to harvest from sowing a discussion about these areas of law in the rocky, intellectually inhospitable ground of the micronation eccentrics. This analysis possibly could have been more bountiful by shifting the object under study. If it is obviously true that the claims of micronation eccentrics are false – which I think most everybody would agree that they are – then doctrinal analysis of the law is less useful than interrogating, elucidating and exploring the imagined counterparts of Magna Carta, the Antarctic Treaty and the law of the sea. That is, if we take the micronations’ claims about these areas of law at their highest, what do they think is the content of these areas of law and why? That question is largely not asked.
The audience for this book is clearly scholarly, despite the publisher’s blurb that the intended reader includes the general audience. This is no criticism of a scholarly work, but the general reader is not going to get much from a sentence like: ‘[A]ll states possess plenary competence to make treaties and perform other international acts’. The content is challenging. Hobbs and Williams do an extraordinary job of filtering through an incredible amount of grey literature (including theses written for undergraduate degrees, lists on Wikipedia, and what sounds like a fascinating critique published in Playboy magazine) to extract enough material for an academic discussion of the issues. As a scholarly work, this book is extremely helpful, especially in sections relating to other controversies about the distinction between good legal claims and legal nonsense.
DOWNHILL FROM EVERYWHERE Jackson Browne; Inside Recordings, 2021
Great news for longtime fans like me – Jackson Browne has a new album out. Browne ranks high on my list of all-time memorable concerts. His 1977 Festival Hall performance, backed by a band led by multi-instrumental David Lindley, is right up there with those of Bruce Springsteen, Joan Baez, Pink Floyd, BB King, the Bee Gees, Bonnie Raitt, Leonard Cohen and Neil Young.
But back to Jackson Browne at that Festival Hall concert 45 years ago. Maria Muldaur opened the show – remember her gorgeous ‘Midnight at the Oasis’, featuring Amos Garrett’s lyrical guitar? At the time, Browne was enjoying a career resurgence on the heels of ‘The Pretender’ album. After several encores, Browne and Lindley returned with acoustic guitars to sit front of stage, then Browne told the audience we could leave any time we wanted as the duo noodled on, playing an extended version of ‘Stay’.
Browne’s 1974 `Late for the Sky’ album remains a personal favourite of mine. One of its most celebrated songs, ‘Before the Deluge’ became a theme tune for MUSE (Musicians United for Safe Energy), of which he was co-founder. He’s also a member of the Ocean Elders advocacy group and has been honoured with numerous awards for his pursuit of social justice and environmental awareness.
Now aged 72, Browne is as passionate as ever about the state of our planet and its inhabitants. The new album includes a postscript to the Donald Trump era in ‘The Dreamer’, highlighting the plight of Mexican immigrants to the US, and he also finds time for romance in the lilting ‘Love Is Love’, as well as ‘Minutes to Downtown’ and ‘Human Touch’. Listen for guitar riffs reminiscent of Warren Zevon in ‘Until Justice is Real’ and, true to his activist advocacy, the call for action in his powerful lyrics.
And if the album’s title lament for our polluted oceans appears a tad pessimistic, there’s a welcome touch of self-irony in a track like ‘Still Looking for Something’.
This is a well-produced recording that echoes the warm instrumental sounds of his work in earlier decades, while delivering thoughtful lyrical content. In other words: music for grown-ups.
THE FUTURE OF UNIONS AND WORKER REPRESENTATION: The digital picket line Anthony Forsyth; Hart Publishing, 2022; 277 pages; $153 (hardback), $122.41 (epub)
Anthony Forsyth’s The Future of Unions and Worker Representation: The digital picket line comes at a flashpoint in the industrial relations landscape globally, as government, business, unions and workers are reconceptualising workplace power and the means and ends of using it in the century to come.
The book is part history, part treatise on the problems faced by unions in combatting declining membership and influence in the US, UK, and Australia (as distinguished from the more resilient Italian mode) and part balm in its provision of potential solutions to these issues. The book is initially framed by a useful and brief overview of the legal frameworks for unions in the respective subject countries, and their comparative utility for unions in those places. A cynical Australian practitioner may view Forsyth’s generally positive appraisal of the Australian system with some scepticism, but it is overall a helpful guide which sets the context for the following chapters that cover each country’s recent history regarding industrial reform.
The chapters dealing with the history of each country’s approach towards unions describes a fascinating picture of the differing impacts that the prevailing neoliberal mode of thought had on governments and unions, and their operations over the past few decades. Forsyth clearly lays out the trends in union activity to shore up declining influence and membership across the subject countries, including the underwhelming long-term impact that the ‘organising model’ of unionism adopted in those countries has had on reversing union fortunes. This is contrasted to the more successful institutionalisation approach of unions in Italy to retaining membership, an insight into an important aspect of the country that has, until now, not featured much in the conception of unionism in Australia.
One difficulty, however, in writing a book covering the dynamic subject of industrial relations is that, by the time of writing this review, in a few respects the subject matter has already moved on. Chapters published in January 2022 on the efforts by Australian unions to challenge the classifications of gig workers now feels anachronistic, as by February 2022 the High Court of Australia had almost entirely shut the door to any further cases in the earth-shuddering decision of CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1. And who could discuss the current landscape of labour relations in the US without factoring April 2022’s successful, and unprecedented, unionisation vote at Amazon’s Staten Island fulfilment centre by shop floor workers? The subject matter is inherently transitory, and Forsyth does a good job covering the bases in circumstances where unions, employers and governments are invariably preparing themselves for their next encounter.
A further testament to the difficulties of writing on such topics is the hopeful tone dedicated to the discussion of Hospo Voice, a disruptive effort by Australia’s United Workers Union to engage young workers in the hospitality field with a ‘Netflix’ type tiered union subscription. Forsyth cites Hospo Voice as one of the ‘most promising signs of vibrancy in labour activism’ in the US, UK, Australia and Italy, and its model as a possible innovation able to combat union stagnation, but questions whether it can evolve into a strong organisation for the long term. Sadly, by June 2022 we had our answer – the experimental outfit had closed up shop and members transferred back to its parent union. In some respects, the effect of that experiment tempers Forsyth’s conclusions about some of the potential solutions to union difficulties in Chapter 11.
Given the scope of the book, it could have happily run into the thousands of pages. Fortunately, it is easy to digest at 277. However, one can’t help but wonder about the further potential avenues into which this book could have delved. While issues regarding the problems that unions have had regarding the failures of the ‘organising model’ in addressing declining membership are well traversed, questions regarding the impact of unions moving away from clear-minded political theory in guiding union approaches to organising are not really explored. Similarly, the decline in prevalence of industrial disputes and their influence (or not) in building worker power is also not addressed. Finally, the book, while having been carefully researched through academic studies, press releases and newspaper articles, could have been further strengthened through the first-hand voices of the unions and workers that are its subjects. The insights of those sources would provide a rich and nuanced perspective into the difficulties and strengths of their campaign and organising approaches, in addition to the public documents on which the book is founded.
The book, for these reasons, will be most easily enjoyed by familiar and experienced players in the industrial relations scene. Read with an eye for the past, those who stand to gain the most from this book are those with an understanding of the field in Australia, and how it might eventuate in the much-anticipated reform process promised by Labor in its current term of government. Overall, this book provides an insightful synthesis of industrial activity abroad, and thoughtful potential solutions to reversing union woes.