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Graeme, Orr; Bryan, Mercurio; George, Williams --- "Electoral Law Symposium: An Introduction" [2004] FedLawRw 17; (2004) 32 Federal Law Review 357

[*] Senior Lecturer, Law Faculty, Griffith University, Brisbane, <g.orr@griffith.edu.au>. Thanks to my colleagues Shaun McVeigh and Jeffrey Minson for several references, and to Professor Desmond Manderson for his insights as acknowledged in several footnotes.

[1] The Australian Electoral Commission ('AEC') and commentators alike are fond of describing national elections as the largest peace-time logistical exercise in Australia.

[2] In 1902 there were 219 sections in the two Acts mentioned; the CEA today has just approximately 400. We see the same pattern in electoral legislation in other jurisdictions.

[3] Michael Maley, 'Australian Electoral Law: Not a Model for Others' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 40, 42. In limiting electoral commission discretion, via legislative provisions reflecting a partisan consensus, Maley believes the obsessive prescriptiveness of the law enhances commission neutrality.

[4] Leaving aside a throwback exception favouring some older British subjects: see Commonwealth Electoral Act 1918 (Cth) s 93(1)(b)(ii).

[5] The 'expressive' theory predates, but reaches its apogee, in Geoffrey Brennan and Loren Lomasky, Democracy and Decision: the Pure Theory of Electoral Preference (1993). Symbolic accounts, in modern literature, trace themselves to Murray Edelman, The Symbolic Uses of Politics (1964).

[6] A theme played on in AEC advertising to encourage enrolment and voting (terms like 'Have Your Say' are almost ubiquitous). See, for example, the slogans reproduced in The People's Say: Elections in Australia (2nd ed, 1994) 3 ('AEC: Helping You Have Your Say') and 68 ('Have Your Say: Enrol to Vote' — a motto set beneath a branch of raucous kookaburras!).

[7] Pamela S Karlan, 'Constitutional Law, the Political Process, and the Bondage of Discipline' (1999) 32 Loyola University of LA Law Review 1185, 1196–7.

[8] Daryl Glaser, 'Normative Theory' in David Marsh and Gerry Stoker (eds), Theory and Methods in Political Science (1995) 21, 21. The Berlin quote is from: Isaiah Berlin, Four Essays on Liberty (1984).

[9] Glaser, 'Normative Theory', above n 8, 21.

[10] Henry Tudor, Political Myth (1972) 123 (emphasis added).

[11] Turner's legacy is vast, but public lawyers should be particularly interested in The Ritual Process: Structure and Anti-Structure (1969) especially ch 3 on 'Liminality and Communitas'.

[12] Ibid 6, citing Monica Wilson, 'Nyakyusa Ritual and Symbolism' (1954) 56 American Anthropologist 228, 240.

[13] The best known being K N Llewellyn and E Adamson Hoebel, The Cheyenne Way: Conflict and Caselaw in Primitive Jurisprudence (1941).

[14] For example, Peter Stallybrass and Allon White's study of the vitality of the carnival in European society, and its survival, in literature and art at least, as the 'carnivalesque': The Politics and Poetics of Transgression (1986).

[15] Going back at least to Robert Hertz, 'A Contribution to the Study of the Collective Representation of Death' in Robert Hertz, Death and The Right Hand (R and C Needham trans, 1960 ed) [trans of: La représentation collective de la mort and La prééminence de la main droite].

[16] Even when pared of their traditional theatricality or ceremonial qualities, courts remain clear sites of performances.

[17] Edelman, above n 5, 16. Edelman's work was not the founding voice in the study of political symbolism, more like the spark in a resurgence of interest in it: Charles D Elder and Roger W Cobb, The Political Uses of Symbols (1983) 1.

[18] To adopt Victor W Turner's negative definition in The Forest of Symbols: Aspects of Ndembu Ritual (1967) 19.

[19] Edelman, above n 5, 17–18 notes ceremonial occasions as the most obvious form of political ritual, and classes 'election campaigns and political discussion' as 'more subtle' instances of political ritual.

[20] Ibid 3 (citations omitted).

[21] For a recent example of the latter, see Rebecca Klatch, 'Political Symbolism and Symbolic Action' in Werner Leinfellner and Franz M Wuketits (eds), The Tasks of Contemporary Philosophy (1985) 148.

[22] On democratic ideals as a form of religion or faith see J Ronald Engel, 'The Democratic Faith' (1985) 6 American Journal of Theology and Philosophy 64; Annette Baier 'Secular Faith' (1980) 10 Canadian Journal of Philosophy 131 and Patrick J Deneen, Democratic Faith, manuscript in progress at <http://www.princeton.edu/~pdeneen/writings.html> at 11 October 2004. There is considerable debate between those who emphasise the 'de-sacralisation' of politics in the historical separation of state and church and those who point to the tendency for secular constitutions to cloak themselves nonetheless in the garb of higher moral principles, but this debate speaks more to the United States tradition than say Australia.

[23] Whether implicitly, as in Adam Gearey's discussion of the seminal work of James Boyd White, in Adam Gearey, Law and Aesthetics (2001) 8, 8–14; or explicitly in such pieces as Robin West's 'Jurisprudence as Narrative: An Aesthetic Analysis of Modern Legal Theory' (1985) 60 New York University Law Review 145.

[24] Desmond Manderson, Songs Without Music: Aesthetic Dimensions of Law and Justice (2000).

[25] Pierre Schlag, 'The Aesthetics of American Law' (2002) 115 Harvard Law Review 1049, 1049–51. Manderson, in contrast, is something of a romantic. Whilst maintaining a pluralist position as regards both aesthetics and legal theory, he claims that '[j]ustice is inevitably connected with aesthetics': ibid 191.

[26] Gearey, above n 23, 2–8.

[27] Mark Parker, 'The Aesthetic Dimension of Ethics and Law: Some Reflections on Harmless Offense' (1996) 33 American Philosophical Quarterly 57, 61.

[28] Ibid 64 (emphasis added).

[29] Schlag, above n 25, 1050. For a commentary on Schlag, see Brian E Butler, 'Aesthetics and American Law' (2003) 27 Legal Studies Forum 203.

[30] Alan Hunt, Governance of the Consuming Passions: A History of Sumptuary Law (1996).

[31] For example, Parker, above n 27.

[32] William Twining, ‘General Jurisprudence’, Tilburg Lectures 2000-01, <http://www.ucl.ac.uk/laws/jurisprudence/docs/twi_til_1.pdf> at 12 November 2004.

[33] Ernest Scott, 'The History of the Victorian Ballot' (1920) 8(1) The Victorian Historical Magazine 1 and (1921) 8(2) The Victorian Historical Magazine 49. The modern practice of secret balloting is mandated federally in the Commonwealth Electoral Act 1918 (Cth) s 233 ('Votes to be marked in private'), and reinforced by s 323 ('Officers and scrutineers to observe secrecy') and s 268(1)(d) (ballots with 'any mark or writing … by which … the voter can be identified' are informal).

[34] Bentham for one campaigned for secret balloting on these grounds: Jeremy Bentham, Plan of Parliamentary Reform, in the Form of a Catechism, with Reasons for Each Article (1818) 65–9 (Ch XII 'Secrecy of Suffrage — Its Importance Further Developed'). On the history and legal niceties of the secret ballot, see the excursion in Yarran v Blurton (1992) 107 ALR 514, 524–8 (French J).

[35] Hogarth painted a celebrated quartet of canvases — his 'Election Series' — as a pungent satire on electoral vices, inspired by the infamous 1754 Oxfordshire election. The third painting depicts the revelry and chaos of open polling. For images and commentary see Christina Scull, The Soane Hogarths (1991) 39–41 or Neil McWilliam, An Election Series 17531754 <http://hogarth.chez.tiscali.fr/gallery05.htm> at 11 October 2004. Open polling has contemporary proponents however, most notably Brennan: Brennan and Lomasky, Democracy and Decision, above n 5, 217–21.

[36] Most primaries however are by secret ballot: indeed the trend, if Arizonan law is any indication, will be to hold primaries through the internet. The experience of voting is contingent on cultures, histories and technologies that may differ between jurisdictions even within the same country.

[37] To John Wigmore, open polling encouraged gross 'evils that prevent an election from being what at the least it should be, the free and accurate expression of the opinions of the electors.' John H Wigmore, The Australian Ballot System as Embodied in the Legislation of Various Countries (2nd ed, 1889) 2.

[38] Mark McKenna, 'Building "a Closet of Prayer" in the New World: the Story of the "Australian Ballot"', in Marian Sawer (ed), Elections: Full, Free and Fair (2001) 45, 49, citing Bruce L Kinzer, The Ballot Question in Nineteenth-Century English Politics (1982) 71.

[39] Scott, above n 33, 9, citing the NSW Colonial Secretary; see also McKenna, above n 37, 49, quoting Lord Russell's claims that the 'clandestine' ballot was a 'silent sap' on the vigour of democracy.

[40] The Southern Division of the County of Meath (1892) 4 O'M & H 130 gives an extensive treatment of the issue. In defining undue ecclesiastical influence, the common law drew a fine line between (acceptable, if zealous) exhortations in preaching, and (unacceptable) exciting of 'superstitious fears or pious hopes … alarm[ing] conscience by the horrors of eternal misery, or support[ing] the drooping spirits by unfolding the prospect of eternal happiness.' Borough of Galway 1 O'M & H 303, 305–7.

[41] McKenna, above n 38, 45–6.

[42] Commonwealth Electoral Act 1918 (Cth) s 233(1).

[43] Commonwealth Electoral Act 1918 (Cth) s 340. In South Australia, it was once an offence to solicit a vote anytime during the election period. The ban has narrowed to prohibit just solicitation by candidates on polling day. See Dean Jaensch, Community Access to the Parliamentary Electoral Processes in South Australia Since 1850 (2002) 93–4. The original ban was motivated in part by a desire to crack down on opportunities to bribe individual voters, but more so on a feeling that personal solicitation offended ballot secrecy.

[44] In some, they are accepted to the point of micro-regulation: eg Queensland requires registration and stipulates font size, to minimise confusion: Electoral Act 1992 (Qld) ss 161A- B.

[45] The ACT and Tasmania are exceptions. At their Assembly elections, the exclusion zone is 100m: Electoral Act 1992 (ACT) s 303 and Electoral Act 1985 (Tas) s 133(2). Such a buffer practically relegates 'how-to-vote' cards to anonymous letterboxing, but in any event 'how-to-vote' cards are of limited practical value in either jurisdiction, since although parties stand lists of candidates, there is no single ballot paper to reproduce because the order of candidate names is juggled on different batches (via 'Robson Rotation').

[46] Marian Sawer, 'Enrolling the People: Electoral Innovation in the New Australian Commonwealth', in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 52, 63. At 64–5 Sawer attributes this to a deeper, 'Benthamite' desire to ensure 'rational policymaking guided by the accurate registering of all preferences.'

[47] Joan Rydon, a political science Professor, was the most vociferous and long-standing opponent of compulsion. She (twice) famously wrote that: 'In Australia where the apathetic and ill-informed are forced to the polls by law, it is even more likely that the "scum and dregs" of political life will decide who is to govern the country.' Joan Rydon, 'The Electorate' in John Wilkes (ed), Forces in Australian Politics (1963) 167, 184. That claim is not quite as elitist as it may sound: it echoes a line of Bernard Shaw, where 'scum' means those who undeservedly rise to the top of society as much as 'dregs' are those anchored to the bottom. (George Bernard Shaw, Man and Superman: a Comedy and a Philosophy (1903) 81: ‘We are dregs and scum, sir: the dregs very filthy, the scum very superior.’)

[48] Lisa Hill, '"A Great Leveller": Compulsory Voting' in Marian Sawer (ed), Elections: Full, Free and Fair (2001) 129.

[49] A curious exception involves Norfolk Islanders, for whom enrolment is not compulsory: Commonwealth Electoral Act 1918 (Cth) s 101(5A). But this only reinforces the point: the Islanders' special status is essentially a symbolic exemption, reflecting their desire to distinguish themselves as people on the periphery of 'Australianness'.

[50] The position is set out in the official royal website: Queen and Voting <http://www.royal.gov.uk/output/page505.asp> at 11 October 2004.

[51] Obviously there are exceptions for the sick or the isolated, most notably the postal ballot. But as 'declaration votes' — the formal legal term for such exceptions — implies, these are truly exceptions to the norm of polling in person at a public place. The elector must by declaration, on pain of penalty, prove herself entitled to an exemption. (For the definition of a 'declaration vote' see Commonwealth Electoral Act 1918 (Cth) s 4.)

[52] Australian Electoral Commission, Behind the Scenes: the 2001 Election Report (2002) 25. For those confined to institutions such as hospitals, nursing homes and prisons, or very remote communities, mobile booths are also allowed for: see the Commonwealth Electoral Act 1918 (Cth) ss 2247.

[53] Both private (eg, as a campaign headquarters) and public uses. A ban on such private use made instrumental sense in the fight against buying votes through 'treating' (bribes of food, drink and entertainment). Such a ban existed in the Electoral Act 1896 (WA) s 131, an Act which was otherwise a precedent for the Commonwealth Electoral Act 1902 (Cth).

[54] Commonwealth, Parliamentary Debates, House of Representatives, 24/7/1902, 14647–8. There were conflicting opinions as to whether women, newly enfranchised, would be less or more deterred by attending election events in the harsh sun, or in a public house!

[55] Commonwealth Electoral Act 1918 (Cth) s 205.

[56] For reminding me of this obvious and important aspect of the aesthetic of voting, and for some of the ideas expressed in this paragraph, I am very much indebted to Desmond Manderson.

[57] To say this is to remind us that old schools and halls are often not disability friendly: see Human Rights and Equal Opportunities Commission, 'Accessibility of Election Procedures to People with Disabilities' (2000–2) <http://www.hreoc.gov.au/ disability_rights/inquiries/electoral/electoral.htm> at 11 October 2004. By the same token, e-voting will be more accessible (and secret) for disabled electors: Bryan Mercurio, 'Discrimination in Electoral Law: Using Technology to Extend the Secret Ballot to Disabled and Illiterate Voters' (2003) 28 Alternative Law Journal 272. But using internet voting for special-needs electors will only further marginalise them from the communal aspect of the electoral rite.

[58] Commonwealth Electoral Act 1918 (Cth) s 158, which dates to s 12 of the Commonwealth Electoral Act 1911 (Cth). Orthodox Jews and Seventh Day Adventists may not think Saturday to be so suitable. Interestingly, the mandating of Saturday polling predated the 44 hour week (restricting ordinary hours of employment to a half day Saturday) which was phased in by the Commonwealth Arbitration Court between 1920 and 1927.

[59] For example, the US holds elections on Tuesdays, the UK on Thursdays.

[60] Commonwealth Electoral Act 1918 (Cth) s 265(1)(a) requires that '[t]he scrutiny' (ie, the count) 'shall commence as soon as practicable after the closing of the poll'.

[61] For an account of the law and practice of scrutineering in Australia, including arguments for reform, see Phillip Green, 'Transparency and Elections in Australia: The Role of Scrutineers in the Australian Electoral Process' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 216.

[62] Such dissent ought be recognised and tallied: Graeme Orr, 'The Choice Not to Choose: Commonwealth Electoral Law and the Withholding of Preferences' [1997] MonashULawRw 19; (1997) 23 Monash University Law Review 285, 308–10.

[63] Paul Lyneham, 'Down and Out in the National Tally Room' in Australian Electoral Commission (ed), The People's Say: Elections in Australia (2nd ed, 1994) 49, 49.

[64] Fittingly by the chief public broadcaster, the ABC, and the most popular broadcaster, Channel 9.

[65] David Williamson, Don's Party (1971); movie version directed by Bruce Beresford (1976). Election night parties are also preserved in a famous page length cartoon by Michael Leunig, 'Election Weekend: A Personal Diary', commemorating the 1974 Double Dissolution election, which appeared in the Nation Review in May 1974 and later as a poster.

[66] Bryan Mercurio, 'Overhauling Australian Democracy: The Benefits and Burdens of Internet Voting' [2002] UTasLawRw 7; (2002) 21 University of Tasmania Law Review 23 gives an even-handed summary of the pros and cons. At 63 he comes up supportive of computerised or internet voting at public locations, but concedes the present risks associated with remote internet voting (for example, from home) are 'too great'.

[67] Ibid 55–7; Bryan Mercurio 'Beyond the Paper Ballot: Exploring Computerised Voting' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 230, 237–41.

[68] 'Final for the night' counts for all seats and even upper house voting could be ascertained almost instantaneously: but in ultra-marginal contests, the outcome would still have to wait up to 10 days for outstanding postal ballots: Graeme Orr, Bryan Mercurio and George Williams, 'Australian Electoral Law: A Stocktake' (2003) 2 Election Law Journal 383, 393–4.

[69] Graeme Orr, 'Dealing in Votes: Regulating Electoral Bribery' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 130.

[70] Daniel H Lowenstein, 'On Campaign Finance Reform: the Root of All Evil is Deeply Rooted' (1989) 18 Hofstra Law Review 301.

[71] Samuel Issacharoff and Pamela S Karlan, 'The Hydraulics of Campaign Finance Reform' (1999) 77 Texas Law Review 1705.

[72] Money is 'a unique political resource because it can be converted into many other political resources': Lowenstein, above n 70, 301, citing Alexander Heard, The Costs of Democracy (1960) 3.

[73] Not just bribery of electors, but the older practice of 'buying' a place in Parliament through a landlord's control of the limited number of electors in many seats: an abhorrent idea to modern eyes but one consonant with feudal principles of governance. For some contemporary documents on such sales, see A Aspinall and E Anthony Smith (eds), English Historical Documents (Vol XI): 1783–1832 (1959) [172–174].

[74] Corrupt Practices Prevention Act 1854 (UK) s 7.

[75] Corrupt and Illegal Practices Prevention Act 1883 (UK) s 16(1). Similarly, if more reasonably to the modern mind, s 20 banned election committees using premises where food or drink, especially alcohol, was sold. For similar Australian law, see above n 53.

[76] Indeed it would disqualify him for 7 years if done with his consent: Corrupt and Illegal Practices Prevention Act 1883 (UK) s 11.

[77] As Hunt, above n 30, 361 observes, sumptuary laws (common in the middle of the last millennium) did not so much die, as become transfigured.

[78] See, eg, the UK Labour Party's manual, Conduct of Elections: A Practical Guide to the Organisation and Management of Parliamentary and Local Elections (1931) 78, containing strict warnings to Labour candidates, whilst noting limited loopholes in the law (eg, a band could play for free, or a candidate make and wear his own badge.)

[79] Commonwealth Electoral Act 1918 (Cth) s 98A; Tonite and Australian Electoral Officer for Queensland [2002] AATA 514. The legal issue is thoroughly canvassed in Tom Round, 'By Any Other Name: Parties, Candidates and their Ballot Labels' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 157.

[80] The recommendation is in Joint Standing Committee on Electoral Matters, Parliament of Australia, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001 Federal Election, and Matters Related Thereto (2003) [3.59–3.68]

[81] Political Broadcasts and Political Disclosure Act 1991 (Cth), invalidated in Australian Capital Television Pty Ltd v Commonwealth (No 2) [1992] HCA 45; (1992) 177 CLR 106. See Keith Ewing, 'The Legal Regulation of Electoral Campaign Financing in Australia: a Preliminary Study' (1992) 22 University of Western Australia Law Review 447.

[82] Joint Standing Committee on Electoral Matters, Parliament of Australia, Who Pays the Piper Calls the Tune: Minimising the Risks of Funding Political Campaigns, (1989).

[83] We must be careful about over-generalising about US electoral practice in particular. US electoral laws, even for federal elections, can vary widely from state to state. For an example of how this affects say the experience of primary voting, see above n 36 and text.

[84] Eu v San Francisco County Democratic Central Committee [1989] USSC 29; 489 US 214, 223 (1989), echoing Monitor Patriot Co v Roy 91 [1971] USSC 32; 401 US 265, 272 (1971).

[85] Red Lion Broadcasting Co v Federal Communication Commission [1969] USSC 141; 395 US 367, 390 (1969) (emphasis added).

[86] Pamela S Karlan, 'Politics by Other Means' (1999) 85 Virginia Law Review 1697, 1698.

[87] Samuel Issacharoff and Richard H Pildes, 'Politics as Markets: Partisan Lockups of the Democratic Process' (1998) 50 Stanford Law Review 643, 708–10. For a recent critique, see Richard L Hasen, The Supreme Court and Electoral Law: Judging Equality from Baker v Carr to Bush v Gore (2003) 143–6. At 5 et seq, Hasen traces interest in law as a response to 'political market failure' to John Hart Ely's Democracy and Distrust (1980)

[88] Hasen, above n 87, 7 articulates his thesis that the Court 'can (and should)' found election jurisprudence on the need to protect certain 'core political equality rights' but leave as non-justiciable, 'political equality rights that [remain] contested' to the political domain.

[89] For a collection of sources on political marketing, and how it is constructed as a field of study, see Margaret Scammell, 'Political Marketing: Lessons for Political Science' (1999) 47 Political Studies 718. For an account of the 'post-modern' campaign, see Pippa Norris, A Virtuous Circle: Political Communications in Post-Industrial Societies (2000).

[90] I am indebted to Desmond Manderson for this train of thought. An older, rival conception of democracy would be to search for common ground from which a new social balance can be reached.

[91] The FEC has a 3–3 balance between Democrat and Republican nominees, but even that merely reflects an entrenched bipartisanship, as if other parties did not exist. At the most basic level, election law from the design of ballots to counting of votes, is run by partisan officials. For a brief account of how this inflamed the imbroglio over the 2000 presidential election, see Daniel Lowenstein, 'Lessons from the Florida Controversy' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 7, 12–23.

[92] The US Supreme Court in effect decided the 2000 presidential election for Bush over Gore, amid rank claims that both the Floridian and Supreme Courts were acting in nakedly partisan ways: ibid.

[93] United States of America v International Union United Automobile, Aircraft and Agricultural Implement Workers of America, [1957] USSC 31; 352 US 567, 572 (1957), reiterated most recently in McConnell v Federal Election Commission, [2003] USSC 8661; 540 US 93 (2003) (Opinion of the Court at 115).

[94] McConnell v Federal Election Commission, [2003] USSC 8661; 540 US 93 (2003) (Thomas J in dissent at 283).

[95] John O McGinnis, 'Against the Scribes: Campaign Finance Reform Revisited' (2000) 24 Harvard Journal of Law and Public Policy 25, 25–6.

[96] Ibid 28.

[97] Canada Elections Act 2000 (Canada) s 350.

[98] Federal Election Campaign Act of 1971, 2 USC §608(e) (1974). The Supreme Court overruled the cap on first amendment grounds in Buckley v Valeo [1976] USSC 24; 424 US 1 (1976).

[99] New Federal Elections Act 1971 (US) §323, inserted by the Bipartisan Campaign Finance Reform Act 2002 (US): upheld in McConnell v FEC [2003] USSC 8661; 540 US 93 (2003).

[100] Graeme Orr, 'The Currency of Democracy: Campaign Finance Law in Australia' [2003] UNSWLawJl 1; (2003) 26 University of New South Wales Law Journal 1, 5–7, 14.

[101] Not least, perhaps, because legislators fear inciting the wrath of existing media interests! But such an observation only reinforces the claim that any electoral law regime that regulates money in politics, but not the media, is half-baked.

[102] Commonwealth Electoral Act 1918 (Cth) s 332.

[103] For example, the Commonwealth Electoral Act 1918 (Cth) s 328 makes it an offence to print, publish or distribute any electoral advertisement or notice without the name and street address of the person authorising it. US electoral law is more tender, permitting anonymous electoral speech: McIntyre v Ohio Elections Commission, [1995] USSC 36; 514 US 334 (1995). For purely pragmatic reasons, authorisation may be needed to trace defamation or misleading speech.

[104] As noted in Orr, above n 100, reform in Australia since 1981 has in each case been the product of ALP policy, where necessary with Democrat and/or Green party support.

[105] William Lecky, Democracy in Liberty (vol I, 1896) 199–200.

[106] Theorising fed on psychoanalytic, particularly Lacanian, conceptions, imaginings and wordplay, is a powerhouse of contemporary legal philosophy.

[107] Butler, above n 29, 216.

[108] This concern is identified by Elaine Scarry, On Beauty and Being Just (1999) 58. She points out that the concern is incompatible with the criticism that attention to beauty damages the beautiful thing, through its objectification (58–9), and proceeds to argue that a sense of beauty can enhance our attention to justice (86–109).

[109] Grutter v Bollinger, [2003] USSC 4657; 539 US 306, 355 (2003) (see especially n 3).

[110] Pierre Bourdieu, Outline of a Theory of Practice (Richard Nice trans, 1977 ed) 87 [trans of: Esquisse d'une théorie de la pratique]. I am indebted again to Desmond Manderson for drawing my attention to Bourdieu's 'bodily hexis' concept.

[111] Ibid 93–4 (emphasis in original).

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