Ben Golder

Balancing national security and human rights: Assessing the legal response of common law nations to the threat of terrorism

Abstract In this article the authors address the impact which post-September 11 counter-terrorist legislation has had on human rights and civil liberties in a number of common law jurisdictions. The authors conclude that the counter-terrorist legislative regimes in the countries discussed in the article do impinge significantly upon human rights, and argue in favour of a ‘balancing approach’ towards reconciling such legislation with domestic, regional and international human rights obligations. The authors conclude with some general guidance for legal and policy decision-makers on how to balance the (frequently opposed) interests of national security and human rights protection.

Foucault’s Critical (Yet Ambivalent) Affirmation: Three Figures of Rights

Michel Foucault is not often read as a theorist of human rights. On the one hand, there is a tendency to read his works of the mid-1970s — his celebrated poststructuralist genealogies of subjectivity, of discipline, of bio-politics, and so forth — as proposing a critique of rights discourse which definitively rules out any political appeal to rights. On the other hand, somewhat curiously it has to be said, there is a tendency to read his works of the late 1970s and early 1980s — his perhaps less celebrated concern with ethics and with technologies of the self — as tacitly re-introducing a liberal humanist notion of subjectivity and, with that, an embrace of orthodox rights discourse. Beginning from this curious disjunction between the rejectionist Foucault and the liberal Foucault, this article attempts to articulate a Foucauldian politics of human rights along the lines of a critical affirmation. Neither a full embrace nor a total rejection of human rights, the Foucauldian politics of human rights developed here elaborates (and attempts to connect) several disparate figures in his thought: rights as ungrounded and illimitable, rights as the strategic instrument-effect of political struggle, and rights as a performative mechanism of community.

Foucault and the Unfinished Human of Rights

This article argues that in his late work Foucault does not submit to the ‘‘moral superiority’’ of humanism and introduce a liberal humanist subject. Rather, Foucault’s late investigations of subjectivity constitute a continuation and not a radical departure from his earlier positions on the subject. This helps us in interpreting Foucault’s late supposed ‘‘embrace’’ of, or return to, human rights—which is here re-interpreted as a critical anti-humanist engagement with human rights, conducted in the name of an unfinished humanity.

What is an anti-humanist human right?

Responding to recent engagements with Foucault, this paper argues that in his late work Foucault does not submit to the ‘moral superiority’ of humanism and introduce a liberal humanist subject. Rather, Foucaults late investigations of subjectivity constitute a continuation and not a radical departure from his earlier positions on the subject. Such a reading helps us to assess Foucaults late supposed ‘embrace’ of, or return to, human rights – which is here re-interpreted as a critical anti-humanist engagement with human rights, conducted in the name of an unfinished humanity. In this way, the paper engages not only with the way in which mainstream accounts of human rights tend to assimilate anti-foundational and post-structural challenges, but also with the quality of Foucaults own political legacy and future in the age of human rights, 25 years on.

'It Forced Me to Open More than I Could Bear': H.A.D., Paedophilia, and the Discursive Limits of the Male Heterosexual Body

In this paper I critically read the decisions of the High Court of Australia in Green v R and the Court of Appeal of New Zealand in R v Campbell in order to uncover the narratives of homophobia which support the Homosexual Advance Defence (HAD). The argument made in the paper is that a critique of the HAD necessitates an inquiry into the kind of bodies discursively assumed and constructed in the highly sexed legal narratives of provocation, and their link to other narratives of paedophilia and child sexual abuse.

Liberal Law's Fear of ‘Culture’

On 15 April 2010 The Honourable J J Spigelman AC, Chief Justice of New South Wales, presented the Inaugural Address to the Law, Governance and Social Justice Forum convened by the Faculty of Law at the University of New South Wales. His Honour’s lecture was entitled ‘Violence Against Women: The Dimension of Fear’ and sought to develop a particular theme on which he had lectured the previous year — namely, the underappreciated importance of what his Honour then termed the ‘forgotten freedom’, being freedom from fear, to contemporary human rights discourse. As his Honour’s title on this most recent occasion indicates, his concern was with violence against women (and contemporary legislative and policy efforts, both Australian and international, to ameliorate or eradicate the problem). As the title of the present piece also hopefully indicates, my concern in responding critically here to his Honour’s intervention into debates surrounding violence against women is to examine certain (of his) assumptions about culture and tradition.