Darryn Jensen

Private Law: Key Encounters with Public Law

The relationship between private and public law and policy has long been the focus of critical attention, but recent years have seen the intensification of a significant number of ‘public’ pressures on private law. These have taken the form of the growing influences of statutory intervention, public regulation, corporate globalisation, class actions and constitutional and international human rights norms. Such developments increasingly call into question the capacity of private law to operate in isolation from public law, public institutions and public policy goals. They invite a critical re-examination of the ways in which private and public law and the values and aims underpinning these fields relate to each other. This piece provides a thematic overview and critical analysis of a number of contributions to an edited work carrying the same title. One of the conclusions it reaches is that the challenges that private law faces in its relationship with public law and public policy take the form of a complex set of co-ordination problems. These relate to (1) the co-ordination of the interests of (‘private’) individuals are with those of groups and society as a whole; (2) the relative use of legislative (‘public’) and judicial techniques within private law itself; (3) the co-ordination of public (state) and private (market) resources in the initiation, funding and settlement of private law claims; (4) the co-ordination of the private laws of one state with those of others in the context of globalised markets; (5) the co-ordination of systems of private law rules with ‘public’ (state-run) welfare systems, such as social security, ‘compensation’ and ‘reparation’ schemes, as well as with ‘market’ mechanisms for dealing with risk and harm, such as first and third party insurance systems; and (6) the co-ordination of private law rules with public law rules, such as human rights provisions, administrative law rules and criminal provisions. These multiple co-ordination problems present practical as well as ideological challenges and they can only be resolved through the collective efforts of judges, legislators and policy-makers acting in a closer, more reflexive and reflective relationship of co-operation.

Classifying church-state arrangements: Beyond religious versus secular

1. Introduction: Da Capo: law and religion from the top down, Richard Mohr and Nadirsyah Hosen Part 1: Law state and secularism 2. Classifying church-state arrangements - beyond religious versus secula, Darryn Jensen 3. Christian origins of secularism and the rule of law, Richard Mohr 4. The future of secularism: a critique, Margaret Davies Part 2: Religion and speech in a pluralist society 5. Religion, multiculturalism and legal pluralism, Frank Brennan SJ 6. Religion and freedom of speech in Australia, Katharine Gelber 7. The reasonable audience of religious hatred - the semiotic ideology of anti-vilification laws in Australia, Massimo Leon Part 3 Religion as a factor in legal processes and decisions 8. Religion and security: whats your motive?, Nadirsyah Hosen 9. Religion and justice: atonement as an element of justice in both western law and Christian thought, Cassandra Sharp 10. Why should I do this? Private property, climate change and Christian sacrifice, Paul Babie Part 4: Negotiating religious law and personal beliefs 11. Jewish law in a modern Australian context, Rabbi Jeremy Lawrence 12. Does Australia need a mufti? Analyzing the institution of ifta in an Australian contemporary context, Mohamad Abdalla Afterword: A posteriori: the experience of religion, Nadirsyah Hosen and Richard Mohr