Jarod Burger | Griffith University (original) (raw)

Papers by Jarod Burger

For non-Western scholars, it is almost an inescapable truism that human rights are Eurocentric in... more For non-Western scholars, it is almost an inescapable truism that human rights are Eurocentric in nature. The Universal Declaration of Human Rights (‘UDHR’) adopted in 1948 which has become the foundation for international human rights norms, was created ‘on the ashes of European and American war atrocities’ in the opinion of Islamic scholar Saghaye-Biria (2018, p. 59).

The discourse on whether environmental protection can be guaranteed in the international system o... more The discourse on whether environmental protection can be guaranteed in the international system of state sovereignty is characterised by two camps.
Firstly, the contention is made that ‘sovereignty is no longer an unqualified concept. Manifold new duties have been imposed upon the sovereign State as a result of the progressive development of international law’ (Schrijver, 2021, p. 13). Such authors argue that sovereignty is the nexus around which environmental norms are founded and enforced, due to the development of international law which continues to narrow the sovereign into a normatively responsible international actor. I will call this the ‘sovereigntist’ camp.
Secondly, there exists a countervailing camp which I will call the ‘federalist’ camp, which argues for a ‘federal system of divided authority’ (Penz, 1996, p. 42) to ensure the development and adherence to international environmental norms. The federalist camp is broadly suspicious of sovereigntist arguments. Moreover, because ultimate decision-making power rests at the state level, it is argued that those decisions intensify or are unable to ameliorate local environmental issues. Federalists argue that decision-making schema for environmental issues should be local, ‘where accountability is most effective’ (Penz, 1996, p. 53).
This essay examines the arguments of both and argues in favour of the federalist position.

This essay charts the contemporary issues and opportunities in both countries in relation to SGDs... more This essay charts the contemporary issues and opportunities in both countries in relation to SGDs 1 (No Poverty) and 4 (Quality Education). China is recognised to have achieved the goals of eliminating poverty and providing inclusive and equitable education. On the other hand, PNG is in the lowest levels of development on those goals. This begs the question of how China made its meteoric rise, and what opportunities and lessons may be applicable in PNG’s context.

2016

Modern public international law is characterized by a legalistic milieu of state obligation, norm... more Modern public international law is characterized by a legalistic milieu of state obligation, norm observation, and moral vindication unable to be separated from antecedent history. The nature of compliance with international law has matured from the ‘advent of traditional international law, based on principles of territoriality and state autonomy’, to accountability ‘to international norms without the ability simply to claim lack of continuing consent to those norms’.
This essay assesses the validity of the notion that international law is an ineffective way of regulating state behaviour. By reference to state compliance with the International Covenant on Civil and Political Rights (‘ICCPR’) this essay argues dually that:
1. International law effectively regulates state behaviour, with specific reference to international human rights law.
2. Failures of states to abide by international human rights law (and specifically the ICCPR) does not necessarily undermine the general effectiveness of international law, but simply reflects on the fact that sovereign self-interest is the underlying motivation for compliance, which presents unique challenges for human rights compliance.

The most drastic transformation brought about by the Enlightenment was the shift in religious con... more The most drastic transformation brought about by the Enlightenment was the shift in religious consciousness. Christianity, which was for centuries the foundational nexus of European culture, had left a tradition of values which formed the basis of intellectual and cultural discourse. (Dupré 2004 p. 13) But, ‘alienation from the traditional culture reached a critical point during the Enlightenment’. (Dupré 2004 p. 14) Thereby, the process of the Enlightenment is best understood as a tenuous and discontinuous dialectical movement, as understood by Hegel. At no point did this dialectic favour the traditional discourse of anti-rationalism, or develop into an unambiguously rationalist movement. It is the simultaneous expression of these two productive currents that resulted in Enlightenment thinkers adhering to intellectual and cultural positions which could not be more disparate, but which uniformly emancipated humans from the incorporeal.

Sophocles’ tragedy Antigone articulates the morass of a series of unwinding conceptual juxtaposit... more Sophocles’ tragedy Antigone articulates the morass of a series of unwinding conceptual juxtapositions, symbolised by the two diametrically opposed protagonists; Antigone and Creon. This key conflict is underscored by the dialectical oppositions of divine and human law, family and state, individual and society, or anarchy and law. In its narrative presentation the two opponents are as much embodiments of irreconcilable principles as of steps in the dialectic of law’s formation.

For Costas Douzinas, who views Antigone ‘as a founding text for comprehending human nature’ this is precisely the contention. Douzinas holds that ‘Antigone is as important for the exploration of the origins and force of law and ethics as Freud believed Oedipus was for the foundations of psychoanalysis.’
Thereby, Antigone concerns the interplay of anarchy with law by providing a ‘philosophical foundation of law’. Logically for Douzinas, anarchy is antecedent to law. Because the text is a foundation for law neither protagonist exemplifies anarchy, but instead propound different discourses on law, which becomes the ‘foundation of jurisprudence.’

This paper argues that the structure of the text and its central motifs are allegorical for the o... more This paper argues that the structure of the text and its central motifs are allegorical for the overall functioning of jurisprudence itself, as based on human desire. It is argued The Stranger can be read jurisprudentially to discern the relationship between law and desire as a dialectical one. Meursault exhibits the condition of otherness, because of an insufficient sense of Self. In Hegelian terms, his lack of recognition (and misrecognition) by other people and the symbolic order causes him to exhibit the condition of otherness, which can be understood through psychoanalysis. Only by being other (in the sense that be exhibits the condition of otherness) is the legal order ultimately corrected; Meursault is sentenced to death for his crime. The reason Meursault is characterised as other is because the text represents the ‘interweaving of law and desire’, and therefore can be read jurisprudentially as discerning the underlying basis of law in desire, but also the basis of desire in law, because the dialectical relationship between the two is reciprocal.

Law and culture cannot be disentangled; rather, ‘law is so deeply embedded in the particularities... more Law and culture cannot be disentangled; rather, ‘law is so deeply embedded in the particularities of each culture that carving it out as a separate domain and only later making note of its cultural connections distorts the nature of both law and culture’.
Succinctly, in Roman society the paterfamilias was the head of a Roman household. The title was passed by succession to the oldest living male of the family, who would then hold autocratic authority and legal privilege over the household. It was Roman law and tradition which established the power of the paterfamilias within the community and over his household.
This essay seeks to delineate the origins and purposes of the paterfamilias¸ whose autocratic authority was the foundational nexus of Roman law. Concisely, the matter of inquiry is: ‘What were the origins and purposes of the role of paterfamilias in Roman law, how does that institution compare to modern conceptions of legal personhood, and what value does that legal tradition have for modernity?’
While the essay only seeks to clearly address the institution of paterfamilias with regards to current structures of legal personhood, this discussion foregrounds a larger exegesis on the interplay between Roman culture and law. It also suggests that by looking towards the institutional pedigree accorded to cultural norms, the origins of differences and similarities between legal systems can be discerned.
The essay will broadly consist of two parts, firstly, a detailed analysis on the origins and institutional structure behind the role of paterfamilias, secondly, a critical and comparative analysis of that institution with respect to modern structures of legal personhood.
The origins of the paterfamilias in mos maiorium will be explained, then legal codification of this ancestral right, first beginning in the Twelve Tables. Following this, an explanation of the practical purposes and activities of the office-holder will be provided. The institution of patria potestas will be explained in particular detail, and also the role of paterfamilias as dominus. The patriarchal legal relationship between the paterfamilias and the state will be illustrated, as well as the legal obligations between the paterfamilias and the members of his household, which serves as a microcosm of state power and societal structure, particularly given that the most important social-legal relationship in Rome was between a patron and client. It is important to note that the institution of paterfamilias underwent broad changes throughout the legal history of Rome. Legislation particularly limited the rights of the paterfamilias in the imperial period, as state institutions became more powerful and ubiquitous, the legislation became more complete, and seismic changes in Roman society forced changes in national culture. This essay focuses on giving a broad overview of the institution, so the information contained within ought to be relevant for any period.

It seems self-contradictory that a journalist should be concerned by a possible invasion of priva... more It seems self-contradictory that a journalist should be concerned by a possible invasion of privacy; for most journalists ‘the right to privacy is easily overridden by a more pressing concern for the public’s right to know’, even though the codes of journalism organizations recognize a duty to protect privacy. Privacy rights axiomatically oppose freedom of expression, and if those rights are extensive they might encourage self-censorship or be construed as prior restraint on journalists. Yet privacy protection ultimately takes precedence over countervailing interests in societal attitudes. The result is a situation where journalists have a utilitarian ethical obligation to inform the public, but members of the public want to enjoy a right to privacy which has been framed as a fundamental human right, but merely a qualified legal right.

British rule in India can be succinctly viewed as a colonial knowledge project in which the colon... more British rule in India can be succinctly viewed as a colonial knowledge project in which the colonisers' knowledge and control originated from the use of 'investigative modalities'. 1 British knowledge of India allowed 'the British to classify, categorise, and bound the vast social world that was India so that it could be controlled'. 2 The very usage of these investigative modalities defined the British as culturally hegemonic in the subcontinent, 3 and influenced the development of social and cultural tradition. In British India the caste system came to be the primary modality by which the British organised anthropological knowledge and effected colonial rule. The British used caste in their institutions of government in a way the subcontinent had never before seen, and stratified caste groups into a rigid hierarchy. Indeed, the British implemented legal codes along caste lines, criminalised entire caste groups, and restricted land rights based on caste. 4 Enumerating caste as the basic category for ethnographic description became formalised and canonised. There was an obvious institutional push towards statistical data, and towards the end of the 19 th-century the relentless systematisation of official knowledge about India had led to the standardisation of the subject matter of colonial ethnology. While caste existed long before the British arrived in the subcontinent, a narrative has emerged amongst scholars suggesting that the pre-colonial caste system could hardly be more dissimilar to the caste system in the colonial era. The question therefore emerges: To what extent has India's caste system been 'invented' by the British? In answering it is necessary first to assess the historical basis of the caste system, and then compare the varying degrees of flexibility, and legal utility of the caste system during the colonial and pre-colonial periods.

2016