https://hdl.handle.net/2123/897 2026-06-09T08:49:25Z 2026-06-09T08:49:25Z van Krieken, Robert https://hdl.handle.net/2123/967 2026-04-22T01:54:30Z 2004-05-01T00:00:00Z

Legal Reasoning as a Field of Knowledge Production: Luhmann, Bourdieu and Law’s Autonomy van Krieken, Robert This paper pursues an improved theoretical understanding of the particular position of legal rationality in relation to other, competing, modes of thinking about human behaviour and social institutions. Against the background of the existing literature on the role of scientific expert evidence in legal proceedings, the paper critically reconstructs Luhmann’s arguments concerning the combined normative or operational “closure” and “cognitive openness” of the legal system, and relates these arguments to Bourdieu’s work on the internal functioning of the juridical “field”. It then puts those conceptual insights “to work” with reference to a number of empirical examples of the role of extra-legal forms of knowledge - in particular, history and anthropology - within the Australian High Court and Federal Court jurisprudence regarding native title.

2004-05-01T00:00:00Z van Krieken, Robert https://hdl.handle.net/2123/917 2026-04-22T01:54:29Z 2006-05-10T00:00:00Z

The sovereignty of the governed van Krieken, Robert This paper examines the significance of the High Court cases on ‘freedom of communication’ in the 1990s for the nature of sovereignty in Australia. Rather than cutting the King’s head off, as Foucault urged us to do, these cases indicate the ways in which ‘the King’ has become equated with ‘the people’ under liberal democracy, as well as how this King has instead acquired a second head. Alongside Parliament as an expression of ‘the will of the people’, the High Court itself functions as the representative of the Constitution which is also seen as gaining its authority from ‘the people’. The paper concludes with some brief observations on the implications of these legal developments for a sociological understanding of the salience of popular sovereignty and how the mechanisms of political power actually operate when organised around a purely abstract conception of ‘the people’.

2006-05-10T00:00:00Z van Krieken, Robert https://hdl.handle.net/2123/916 2026-04-22T01:54:24Z 2006-05-10T00:00:00Z

Crime, government and civilization: Rethinking Elias in Criminology van Krieken, Robert The placement of criminal law under the control of the public authority of the sovereign or the state has always been part of an attempt to civilize its operation, both restraining the workings of law on those inflicting particular kinds of harms, and rendering those workings, supposedly, more effective. However, the reconfiguration of the authority of the state in relation to criminal law since the 1970s has led most criminologists to reject the whole notion of a long-term civilizing process encompassing criminal law, turning instead to analyses of the inner logic of the various new responses to crime characterizing advanced liberal societies over the past three decades. This article outlines the major features of contemporary crime control and punishment identified within this approach: the transition from disciplinary modes of exercising power to ‘governing through freedom’, the emphasis on ‘designing out crime’ or actuarial justice, and the changed place of emotions in ‘affective governance’, including a turn to popular punitiveness. It then identifies some central empirical and conceptual problems shared by these accounts of contemporary crime control, and outlines the contribution that Elias’s work on long-term processes of civilization and decivilization can make not just to understanding the historical development of punishment, but also current developments across the whole field of criminal justice, focusing on the examples of restorative justice and popular punitiveness.

2006-05-10T00:00:00Z van Krieken, Robert https://hdl.handle.net/2123/896 2026-04-22T01:54:26Z 2006-05-04T00:00:00Z

Kumarangk (Hindmarsh Island) and the politics of natural justice under settler-colonialism van Krieken, Robert This paper examines the progression of the Kumarangk (Hindmarsh Island) case, and the legal construction of public participation in the making of political decsions. In the process of examining the politics of competing interests in land, the paper reflects on the challenge of the tension between Indigenous interests in land and developmentalism in relation to the Australian jurisprudence of procedural fairness and natural justice. The argument running through the article concerns the question of how the liberal restraint on power, where that power creates rather than infringes upon rights, may also play its role in the maintenance of relations of settler-colonial dispossession.

2006-05-04T00:00:00Z