Academic literature on the topic 'Commons Law and legislation England London History'

IN 1839, G. A. WALKER, a London surgeon, published Gatherings from Graveyards, Particularly Those in London. Three years later Parliament appointed a House of Commons select committee to investigate “the evils arising from the interment of bodies” in large towns and to consider legislation to resolve the problem.1 Walker’s study opens with a comprehensive history of the modes of interment among all nations, showing the wisdom of ancient practices that removed the dead from the confines of the living. The second portion of the book describes the pathological state of forty-three metropolitan graveyards in an effort to convince the public of the need for legislative interference by the government to prohibit burials in the vicinity of the living.2 Walker’s important work attracted the attention of Parliament and social reformers because of his comprehensive representation of the problem of graveyards, especially among the poor districts of London; his rudimentary statistics that, in effect, isolated them from the rest of the society; and his unbending insistence that national legislators solve the problem. These three impulses influenced the way Edwin Chadwick, secretary to the New Poor Law Commission from 1834 to 1842 and commissioner for the Board of Health from 1848 to 1852, identified and represented the problem of corpses and graveyards in his A Supplementary Report on the Results of a Special Inquiry into the Practice of Interment in Towns (1843).

AbstractThe recent decision of the United Kingdom Supreme Court in Regina (Hodkin and another) v Registrar General for Births, Deaths and Marriages concerned the registration of the premises belonging to the Church of Scientology in London as a place of worship, specifically for the purpose of enabling a marriage to take place there which would be valid in law. This article examines the continuing significance of a registered place of worship in the English law rules on formalities of marriage. It provides a brief history of the role of religion in the solemnization of marriages in England and Wales, and the emergence of the “place of worship” as a constituent element in the celebration of a valid marriage. The role of marriage at a registered place of worship in the current legislation governing the formalities of marriage is considered, along with the impact on that scheme of the Marriage (Same Sex Couples) Act 2013. The exceptional character of the approach adopted by English law is highlighted by a comparative survey of laws on the solemnization of marriages, which also demonstrates some of the problems arising out of alternative solutions. Finally, recent attempts to reform the law are noted, followed by some concluding remarks on possible future developments.

BASTARDYAll children born before matrimony, or so long after the death of the husband as to render it impossible that the child could be begotten by him, are bastards.– Cro. Jac. 451William Toone: The Magistrates Manual, 1817 (66)On 4 September 1832, the body of a newborn baby boy was found washed up on the shore at the port town of Fremantle, Western Australia. As the result of an inquest into the child’s suspicious death, a 20-year-old, unmarried woman named Mary Summerland was accused of concealing his birth. In October 2014, 25-year-old Irish backpacker Caroline Quinn faced court in Perth, Western Australia, over claims that she concealed the birth of her stillborn child after giving birth in the remote north west town of Halls Creek during May of the same year. Both women denied the existence of their children, both appear to have given birth to their “illegitimate” babies alone, and both women claimed that they did not know that they had ever been pregnant at all. In addition, both women hid the body of their dead child for several days while the people they lived with or were close to, did not appear to notice that the mother of the child had had a baby. In neither case did any person associated with either woman seek to look for the missing child after it had been born.Despite occurring 182 years apart, the striking similarities between these cases could lead to the assumption that it is almost as if there were a written script of behaviour that would explain the actions of both young women. Close examination of the laws surrounding child murder, infanticide and concealment of birth reveals evidence of similar behaviours being enacted by women as far back as the 1600s (and earlier), and all are shaped in response to the legal frameworks that prosecuted women who gave birth outside of marriage.This article traces the history of child murder law from its formation in England in the 1600s and explores how early moral assumptions concerning unmarried mothers echoed through the lived experiences of women who killed their illegitimate babies in colonial Western Australia, and continue to resonate in the treatment of, and legal response to, women accused of similar crimes in the present day. The Unlicensed ChildThe unlicensed child is a term coined by Swain and Howe to more accurately define the social matrix faced by single women and their children in Australia. The term seeks to emphasise the repressive and controlling religious, legal and social pressures that acted on Australian women who had children outside marriage until the mid-1970s (xxi, 1, 92, 94). For the purposes of this article, I extend Swain and Howe’s term the unlicensed child to coin the term the unlicensed mother. Following on from Swain and Howe’s definition, if the children of unmarried mothers did not have a license to be born, it is essential to acknowledge that their mothers did not have a license to give birth. Women who had children without social and legal sanction gave birth within a society that did not allocate them “permission” to be mothers, something that the corporeality of pregnancy made it impossible for them not to be. Their own bodies—and the bodies of the babies growing inside them—betrayed them. Unlicensed mothers were punished socially, religiously, legally and financially, and their children were considered sinful and inferior to children who had married parents simply because they had been born (Scheper-Hughes 410). This unspoken lack of authorisation to experience the unavoidably innate physicality of pregnancy, birth and motherhood, in turn implies that, until recently unmarried mothers did not have license to be mothers. Two MothersAll that remains of the “case” of Mary Summerland is a file archived at the State Records Office of Western Australia under the title CONS 3472, Item 10: Rex V Mary Summerland. Yet revealed within those sparse documents is a story echoed by the events surrounding Caroline Quinn nearly two hundred years later. In September 1832, Mary Summerland was an unmarried domestic servant living and working in Fremantle when the body of a baby was found lying on a beach very close to the settlement. Western Australia had only been colonized by the British in 1829. The discovery of the body of an infant in such a tiny village (colonial Fremantle had a population of only 436 women and girls out of 1341 non-Aboriginal emigrants) (Gardiner) set in motion an inquest that resulted in Mary Summerland being investigated over the suspicious death of the child.The records suggest that Mary may have given birth, apparently alone, over a week prior to the corpse of the baby being discovered, yet no one in Fremantle, including her employer and her family, appeared to have noticed that Mary might have been pregnant, or that she had given birth to a child. When Mary Summerland was eventually accused of giving birth to the baby, she strongly denied that she had ever been pregnant, and denied being the mother of the child. It is not known how her infant ended up being disposed of in the ocean. It is also not known if Mary was eventually charged with concealment or child murder, but in either scenario, the case against her was dismissed as “no true bill” when she faced her trial. The details publically available on the case of Caroline Quinn are also sparse. Even the sex of her child has not been revealed in any of the media coverage of the event. Yet examination of the limited details available on her charge of “concealment of birth” reveal similarities between her behaviours and those of Mary Summerland.In May 2014 Caroline Quinn had been “travelling with friends in the Kimberly region of Western Australia” (Lee), and, just as Mary did, Caroline claims she “did not realise that she was pregnant” when she went into labour (Independent.ie). She appears, like Mary Summerland, to have given birth alone, and also like Mary, when her child died due to unexplained circumstances she hid the corpse for several days. Also echoing Mary’s story, no person in the sparsely populated Hall’s Creek community (the town has a populace of 1,211) or any friends in Caroline’s circle of acquaintances appears to have noticed her pregnancy, nor did they realise that she had given birth to a baby until the body of the child was discovered hidden in a hotel room several days after her or his birth. The media records are unclear as to whether Caroline revealed her condition to her friends or whether they “discovered” the body without her assistance. The case was not brought to the attention of authorities until Caroline’s friends took her to receive medical attention at the local hospital and staff there notified the police.Media coverage of the death of Caroline Quinn’s baby suggests her child was stillborn or died soon after birth. As of 13 August 2014 Caroline was granted leave by the Chief Magistrate to return home to Ireland while she awaited her trial, as “without trivialising the matter, nothing more serious was alleged than the concealing of the birth” (Collins, "Irish Woman"). Caroline Quinn was not required to return to Australia to appear at her trial and when the case was presented at the Perth Magistrates Court on Thursday 2 October, all charges against her were dropped as the prosecutor felt “it was not in the public interest” to proceed with legal action (Collins, "Case").Statutory MarginalisationTo understand the similarities between the behaviours of, and legal and medical response to, Mary Summerland and Caroline Quinn, it is important to situate the deaths of their children within the wider context of child murder, concealment of birth and “bastardy” law. Tracing the development of these methods of law-making clarifies the parallels between much of the child murder, infanticide and concealment of birth narrative that has occurred in Western Australia since non-Aboriginal settlement.Despite the isolated nature of Western Australia, the nearly 400 years since the law was formed in England, and the extremely remote rural locations where both these women lived and worked, their stories are remarkably alike. It is almost as if there were a written script and each member of the cast knew what role to play: both Mary and Caroline knew to hide their pregnancies, to deny the overwhelmingly traumatic experience of giving birth alone, and to conceal the corpses of their babies. The fathers of their children appear to have cut off any connection to the women or their child. The family, friends, or employers of the parents of the dead babies knew to pretend that they did not know that the mother was pregnant or who the father was. The police and medical officers knew to charge these women and to collect evidence that could be used to simultaneously meet the needs of the both prosecution and the defence when the cases were brought to trial.In reference to Mary Summerland’s case, in colonial Western Australia when a woman gave birth to an infant who died under suspicious circumstances, she could be prosecuted with two charges: “child murder” and/or “concealment of birth”. It is suggestive that Mary may have been charged with both. The laws regarding these two offences were focused almost exclusively on the deaths of unlicensed children and were so deeply interconnected they are difficult to untangle. For Probyn, shame pierces the centre of who we think we are, “what makes it remarkable is that it reveals with precision our values, hopes and aspirations, beyond the generalities of good manners and cultured norms” (x). Dipping into the streams of legal and medical discourse that flow back to the seventeenth century highlights the pervasiveness of discourses marginalising single women and their children. This situates Mary Summerland and Caroline Quinn within a ‘burden on society’ narrative of guilt, blame and shame that has been in circulation for over 500 years, and continues to resonate in the present (Coull).An Act to Prevent the Destroying and Murthering of Bastard ChildrenIn England prior to the 17th century, penalties for extramarital sex, the birth and/or maintenance of unlicensed children or for committing child murder were expressed through church courts (Damme 2-6; Rapaport 548; Butler 61; Hoffer and Hull 3-4). Discussion of how the punishment of child murder left the religious sphere and came to be regulated by secular laws that were focused exclusively on the unlicensed mother points to two main arguments: firstly, the patriarchal response to unlicensed (particularly female) sexuality; and secondly, a moral panic regarding a perceived rise in unlicensed pregnancies in women of the lower classes, and the resulting financial burden placed on local parishes to support unwanted, unlicensed children (Rapaport 532, 48-52; McMahon XVII, 126-29; Osborne 49; Meyer 3-8 of 14). In many respects, as Meyer suggests, “the legal system subtly encouraged neonaticide through its nearly universally negative treatment of bastard children” (240).The first of these “personal control laws” (Hoffer and Hull 13) was the Old Poor Law created by Henry VIII in 1533, and put in place to regulate all members of English society who needed to rely on the financial assistance of the parish to survive. Prior to 1533, “by custom the children of the rich depended on their relations, while the ‘fatherless poor’ relied on the charity of the monastic institutions and the municipalities” (Teichman 60-61). Its implementation marks the historical point where the state began to take responsibility for maintenance of the poor away from the church by holding communities responsible for “the problem of destitution” (Teichman 60-61; Meyer 243).The establishment of the poor law system of relief created a hierarchy of poverty in which some poor people, such as those suffering from sickness or those who were old, were seen as worthy of receiving support, while others, who were destitute as a result of “debauchery” or other self-inflicted means were seen as undeserving and sent to a house of correction or common gaol. Underprivileged, unlicensed mothers and their children were seen to be part of the category of recipients unfit for help (Jackson 31). Burdens on SocietyIt was in response to the narrative of poor unlicensed women and their children being undeserving fiscal burdens on law abiding, financially stretched community members that in 1576 a law targeted specifically at holding genetic parents responsible for the financial maintenance of unlicensed children entered the secular courts for the first time. Called the Elizabethan Poor Law it was enacted in response to the concerns of local parishes who felt that, due to the expenses exacted by the poor laws, they were being burdened with the care of a greatly increased number of unlicensed children (Jackson 30; Meyer 5-6; Teichman 61). While the 1576 legislation prosecuted both parents of unlicensed children, McMahon interprets the law as being created in response to a blend of moral and economic forces, undergirded by a deep, collective fear of illegitimacy (McMahon 128). By the 1570s “unwed mothers were routinely whipped and sent to prison” (Meyer 242) and “guardians of the poor” could force unlicensed mothers to wear a “badge” (Teichman 63). Yet surprisingly, while parishes felt that numbers of unlicensed children were increasing, no concomitant rise was actually recorded (McMahon 128).The most damning evidence of the failure of this law, was the surging incidence of infanticide following its implementation (Rapaport 548-49; Hoffer and Hull 11-13). After 1576 the number of women prosecuted for infanticide increased by 225 percent. Convictions resulting in unlicensed mothers being executed also rose (Meyer 246; Hoffer and Hull 8, 18).Infanticide IncreasesBy 1624 the level of infanticide in local communities was deemed to be so great An Act to Prevent the Destroying and Murthering of Bastard Children was created. The Act made child murder a “sex-specific crime”, focused exclusively on the unlicensed mother, who if found guilty of the offence was punished by death. Probyn suggests that “shame is intimately social” (77) and indeed, the wording of An Act to Prevent highlights the remarkably similar behaviours enacted by single women desperate to avoid the shame and criminal implication linked to the social position of unlicensed mother: Whereas many lewd Women that have been delivered of Bastard Children, to avoyd their shame and to escape punishment [my italics], doe secretlie bury, or conceale the Death of their Children, and after if the child be found dead the said Women doe alleadge that the said Children were borne dead;…For the preventing therefore of this great Mischiefe…if any Woman…be delivered of any issue of the Body, Male or Female, which being born alive, should by the Lawes of this Realm be a bastard, and that she endeavour privatlie either by drowning or secret burying thereof, or any other way, either by herselfe of the procuring of others, soe to conceale the Death thereof, as that it may not come to light, whether it be borne alive or not, but be concealed, in every such Case the Mother so offending shall suffer Death… (Davies 214; O'Donovan 259; Law Reform Commission of Western Australia 104; Osborne 49; Rose 1-2; Rapaport 548). An Act to Prevent also “contained an extraordinary provision which was a reversion of the ordinary common law presumption of dead birth” (Davies 214), removing the burden of proof from the prosecution and placing it on the defence (Francus 133; McMahon 128; Meyer 2 of 14). The implication being that if the dead body of a newborn, unlicensed baby was found hidden, it was automatically assumed that the child had been murdered by their mother (Law Reform Commission of Western Australia 104; Osborne 49; Rapaport 549-50; Francus 133). This made the Act unusual in that “the offence involved was the concealment of death rather than the death itself” (O'Donovan 259). The only way an unlicensed mother charged with child murder was able to avoid capital punishment was to produce at least one witness to give evidence that the child was “borne dead” (Law Reform Commission of Western Australia 104; Meyer 238; McMahon 126-27).Remarkable SimilaritiesClearly, the objective of An Act to Prevent was not simply to preserve infant life. It is suggestive that it was enacted in response to women wishing to avoid the legal, social, corporal and religious punishment highlighted by the implementation of the poor law legislation enacted throughout earlier centuries. It is also suggestive that these pressures were so powerful that threat of death if found guilty of killing their neonate baby was not enough to deter women from concealing their unlicensed pregnancies and committing child murder. Strikingly analogous to the behaviours of Mary Summerland in 19th century colonial Western Australia, and Caroline Quinn in 2014, the self-preservation implicit in the “strategies of secrecy” (Gowing 87) surrounding unlicensed birth and child murder often left the mother of a dead baby as the only witness to her baby’s death (McMahon xvii 49-50).An Act to Prevent set in motion the legislation that was eventually used to prosecute Mary Summerland in colonial Western Australia (Jackson 7, Davies, 213) and remnants of it still linger in the present where they have been incorporated into the ‘concealment of birth law’ that prosecuted Caroline Quinn (Legal Online TLA [10.1.182]).Changing the ‘Script’Shame runs like a viral code through the centuries to resonate within the legal response to women who committed infanticide in colonial Western Australia. It continues on through the behaviours of, and legal responses to, the story of Caroline Quinn and her child. As Probyn observes, “shame reminds us about the promises we keep to ourselves” in turn revealing our desire for belonging and elements of our deepest fears (p. x). While Caroline may live in a society that no longer outwardly condemns women who give birth outside of marriage, it is fascinating that the suite of behaviours manifested in response to her pregnancy and the birth of her child—by herself, her friends, and the wider community—can be linked to the narratives surrounding the formation of “child murder” and “concealment” law nearly 400 years earlier. Caroline’s narrative also encompasses similar behaviours enacted by Mary Summerland in 1832, in particular that Caroline knew to say that her child was “born dead” and that she had merely concealed her or his body—nothing more. This behaviour appears to have secured the release of both women as although both Mary and Caroline faced criminal investigation, neither was convicted of any crime. Yet, neither of these women or their small communities were alone in their responses. My research has uncovered 55 cases linked to child murder in Western Australia and the people involved in all of these incidences share unusually similar behaviours (Gardiner). Perhaps, it is only through the wider community becoming aware of the resonance of child murder law echoing through the centuries, that certain women who are pregnant with unwanted children will be able to write a different script for themselves, and their “unlicensed” children. ReferencesButler, Sara, M. "A Case of Indifference? Child Murder in Later Medieval England." Journal of Women's History 19.4 (2007): 59-82. Collins, Padraig. "Case against Irish Woman for Concealing Birth Dropped." The Irish Times 2 Oct. 2014. ---. "Irish Woman Held for Hiding Birth in Australia Allowed Return Home." The Irish Times 13 Aug. 2014. Coull, Kim. “The Womb Artist – A Novel: Translating Late Discovery Adoptee Pre-Verbal Trauma into Narrative”. Dissertation. Perth, WA: Edith Cowan University, 2014.Damme, Catherine. "Infanticide: The Worth of an Infant under Law." Medical History 22.1 (1978): 1-24. Davies, D.S. "Child-Killing in English Law." The Modern Law Review 1.3 (1937): 203-23. Dickinson, J.R., and J.A. Sharpe. "Infanticide in Early Modern England: The Court of Great Sessions at Chester, 1650-1800." Infanticide: Historical Perspectives on Child Murder and Concealment, 1550-2000. Ed. Mark Jackson. Hants: Ashgate, 2002. 35-51.Francus, Marilyn. "Monstrous Mothers, Monstrous Societies: Infanticide and the Rule of Law in Restoration and Eighteenth-Century England." Eighteenth-Century Life 21.2 (1997): 133-56. Gardiner, Amanda. "Sex, Death and Desperation: Infanticide, Neonaticide and Concealment of Birth in Colonial Western Australia." Dissertation. Perth, WA: Edith Cowan University, 2014.Gowing, Laura. "Secret Births and Infanticide in Seventeenth-Century England." Past & Present 156 (1997): 87-115. Hoffer, Peter C., and N.E.H. Hull. Murdering Mothers: Infanticide in England and New England 1558-1803. New York: New York University Press, 1984. Independent.ie. "Irish Woman Facing Up to Two Years in Jail for Concealing Death of Her Baby in Australia." 8 Aug. 2014. Law Reform Commission of Western Australia. "Chapter 3: Manslaughter and Other Homicide Offences." Review of the Law of Homicide: Final Report. Perth: Law Reform Commission of Western Australia, 2007. 85-117.Lee, Sally. "Irish Backpacker Charged over the Death of a Baby She Gave Birth to While Travelling in the Australia [sic] Outback." Daily Mail 8 Aug. 2014. Legal Online. "The Laws of Australia." Thomson Reuters 2010. McMahon, Vanessa. Murder in Shakespeare's England. London: Hambledon and London, 2004. Meyer, Jon'a. "Unintended Consequences for the Youngest Victims: The Role of Law in Encouraging Neonaticide from the Seventeenth to Nineteenth Centuries." Criminal Justice Studies 18.3 (2005): 237-54. O'Donovan, K. "The Medicalisation of Infanticide." Criminal Law Review (May 1984): 259-64. Osborne, Judith A. "The Crime of Infanticide: Throwing Out the Baby with the Bathwater." Canadian Journal of Family Law 6 (1987): 47-59. Rapaport, Elizabeth. "Mad Women and Desperate Girls: Infanticide and Child Murder in Law and Myth." Fordham Urban Law Journal 33.2 (2006): 527-69.Rose, Lionel. The Massacre of the Innocents: Infanticide in Britain, 1800-1939. London: Routledge & Kegan, 1986. Scheper-Hughes, Nancy. Death without Weeping: The Violence of Everyday Life in Brazil. Los Angeles: University of California Press, 1992. Swain, Shurlee, and Renate Howe. Single Mothers and Their Children: Disposal, Punishment and Survival in Australia. Cambridge: Cambridge University Press, 1995. Teichman, Jenny. Illegitimacy: An Examination of Bastardy. Oxford: Cornell University Press, 1982. Toone, William. The Magistrate's Manual: Or a Summary of the Duties and Powers of a Justice of the Peace. 2nd ed. London: Joseph Butterworth and Son, 1817.

IntroductionAccounts of criminals, their victims, and their pursuers have become entrenched within the sphere of popular culture; most obviously in the genres of true crime and crime fiction. The centrality of the pursuer in the form of the detective, within these stories, dates back to the nineteenth century. This, often highly-stylised and regularly humanised protagonist, is now a firm feature of both factual and fictional accounts of crime narratives that, today, regularly focus on the energies of the detective in solving a variety of cases. So familiar is the figure of the detective, it seems that these men and women—amateurs and professionals—have always had an important role to play in the pursuit and punishment of the wrongdoer. Yet, the first detectives were forced to overcome significant resistance from a suspicious public. Some early efforts to reimagine punishment and to laud the detective include articles written by Charles Dickens; pieces on public hangings and policing that reflect the great Victorian novelist’s commitment to shed light on, through written commentaries, a range of important social issues. This article explores some of Dickens’s lesser-known pieces, that—appearing in daily newspapers and in one of his own publications Household Words—helped to change some common perceptions of punishment and policing. Image 1: Harper's Magazine 7 December 1867 (Charles Dickens Reading, by Charles A. Barry). Image credit: United States Library of Congress Prints and Photographs Division. A Reliance on the Scaffold: Early Law Enforcement in EnglandCrime control in 1720s England was dependent upon an inconsistent, and by extension ineffective, network of constables and night watchmen. It would be almost another three decades before Henry Fielding established the Bow Street Foot Patrol, or Bow Street Runners, in 1749, “six men in blue coats, patrolling the area within six miles of Charing Cross” (Worsley 35). A large-scale, formalised police force was attempted by Pitt the Younger in 1785 with his “Bill for the Further prevention of Crime and for the more Speedy Detection and Punishment of Offenders against the Peace” (Lyman 144). The proposed legislation was withdrawn due to fierce opposition that was underpinned by fears, held by officials, of a divestment of power to a new body of law enforcers (Lyman 144).The type of force offered in 1785 would not be realised until the next century, when the work of Robert Peel saw the passing of the Metropolitan Police Act 1829. The Police Act, which “constituted a revolution in traditional methods of law enforcement” (Lyman 141), was focused on the prevention of crime, “to reassure the lawful and discourage the wrongdoer” (Hitchens 51). Until these changes were implemented violent punishment, through the Waltham Black Act 1723, remained firmly in place (Cruickshanks and Erskine-Hill 359) as part of the state’s arsenal against crime (Pepper 473).The Black Act, legislation often referred to as the ‘Bloody Code’ as it took the number of capital felonies to over 350 (Pepper 473), served in lieu of consistency and cooperation, across the country, in relation to the safekeeping of the citizenry. This situation inevitably led to anxieties about crime and crime control. In 1797 Patrick Colquhoun, a magistrate, published A Treatise on the Police of the Metropolis in which he estimated that, out of a city population of just under 1 million, 115,000 men and women supported themselves “in and near the Metropolis by pursuits either criminal-illegal-or immoral” (Lyman 144). Andrew Pepper highlights tensions between “crime, governance and economics” as well as “rampant petty criminality [… and] widespread political corruption” (474). He also notes a range of critical responses to crime and how, “a particular kind of writing about crime in the 1720s demonstrated, perhaps for the first time, an awareness of, or self-consciousness about, this tension between competing visions of the state and state power” (Pepper 474), a tension that remains visible today in modern works of true crime and crime fiction. In Dickens’s day, crime and its consequences were serious legal, moral, and social issues (as, indeed, they are today). An increase in the crime rate, an aggressive state, the lack of formal policing, the growth of the printing industry, and writers offering diverse opinions—from the sympathetic to the retributive—on crime changed crime writing. The public wanted to know about the criminal who had disturbed society and wanted to engage with opinions on how the criminal should be stopped and punished. The public also wanted to be updated on changes to the judicial system such as the passing of the Judgement of Death Act 1823 which drastically reduced the number of capital crimes (Worsley 122) and how the Gaols Act, also of 1823, “moved tentatively towards national prison reform” (Gattrell 579). Crimes continued to be committed and alongside the wrongdoers were readers that wanted to be diverted from everyday events by, but also had a genuine need to be informed about, crime. A demand for true crime tales demonstrating a broader social need for crimes, even the most minor infractions, to be publicly punished: first on the scaffold and then in print. Some cases were presented as sensationalised true crime tales; others would be fictionalised in short stories and novels. Standing Witness: Dickens at the ScaffoldIt is interesting to note that Dickens witnessed at least four executions in his lifetime (Simpson 126). The first was the hanging of a counterfeiter, more specifically a coiner, which in the 1800s was still a form of high treason. The last person executed for coining in England was in early 1829; as Dickens arrived in London at the end of 1822, aged just 10-years-old (Simpson 126-27) he would have been a boy when he joined the crowds around the scaffold. Many journalists and writers who have documented executions have been “criticised for using this spectacle as a source for generating sensational copy” (Simpson 127). Dickens also wrote about public hangings. His most significant commentaries on the issue being two sets of letters: one set published in The Daily News (1846) and a second set published in The Times (1849) (Brandwood 3). Yet, he was immune from the criticism directed at so many other writers, in large part, due to his reputation as a liberal, “social reformer moved by compassion, but also by an antipathy toward waste, bureaucratic incompetence, and above all toward exploitation and injustice” (Simpson 127). As Anthony Simpson points out, Dickens did not sympathise with the condemned: “He wrote as a realist and not a moralist and his lack of sympathy for the criminal was clear, explicit and stated often” (128). Simpson also notes that Dickens’s letters on execution written in 1846 were “strongly supportive of total abolition” while later letters, written in 1849, presented arguments against public executions rather than the practice of execution. In 1859 Dickens argued against pardoning a poisoner. While in 1864 he supported the execution of the railway carriage murderer Franz Müller, explaining he would be glad to abolish both public executions and capital punishment, “if I knew what to do with the Savages of civilisation. As I do not, I would rid Society of them, when they shed blood, in a very solemn manner” (in Simpson 138-39) that is, executions should proceed but should take place in private.Importantly, Dickens was consistently concerned about society’s fascination with the scaffold. In his second letter to The Daily News, Dickens asks: round what other punishment does the like interest gather? We read of the trials of persons who have rendered themselves liable to transportation for life, and we read of their sentences, and, in some few notorious instances, of their departure from this country, and arrival beyond the sea; but they are never followed into their cells, and tracked from day to day, and night to night; they are never reproduced in their false letters, flippant conversations, theological disquisitions with visitors, lay and clerical […]. They are tried, found guilty, punished; and there an end. (“To the Editors of The Daily News” 6)In this passage, Dickens describes an overt curiosity with those criminals destined for the most awful of punishments. A curiosity that was put on vile display when a mob gathered on the concourse to watch a hanging; a sight which Dickens readily admitted “made [his] blood run cold” (“Letter to the Editor” 4).Dickens’s novels are grand stories, many of which feature criminals and criminal sub-plots. There are, for example, numerous criminals, including the infamous Fagin in Oliver Twist; or, The Parish Boy’s Progress (1838); several rioters are condemned to hang in Barnaby Rudge: A Tale of the Riots of Eighty (1841); there is murder in The Life and Adventures of Martin Chuzzlewit (1844); and murder, too, in Bleak House (1853). Yet, Dickens never wavered in his revulsion for the public display of the execution as revealed in his “refusal to portray the scene at the scaffold [which] was principled and heartfelt. He came, reluctantly to support capital punishment, but he would never use its application for dramatic effect” (Simpson 141).The Police Detective: A Public Relations ExerciseBy the mid-1700s the crime story was one of “sin to crime and then the gallows” (Rawlings online): “Crimes of every defcription (sic) have their origin in the vicious and immoral habits of the people” (Colquhoun 32). As Philip Rawlings notes, “once sin had been embarked upon, capture and punishment followed” (online). The origins of this can be found in the formula relied upon by Samuel Smith in the seventeenth century. Smith was the Ordinary of Newgate, or prison chaplain (1676–1698), who published Accounts of criminals and their gruesome ends. The outputs swelled the ranks of the already burgeoning market of broadsides, handbills and pamphlets. Accounts included: 1) the sermon delivered as the prisoner awaited execution; 2) a brief overview of the crimes for which the prisoner was being punished; and 3) a reporting of the events that surrounded the execution (Gladfelder 52–53), including the prisoner’s behaviour upon the scaffold and any last words spoken. For modern readers, the detective and the investigation is conspicuously absent. These popular Accounts (1676–1772)—over 400 editions offering over 2,500 criminal biographies—were only a few pence a copy. With print runs in the thousands, the Ordinary earnt up to £200 per year for his efforts (Emsley, Hitchcock, and Shoemaker online). For:penitence and profit made comfortable bedfellows, ensuring true crime writing became a firm feature of the business of publishing. That victims and villains suffered was regrettable but no horror was so terrible anyone forgot there was money to be made. (Franks, “Stealing Stories” 7)As the changes brought about by the Industrial Revolution were having their full impact, many were looking for answers, and certainty, in a period of radical social transformation. Sin as a central motif in crime stories was insufficient: the detective was becoming essential (Franks, “True Crime” 239). “In the nineteenth century, the role of the newly-fashioned detective as an agent of consolation or security is both commercially and ideologically central to the subsequent project of popular crime writing” (Bell 8). This was supported by an “increasing professionalism and proficiency of policemen, detectives, and prosecutors, new understandings about psychology, and advances in forensic science and detection techniques” (Murley 10). Elements now included in most crime narratives. Dickens insisted that the detective was a crucial component of the justice system—a figure to be celebrated, one to take centre stage in the crime story—reflecting his staunch support “of the London Metropolitan Police” (Simpson 140). Indeed, while Dickens is known principally for exposing wretched poverty, he was also interested in a range of legal issues as can be evinced from his writings for Household Words. Image 2: Household Words 27 July 1850 (Front Page). Image credit: Dickens Journals Online. W.H. Wills argued for the acceptance of the superiority of the detective when, in 1850, he outlined the “difference between a regular and a detective policeman” (368). The detective must, he wrote: “counteract every sort of rascal whose only means of existence it avowed rascality, but to clear up mysteries, the investigation of which demands the utmost delicacy and tact” (368). The detective is also extraordinarily efficient; cases are solved quickly, in one example a matter is settled in just “ten minutes” (369).Dickens’s pro-police pieces, included a blatantly promotional, two-part work “A Detective Police Party” (1850). The narrative begins with open criticism of the Bow Street Runners contrasting these “men of very indifferent character” to the Detective Force which is “so well chosen and trained, proceeds so systematically and quietly, does its business in such a workman-like manner, and is always so calmly and steadily engaged in the service of the public” (“Police Party, Part I” 409). The “party” is just that: a gathering of detectives and editorial staff. Men in a “magnificent chamber”, seated at “a round table […] with some glasses and cigars arranged upon it; and the editorial sofa elegantly hemmed in between that stately piece of furniture and the wall” (“Police Party, Part I” 409). Two inspectors and five sergeants are present. Each man prepared to share some of their experiences in the service of Londoners:they are, [Dickens tells us] one and all, respectable-looking men; of perfectly good deportment and unusual intelligence; with nothing lounging or slinking in their manners; with an air of keen observation, and quick perception when addressed; and generally presenting in their faces, traces more or less marked of habitually leading lives of strong mental excitement. (“Police Party, Part I” 410) Dickens goes to great lengths to reinforce the superiority of the police detective. These men, “in a glance, immediately takes an inventory of the furniture and an accurate sketch of the editorial presence” and speak “very concisely, and in well-chosen language” and who present as an “amicable brotherhood” (“Police Party, Part I” 410). They are also adaptable and constantly working to refine their craft, through apeculiar ability, always sharpening and being improved by practice, and always adapting itself to every variety of circumstances, and opposing itself to every new device that perverted ingenuity can invent, for which this important social branch of the public service is remarkable! (“Police Party, Part II” 459)These detectives are also, in some ways, familiar. Dickens’s offerings include: a “shrewd, hard-headed Scotchman – in appearance not at all unlike a very acute, thoroughly-trained schoolmaster”; a man “with a ruddy face and a high sun-burnt forehead, [who] has the air of one who has been a Sergeant in the army” (“Police Party, Part I” 409-10); and another man who slips easily into the role of the “greasy, sleepy, shy, good-natured, chuckle-headed, un-suspicious, and confiding young butcher” (“Police Party, Part II” 457). These descriptions are more than just attempts to flesh out a story; words on a page reminding us that the author is not just another journalist but one of the great voices of the Victorian era. These profiles are, it is argued here, a deliberate strategy to reassure readers.In summary, police detectives are only to be feared by those residing on the wrong side of the law. For those without criminal intent; detectives are, in some ways, like us. They are people we already know and trust. The stern but well-meaning, intelligent school teacher; the brave and loyal soldier defending the Empire; and the local merchant, a person we see every day. Dickens provides, too, concrete examples for how everyone can contribute to a safer society by assisting these detectives. This, is perfect public relations. Thus, almost singlehandedly, he builds a professional profile for a new type of police officer. The problem (crime) and its solution (the detective) neatly packaged, with step-by-step instructions for citizens to openly support this new-style of constabulary and so achieve a better, less crime-ridden community. This is a theme pursued in “Three Detective Anecdotes” (1850) where Dickens continued to successfully merge “solid lower-middle-class respectability with an intimate knowledge of the criminal world” (Priestman 177); so, proffering the ideal police detective. A threat to the criminal but not to the hard-working and honest men, women, and children of the city.The Detective: As Fact and as FictionThese writings are also a precursor to one of the greatest fictional detectives of the English-speaking world. Dickens observes that, for these new-style police detectives: “Nothing is so common or deceptive as such appearances at first” (“Police Party, Part I” 410). In 1891, Arthur Conan Doyle would write that: “There is nothing so deceptive as an obvious fact” (78). Dickens had prepared readers for the consulting detective Sherlock Holmes: who was smarter, more observant and who had more determination to take on criminals than the average person. The readers of Dickens were, in many respects, positioned as prototypes of Dr John Watson: a hardworking, loyal Englishman. Smart. But not as smart as those who would seek to do harm. Watson needed Holmes to make the world a better place; the subscriber to Household Words needed the police detective.Another article, “On Duty with Inspector Field” (1851), profiled the “well-known hand” responsible for bringing numerous offenders to justice and sending them, “inexorably, to New South Wales” (Dickens 266). Critically this true crime narrative would be converted into a crime fiction story as Inspector Field is transformed (it is widely believed) into the imagined Inspector Bucket. The 1860s have been identified as “a period of awakening for the detective novel” (Ashley x), a predictor of which is the significant sub-plot of murder in Dickens’s Bleak House. In this novel, a murder is committed with the case taken on, and competently solved by, Bucket who is a man of “skill and integrity” a man presented as an “ideal servant” though one working for a “flawed legal system” (Walton 458). Mr Snagsby, of Bleak House, observes Bucket as a man whoseems in some indefinable manner to lurk and lounge; also, that whenever he is going to turn to the right or left, he pretends to have a fixed purpose in his mind of going straight ahead, and wheels off, sharply at the very last moment [… He] notices things in general, with a face as unchanging as the great mourning ring on his little finger, or the brooch, composed of not much diamond and a good deal of setting, which he wears in his shirt. (278) This passage, it is argued here, places Bucket alongside the men at the detective police party in Household Words. He is simultaneously superhuman in mind and manner, though rather ordinary in dress. Like the real-life detectives of Dickens’s articles; he is a man committed to keeping the city safe while posing no threat to law-abiding citizens. ConclusionThis article has explored, briefly, the contributions of the highly-regarded Victorian author, Charles Dickens, to factual and fictional crime writing. The story of Dickens as a social commentator is one that is familiar to many; what is less well-known is the connection of Dickens to important conversations around capital punishment and the rise of the detective in crime-focused narratives; particularly how he assisted in building the professional profile of the police detective. In this way, through fact and fiction, Dickens performed great (if under-acknowledged) public services around punishment and law enforcement: he contributed to debates on the death penalty and he helped to build trust in the radical social project that established modern-day policing.AcknowledgementsThe author offers her sincere thanks to the New South Wales Dickens Society, Simon Dwyer, and Peter Kirkpatrick. The author is also grateful to the reviewers of this article for their thoughtful comments and valuable suggestions. ReferencesAshley, Mike. “Introduction: Seeking the Evidence.” The Notting Hill Mystery. Author. Charles Warren Adams. London: The British Library, 2012. xxi-iv. Bell, Ian A. “Eighteenth-Century Crime Writing.” The Cambridge Companion to Crime Fiction. Ed. Martin Priestman. Cambridge: Cambridge UP, 2003/2006. 7-17.Brandwood, Katherine. “The Dark and Dreadful Interest”: Charles Dickens, Public Death and the Amusements of the People. MA Thesis. Washington, DC: Georgetown University, 2013. 19 Feb. 2017 <https://repository.library.georgetown.edu/bitstream/handle/10822/558266/Brandwood_georgetown_0076M_12287.pdf;sequence=1>.Collins, Philip. Dickens and Crime. London: Macmillan & Co, 1964.Cruickshanks, Eveline, and Howard Erskine-Hill. “The Waltham Black Act and Jacobitism.” Journal of British Studies 24.3 (1985): 358-65.Dickens, Charles. Oliver Twist; or, The Parish Boy’s Progress. London: Richard Bentley,1838.———. Barnaby Rudge: A Tale of the Riots of Eighty. London: Chapman & Hall, 1841. ———. The Life and Adventures of Martin Chuzzlewit. London: Chapman & Hall, 1844.———. “To the Editors of The Daily News.” The Daily News 28 Feb. 1846: 6. (Reprinted in Antony E. Simpson. Witnesses to the Scaffold. Lambertville: True Bill P, 2008. 141–149.)———. “Letter to the Editor.” The Times 14 Nov. 1849: 4. (Reprinted in Antony E. Simpson. Witnesses to the Scaffold. Lambertville: True Bill P, 2008. 149-51.)———. “A Detective Police Party, Part I.” Household Words 1.18 (1850): 409-14.———. “A Detective Police Party, Part II.” Household Words 1.20 (1850): 457-60.———. “Three Detective Anecdotes.” Household Words 1.25 (1850): 577-80.———. “On Duty with Inspector Field.” Household Words 3.64 (1851): 265-70.———. Bleak House. London: Bradbury and Evans, 1853/n.d.Doyle, Arthur Conan. “The Boscombe Valley Mystery.” The Adventures of Sherlock Holmes. London: Penguin, 1892/1981. 74–99.Emsley, Clive, Tim Hitchcock, and Robert Shoemaker. “The Proceedings: Ordinary of Newgate’s Accounts.” Old Bailey Proceedings Online, n.d. 4 Feb. 2017 <https://www.oldbaileyonline.org/static/Ordinarys-accounts.jsp>. Franks, Rachel. “True Crime: The Regular Reinvention of a Genre.” Journal of Asia-Pacific Pop Culture 1.2 (2016): 239-54. ———. “Stealing Stories: Punishment, Profit and the Ordinary of Newgate.” Refereed Proceedings of the 21st Conference of the Australasian Association of Writing Programs: Authorised Theft. Eds. Niloofar Fanaiyan, Rachel Franks, and Jessica Seymour. 2016. 1-11. 20 Mar. 2017 <http://www.aawp.org.au/publications/the-authorised-theft-papers/>.Gatrell, V.A.C. The Hanging Tree: Execution and the English People, 1770-1868. Oxford: Oxford UP, 1996.Gladfelder, Hal. Criminality and Narrative in Eighteenth-Century England. Baltimore: Johns Hopkins UP, 2001.Hitchens, Peter. A Brief History of Crime: The Decline of Order, Justice and Liberty in England. London: Atlantic Books, 2003.Lyman, J.L. “The Metropolitan Police Act of 1829.” Journal of Criminal Law, Criminology and Police Science 55.1 (1964): 141-54.Murley, Jean. The Rise of True Crime: 20th Century Murder and American Popular Culture. Westport: Praeger, 2008.Pepper, Andrew. “Early Crime Writing and the State: Jonathan Wilde, Daniel Defoe and Bernard Mandeville in 1720s London.” Textual Practice 25.3 (2011): 473-91. Priestman, Martin. “Post-War British Crime Fiction.” The Cambridge Companion to Crime Fiction. Ed. Martin Priestman. Cambridge: Cambridge UP, 2003. 173-89.Rawlings, Philip. “True Crime.” The British Criminology Conferences: Selected Proceedings, Volume 1: Emerging Themes in Criminology. Eds. Jon Vagg and Tim Newburn. London: British Society of Criminology (1998). 4 Feb. 2017 <http://www.britsoccrim.org/volume1/010.pdf>.Simpson, Antony E. Witnesses to the Scaffold: English Literary Figures as Observers of Public Executions. Lambertville: True Bill P, 2008.Walton, James. “Conrad, Dickens, and the Detective Novel.” Nineteenth-Century Fiction 23.4 (1969): 446-62.Wills, William Henry. “The Modern Science of Thief-Taking.” Household Words 1.16 (1850): 368-72.Worsley, Lucy. A Very British Murder: The Curious Story of How Crime Was Turned into Art. London: BBC Books, 2013/2014.

IllegitimacyBack in 1987, Gregory Bateson argued that:Kurt Vonnegut gives us wary advice – that we should be careful what we pretend because we become what we pretend. And something like that, some sort of self-fulfilment, occurs in all organisations and human cultures. What people presume to be ‘human’ is what they will build in as premises of their social arrangements, and what they build in is sure to be learned, is sure to become a part of the character of those who participate. (178)The human capacity to marginalise and discriminate against others on the basis of innate and constructed characteristics is evident from the long history of discrimination against people whose existence is ‘illegitimate’, defined as being outside the law. What is inside or outside the law depends upon the context under consideration. For example, in societies such as ancient Greece and the antebellum United States, where slavery was legal, people who were constructed as ‘slaves’ could legitimately be treated very differently from ‘citizens’: free people who benefit from a range of human rights (Northup). The discernment of what is legitimate from that which is illegitimate is thus implicated within the law but extends into the wider experience of community life and is evident within the civil structures through which society is organised and regulated.The division between the legitimate and illegitimate is an arbitrary one, susceptible to changing circumstances. Within recent memory a romantic/sexual relationship between two people of the same sex was constructed as illegitimate and actively persecuted. This was particularly the case for same-sex attracted men, since the societies regulating these relationships generally permitted women a wider repertoire of emotional response than men were allowed. Even when lesbian and gay relationships were legalised, they were constructed as less legitimate in the sense that they often had different rules around the age of consent for homosexual and heterosexual couples. In Australia, the refusal to allow same sex couples to marry perpetuates ways in which these relationships are constructed as illegitimate – beyond the remit of the legislation concerning marriage.The archetypal incidence of illegitimacy has historically referred to people born out of wedlock. The circumstances of birth, for example whether a person was born as a result of a legally-sanctioned marital relationship or not, could have ramifications throughout an individual’s life. Stories abound (for example, Cookson) of the implications of being illegitimate. In some social stings, such as Catherine Cookson’s north-eastern England at the turn of the twentieth century, illegitimate children were often shunned. Parents frequently refused permission for their (legitimate) children to play with illegitimate classmates, as if these children born out of wedlock embodied a contaminating variety of evil. Illegitimate children were treated differently in the law in matters of inheritance, for example, and may still be. They frequently lived in fear of needing to show a birth certificate to gain a passport, for example, or to marry. Sometimes, it was at this point in adult life, that a person first discovered their illegitimacy, changing their entire understanding of their family and their place in the world. It might be possible to argue that the emphasis upon the legitimacy of a birth has lessened in proportion to an acceptance of genetic markers as an indicator of biological paternity, but that is not the endeavour here.Given the arbitrariness and mutability of the division between legitimacy and illegitimacy as a constructed boundary, it is policed by social and legal sanctions. Boundaries, such as the differentiation between the raw and the cooked (Lévi-Strauss), or S/Z (Barthes), or purity and danger (Douglas), serve important cultural functions and also convey critical information about the societies that enforce them. Categories of person, place or thing which are closest to boundaries between the legitimate and the illegitimate can prompt existential anxiety since the capacity to discern between these categories is most challenged at the margins. The legal shenanigans which can result speak volumes for which aspects of life have the potential to unsettle a culture. One example of this which is writ large in the recent history of Australia is our treatment of refugees and asylum seekers and the impact of this upon Australia’s multicultural project.Foreshadowing the sexual connotations of the illegitimate, one of us has written elsewhere (Green, ‘Bordering on the Inconceivable’) about the inconceivability of the Howard administration’s ‘Pacific solution’. This used legal devices to rewrite Australia’s borders to limit access to the rights accruing to refugees upon landing in a safe haven entitling them to seek asylum. Internationally condemned as an illegitimate construction of an artificial ‘migration zone’, this policy has been revisited and made more brutal under the Abbot regime with at least two people – Reza Barati and Hamid Khazaei – dying in the past year in what is supposed to be a place of safety provided by Australian authorities under their legal obligations to those fleeing from persecution. Crock points out, echoing the discourse of illegitimacy, that it is and always has been inappropriate to label “undocumented asylum seekers” as “‘illegal’” because: “until such people cross the border onto Australian territory, the language of illegality is nonsense. People who have no visas to enter Australia can hardly be ‘illegals’ until they enter Australia” (77). For Australians who identify in some ways – religion, culture, fellow feeling – with the detainees incarcerated on Nauru and Manus Island, it is hard to ignore the disparity between the government’s treatment of visa overstayers and “illegals” who arrive by boat (Wilson). It is a comparatively short step to construct this disparity as reflecting upon the legitimacy within Australia of communities who share salient characteristics with detained asylum seekers: “The overwhelmingly negative discourse which links asylum seekers, Islam and terrorism” (McKay, Thomas & Kneebone, 129). Some communities feel themselves constructed in the public and political spheres as less legitimately Australian than others. This is particularly true of communities where members can be identified via markers of visible difference, including indicators of ethnic, cultural and religious identities: “a group who [some 585 respondent Australians …] perceived would maintain their own languages, customs and traditions […] this cultural diversity posed an extreme threat to Australian national identity” (McKay, Thomas & Kneebone, 129). Where a community shares salient characteristics such as ethnicity or religion with many detained asylum seekers they can become fearful of the discourses around keeping borders strong and protecting Australia from illegitimate entrants. MethodologyThe qualitative fieldwork upon which this paper is based took place some 6-8 years ago (2006-2008), but the project remains one of the most recent and extensive studies of its kind. There are no grounds for believing that any of the findings are less valid than previously. On the contrary, if political actions are constructed as a proxy for mainstream public consent, opinions have become more polarised and have hardened. Ten focus groups were held involving 86 participants with a variety of backgrounds including differences in age, gender, religious observance, religious identification and ethnicity. Four focus groups involved solely Muslim participants; six drew from the wider Australian community. The aim was to examine the response of different communities to mainstream Australian media representations of Islam, Muslims, and terrorism. Research questions included: “Are there differences in the ways in which Australian Muslims respond to messages about ‘fear’ and ‘terror’ compared with broader community Australians’ responses to the same messages?” and “How do Australian Muslims construct the perceptions and attitudes of the broader Australian community based on the messages that circulate in the media?” Recent examples of kinds of messages investigated include media coverage of Islamic State’s (ISIS’s) activities (Karam & Salama), and the fear-provoking coverage around the possible recruitment of Australians to join the fighting in Syria and Iraq (Cox). The ten focus groups were augmented by 60 interviews, 30 with respondents who identified as Muslim (15 males, 15 female) and 30 respondents from the broader community (same gender divisions). Finally, a market research company was commissioned to conduct a ‘fear survey’, based on an established ‘fear of rape’ inventory (Aly and Balnaves), delivered by telephone to a random sample of 750 over-18 y.o. Australians in which Muslims formed a deliberative sub-group, to ensure they were over-sampled and constituted at least 150 respondents. The face-to-face surveys and focus groups were conducted by co-author, Dr Anne Aly. General FindingsMuslim respondents indicate a heightened intensity of reaction to media messages around fear and terror. In addition to a generalised fear of the potential impact of terrorism upon Australian society and culture, Muslim respondents experienced a specific fear that any terrorist-related media coverage might trigger hostility towards Muslim Australian communities and their own family members. According to the ‘fear survey’ scale, Muslim Australians at the time of the research experienced approximately twice the fear level of mainstream Australian respondents. Broader Australian community Australian Muslim communityFear of a terrorist attackFear of a terrorist attack combines with the fear of a community backlashSpecific victims: dead, injured, bereavedCommunity is full of general victims in addition to any specific victimsShort-term; intense impactsProtracted, diffuse impactsSociety-wide sympathy and support for specific victims and all those involved in dealing with the trauma and aftermathSociety-wide suspicion and a marginalisation of those affected by the backlashVictims of a terrorist attack are embraced by broader communityVictims of backlash experience hostility from the broader communityFour main fears were identified by Australian Muslims as a component of the fear of terrorism:Fear of physical harm. In addition to the fear of actual terrorist acts, Australian Muslims fear backlash reprisals such as those experienced after such events as 9/11, the Bali bombings, and attacks upon public transport passengers in Spain and the UK. These and similar events were constructed as precipitating increased aggression against identifiable Australian Muslims, along with shunning of Muslims and avoidance of their company.The construction of politically-motivated fear. Although fear is an understandable response to concerns around terrorism, many respondents perceived fears as being deliberately exacerbated for political motives. Such strategies as “Be alert, not alarmed” (Bassio), labelling asylum seekers as potential terrorists, and talk about home-grown terrorists, are among the kinds of fears which were identified as politically motivated. The political motivation behind such actions might include presenting a particular party as strong, resolute and effective. Some Muslim Australians construct such approaches as indicating that their government is more interested in political advantage than social harmony.Fear of losing civil liberties. As well as sharing the alarm of the broader Australian community at the dozens of legislative changes banning people, organisations and materials, and increasing surveillance and security checks, Muslim Australians fear for the human rights implications across their community, up to and including the lives of their young people. This fear is heightened when community members may look visibly different from the mainstream. Examples of the events fuelling such fears include the London police killing of Jean Charles de Menezes, a Brazilian Catholic working as an electrician in the UK and shot in the month following the 7/7 attacks on the London Underground system (Pugliese). In Australia, the case of Mohamed Hannef indicated that innocent people could easily be unjustly accused and wrongly targeted, and even when this was evident the political agenda made it almost impossible for authorities to admit their error (Rix).Feeling insecure. Australian Muslims argue that personal insecurity has become “the new normal” (Massumi), disproportionately affecting Muslim communities in both physical and psychological ways. Physical insecurity is triggered by the routine avoidance, shunning and animosity experienced by many community members in public places. Psychological insecurity includes fear for the safety of younger members of the community compounded by concern that young people may become ‘radicalised’ as a result of the discrimination they experience. Australian Muslims fear the backlash following any possible terrorist attack on Australian soil and describe the possible impact as ‘unimaginable’ (Aly and Green, ‘Moderate Islam’).In addition to this range of fears expressed by Australian Muslims and constructed in response to wider societal reactions to increased concerns over radical Islam and the threat of terrorist activity, an analysis of respondents’ statements indicate that Muslim Australians construct the broader community as exhibiting:Fear of religious conviction (without recognising the role of their own secular/religious convictions underpinning this fear);Fear of extremism (expressed in various extreme ways);Fear of powerlessness (responded to by disempowering others); andFear of political action overseas having political effects at home (without acknowledging that it is the broader community’s response to such overseas events, such as 9/11 [Green ‘Did the world really change?’], which has also had impacts at home).These constructions, extrapolations and understandings by Australian Muslims of the fears of the broader community underpinning the responses to the threat of terror have been addressed elsewhere (Green and Aly). Legitimate Australian MuslimsOne frustration identified by many Muslim respondents centres upon a perceived ‘acceptable’ way to be an Australian Muslim. Arguing that the broader community construct Muslims as a homogenous group defined by their religious affiliation, these interviewees felt that the many differences within and between the twenty-plus national, linguistic, ethnic, cultural and faith-based groupings that constitute WA’s Muslim population were being ignored. Being treated as a homogenised group on a basis of faith appears to have the effect of putting that religious identity under pressure, paradoxically strengthening and reinforcing it (Aly, ‘Australian Muslim Responses to the Discourse on Terrorism’). The appeal to Australian Muslims to embrace membership in a secular society and treat religion as a private matter also led some respondents to suggest they were expected to deny their own view of their faith, in which they express their religious identity across their social spheres and in public and private contexts. Such expression is common in observant Judaism, Hinduism and some forms of Christianity, as well as in some expressions of Islam (Aly and Green, ‘Less than equal’). Massumi argues that even the ways in which some Muslims dress, indicating faith-based behaviour, can lead to what he terms as ‘affective modulation’ (Massumi), repeating and amplifying the fear affect as a result of experiencing the wider community’s fear response to such triggers as water bottles (from airport travel) and backpacks, on the basis of perceived physical difference and a supposed identification with Muslim communities, regardless of the situation. Such respondents constructed this (implied) injunction to suppress their religious and cultural affiliation as akin to constructing the expression of their identity as illegitimate and somehow shameful. Parallels can be drawn with previous social responses to a person born out of wedlock, and to people in same-sex relationships: a ‘don’t ask, don’t tell’ kind of denial.Australian Muslims who see their faith as denied or marginalised may respond by identifying more strongly with other Muslims in their community, since the community-based context is one in which they feel welcomed and understood. The faith-based community also allows and encourages a wider repertoire of acceptable beliefs and actions entailed in the performance of ‘being Muslim’. Hand in hand with a perception of being required to express their religious identity in ways that were acceptable to the majority community, these respondents provided a range of examples of self-protective behaviours to defend themselves and others from the impacts of perceived marginalisation. Such behaviours included: changing their surnames to deflect discrimination based solely on a name (Aly and Green, ‘Fear, Anxiety and the State of Terror’); keeping their opinions private, even when they were in line with those being expressed by the majority community (Aly and Green, ‘Moderate Islam’); the identification of ‘less safe’ and ‘safe’ activities and areas; concerns about visibly different young men in the Muslim community and discussions with them about their public behaviour and demeanour; and women who chose not to leave their homes for fear of being targeted in public places (all discussed in Aly, ‘Australian Muslim Responses to the Discourse on Terrorism’). Many of these behaviours, including changing surnames, restricting socialisation to people who know a person well, and the identification of safe and less safe activities in relation to the risk of self-revelation, were common strategies used by people who were stigmatised in previous times as a result of their illegitimacy.ConclusionConstructions of the legitimate and illegitimate provide one means through which we can investigate complex negotiations around Australianness and citizenship, thrown into sharp relief by the Australian government’s treatment of asylum seekers, also deemed “illegals”. Because they arrive in Australia (or, as the government would prefer, on Australia’s doorstep) by illegitimate channels these would-be citizens are treated very differently from people who arrive at an airport and overstay their visa. The impetus to exclude aspects of geographical Australia from the migration zone, and to house asylum seekers offshore, reveals an anxiety about borders which physically reflects the anxiety of western nations in the post-9/11 world. Asylum seekers who arrive by boat have rarely had safe opportunity to secure passports or visas, or to purchase tickets from commercial airlines or shipping companies. They represent those ethnicities and cultures which are currently in turmoil: a turmoil frequently exacerbated by western intervention, variously constructed as an il/legitimate expression of western power and interests.What this paper has demonstrated is that the boundary between Australia and the rest, the legitimate and the illegitimate, is failing in its aim of creating a stronger Australia. The means through which this project is pursued is making visible a range of motivations and concerns which are variously interpreted depending upon the position of the interpreter. The United Nations, for example, has expressed strong concern over Australia’s reneging upon its treaty obligations to refugees (Gordon). Less vocal, and more fearful, are those communities within Australia which identify as community members with the excluded illegals. The Australian government’s treatment of detainees on Manus Island and Nauru, who generally exhibit markers of visible difference as a result of ethnicity or culture, is one aspect of a raft of government policies which serve to make some people feel that their Australianness is somehow less legitimate than that of the broader community. AcknowledgementsThis paper is based on the findings of an Australian Research Council Discovery Project (DP0559707), 2005-7, “Australian responses to the images and discourses of terrorism and the other: establishing a metric of fear”, awarded to Professors Lelia Green and Mark Balnaves. The research involved 10 focus groups and 60 individual in-depth interviews and a telephone ‘fear of terrorism’ survey. The authors wish to acknowledge the participation and contributions of WA community members and wider Australian respondents to the telephone survey. ReferencesAly, Anne. “Australian Muslim Responses to the Discourse on Terrorism in the Australian Popular Media.” Australian Journal of Social Issues 42.1 (2007): 27-40.Aly, Anne, and Lelia Green. “Fear, Anxiety and the State of Terror.” Studies in Conflict and Terrorism 33.3 (Feb 2010): 268-81.Aly, Anne, and Lelia Green. “Less than Equal: Secularism, Religious Pluralism and Privilege.” M/C Journal 11.2 (2008). 15 Oct. 2009 ‹http://journal.media-culture.org.au/index.php/mcjournal/article/view/32›.Aly, Anne, and Lelia Green. “‘Moderate Islam’: Defining the Good Citizen”. M/C Journal 10.6/11.1 (2008). 13 April 2008 ‹http://journal.media-culture.org.au/0804/08-aly-green.php›.Aly, Anne, and Mark Balnaves. “‘They Want Us to Be Afraid’: Developing a Metric for the Fear of Terrorism. International Journal of Diversity in Organisations, Communities & Nations 6.6 (2008): 113-122.Barthes, Roland. S/Z. Oxford: Blackwell, 1990.Bassio, Diana. “‘Be Alert, Not Alarmed’: Governmental Communication of Risk in an Era of Insecurity.” Annual Conference Australian and New Zealand Communication Association, Christchurch, New Zealand, 2005. ‹http://www.anzca.net/documents/anzca-05-1/refereed-proceedings-9/247-be-alert-not-alarmed-governmental-communication-of-risk-in-an-era-of-insecurity-1/file.html›.Bateson, Gregory, and Mary Catherine Bateson. “Innocence and Experience”. Angels Fear: Towards an Epistemology of the Sacred. New York: Hampton Press, 1987. 167-182. 11 Sep. 2014 ‹http://www.oikos.org/baten.htm›.Cookson, Catherine. Our Kate. London: Corgi, 1969.Cox, Nicole. “Police Probe ‘Die for Syria’ Car Stickers”. WA Today 11 Sep. 2014. 11 Sep. 2014 ‹http://www.watoday.com.au/wa-news/police-probe-die-for-syria-car-stickers-20140911-10fmo7.html›.Crock, Mary. “That Sinking Feeling: Correspondence”. Quarterly Essay 54 (June 2014): 75-79.Douglas, Mary. Purity and Danger. London: Routledge and Keagan Paul, 1978 [1966].Gordon, Michael. “New UN Human Rights Chief Attacks Australia over Asylum Seeker Rights ‘Violations’.” Sydney Morning Herald 7 Sep. 2014. 11 Sep. 2014 ‹http://www.smh.com.au/federal-politics/political-news/new-un-human-rights-chief-attacks-australia-over-asylum-seeker-rights-violations-20140907-10dlkx.html›.Green, Lelia. “Bordering on the Inconceivable: The Pacific Solution, the Migration Zone and ‘Australia’s 9/11’”. Australian Journal of Communication 31.1 (2004): 19-36.Green, Lelia. “Did the World Really Change on 9/11?” Australian Journal of Communication 29.2 (2002): 1-14.Green, Lelia, and Anne Aly. “How Australian Muslims Construct Western Fear of the Muslim Other”. Negotiating Identities: Constructed Selves and Others. Ed. Helen Vella Bonavita. Amsterdam: Rodopi, 2011. 65-90. Karam, Zeina, and Vivian Salama. “US President Barack Obama Powers Up to Shut Down Islamic State”. The Australian 11 Sep. 2014. 11 Sep. 2014 ‹http://www.theaustralian/world/%20us-president-barak-obama-powers-up-to-shut-down-islamic-state-20140911-10f9dh.html›.Lévi-Strauss, Claude. The Raw and the Cooked: Mythologiques, Volume 1. Chicago: University of Chicago, 1969.Massumi, Brian. “Fear (the Spectrum Said).” Positions 13.1 (2005): 31-48.McKay, Fiona H., Samantha, L. Thomas, and Susan Kneebone. “‘It Would Be Okay If They Came through the Proper Channels’: Community Perceptions and Attitudes toward Asylum Seekers in Australia”. Journal of Refugee Studies 25.1 (2011): 113-133.Northup, Solomon. Twelve Years a Slave. New York: Derby & Miller, 1853.Pugliese, Joseph. “Asymmetries of Terror: Visual Regimes of Racial Profiling and the Shooting of John Charles de Menezes in the Context of the War in Iraq.” Borderlands 5.1 (2006). 11 Sep. 2014 ‹http://www.borderlands.net.au/vol5no1_2006/pugliese.htm›.Rix, M. “With Reckless Abandon: Haneef and Ul-Haque in Australia’s ‘War on Terror’.” In K. Michael and M.G. Micheal (eds.), The Third Workshop on the Social Implications of National Security Australia. Canberra, July 2008. 107-122. 11 Sep. 2014 ‹http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1011&context=gsbpapers›.Said, Edward. Orientalism. London: Penguin, 1977.Wilson, Lauren. “More Visa Over-Stayers than Asylum-Seekers”. The Australian 11 Oct. 2012. 11 Sep. 2014 ‹http://www.theaustralian.com.au/national-affairs/immigration/more-visa-over-stayers-than-asylum-seekers/story-fn9hm1gu-1226493178289›.

Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences. There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994].). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke, every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8) Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834]), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes. The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly. Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection: Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11) The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution. In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote: Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118) Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A&M Records the court stated “there can be no more brazen stealing of music than digital sampling”. This move towards a propertarian approach is misguided. It runs contrary to the utilitarian principles underpinning copyright ideology and marginalises freedoms protected by the fair use doctrine, hence Justice Blackman’s warning that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States 473 US 207, 216 [1985]). The framing of copyright in terms of real property privileges private monopoly over, and to the detriment of, the public interest in free and diverse creativity as well as freedoms of personal use. It is paramount that when dealing with copyright cases, the courts remain aware that their decisions involve not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression – in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture. (Eldred v. Ashcroft 537 US 186 [2003] [J. Breyer dissenting]). Copyright is the prize in a contest of property vs. policy. As Justice Blackman observed, an infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. (Dowling v. United States 473 US 207, 217-218 [1985]). Copyright policy places a great deal of control and cultural determinism in the hands of the creative industries. Without balance, oppressive monopolies form on the back of rights granted for the welfare of society in general. If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm. The question of whether culture should be determined by control or freedom in the interests of a free society is one that rapidly requires close attention – “it’s no longer a philosophical question but a practical one”. References Bayat, Asef. “Un-Civil Society: The Politics of the ‘Informal People.’” Third World Quarterly 18.1 (1997): 53-72. Bell, T. W. “Author’s Welfare: Copyright as a Statutory Mechanism for Redistributing Rights.” Brooklyn Law Review 69 (2003): 229. Blackstone, W. Commentaries on the Laws of England: Volume II. New York: Garland Publishing, 1978. (Reprint of 1783 edition.) Boyle, J. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard UP, 1996. Boyle, J. “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87. Bowrey, K. “Who’s Writing Copyright’s History?” European Intellectual Property Review 18.6 (1996): 322. Cohen, J. “Overcoming Property: Does Copyright Trump Privacy?” University of Illinois Journal of Law, Technology & Policy 375 (2002). Collins, S. “Good Copy, Bad Copy.” (2005) M/C Journal 8.3 (2006). http://journal.media-culture.org.au/0507/02-collins.php>. Coombe, R. The Cultural Life of Intellectual Properties. Durham: Duke University Press, 1998. Demers, J. Steal This Music. Athens, Georgia: U of Georgia P, 2006. Easterbrook, F. H. “Intellectual Property Is Still Property.” (1990) Harvard Journal of Law & Public Policy 13 (1990): 108. Feather, J. Publishing, Piracy and Politics: An Historical Study of Copyright in Britain. London: Mansell, 1994. Lemley, M. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031. Lessig, L. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. Lessing, L. The Future of Ideas. New York: Random House, 2001. Lessig, L. Free Culture. New York: The Penguin Press, 2004. Locke, J. Two Treatises of Government. Ed. Peter Laslett. Cambridge, New York, Melbourne: Cambridge University Press, 1988. McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free (2002). 14 June 2006 http://www.stayfreemagazine.org/archives/20/public_enemy.html>. McLeod, K. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28 (2005): 79. McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Miller, M.W. “Creativity Furor: High-Tech Alteration of Sights and Sounds Divides the Art World.” Wall Street Journal (1987): 1. Ou, T. “From Wheaton v. Peters to Eldred v. Reno: An Originalist Interpretation of the Copyright Clause.” Berkman Center for Internet & Society (2000). 14 June 2006 http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cyber/OuEldred.pdf>. Samuelson, P. “Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?” Catholic University Law Review 38 (1989): 365. Travis, H. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal 15 (2000): 777. Vaidhyanathan, S. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Collins, Steve. "‘Property Talk’ and the Revival of Blackstonian Copyright." M/C Journal 9.4 (2006). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0609/5-collins.php>. APA Style Collins, S. (Sep. 2006) "‘Property Talk’ and the Revival of Blackstonian Copyright," M/C Journal, 9(4). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0609/5-collins.php>.

Anyone contemplating the role of a “hermeneutics of suspicion” in literary and cultural studies must concede that the phrase is rarely used—even by its most devout practitioners, who usually think of themselves engaged in something called “critique.” What, then, are the terminological differences between “critique” and “the hermeneutics of suspicion”? What intellectual worlds do these specific terms conjure up, and how do these worlds converge or diverge? And what is the rationale for preferring one term over the other?The “hermeneutics of suspicion” is a phrase coined by Paul Ricoeur to capture a common spirit that pervades the writings of Marx, Freud, and Nietzsche. In spite of their obvious differences, he argued, these thinkers jointly constitute a “school of suspicion.” That is to say, they share a commitment to unmasking “the lies and illusions of consciousness;” they are the architects of a distinctively modern style of interpretation that circumvents obvious or self-evident meanings in order to draw out less visible and less flattering truths (Ricoeur 356). Ricoeur’s term has sustained an energetic after-life within religious studies, as well as in philosophy, intellectual history, and related fields, yet it never really took hold in literary studies. Why has a field that has devoted so much of its intellectual energy to interrogating, subverting, and defamiliarising found so little use for Ricoeur’s phrase?In general, we can note that hermeneutics remains a path not taken in Anglo-American literary theory. The tradition of hermeneutical thinking is rarely acknowledged (how often do you see Gadamer or Ricoeur taught in a theory survey?), let alone addressed, assimilated, or argued over. Thanks to a lingering aura of teutonic stodginess, not to mention its long-standing links with a tradition of biblical interpretation, hermeneutics was never able to muster the intellectual edginess and high-wattage excitement generated by various forms of poststructuralism. Even the work of Gianni Vattimo, one of the most innovative and prolific of contemporary hermeneutical thinkers, has barely registered in the mainstream of literary and cultural studies. On occasion, to be sure, hermeneutics crops up as a synonym for a discredited model of “depth” interpretation—the dogged pursuit of a hidden true meaning—that has supposedly been superseded by more sophisticated forms of thinking. Thus the ascent of poststructuralism, it is sometimes claimed, signaled a turn away from hermeneutics to deconstruction and genealogy—leading to a focus on surface rather than depth, on structure rather than meaning, on analysis rather than interpretation. The idea of suspicion has fared little better. While Ricoeur’s account of a hermeneutics of suspicion is respectful, even admiring, critics are understandably leery of having their lines of argument reduced to their putative state of mind. The idea of a suspicious hermeneutics can look like an unwarranted personalisation of scholarly work, one that veers uncomfortably close to Harold Bloom’s tirades against the “School of Resentment” and other conservative complaints about literary studies as a hot-bed of paranoia, kill-joy puritanism, petty-minded pique, and defensive scorn. Moreover, the anti-humanist rhetoric of much literary theory—its resolute focus on transpersonal and usually linguistic structures of determination—proved inhospitable to any serious reflections on attitude, disposition, or affective stance.The concept of critique, by contrast, turns out to be marred by none of these disadvantages. An unusually powerful, flexible and charismatic idea, it has rendered itself ubiquitous and indispensable in literary and cultural studies. Critique is widely seen as synonymous with intellectual rigor, theoretical sophistication, and intransigent opposition to the status quo. Drawing a sense of intellectual weightiness from its connections to the canonical tradition of Kant and Marx, it has managed, nonetheless, to retain a cutting-edge sensibility, retooling itself to fit the needs of new fields ranging from postcolonial theory to disability studies. Critique is contagious and charismatic, drawing everything around it into its field of force, marking the boundaries of what counts as serious thought. For many scholars in the humanities, it is not just one good thing but the only conceivable thing. Who would want to be associated with the bad smell of the uncritical? There are five facets of critique (enumerated and briefly discussed below) that characterise its current role in literary and cultural studies and that have rendered critique an exceptionally successful rhetorical-cultural actor. Critique, that is to say, inspires intense attachments, serves as a mediator in numerous networks, permeates disciplines and institutional structures, spawns conferences, essays, courses, and book proposals, and triggers countless imitations, translations, reflections, revisions, and rebuttals (including the present essay). While nurturing a sense of its own marginality, iconoclasm, and outsiderdom, it is also exceptionally effective at attracting disciples, forging alliances, inspiring mimicry, and ensuring its own survival. In “Why Has Critique Run Out of Steam?” Bruno Latour remarks that critique has been so successful because it assures us that we are always right—unlike those naïve believers whose fetishes we strive to expose (225–48). At the same time, thanks to its self-reflexivity, the rhetoric of critique is more tormented and self-divided than such a description would suggest; it broods constantly over the shame of its own success, striving to detect signs of its own complicity and to root out all possible evidence of collusion with the status quo.Critique is negative. Critique retains the adversarial force of a suspicious hermeneutics, while purifying it of affective associations by treating negativity as an essentially philosophical or political matter. To engage in critique is to grapple with the oversights, omissions, contradictions, insufficiencies, or evasions in the object one is analysing. Robert Koch writes that “critical discourse, as critical discourse, must never formulate positive statements: it is always ‘negative’ in relation to its object” (531). Critique is characterised by its “againstness,” by its desire to take a hammer, as Latour would say, to the beliefs of others. Faith is to be countered with vigilant skepticism, illusion yields to a sobering disenchantment, the fetish must be defetishised, the dream world stripped of its befuddling powers. However, the negativity of critique is not just a matter of fault-finding, scolding, and censuring. The nay-saying critic all too easily calls to mind the Victorian patriarch, the thin-lipped schoolmarm, the glaring policeman. Negating is tangled up with a long history of legislation, prohibition and interdiction—it can come across as punitive, arrogant, authoritarian, or vitriolic. In consequence, defenders of critique often downplay its associations with outright condemnation. It is less a matter of refuting particular truths than of scrutinising the presumptions and procedures through which truths are established. A preferred idiom is that of “problematising,” of demonstrating the ungroundedness of beliefs rather than denouncing errors. The role of critique is not to castigate, but to complicate, not to engage in ideas’ destruction but to expose their cultural construction. Barbara Johnson, for example, contends that a critique of a theoretical system “is not an examination of its flaws and imperfections” (xv). Rather, “the critique reads backwards from what seems natural, obvious, self-evident, or universal in order to show that these things have their history” and to show that the “start point is not a (natural) given, but a (cultural) construct, usually blind to itself” (Johnson xv–xvi). Yet it seems a tad disingenuous to describe such critique as free of negative judgment and the examination of flaws. Isn’t an implicit criticism being transmitted in Johnson’s claim that a cultural construct is “usually blind to itself”? And the adjectival chain “natural, obvious, self-evident, or universal” strings together some of the most negatively weighted words in contemporary criticism. A posture of detachment, in other words, can readily convey a tacit or implicit judgment, especially when it is used to probe the deep-seated convictions, primordial passions, and heart-felt attachments of others. In this respect, the ongoing skirmishes between ideology critique and poststructuralist critique do not over-ride their commitment to a common ethos: a sharply honed suspicion that goes behind the backs of its interlocutors to retrieve counter-intuitive and uncomplimentary meanings. “You do not know that you are ideologically-driven, historically determined, or culturally constructed,” declares the subject of critique to the object of critique, “but I do!” As Marcelo Dascal points out, the supposedly non-evaluative stance of historical or genealogical argument nevertheless retains a negative or demystifying force in tracing ideas back to causes invisible to the actors themselves (39–62).Critique is secondary. A critique is always a critique of something, a commentary on another argument, idea, or object. Critique does not vaunt its self-sufficiency, independence, and autotelic splendor; it makes no pretense of standing alone. It could not function without something to critique, without another entity to which it reacts. Critique is symbiotic; it does its thinking by responding to the thinking of others. But while secondary, critique is far from subservient. It seeks to wrest from a text a different account than it gives of itself. In doing so, it assumes that it will meet with, and overcome, a resistance. If there were no resistance, if the truth were self-evident and available for all to see, the act of critique would be superfluous. Its goal is not the slavish reconstruction of an original or true meaning but a counter-reading that brings previously unfathomed insights to light. The secondariness of critique is not just a logical matter—critique presumes the existence of a prior object—but also a temporal one. Critique comes after another text; it follows or succeeds another piece of writing. Critique, then, looks backward and, in doing so, it presumes to understand the past better than the past understands itself. Hindsight becomes insight; from our later vantage point, we feel ourselves primed to see better, deeper, further. The belatedness of critique is transformed into a source of iconoclastic strength. Scholars of Greek tragedy or Romantic poetry may mourn their inability to inhabit a vanished world, yet this historical distance is also felt as a productive estrangement that allows critical knowledge to unfold. Whatever the limitations of our perspective, how can we not know more than those who have come before? We moderns leave behind us a trail of errors, finally corrected, like a cloud of ink from a squid, remarks Michel Serres (48). There is, in short, a quality of historical chauvinism built into critique, making it difficult to relinquish a sense of in-built advantage over those lost souls stranded in the past. Critique likes to have the last word. Critique is intellectual. Critique often insists on its difference from everyday practices of criticism and judgment. While criticism evaluates a specific object, according to one definition, “critique is concerned to identify the conditions of possibility under which a domain of objects appears” (Butler 109). Critique is interested in big pictures, cultural frameworks, underlying schema. It is a mode of thought well matched to the library and seminar room, to a rhythm of painstaking inquiry rather than short-term problem-solving. It “slows matters down, requires analysis and reflection, and often raises questions rather than providing answers” (Ruitenberg 348). Critique is thus irresistibly drawn toward self-reflexive thinking. Its domain is that of second-level observation, in which we reflect on the frames, paradigms, and perspectives that form and inform our understanding. Even if objectivity is an illusion, how can critical self-consciousness not trump the available alternatives? This questioning of common sense is also a questioning of common language: self-reflexivity is a matter of form as well as content, requiring the deployment of what Jonathan Culler and Kevin Lamb call “difficult language” that can undermine or “un-write” the discourses that make up our world (1–14). Along similar lines, Paul Bove allies himself with a “tradition that insists upon difficulty, slowness, complex, often dialectical and highly ironic styles,” as an essential antidote to the “prejudices of the current regime of truth: speed, slogans, transparency, and reproducibility” (167). Critique, in short, demands an arduous working over of language, a stoic refusal of the facile phrase and ready-made formula. Yet such programmatic divisions between critique and common sense have the effect of relegating ordinary language to a state of automatic servitude, while condescending to those unschooled in the patois of literary and critical theory. Perhaps it is time to reassess the dog-in-the-manger attitude of a certain style of academic argument—one that assigns to scholars the vantage point of the lucid and vigilant thinker, while refusing to extend this same capacity to those naïve and unreflecting souls of whom they speak.Critique comes from below. Politics and critique are often equated and conflated in literary studies and elsewhere. Critique is iconoclastic in spirit; it rails against authority; it seeks to lay bare the injustices of the law. It is, writes Foucault, the “art of voluntary insubordination, that of reflected intractability” (194). This vision of critique can be traced back to Marx and is cemented in the tradition of critical theory associated with the Frankfurt School. Critique conceives of itself as coming from below, or being situated at the margins; it is the natural ally of excluded groups and subjugated knowledges; it is not just a form of knowledge but a call to action. But who gets to claim the mantle of opposition, and on what grounds? In a well-known essay, Nancy Fraser remarks that critical theory possesses a “partisan though not uncritical identification” with oppositional social movements (97). As underscored by Fraser’s judicious insertion of the phrase “not uncritical,” critique guards its independence and reserves the right to query the actions and attitudes of the oppressed as well as the oppressors. Thus the intellectual’s affiliation with a larger community may collide with a commitment to the ethos of critique, as the object of a more heartfelt attachment. A separation occurs, as Francois Cusset puts it, “between academics questioning the very methods of questioning” and the more immediate concerns of the minority groups with which they are allied (157). One possible strategy for negotiating this tension is to flag one’s solidarity with a general principle of otherness or alterity—often identified with the utopian or disruptive energies of the literary text. This strategy gives critique a shot in the arm, infusing it with a dose of positive energy and ethical substance, yet without being pinned down to the ordinariness of a real-world referent. This deliberate vagueness permits critique to nurture its mistrust of the routines and practices through which the everyday business of the world is conducted, while remaining open to the possibility of a radically different future. Critique in its positive aspects thus remains effectively without content, gesturing toward a horizon that must remain unspecified if it is not to lapse into the same fallen state as the modes of thought that surround it (Fish 446).Critique does not tolerate rivals. Declaring itself uniquely equipped to diagnose the perils and pitfalls of representation, critique often chafes at the presence of other forms of thought. Ruling out the possibility of peaceful co-existence or even mutual indifference, it insists that those who do not embrace its tenets must be denying or disavowing them. In this manner, whatever is different from critique is turned into the photographic negative of critique—evidence of an irrefutable lack or culpable absence. To refuse to be critical is to be uncritical; a judgment whose overtones of naiveté, apathy, complacency, submissiveness, and sheer stupidity seem impossible to shrug off. In short, critique thinks of itself as exceptional. It is not one path, but the only conceivable path. Drew Milne pulls no punches in his programmatic riff on Kant: “to be postcritical is to be uncritical: the critical path alone remains open” (18).The exceptionalist aura of critique often thwarts attempts to get outside its orbit. Sociologist Michael Billig, for example, notes that critique thinks of itself as battling orthodoxy, yet is now the reigning orthodoxy—no longer oppositional, but obligatory, not defamiliarising, but oppressively familiar: “For an increasing number of younger academics,” he remarks, “the critical paradigm is the major paradigm in their academic world” (Billig 292). And in a hard-hitting argument, Talal Asad points out that critique is now a quasi-automatic stance for Western intellectuals, promoting a smugness of tone that can be cruelly dismissive of the deeply felt beliefs and attachments of others. Yet both scholars conclude their arguments by calling for a critique of critique, reinstating the very concept they have so meticulously dismantled. Critique, it seems, is not to be abandoned but intensified; critique is to be replaced by critique squared. The problem with critique, it turns out, is that it is not yet critical enough. The objections to critique are still very much part and parcel of the critique-world; the value of the critical is questioned only to be emphatically reinstated.Why do these protestations against critique end up worshipping at the altar of critique? Why does it seem so exceptionally difficult to conceive of other ways of arguing, reading, and thinking? We may be reminded of Eve Sedgwick’s comments on the mimetic aspect of critical interpretation: its remarkable ability to encourage imitation, repetition, and mimicry, thereby ensuring its own reproduction. It is an efficiently running form of intellectual machinery, modeling a style of thought that is immediately recognisable, widely applicable, and easily teachable. Casting the work of the scholar as a never-ending labour of distancing, deflating, and diagnosing, it rules out the possibility of a different relationship to one’s object. It seems to grow, as Sedgwick puts it, “like a crystal in a hypersaturated solution, blotting out any sense of the possibility of alternative ways of understanding or things to understand” (131).In this context, a change in vocabulary—a redescription, if you will—may turn out to be therapeutic. It will come as no great surprise if I urge a second look at the hermeneutics of suspicion. Ricoeur’s phrase, I suggest, can help guide us through the interpretative tangle of contemporary literary studies. It seizes on two crucial parts of critical argument—its sensibility and its interpretative method—that deserve more careful scrutiny. At the same time, it offers a much-needed antidote to the charisma of critique: the aura of ethical and political exemplarity that burnishes its negativity with a normative glow. Thanks to this halo effect, I’ve suggested, we are encouraged to assume that the only alternative to critique is a full-scale surrender to complacency, quietism, and—in literary studies—the intellectual fluff of aesthetic appreciation. Critique, moreover, presents itself as an essentially disembodied intellectual exercise, an austere, even abstemious practice of unsettling, unmaking, and undermining. Yet contemporary styles of critical argument are affective as well as analytical, conjuring up distinctive dispositions and relations to their object. As Amanda Anderson has pointed out in The Way We Argue Now, literary and cultural theory is saturated with what rhetoricians call ethos—that is to say, imputations of motive, character, or attitude. We need only think of the insouciance associated with Rortyan pragmatism, the bad-boy iconoclasm embraced by some queer theorists, or the fastidious aestheticism that characterises a certain kind of deconstructive reading. Critical languages, in other words, are also orientations, encouraging readers to adopt an affectively tinged stance toward their object. Acknowledging the role of such orientations in critical debate does not invalidate its intellectual components, nor does it presume to peer into, or diagnose, an individual scholar’s state of mind.In a related essay, I scrutinise some of the qualities of a suspicious or critical reading practice: distance rather than closeness; guardedness rather than openness; aggression rather than submission; superiority rather than reverence; attentiveness rather than distraction; exposure rather than tact (215–34). Suspicion, in this sense, constitutes a muted affective state—a curiously non-emotional emotion of morally inflected mistrust—that overlaps with, and builds upon, the stance of detachment that characterises the stance of the professional or expert. That this style of reading proves so alluring has much to do with the gratifications and satisfactions that it offers. Beyond the usual political or philosophical justifications of critique, it also promises the engrossing pleasure of a game-like sparring with the text in which critics deploy inventive skills and innovative strategies to test their wits, best their opponents, and become sharper, shrewder, and more sophisticated players. In this context, the claim that contemporary criticism has moved “beyond” hermeneutics should be treated with a grain of salt, given that, as Stanley Fish points out, “interpretation is the only game in town” (446). To be sure, some critics have backed away from the model of what they call “depth interpretation” associated with Marx and Freud, in which reading is conceived as an act of digging and the critic, like a valiant archaeologist, excavates a resistant terrain in order to retrieve the treasure of hidden meaning. In this model, the text is envisaged as possessing qualities of interiority, concealment, penetrability, and depth; it is an object to be plundered, a puzzle to be solved, a secret message to be deciphered. Instead, poststructuralist critics are drawn to the language of defamiliarising rather than discovery. The text is no longer composed of strata and the critic does not burrow down but stands back. Instead of brushing past surface meanings in pursuit of hidden truth, she dwells in ironic wonder on these surface meanings, seeking to “denaturalise” them through the mercilessness of her gaze. Insight, we might say, is achieved by distancing rather than by digging. Recent surveys of criticism often highlight the rift between these camps, underscoring the differences between the diligent seeker after buried truth and the surface-dwelling ironist. From a Ricoeur-inflected point of view, however, it is their shared investment in a particular ethos—a stance of knowingness, guardedness, suspicion and vigilance—that turns out to be more salient and more striking. Moreover, these approaches are variously engaged in the dance of interpretation, seeking to go beyond the backs of texts or fellow-actors in order to articulate non-obvious and often counter-intuitive truths. In the case of poststructuralism, we can speak of a second-order hermeneutics that is less interested in probing the individual object than the larger frameworks and conditions in which it is embedded. What the critic interprets is no longer a self-contained poem or novel, but a broader logic of discursive structures, reading formations, or power relations. Ricoeur’s phrase, moreover, has the singular advantage of allowing us to by-pass the exceptionalist tendencies of critique: its presumption that whatever is not critique can only be assigned to the ignominious state of the uncritical. As a less prejudicial term, it opens up a larger history of suspicious reading, including traditions of religious questioning and self-scrutiny that bear on current forms of interpretation, but that are occluded by the aggressively secular connotations of critique (Hunter). In this context, Ricoeur’s own account needs to be supplemented and modified to acknowledge this larger cultural history; the hermeneutics of suspicion is not just the brain-child of a few exceptional thinkers, as his argument implies, but a widespread practice of interpretation embedded in more mundane, diffuse and variegated forms of life (Felski 220).Finally, the idea of a suspicious hermeneutics does not invalidate or rule out other interpretative possibilities—ranging from Ricoeur’s own notion of a hermeneutics of trust to more recent coinages such as Sedgwick’s “restorative reading,” Sharon Marcus’s “just reading” or Timothy Bewes’s “generous reading.” Literary studies in France, for example, is currently experiencing a new surge of interest in hermeneutics (redefined as a practice of reinvention rather than exhumation) as well as a reinvigorated phenomenology of reading that elucidates, in rich and fascinating detail, its immersive and affective dimensions (see Citton; Macé). This growing interest in the ethos, aesthetics, and ethics of reading is long overdue. Such an orientation by no means rules out attention to the sociopolitical resonances of texts and their interpretations. It is, however, no longer willing to subordinate such attention to the seductive but sterile dichotomy of the critical versus the uncritical.ReferencesAnderson, Amanda. The Way We Argue Now: A Study in the Cultures of Theory. Princeton: Princeton UP, 2005.Asad, Talal. “Free Speech, Blasphemy, and Secular Criticism.” Is Critique Secular? Blasphemy, Injury, and Free Speech. Ed. Talal Asad, Wendy Brown, Judith Butler, and Saba Mahmood. Berkeley: Townsend Center for the Humanities, 2009. 20–63. Bewes, Timothy. “Reading with the Grain: A New World in Literary Studies.” Differences 21.3 (2010): 1–33.Billig, Michael. “Towards a Critique of the Critical.” Discourse and Society 11.3 (2000): 291–92. Bloom, Harold. The Western Canon: The Books and School of the Ages. New York: Harcourt Brace, 1994.Bove, Paul. Mastering Discourse: The Politics of Intellectual Culture. Durham: Duke UP, 1992. Butler, Judith. “The Sensibility of Critique: Response to Asad and Mahmood.” Is Critique Secular? Blasphemy, Injury, and Free Speech. Ed. Talal Asad, Wendy Brown, Judith Butler, and Saba Mahmood. Berkeley: Townsend Center for the Humanities, 2009. 101–136.Citton, Yves. Lire, interpréter, actualiser: pourqoi les études littéraires? Paris: Editions Amsterdam, 2007. Culler, Jonathan and Kevin Lamb, “Introduction.” Just Being Difficult? Academic Writing in the Public Arena. Ed. Jonathan Culler and Kevin Lamb. Stanford: Stanford UP, 2003. 1–14. Cusset, Francois. French Theory: How Foucault, Derrida, Deleuze, & Co. Transformed the Intellectual Life of the United States. Trans. Jeff Fort. Minneapolis: U of Minnesota P, 2008.Dascal, Marcelo. “Critique without Critics?” Science in Context 10.1 (1997): 39–62.Felski, Rita. “Suspicious Minds.” Poetics Today 32.2 (2011): 215–34.Fish, Stanley. Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies. Durham: Duke UP, 1989.Foucault, Michel. “What is Critique?” The Political. Ed. David Ingram. Oxford: Blackwell, 2002. 191–211. Fraser, Nancy. “What’s Critical about Critical Theory? The Case of Habermas and Gender.” New German Critique 35 (1985): 97–131. Hunter, Ian. Rethinking the School: Subjectivity, Bureaucracy, Criticism. New York: St Martin’s Press, 1994.Johnson, Barbara. “Translator’s Introduction.” Jacques Derrida’s Dissemination. London: Continuum, 2004. vii–xxxv. Koch, Robert. “The Critical Gesture in Philosophy.” Iconoclash: Beyond the Image Wars in Science, Religion, and Art. Ed. Bruno Latour and Peter Weibel. Cambridge: MIT, 2002. 524–36. Latour, Bruno. “Why Has Critique Run Out of Steam? From Matters of Fact to Matters of Concern.” Critical Inquiry 30 (2004): 225–48.Macé, Marielle. Facons de lire, manières d’être. Paris: Gallimard, 2011. Marcus, Sharon. Between Women: Friendship, Desire, and Marriage in Victorian England. Princeton: Princeton UP, 2007.Milne, Drew. “Introduction: Criticism and/or Critique.” Modern Critical Thought: An Anthology of Theorists Writing on Theorists. Oxford: Blackwell, 2002. 1–22. Ricoeur, Paul. Freud and Philosophy: An Essay on Interpretation. New Haven: Yale UP, 1970. Ruitenberg, Claudia. “Don’t Fence Me In: The Liberation of Undomesticated Critique.” Journal of the Philosophy of Education 38.3 (2004): 314–50. Sedgwick, Eve Kosofsky. “Paranoid Reading and Reparative Reading, Or, You’re So Paranoid, You Probably Think This Essay is About You.” Touching Feeling: Affect, Pedagogy, Performativity. Durham: Duke UP, 2003. 123–52. Serres, Michel and Bruno Latour. Conversations on Science, Culture, and Time. Trans. Roxanne Lapidus. Ann Arbor: U of Michigan P, 1995.Vattimo, Gianni. Beyond Interpretation: The Meaning of Hermeneutics for Philosophy. Trans. David Webb. Stanford: Stanford UP, 1997.

Introduction The recipe is more than just a list of ingredients and the instructions on how to prepare a particular dish. Recipes also are, as Janet Floyd and Laurel Foster argue, a form of narrative that tells a myriad of stories, “of family sagas and community, of historical and cultural moments and also of personal histories and narratives of self” (Floyd and Forster 2). Among the most intimate and personal sources of recipes are manuscript cookbooks. These typically contained original handwritten recipes created by the author as well as those shared by family and friends; some recipes were copied from published cookbooks or clipped out of newspapers and magazines. However, these books are more than a mere collection of recipes and domestic instructions, they also paint a unique and vivid picture of the life of their authors. These manuscript cookbooks were a common sight in many Australian colonial kitchens, yet they are a rarely examined and rich archival source that provides a valuable insight into foodways, material culture, and the lives and social relationships of the women who created them. This article will examine the manuscript cookbook created by Phillis Clark in the Darling Downs during the 1860s. Through a close examination of Clark’s manuscript cookbook, this article will explore colonial domestic habits and the cultural context in which they were formed. It will also highlight the historical value of manuscript cookbooks as social texts that chronicle daily life, both inside and outside the kitchen, in colonial Australia. A Colonial Woman Phillis Clark was born in Tasmania in 1836. She was the daughter of Charles Seal, the pioneer of the whaling industry in that state. In 1858 she married Charles George Clark, the eldest son of a well-known Tasmanian family. Both the Seal and Clark families were at the centre of social and political life in Tasmania. In 1861, the couple moved to Talgai, twenty two kilometres north-west of Warwick in the Darling Downs region of Queensland. Here, Charles Clark established himself as a storekeeper and became a partner in the Ellinthorp Steam Flour Mills, the first successful flour mill in Queensland (Waterson 3). He also represented Warwick in the Queensland Legislative assembly between 1871 and 1873. Clark’s brother, George Clark, also settled in the area together with his wife and family. In 1868, both families set up home in adjoining properties known as East Talgai and West Talgai. This joint property, with its well manicured gardens, English trees, and fruit orchard, has been described as a small oasis “in an empty, brown and dusty summer landscape” (Waterson, Squatter 19). The Manuscript Sometime during this period Clark began to compile her very own manuscript cookbook. The front of Clark’s manuscript is dated 1866, yet there is ample evidence to suggest that she began work on this manuscript some years earlier. Clark was scrupulous in acknowledging the sources of her recipes, a habit common to many manuscript cookbook authors (Newlyn 35). She also initialled her own creations, firstly with P.S., for her maiden name Phillis Seal, and later P.S.C. for Phillis Seal Clark, her married name. By 1866 Clarke had been married for eight years so it can be assumed that she commenced her manuscript some time before 1858. A number of the recipes that appear in the manuscript appear to be credited to people living in Tasmania. Furthermore, a number of the newspaper clippings found in her manuscript can be dated to before 1866, including one for 1861. The manuscript itself is a hard bound and lined notebook, sturdy enough to withstand the rigours of daily use in the kitchen. The majority of recipes are handwritten but there are also a number of recipes clipped from newspapers interspaced within the manuscript. The handwritten recipes are in a neat copperplate style and all appear to be written in the same hand. The recipes are not found in distinct sections, although there are some small clusters of particular types of recipes, highlighting the fact that they were added to the manuscript over a period of time. At the front of the manuscript there is a detailed index noting the page number on which each recipe is to be found. The recipes themselves follow the standard conventions of the period. The Sources The sources from which Clark gathered some of the recipes in her manuscript indicate the variety of texts that were available to her. There are a number of newspaper clippings pasted in the pages of her manuscript for a range of both recipes for foods as well as the so-called domestic remedies (medicines) and receipts for household products. Amongst the food recipes there are to be found instructions in the making of cream cheese in the Irish manner and a recipe for stewed shoulder of mutton as well as two different methods for preparing kangaroo. While it is impossible to fully know what newspapers all these clippings have been taken from, at least one of them came from the Darling Downs Gazette and General Advertiser and it is likely that some of them might also have come from a number of the local Warwick papers (one which was founded by her brother-in-law George Clark) that were in publication during Clark’s residence in the area. Clark also utilised a number of published cookbooks as sources for some of the recipes in her own manuscripts. Like most Australians until the last few decades of the nineteenth century, Clark would have mainly resorted to the British cookbooks that were available. The two most commonly acknowledged cookbooks in her manuscript were Enquire Within Upon Everything and Eliza Acton’s. Enquire Within Upon Everything was an immensely popular general household guide amassing eighty-nine editions in a little over forty years in print. It contained information on a plethora of subjects (over three thousand individual entries) including such topics as etiquette, first aid, domestic hints, and recipes. It first appeared on the British market in 1856, under the editorship of Robert Kemp Philp, and became available in Australia in the same year. Booksellers in the Darling Downs advertised copies of the book for the price of three shillings and six pence. Eliza Acton, for her part, was one of Britain’s leading cookbook authors. Her books were widely available throughout the colonies with copies advertised for sale by J. Walch and Sons booksellers in Hobart (‘Advertising’ 1). Extracts from her cookbook Modern Cookery for Private Families began to appear in Australian newspapers only months after it first was published in Britain in 1845 (‘Bullion’ 4). Although Modern Cookery did not provide any recipes directly catering for Australian conditions, its simple and straightforward approach to cookery made it an invaluable resource in the colonial kitchen. Such was the popularity and reputation of Acton’s work that in the preface to Australia’s first cookbook, The English and Australian Cookery Book, the author, Tasmanian born Edward Abbott, stated that he hoped that his cook book would posses “all the advantages of Mrs. Acton’s work” (Abbott vi). The range of printed sources contained within Clark’s manuscript indicate that women in colonial households were far from isolated from the culinary trends occurring in other parts of Australia and the wider British empire. The Recipes Like many Australian women of her class and generation, Phillis Clark reproduced the predominant British food culture in her kitchen. The great majority of recipes contained in her manuscript are for typically English dishes, particularly those for sweet dishes such as biscuits, cakes, and puddings. Plum pudding, trifle, and custard pudding are all featured in her book. As well, many of the savoury dishes such as curry, roast beef, and Yorkshire pudding similarly reflect the British palate. In There is No Taste like Home: The Food of Empire, Adele Wessell argues that the maintenance of British food habits in Australia was a device to reaffirm “cultural and historical bonds and sustain a shared sense of British identity” (811). However, as in many other rural kitchens, native ingredients also found a place. Her manuscript included a number of recipes for the preparation of kangaroo and detailed instructions for the butchering of the animal. Clark’s recipe for “Jugged Hare or Kangaroo” bares a close resemblance to the one that appears in Edward Abbott’s cookbook. Clark’s father and Abbott were from the same, small social milieu in colonial Hobart and were both active in the same political causes. This raises the intriguing possibility that Phillis also knew Abbott and came into contact with some of his culinary ideas. Australians consumed all manners of native ingredients, not only as a matter of necessity but also as a matter of choice. The inclusion of freshly killed native game in Clark’s kitchen would have served to alleviate the monotony of the salted beef and mutton that were common staples during this period. The distinct Australian flavour that began to appear in manuscript cookbooks like Clark’s would later be replicated in their printed counterparts. Australian cookbooks published in the last decades of the nineteenth century demonstrate the importance of native ingredients in colonial kitchens (Singley 37). The Darling Downs region had been a popular destination for German migrants from the 1850s and Clark’s manuscript contained a number of recipes for German dishes. This included one for the traditional German Christmas cake Lebkuchen as well as for various German puddings and biscuits. Clark also included an elaborate recipe for making ham or bacon in the traditional Westphalian fashion. This was a laborious process that involved vigorously rubbing salt, sugar, and beer into the leg of ham every day for a fortnight after which it is then hung to dry for a couple of days and then smoked. Katie Hume, a fellow Darling Downs resident and a close friend of the extended Clark family described feeling like a “gute verstandige Hausfrau” (a good sensible housewife) after salting 112 pounds of pork she had purchased from a neighbour (152). While, unlike their counterparts in the Barossa valley in South Australia, the Germans who lived in the Darling Downs area did not leave a significant mark on the local culinary landscape, the inclusion of German recipes in Clark’s manuscript indicates that there was not only some cross-cultural transmission of culinary knowledge, but also some willingness to go beyond traditional British fare. Many, more mundane recipes also populate Clark’s manuscript. “Toad in a Hole”, “Mutton Pie” and “Stewed Sirloin” all merit an entry. Yet, even with such simple dishes, Clark demonstrated a keen eye for detail. This is attested by her method for the preparation of a simple dish of roasted pumpkin: “Cut into slices 1 inch thick and about 5 inches long, have ready a baking dish with boiling fat—lay the slices in it so that the fat will cover them and bake for 20 minutes (by fat I mean good dripping) Half an hour will not bake them too much. They ought to be brown” (Clark 13). Whilst Clark’s manuscript is not indicative of the foodways of all classes across Queensland society, it does provide some insight as to what was consumed at the table of a well-heeled rural household. As the wife of a prominent businessman and a local dignitary, Phillis Clark would have also undoubtedly been called upon to play the role of hostess and to entertain her husband’s commercial and political acquaintances. Her manuscript also reflects the overwhelmingly British nature of colonial Australian foodways despite the intrusion of some foreign dishes. As Anne Murcott argues, the preparation and consumption of food provides a way through which individuals can express the more abstract significance of cultural values and social systems (204). The Clark household also showed some interest in producing a broad range of products in the home. There are, for example, a number of recipes for beverages including those for non-alcoholic ginger beers and flavoured cordials. They were also far from abstemious, with recipes for wine, mead, and ale included in the manuscript. This last recipe was given to her by her brother Alfred who, according to Clark, “understands brewing and therefore I think it can be depended upon” (Clark 43). Clark also bottled her own fruit, made a wide range of jams, including grape and mock melon, as well as making her own butter, confectionery, and vinegar. The production of goods like these within the home indicates the level of self-reliance in many colonial households, particularly those finding themselves far from the convenience of shops and markets. Many culinary historians argue that there exists a significant time lag between the initial appearance and consumption of a particular dish in a society and its subsequent appearance in the pages of a cookbook. This time lag can be between forty and 150 years long (Mennell 44; Mason 23). However, manuscript cookbooks reflect the immediacy of eating practices. The very personal nature of manuscript cookbooks would suggest that the recipes included within their pages were ones that the author intended to use in her own kitchen. Moreover, from the reciprocal nature of recipe sharing that is evident from these types of cookbooks it can be concluded that the recipes in Clark’s manuscript were ones that, at least in her own social milieu, were in common usage. In her manuscript Clark clearly noted those recipes which she especially liked or otherwise found useful. Many recipes throughout the manuscript have been marked as “proved” indicating that Clark had used and tested them at some stage. A number of them have also been favourably annotated as being “delicious”, “very nice”, “the best”, and “very good”. Amongst the number of recipes for “Soda Cake” that feature in the manuscript Clarke clearly indicates that “Number 1 is the best”. However, she was not averse to commenting on recipes and altering them to suit her taste. In a recipe for “A nice light Cake”, for example, Clark noted that the addition of a “little peel and currants is an improvement” (89). This form of marginal intrusion was a common practice amongst many women and it can even be seen in the margins of many published cookbooks (Theophano 186). These annotations, according to Sandra Sherman, are not transgressive, since the manuscripts are not authored “by” anyone (Sherman 121). In fact, annotations personalise the recipe and confirm the compiler’s confidence in it (Sherman 121). Not Just Food: ‘Domestic Receipts’ As noted above, Clark’s manuscript contained more than just recipes for food and drink. Many of them are “Domestic Receipts” that reflect the complex nature of running a household in rural Australia. Some of Clark’s domestic receipts are in the form of newspaper clippings and are general instructions for the manufacture of simple household products such as a “ready to use glue” and a home-made tooth powder. Others are handwritten and copied from other domestic advice books or were given to Clark by family and friends. A recipe for manufacturing “blacking for stoves”, essential in the maintenance of cast iron stoves, was, for example, culled from Enquire Within Upon Everything. Here, with some authorial intrusion, Clark includes her own list of measured ingredients to prepare the mixture. An intriguing method for the “artificial preparation of ice” involving the use of ammonium nitrate and bicarbonate of soda was given to Clark by Mrs. McKeachie, the wife of Charles Clark’s business partner. Clark also showed an interest in beekeeping and in raising turkeys, with instructions for both these tasks included in her manuscript. The wide range of miscellaneous receipts featured in Clark’s book highlights the breadth of activities that were carried out in many homes in rural Australia. A hint of Clark’s artistic side is also in evidence, with detailed instructions on how to create delicate fern impressions on paper also included in her book. As with many other women in colonial Australia, Clark was expected to take on the role of caregiver when members of her family fell ill or were injured. Her manuscript included a number of recipes for “domestic remedies”, another common trope in books of this kind as well as in their printed counterparts. These remedies included recipes for a cough mixture composed of linseed, liquorice, and water and a liniment to treat rheumatism which was made by mixing rape seed oil and turpentine with a hefty dose of laudanum. Clark used olive oil in a number of medical recipes to treat burns and scalds. As well, treatments for diphtheria, cholera, and diarrhoea feature prominently in her manuscript. The Darling Downs had been subject to a number of outbreaks of dysentery and cholera during Clark’s residency in the area (Waterson, Squatter 71). For “a pain in the chest” Clark recommended the following: “a piece of brown paper spread with tallow and placed on the chest” (69).The inclusion of these domestic remedies and Clark’s obvious concerns for her family’s health is particularly poignant given her personal history. Her family was plagued by misfortune and illness and she lost three of her ten children in a six-year period including two within just months of each other. Clark herself would die during childbirth in 1874. Sharing and Caring The word “recipe” has its origins in the Latin recipere meaning to “receive”. In order to receive there has to be, by implication, someone doing the giving. A recipe signifies an exchange and a connection between individuals. The sharing of recipes was a common activity for many women in nineteenth century Australia. Wilhelmina Rawson, Queensland’s first published cookbook author, was keenly aware of the manner in which women shared recipes and culinary knowledge. This act of reciprocity, she argued, not only helped to ease the isolation of bush living but also allowed each individual to be “benefited by the cleverness of the whole number” (14). For many, food often has a deeply private and personal component, being prepared and consumed within the realm of the home. However, food is also a communal experience and is openly shared through rituals, feasts, the contexts in which it is bought and sold, and, most importantly, reciprocal exchange. In her manuscript, Clark acknowledged a number of different individuals as the source for the recipes she included within its pages. The convention of acknowledging the sources of recipes in manuscript cookbooks functions as a way to assert the recipe’s authority and to ensure that they are proven (Sherman 122). This act of acknowledgement also locates Clark within a social network of women who not only shared recipes but also, one can imagine, many of the vicissitudes of domestic life in a remote rural setting. In her study of women’s manuscript cookbooks, entitled Eat My Words: Reading Women’s Lives Through the Cookbooks They Wrote, Janet Theophano describes these texts as “the maps of the social and cultural life they inhabited” (13). This circulation of recipes allowed women to share their knowledge, skills, and creativity. Those who received and used these recipes not only engaged in a conversation with the writer of these recipes but also formed a connection with a broader community that allowed them to learn more about themselves and the world. Conclusion The manuscript cookbook created by Phillis Clark is a fascinating prism through which to explore domestic life in colonial Australia. The recipes contained in Clark’s manuscript reflect the eating habits of her own family and those of a particular social class in Queensland. They not only demonstrate the tenacity of British foodways in Australia but also show the degree of culinary adventurism that existed in some homes. The personal, almost autobiographical nature of manuscript cookbooks also provides an intimate view in the life of its creator. In the splattered pages of Phillis Clark’s book we can read the many travails, joys, and tragedies of her life. References Abbott, Edward. The English and Australian Cookery Book: Cookery for the Many, as Well as for the Upper Ten Thousand. London: Sampson Low, Son, and Marston, 1864. ‘Advertising’. Launceston Examiner 9 Mar. 1858: 1. ‘Boullion, The Common Soup of France’. The Sydney Morning Herald 22 Aug. 1845: 4. Clark, Phillis. “Manuscript Cookbook”. 1863 Floyd, Janet, and Laurel Forster. “The Recipe in Its Cultural Content.” The Recipe Reader: Narratives, Contexts, Traditions. Ed. Janet Floyd and Laurel Forster. Aldershot, Hants, England: Ashgate. 2003. Hume, Anna Kate. Katie Hume on the Darling Downs, a Colonial Marriage: Letters of a Colonial Lady, 1866-1871. Ed. Nancy Bonnin. Toowoomba: DDIP, 1985. Mason, Laura. Food Culture in Great Britain. Greenwood, 2004. Mennell, Stephen. All Manners of Food: Eating and Taste in England and France from the Middle Ages to the Present. Oxford, UK: B. Blackwell, 1985. Murcott, Anne. “The Cultural Significance of Food and Eating”. Proceedings of the Nutrition Society 41.02 (1982): 203–10. Newlyn, Andrea K. “Redefining ‘Rudimentary’ Narrative: Women’s Nineteenth Century Manuscript Cookbooks”. The Recipe Reader: Narratives, Contexts, Traditions. Ed. Janet Floyd and Laurel Forster. Aldershot, Hants, England: Ashgate, 2003. Rawson, Wilhelmina. Australian Enquiry Book of Household and General Information: A Practical Guide for the Cottage, Villa and Bush Home. Melbourne: Pater and Knapton, 1894. Sherman, S. “‘The Whole Art and Mystery of Cooking’: What Cookbooks Taught Readers in the Eighteenth Century”. Eighteenth-Century Life 28.1 (2004): 115–35. Singley, Blake. “‘Hardly Anything Fit for Man to Eat’: Food and Colonialism in Australia.” History Australia 9.3 (2012): 27–42. Theophano, Janet. Eat My Words: Reading Women’s Lives Through the Cookbooks They Wrote. New York, N.Y: Palgrave, 2002. Waterson, D. B. “A Darling Downs Quartet”. Queensland Heritage 1.7 (1967): 3–14. Waterson, D. B. Squatter, Selector and Storekeeper: A History of the Darling Downs, 1859-93. Sydney: Sydney UP, 1968. Wessell, Adele. “There’s No Taste Like Home: The Food of Empire”. Exploring the British World: Identity, Cultural Production, Institutions. Ed. Kate Darian-Smith and Patricia Grimshaw. Melbourne: RMIT, 2004.

In Australia the “intimacy” of citizenship (Berlant 2), is often used to reinforce subscription to heteronormative romantic and familial structures. Because this framing promotes discourses of moral failure, recent political attention to sexuality and same-sex couples can be filtered through insights into coalitional affiliations. This paper uses contemporary shifts in Australian politics and culture to think through the concept of coalition, and in particular to analyse connections between sexuality and governmentality (or more specifically normative bias and same-sex relationships) in what I’m calling post-coalitional Australia. Against the unpredictability of changing parties and governments, allegiances and alliances, this paper suggests the continuing adherence to a heteronormatively arranged public sphere. After the current Australian Prime Minister Julia Gillard deposed the previous leader, Kevin Rudd, she clung to power with the help of independents and the Greens, and clichés of a “rainbow coalition” and a “new paradigm” were invoked to describe the confused electorate and governmental configuration. Yet in 2007, a less confused Australia decisively threw out the Howard–led Liberal and National Party coalition government after eleven years, in favour of Rudd’s own rainbow coalition: a seemingly invigorated party focussed on gender equity, Indigenous Australians, multi-cultural visibility, workplace relations, Austral-Asian relations, humane refugee processing, the environment, and the rights and obligations of same-sex couples. A post-coalitional Australia invokes something akin to “aftermath culture” (Lambert and Simpson), referring not just to Rudd’s fall or Howard’s election loss, but to the broader shifting contexts within which most Australian citizens live, and within which they make sense of the terms “Australia” and “Australian”. Contemporary Australia is marked everywhere by cracks in coalitions and shifts in allegiances and belief systems – the Coalition of the Willing falling apart, the coalition government crushed by defeat, deposed leaders, and unlikely political shifts and (re)alignments in the face of a hung parliament and renewed pushes toward moral and cultural change. These breakdowns in allegiances are followed by swift symbolically charged manoeuvres. Gillard moved quickly to repair relations with mining companies damaged by Rudd’s plans for a mining tax and to water down frustration with the lack of a sustainable Emissions Trading Scheme. And one of the first things Kevin Rudd did as Prime Minister was to change the fittings and furnishings in the Prime Ministerial office, of which Wright observed that “Mr Howard is gone and Prime Minister Kevin Rudd has moved in, the Parliament House bureaucracy has ensured all signs of the old-style gentlemen's club… have been banished” (The Age, 5 Dec. 2007). Some of these signs were soon replaced by Ms. Gillard herself, who filled the office in turn with memorabilia from her beloved Footscray, an Australian Rules football team. In post-coalitional Australia the exile of the old Menzies’ desk and a pair of Chesterfield sofas works alongside the withdrawal of troops from Iraq and renewed pledges for military presence in Afghanistan, apologising to stolen generations of Indigenous Australians, the first female Governor General, deputy Prime Minister and then Prime Minister (the last two both Gillard), the repealing of disadvantageous workplace reform, a focus on climate change and global warming (with limited success as stated), a public, mandatory paid maternity leave scheme, changes to the processing and visas of refugees, and the amendments to more than one hundred laws that discriminate against same sex couples by the pre-Gillard, Rudd-led Labor government. The context for these changes was encapsulated in an announcement from Rudd, made in March 2008: Our core organising principle as a Government is equality of opportunity. And advancing people and their opportunities in life, we are a Government which prides itself on being blind to gender, blind to economic background, blind to social background, blind to race, blind to sexuality. (Rudd, “International”) Noting the political possibilities and the political convenience of blindness, this paper navigates the confusing context of post-coalitional Australia, whilst proffering an understanding of some of the cultural forces at work in this age of shifting and unstable alliances. I begin by interrogating the coalitional impulse post 9/11. I do this by connecting public coalitional shifts to the steady withdrawal of support for John Howard’s coalition, and movement away from George Bush’s Coalition of the Willing and the War on Terror. I then draw out a relationship between the rise and fall of such affiliations and recent shifts within government policy affecting same-sex couples, from former Prime Minister Howard’s amendments to The Marriage Act 1961 to the Rudd-Gillard administration’s attention to the discrimination in many Australian laws. Sexual Citizenship and Coalitions Rights and entitlements have always been constructed and managed in ways that live out understandings of biopower and social death (Foucault History; Discipline). The disciplining of bodies, identities and pleasures is so deeply entrenched in government and law that any non-normative claim to rights requires the negotiation of existing structures. Sexual citizenship destabilises the post-coalitional paradigm of Australian politics (one of “equal opportunity” and consensus) by foregrounding the normative biases that similarly transcend partisan politics. Sexual citizenship has been well excavated in critical work from Evans, Berlant, Weeks, Richardson, and Bell and Binnie’s The Sexual Citizen which argues that “many of the current modes of the political articulation of sexual citizenship are marked by compromise; this is inherent in the very notion itself… the twinning of rights with responsibilities in the logic of citizenship is another way of expressing compromise… Every entitlement is freighted with a duty” (2-3). This logic extends to political and economic contexts, where “natural” coalition refers primarily to parties, and in particular those “who have powerful shared interests… make highly valuable trades, or who, as a unit, can extract significant value from others without much risk of being split” (Lax and Sebinius 158). Though the term is always in some way politicised, it need not refer only to partisan, multiparty or multilateral configurations. The subscription to the norms (or normativity) of a certain familial, social, religious, ethnic, or leisure groups is clearly coalitional (as in a home or a front, a club or a team, a committee or a congregation). Although coalition is interrogated in political and social sciences, it is examined frequently in mathematical game theory and behavioural psychology. In the former, as in Axelrod’s The Evolution of Cooperation, it refers to people (or players) who collaborate to successfully pursue their own self-interests, often in the absence of central authority. In behavioural psychology the focus is on group formations and their attendant strategies, biases and discriminations. Experimental psychologists have found “categorizing individuals into two social groups predisposes humans to discriminate… against the outgroup in both allocation of resources and evaluation of conduct” (Kurzban, Tooby and Cosmides 15387). The actions of social organisation (and not unseen individual, supposedly innate impulses) reflect the cultural norms in coalitional attachments – evidenced by the relationship between resources and conduct that unquestioningly grants and protects the rights and entitlements of the larger, heteronormatively aligned “ingroup”. Terror Management Particular attention has been paid to coalitional formations and discriminatory practices in America and the West since September 11, 2001. Terror Management Theory or TMT (Greenberg, Pyszczynski and Solomon) has been the main framework used to explain the post-9/11 reassertion of large group identities along ideological, religious, ethnic and violently nationalistic lines. Psychologists have used “death-related stimuli” to explain coalitional mentalities within the recent contexts of globalised terror. The fear of death that results in discriminatory excesses is referred to as “mortality salience”, with respect to the highly visible aspects of terror that expose people to the possibility of their own death or suffering. Naverette and Fessler find “participants… asked to contemplate their own deaths exhibit increases in positive evaluations of people whose attitudes and values are similar to their own, and derogation of those holding dissimilar views” (299). It was within the climate of post 9/11 “mortality salience” that then Prime Minister John Howard set out to change The Marriage Act 1961 and the Family Law Act 1975. In 2004, the Government modified the Marriage Act to eliminate flexibility with respect to the definition of marriage. Agitation for gay marriage was not as noticeable in Australia as it was in the U.S where Bush publicly rejected it, and the UK where the Civil Union Act 2004 had just been passed. Following Bush, Howard’s “queer moral panic” seemed the perfect decoy for the increased scrutiny of Australia’s involvement in the Iraq war. Howard’s changes included outlawing adoption for same-sex couples, and no recognition for legal same-sex marriages performed in other countries. The centrepiece was the wording of The Marriage Amendment Act 2004, with marriage now defined as a union “between a man and a woman to the exclusion of all others”. The legislation was referred to by the Australian Greens Senator Bob Brown as “hateful”, “the marriage discrimination act” and the “straight Australia policy” (Commonwealth 26556). The Labor Party, in opposition, allowed the changes to pass (in spite of vocal protests from one member) by concluding the legal status of same-sex relations was in no way affected, seemingly missing (in addition to the obvious symbolic and physical discrimination) the equation of same-sex recognition with terror, terrorism and death. Non-normative sexual citizenship was deployed as yet another form of “mortality salience”, made explicit in Howard’s description of the changes as necessary in protecting the sanctity of the “bedrock institution” of marriage and, wait for it, “providing for the survival of the species” (Knight, 5 Aug. 2003). So two things seem to be happening here: the first is that when confronted with the possibility of their own death (either through terrorism or gay marriage) people value those who are most like them, joining to devalue those who aren’t; the second is that the worldview (the larger religious, political, social perspectives to which people subscribe) becomes protection from the potential death that terror/queerness represents. Coalition of the (Un)willing Yet, if contemporary coalitions are formed through fear of death or species survival, how, for example, might these explain the various forms of risk-taking behaviours exhibited within Western democracies targeted by such terrors? Navarette and Fessler (309) argue that “affiliation defences are triggered by a wider variety of threats” than “existential anxiety” and that worldviews are “in turn are reliant on ‘normative conformity’” (308) or “normative bias” for social benefits and social inclusions, because “a normative orientation” demonstrates allegiance to the ingroup (308-9). Coalitions are founded in conformity to particular sets of norms, values, codes or belief systems. They are responses to adaptive challenges, particularly since September 11, not simply to death but more broadly to change. In troubled times, coalitions restore a shared sense of predictability. In Howard’s case, he seemed to say, “the War in Iraq is tricky but we have a bigger (same-sex) threat to deal with right now. So trust me on both fronts”. Coalitional change as reflective of adaptive responses thus serves the critical location of subsequent shifts in public support. Before and since September 11 Australians were beginning to distinguish between moderation and extremism, between Christian fundamentalism and productive forms of nationalism. Howard’s unwavering commitment to the American-led war in Iraq saw Australia become a member of another coalition: the Coalition of the Willing, a post 1990s term used to describe militaristic or humanitarian interventions in certain parts of the world by groups of countries. Howard (in Pauly and Lansford 70) committed Australia to America’s fight but also to “civilization's fight… of all who believe in progress and pluralism, tolerance and freedom”. Although Bush claimed an international balance of power and influence within the coalition (94), some countries refused to participate, many quickly withdrew, and many who signed did not even have troops. In Australia, the war was never particularly popular. In 2003, forty-two legal experts found the war contravened International Law as well as United Nations and Geneva conventions (Sydney Morning Herald 26 Feb. 2003). After the immeasurable loss of Iraqi life, and as the bodies of young American soldiers (and the occasional non-American) began to pile up, the official term “coalition of the willing” was quietly abandoned by the White House in January of 2005, replaced by a “smaller roster of 28 countries with troops in Iraq” (ABC News Online 22 Jan. 2005). The coalition and its larger war on terror placed John Howard within the context of coalitional confusion, that when combined with the domestic effects of economic and social policy, proved politically fatal. The problem was the unclear constitution of available coalitional configurations. Howard’s continued support of Bush and the war in Iraq compounded with rising interest rates, industrial relations reform and a seriously uncool approach to the environment and social inclusion, to shift perceptions of him from father of the nation to dangerous, dithery and disconnected old man. Post-Coalitional Change In contrast, before being elected Kevin Rudd sought to reframe Australian coalitional relationships. In 2006, he positions the Australian-United States alliance outside of the notion of military action and Western territorial integrity. In Rudd-speak the Howard-Bush-Blair “coalition of the willing” becomes F. Scott Fitzgerald’s “willingness of the heart”. The term coalition was replaced by terms such as dialogue and affiliation (Rudd, “Friends”). Since the 2007 election, Rudd moved quickly to distance himself from the agenda of the coalition government that preceded him, proposing changes in the spirit of “blindness” toward marginality and sexuality. “Fix-it-all” Rudd as he was christened (Sydney Morning Herald 29 Sep. 2008) and his Labor government began to confront the legacies of colonial history, industrial relations, refugee detention and climate change – by apologising to Aboriginal people, timetabling the withdrawal from Iraq, abolishing the employee bargaining system Workchoices, giving instant visas and lessening detention time for refugees, and signing the Kyoto Protocol agreeing (at least in principle) to reduce green house gas emissions. As stated earlier, post-coalitional Australia is not simply talking about sudden change but an extension and a confusion of what has gone on before (so that the term resembles postcolonial, poststructural and postmodern because it carries the practices and effects of the original term within it). The post-coalitional is still coalitional to the extent that we must ask: what remains the same in the midst of such visible changes? An American focus in international affairs, a Christian platform for social policy, an absence of financial compensation for the Aboriginal Australians who received such an eloquent apology, the lack of coherent and productive outcomes in the areas of asylum and climate change, and an impenetrable resistance to the idea of same-sex marriage are just some of the ways in which these new governments continue on from the previous one. The Rudd-Gillard government’s dealings with gay law reform and gay marriage exemplify the post-coalitional condition. Emulating Christ’s relationship to “the marginalised and the oppressed”, and with Gillard at his side, Rudd understandings of the Christian Gospel as a “social gospel” (Rudd, “Faith”; see also Randell-Moon) to table changes to laws discriminating against gay couples – guaranteeing hospital visits, social security benefits and access to superannuation, resembling de-facto hetero relationships but modelled on the administering and registration of relationships, or on tax laws that speak primarily to relations of financial dependence – with particular reference to children. The changes are based on the report, Same Sex, Same Entitlements (HREOC) that argues for the social competence of queer folk, with respect to money, property and reproduction. They speak the language of an equitable economics; one that still leaves healthy and childless couples with limited recognition and advantage but increased financial obligation. Unable to marry in Australia, same-sex couples are no longer single for taxation purposes, but are now simultaneously subject to forms of tax/income auditing and governmental revenue collection should either same-sex partner require assistance from social security as if they were married. Heteronormative Coalition Queer citizens can quietly stake their economic claims and in most states discreetly sign their names on a register before becoming invisible again. Mardi Gras happens but once a year after all. On the topic of gay marriage Rudd and Gillard have deferred to past policy and to the immoveable nature of the law (and to Howard’s particular changes to marriage law). That same respect is not extended to laws passed by Howard on industrial relations or border control. In spite of finding no gospel references to Jesus the Nazarene “expressly preaching against homosexuality” (Rudd, “Faith”), and pre-election promises that territories could govern themselves with respect to same sex partnerships, the Rudd-Gillard government in 2008 pressured the ACT to reduce its proposed partnership legislation to that of a relationship register like the ones in Tasmania and Victoria, and explicitly demanded that there be absolutely no ceremony – no mimicking of the real deal, of the larger, heterosexual citizens’ “ingroup”. Likewise, with respect to the reintroduction of same-sex marriage legislation by Greens senator Sarah Hanson Young in September 2010, Gillard has so far refused a conscience vote on the issue and restated the “marriage is between a man and a woman” rhetoric of her predecessors (Topsfield, 30 Sep. 2010). At the same time, she has agreed to conscience votes on euthanasia and openly declared bi-partisan (with the federal opposition) support for the war in Afghanistan. We see now, from Howard to Rudd and now Gillard, that there are some coalitions that override political differences. As psychologists have noted, “if the social benefits of norm adherence are the ultimate cause of the individual’s subscription to worldviews, then the focus and salience of a given individual’s ideology can be expected to vary as a function of their need to ally themselves with relevant others” (Navarette and Fessler 307). Where Howard invoked the “Judaeo-Christian tradition”, Rudd chose to cite a “Christian ethical framework” (Rudd, “Faith”), that saw him and Gillard end up in exactly the same place: same sex relationships should be reduced to that of medical care or financial dependence; that a public ceremony marking relationship recognition somehow equates to “mimicking” the already performative and symbolic heterosexual institution of marriage and the associated romantic and familial arrangements. Conclusion Post-coalitional Australia refers to the state of confusion borne of a new politics of equality and change. The shift in Australia from conservative to mildly socialist government(s) is not as sudden as Howard’s 2007 federal loss or as short-lived as Gillard’s hung parliament might respectively suggest. Whilst allegiance shifts, political parties find support is reliant on persistence as much as it is on change – they decide how to buffer and bolster the same coalitions (ones that continue to privilege white settlement, Christian belief systems, heteronormative familial and symbolic practices), but also how to practice policy and social responsibility in a different way. Rudd’s and Gillard’s arguments against the mimicry of heterosexual symbolism and the ceremonial validation of same-sex partnerships imply there is one originary form of conduct and an associated sacred set of symbols reserved for that larger ingroup. Like Howard before them, these post-coalitional leaders fail to recognise, as Butler eloquently argues, “gay is to straight not as copy is to original, but as copy is to copy” (31). To make claims to status and entitlements that invoke the messiness of non-normative sex acts and romantic attachments necessarily requires the negotiation of heteronormative coalitional bias (and in some ways a reinforcement of this social power). As Bell and Binnie have rightly observed, “that’s what the hard choices facing the sexual citizen are: the push towards rights claims that make dissident sexualities fit into heterosexual culture, by demanding equality and recognition, versus the demand to reject settling for heteronormativity” (141). The new Australian political “blindness” toward discrimination produces positive outcomes whilst it explicitly reanimates the histories of oppression it seeks to redress. The New South Wales parliament recently voted to allow same-sex adoption with the proviso that concerned parties could choose not to adopt to gay couples. The Tasmanian government voted to recognise same-sex marriages and unions from outside Australia, in the absence of same-sex marriage beyond the current registration arrangements in its own state. In post-coalitional Australia the issue of same-sex partnership recognition pits parties and allegiances against each other and against themselves from within (inside Gillard’s “rainbow coalition” the Rainbow ALP group now unites gay people within the government’s own party). Gillard has hinted any new proposed legislation regarding same-sex marriage may not even come before parliament for debate, as it deals with real business. Perhaps the answer lies over the rainbow (coalition). As the saying goes, “there are none so blind as those that will not see”. References ABC News Online. “Whitehouse Scraps Coalition of the Willing List.” 22 Jan. 2005. 1 July 2007 ‹http://www.abc.net.au/news/newsitems/200501/s1286872.htm›. Axelrod, Robert. The Evolution of Cooperation. New York: Basic Books, 1984. Berlant, Lauren. The Queen of America Goes to Washington City: Essays on Sex and Citizenship. Durham: Duke University Press, 1997. Bell, David, and John Binnie. The Sexual Citizen: Queer Politics and Beyond. Cambridge, England: Polity, 2000. Butler, Judith. Gender Trouble: Feminism and the Subversion of Identity. New York: Routledge, 1990. Commonwealth of Australia. Parliamentary Debates. House of Representatives 12 Aug. 2004: 26556. (Bob Brown, Senator, Tasmania.) Evans, David T. Sexual Citizenship: The Material Construction of Sexualities. London: Routledge, 1993. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. A. Sheridan. London: Penguin, 1991. ———. The Will to Knowledge: The History of Sexuality. Vol. 1. Trans. Robert Hurley. London: Penguin, 1998. Greenberg, Jeff, Tom Pyszczynski, and Sheldon Solomon. “The Causes and Consequences of the Need for Self-Esteem: A Terror Management Theory.” Public Self, Private Self. Ed. Roy F. Baumeister. New York: Springer-Verlag, 1986. 189-212. Human Rights and Equal Opportunity Commission. Same-Sex: Same Entitlements Report. 2007. 21 Aug. 2007 ‹http://www.hreoc.gov.au/human_rights/samesex/report/index.html›. Kaplan, Morris. Sexual Justice: Democratic Citizenship and the Politics of Desire. New York: Routledge, 1997. Knight, Ben. “Howard and Costello Reject Gay Marriage.” ABC Online 5 Aug. 2003. Kurzban, Robert, John Tooby, and Leda Cosmides. "Can Race Be Erased? Coalitional Computation and Social Categorization." Proceedings of the National Academy of Sciences 98.26 (2001): 15387–15392. Lambert, Anthony, and Catherine Simpson. "Jindabyne’s Haunted Alpine Country: Producing (an) Australian Badland." M/C Journal 11.5 (2008). 20 Oct. 2010 ‹http://journal.media-culture.org.au/index.php/mcjournal/article/view/81›. Lax, David A., and James K. Lebinius. “Thinking Coalitionally: Party Arithmetic Process Opportunism, and Strategic Sequencing.” Negotiation Analysis. Ed. H. Peyton Young. Michigan: University of Michigan Press, 1991. 153-194. Naverette, Carlos, and Daniel Fessler. “Normative Bias and Adaptive Challenges: A Relational Approach to Coalitional Psychology and a Critique of Terror Management Theory.” Evolutionary Psychology 3 (2005): 297-325. Pauly, Robert J., and Tom Lansford. Strategic Preemption: US Foreign Policy and Second Iraq War. Aldershot: Ashgate, 2005. Randall-Moon, Holly. "Neoliberal Governmentality with a Christian Twist: Religion and Social Security under the Howard-Led Australian Government." Eds. Michael Bailey and Guy Redden. Mediating Faiths: Religion and Socio- Cultural Change in the Twenty-First Century. Farnham: Ashgate, in press. Richardson, Diane. Rethinking Sexuality. London: Sage, 2000. Rudd, Kevin. “Faith in Politics.” The Monthly 17 (2006). 31 July 2007 ‹http://www.themonthly.com.au/monthly-essays-kevin-rudd-faith-politics--300›. Rudd, Kevin. “Friends of Australia, Friends of America, and Friends of the Alliance That Unites Us All.” Address to the 15th Australian-American Leadership Dialogue. The Australian, 24 Aug. 2007. 13 Mar. 2008 ‹http://www.theaustralian.com.au/national-affairs/climate/kevin-rudds-address/story-e6frg6xf-1111114253042›. Rudd, Kevin. “Address to International Women’s Day Morning Tea.” Old Parliament House, Canberra, 11 Mar. 2008. 1 Oct. 2010 ‹http://pmrudd.archive.dpmc.gov.au/node/5900›. Sydney Morning Herald. “Coalition of the Willing? Make That War Criminals.” 26 Feb. 2003. 1 July 2007 ‹http://www.smh.com.au/articles/2003/02/25/1046064028608.html›. Topsfield, Jewel. “Gillard Rules Out Conscience Vote on Gay Marriage.” The Age 30 Sep. 2010. 1 Oct. 2010 ‹http://www.theage.com.au/national/gillard-rules-out-conscience-vote-on-gay-marriage-20100929-15xgj.html›. Weeks, Jeffrey. "The Sexual Citizen." Theory, Culture and Society 15.3-4 (1998): 35-52. Wright, Tony. “Suite Revenge on Chesterfield.” The Age 5 Dec. 2007. 4 April 2008 ‹http://www.theage.com.au/news/national/suite-revenge-on-chesterfield/2007/12/04/1196530678384.html›.