ISSN 1440-9828
                                                   March 2007               
                                                                                   No 321

 

Free Speech and its Postmodern Adversaries - III

 

Laurence  W Maher, Barrister

 

132. In Fraser's case, the tone of the language used to condemn the Irving article is so repeatedly inflammatory and apocalyptic that it bespeaks a fanaticism or religiosity in which all opponents of one's views, real and imaginary, and all contrary arguments, are lumped together for comprehensive vilification. [173] Here all ambiguity is shed. For Fraser, the starting point is that the Irving article, exemplifying (as does the Sydney Law Review's preparedness to publish it) what Fraser so recklessly labels "the nightmare of Holocaust denial", involves the academic legitimation of antisemitism, of hatred, paranoia, conspiracy and violence.[174] Anyone, but especially lawyers, who dare to defend freedom of expression for Holocaust deniers are described as behaving in the following terms-

        o Are we condemned to live out Finkielkraut's nightmare, in which the reality and memory of the extermination are themselves relegated to the ash heap of history in a legal struggle in which the criminals set the rules? Can justice become part of our discursive practice or are we condemned to live out the legalised nightmare of forgetting forced on us by free speech? (emphasis supplied); [175]

        o Thus, the deniers put themselves in the position of the embattled truth-seekers who are merely trying to place the "facts" in the marketplace of ideas so that people can make up their own minds on the question of the facticity of the Shoah. Against them are arrayed the forces of another "school of thought", the "exterminationists", who have gained the upper hand through lies and distortion and who seek to maintain their dominant position by barring access to the marketplace for [Holocaust] deniers through the same strategies of lies and distortion aided and abetted by laws which prevent them from presenting their point of view. To the free speech discourse which so enamours the legal profession is added the label of "martyr". To the label of martyr is added victim of Jewish persecution. And the strategy seems to be working. Maher and other lawyers like him accept the free speech argument. [176]

        o Now, the reality of the "Final Solution" is itself under semiotic assault by a new group which seeks to remove the euphemisms of the Third Reich in order to pave the way for a "Final Solution" of the "Final Solution". This is the nightmare of Finkielkraut's quotation which opens this chapter. Law replaces justice as it becomes impossible to speak of justice. The attack against memory, the sacrilege against the dead and the living, the incitement to hatred which is the message and goal of Holocaust denial, all are examples of the violence of the law (Derrida, 1990) and all are closer than we might like to think. The academic legitimation of antisemitism, of hatred, paranoia, conspiracy and violence, which are the goals of the Holocaust deniers and which unite them with other purveyors and practitioners of hate, are increasingly public and present in everyday life. [177]

133. This is scarcely the language of a scholarly investigator seeking out the truth. In the present social environment, the epithet "racist" is reserved by many for the most heinous forms of anti-social behaviour. The facile if not profligate use of that epithet threatens (if this is not already the case) to strip it of all meaning and utility. Fraser's denial of the categorical free speech distinction and his unambiguous sweeping use of the descriptive term "the nightmare of Holocaust denial" with indifference to the truth demonstrate just how far he strays from reality. Fraser has a tendency to speak in the first person plural which is consistent with a dogmatic attachment to  platitudes and pieties. So, for example, Fraser who freely admits to a "postmodern angst of reality loss", attributes this puzzling condition to everyone. [178]

Repudiating The Fact/Opinion Distinction

134. For the initiated, the technique broadly encompassed by the term "deconstruction", is a means, inter alia, of displacing the critical distinction between statements of fact and those which offer opinion, comment, judgment, or interpretation. As Fraser demonstrates in his "reading" of the Irving article, his postmodernism proceeds on the footing that all would-be statements and representations of fact are really only interpretative judgments and need to be subjected to deconstruction. In Fraser's case, the thoroughgoing commitment to postmodern readings is characterised by a persistent disregard of plain English.

135. More specifically, Fraser's article serves to illustrate the impact of postmodern cultural, social and political theories on the continuing debate about the value and boundaries of individual freedom of thought, speech, and association in a free and pluralist society. Arguably, postmodernism has generated the most detailed and comprehensive contemporary response to the edifice of liberal democratic arguments favouring minimal restrictions on individual free speech. The postmodern atttack on free speech is full-blooded. It goes far beyond mere skirmishing about the margins of the traditional arguments advanced by Milton, Mill, Dworkin et al. Its main features may be summarised as follows:

Vague And Subjective Criteria Of Liability

136. Postmodernism's attachment to sweeping generalisation and abstraction and to dense figurative language provides part of the explanation for why the new group vilification laws in Australia focus on penalising such ill-defined (if not indefinable) abstract notions as offensiveness, insult, humiliation, intimidation and collective psychic harm. Similarly, it underpins generalised claims such as that which proceeds on the basis that hate speech laws are justified and necessary responses to the harmful "pollution" of our social and personal environment.[179] The term "hate speech" itself is vague in the extreme and is frequently used without any attempt to identify precisely what it means.

Assimilating Speech And Conduct

137. Similarly, the postmodern fascination with the use of metaphor makes it inevitable that the crucial dividing line between speech and conduct will be fudged in order to suppress speech which is said, for example, to embody concepts like "symbolic" or "spiritual" violence or "spirit murder".

Psychic Group "Harm" And The Promotion Of Symbolic Legal Prohibitions

138. The persistent use of abstraction and metaphor also paves the way for the justification that mere words deserve to be punished because they are so powerful as to inflict disabling "psychic harm" on entire groups of vulnerable or victimised citizens. This type of claim is made, in part at least, to meet the conventional free speech arguments based on the need to safeguard the primacy of individual self-expression as essential to democratic self-government. Proponents of hate speech laws frequently emphasise that, in any event, such laws are really only aimed at the most egregious expressions of prejudice and enmity and thus effect only a relatively minor and proportionate restriction on speech in the rebalancing of competing social interests. Moreover, it is often said that even if the new laws result in few prosecutions or civil sanctions, they are justifiable for their symbolic affirmation that nowadays individual free speech must yield where the protection of selective minority concerns and sensibilities is regarded as being more important.

Penalising "Dangerous Tendency"

139. Claims that speech which is dangerous because it has a tendency to harm entire disadvantaged or victimised groups are rarely if ever supported by empirical data. It is not thought to be necessary to demonstrate apprehended tangible harm either because group psychic harm is, as if by definition, presumed or because it is really the state of mind or belief of the speaker which is the principal target of hate speech prohibitions. Where dangerous tendency is concerned, the clash between the liberal and postmodern free speech positions is particularly stark. In the case of so-called "hate speech" (as with all speech), two broad empirical questions necessarily arise. First, in any given case, is the hateful statement true or false? As James Weinstein observes, bigotted statements about entire groups of persons are usually demonstrably false and not believable by any reasonable person. [180] In many if not most situations, such statements simply hold the speaker up to hatred, ridicule and contempt. Secondly, what can we sensibly say about the likely impact of "hate speech" (howsoever defined) on a public audience? As a general proposition, speech can, of course, affect human behaviour for better or for worse.

It can cause individuals to affirm or change their ideas, it can cause them to express ideas and opinions, and it can cause them to engage in conduct beyond the mere expression of ideas including conduct urging others to adopt ideas and opinions and urging others themselves to express ideas and to engage in conduct. But, so far as harm or detriment or dangerous tendency is concerned, that acknowledgment involves saying no more than the obvious, namely, that some feared (or welcome) event might (or might not) happen at some time in the (near or distant) future. The critical empirical sub-questions are: what is the gravity of the alleged threat of harm, and how likely and imminent is that threat? These discrete questions tend to be treated as irrelevant by postmodern critics of the liberal case for individual free speech.

Digressing From The Struggle Against Discrimination

140. Assumptions about dangerous tendency and the absence of concern for careful empirical investigation contributes in part to the explanation of why proponents of "hate speech" laws seldom if ever concern themselves with the following questions: Are laws which are aimed at punishing individuals not so much for what they do or say, but rather principally for what they think or feel, likely to bring about any measurable improvement in the attitudes of those individuals, their followers, or, more importantly, in society as a whole? Are such laws and their associated police apparatus likely to achieve any reduction in everyday invidious discriminatory conduct in, for example, housing, employment, or the provision of public services? An affirmative response to these questions seem highly unlikely. For all its use of postmodern imagery, there is a complete failure of imagination and understanding in the literature of the case advanced by the proponents of censorship of hate speech. Utility seems to be an irrelevant factor.

An Aversion To Trusting To The Truth

141. The postmodern aversion to claims for the existence of objective truth or of truth that is not somehow always provisional or contingent on text or social context or power relations is frequently offered as an answer to the so-called "marketplace of ideas" justification for minimum restrictions on individual freedom of thought and expression. If, as postmodernists contend, all claims to truth are, to some extent, socially constructed or chimerical, then allowing and encouraging the struggle between conflicting ideas offers little or no prospect of ascertaining truth. In a very tangible way the relativism of postmodernism, the idea that one "truth", idea or viewpoint or interpretation is, culturally, as good as the next, is entirely incompatible with the conventional argument in favour of maximising individual free speech that we have nothing to fear from the clash of ideas. This, however, draws attention to what critics of postmodernism see as one of its central flaws, namely, its simultaneous rejection of "false universalism" and claims for objective truth, and the iron certainty of its own unique claims for the universal necessity for and reliability of deconstruction as the technique for revealing the truth of all power relations.

Education And "Re-Education"

142. Postmodern concerns about the perils of spirited exchange of ideas and

 opinions in a free and open society is not manifested only in support for punitive responses by the State to hate speech. There is also an emphasis on the need for the State to give voice to the feelings and stories of the minorities who are allegedly "excluded", "silenced" or "marginalised" by a regime which encourages or permits maximum individual free speech and one which, moreover, is "free" only to those who have access to the organs of the "dominant" mass media. Education is, of course, crucial to the fight against bigotry and hate. The new hate speech and censorship laws are not limited to punishing the expression of disapproved of ideas and opinions judged to be inimical to the dignity or wellbeing of disadvantaged minorities. They also provide for the creation of Commonwealth and State anti-discrimination bureaucracies whose functions include the dissemination of officially approved ideas and forms of speech concerning those minorities. This function is given effect, in part, in the promotion of public educational processes for inculcating "cultural awareness" and "cultural sensitivity" in which "dominant majority insiders" are, as it were, initiated into an officially approved understanding of minority sensibilities partly through self-abasement. However, the line between genuine education on the one hand and therapeutic indoctrination on the other hand may be blurred if and when a zeal for orthodoxy takes hold. The worrying fact is that there is a kind of Orwellian "thought crime" dimension in the new concern of the State to police the way the citizenry thinks. This is manifested in State legislative provisions which explicitly seek to regulate "genuine beliefs" and in the use of the concept of "lawful political beliefs" and "lawful religious beliefs" [181] which seems inevitably to carry with it the chilling prospect that the coercive power of the state can be applied to an individual because of her or his "unlawful" beliefs".

Selectivity And Stereotyping

143. Ironically, the new hate speech laws are themselves discriminatory. The postmodern passion for the primacy of collective identity over autonomous individual personality and the cluster of "theories" about vulnerable minorities lays the foundation for hate speech laws targeted not at hate or bigotry or sectarianism in general but, instead, at selected categories of hateful expression and their justification on the basis that the right of each individual to free speech has to yield. The new vilification laws are based on stereotypes and are entirely arbitrary in their selective focus on the content of the targetted speech. They would, of course, be no less objectionable if they applied to offensiveness or vilification based on "class, creed, party or faction". [182]

Fear Of Division And Disharmomy

144. The postmodern concentration on the supposed inherent "victim" status of oppressed minorities produces a preoccupation with the need to be sensitive and to achieve equality by recognising the "truth" of subjective feelings and the claim that entire victimised or marginalised groups of citizens need to be protected against the "psychic assault" of offensive ideas that is to say ideas that individuals do not want to hear. Accordingly, not only is the traditional liberal argument that the truth will emerge from the clash of ideas in the marketplace of ideas repudiated because the truth can only ever be a social construction, but the very idea that there should be a clash of ideas is denounced because of its alleged tendency to be productive of conflict, disharmony, and resulting collective psychic harm to the vulnerable minorities. This approach ignores the fact that conflict is an inherent characteristic of a free and open society and, no less, the inevitability of some conflict as a product of multicultural diversity.

145. In the celebrated 1943 school flag salute case in the Supreme Court of the United States, West Virginia State Board of Education v Barnette, Mr Justice Jackson drew attention, in the following terms, to the futility of coerced "uniformity of sentiment in support of some end thought essential to [the] time":

146. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp our Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the last failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. [183]

147. Fraser's postmodern views about individual free speech manifested in chapter 6 of Faces of Hate are antithetical to free speech, to democratic values, and to scholarly investigation. They amount to little more than the crude claim that if a disagreeable idea upsets you enough, you are justified in seeking to deploy the criminal law to suppress those who voice it.

148. Whatever else it may be, or may have spawned, postmodernism (used in the broad generic sense referred to earlier) is a manifestation of skepticism as to claims about the real world and the ways in which we acquire reliable knowledge about the real world. It is, however, no criticism of postmodernism to observe that it promotes skepticism.

Academic or scholarly investigation - that is to say, the vigorous striving for and imparting of truth - thrives in and profits from skepticism and open, vigorous and questioning debate. There is nothing especially novel about sceptical analyses of our legal system. The continuing progress of legal scholarship no less than other areas of scholarly endeavour, has been marked by various forms of skepticism.

In particular, Twentieth Century legal scholarship has been significantly advanced by the output of the skepticism displayed particularly by the so-called American [184] and Scandinavian [185] legal realists and by others influenced by them. Theirs was a skepticism which embraced careful empirical investigation and a concern for the way in which the legal system in fact operated in society when considered alongside the aspirational (and often pompous and hypocritical) claims made for it. It was optimistic and instrumental. It was, however, a skepticism which eschewed sweeping dogmatic and sectarian claims about law and society; it was more a method than a rigid creed. And it was a skepticism whose practitioners sought to use the results of careful empirical investigation to effect progressive law reform and not as a platform for advocating nihilism and moral panic or repressive laws.

Conclusion

149. The debate about free speech should always be stimulated by skepticism, but it will not benefit by being swamped by abstraction, jargon or postmodern dogmatism. Nor, despite Fraser's claims to the contrary, do we have anything to fear from the continuing debate and the vehemence of claims for minimal restrictions on individual free speech. Fraser says he is worried by "[o]ur postmodern angst of reality loss". It is, however, an entirely self-inflicted condition. What should be a matter of concern is the complete folly of the current commitment to equipping the State with the power to police the way its citizens think in order to protect the sensitivities of entire groups and to coerce uniformity of sentiment.

Notes

[1] For approving treatments of the Act, see McNamara, L, "The Merits of Racial Hatred Laws: Beyond Free Speech" (1995) 4 Griffith L Rev 29; McNamara, L & Solomin, T, "The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment" (1996) 18, Adel L Rev 259. The underlying issues are examined in the Symposium in (1994),1 Aust J of Human Rights 140-353.

[2] See R v Langer [1972] VR 973. For a recent sampling of what might, very loosely, be termed Langer's 1990s version of "Maoism", see his "The revolution lives on, long after Mao" The Age, 24 December 1993.

[3] Langer v Commonwealth (1996) 186 CLR 302; Australian Electoral Commission v Langer [1996] 1 V.R. 576 (injunction granted); Australian Electoral Commission v Langer (unreported, Beach J, Supreme Court of Victoria, 14 February 1996)(Langer imprisoned until 30 April 1996 for contempt of court and ordered to pay costs on a solicitor-client basis); Langer v Australian Electoral Commission (No 1) (1996) 59 FCR 450; Langer v Australian Electoral Commission (No 2) (1996) 59 FCR 463; Walker, K & Dunne, K, "Mr Langer is Not Entitled to be an Agitator" (1996) 20 MULR 909; Twomey, A, "Free to Choose or Compelled to Lie?-The Rights of Voters after Langer v Commonwealth" (1996) 24 Fed L Rev 201; see also Muldowney v South Australia (1996) 186 CLR 352.

[4] Prime Minister Howard's "pall of censorship" speech was given to the Queensland Branch of the Liberal Party of Australia in September 1996: for contrasting reactions to it, see Lane, T, "Keeping a civil tongue", The Age, 26 September 1996; Reynolds, H, "Unrestrained and dangerous", The Australian 25 September 1996; see also the debate on racial tolerance: Parl Deb (House of Reps), 30 October 1996, 6156-6181.

[5] Fasold v Roberts (1997) 70 FCR 489; affirmed on appeal, Plimer v Roberts (1997) 150 ALR 235; special leave to appeal to the High Court refused, 19 June 1998.

[6] NSW, Parl Deb, 11 November 1997, 1403-1417, 1444-1447; Arena v Nader(1997) 42 NSWLR 427; special leave to appeal to the High Court refused, 15 October 1997; Craven, G, "A dangerous privilege" Herald Sun,

[6] November 1996; Campbell, E, "Investigating the Truth of Statements Made in Parliament: The Australian Experience" [1998] Public Law 125.

[7] Parl Deb (House of Reps), 10 September 1996, 3860-3863; McNamara, L,"The Things You Need: Racial Hatred, Pauline Hanson and the Limits of the Law" (1998) 2 Southern Cross U L Rev 92.

[8] The Age, 29 September 1998; Hanson v Australian Broadcasting Corporation (unreported, Court of Appeal (Qld), 29 August 1998), special leave to appeal to the High Court refused, 24 June 1999.

[9] Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1997) 145 ALR 464 (Merkel J); affirmed on appeal (1998) 82 FCR 225. Special leave to appeal to the High Court was refused on 11 December 1998; see Kumar, B, "Brown v The Classification Review Board: Robin Hood or Rebel Without a Cause?" (1999) 21 Syd L Rev 294. It was apparently suggested by the Attorney-General's Department that the inclusion of the complete text of the offending article in the judgment of Heerey J in the Full Federal Court was itself contrary to law: The Age, 27 March 1998.

[10] Irving v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 423; affirmed on appeal, (1996) 68 FCR 422.

[11] The Age, 17 December 1997.

[12] The Age, 14 July 1997; Re Minister for Immigration and Multicultural Affairs; ex parte Ervin (Transcript of hearing, High Court of Australia, B29/1997, Brennan CJ, 10, 11 July 1997).

[13] The Age, 10 November 1998.

[14] Pell v The Council of Trustees of the National Gallery of Victoria[1998] 2 VR 391. The Serrano exhibition opened, but was closed two days later as a result of repeated threats to the National Gallery and two damaging physical attacks on the controversial image; Harris, B, "Case Note", (1998) 22 MULR 217; for the later decision of the Victorian Civil and Administrative Tribunal striking out a complaint under the Equal Opportunity Act 1995, see Stokes and Others v National Gallery of Victoria (unreported, 6 November 1998); see also NSW, Law Reform Commission, Report No 74, Blasphemy (1994); Unsworth, C, "Blasphemy, Cultural Divergence and Legal Relativism" (1995) 58 Mod L Rev 658; Adler, A A, "What's Left: Hate Speech, Pornography and the Problem for Artistic Expression" (1996) 84 Calif L Rev 1499; For the US origins of the dispute about Piss Christ, see Congressional Record, 9788-9789, 10323-10325, 14431-14433 (1989); National Endowment for the Arts v Finley 141 L Ed 2d, 500 (1998).

[15] R v Grassby (1988)

[15] NSWLR 109; R v Hayes (unreported, County Court of Victoria, 20 January 1998); The Age, 21 January 1998; The Australian, 21 January 1998; see also Waterhouse v Gilmore (1988) 12 NSWLR 270.

[16] Levy v Victoria (1997) 189 CLR 579; Muldowney v South Australia (1996) 186 CLR 352; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; see also Nulyarimma v Thompson (1999) 165 ALR 621 at paras 198, 199 (claim that formulation of government policy and introduction and support of Bill for amendment of Native Title Act amounted to genocide).

[17] Australia, Law Reform Commission, Censorship Procedure, Report No 55(1991); Williams, D, "From Censorship to Classification", Address, Murdoch University, 31 October 1997: www.murdoch.edu.au/elaw/issues/v4n4/will44l.html.

[18] Dillon, K & Williams, C Brought to Book (1993); Marr, D, "The Moral Warriors: How They Stop People Reading and Watching What They Want" The Sydney Morning Herald, 5 April 1997.

[19] Bryl and Kovacevic v Nowra and Melbourne Theatre Company [1999] HREOCA 11 (21 June 1999).

[20] The Sydney Morning Herald, 15 May 1997; Herald Sun, 26 December 1997; The Sydney Morning Herald, 4 December 1998; Herald Sun,December 1998, 13 December 1998.

[21] See e.g. on the use of the expletive "fuck": Hortin v Rowbottom (1993)61 SASR 313; Re E (A Child) (1994) 76 A Crim R 343; 13 WAR 1; Heilpern, H, "Judgment: Police v Shannon Thomas Dunn" (1999) 24 Alt L J 238. For different approaches, see Khan v Bazeley (1986) 40 SASR 481 and Conners v Craigie (1994) 76 A Crim R 502; see also Pell v The Council of Trustees of the National Gallery of Victoria [1998] 2 VR 391.

[22] Sunday Herald Sun, 11 May 1998, 18 May 1998; The Sydney Morning Herald, 4 December 1998.

[23] The Age, 13 November 1999.

[24] Dutton, G & Harris, M, Australia's Censorship Crisis (Melbourne, 1970); Coleman, P, Obscenity, Blasphemy and Sedition: 100 Years of Censorship in Australia (Rev Ed., Sydney, 1974).

[25] This was a bipartisan development which owes much to the work of successive Commonwealth Ministers for Customs, Mr D Chipp, MP and Senator L K Murphy, QC: see e.g. Parl Deb (House of Reps), 11 June, 1970, 3372-3382; Parl Deb (Senate), 8 March 1973, 266; see also Preamble, National Classifications Code reproduced in Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1997) 145 ALR 464.

[26] Edwards, P A, Nation at War: Australian Politics, Society and Diplomacy during the Vietnam War 1965-1975 (1997); Samuels v Hall [1969] SASR 296; O'Hair v Killian (1971) 1 SASR 1; Sullivan v Hamel-Green [1970] VR 156; R v Langer [1972] VR 973; see also Commonwealth Parliament, Joint Standing Committee on the National Capital and External Territories, Report, A Right to Protest (1997).

[27] For a range of treatments, see Hughes, R, Culture of Complaint: The Fraying of America (1993); Windschuttle, W, The Killing of History (1994); Goldsmith, M, Political Incorrectness: Defying the Thought Police (1996); Coleman, P (Ed), Double Take: Six Incorrect Essays (1996); Wark, McK, "Freedom of Speech a Myth", The Australian, 19 February 1997; Wark, McK, The Virtual Republic: Australia's Culture Wars of the 1990s (1997); Adams, P (Ed), The Retreat from Tolerance (1997); Sheehan, P, Among the Barbarians (1998).

[28] Meyer, C, "Sex, Sin and Women's Liberation: Against Porn-Suppression" (1994) 72 Texas L Rev 1097; MacKinnon, C A, "Pornography Left and Right" (1995) 30 Harv Civ Rights-Civ Lib L Rev 143; Strossen, N, In Defense of Pornography: Free Speech and the Fight for Women's Rights (New York, 1995).

[29] For example, they could be expected to be strongly opposed on the issue of abortion and, probably, on issues affecting prostitution.

[30] See e.g. Australia, Law Reform Commission, Multiculturalism and the Law Report No 57, (1992); Equality Before the Law: Part 1, Justice for Women; Part II, Women's Equality, Report No 69, (1994).

[31] The term "speech-related conduct" is used here to include marching, demonstrating, parading, protesting, picketing, wearing particular clothing (including uniforms), displaying signs, badges, insignia, using placards, gesturing, distributing literature, using sound amplification equipment, and more deliberately provocative activities such as book burning, flag desecration, and cross-burning.

[32] Davidson, A, From Subject to Citizen: Australian Citizenship in the Twentieth Century (1997); Stokes, G (Ed), The Politics of Identity in Australia (1997).

[33] For an early manifestation of such views, see Marcuse, H, "Repressive Tolerance" in Connerton, P (Ed), Critical Sociology (1976), 301.

[34] It is not suggested here that postmodernism is a single theory. Fraser uses the term "postmodern" without explaining his version of the term and without explicitly adverting to the various schools of postmodern and related social theory. Some indication of the sources of inspiration for Fraser comes from his list of references which contains works by Jean Baudrillard, Jaques Derrida, Paul de Man, Stanley Fish, and Jean-Francois Lyotard. The volume of the literature on postmodernism is staggering. For a very small (and deliberately diverse) sampling of a wide range of recent treatments, see e.g. Harvey, D, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (1990); Milner, A, Contemporary Cultural Theory: An Introduction (1991); Alexander, J C, Fin de Siecle Theory: Relativism, Reduction and the Problem of Reason (London, 1993); Norris, C, Against Relativism (1997); Eagleton, T, The Illusions of Postmodernism (1996); Lemert, C, Postmodernism is not What You Think (1997); Hughes, R, "Jean Baudrillard: America" in Nothing if Not Critical: Selected Essays on Art and Artists (1990); Readings, W The University in Ruins (1997); Anderson, P, The Origins of Postmodernity (1998); Ninkovich, F, "No Post-Mortem for Postmodernism Please" (1998) 22 Diplomatic History 451; Searle, J, Mind, Language and Society: Philosophy in the Real World(New York, 1998).

[35] Derrida, J, Of Grammatology (Baltimore, 1976), 158.

[36] For two contrasting treatments, see MacKinnon, C A, Only Words (1993); Walker, S, Hate Speech: The History of an American Controversy (1994): see also Index on Censorship, January 1998.

[37] Anti-Discrimination Act 1977 (NSW), ss 20B-20C, 38R-38T, 49ZS-49ZTA, 49ZXA-49ZXC; Anti-Discrimination Act 1991 (QLD), s 126; White, B, "The Case for Criminal and Civil Sanctions in Queensland's Racial Vilification Legislation" (1997) 13 QUTLJ 235; Racial Vilification Act 1996 (SA); Wrongs Act 1936 (SA), s 37; Anti-Discrimination Act 1998 (TAS), s 19; Criminal Code (WA), ss 76-80; Discrimination Act 1991 (ACT), 65-66.

[38] Shaw v Wolf (1998) 163 ALR 205 (on the meaning of the statutory term "Aboriginal person"); See (Justice) Merkel, R, "The Right to Difference" (1998) 72 ALJ 939; (Justice) Abella, R S, "Human Rights and the Judicial Role", Lecture given to the Australian Institute of Judicial Administration, Melbourne, Vic, 23 October 1998.

[39] National Agenda for a Multicultural Australia (1989); National Multicultural Advisory Council, Issues Paper, Multicultural Australia: The Way Forward (December 1997); Report, Australian Multiculturalism for a New Century: Towards Inclusiveness (May 1999); the Australian Government's response to the 1999 report is to be found in A New Agenda for Multicultural Australia (December 1999). The texts are available at http://www.immi.gov.au/multicultural/index.html

[40] There is not space here to explore (nor is such an exploration part of the argument) the full range of meanings assigned to the term "assimilation". It is enough to say that nowadays many people would probably accept the following description, but that some critics of multiculturalism would vehemently object to the inclusion of the words in italics "The policy of assimilation spans the period up to the mid 1960s and was based on a belief in the benefits of homogeneity and a vision of Australia as a racially pure white nation. The policy effectively excluded non-European immigration." (italics added), Report, Australian Multiculturalism for a New Century: Towards Inclusiveness (1999) (sect 1.2).

[41] For an example of the tendency to regard criticism of multiculturalism as no more than advocacy of "thinly veiled policies of bigotry and division", see Report, Australian Multiculturalism for a New Century: Towards Inclusiveness (1999)(Introduction and Summary).

[42] The generic term "political correctness" is used to denote an approach to the discussion of public issues, which is censorious of "unpopular" or "unorthodox" or "offensive" ideas. It is both a left-wing and right-wing political phenomenon.

[43] Sunstein, C R, Democracy and the Problems of Free Speech (1993); Fiss, O, The Irony of Free Speech (1996); Fiss, O, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (1996); Collins, R K L and Skover, D M, The Death of Discourse, (1996). See Wark, op cit, n 25, 175; Paton, E, "Respecting Freedom of Speech" (1995) 15 Oxford J of Legal Studies 397.

[44] McNamara & Solomin, op cit, n 1 at 260. A more ominous development is the emergence of the idea that prejudice such as that gathered under the rubric of "homophobia" is a disorder warranting psychiatric intervention: see the controversy generated by bigoted remarks attributed to John Rocker, a member of the Atlanta Braves baseball team, The New York Times, 9 and 13 January 2000, the remarks of Mr Justice Michael Kirby in his lecture, "Psychiatry, Psychology, Law and Homosexuality: Uncomfortable Bedfellows", 27 April 2000 (http://www.hcourt.gov.au/) and the response by Professor P J V Beaumont, The Australian, 4 May 2000.

[45] Hobsbawm, E, "Identity Politics and the Left" New Left Review, No 217,May/June 1996, 38; Epstein, B, "Postmodernism and the Left", New Politics,Vol 6, No 2 (new series), Winter 1997.

[46] In Tasmania, s 19 of the Anti-Discrimination Act 1998 prohibits public acts which incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of the religious belief or affiliation or religious activity of the person or any member of the group. Throughout recorded history some religious ideas, beliefs, affiliations and activities have, understandably, produced hatred towards, contempt for and/or ridicule of those ideas, beliefs, affiliations and activities. Moreover, we are all free to denounce the very concept of religion. The individual adherents of religious ideas (or entire groups of adherents) may or may not be the intended or accidental targets of anti-religious speech. At a minimum, it seems contrary to principle that persons who embrace religious beliefs, affiliations and activities which are regarded by others as (severely?) ridiculous should be shielded from such ridicule. It is thus very difficult to discern, precisely, the mischief which s 19 is intended to target.

[47] Herald Sun, 18, 19, 20 and 27 April 1996; The Age, 3 July 1996.

[48] See the similar formulation in Collin v Smith 447 F Supp 676 at 692(1977).

[49] Malik, K, "The Perils of Pluralism" Index on Censorship, 1997, No 3.

[50] Free speech is not specifically emphasised in Australian Multiculturalism for a New Century: Towards Inclusiveness (1999).

[51] See e.g. the criticisms of the Irving article and Freckleton (op cit,n 62) in McNamara and Solomin (op cit, n 1); Hughes, R, "In Defence of the Right to Discriminate", The Sydney Morning Herald, 3 November 1995.

[52] Cunneen, C, Fraser, D and Tomsen, S (Eds), Faces of Hate: Hate Crime in Australia (Hawkins Press, 1997).

[53] Fraser, "Memory, murder and justice: holocaust denial and the 'scholarship' of hate", 163 ("Fraser").

[54] This is done "in order to point to the inherent limitations of the free speech paradigm [superficially dealt with by Fraser] and strategy in even understanding the points in issue"; Faces of Hate, 163. I have also relied on the "Introduction: Defining the Issues" ("Introduction") co-authored by the three editors of Faces of Hate.

[55] (1994) 16 Syd LR 358.

[56] Fraser, 168.

[57] Ibid, 172-174.

[58] 44 FCR 540.

[59] Fraser, 171.

[60] Ibid, 169, 171-172, 174.

[61] Introduction, 5, 8, 14; Fraser, 162, 168, 169, 172, 177.

[62] For criticism of it or the views it contains, see Huttner, R, "Case Note", (1994) 1 Aust J of Admin Law 167; Jones, M, "Racial Vilification Laws: A Solution for Australian Racism?" (1994) 1 Aust J of Human Rights 140; McNamara, L & Solomon, T, "The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?" (1996) 18 Adel L Rev 259 (in a footnote). For a sympathetic treatment, see Freckleton, I, "Censorship and Racial Vilification Legislation" (1994) 1 Aust J of Human Rights 327.

[63] Fraser, 163.

[64] Europe's Jews were the main victims, but others including Gypsies,homosexuals, and members of various religious groups were also the victims of the Nazis' mass murder and atrocities.

[65] Fraser, 164; "the overwhelming information confirming the reality and facticity of the Shoah", Ibid, 184.

[66] Ibid, 163.

[67] Ibid, 166.

[68] Ibid, 175-177.

[69] Ibid, 164.

[70] Ibid, 164.

[71] Ibid, 164, 165.

[72] Ibid, 165.

[73] Ibid, 163, 179.

[74] Ibid, 164, 165, 176-177, 178, 180-181, 182.

[75] Ibid, 165, 166.

[76] Ibid, 168.

[77] Ibid, 176-177.

[78] Ibid, 169-172.

[79] Ibid, 169, 171-172, 174.

[80] Ibid, 179 (approving the criminalisation of Holocaust denial in several European countries), (approving Canadian prosecutions), (decrying the abysmal rate of successful prosecutions), (decrying light sentences or failure to convict Canadian Holocaust deniers), 181 (Holocaust deniers are "perpetrators"), 182 (decrying meagre local attempts to criminalize Holocaust denial), 182-183 (decrying the use of the Internet to circumvent the criminal law), 183 (decrying the ideology of free speech protection as an impediment to criminal punishment), 185 ("the crime" of "Holocaust denial" must go unpunished in order that its truth be told.").

[81] Ibid, 167.

[82] Ibid, 167-168.

[83] Ibid, 172.

[84] Ibid, 167.

[85] Ibid.

[86] Ibid, 174.

[87] Ibid.

[88] Ibid.

[89] "Weltanshauung": "A particular philosophy or view of life; a concept of the world held by an individual or a group", Oxford English Dictionary, Vol XX, 149.

[90] Fraser, 177.

[91] Ibid, 178.

[92] Ibid, 181.

[93] Ibid, 172.

[94] Ibid, 168, 169-172, 175.

[95] Ibid, 169; see also 162.

[96] Ibid, 169, 170.

[97] Ibid, 169.

[98] Ibid, 174.

[99] Ibid, 170.

[100] Ibid, 169, 171.

[101] Ibid, 169-170. Fraser also records that Irving has been subjected to devastating "critiques": 169 The criticism which Irving has attracted is acknowledged in the Sydney Law Review article in far more detail than Fraser acknowledges. Fraser also overlooks the fact that, notwithstanding the hostility that Irving creates by his publications and speeches, he is (or, at least, has been until recent times) treated seriously by historians who manifestly would satisfy Fraser's view about who is entitled to be included in the category of respectable historians. For examples of historians who accord Irving some status in the historiography of Twentieth Century Germany: e.g. see Professor Gordon A Craig's lengthy review of Irving's book, Goebbels: Mastermind of the Third Reich (1996), The New York Review Of Books, 19 September 1996, 8, and John Keegan's opinion that Irving's book, Hitler's War (1997), was "among the half-dozen most important books on 1939-45": The Second World War (Pimlico ed, 1997), 499. More recently, Ian Kershaw in Hitler: 1889-1936 Hubris. (1997) and Hitler: 1936-1945 Nemesis (2000) makes use of Irving's work. I suppose, for the sake of explicit completeness, it needs to be said that Craig, Keegan and Kershaw may or may not be correct in their respective assessments of the merits of Irving's contribution to an understanding of history.

[102] Fraser, 170. The perils of eschewing the use of plain language and of assuming that every text no matter how clear it is expressed has hidden sinister meaning and must be deconstructed is further illustrated by Fraser who (at p 170) also falsely asserts that (a) Irving's historiographical work is characterised in the Irving article as "academic", and (b) that the Irving article reduces the work of Irving's critics to Irving's level.

[103] Ibid, 184.

[104] Ibid, 169-170.

[105] Ibid, 170, 172.

[106] This is the footnote referred to in the text at n 99 above.

[107] Fraser, 172.

[108] Ibid, 170.

[109]This claim of Fraser also involves a demonstrably false speculation as a reading of the omitted footnote from the Irving article makes plain. Moreover, Fraser also omits mention of the citation of the evidence led at Nuremberg and against Eichmann in Jerusalem.: "The Case of David Irving", 359. One of the works cited in the Sydney Law Review article was Deborah Lipstadt's Denying the Holocaust-The Growing Assault on Truth and Memory (1993). Since this article was prepared, David Irving has lost a defamation action brought by him in London against Professor Lipstadt and the English publisher of her book: see The Irving Judgment: David Irving v Penguin Books Ltd and Lipstadt (2000) and D D Gutenplan, The Holocaust on Trial(2001).

[110]Fraser, 170-171.

[111]Ibid, 171.

[112] See Bollinger, L C, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986).

[113] Fraser, 163, 164, 175.

[114] Fish, S, There's No Such Thing as Free Speech and It's a Good Thing Too (1994).

[115] Fraser, 163.

[116] Ibid, 165-166.

[117] Ibid, 164, 165, 176-177, 178, 180-181, 182.

[118] Ibid, 170.

[119] Ibid, 177, 182.

[120] Ibid, 164.

[121] Ibid.

[122] Ibid, 174.

[123] Ibid, 172.

[124]Ibid, 177.

[125]Fraser, 162.

[126]For illustrations, see Annett v Brickell [1940] VLR 312; Brebner v Bruce (1950) 82 CLR 161; Worcester v Smith [1951] VLR 316; Ball v McIntyre (1966) 9 FLR 237; Samuels v Hall [1969] SASR 296; Lafite v Samuels (1972) 3 SASR 1; R v Smith [1974] 2 NSWLR 586; Connolly v Willis [1984] 1 NSWLR 373;

[127] See Executive Council of Australian Jewry v Scully (1998) 160 ALR 138 (on the statutory term "person aggrieved"); see also McGlade v Lightfoot [1999] HREOCA 1, (11 February 1999).

[128] See Gooding v Wilson 405 US 518 (1972); Rosenfeld v New Jersey 408 US 901 (1972); Lewis v City of New Orleans 408 US 913 (1972); Brown v Oklahoma 408 US 914 (1972); FCC v Pacifica Foundation 438 US 726 (1978); Hustler Magazine v Falwell 485 US 46 (1988).

[129] Australian Football League v Carlton Football Club Ltd (1998) 2 VR 546 at 559 per Tadgell JA.

[130] See n 24 above.

[131] 268 US 652, 673 (1925).

[132] 249 US 47 (1919).

[133] See Spencer v Dowling [1997] 2 VR 127. The anti-discrimination legislation contains separate sexual harassment prohibitions.

[134] Stokes and others and National Gallery of Victoria (Unreported, 6 November 1998, VCAT).

[135] See e.g. Delgado, R, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling" (1982) 17 Harv CR-CL LR 133; Matsuda, M, "Language as Violence v Freedom of Expression: Canadian and American Perspectives on Group Defamation" (1989) 37 Buffalo LR 337.

[136] The threat to free speech is illustrated by a recent recommendation in the United Kingdom that the legislation be amended so that a "racist incident" is defined as any incident which is perceived to be racist by the victim or any other person: Report, The Stephen Lawrence Inquiry (February 1999), Cm 4262-I, Chs 6, 47 (para 12).

[137] Tatz, C and Solomon, T, "Race Hate Bill Will Staunch the Flow of Words that Kill", The Australian, 22 March 1995.

[138] Introduction, 13-14.

[139] Fraser, 181-182.

[140] For example, he quotes approvingly from Baudrillard, Derrida, Finkielkraut, and Lyotard. For some examples of postmodern legal scholarship, see Hunt, A, "The Big Fear: Law Confronts Postmodernism" (1990) 35 McGill LJ 507; Davies, M, Delimiting the Law: Postmodernism and the Politics of the Law (London, 1996). A detailed critical examination of that scholarship is advanced in Farber, D A and Sherry, S Beyond All Reason: The Radical Assault on Truth in American Law (1997).

[141] "The Case of David Irving", 389.

[142] Fraser, 171 (footnote 5). This criticism sits oddly with Fraser's concern about what might be called the "tyranny of the footnote" (Fraser,

170) and the Holocaust deniers' use of footnotes (166), with Fraser's own sparing use of footnotes, and an almost complete absence of page numbers to the works referred to in his list of references.

[143] Fraser, 171.

[144] Ibid, 171-172. Fraser "Perhaps, if one takes a value-free approach,[Irving] merely wants to offer some ironic insights to a postgraduate seminar on Derrida, or perhaps, if one comes back to political reality, he wants to continue his long campaign to spew lies and promote hatred against his "traditional enemies"", Ibid, 172.

[145] At an earlier stage, the Irving article does deal, albeit briefly, with postmodernism (using that term in a wide collective sense) in a way which provides a clear enough explanation for the "offensive" sentence.

[146] Fraser, 169-171, 175; "The Case of David Irving", 382-393.

[147] Fraser, 171-172.

[148] As indicated below in the context of the undisputed record of Nazi activities of Martin Heidegger and Paul de Man, it is possible to distinguish (though not necessarily without difficulty) between the validity of the ideas and the persons expressing them. At the very least, it seems to be reasonable to suggest that the kind of skepticism which postmodernism exhibits ought to put postmodernists on notice that the activities of Heidegger and de Man may have perverted their intellectual endeavour. Heidegger's ideas do seem to have been intimately bound up with his positive attitude to national socialism. In de Man's case, it has been suggested that his theory of deconstructive reading was crafted primarily in order to dismantle "virtually every sentiment, axiom or affinity which as a young man he had harbored": see Donoghue, D, "The Strange Case of Paul de Man" The New York Review of Books, June 28, 1989, 32 at 36; see the Preface in Wolin, R (Ed), The Heidegger Controversy: A Critical Reader(1992). In any event, the possibility that there might be something [profoundly perverted] in extreme postmodern "reading" of texts ought to be reinforced in the face of attempts by Derrida to deconstruct de Man's anti-semitism: see Derrida, J, "Like the Sound of the Sea Deep Within a Shell: Paul de Man's War", in Hamacher, Hertz, W N and Keenan, T (Eds), Responses: On Paul de Man's Wartime Journalism (1989).

[149] Fraser, 171.

[150] The perfunctory nature of Fraser's investigative technique and his unhelpful use of source material is illustrated in his obscure passing mention of Heidegger. Fraser lists (without specifying the location of any particular passages) Theodor Adorno's, Negative Dialectics (English translation, 1973): Fraser, 185. Adorno, described by Frederic Jameson as Heidegger's "arch enemy", considered that Heidegger's philosophy was (in Jameson's translation from the original German) "fascist to its innermost cells": see Jameson, F, "Adorno in the Stream of Time" in Late Marxism: Adorno, or The Persistence of the Dialectic (1990), 9 (translation in footnote 8).

[151] The link between deconstruction or postmodernism and Nazi Germany is,understandably, a source of acute embarrassment for some of postmodernism's adherents. This is notably so in the case of Professor Jacques Derrida, who has sought to bring his particular technique of deconstruction to bear in order to salvage Heidegger's and de Man's tarnished personal and scholarly reputations. See, for example, the allegation that Derrida sought to censor Wolin's 1992 collection (n 154 below): Sheehan, N, "A Normal Nazi", The New York Review of Books, January 14, 1993 and the ensuing exchanges between Derrida and Sheehan, The New York Review of Books, January 14, 1993, February 11, 1993, March 4, 1993, March 25, 1993, April 8, 1993, and April 22, 1993.

[152] (1889-1976): On Heidegger's connection with deconstruction and postmodernism, see Ferry, L & Renaut, A (trans Philip, F), Heidegger and Modernity (Chicago, 1990); Rockmore, T & Margolis, J, The Heidegger Case: On Philosophy and Politics (Philadelphia, 1992); Sluga, H, Heidegger's Crisis: Philosophy and Politics in Nazi Germany (Cambridge, 1993); Ott, H (trans), Martin Heidegger (1993); Safranski, R, Martin Heidegger: Between Good and Evil (1998).

[153] (1919-1983): On de Man's connection with deconstruction and postmodernism, see Lehman, D, Signs of the Times: Deconstruction and the Fall of Paul de Man (1991).

[154] Sheehan, T, "Heidegger and the Nazis", The New York Review of Books, June 16, 1988, 38; Sheehan, T, "A Normal Nazi", The New York Review of Books, January 14, 1993; "Heidegger and Nazism: An Exchange", The New York Review of Books, April 8, 1993; Farias, V (trans Burrell, P and Ricci, G), Heidegger and Nazism (Philadelphia, 1989); Wolin, R (Ed), The Heidegger Controversy: A Critical Reader (1992); Rockmore, T, On Heidegger's Nazism and Philosophy (1992); Young, J, Heidegger, Philosophy, Nazism (1997).

[155] Donoghue, D, "The Strange Case of Paul de Man" The New York Review of Books, June 28, 1989, 32; Exchange, "Deconstruction, The Nazis and Paul de Man", The New York Review of Books, October 12, 1989, 69.

[156] Fraser, 163. Elsewhere, however, Fraser accords some recognition to "the ancient distinction between actions and words": Ibid, 167.

[157] Ibid, 164.

[158] Fraser, 180-181 (accepting as only literally true, but dismissing a Canadian empirical study concluding that trials of Holocaust deniers did not foster anti-semitism in preference for the metaphor of "victory" of Holocaust denial and "legitimation"). Fraser makes no attempt to identify any evidence about the impact of Holocaust denial in Australia.

[159] See e.g. Higley, J, Deacon, D & Smart, D, Elites in Australia(London, 1979).

[160] Introduction, 4, 5.

[161] Especially in the use of abstract words or phrases such as "contestation" (2); "discourses" (3, 8, 165, 169, 176, 178, 179, 180, 181); "discursive matrix" (164, 181); "discursive strategy" (178); "discursive policing" (5); "semiotic deployment" (164, 177); "semiotic effacement" (167); "semiotic resonances" (173); "the semiotics of the juridical space" (181); "facticity" (164, 184); "legitimacy" (13);"legitimation issue/crisis" (180), "hegemonic" (172), "Other" (2, 4, 5, 14) or "the Other" (4, 5); "policing of discursive boundaries" (6); "signified" (167), "signifier" (167, 177); "signifying practices" (166); "tropes of modernity" (174), "trope" (177); "meta-narrative structure/function" (181);.

[162] One trap involved in slavish commitment to jargon and abstraction was graphically demonstrated in the so-called "Sokal" affair in which a physicist's spoof rendering in postmodern jargon of some nonsense passing as physics was published without demur in a leading postmodern journal: Sokal, A, "Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity", Social Text, No 46/47, Spring/Summer 1996, 217; Fish, S, "Professor Sokal's Bad Joke", The New York Times, 21 May 1996; Robbins, B and Ross, A, "Mystery Science Theatre", Lingua Franca, July/August 1996, 54; Weinberg, S, "Sokal's Hoax", The New York Review of Books, 8 August 1996 and the exchange, 3 October 1996; Sokal, A and Bricmont, J, Intellectuelles Impostures: Postmodern Philosophers' Abuse of Science (Eng trans, 1998); Sturrock, J, "Le pauvre Sokal", The London Review of Books, 16 July 1998: see also Gross, R and Levitt, N, Higher Superstition: The Academic Left and Its Quarrels with Science (1994).

[163] Introduction, 13.

[164] Fraser, 181.

[165] Ibid, 167.

[166] Ibid, 181.

[167] Ibid, 177.

[168] Ibid, 185.

[169] Orwell, G, "Politics and the English Language", in Orwell, S and Angus, I (eds), The Collected Essays, Journalism and Letters of George Orwell, Vol 4 I Front of Your Nose 1945-1950 (1968), 127.

[170] Introduction, 6.

[171] Fraser, 165.

[172] Ibid, 178-179.

[173] Ibid.

[174] Ibid, 168.

[175] Ibid, 174.

[176] Ibid, 174-175.

[177] Ibid, 167-168.

[178] Ibid, 177.

[179] Puplick, P, "Free Speech and Moral Leadership", Occasional Address, The University of Wollongong, 3 October 1996. The text of the address is available at http://www.lawlink.nsw.gov.au/adb.nsf/pages/speech5

[180] "An American's View of the Canadian Hate Speech Laws" in Waluchow, W J, Free Expression: Essays in Law and Philosophy (New York, 1994), 175.

[181] Equal Opportunity Act 1995 (Vic), s 4.

[182] These words are those of Jackson J in West Virginia State Board of Education v Barnette 319 US 624 at 637 (1943).

[183] Ibid, 640.

[184] See Frank, J, Law and the Modern Mind (1930); Frank, J, Courts on Trial: Myth and Reality in American Justice (1930); Llewellyn, K N, The Bramble Bush: On Our Law and Its Study (1930); Llewellyn, K N, "Some Realism about Realism: Responding to Dean Pound" (1931) 44 Harv L Rev 1222; Llewellyn, K N, The Common Law Tradition; Deciding Appeals (1960); Llewellyn, K N, Jurisprudence: Realism in Theory and Practice (1962); Twining, W, Karl Llewellyn and the Realist Movement (1973); Fisher, W W, Horwitz, M J & Reed, T A (Eds), American Legal Realism (1993); Schlegel, J H, American Legal Realism and Empirical Social Science (1995); Hull, H E H, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (1997).

[185] Ross, A, On Law and Justice (1958); Olivecrona, K, Law as Fact (2nd Ed, 1971). On Philosophy and Politics (Philadelphia, 1992); Sluga, H, Heidegger's Crisis: Philosophy and Politics in Nazi Germany (Cambridge, 1993); Ott, H(trans), Martin Heidegger (1993); Safranski, R, Martin Heidegger: Between Good and Evil (1998).

Murdoch University Electronic Journal Of Law ISSN 1321 - 8247, Vol 8 No 2 (June 2001)

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