Andrews, Neil --- "What would Sir Samuel Griffith have said? Postmodernism in the 1990s company law classroom" [1998] MurdochUeJlLaw 33; (1998) 5(2) Murdoch University Electronic Journal of Law

NetWatch

• NetWatch September 1998 - [1998] MurUEJL 17

  Frames Version

  What would Sir Samuel Griffith have said? Postmodernism in the 1990s company law classroom

  Author:	Neil Andrews Lecturer in Law, University of Canberra
  Issue:	Volume 5, Number 2 (June 1998)

  
  Contents
  • 1. Introduction
  • 2. The state of Sir Samuel Griffith's tower
  • A. What is it that company law teachers teach?
  • B. Defending Sir Samuel's tower
  • C. Postmodernists at the gates
  • (i) Looking backwards
  • (ii) Modernism and the law
  • (iii) Postmodernism and the 'present'
  Broad postmodernism
  Narrow postmodernism
  • 3. Postmodernism in Ford's turret
  • A. The absence of universal truths and the fragmentation of knowledge
  • B. Interpretative communities
  • C. A focus on knowledge and the exercise of power
  • D. Deconstruction and the death of the author
  • E. Ethics and sustaining a continuity of values and beliefs
  • F. Schizophrenia
  • G. Immediacy: the determinism of the new
  • H. Popular Culture
  • 4. Conclusion: an everyday ethical and reflective practice
  • Notes
  
  
  "Conferences of corporate law teachers across Australia resemble reunions of dysfunctional families: there is rarely a cross word but no-one communicates." Wishart D, 'Does the High Court Understand Corporations Law?' (1996) 6 Australian Journal of Corporate Law 424, 434.

  1. Introduction

  1. Postmodernism is often presented as the antithesis of the desirable, the ethical, the functional or the reflective. This survey of Australian company law journals since 1991 shows that their covers conceal a largely Marxist-inspired and French-influenced postmodern critique. These journals reveal that the standard literature for Australian students of company law is Theory-ladened. The articles reflect the characteristics of the paradigm of postmodernism in Harvey's The Condition of Postmodernism: An Inquiry into the Origin of Cultural Change (1989) and Jameson's Postmodernism, Or, The Cultural Logic of Late Capitalism (1991). They are:
  
  
  • a total acceptance of the emphemarility, fragmentation, discontinuity and chaos of human knowledge;
  • the impossibility of metanarratives or universal truths;
  • ethical problems which arise from lacking universal standards (Rorty’s statement that one can only act ‘locally’);
  • little attempt to sustain continuities of values, beliefs or even disbelief;
  • the psychological presupposition that schizophrenia rather than paranoia and alienation is central;
  • immediacy as the only thing left - the rule of the sensational and the spectacle in place of memory and historical continuity accompanied by a paradoxical nostalgic impulse for the past and an international cultural eclecticism;
  • language speaks through us (Barthes’ and Foucault’s ‘death of the author’);
  • the link between the signified (message) and the signifier (medium) is no longer seen as singularly determined but as constantly deconstructing itself;
  • the importance of interpretative communities (Foucault’s -’heterotopia’) and their relative autonomy;
  • a focus on communication and means of exercising power in post-industrial information-based societies; and
  • a complex relationship with popular culture revealed by the extension of the power of the market over the whole range of cultural production, including law, and an interplay between masking and unveiling in the treatment of privacy and the right to know.
  2. Paradoxically, the paper concludes that reading these articles is the best way to teach ethical and reflective company law: law is not divorced from the culture in which it is imbricated.

  2. The state of Sir Samuel Griffith's tower

  A. What is it that company law teachers teach?
  

  3. One point of stress in western legal systems is the perception, itself, that they are in crisis. Is this what Wishart observed?[1] Lawyers of varying backgrounds have a sense of unease about the institutions of law, their incoherence and lack of predictability.[2] Legal education, as an institution of law, has not avoided this bewilderment.
  
  
  4. The conflict over what law is underlies the teaching of it.[3] There is uncertainty about whether law is autonomous, a concept with a highly politicised origin. If it is not, there is puzzlement about what other influences determine it.[4] Analysis of company law has been substantially affected in recent years by developments in economics and finance such as the efficient capital market hypothesis. Rather than limit the quandaries it has added to them in conflict over what role law should play in the government and regulation of companies.[5] The complexity of corporate concepts and transactions sees the law under stress at the boundary between where it works, and may not be invoked, and where it works badly, and is appealed to to resolve disputes.[6]
  
  
  5. For Hart defining law involved three questions which hold any definition in perpetual tension:
  
  
  • How does law differ from and how is it related to orders backed by threats?
  • How does legal obligation differ from, and how is it related to, moral obligation?
  • What are the rules and to what extent is law an affair of rules?[7]
  6. E P Thompson considered these questions on his narrow ledge between liberalism and Marxist structuralism. He had just spent five years looking at the conflict between the poor and the rich in the royal forests of England in the eighteenth century. In this 'very petty conjuncture: in an island on the edge of the Atlantic, very well supplied with lawyers' he concluded that the law was 'relatively autonomous'. He concluded that there were limits on this independence:
  
  
  when I was watching, law was running quite free of economy, doing its errands, defending its property, preparing the way for it ... on several occasions, while I was actually watching, the lonely hour of the last instance actually came. The last instance like an unholy ghost, actually grabbed hold of the law, throttled it, forced it to change its language and to will into existence forms appropriate to the mode of production, such as enclosure acts and new case-law excluding customary rights.[8]
  7. Thompson then made a claim for which, he agreed, the evidence was 'highly marginal' as well as 'being seriously contaminated by empirical content' that the law was everywhere:
  
  
  ... I found that the law did not keep politely to a 'level' but was at every bloody level; it was imbricated in the mode of production and productive relations themselves (as property-rights, definitions of agrarian practice) and it was simultaneously present in the philosophy of Locke; it intruded brusquely into alien categories, reappearing bewigged and begowned in the guise of ideology; it danced a cotillion with religion, moralising over the theatre of Tyburn; it was an arm of politics and politics was one of its arms; it was an academic discipline, subject to the rigour of its own autonomous logic; it contributed to the self-identity both of rulers and of ruled; above all, it afforded an arena for class struggle, within which alternative notions of law were fought out.[9]
  8. Thompson's view of law may be a blunt instrument to take to Hart's nice questions. It enables them, and possible answers, to be evaluated from the perspectives of different parties. Is a previous statement by a court law if it is likely to be departed from? Is it law if the circumstances have never been considered but that what the court would decide is generally agreed upon in the legal community? Is morality law if the issue has not been decided but the moral basis on which it should be decided is not disputed? Is an interpretative technique law if different interpretative techniques could lead to different results and a majority decision in which no one technique prevails? Is it law if a judge, faced in litigation with an issue, outside the court states an opinion on what the law is? [10] Parties in a dispute may be attracted not to support one method or process of deciding which legal statement is 'law' but by the content of statements produced by any method which supports their present interests. This may then take them back to attacking any particular method which has produced statements of the law contrary to those on which they seek to rely.
  
  
  9. Thompson's view deals with another difficult question: where do we stop speaking of law and start speaking of society or the economic firm as opposed to the legal company? One place to stop is beyond the boundary of official state law where people no longer invoke legal codes in claims which they make against each other, that is, the idea of law is absent as a way of validating a claim.[11] Thompson, however, indicates that this boundary of law is further out than it is commonly perceived to be.
  
  
  10. Thompson's view, however, conforms with the lawyers' belief that legal doctrine does matter. Most lawyers would concede that "when more immediate criteria, like the language of an authoritative statute, leave matters in doubt, one choice will cohere better with all the legal materials than any other."[12]
  
  
  11. It also confirms the lawyers' understanding that a legal decision is likely to reflect contemporary values, including moral judgments.[13] The problem for company law is acute when there are rapid changes in corporate financial technology that legal doctrine has not contemplated and when there is no moral imperative or the moral imperative is contested as the social functions of property are reordered.
  
  
  12. These insights might not answer problems which law has posed for generations: judicial decision making is political and economic freedom conceals coercion. But it reminds students constantly that these are problems.

  B. Defending Sir Samuel's tower
  

  13. One of the reactions to the sense of crisis in Australian law has been the establishment of the Sir Samuel Griffith Society. This is generally regarded to be a conservative association, to the extent that the phenomenon of conservatism occurs in Australia. For such a goanna ridden country our conservatives have been surprisingly chameleon-like.[14] It is generally thought that Australian politics were born modern and too late to be either Whig or Tory.[15] The term now has to deal with the confusion introduced by libertarians and Hayek's use of the concept 'liberal' to describe his own political beliefs which has muddled previously recognised 'conservative' and 'liberal' values.[16] Hayek was one of the intellectual ancestors of Thatcherism and, according to him, Thatcher would be a 'liberal'.[17] Thatcher's embrace, and promotion, of Hayek has led to a further confusion in terminology in conservative parties which are the fusions of liberals and conservatives.[18] She neither resisted nor accommodated change but seized the agenda as a Hayekian liberal would. Such developments led to the term 'libertarian' to describe this liberalism in conservative clothing. However, some self-confessed libertarians, seek to exclude Hayek, Thatcher and Milton Friedman from the term.[19] There is a Hayekian influence within the Samuel Griffith Society which may lead its members to deny that they are conservative.[20] However the themes of the papers of the most prominent members, particularly Sir Garfield Barwick and Sir Harry Gibbs,[21] would meet Hayek's conservative criteria. Conservatives, Hayek claims, are mainly concerned with who should exercise power. They resist change where it is not controlled by superior persons whose standards and values should be protected and who should have a greater influence than others on public affairs.[22]
  
  
  14. The society's founding paralleled the High Court's decision in Mabo v Queensland (No 2).[23] Since then a number of Australian lawyers have attacked the High Court under Mason CJ and Brennan CJ for activism resulting from the use of political values in judicial decision making. Papers delivered at the society's conferences have received considerable publicity. They contrast it with the politically neutral legalism of the High Court under Latham, Dixon, Barwick and Gibbs C JJ which they praise as representing the liberal phenomenon essential for the rule of law. They have used the political theories of Hayek, explicitly or implicitly to do this.[24] His ideas have been widely promoted by conservative think tanks to delegitimise socialism and the welfare state.[25]
  
  
  15. The society's principal purposes include 'restore the authority of Parliament as against the Executive'. Its comments in respect of this are surprising. It claims that '[t]here is growing concern at the decline in the prestige, standing and influence of Parliament, and the growing centralisation of power and authority in the Executive.' It is difficult to know what Golden Age in English history they are using as a benchmark. The society also seeks to prevent the further erosion of federalism by 'the expansion of the power of the Commonwealth at the expense of the States'.[26] The significant powers surrendered by the states and territories as part of the Alice Springs Agreement and the resulting Corporations Law has so far escaped its attention. Presumably the reach of the federal Aboriginal affairs power as a result of the native title decisions of the High Court is why the society seems to have an obsession with Aboriginal issues. Yet the only reference to company law in their conference papers is in the context of indigenous affairs.[27]
  
  
  16. The defence of Sir Samuel's Constitution and the legal order as it existed in the past is the theme of many papers. Judges, particularly the High Court, are making 'political decisions' and not giving sufficient weight to the legislative views of parliaments or to precedents. Former chief justices Barwick and Gibbs make it clear that these judges are unworthy heirs. They appear to support Hayek's elevated beliefs about the common law and share his shortcomings. He argued that it is based on no conscious design but the adjustment of the mutual expectations of individuals.[28] Even if this were true of the common law it need not necessarily apply to constitutional interpretation.[29] Hayek's description of the common law conceals political issues in judicial decision making. The judge cannot 'will' a particular result but Hayek concedes that the experience of the judge matters.[30] Hayek exaggerates the certainty and restraints which the law imposes on everyone including the judges. He does not acknowledge the problem which follows from the abandonment of the logic of the syllogism which was used by Pound and others to criticise the Realist description of the law: it does not provide for equal justice.[31]
  
  
  17. Everywhere the darkness descends. The implementation of a report on education in civics means that: "school children would be in danger of ending up in a kind of chaos of the tribal, ideological, cultural, religious and other divisions to which the republican push has given life or a renewed lease of life."[32]
  
  
  18. Like the legal order which Barwick and Gibbs imagine, the Sir Samuel the society reverences, as the upright Chief Justice, does not appear to be the same one who was Chief Justice of Australia and remained actively involved in politics.[33] Depending on which Sir Samuel you pick you may get a different reaction to current company law teaching practices and its subversion by Marxist-inspired postmodernism.

  C. Postmodernists at the gates

  I define postmodernism as incredulity towards metanarratives.[34]

  
  (i) Looking backwards
  

  19. The Samuel Griffith's Society has largely ignored postmodernism. In their conference proceedings it is only referred to once. It is in the context of Aboriginal matters and the confession by anthropologists that it is 'time to abandon our search for objective truth and our reliance on scientific methods of enquiry.' Lawyers may not be as horrified by the suggestions by anthropologists that there are varying versions of not only facts but social customs and law.[35]
  
  
  20. Postmodernism is the product of its past, it has been called the archaeology of the modern, but the past is perceived in the present and that affects our present view of these older theories.[36] This is now a commonplace theme for lawyers through Dworkin's metaphor of the chain novel to describe the development of the common law with judges writing successive 'chapters' to reach a 'best fit' with the previous chapters.[37] As Posner points out one of the effects of this is that, by being aware of what comes next, we read the previous chapters differently.[38]

  (ii) Modernism and the law
  

  21. Postmodernism can be understood in terms of what it is not. Habermas identifies the beginning of 'modernity' in the Enlightenment of the eighteenth century. It represented 'a dialectical opposition to what is not functionally 'modern' namely tradition.'[39] While there is continuing conflict over its origins [40] there is more general agreement that it represented the "extraordinary intellectual efforts on the part of Enlightenment thinkers 'to develop objective science, universal morality and law, and autonomous art according to their inner logic.'"[41]
  
  
  22. These efforts impacted on law with the slogan of the French Revolution: "A good law must be good for everyone in exactly the same way that a true proposition is true for all."[42]
  
  
  23. It led to what Habermas describes as an
  extravagant expectation that the arts and sciences would promote not only the control of natural forces but also understanding of the world and self, moral progress, the justice of institutions and even the happiness of human beings.[43]

  Lawyers and thinkers influential in law
  

  took as axiomatic that there was only one possible answer to any question. From this it followed that the world could be controlled and rationally ordered if we could only picture and represent it rightly. But this presumed that there existed a single correct mode of representation which, if we could uncover it (and this is what scientific and mathematical endeavours were all about), would provide the means to Enlightenment ends.[44]
  24. Australian company lawyers are familiar with this in the spin given to programs to simplify company legislation or render it economically friendly.[45] Uncertainty in the law was seen as the product of lawyers' quarrels over the meaning of legal doctrine. This ideology shaped the positivist legal formalism which came to dominate the common law in the scientificism of the nineteenth century. It led to platonism, the belief that legal ideas exist 'like trees on rocks, rather than are created.'[46]
  
  
  25. The rationality of the Enlightenment had never been without its critics whose spectrum of other opinions coincided on this doubt. There was a persistent recognition of the failure of the promise of rational processes to deliver the expected practical results it promises.[47] Lyotard has traced it in Hesiod and Plato.[48] The critics included Edmund Burke, De Sade and Malthus. The fault finding accelerated at the end of the nineteenth and the beginning of the twentieth centuries in what has been described as 'the dark side of the Enlightenment' or the 'turning back of modern reason upon, or against itself'.[49] Nietzsche and Heidegger queried the ideas of 'progress' and 'overcoming'.[50] Adorno queried the possibility of conceptualizing the 'totality'.[51] Simmel identified a crisis in modern culture and the exhaustion of modern cultural forms.[52] As Harrington observed in 1965 '[f]or more than fifty years, the Western World has haunted itself with rumours of its own death.'[53]
  
  
  26. Significantly for law the critics came to include Max Weber who perceived that the cycle of rational progress recreated the wasteland, which had been developed, within the developer.[54] Whether it is called postmodernism or something else the themes associated with postmodern thought had become familiar in law in the twentieth century. Postmodernism in law does not necessarily lead to a radical break with modernism.[55] At this point scepticism about rationality in postmodern thought meets Hayek and some of the supporters of the common law tradition in the Samuel Griffith's Society. Hayek rejected the rationality of the Enlightenment for the rationality produced by the common law in the adjustment of the mutual expectations of individuals.[56]
  
  
  27. Different conclusions appear to follow from these two rationalities. The acceptance of rationality in the sense used by Hayek seems to lead to conclusions associated with the declaratory theory of law and Dworkin, that there is only one right answer.[57] The rejection of Enlightenment rationality, without accepting Hayek's view, appears to have led to an acceptance that law is indeterminate, even if this was shown by rational arguments and was part of an attempt to describe law more perfectly.[58] This rejection of formalism in the common law started in the United States[59] and these issues had already been widely explored by the realist and process schools in American law. Meaning in law had to be considered in social, political and economic contexts.[60] The uncertainty of language in communicating human thought and awareness of the relativism produced by different perspectives of the same phenomenon or event were already prevalent. Indeterminacy was nothing new.

  (iii) Postmodernism and the 'present'
  

  28. Postmodernism is associated with the present and the social and economic changes which led to the 'media society', the 'society of the spectacle', the 'consumption society', the 'society of controlled consumption' or the 'post industrial society.'[61] The meaning of postmodernism is unclear. Its very existence as separate from modernism is uncertain.[62] The name itself emerged in the United States to describe contemporary culture.[63] It suggests that it comes after the modern and therefore has a separate identity. But a number of writers see it as a continuance of the modern. Lyotard states postmodernism is 'undoubtedly a part of the modern.'[64] Foucault claimed not to understand the term and Baudrillard questioned its existence.[65] Others have referred to it as the modern 'taking a long, attentive and sober look at itself', 'coming of age' or 'self-monitoring.'[66] It has been argued to represent just a revolt within modernism, a style, a periodizing concept, a revolutionary force, the commercialisation and domestication of modernism, 'spectacle or image society', 'media capitalism', 'the world system', 'multinational capitalism', 'a radical restructuring of capitalism', the 'art of an inflationary era' and the 'cultural logic of late capitalism.'[67]
  
  
  29. So far postmodernism has been discussed as if it were a historical and geographical philosophical phenomenon but it is a condition which is 'overwhelmingly present'.[68] It is the cultural condition in which we are now living in which socio-legal thought is exposed to the crises of confidence and representation. It is a time of re-interpretation of significant theorists of modernity, such as Weber and Marx, to disclose the irreconcilable conflicts in their thoughts.[69] It is because postmodernism is the present that we find that there are echoes of the past. To borrow Dworkin's analogy, each generation has the experience of writing chapters not knowing what the ending will be or what will happen in a future chapter. If this makes us anxious, uncertain and open to doubt we are not the first to experience it. Company law students need to experience what it is like not to know the end of the story, to conceive the possible endings and how they will reach them. For another reason this concept of the present is significant in law teaching. As Twining observes 'law feature[s] prominently on the front page of newspapers.'[70] 'One of the best compliments', he writes, 'that I have heard paid to a law degree by a former student was that by the time he graduated he was equipped to understand every page of the Financial Times (including its excellent Arts section).'[71]
      
  30. Harvey notes that 'we are within the culture of postmodernism to the point where its facile repudiation is as impossible as any equally facile celebration of it is complacent and corrupt.'[72] The concepts flowing from it are entering all cultural fields. Students of company law in Australia should also be able to read the not-so-excellent Arts pages of the Australian Financial Review.
  
  
  31. Postmodern has developed a broader and a narrower meaning.

  (a) Broad postmodernism: 'turning back of modern reason upon, or against itself'[73]
  

  32. Central to both concepts of postmodernism is the critique of reason. Whether this resulted from the failure of rational methodology of the Enlightenment or from the failure to use that methodology properly is disputed. The methodology used tended to treat knowledge as existing independently of morality or the context of deciding. Yet deciding involved morality because it was embodied in the knowledge applied to make determinations. This obscured and ignored both the ethical component in knowledge as well as the power component in knowledge as Lyotard explained:

  Take any civil law as an example. It states that a given category of citizens must perform a specific kind of action. Legitimation is the process by which the legislator is authorized to promulgate such a law as a norm. Now take the example of a scientific statement: it is subject to the rule that a statement must fulfil a given set of conditions in order to be accepted as scientific. In this case legitimation is the process by which a 'legislator' dealing with scientific discourse is authorized to prescribe the stated conditions (in general, conditions of internal consistency and experimental verification) determining whether a statement is to be included in that discourse for consideration by the scientific community.

  The parallel may appear forced. But as we will see, it is not. The question of the legitimacy of science has been indissociably linked to that of the legitimation of the legislator since the time of Plato. From this point of view, the right to decide what is true is not independent of the right to decide what is just, even if the statements consigned to these two authorities differ in nature. The point is that there is a strict interlinkage between the kind of language called science and the kind called ethics and politics: they both stem from the same perspective, the same 'choice' if you will - the choice called the Occident.[74]

  33. Modernism was marked by determinacy. Postmodernism is distinguished by its indeterminacy.[75] It is one factor which has led to postmodernism being blamed for the breakdown of intellectual activity.[76] Even the thinkers 'most closely identified with the postmodern might be described as, at best, reluctant participants.'[77] But the rational tradition of modernism did not permit the rejection of a theory because of its implications.
  
  
  34. Modernism was based on reason.[78] This has led to a number of contradictions which marks postmodern thought. While the metanarrative of rationalism and science has been abandoned the grammar and vocabulary of modernism are the only ones available.[79] Writers are afflicted in knowing that their knowledge is a pastiche of dead styles,[80] marked by unconscious bias[81] and search for some limited safehaven in ironic or pragmatic thought. One of the paradoxes of postmodernism is its continued use of reason in spite of its attack on reason. Lyotard argues that to continue to interrogate reason to show that it is not 'a question of one massive and unique reason' is part of an older and bigger interrogation: "the crisis of reason has been precisely the bath in which scientific reason has been immersed for a century, and ... this continual interrogation of reason, is certainly the most rational thing around."[82]
  Its possibilities are of particular interest to lawyers in adversarial legal systems: "Here, look how this style embodies a particular vision ... and how it is challenged by the style next to it, and by the style next to that."[83]
  
  35. Postmodernism and its themes of relativism, context and indeterminacy are now unavoidable. Some consequences of this are swept under the carpet of everyday practice in law and teaching. One of these is indeterminacy. The indeterminacy of the legal medium rarely intrudes into legal writing about company law and securities regulation. The effect is that modernism lingers on and the ideas of normative legal thought still prevail. Schlag in 1990 observed that law, in most legal writing, still appears as something almost solid: "authored by and addressed to an autonomous, coherent, integrated, rational, originary self, receptive to moral argument through a medium of language that is itself weightless and neutral."[84]
  
  
  36. The writers of the articles appear as objective observers, relatively autonomous selves, whose language like the law is also 'weightless and neutral.'[85] However, as discussed below, once law journals are read cover to cover, rather than selectively for articles revealed by an index as closely related to a doctrinal topic, the phenomena observed by Schlag become apparent.
  
  
  37. Lyotard declared: 'I define postmodernism as incredulity towards metanarratives'.[86] His voice has now been joined by others: 'there is no single monolithic postmodernism';[87] 'postmodernism turns out to be a minefield of conflicting notions.'[88] So the first paradox of postmodernism is that its metanarrative is that there is no metanarrative.
  
  
  38. The most commonly described features of postmodernism further emphasise the indeterminacy of knowledge and communication based on the perception that language mediates our understanding and that it masks reality, as it really is, from us. The French writers Barthes, Baudrillard, Derrida, Foucault and Lyotard have together pursued a number of themes which bear on this: an absence of secure foundations of knowledge; a crisis in representation and associated instability of meaning; the centrality of language, its structure and use; and the inappropriateness of the assumption in the rational tradition of the 'rational autonomous subject.'[89] Emerging from their writings and those of others such as Rorty there are conceptions of pragmatic action as a response to these indeterminacies.
  
  
  39. In contemporary legal writing, particularly in the United States, there are two strands of postmodernism: that associated with these French writers who are sometimes designated poststructuralists.[90] There is a second strand associated with neopragmatism which shares this view of language and reality but also emphasises that language and knowledge are social constructions.[91]

  (b) Narrow postmodernism: continuing the Marxist project
  

  40. As a number of the alternative names for postmodernism suggest it has been seen as linked with contemporary advanced capitalist culture "following the transformations which, since the end of the nineteenth century, have altered the game rules for science, literature and the arts."[92]
  
  
  41. The persistence of questions about power and control 'particularly in the increasing monopolization of information by private business' would seem to continue the privileged position of Marxism in the explanation of this form of capitalism even if the social classes described by Marx no longer function as their places are taken by bureaucracy and technocracy.[93] This is the position reached by two influential writers on postmodernism, Harvey and Jameson, 'who treat the postmodern as an epiphenomenon of transformation in the capitalist mode of production.'[94] As the company, from one aspect, is a device for the accumulation and management of capital these theses relating to the transformation of capital are particularly relevant to analysing company law.
  
  
  42. Lyotard draws on Bell's and Touraine's theses of the emergence of a 'postindustrial' and 'information-based society' which has transformed the language of communication in advanced capitalist societies in his analysis of contemporary society.[95] Knowledge 'has become the principal form of production' in these societies and is 'a stake in the worldwide competition for power.' In the context of pointing out that the form of 'the circulation of capital that go by the name of multinational corporations' already imperils the stability of the state he predicts that 'the mercantilization of knowledge is bound to affect the privilege nation-states have enjoyed, and still enjoy, with the production and distribution of learning.' As a result new fields are open for 'commercial and industrial strategies' in which 'the problem of the relationship between economic and State powers threatens to arise with a new urgency.'[96]
  
  
  43. Harvey's and Jameson's privileging of Marxism appears to rest on the ethical and moral problems they see in postmodernism if they do not. Their reliance on it appears to be an act of faith. Harvey's is a reaction to the 'class aggrandizement'[97] he saw in Reagan's America based on the carefully manufactured image of a president and what George Bush described as 'voodoo economics" in which "poverty and homelessness are served up for aesthetic pleasure' [98] as America slid from the leading creditor to the leading debtor nation for which a cure of 'market-orientated policies' is now prescribed.[99] The reverse side was the casino capitalism which impenetrated 'the capital of production' with 'the capital of fiction'.[100] Jameson is also scathing of Reagan's America and calls for theoretical innovation but continues an uncritical commitment to Marxism looking for a new agent of social change: 'a new international proletariat (taking forms we cannot yet imagine) will re-emerge from this convulsive upheaval it needs no prophet to predict.'[101]
  
  
  44. Jameson's perspective is that by the end of the Second World War the technology for a significant change in capitalism was present. The war had also re-organised international relations and laid the groundwork for a new economic system. He identifies 1973 as a significant year in which both the economic and cultural structures were transformed by the oil crisis, the abandonment of the gold standard and the beginning of the end of traditional communism in Europe.[102] The commodification of this form of economics has extended into spheres previously thought to be autonomous such as the arts.[103] The ideology of the market that, no society can function without it, economic planning is impossible, it is in human nature, the nationalisation of capital is not necessary and is inefficient and that it produces freedom prevails.[104] How this came to be he suggests is explained by its relationship with the global media.[105]
  
  
  45. Jameson draws on Ernest Mandel's model of a third stage of capitalism which he described as 'late capitalism'.[106] At its core is the exponential acceleration in the technology used as fixed capital on the rate at which the value of that capital was recouped for the renewal of fixed capital. This led to increasingly shorter periods in which fixed capital was renewed and also led to an emphasis on technology and intellectual property, which permitted that time to be increasingly shortened, as the most valuable form of capital.[107] Old distinctions between fixed capital and circulating capital disappeared.[108] This led to further specialisation in labour to develop and manage this technology.[109] The pressure on capital was so great that none could be left idle and what would otherwise be so was mopped up in the provisions of services which could then be substituted by the provision of commodities.[110] This same pressure also accelerated the push of capital through national boundaries and into international markets leading to increasing internationalisation and centralisation of capital.[111] Mandel rejected Bell's analysis that post-industrial societies could not be analysed in Marxist concepts.[112] He shows that the primacy Bell gave to technological development and the shift to informational technology in particular could all be explained in classical Marxist terms as the global expansion of capitalism, which was then penetrating precapitalist Third World societies and First World culture, as 'the colonisation of Nature and the Unconscious'.[113] Mandel argued that the ultimate defining characteristic was the extraction of the surplus value rather than the commodity produced. He described the period from 1940 to 1965:
  
  
  This new period was characterized, among other things, by the fact that alongside machine-made industrial consumer goods (as from the early-19th century) and machine-made machines (as from the mid-19th century), we now find machine-produced raw materials and food stuffs. Late capitalism, far from representing a 'post-industrial society', thus appears as the period in which all branches of the economy are fully industrialized for the first time; to which one could add the increasing mechanization of the sphere of circulation (with the exception of pure repair services) and the increasing mechanization of the superstructure.[114]
  46. Non-Marxist writers, such as Bell, also observed this transformation.[115] Harrington noted in 1965 the convergence between the American corporation and the Soviet state-owned enterprise. This was hardly new. This is where the views of Berle on the company were leading American regulatory philosophy. If the shareholders no longer controlled the company and the company's role was to become the instrument of the people. If that was the case, as Hayek pointed out, 'the appointed representatives of the public interest should control the management.'[116] Harrington quoted Schumpeter on what the consequences were for the ownership of corporate capital:
  
  
  The capitalist process, by substituting a mere parcel of shares for the walls of, and machines in, a factory, takes the life out of the idea of property. It loses the grip that was once so strong - the grip in the sense of the legal right and the actual ability to do so as one pleases with one's own ... And this evaporation of what we may term the material substance of property - its visible and touchable reality - affects not only the attitudes of the holder but also that of the workmen and public in general. Denaturized, defunctionalized and absentee ownership does not impress and call forth moral allegiance as the vital form of property did."[117]
  47. The focus of writers such as Harvey and Jameson has been on how 'services' such as the arts have been transformed by the commodification that their products underwent. This suggests a consideration of the company law journal itself as an artefact of late capitalism.
  
  
  48. The journals looked at in this survey, the Australian Business Law Review, the Company and Securities Law Journal and the Australian Journal of Corporate Law, contain articles frequently written by academic lawyers. They once published in, almost, free university law reviews. These three publications are produced by commercial law publishers and the subscriptions are substantial. They are also retailed through their proprietors' on-line services. They have been commodified. They mop-up increasing amounts of the research time of company law teachers. In the final contradiction these academics supply the articles for free and their respective universities then pay for the journal both in hard copy and as part of an on-line service.
  
  
  49. But, more significantly, Mandel's model provides insights into what happened to capital in companies although he does not write specifically about the shareholder's position. In the period after the Second World War takeovers became a feature of corporate life. Generally capital in a company had been a commodity which could be traded for several centuries. It was also changed by this process of the blurring of distinctions between forms of capital. Companies had once manufactured commodities. In this accelerated, or new form, of capitalism companies emerged which were themselves commodities whose capital was used to obtain the capital of other companies as the quickest way to recoup the renewal of that capital. This had been possible for some time and had been done previously. But it then became far more prevalent and was accompanied by increasingly complex financial transaction which represented a new technology of finance. As with the renewal of technology in the exploitation of other resources information about the company took on a new significance.
  
  
  50. Looking back it becomes clear that the by late 1960s company law had entered 'the information age' with the increasing importance of information in companies being recognised. Galbraith in 1967 had implicitly recognised the importance of information and its 'technology' in the large American corporation around which a new managerial class, the 'technostructure', was constituted[118] and from which the shareholders had to be excluded.[119] To secure autonomy the managers required access to debt capital without surrendering decision making power. This it found in an abundant debt market.[120] He argued that processing information had become the major activity of these companies:

  "The modern business organization, or that part which has to do with guidance and direction, consists of numerous individuals who are engaged at any given time, in obtaining, digesting or exchanging and testing information."[121]

  51. The power of shareholders had declined for a number of reasons:

  More important is the failure of knowledge. Those who are not active in the management of the enterprise have less and less knowledge of what is happening and less opportunity of informing themselves at a time when the increasing size and complexity of the enterprise mean that more and more knowledge is required for intelligent decision. The individual or individuals who are immediately in authority, by contrast, retain the knowledge which goes automatically with such association.[122]

  52. Observations about information are now commonplace and there are major debates in company law and securities regulation about disclosure and its central paradox:
  
  
  Perhaps the most important force driving financial markets is information. It is not surprising therefore, that rules governing the disclosure of information would be central to the stabilization of expectations about risk, and thus to the maintenance of the basis of trust necessary for the functioning of such markets. However, the issue of information disclosure involves a central contradiction. Profitable trading results from capturing the value of private information, which would be negated by disclosure; hence, an obligation to disclose removes an economic incentive to acquire information, and would impede the flow of active trading by participants who believe they have an advantageous knowledge or superior analysis. On the other hand, many investors would be repelled from markets if they perceive them to be rigged by 'privileged' knowledgeable insiders.[123]
  53. Lawyers, including students and teachers, have their interests focussed by the concerns of their times and so the image built up of what would be 'out there', if the object of the corporate law writing existed, would be expected to show the outlines of current concerns. Contemporary corporate law writing does focus on information, its flow and control, the control of companies, and issues associated with these of corporate governance and regulation, sensitivities to things which may impact on those issue such as institutional investors and globalisation and internationalisation. They are not exclusive categories and there is a considerable number of connections between them.
  
  

  3. Postmodernism in Ford's turret
  

  In the research racks at Shearston Hayden Stone, Inc a commodity letter bears this quotation from Heraclitus: 'All is flux, nothing stays still.' Marshall Berman, All That Is Solid Melts In The Air: The Experience Of Modernity (Verso: London, 1983) 87 citing 'Shearston Chief Builds a New Wall Street Giant', New York Times, 1979.

  54. Harvey, writing about contemporary culture and the arts, lists a number of major themes which are associated with postmodernism. These themes are constantly returned to in contemporary Australian corporate legal writing. A large part of it is written by company law teachers and read by their students.
  
  
  55. The postmodernist themes Harvey identifies are:
  
  
  • a total acceptance of the ephemerality, fragmentation, discontinuity and chaos of human knowledge.[124]
  • the impossibility of metanarratives or universal truths.[125]
  • the importance of interpretative communities and their relative autonomy which Foucault called 'heterotopia'.[126] This is significant for: Foucault's emphasis of the interplay between power and knowledge which makes it impossible to escape the consequences of knowing and administrating;[127] and Lytotard's emphasis on the infinite number of language games in which the social subject seems to dissolve.[128]
  • a focus on communication and means of exercising power in post-industrial information based societies.[129]
  • the link between the signified (message) and the signifier (medium) which is no longer seen as singularly determined but as constantly deconstructing itself so that cultural life can be seen as a series of texts intersecting with others.[130]
  • that language speaks through us, or as Barthes and Foucault call it, the death of the author.[131]
  • ethical problems which arise from lacking universal standards best known from Rorty's statement that one can only act 'locally'.[132]
  • little attempts to sustain continuities of values, beliefs or even disbelief.[133]
  • in terms of psychological presuppositions, the centrality of schizophrenia rather than paranoia and alienation.[134]
  • in the immediacy which is the only thing left. This is the rule of the sensational and the spectacle in place of memory and historical continuity. There is a loss of depth and an emphasis on surfaces. This leads to us living in a pastiche of historical tidbits which jumble 'together all resemblances to past styles.[135] Happenings and media images dominate and there is a collapse of a sense of time making everything appear instantaneous.[136] It is accompanied by a nostalgic impulse for the past[137] and at the same time by an international cultural eclecticism.[138]
  • a complex relationship with popular culture. 'Postmodernism then signals nothing more than the logical extension of the power of the market over the whole range of cultural production with advertising as the official art.'[139] There is a constant play with masking and viewing, seen in architecture with reflecting glass surfaces that hide the geographic site, and in law with the interplay between privacy and the right to know.[140]
  56. Categories are, of course, methods of organising thought. They may not be directly related to what is 'out there'. In applying these categories to the contents of Australian company law journals their flexible, or accordion-like, nature means that unstated bias has a wide scope in which to play. The categories could be regarded as another example of Stone's categories of illusionary or competing reference. Yet a significant amount of writing appears to reflect these themes. Can a paper on postmodernism seek to prove its case rather than just leave an impression?
  
  
  57. Methods of organising thought are also fabrications. The analysis which follows involves another fabrication and an invitation. A point of view for the Samuel Griffith Society is constructed out of papers read by authors at its conferences. That view is attributed to the Society. That this is a valid fabrication is indicated by the consistency of the points of view expressed by these speakers. The Samuel Griffith Society, with some exceptions, does not give the publicity of its platform to people who hold points of view opposed to its conservative principal purposes. The reader is then invited to extrapolate those views to what the authors of these papers would say about company law, a topic on which they have chosen not to speak. As they have chosen not to speak on this it may not be considered a valid invitation. I suggest it is as there is no obvious reason in their approach to law to see why these views would not continue into company law. I would also suggest that the reason for the absence of company law and corporate governance as subject matters is that the directors of the public companies which fund the Society do not regard these topics as ones about which they wish to promote a public debate.
  
  

  A. The absence of universal truths and the fragmentation of knowledge
  

  58. Universal truths, or metanarratives, are impossibilities.[141] There is no universal reason why this is so. Foucault emphasises the interplay between power and knowledge which makes it impossible to escape the consequences of knowing and administrating. He denied that power is ultimately located within the state but that it is built up in the systems of knowledge 'which codify techniques and practices of social control and domination within particular localised contexts.' This cannot be explained by any overarching general theory. The resistance to power must also be at the local level.[142] Lyotard also denies any universal truths by emphasising the infinite number of language games in which social subjects seem to dissolve. He argues that the social bond is linguistic but that it is not woven from a single thread but by an 'indeterminate' number of language games. Individuals have open to them different sets of language games depending on context and this often obscures the location of any power. This contrasts with the rigidities with which institutions, including the law and companies, seek to close and limit what is said within their boundaries. But even the 'limits the institution imposes on potential language "moves" are never established once and for all.'[143] This theme is not without paradox. Incredulity towards metanarratives is 'at least as old as the Enlightenment' and, as Lyotard concedes: 'Are we not telling, whether bitterly or gladly, the great narrative of the end of narratives.'[144] It has long been recognised by some legal writers that law could never be universal.[145]
  
  
  59. One valuable insight from this for students is that there is not one basis on which rights are justifiable. The holders of rights are exposed when there is a change in financial and property arrangements underlying the law. They are the ones in danger of being displaced as rights are seen to be more legitimately held by others. But even in a time of rapid change in economic paradigms the law permits people to retain rights or property when others more powerful and more closely connected with the state wish to have it.
  
  
  60. Related to the absence of universal truths, postmodernism is marked by the total acceptance of the emphemerality, fragmentation, discontinuity and chaos of human knowledge which appeared in modernism. Its presence is admittedly ambiguous. It may represent a continuation of modernism or it may represent the revolutionary rise of a previously latent idea.[146] As Lyotard noted the interrogation of reason over whether there is 'one massive and unique reason' continues a century-old process. The result may be that 'there are only reasons or a plurality of rationalities.'[147] Vattimo has a different emphasis on rationality. He argues that the modern was driven by the idea of progressive enlightenment which would 'overcome'. It developed through more complete examinations of its foundations. It becomes impossible, however, to overcome the foundational element of 'overcoming'. This means that there is no other language, knowledge or thinking which we can use. Our perception of this can change and postmodernism represents an attempt to come to terms with the 'errancy of metaphysics' which leads to a weakening of the power of thought.[148] This is intensified by the proliferation in views and 'irresistible pluralization' of interpretations which remove any sustainable assumptions which could be made between images which are 'information-media-generated' and the real world.[149]
  
  
  61. This fragmentation appears to be opposed by members of the Samuel Griffith Society. Or, to be more accurate, some would concede that it is true of the present state of the law because of the rejection of earlier standards.[150] There is, however, no ambiguity about its position on universal truths. To read its proceedings is to find a sea of values and principles described, almost invariably, as 'fundamental'. It is often used of Samuel Griffith's Constitution[151] but there are host of others: the High Court's fundamental role is to 'maintain the federal balance';[152] no court may make 'a change in the law so profound and far-reaching as to require the authority of the legislature';[153] the Queen is an indispensable part of the legislature;[154] a bicameral legislature is a universal requirement to secure the liberty of the people;[155] and, that a fundamental principle of federalism is competition between the federated entities.[156] There is generally no doubt that truths about law are universal. Indigenous peoples, particularly those of Australia, should not expect their misunderstandings to be tolerated although one non-member has spoken on 'cultural relativism' in this context.[157]
  
  
  62. Generally the approach in Australian company law journals follows more the themes of the English rather than the American law review. Goodrich says of the richness of theory in the American law review:
  
  
  Yet this is no greater a sin of overconsumption than any other aspect of the American commodity market, it is indeed relatively liberal, pluralistic and free of xenophobia whereby the English (legal) academy steadfastly resists the incursions of the foreign or otherwise 'unsound' theories. At the same time, however, there is a sense of ironic disorientation that accompanies much of this work. The translation of continental theory is market led and subjects critical scholarship to a breathless journalism which follows the immediate fashions one after another like papparazzi. One name gives way to another while cultural memory dissolves into the immediacy of the limelight: we can all be critical scholars for fifteen minutes.[158]
  63. It is demonstrated by the variety of perspectives on writing on corporate law and securities regulation. Although the dominant tone is still the search for the one right answer based on a great metanarrative. Many writers still see the evolution of law as a movement towards increasing perfection.[159] Others express surprise at the failure of fundamental principles to emerge on a closer examination of an area of law.[160] Increasing numbers of articles tease legal doctrine apart to show how it consists of a tension between competing principles.[161] Others frankly recognise how doctrinal law is used in a counter intuitive way or ignored.[162]
  
  
  64. Other narratives are appearing. Feminist perspectives are amongst the most prevalent. So that both company law students and members of the Samuel Griffith Society will read that 'the business corporation is a perfection of the masculinist version of self - existence as property, separation of accountability and enjoyment, abstract rules of justice, domination as ownership' and that before significant amounts of women become directors the culture which legitimates the company at present will need to change.[163] Others seek to reveal the patriarchal and masculinist biases in corporate law which are gendered by concepts such as 'objectivity' and 'rationality'.[164] Anglo-Celtic Australians are reminded of their cultural boundedness and inability to avoid cultural bias as they read increasing numbers of articles in these journals about company law in Asia.[165]

  B. Interpretative communities
  

  65. Autonomous interpretative communities are important in understanding what determinacy there is in knowledge and communication. Foucault called them 'heterotopia'. These are both juxtaposed or superimposed worlds in which the people present no longer consider how they can solve the mystery of the world's existence but are forced to ask 'Which world is this? What is to be done in it? Which of myselves is to do it.'[166] Lyotard also noted that the variety of language games meant that 'local determinism' will exist in 'patches' within institutions.[167] But within them indeterminacy also flourishes.[168]
  66. Interpretative communities have also been used by Habermas to resist the fragmentation of knowledge and the absence of universal truths associated with postmodernism. This acceptance of hermeneutics as a grand narrative excludes him from postmodernism as described by writers such as Lyotard:

  Is legitimacy to be found in consensus obtained through discussion as Jürgen Habermas thinks? Such consensus does violence to the heterogeneity of language games. And invention is always born of dissension.[169]

  67. Habermas sought to support the rationality of the Enlightenment by challenging the consequences of Weber's concerns in western thought.[170] He supports, however, those who claim that the methodology of the empirical-analytical sciences applied to the historical-hermeneutic disciplines led to false 'objectivism' and 'scientism'. He distinguished these disciplines from science by their practical interests in furthering understanding. Both are marked by a 'false universalism' which must be guarded against by 'testing, challenge and rational evaluation' and an 'emancipatory cognitive interest' which he labels 'self-reflection'.[171] He argued:

  The historical-hermeneutic sciences gain knowledge in a different methodological framework. Here the meaning of the validity of propositions is not constituted in the frame of reference of technical control ... Access to the facts is provided by the understanding of meaning ... The verification of lawlike hypotheses in the empirical-analytical sciences has its counterpart in the interpretation of texts. Thus the rules of hermeneutics determine the possible meaning of the validity of statement of the cultural sciences.[172]

  68. He, however, argues that the claims of the participants in these disciplines have to be evaluated not only against their 'good reasons' but also 'with reference to "our" standards of rationality. ... We are always in danger of being ethnocentric, but we never escape the horizon of rationality.'[173] Interpretative communities have been used within the discipline of law to seek to save it from indeterminacy by Fish and other writers. Teubner, in his description of law as an autopoietic system, also constitutes it as an interpretative community. Ironically the supporters of autopoiesis may form their own interpretative community because of the obscurity of their language.[174]
  
  
  69. The speakers at the conferences of the Samuel Griffith Society are familiar with the concept of the interpretative community but it is something which other people, and not themselves, compose. It is formed by 'scholars questioning how contemporary Australian society can best be reflected in our political conventions and institutions' and wishing to introduce into it 'women, blacks, indigenous peoples and other groups'.[175] This is demonstrated by the interpretative community formed by the History Department of James Cook University and the High Court on the matter of native title.[176] Another, much larger group, the 'chattering classes ... are a danger as well as a pest, and there are real prospects they may impair the very Constitution we are all concerned to preserve.'[177] Feminists compose another, but less dangerous community, which can be ridiculed.[178] The specialist arbitration courts and trade unions also constituted such a community in which 'artificial doctrines' gave 'Australian trade unions a strength greater than that which they have almost anywhere else in the world.'[179]
  
  
  70. In the company law journals the complexities of the company, corporate law and regulation can be seen to constitute a number of interpretative communities. Postmodernism has drawn attention to 'our attraction to simplifying categories; our own contests over power including contests over what version of reality prevails'[180] and the imprecision of language.[181] The result has been a Babel as legal writers have been driven to use language which impedes communication. It has made it difficult for lawyers to talk together or to other disciplines.[182] Wishart has observed that '[c]onferences of corporate law teachers across Australia resemble reunions of dysfunctional families: there is rarely a cross word but no-one communicates.'[183] There are accusations of misunderstanding within the interpretative community and disagreement over what, if anything is to be done.[184] Changes in company law are so rapid that they are difficult to remain abreast of.[185] Rapid change also disrupts settled interpretation of the law.[186]
  
  
  71. Which community is interpreting the law has been a significant theme. Wishart suggests that the community the Corporations Law Simplification Task Force was writing its revised law for was 'Crocodile Dundee in town ... [who] spurns advisers (especially legal ones) as wasteful parasites upon society.'[187] The failure of the interpretative community of the courts to agree about the Corporations Law has troubled the regulators and company law practitioners.[188] Others worry about the expectation gaps between the various communities involved in companies.[189]

  C. A focus on knowledge and the exercise of power
  

  72. Postmodernism has focused not only on knowledge and its communication but also on their relationship to the means of exercising power in post-industrial information based societies.[190] Knowledge can be coded in increasingly more ways to make it more, or less, accessible.[191] As noted above by the 1960s companies were already seen as mechanisms for processing information. Cybernetics, particularly through theories of autopoiesis, can be used to model both legal systems and corporate system. Capital itself, in the form of money, can now be reduced to 'a set of digital messages'.[192] Foucault locates power outside the context of the state and concerns himself with power in localised institutions and so bypasses the privileged status of Marxism as the mode for analysing capitalism.[193] This has significance both for companies within the state and international companies which exist, at least in part, outside any state boundaries.
  
  
  73. The focus of conference papers given at the conferences of the Samuel Griffith Society, with their preoccupation with the High Court's decision on native title and constitutionally implied rights, have come to inevitably explore the relationship between the power of the High Court exercised through the language of its judgments and the judges who constitute the court.[194] Cooray observes, in a metaphor all teachers of company law will understand, that 'The knowledge of law demonstrated in the Murray Islands case would earn one out of ten from me if I was correcting an undergraduate essay.'[195] Cooray does not indicate whether this is the mark he would give before or after the High Court decided Mabo (No 2). The 'ideological correctness' of the language of the court excites Christopher Pearson as there 'is a terrible danger when civilisation becomes enmeshed in a linguistic contour which no longer matches the landscape of fact.'[196] Other papers dwell on the conservative preoccupation with the people who exercise power.[197] This focus is a forbidden approach for the society, not at least when done in respect of these decisions. This is not surprising. Law and the courts involve decision making and interpreting language about power. Foucault's insight is not specifically approved of but it could be argued that the basis on which the society is founded is that power in localised institutions such as itself can be used to influence other institutions.
  
  
  74. Also not surprising, given the significance of corporate capital, is that the postmodern theme most prevalent in company law journal articles deals with communication and means of exercising power.[198] This was a dominant topic in legislative law in the early 1990s. The CL was intended to address it:

  There have been widespread abuses of the existing company accounting and reporting requirements under which the true financial position of a group of companies has been able to be disguised by "off-balance sheet' reporting. This has enabled the financial statements of the company to be manipulated in such a way as to mislead investors and the market generally regarding the real level of liabilities or performance of the company or the group as a whole ... One of the consequences ... has been a significant loss of investor confidence, both amongst Australian and overseas investors, in the reliability of corporate financial information in Australia."[199]

  75. Little discusses the interrelationship between information and power in the context of takeovers.[200] Baxt has explored the subtleties of their interaction where a director with knowledge delegates the action to others.[201] In the context of Eisenberg's paradox, that directors have neither the time nor the resources to manage the company and can only monitor others do it, Whincop considers the economic benefits of having directors choose 'not to know' as they administer.[202] Fridman examines the internal corporate procedure for ratifying breaches of directors' duties which involves 'unclear and obscure law'.[203] Langton notes the interrelationship between information and the concept of corporate control used by the court in the context of the demutualisation of the NRMA.[204] The topic is returned to repeatedly in articles on corporate governance[205] including Hill's study of director's remuneration.[206] The attempt by the Murdoch family to introduce 'super voting' shares led to a refocus on the significance of voting power.[207]
  
  
  76. The regulation of companies and securities trading has traditionally focussed on the communication of information. The first English joint stock company legislation required the disclosure of information as a means of countering abuse by promoters and directors of their powers. This has become a continuing story but in recent years there has again been renewed focus and law-making in these areas with continuous disclosure requirements and changes to prospectuses.[208] Other information, outside the requirements of the law, is compiled to reveal patterns of share ownership and corporate control.[209] This is consistently recognised in articles dealing with institutional investors and the information and power which comes from their interlocking directorships and shares.[210] Corporate governance remains an uncertain term at the centre of an increasing debate.[211]
  
  
  77. The scope for law to be moderated by influence and negotiation is recognised.[212] The journal articles also reflect a common pattern with other common law jurisdictions in the limited way in which criminal law is involved in this analysis. This has been a focus of research since the 1940s when Edwin Sutherland commenced to research and theorise about white collar and corporate crime.[213] It still stands, however, on the periphery of criminology. There is difficulty in researchers accessing data except where proceedings have been taken in criminal justice process. Other regulatory domains see criminology and its interests as marginal to their concerns and the financial services sector has been particularly under-explored compared with health and safety areas.[214] It is generally believed to be under-detected and under-prosecuted.[215] Longo, for example, noted the considerable increase in the legal power of regulatory agencies since 1957 and the related diminution of the rights of suspects with no apparent increase in successful prosecutions or deterrence.[216] Self-regulation and its relationship with such crime is rarely investigated.[217] The indeterminacy which can be produced in civil law by self-regulation is discussed by Magarey and Spender.[218] The knowledge and power of the courts, and since the CL came into force the AAT, are also discussed.[219]
  
  
  78. The extensive articles on takeovers return regularly to knowledge and power.[220] The power of directors is recognised as intimately involved with what they know and what they do in takeovers.[221] The information available to participants is recognised as being manipulated in a number of ways.[222] Takeovers are also subject to quantitative research to get a feel for the movement of capital. This is also the theme of the large number of articles on the compulsory appropriation of the shares of minorities. It is recognised that knowledge about other rules may circumvent the rules about compulsory acquisition.[223] The brutality of the words 'compulsory acquisition' is deconstructed by Digby who believes that they are unconducive to the appropriate use of the provisions.[224] Hill reminds us the minority shareholders do have reasonable expectations about how they will be treated.[225] Information about the value of the company may defeat the power of courts to give an adequate remedy.[226] McLeish shows the masking and unveiling in the way we reveal and conceal the identity of shares as property or an entitlement to an amount of capital which will produce a particular stream of income.[227]

  D. Deconstruction and the death of the author
  

  79. Modernist thought presupposed that there was a very close relationship between what was said, the message or the signified, and how it was said, the medium or the signified. Language was often assumed to be transparent or clear and that it effaced itself in the communication between the speaker and the hearer.[228] Deconstruction, developed by Derrida out of the work of Heidegger, depicts these as 'continually breaking apart and reattaching in new combinations.'[229] The link between the signified and the signifier can no longer be seen as singularly determined but as constantly redetermining itself with each reader so that cultural life can be seen as a series of texts intersecting with others.[230] Derrida pointed to the logocentric nature of western thought which seeks to place one concept or word at the centre of meaning. He drew on Saussurean linguistics to show that no word or concept is self defining but are determined and understood by their place in an order of concepts or words and their difference from the other concepts and words. They are determined by what they are not.[231] He coined the term différence to describe this conceptual impurity 'economy of traces' - which is suggestive of the French verb différer which means both to differ and to defer in time. It denotes not only the exclusion and setting up of different meanings but also to the fact that any meaning given is not presently complete as another meaning will have come before it and another one will come after it.[232]

  The play of differences supposes, in effect, syntheses and referrals which forbid at any moment, or in any sense, that a simple element be present in and of itself, referring only to itself. Whether in the order of spoken or written discourse, no element can function as a sign without referring to another element which itself is not simply present. The interweaving results in each element ... being constituted on the basis of the trace within it of the other elements of the chain or system.[233]

  80. Collage and montage become the dominant way of seeing postmodern discourse with the power of the author of each piece to determine the meaning of each piece broken or, deconstructed.[234] This reconstitution of the text and the language of the text has led to what Barthes and Foucault call the death of the author.[235] The idea that meanings change every time they are used is older than post-structuralism.[236] This is significant for law with its multitude of different documents and discourses: "if words are only defined contextually, if there are no pure positive meanings, indeterminacy can be seen as a result of the process of meaning, and of the various strata which form meaning."[237]
  
  
  81. It is arguable that western law and the common law, with its adversarial techniques in particular, use deconstructive techniques.[238] Balkin observes that:

  Lawyers should be interested in deconstructive techniques for at least three reasons: First, deconstruction provides a method for critiquing legal doctrines; in particular, a deconstructive reading can show how arguments offered to support a particular rule undermine themselves, and instead, support an opposite rule. Second, deconstructive techniques can show doctrinal arguments are informed by and disguise ideological thinking. This can be of value not only to the lawyer who seeks to reform existing institutions, but also to the legal philosopher and the legal historian. Third, deconstructive techniques offer both a new kind of interpretative strategy and a critique of conventional interpretations of legal texts."[239]

  82. DeMott, for example, has considered whether the reluctance by the Delaware Chancery Court to find that directors have acted in bad faith is because the courts

  have effectively defined bad faith to mean something other than an absence of good faith. Such a definition might require the party challenging a decision to establish that those making it acted with malice - that is, with a demonstrable intention to inflict injury.[240]

  83. The conference papers of the Samuel Griffith Society indicate that deconstruction is a basic tool of legal argument[241] as does the extensive use of its techniques, without necessarily acknowledging the label, in the pages of Australian company law journals. Similarly as the society believes in the version of Sir Samuel which fits their objectives the writers of its conference papers are constantly inventing an original intention in deceased authors which favour their present position.[242]
  
  
  84. Concern about issues of interpretation, particularly of intersecting but unrelated texts is part of the staple of law. Few articles appear in these journals which do not raise this issue in one way or another. The most complex, because of the number of points which intersect, is directors' duties. There is an extraordinary volume of writing on basic interpretation of the common law rules of honesty and propriety.[243] The context in which information is conveyed is important.[244] McEwin argues that there is insufficient information available for shareholders or the courts to set appropriate standards for directors.[245] Baxt has observed the interaction of context with procedural law when shareholders do seek remedies against directors.[246]
  
  
  85. That each of us interprets the law as we read it rather than as it is written indicates an awareness in law of the death of the author. Most authors in these journals are aware of competing interpretations of the text and that the intention of the writers are masked by the text. Simmonds considers this in the context of the CL and the Corporations Law Simplification Taskforce and the way in which the inclusion of securities and charges in the CL privileges company law when the CL is interpreted.[247]

  E. Ethics and sustaining a continuity of values and beliefs
  

  86. Ethical problems which arise from the absence of universal values and beliefs haunt postmodernism in a paradox. To seek for coherent universal representation and action is either, at its best, illusionary or, at its worst, repressive.[248] Paradoxically this does not mean that a quest for justice is to be abandoned. Derrida's view is that his deconstruction technique is about justice and almost nothing else.[249] Repression has to be considered with moral and political values built into it. Derrida argued that while 'consensus has become an outmoded and suspect value ... justice as a value is neither outmoded nor suspect' but he did not explain how it had continued to be a universal value untouched by the language games he describes. He concludes that we 'must arrive at an idea and practice of justice that is not linked to that of consensus.'[250] Knowledge and ethics are not necessarily directly connected. For Lyotard there is no necessary relationship between 'correct' theory and 'good' decisions. Foucault also sees that there are ethical problems which stand outside the domain of knowledge.[251] Others resort to the pragmatism of Pierce and James used by their legal contemporaries such as John Dewey which became, in law, associated with Realism.[252] Neo-pragmatist beliefs, which differs from that of Pierce and James,[253] led to Rorty's statement that we can only act 'within the confines of some local determinism, some interpretative community, and its purported meanings and anticipated effects are bound to break down when taken out of these isolated domains.'[254] Rorty denies the possibility of universal laws or foundational constraints to govern modern interpretation and analysis.[255] His response of what to do is similar to Foucault's analysis of localised power and resistance outside the state. It is also associated with the sense of the 'the loss of historical continuity in values and beliefs or even disbelief.'[256]
  
  
  87. Neopragmatism has been defined as: "an attempt to replace the notion of true beliefs as representations of the 'nature of things' and instead to think of them as successive rules of action."[257]

  In this form it is sometimes described as irony. Ironist theorists are distinguished by three features:

  (1) she has radical and continuing doubts about the final vocabulary she currently uses, because she is impressed by other vocabularies, vocabularies taken as final by people or books she had encountered;
  (2) she realizes that argument phrased in her present vocabulary can neither underwrite or dissolve these doubts;
  (3) insofar as she philosophizes about her situation, she does not think her vocabulary is closer to reality than others, that it is in touch with a power not herself.[258]

  88. Posner, closely associated with the basis for a neo-classical law and economics analysis of company law has succumbed to Rorty's postmodern pragmatism.[259]
  
  
  89. The speakers before the Samuel Griffith Society on this issue appear to be like many others. They are reluctant to give up a belief in universal values but are willing to act pragmatically. Pragmatism has often been a matter of pride in the common law. The same tension can be seen in the writers of journal articles on company law. This is particularly so in respect of corporate management. Cupidity and gullibility appears to be older than the corporate form.
  
  
  90. The 1980s saw, in a number of common law jurisdictions, major frauds in the management of a number of large companies. There was widespread recognition that this could not be prevented by the law alone so that there have been a number of business groups working on a statement of ethics for directors. Stock exchanges have also embodied such standards, in a non-compulsive way, in their Listing Rules in the locality of 'disclosure' so that shareholders, or possible shareholders, are informed. These ethical issues are frequently referred to in the literature on directors' duties including Nicoll, who observes that they represent an acknowledgment of the inadequacy of law.[260] They have intruded themselves into neo-classical economic and contractual analyses of the company.[261] Directors remuneration is widely discussed in the context of whether it is excessive for the work performed.[262] Other, non-legal changes, are also seen as significant in infusing ethics into the locality of 'directors boardrooms' amongst which are institutional investors.[263] The issues recur in articles on conflicts of interest[264] and Chinese walls.[265]
  
  
  91. The related theme of the difficulty of sustaining a continuity of values and beliefs is also dealt with in the journals. Whether the NRMA demutualisation was a takeover by having all the members resign or the exchange of rights with no commercial value for rights with such value are specifically considered and found to depend on the position of the observer.[266] It recurs in the context of conflict between the CL and standards provided in legislation dealing with government enterprises.[267] The point is made again in respect of Hong Kong and its Confucian family-based concept of wealth as opposed to the individualism of the west and the cultural aspects of interlocking company directorships in Hong Kong.[268] Kamarul identifies pragmatism in the reform of Hong Kong company law to accommodate this.[269]

  F. Schizophrenia
  

  92. Postmodernist writing is claimed to be marked by the centrality of schizophrenia rather than paranoia and alienation as its underlying psychological presupposition.[270] In psychiatry schizophrenia is associated with 'forms of mental illness characterised by a lack of connection (splitting of the mind) between mental functions, which seem to the observer incongruous with one another and not understandable'.[271] Alienation has the sense of 'a loss of connection with one's own deepest feelings and needs' and it was the dominant motif of modernism .[272] Paranoia is a form of psychosis associated with delusions of grandeur and persecution and sometimes accompanied by hallucinations.[273] These terms have been used outside psychiatry as thematic concepts and postmodernism is described as schizophrenic as it concentrates on the fragmentation and instability of personality, motivation and behaviour.[274] Barthes, for example, suggests that we concentrate on 'jouissance', a 'sublime physical and mental bliss'.[275] The theme has been developed by Lacan and Jameson in terms of a linguistic disorder in which the signifying chain of meaning in a simple sentence snaps. When it breaks 'we have schizophrenia in the form of a rubble of distinct and unrelated signifiers.' It is a metaphor for our inability to 'unify the past, present and future of our own biographical experience or psychic life.' It is also a metaphor for contemporary concern with participation, performance and happening more than the finished work, for concern with surfaces rather than roots. Derrida's deconstructive techniques manifest these tendencies.[276] It leads to an abandonment of the idea of progress and continuity and memory and the past is plundered to find there some aspect of the present.[277] History becomes archaeology as its remnants are dug up to be displayed in the museum of modern knowledge.[278]
  
  
  93. Alienation is still the preferred diagnostic metaphor at the Samuel Griffith Society's conferences. It is produced by the centralising of power in Canberra.[279] People wishing to interfere with Sir Samuel's Constitution suffer from mania:
  
  'an abnormal mood shift or excitement which afflicts people in the grip of an idea'.[280]
  
  94. Hardly surprisingly directors duties have the metaphor applied directly.[281] The law, and the community of company law practitioners have been schizoid, in the sense of tying a string with one hand as they undo it with another, for several centuries. A recent example is the use of capital reductions and schemes of arrangements to avoid the takeover provisions which other lawyers argue should apply.[282] The regulatory choice is observed between strict, or lenient, enforcement of the law or enforcement which is inconsistent and which has no relationship to the purpose of the law.[283] The incoherence produced by the interaction between company law and state regulation and practice in Asia is observed.[284]

  G. Immediacy: the determinism of the new
  

  95. The schizophrenic state of postmodernism leads to a concentration on the spectacle which can only be judged on how spectacular it is. The 'experience of the present becomes powerfully, overwhelmingly vivid and "material": the world comes before the schizophrenic with heightened intensity, bearing the mysterious and oppressive charge of effect, glowing with hallucinatory energy.' The world is 'a series of pure and unrelated presents.' [285] Immediacy is the only thing left. This is the rule of the sensational and the spectacle in place of memory and historical continuity. There is a loss of depth and a fixation with appearance, surfaces, and instant impacts that have no sustaining power over time. Art reflects this 'contrived depthlessness in writing, painting, photography and architecture.[286] All disciplines share the same fate in the leading medium, television. Taylor describes it as the:

  first cultural medium in the whole of history to present the artistic achievements of the past as a stitched-together collage of equi-important and simultaneously existing phenomena, largely divorced from geography and material history and transported to the living rooms and studios of the West in a more or less uninterrupted flow.

  96. It presumes that the viewer 'shares the medium's own perception of history as an endless reserve of equal events.'[287] Baudrillard and Vattimo also place considerable emphasis on the impact of the media and see it as contributing to the decline of the modern as it destroys belief in 'the fundamental value to which all other values refer'.[288]
  
  
  97. Harvey argues that this is not to be reduced to a deterministic 'television produced postmodernism' but that both are the product of the culture of consumerism of late capitalism. Charles Newman attributed it in part to inflation which affected all ideas of exchange and not just commercial markets.[289] Jameson, using Mandel's model, argues that capitalism has undergone a transformation since the 1960s in which culture 'has become increasingly integrated into commodity production generally: the frantic searching for fresh waves of ever more novel seeming goods (from clothes to airplanes), at even greater rates of turnover, now assigns an increasingly essential structural function to aesthetic innovation and experimentation.'[290] This leads to us living in a pastiche of historical tidbits which jumble 'together all resemblances to past styles.'[291] Happenings and media images dominate and there is a collapse of a sense of time making everything appear instantaneous.[292] It also leads to an increasing 'weariness with regard to "theory", and the miserable slackening which goes along with it (new this, new that, post-this, post-that, etc).'[293]
  
  
  98. There is a nostalgic attachment to the past. Vattimo sees this as part of a quest for the reassuring which has to be overcome so that we can respond positively to the contingent as 'a new way of being (finally, perhaps) human.' There is an international cultural eclecticism. As Lyotard observed: "Eclecticism is the degree zero of contemporary culture: one listens to reggae, watches a western, eats McDonald's food for lunch and local cuisine for dinner, wears Paris perfume in Tokyo and 'retro' clothes in Hong Kong."[294]
  
  
  99. Still present in this eclecticism, as Baudrillard observed, is the idea in western culture that it is in itself 'a culture in the universal' and all other cultures have been 'entered in its museum as vestiges of its own image.'[295]
  
  
  100. The Samuel Griffith Society does show a nostalgic impulse for the past in its hope of restoring the authority of parliament against the executive and 'the increasing centralisation of power in Canberra'.[296] There has been a shift in the effect of great principles:

  The rule of law which once meant government, subject to known and stable laws and the Constitution, is today used to legitimate the momentary will of government. Rule by law has replaced the rule of law.[297]

  101. The most moving paper in this genre is by Paul Hasluck.[298] Some of the conference papers are pastiches of tidbits of history.[299] Others are made of pieces of law and other disciplines with an international comparative aspect.[300] This latter aspect in other contexts is objectionable if it affords support of 'special interest groups.'[301] The pastiche can also produce otherwise unimaginable crises in indigenous affairs.[302] The staple is some immediate and pressing crisis in law the magnitude of which is directly proportional to the recency of the date on which the High Court gave it. The rhetoric used is calculated to produce media headlines of the same size.[303]
  
  
  102. Students of company law are likely to come across the pursuit of the immediate with a tinge of nostalgia in teaching material as well as in the law journals.
  
  
  103. The determinism of the new is raised by the continuous disclosure provisions of the CL and the relationship with the ASX Listing Rules.[304] Short-termism appears in articles about legislative and regulatory responses. When major corporate news stories and scandals break there is a pattern of knee jerk reaction with attention soon diverted. It is not so apparent in the common law processes of the courts as matters usually take some time to reach them. The common law process, apart from the interlocutory orders which have expanded exponentially in recent years, is generally regarded as being time consuming.
  
  
  104. The international eclecticism in corporate law and securities regulation flowing from increasing multinational companies and transactions is clearly visible. There are occasional nostalgic impulses to revisit the past.[305] Practices and legal rules are routinely borrowed from different jurisdictions. New Zealand has recently enacted new company legislation based on that of North America. Australia has been toying for some time with the North American concept of the derivative action.[306] It abandoned a proposed business judgment rule only to return to it.[307] Considerable attention has been paid to Asian company and securities law.[308] The problem of the extraterritorial application of the Corporations Law is frequently considered in the context of 'globalisation.'[309] A problematic concept which is also discussed.[310]

  H. Popular culture
  

  105. The determinism of the new leads to a complex relationship for company law with popular culture. Knowledge about a company and its securities has been subject to the power of the market since the ancestors of companies first issued shares. Since the end of the seventeenth century in the English speaking first-world that knowledge became a more easily exchanged commodity with the establishment of stock exchanges. Law became involved in this at various times but systematically from the eighteenth century, the equity courts, and from the nineteenth century, the executive government, have concerned itself with the communication of that knowledge to members, and possible members, of the company. Company law and securities regulation also regulate the firms which market popular culture. Both fields of law show, in globalisation and the borrowing of rules and concepts, the power of the market in legal concepts.[311]
  
  
  106. Lyotard observes that for the past fifty years the main scientific and technological activities of western states has been to do with language.[312] This has led to a transformation in the way in which we gain and view knowledge. Knowledge, he claims, has been transformed by these activities and the developments based on them leading to a situation where they are produced and consumed in

  the form already taken by the relationship of commodity producers and consumers to the commodities they produce and consume - that is, the form of value. Knowledge is and will be produced in order to be sold, it is and will be consumed in order to be valorized in a new production: in both cases the goal is exchange. Knowledge ceases to be an end in itself, it loses it 'use-value'.[313]

  107. The expanding numbers and contents of law journals show the pressure to produce company law commodities. As well as selling information to consumers the articles and journals advertise individuals and schools. They all have 'use by dates'. This will be familiar to company law students who have consulted out of date articles. They have the possibility of being recycled through new articles. Finally the metaphor of masking and viewing which plays through postmodern art is mirrored in company law writing on the ever present topics of disclosure and insider trading.
  
  
  108. Similar themes are to be seen in the Samuel Griffith Society's papers. The preoccupation with native title reflects the popular concern about the topic revealed by the polls conducted by all political parties. If no author of the paper has followed the Deputy Prime Minister in asserting that if your race has not invented the wheel it has no rights to land there are similar tabloid arguments based on 'peopling', 'settling' and 'cultivating.'[314] Conflict over the Constitution can be rendered into the language of sport.[315] And the popular topics of the flag and its protection and, the possibly related topic, multiculturalism also get an airing.[316] Masking and unveiling is specifically dealt with, in the context of indigenous culture, rather than Crown Casino.[317]
  
  
  109. Tomasic introduces masking and disclosing in the context of limited liability in the manipulation of Phoenix companies by shadow directors and the attempts by the ASC to reveal this.[318] The concealment of shadow directorships is covered by others.[319] Magarey discusses masking in the interplay between the different identities of a company, its subsidiaries and its directors in varying decisions over whether they are bound by the ASX Listing Rules.[320]
  
  
  110. Corporate disclosure is frequently discussed. McQueen reveals to us the peculiarly Australian experience of non-disclosure in colonial companies.[321] McGregor Lowndes deals with it in the context of the icon of popular culture and the 'age of information', the internet.[322] Insider trading, a criminal offence which enjoys some popular recognition, raises the same themes in regular appearing articles.[323]
  
  

  4. Conclusion: an everyday ethical and reflective practice

  Whatever else we do with the concept, we should not read postmodernism as some autonomous artistic current. Its rootedness in everyday life is one of its most transparent features. Harvey D, The Condition of Postmodernism: An Inquiry into the Origin of Cultural Change (Cambridge, Mass: Blackwells, 1989) 63.

  111. Reviewing the 'vast, growing and complicated area of legal regulation' which marks Australian company law writing Katherine Hall observes that

  the lack of emphasis on corporate law theory seems striking. Whilst journals are full of articles calling for reform of various aspects of law, there is surprising lack of discussion on the bigger questions of how we view corporations and why (or whether) we consider they are important."[324]

  112. She identifies 'post-modernism' as one of a number of schools of legal thought such as critical legal studies, critical race theory and feminism and assigns it to movements in literature and the arts.[325] Postmodernism is arguably the paradigm which underlies these other schools which are symptomatic of the end of a belief in objective reason which challenges the isolation of law from other disciplines she goes on to note.[326] It is difficult to dispute her conclusion that most writing on company law in Australia is within a liberal tradition.[327] But whether writers consciously state their theoretical premises, or otherwise reveal theoretical viewpoints, all legal writing about corporations is theorised by our 'rootedness in everyday life'.
  
  
  113. Wishart observes:

  There are some corporations law academics who have found meaning in theory ... At a recent workshop in Canberra papers were given on history, economic analysis of corporations law, feminist analysis, the sociology of organisations and corporate law, and comparative corporate law; and others touched on political and organisational theory. Yet there is a curiosity here: the research appears little used ... ".[328]

  114. It is in this context that he notes the resemblance of corporate law teachers to members of dysfunctional families.[329] These are not the sort of people to whom members of the Samuel Griffith Society are likely to trust the education of the next generation of lawyers. Our defence, as teachers of company law, is probably that 'the others, including members of the Samuel Griffith Society, are all the same.'
  
  
  115. Postmodernism is the concerns and preoccupations of the present which hold company law in tension at this moment. The articles in the company law journals demonstrate this. Rob McQueen quoted Michel de Certeau at the conference David Wishart describes:

  The credibility of discourse is what makes believers act in accord with it. It produces practitioners. To make people believe is to make them act. But by a curious circularity, the ability to make people act ... is precisely what makes people believe ... People believe what they assume to be real ... The law requires an accumulation of corporeal capital in advance in order to make itself believed and practiced ... In other words, normative discourse 'operates' only if it already has become a story, a text articulated on something real and speaking its name ... Its being made into a story is the presupposition of its producing further stories and thereby making itself believed. And the tool ensures precisely the passage from discourse to the story through the interventions incarnate the law by making bodies conform to it and thus making it appear to be recited by reality itself."[330]

  116. The company law journals reveal this function, and circularity, as they reveal company law. Students of company law in Australia who read them will also be able to read all the pages of the Australian Financial Review. For them law will not be divorced from the culture in which it is imbricated. It is everywhere. That is the beginning of the ethical and reflective practice of company law.

  
  Notes

  * I would like to thank the participants at the Corporate Law Teachers Association Corporate Law Teacher's National Conference, Flinders University of South Australia, Adelaide, 9-11 February 1998, where an earlier draft of this paper was presented, and to the E-Law referees for their constructive suggestions.

  [1] It bears different analyses. Rorty observes that the difficult role of the philosopher in the "cacophony of cross-cutting conversations that comprise culture is to "decry the notion of having a view while avoiding having a view about having views." quoted in Harvey D, The Condition of Postmodernism: An Inquiry into the Origin of Cultural Change (Blackwells, Cambridge, Mass, 1989) 56. Legal ideas, like other cultural products, now have a market and these corporate law teachers may be understood as competitors at a trade conference who may be careful about what they communicate. 'Furthermore, the commodification and commercialization of market for cultural products during the nineteenth century (and the concomitant decline of aristocratic, state, or institutional patronage) forced cultural producers into a market form of competition that was bound to reinforce processes of 'creative destruction' within the aesthetic field itself. This mirrored and in some instances surged ahead of anything going on in the political-economic sphere. Each and every artist sought to change the bases of aesthetic judgment, if only to sell his or her product.' Ibid 22.

  [2] Kamenka and Tay in 1975 wrote that: "There is in advanced industrial or 'post-industrial' societies today a widespread crisis in law and legal ideology which goes to the very core of social conceptions and hence of 'philosophical' discussion of the nature and function of law. ... [T]he theory and practice of justice - or of administration - cannot be discussed as an abstract, atemporal question, as something to be treated apart from the macro-sociology of law, from actual social demands, actual social expectations and actual social and legal institutions and arrangements. The current crisis illustrates this. Lawyers, of course, have long been aware of important changes in modern social and economic life, and in modern social and political attitudes, that affect the character and principles of many areas of private law and that have been fundamentally altering the balance between private and public law." Kamenka E and Tay AE-S, "Beyond Bourgeois Individualism: The Contemporary Crisis in Law and Legal Ideology" in Kamenka E and Neale RS (ed), Feudalism, Capitalism and Beyond (Canberra: ANU Press, 1975) 127, 127. Abel wrote: "Social studies of law have reached a crucial point in their development. The original paradigm is exhausted." Abel, R "Re-directing Social Studies of Law" (1980) 14 Law and Society Review 805, 826.

  [3] Waluchow WJ, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994) 1.

  [4] Classical legal consciousness as part of legal formalism postulated that law stood apart from other cultural fields such as politics. Judges were disinterested subjects who objectively discovered the law: "The justification of this judicial role was the existence of a perculiar legal technique rendering the task of policing the boundaries of spheres an objective, scientific one." Kennedy D, 'Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940' (1980) 3 Law and Society 3, 7. Posner R, "The Decline of Law as an Autonomous Discipline: 1962-1987" (1987) 100 Harvard Law Review 761, "The idea that law is an autonomous discipline, ... a subject properly entrusted to persons trained in law and in nothing else, was originally a political idea." Ibid, 761. Griswold wrote that he was surprised by Posner's observation: 'It has never occurred to me that the law is an "autonomous discipline," and I do not think that was the lore of the Harvard Law School when I was a student or at any other time in the twentieth century. It always seemed to me - and I was taught - that the law sought light from any source, and that contributions from other fields were welcome and relevant.' Griswold EN, "Essays Commemorating the One Hundredth Anniversary of the Harvard Law Review: Introduction" (1987) 100 Harvard Law Review 728, 729-30. Griswold's view recognises Holmes' use of pragmatic experience which had led to American legal scholarship accepting that "the creation of legal meaning - 'jurisgenesis' - takes place through an essentially cultural mechanism." Cover RM, 'Forward: Nomos and Narrative (1983) 97 Harvard Law Review 1, 11. Post R, "The Relative Autonomous Discourse of Law" in Law and Order and Culture (Berkeley, University of California Press, 1991) vii. Posner was, however, pointing to the decline of the influence of the legal process school. The legal process school emphasised the rationality of democracy and prospered as realism, which had been weak in the face of tyranny, declined. Duxbury N, "Faith in Reason: The Process of Tradition in American Jurisprudence" (1993) 15 Cardozo Law Review 601, 704. The legal process school believed that judges should avoid the messy world of politics. Peller G, "Neutral Principles in the 1950s" (1988) 21 University of Michigan Journal of Law Reform 594. According to Judge Posner this period in the "1960s can be identified as the highwater mark of the American legal profession's cartel, and hence of jurisprudence conceived of as the ideology of the legal profession's guild or cartel, rather than merely as a stuffy, old-fashioned term for legal theory." Posner R, "The Material Basis of Jurisprudence" (1993) 69 Indiana Law Journal 1, 23.

  [5] Tomasic R and Bottomley S, "Corporate Governance and the Impact of Legal Obligations on Decision Making in Corporate Australia" (1991) 1 Australian Journal of Corporate Law 55 shows that directors may be more influenced by feelings of "good corporate citizenship" than by "law". Ibid 56-62. They note the paradox that while companies are created by the law it appears to have little impact on the directors of listed companies. Ibid 83.

  [6] Llewellyn wrote that area "in which marginal concepts prove of immense promise, is the discovery of the functions which are well performed by institutions. Study of legal adjustments has overemphasised the proverbial sore thumb. Those portions of the mechanism where it works well are harder to understand. And nowhere does one get greater light on what an institution - or a principle - is accomplishing in unobserved quiet, then when watching the operation of that institution at its own margin. Llewellyn K, "The Effects of Legal Institutions upon Economics" (1925) 15 American Economic Review 665, 682-8.

  [7] H L A Hart, The Concept of Law (Oxford: Clarendon Press, 2nd ed, 1994) 13.

  [8] E P Thompson, The Poverty of Theory and Other Essays (London: Merlin Press, 1978) 288.

  [9] Ibid. Thompson's view of law is similar to what Teubner describes as the legal pluralism which postmodern jurists love: "They do not care about the law of the centralized State with its universal aspirations. ... Looking to the'dark side' of the majestic rule of law, legal pluralism rediscovers the subversive power of suppressed discourses. Plural, informal, local quasi-laws are seen as the 'supplement' of the official, formal centralism of the modern legal order. It is the ambivalent, double-faced character of legal pluralism which is so attractive to postmodern jurists. Like the old Roman god Janus, guardian of gates and doors, beginnings and ends, with two faces, one on the front and the other on the back of his head, legal pluralism is at the same time both: social norms and legal rules, law and society, formal and informal, rule-orientated and spontaneous. And the relations between the legal and the social in legal pluralism are highly ambiguous, almost paradoxical; separate but intertwined, autonomous but interdependent, closed but open." Teubner G, "The Two Faces of Janus: Rethinking Legal Pluralism" (1992) 13 Cardozo law Review 1445, 1445. Tomasic and Bottomley in their study of Australian company directors in the top 100 companies noted that the directors legal obligations took up little of their time and deliberations and was a peripheral factor in getting them to act honestly. They conclude that the law should be changed to represent commercial practice. This, however, ignores issues of equity and justice for other sections of the community including the business community. Andrews N, "Jumbucks in the Bosses' Tuckerbags: Book Review: Directing the Top 500: Corporate Governance and Accountability in Australian Companies by Roman Tomasic and Stephen Bottomley" (1993) 3 Australian Journal of Corporate Law 271, 274-5.

  [10] Greenawalt K, "Too Thin and Too Rich:Distinguishing Features of Legal Positivism" in George RP (ed) The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996) 1, 20-3 and note 46, 22.

  [11] Teubner, above n 7, 1459.

  [12] Greenawalt, above n 10, 212. Contemporary Australian lawyers appear to fall within Greenawalt's description of the United States legal community: "For many circumstances the application of relevant legal standards is clear; for others the law is uncertain. The percentage of doubtful cases depends on the general area of law - the law of wills is more certain than constitutional law - and also on the subdivision within the general area. There is often rough agreement on the force of the legal arguments. Some arguments have substantial force; others seem to have little or no genuine force but serve to obscure the true bases of decision. Law generally, and desirably, treats people in an objective or impersonal manner, but with some frequency particular, or subjective, characteristics count. Certain broader sources often underlie the law and are a basis for decision in hard cases, but neither law nor legal interpretation can be reduced to a subcategory or a single outside source or to a combination of them." Ibid 6-7. "They ground law in an objective and universal morality holding as they do that law is relatively autonomous they believe 'in objectively correct answers to questions within the system, based on the best reasons within the law, even if one were otherwise skeptical.'" Ibid 213.

  [13] As David Lyons has noted that most legal theories "generally assume ... that judicial decisions that are required by law, and thus the things that are done to people in the name of the law, normally enjoy some measure of moral justification." Lyons D, "Critical Analysis and Constructive Interpretation" in Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993) 217.

  [14] Loveday P and Martin AW, 'Colonial Politics Before 1890' in P Loveday, AW Martin and RS Parker (ed) The Emergence of the Australian Party System (Sydney: Hale and Iremonger, 1977) 13.

  [15] Stove RJ, 'Dismissing the Myths' (1995) 48 Institute of Public Affairs Review, 61-3.

  [16] Hayek FA, The Constitution of Liberty (Chicago: Chicago University Press, 1960) 397-9. There are a number of problems with Hayek's concepts of conservatism, liberalism and socialism. Hayek's concept of 'liberal' is not the generally understood concept but that of the Old Whigs who existed before the French Revolution, Ibid 409. Both socialism and the welfare state are connected with, and grew out of, the liberal tradition, Gamble, above n 3, 181-2. Hayek's fundamental economic beliefs derived from Adam Smith who was extremely sceptical about all politics, Berry N, 'Economic Liberalism, Ethics and the Social Market' in James Meadowcroft (ed) The Liberal Political Tradition: Contemporary Reappraisals, Cheltenham, Edward Elgar, 1996, 58. He fails to consider the inequality in society before trading in a market begins, Ibid 66. He argues that justice is not required to be done by society as society is an abstract and impersonal concept. This does not mean that one person is not required to do justice to another, Ibid 65.

  [17] 'Maestro Of Economics', The Times (March 25, 1992); Angus Sibley, 'Dangers of the over-active competitive hormone', The Scotsman (January 24, 1996) 12; James K. Glassman 'When a Liberal Doesn't Know Which Label Really Fits' International Herald Tribune (November 30, 1995).

  [18] Charnley's concept of conservatism as a continuous trade-off between resisting and accommodating change. Charnley J, A History of Conservative Politics, 1900-1996, London, Macmillan, 1996, 129, 201, 234. Hayek is very close to conservatism because of his respect for the spontaneous orders free of human will generated in the past. This is close to Oakshott's definition of his conservatism: 'to use and employ what is available rather than wish for or look for something else.' Conway D, Classical Liberalism: The Unvanquished Ideal, London, Macmillan, 1995, 101.

  [19] Gamble A, Hayek: The Iron Cage of Liberty (Oxford: Oxford University Press, 1996) 185-6; Rowley CK (ed) The Political Economy of the Minimal State (Cheltenham: Edward Elgar, 1996) in which a number of 'liberals' argue for a night watch state which provides only a minimal security; and Berry, above n 16, 58 who denies that Hayek, Friedman and James Buchanan are liberals.

  [20] For renewed interest in Hayek in Australia see the articles in Ratnapala S and Moëns GA, The Jurisprudence of Liberty (Sydney, Butterworths, 1996)

  [21] See Barwick G, 'Parliamentary Democracy in Australia', Samuel Griffith Society Fifth Conference, 1995 and 'A View of the External Affairs Power', Samuel Griffith Society Sixth Conference 1995. The paper on the external affairs power points to another marker of Hayek's concept of conservatism, a hostility to internationalism, Hayek, above n 16, 405. John Stone, 'Kicking Back at Canberra' Australian Financial Review, June 22, 1995, 19.

  [22] Hayek, above n 16, 397-411. There are a number of problems with Hayek's concepts of conservatism, liberalism and socialism. Hayek's concept of 'liberal' is not the generally understood concept but that of the Old Whigs who existed before the French Revolution, Ibid 409. Both socialism and the welfare state are connected with, and grew out of, the liberal tradition, Gamble, above n 3, 181-2. Hayek's fundamental economic beliefs derived from Adam Smith who was extremely sceptical about all politics. Berry, above n 16, 58. He fails to consider the inequality in society before trading in a market begins, Ibid 66. He argues that justice is not required to be done by society as society is an abstract and impersonal concept. This does not mean that one person is not required to do justice to another, Ibid 65.

  [23] (1992) 175 CLR 1.

  [24] Fogg A, 'Dworkin, Hayek and the Declaratory Counter-Revolution' in Ratnapala and Möens, above n 20, 183, 184-5, 189, 194, 221-3; Lumb RD,'The Mabo Case - Public Law Aspects' in Stephenson MA and Ratnapala S (ed) Mabo: A Judicial Revolution, St Lucia, University of Queensland Press, 1993, 1, 21-2; Möens G, 'Mabo and Political Policy Making in Stephenson and Ratnapala, this note, 48-60; Forbes JRS in Stephenson and Ratnapala, this note, 206, 206-6, 217-8. Forbes JRS, 'Mabo and the Miners - ad infinitum?' Stephenson MA (ed) Mabo: The Native Title Legislation: A Legislative Response to the High Court's Decision (St Lucia: University of Queensland, 1995) 48-51. Connolly P, 'Appendix: Thirty Years on the High Court and After' in Priest J, Sir Harry Gibbs: Without Fear or Favour, Mudgeereba, Q, Scribblers Press, 1995) 146, 181-2. These appear to be the views of Gibbs himself, Ibid 133. Connolly P, 'Right According to Law', Inaugural Conference Samuel Griffith Society, 1992; and 'Should The Courts Determine Social Policy?', Samuel Griffith Society Second Conference 1993; Hulme SEK, 'The High Court in Mabo', Samuel Griffith Society Second Conference,1993.

  [25] Gamble, above n 19, 167, 181-2.

  [26] Samuel Griffith Society, 'Objectives'.

  [27] It is remarkable metaphor in which the movement of floods in the Channel country leads from the flow of funds through ATSIC, to a description of 'easy incorporation under special legislation' and derogatory comments about 'title brokers and regional oligarchs.' Forbes J, 'Revisiting Mabo: Time for the Streaker's Defence?', Samuel Griffith Society Seventh Conference 1996.

  [28] Hayek FA, Law, Legislation and Liberty, Volume 1, Rules and Order (London, Routledge & Kegan Paul) 118-19.

  [29] Ibid 135.

  [30] Hayek agrees that the logic of the law is not that of the syllogism but of the situation and quotes, with apparent approval, one of Holmes' foundational statements of Realism: 'The life of the law has not been logic, it has been experience.' Hayek, above n 28 and note 14 citing OW Holmes, Jr, The Common Law (New York), 1963) 7. There are other problems with Hayek's model of the common law. He argues that it is a system of law which promotes freedom more than legislation as it is a spontaneous order free of human will. He condemns conservatives for not welcoming the further free growth of social institutions, see n 22 above, but this does not explain why he does not welcome into this evolutionary development the constructive rationalism present in European law for 4 centuries or the expanded role of the state or democratic processes which have developed over the past 200 years, Gamble, above n 19, 185, 190. Legislation, which results from successive parliaments and negotiated processes could also be seen as an undirected spontaneous order.

  [31] Stone J, The Province and Function of Law: Law as Logic, Justice and Social Control (Sydney: Associated General Publications, 1946) 717 and note 55. Stone resolved this issue in his suggestion that the judge's 'ought' appears to the reader as the judge's 'is'.

  [32] Knox B, 'The Singers, not the Song: The Civics Expert Group Report' Samuel Griffith Society Fifth Conference 1995.

  [33] Sir Samuel went on judicial strike over the failure of the executive government to pay for his bookshelves, advised the Governor-General in exchange for his political views being communicated to the Colonial Office, and advised the Prime Minister on legal matters, one at least relating to a case heard by him, and another time on a private action the Prime Minister wanted to take. Joyce RB, Samuel Walker Griffith, St Lucia, University of Queensland Press, 1984, 354.

  [34] Lyotard JF, The Postmodern Condition: A Report on Knowledge, Geoffrey Bannington and Brian Massumi (trans) (Manchester, University of Manchester Press, 1984) xxiv.

  [35] Gough A, 'The New Official Religion : The Hindmarsh Island and La Trobe Affairs', Samuel Griffith Society Sixth Conference 1995.

  [36] Butterfield H, The Whig Interpretation of History (London: G Bell, 1950). Butterfield shows the distortion of English historical accounts brought about by concern with the past of existing political and legal institutions favoured by the parliamentarians and the Whigs, the winners in the constitutional conflicts of the seventeenth century which failed to understand the caviliers and Tories on their own terms. It leads to the pre-dating of the establishment of a number of contentious legal rules through a failure to recognise that they were produced by the conflict and that if there had been different winners the rules may also have been different.

  [37] In a chain each chapter is written by a different author. Dworkin R, Law's Empire, 228-50. Stick J, "Literary Imperialism: Assessing the Results of Dworkin's Interpretative Turn in Law's Empire" (1986) 34 UCLA Law Review 371.

  [38] Posner argues that TS Eliot's conception of literary tradition offers a richer understanding of "interpretative approaches" to meaning: "What happens when a new work of art is created is something that happens simultaneously to all the works of art which preceded it. The existing monuments form an ideal order among themselves, which is modified by the introduction of the new (the really new) work of art among them. The existing order is complete before the new work arrives; for order to persist after the supervention of the novelty, the whole existing order must be, if ever so slightly, altered; and so the relations, proportions, values of each work of art toward the whole are readjusted; and this is conformity between the old and the new." Posner R, The Problems of Jurisprudence (Cambridge, Mass: Harvard University Press, 1990) 260 quoting Eliot TS, "Tradition and Individual Talent" in Eliot TS, Selected Essays (new ed. 1950)3, 5.

  [39] Eysteinsson A, The Concept of Modernism (Ithaca: Cornell University Press, 1990) 8.

  [40] "The beginnings of modernism, like its endings are largely indeterminate, a matter of traces rather than of clearly defined historical moments." Nicholls P, Modernism: A Literary Guide [University of California Press: Berkeley, 1995) 1.

  [41] Harvey, above n 1, citing Habermas J, "Modernity: An Incomplete Project" in Foster H (ed), The Anti-Aesthetic: Essays in Postmodern Culture (Port Townsend: Washington] 9.

  [42] Ibid.

  [43] Ibid.

  [44] Harvey, above n 1, 27-8. They included Voltaire, d'Almbert, Diderot, Condorcet, David Hume, Adam Smith, Saint-Simon, Auguste Compte, Matthew Arnold, Jeremy Bentham and John Stuart Mill.

  [45] Luhmann N, "The Self Production of Law and its Limits" in Teubner G (ed) Dilemmas of Law in the Welfare State ( Berlin: Walter de Gruyter, 1986) 111, 124.

  [46] Posner RA, "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution" (1986) 37 Case Western Law Review, 182.

  [47] "The idea intrinsic in the philosophy of the Enlightenment that progress in science, technology, art and politics would produce an enlightened and liberated humanity, a humanity freed from the degradations of poverty, ignorance, and despotism, is not only unrealized, but increasingly in question, for the 'progress' that has been a corollary of modernity has brought with a series of new difficulties, 'the possibility of total war, totalitarianisms, the growing gap between the wealth of the North and the impoverished South, unemployment and the 'new poor', general deculturation and the crisis in education in the transmission of knowledge.'" Smart B, 'Postmodern Social Theory' in Turner BS, The Blackwell Companion to Social Theory (Oxford: Blackwell) 1996 396, 408 quoting Lyotard, above n 34, 98.

  [48] Ibid 396, 405.

  [49] Ibid.

  [50] Vattimo G, The End of Modernity: Nihilism and Hermeneutics in Post-Modern Culture (Cambridge: Polity Press, 1988) 176.

  [51] Best S and Kellner D, Postmodern Theory - Critical Interrogations (London: Macmillan, 1991) 225.

  [52] Stauth G and Turner BS, Nietzsche's Dance (Oxford: Blackwell, 1988) 16.

  [53] Harrington M, The Accidental Century (Harmondsworth: Penguin Books, 1967) 11. He notes that this is not new. He quotes Huizinga: 'It was, so to say, bad form to praise the world and life openly. It was fashionable to see only its suffering and misery, to discover everywhere the signs of decadence and the near end.', The Waning of the Middle Ages quoted in Harrington, 12.

  [54] Harvey, above n 1, 16. "Weber argued that the hope and expectation of the Enlightenment thinkers was a bitter and ironic illusion. They maintained a strong necessary linkage between the growth of science, rationality, and universal human freedom. But when unmasked and understood, the legacy of the Enlightenment was the triumph of Zweckrationalität - purposive-instrumental rationality. This form of rationality affects and infects the entire range of social and cultural life encompassing economic structures, law, bureaucratic administration, and even the arts. The growth of Zweckrationalität does not lead to the concrete realization of universal freedom but the creation of an 'iron cage' of bureucratic rationality from which there is no escape." Bernstein RJ, "Introduction" in Bernstein RJ (ed) Habermas and Modernity [Cambridge: Polity Press, 1985] 1, 5.

  [55] Harvey, above n 1, 42. Gary Minda observes: "Even though jurisprudence constantly develops new theories about law and adjudication, the same argumentative patterns are played out. New jurisprudential developments include new twists, new words, and new emphases on common argumentative stories told about jurisprudence. ... The exhilirating experience of discovering a new idea or theory of jurisprudence soon dissipates as one realizes that the new idea or theory recycles an old one." Minda G, Postmodern Legal Movements: Law and Jurisprudence at Century's End, (New York: New York University Press, 1995) 232.

  [56] Hayek, above n 28, 118-19.

  [57] Fogg, above, n 24, 183.

  [58] Patterson D, "Postmodernism/Feminism/Law" (1992) 77 Cornell University Law Review 258 note 11 Patterson states: 'I identify modernism with the spirit of the Enlightenment. "In the most general sense of progressive thought, Enlightenment has always aimed at liberating men from fear and establishing their sovereignty."' citing Horkheimer M and Adorno TW, Comming J (trans), Dialectic of Enlightenment (New York: Continuum Publishing Company, 1975) 3. Duxbury, above n 4, 601.

  [59] Craig Klafter has argued that this rejection emerged before scientificism in the period from 1779-1829. In a study of American legal treatises, law schools and cases he argues that the idea that the common law was immutable and perfect was rejected in favour of an approach which used litigation as means to correct the defects exposed in the legal system. He understates the conservatism of American lawyers and overstates the conservatism of English lawyers. Klafter CE, Reason over Precedent (Westport Conn: Greenwood Press, 1993).

  [60] This was no revelation in some areas of law. A number of the realists argued that legal formalism concealed the power being exercised through legal institutions. The legal process school, which emphasised the rationality of democracy, prospered as realism, which had been weak in the face of tyranny declined. Duxbury, above n 4, 704. Dworkin R, Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New York: Alfred A Knopf, 1993) 132-43.

  [61] Jameson F, "Foreword" in Lyotard, above n 36, vii, vii. Bell D, The Coming of the Post-Industrial Society: A Venture in Social Forecasting (London: Heinemann, 1974). Bell stated that the industrial society was associated with machines which made goods whereas the post-industrial "society is organised around knowledge". This was theoretical knowledge which had obtained a primacy over empiricism. Ibid 20. He called it "post-industrial" as he was influenced by Dahrendorf's Class and Class Conflict in an Industrial Society (1959) which had referred to "post-capitalist society" and Rostow's Stages of Economic Growth which had described a "post-mature economy". He continues that the use of the hyphenated prefix post- indicates, thus, that sense of living in interstitial time." Ibid 37.

  [62] Jameson F, above n 61, vii, xv.

  [63] Lyotard, above n 34, xxiii. Movements which came to be labelled 'postmodern' were variously known as 'postructuralism' and 'theory' or 'theoretical discourse.' Jameson F, Postmodernism, Or, The Cultural Logic of Late Capitalism (Durham: Duke University Press, 1991) xvi. The term was little used outside Anglo-American and Scandanavian literary criticism. Eysteinsson, above n39, 1.

  [64] Lyotard, above n 34, 397.

  [65] Foucault F, "Structuralism and Post Structuralism: An Interview" (1983) 55 Telos 195-211. Baudrillard, who is widely regarded as being a founder of postmodernism, questions its existence pointing out that "[e]verything that has been said about postmodernism was said even before the term existed ... [A]s soon as it is clear that the term adds nothing new it is best to let go of it." Gane P, Baudrillard Live: Selected Interviews (London: Routledge, 1993) 22 quoted in Smart, above n 47, 396, 412. Baudrillard's view is hardly determinist and has been described as "indifferent, aleatory, indeterminate, and narcissistic; ... the real has given way to simulations ... where meaning, significance, the message, and the referent 'circulate so quickly that they are made to disappear.'" Smart, above n 47, 396, 413.

  [66] Baumann Z, "Is There a Postmodern Sociology?" (1991) 5 Theory, Culture & Society 217, 272.

  [67] Harvey, above n 1, 42. Jameson, above n 63, xviii.

  [68] Harvey, above n 1, x.

  [69] Feldman S, 'An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics and the Iron Cage of Constitutional Law (1991) 16 Law and Social Inquiry 205

  [70] Twining W, Blackstone's Tower: The English Law School (London: Stevens & Sons, 1994) xix. He subsequently describes 'LAW IN SOCIETY: THE NEWSPAPER EXERCISE', Ibid, 4-11.

  [71] Ibid 7.

  [72] Jameson, above n 63, 62. Feldman S, "Diagnosing Power: Postmodernism in Legal Scholarship" (1994) 88 Northwestern University Law Review 1046. As Harvey notes the Prince of Wales and Pope John Paul II have all resorted to postmodern rhetoric; Harvey, above n 1.

  [73] Smart, above n 47, 396, 405.

  [74] Lyotard, above n 34, 8. This led to a shizophrenic approach in the humanities and social sciences as Baumann observed they were "informed of contingency while believing themselves to narrate necessity, of particular locality while believing themselves to narrate universality, of tradition-bound interpretation while believing themselves to narrate the the extraterritorial and extratemporal truth, of undecidability while believing themselves to narrate transparency, of the provisionality of the human condition while believing themselves to narrate the certainty of the world, of the ambivalence of man-made design while believing themselves to narrate the order of nature." Baumann Z, "Is There a Postmodern Sociology?" (1991) 5 Theory, Culture & Society 217, 231-2.

  [75] Harvey, above n 1, 43, Table 1.1 'Schematic differences between modernism and postmodernism'.

  [76] Lehman describes it as "a catastrophe theory inasmuch as it proceeds from the perception of an extreme linguistic instability that undermines the coherence of any statement - a breakdown in our collective confidence in the power of words to communicate ideas and represent experience." Lehman D, Signs of the Times: Deconstruction and the Fall of Paul DeMan (New York: Poseidon Press, 1991) 41.

  [77] Smart, above n 47, 396, 421. Some leftist legal writers have alleged it sterilises political and social activities by making it impossible to formulate political and economic plans to resist existing power. Handler JF, "Postmodernism, Protest, and the New Social Movements" (1992) 26 Law and Society Review 719-22. He argues that even local forms of power cannot be resisted without a comprehensive political and economic plan, Ibid 722.

  [78] Patterson, above n 58, 3. Duxbury, above n 4.

  [79] Jacques Derrida, 'Signs and Play in the Discourse of the Human Sciences', in Writing and Difference (Chicago: Chicago University Press, 1980) 280. Richard Rorty, Contigency, Irony and Solidarity, (London: Cambridge University Press, 1989) 73-74. Schlag P, 'Normative and No-Where to Go', (1990) 43 Standford Law Review 167, 174 n 18 (1990)

  [80] Jameson, above n 63, 16-25. Frug J, 'Decentering Decentralization' (1993) 60 University of Chicago Law Review 253, 309. Frug writes: 'Everyone knows that his or her actions are understandable only because they can be compared to actions taken by others; the postmodern subject bases her/his presentation of self on this recognition of inter-textuality and quotation. In the post-modern world there are no originals, only copies.'

  [81] Schlag P, 'Pre-figuration and Evaluation' (1992) 80 California Law Review 965. Pre-figuation is unconscious bias or thought embedded in all perspectives of a subject.

  [82] Quoted in Smart, above n 47, 396, 408.

  [83] Boyle J, "Is Subjectivity Possible? The Post-Modern Subject in Legal Theory" (1991) 62 University of Colarado Law Review 503.

  [84] Schlag P, "Normative and No-Where to Go" (1990) 43 Standford Law Review 180.

  [85] Schlag P, "Fish v Zapp: The Case of the Relatively Autonomous Self" (1987) 76 Georgia Law Journal 42-50 and "'Le Hors de Texte, C'Est Moi': The Politics of Form and the Domestication of Deconstruction" (1990) 11 Cardozo Law Review 1667-73.

  [86] Lyotard, above n 34, xiv.

  [87] Owens C, 'Beyond Recognition, Representation Power and Culture' in Bryson S, Kruger B, Tillman L and Weinstock J (ed)

  [88] Harvey, above n 1, x.

  [89] Smart B, Postmodernity (London: Routledge, 1993) 20-3.

  [90] Structuralism which underlay the thought of Weber and Marx has been dissolved by postmodern conceptualisation. Structuralism was premised on an understanding that legal knowledge, as with other knowledge, was organised by underlying structures of organisation which are real. Structuralists purported to occupy a space which kept an objective distance from the observed subject to examine and reveal the true or real nature of the object. This has been rejected by poststructuralism which argue that the products of structuralist thought are the product of interpretation which are socially and culturally situated. Schank PC, 'Understanding Postmodern Thought' (1992) 65 California Law Review 2505, 2514-34. Some have rejected poststructuralism as a product of postmodernism. Huyssen A, After the Great Divide: Modernism, Mass Culture, Postmodernism (Bloomington, Indiana University Press, 1987) 207-216 claimed that it was a postmodern concept. Frug, above n 80, 253, 304 and note 221. Some have sought to use it in consciously postmodern way which distinguishes it from neopragmatism. Schank, this note, 2505, 2514.

  [91] Ibid 2505, 2514.

  [92] Lyotard, above n 34, xxiii. Movements which came to be labelled postmodern were variously known as 'postructuralism' and 'theory' or 'theoretical discourse.' Jameson, above n 63, xvi. The term was little used outside Anglo-American and Scandanavian literary criticism. Eysteinsson, above n 39, 1.

  [93] Jameson, above n 61, vii, xiii - xiv.

  [94] Smart 419.

  [95] Lyotard, above n 34, 3.

  [96] Ibid 5.

  [97] Harvey describes this: "Attacks upon union power (led by the Reagan onslaught upon the air traffic controllers), the effects of deindustrialization and regional shifts (encouraged by tax breaks), of high unemployment (legitimized as proper medicine in the fight against inflation), and all the accumulated impacts of the shift from manufacturing to service employment, weakened traditional working-class institutions sufficiently to render much of the population vulnerable. A rising tide of social inequality engulfed the United States in the Reagan years, reaching a post war high in 1986." Harvey, above n 1, 330.

  [98] Ibid "Chapter 20 Economics with Mirrors" 329-35 and "Chapter 21 Postmodernism as the mirror or mirrors" 321-2.

  [99] Ghosh DK and Ortiz E, "Introduction" in Ghosh DK and Ortiz E (ed) The Changing Environment of International Financial Markets Issues and Analysis (New York: St Martin's Press) 1, 10.

  [100] Harvey, above n 1, Table 4.1 338-9. New York's economy from garment manufacture to the "production of debt and fictitious capital" in which "the telephone lines deliver the world's cash to be remixed as if in a bottling plant, squirted into different containers, capped and then shipped back out." Harvey appears to be drawing on images from Scardino 1987 New York Times quoted in Ibid 330. Scardino wrote: "New York has constructed 75 new factories to house the debt production and distribution machine. These towers of granite and glass shine through the night as some of this generation's most talented professionals invent new instruments of debt to fit every imagined need: Perpetual Floating Rate Notes, Yield Curve Notes and Dual Currency Notes, to name a few, now traded as casually as the stock of the Standard Oil Company once was." On this a new culture of postmodernism formed "with accoutrements of gentrification, close attention to symbolic capital, fashion, design, and quality of urban life." Ibid 332.

  [101] Jameson, above n 63, 417.

  [102] Ibid xxi. This follows Mandel who wrote of the early 1970s that the late 1960s had been a turning point "which produced a sharp decline in the average rate of growth and capital." Mandel E, Long Waves of Capitalist Development (Cambridge: Cambridge University Press, 1980) 1.

  [103] Jameson, above n 63, xxii, 48.

  [104] Ibid "Chapter 8 Postmodernism and the Market" 260-78.

  [105] Jameson writes that 'the most astonishing feature of this [is] ... namely, how the dreariness of business and private property, the dustiness of entrepreneurship, and the well-nigh Dickensian flavor of title and appropriation, coupon-clipping, mergers, investment banking, and other transactions (after the close of the heroic, or robber-baron stage of business) should in our time have proved to be so sexy. In my opinion, the excitement of the once tiresome old fifities representation of the free market derives from its illicit metaphorical association with a very different kind of representation, the media itself in its largest contemporary and global sense (including an infrastructure of all the latest media gadgets and high technology).' Ibid 274-5. He goes on to point out that media image is closely associated with a brand name and that the contents of the media itself become commodities. Ibid 275-7.

  [106] Mandel E (trans) De Bere J, Late Capitalism ( NLB London 1975).

  [107] Ibid 248-50. Mandel makes the point that this had occurred previously. The transport and telecommunications revolutions of the railway, the steamboat and the telegraph had also increased the turnover of capital and shortened the time in which this occurred. Ibid 22. Similarly the growth of the 1950s and 1960s had resulted from "a real international money market" which had fuelled multinational companies. Ibid 24. Sinfonis JG and Goldberg B, Corporation on a Tightrope: Balancing Leadership, Governance, and Technology in an Age of Complexity (New York: Oxford University Press, 1996) at 119 state: "Technology has as great an effect on organizations as governance and leadership." They indicate, however, that this change may be a more complex phenomenon than Mandel allows. In their example of change in companies running grocery stores they show how issues of governance, leadership and technology lap around each other many times, Ibid 45-7.

  [108] Mandel, above n 102, 223-5, 246-7.

  [109] Ibid 377-9. These views seem now to be commonly held about how we should see the large company: "We realise that the changes swirling around and within organizations were often forced by advances in technology. Technology is basic to the expansion of information; technology is speeding up product development; and, depending on who you listen to, technology is improving productivity or not bringing the productivity gains it promised. However, leadership was changing at the same time, particularly as organizations began to consider knowledge a major resource." Sinfonis and Goldberg, above n 107, viii-ix.

  [110] Mandel, above n102, 406: "The logic of late capitalism is therefore necessarily to convert idle capital into service capital and simultaneously to replace service capital with productive capital, in other words, services with commodities: transport services with private cars; theatre and film services with private television sets, television programmes and educational instruction with vide-cassettes." Galbraith JK, The Affluent Society (Boston, Houghton Mifflin, 3rd ed rev, 1976) reached a similar view of service commodities which he also linked to production which gives a different perspective but can be reconciled with Mandel's view. He considered the appearance of consumerism and how the economic justification for it showed the divorce between economics and judgment, Ibid 122. He argued that it was premised on the basis that production was the only form of measure, Ibid 100-15 "Chapter 9 The Paramount Position of Production". Mainstream American economics accepted that the urgency of wants was not decreased by more of them being satisfied and that wants, which it attributed to originating in the consumer, should be satisfied, Ibid 119 and see generally 'Chapter 10 The Imperatives of Consumer Demand', 116-25.

  [111] Mandel, above n 102, 310-11, 342.

  [112] Jameson, above n 61, vii, xiv. Bell wrote: "The sense was present - and still is - that in Western society - we are in the midst of a vast historical change in which old social relations ( which were property-bound), existing power structures (centred on narrow elites), and bourgeois culture (based on notions of restraint and delayed gratification) are being rapidly eroded. The sources of the upheaval are scientific and technological. But they are also cultural, since culture, I believe, has achieved autonomy in Western society. What these new social forms will be is like is not completely clear. Nor is it likely that they will achieve the unity of the economic system and character structure which was characteristic of capitalist civilization from the mid-eighteenth to the mid-twentieth century." Ibid 37. Bell, above n 61, 37.

  [113] Jameson, above n 61, vii, xiv.

  [114] Mandel, above n 102, 190-1.

  [115] Bell also considered the corporate form of capitalism. He noted that in the previous 14 years there was a change from the complacency towards companies which had been observed 14 years before as a result of the emphasis shifting from size to performance, of which the clearest sign was growth. However by the mid 1970s that was changing. There was a view that performance led to a society which was 'uglier, dirtier, trashier, more polluted and noxious' which has removed the sense of congruence between the self interest of the company and the public interest. He imagines that the company will be subordinated to these aspirations. Bell, above n 61, 270-2. Harrington, above n 53. also notes that there was a spreading view that the capitalist economy was destroying capitalist civilization and personality, Ibid 62-74, and that business was building a collective society for private profit, Ibid 74-77. He notes that Joseph Schumpeter had made similar observations in the 1930s: "Since capitalist enterprise, by its very achievements, tends to automate progress, we conclude that it tends to make itself superfluous under the pressure of its own success. The perfectly bureaucraticized giant industrial unit not only ousts the small and medium-sized firm, but in the end it also ousts the entrepreneur and expropriates the bourgeoisie as a class which in the process stands to lose not only its income but also what is infinitely more important, its functions", Ibid 74-5 citing Schumpeter JA, Capitalism, Socialism and Democracy (London: George Allen & Unwin, 5th ed, 1976) 134.

  [116] Harrington, above n 53, 79.

  [117] Ibid 75-6 quoting from Schumpeter, above n 115.

  [118] Galbraith argued that the distinctive activity of the large American corporation was the basic planning unit in the United States and that Soviet and American corporations dealt with the problem of authority over shareholders or state interests in similar ways. Galbraith JK, The New Industrial State (Boston: Houghton Mifflin, 3rd ed rev, 1978), 78-9. See Chapter 9 A Digression on the Firm under Socialism", 104-15 and "Chapter 6 The Technostructure" 62-74.

  [119] Ibid 81-2.

  [120] Ibid 84-5.

  [121] He recognised the informality of part of this processing: "A very large part of the exchange of information is by word of mouth - a discussion in an office, at lunch, with alcohol or over the telephone. But the most typical procedure is through the committee and the committee meeting." Ibid 66.

  [122] Galbraith continues: "This knowledge often accords an individual full authority over the enterprise in the absence of voting control. Others have no alternative but to accept his lead. The one thing worse than the loss of power by the small and passive shareholder would be its uniformed exercise. So the corporation again adapts itself to need - the need at a certain stage in growth to concentrate power in some part of the ownership. This power is concentrated in someone who combines a command of capital with the capacity to exercise command over the enterprise." Ibid 92.

  [123] McCahery J and Picciotto S, "Creative Lawyering and the Dynamics of Business Regulation" in Dezalay Y and Sugarman D, Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction of Markets (London: Routledge, 1995) 238, 260. To resolve it "into the gaps left by the indeterminacy of legal rules have been inserted detailed codes of practice, patrolled by corporate compliance officers, who cultivate a close relationship with the official regulators. Naturally, their prime task is to ensure that no harm comes to the institutions, and to minimize the number of individuals who may have to be sacrificed . The major financial institutions and market professionals in general terms have an interest in safeguarding their investments in more regularized processes and access to unique information, and in discrediting the more unorthodox and informal channels used by the likes of Levine and Milken. It is important to stress, however, that the transition has not been smooth and predictable, and also that the new regulatory regime is far from being a model of formal rationality. McCahery J and Picciotto S, "Creative Lawyering and the Dynamics of Business Regulation" in Dezalay Y and Sugarman D, Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction of Markets (London: Routledge, 1995) 238, 266.

  [124] Harvey, above n 1, 44, 98.

  [125] Ibid 45. A metanarrative is one of the 'grand discourses of Western society, which is to say all of the legitimating narratives that purport to provide valid and definitional principles, in any sphere, applicable across all societies.' Lyotard, above n 61, xiii.

  [126] Ibid 47-8.

  [127] Ibid 45.

  [128] Ibid 46.

  [129] Ibid 46.

  [130] Ibid 49-50.

  [131] Ibid 51.

  [132] Ibd 52. As Harvey notes Habermas seeks to return to the dialogue of the Enlightenment.

  [133] Ibid 56.

  [134] Ibid 54. Williams R, Keywords: A Vocabulary of Culture and Society (London: Fontana, 1976), demonstrates the complex nuances of 'alienation' but gives its Freudian sense of a person estranged from the source of primary energy as a significant meaning, 29-32.

  [135] Harvey, above n 1, 58, 85.

  [136] Ibid 61.

  [137] Ibid 61

  [138] Ibid 87.

  [139] Ibid 62-3.

  [140] Ibid 88.

  [141] Ibid 45. Corporate management writing is beginning to show recognition of the end of belief systems which were universally accepted. For example, Sinfonis and Goldberg emphasis the need to create a system of belief in a company's environment as a result of "the deep cultural and physical changes needed to reshape organizations." Sinfonis and Goldberg, above n 107, ix, and that coherence can only be achieved through communication webs. They quote, at 49, Lynne Joy McFarland and others who state that the company must establish "a powerful set of shared values or guiding principles [that] everyone can be mobilized quickly and their full potential unleashed towards achiveing excellence." McFarlane LJ, Esenn L and Childless J, 21st Century Leadership (Los Angeles: Leadership Press, 1994) 117, 128.

  [142] Harvey, above n 1, 45. Foucault wrote: "By way of summarising ... I would say that we should direct our researches on the nature of power not towards the juridical edifice of sovereignty, the State apparatuses and the ideologies which accompany them, but towards domination and the material operators of power, towards forms of subjection and the inflections and utilisation of their localised systems, and towards strategic apparatuses ... We must escape then from the limited field of juridical sovereignty and State institutions, and instead base our analysis of power on the study of the techniques and tactics of domination." Foucault M, Power/Knowledge (Harvester Press: Brighton, 1980) 102.

  [143] Harvey, above n 1, 46-7.

  [144] Cited in Smart, above n 47, 396, 404.

  [145] 'And if it is necessary to speak of the civil law of the Romans, I would say unequivocally that it was neither made nor interpreted to the ends of equity or natural reason. It was never suitable for all nations, but was rather fashioned by a particular prerogative expressly invented for the purpose of maintaining bourgeois Romans (bourgeois Romains) in a higher degree of dignity than the other inhabitants of the country of Italy.' Hotman F, Anti-Tribonian ou discourse d'un grand et renomme iurisconsulte sur l'estude des oix (J Perrier, Paris, 1603) 74.

  [146] Harvey, above n 1, 44, 98.

  [147] Smart, above n 47, 396, 408.

  [148] Ibid 396, 416.

  [149] Ibid 396, 416-7.

  [150] Knox warns how the teaching of a particular syllabus on civics in schools would lead to school children being 'in danger of ending up in a kind of chaos of the tribal, ideological, cultural, religious and other divisions to which the republican push has given life or a renewed lease of life'. Knox, above n 36.

  [151] Hulme SEK, 'Constitutions and The Constitution' Samuel Griffith Society Inaugural Conference 1992.

  [152] Craven G, 'Reforming the High Court' Samuel Griffith Society Seventh Conference 1996.

  [153] This is a reference to native title. Howard C, 'The High Court' Samuel Griffith Society Fourth Conference 1994.

  [154] Waddy L, 'The Republic: Will Blinky be the Only Bill?' Samuel Griffith Society Fourth Conference 1994.

  [155] Evans H, 'Citizen Initiated Referendums: Adjunct or Antithesis of Constitutional Government?' Samuel Griffith Society Sixth Conference 1995 citing Samuel Huntington, Speech to the Ratifying Convention of Connecticut, 9 January, 1788, in The Debate on the Constitution, B Bailyn ed (New York: 1993) 886.

  [156] Stone J, 'Introductory Remarks' Samuel Griffith Society Fourth Conference 1994.

  [157] Waterford J, 'Australia's Aborigines and Australian Civilization: Cultural Relativism in the 21st Century' Samuel Griffith Society Third Conference 1993.

  [158] Goodrich P, Law in the Courts of Love: Literature and Other Little Jurisprudences (London: Routledge, 1996) 207.

  [159] Pascoe suggests this quest for perfection in that principles are said to be still evolving 'as the courts continue to work out the boundaries of the doctrine.' Pascoe J, "Equitable Remedies in Cases of Misapplied Company Funds: Recent Developments" 14 (1996) Company and Securities Law Journal 393, 404.

  [160] See Koh, PMC "Shadow Director, Shadow Director, Who Art Thou?" 14 (1996) Company and Securities Law Journal 340, 351-2. Koh shows some surprise that an examination of statutory language, and its interpretation, of who is a shadow director may extend the concept to banks and professional advisers.

  [161] Wishart D, "Does the High Court Understand the Corporations Law?" (1996) 6 Australian Journal of Corporate Law 424. At 425 he notes that the failure by the courts to develop a coherent statement of directors' duties is bound up with 'three malignant disorders ... the effect of corporate personality on the idea of "relationship", the nature of communal decision making, and the antinomy of risk and trust.'

  [162] Markovic M, 'Auditors Criminal Liability: Another Approach' (1996) 6 Australian Journal of Corporate Law 48. Markovic considers the issue of the 'true and fair view' concept which accountants must certify in respect of the company's accounts. At 49-50 he cites McGregor W 'True and Fair View: An Accounting Anachronism' (1992) Australian Accountant (February) at 69, that the concept 'has either been misused - in the sense to justify non-compliance with accounting rules - or effectively ignored - in the sense that it has been applied as meaning conformity with the minimum legal requirements.' At 69 he notes the Henry Bosch flood gates argument: 'if we took a case and lost, the dam would burst and everybody would see that what we were saying could not be sustained in court' He identifies the numerous techniques used to avoid the concept of 'subsidiary'. Ibid 51 His main argument is that it was also an offence under s 1308(2) for an auditor to make a false or misleading statement but that this section was also not enforced. Ibid 52-71.

  [163] Chesterman S, 'Gender Ltd: Why Aren't More Women on the Boards of Australia's Top 100 Listed Companies' 14 (1996) Company and Securities Law Journal 352, 355, 358, 381. He uses theories derived from liberal and difference feminism. Ibid 353-8. He relies on Kathleen Lahey and Sarah Salter, 'Corporate Law in Legal Theory and Legal Scholarship: From Classicism to Feminism' (1985) 23 Osgoode Hall Law Journal 543.

  [164] Hall KH, "The Interior Design of Corporate Law: Why Theory is Vital to the Development of Corporate Law in Australia" (1996) 7 Australian Journal of Corporate Law 16-17, 19-20.

  [165] See Lawton P, 'Berle and Means, Corporate Governance: Chinese Family Firm' (1996) 6 Australian Journal of Corporate Law 348, 370 and note 108. He cites RI Westwood (ed) Organisational Behaviour: Southeast Asian Perspectives (Longman Far East: 1992) 197 and n 73. Westwood argues that it is almost impossible for Anglo-Americans to avoid cultural bias because all their constructs and theories emanate from highly individualistic societies.

  [166] Harvey, above n 1, 48.

  [167] Ibid 47.

  [168] "Conveyed within each cloud are pragmatic valencies specific to its kind. Each of us lives at the intersection of many of these. However, we do not necessarily establish stable language combinations, and the properties of the ones we do establish are not necessarily communicable."; Lyotard, above n 34, xxiv.

  [169] Ibid xv.

  [170] Bernstein, above n 54, 5.

  [171] Ibid 10-11.

  [172] Ibid 9.

  [173] Ibid 10.

  [174] Teubner G, Bankowska A and Adler R (trans) Law as an Autopoietic System (Oxford: Blackwell, 1993) 36. Kennealy P, 'Talking About Autopoeisis - Order from Noise' in Teubner G (ed) Autopoietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988) 349, 368.

  [175] Knox, above n 36.

  [176] Partington blames the decision in Mabo on the High Court being influenced by the History Department of James Cook University: 'Aetiology is the study of causes, especially the causes of diseases. I can only touch now on one strand in the pathogeny of the full-blown Mabo Judgment of 1992, namely the contribution made by Dr Henry Reynolds to the High Court of Australia's conscious rejection of Australia's history.' Partington G, 'The Aetiology of Mabo' Samuel Griffith Society Fourth Conference 1994.

  [177] Meagher JA 'Addresses Launching Upholding the Australian Constitution, Volume 1' 1994.

  [178] ' One will not, of course, mention feminist logic. But it is an interesting example of puerility - or, perhaps, that is a sexist word; perhaps one should say "puella-ility".' Ibid.

  [179] Gibbs H, 'Addresses Launching Upholding the Australian Constitution, Volume 1' Samuel Griffith Society 1994.

  [180] Minow M, 'Feminist Reason: Getting It and Losing It' (1988) 38 Journal of Legal Education 48.

  [181] Langton in (1996) 6 Australian Journal of Corporate Law 422 argues that words alone fail in the context of the NRMA case. The full Federal Court indicated that in complex cases a 'practical, realistic view' should be taken of matters to be disclosed under s 52 of the Trade Practices Act (Cth).

  [182] Minow M, "Law Turning Outward"(1986) Telos 95, 99. She called for a 'comprehensible discourse.' Bruce Ackerman argued for a common language which would be a technocratic discourse based partly on the language of law and economics. Ackermann B, Reconstructing American Law (Cambridge Mass: Harvard University Press, 1984) 42-5.

  [183] See above n 1.

  [184] In the continuing discussion about derivative actions Baxt argues that there has been an overreaction to the difficulties of the rule in Foss v Harbottle which has 'created an unreasonable fear that it does provide major hurdles to minority shareholders'. He is concerned that changes may lead to rules which permit courts to interfere too easily in the affairs of companies. Baxt R, "What is the Real Fuss About Foss v Harbottle" (1994) 12 Company and Securities Law Journal 178, 178. For a contrary view see Kluver J, 'Derivative Actions and The Rule in Foss v Harbottle: Do We Need a Statutory Remedy?' (1993) 11 Company and Securities Law Journal 7. He comments on the CSLRC Final Report No 12 Enforcement of the Duties of Directors and Officers of a Company by Means of a Statutory Derivative Action. It proposed a statutory derivative action, in December 1990. He approaches the action from a regulatory perspective, that the CL will never ensure propriety and that the ASC can never deal with all remedial tasks. He reports that the CSLRC found the existing remedies inadequate, Ibid 7, but notes the problems of abuse through vexatious, unmeritorious or improperly motivated litigation. Ibid 17. He suggests a very wide and indeterminate leave provision using a 'best interests of the corporation' test to check these abuses. Ibid 21.

  [185] Kamarul B, 'Reforming Economic Law in the Asia Pacific Region' (1996) 6 Australian Journal of Corporate Law 93, 103 quotes Jordan C, "'Review of the Hong Kong Companies Ordinance' Asia Pacific Law Economic Law Forum Conference (1996) Canberra: 'Given the level of legislative activity and debate in the UK in the past 15 years, trying to keep abreast of developments in the UK is no mean feat ... Increasingly reference has been made in the Standing Committee to legislative initiatives in other jurisdictions, Australia, South Africa, the United States and Canada.'

  [186] Jolley B, "Takeover Finance Disclosure: Simplicity v Certainty" (1994) 12 Company and Securities Law Journal 53. Jolley argues that the simplification of the takeover provisions will be at the cost of a decades decisions on the exisitng provisions and "commercial practice". Ibid 57.

  [187] Wishart, above n 161, 424. He refers to Stanley Fish, Is There a Text In This Class: The Authority of Interpretative Communities (Cambridge: Harvard University Press, 1980) 433-4 note 59.

  [188] Cameron IM, "Uniform Interpretation of the Corporations Law" (1994) 12 Company and Securities Law Journal 329 has noted the failure to interpret the legislation uniformly in all jurisdictions. He discusses Australian Securites Commission v Marlborough Goldmines (1993) 177 CLR 485 in which the High Court referred to the number of conflicting decisions over whether a company could change its status to a no liability company by using a scheme of arrangement under s 411. The full Federal Court in Windsor v National Mutual Life Association of Australasia [1992] FCA 139; (1992) 34 FCR 580 found that it could not do so. Justice Ng (1992) 10 ACLC 1, 529 at first instance refused to follow this decision and was supported by the Full Federal Court of the Supreme Court of WA [1993] HCA 56; (1992) 11 ACLC 1,529. The High Court said: 'uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that the interpretation is clearly wrong.' Justice White in Mount Edon Gold Mines (Aust) Ltd v Burmine Ltd (1994) 12 ACLC 185, 193 said 'Accordingly, as it seems to me, there is no room in the present case to apply the principles expressed by the High Court in Australian Securites Commission v Marlborough Goldmines (1993) 177 CLR 485 at 492 ... '. Conflict has occured over other provisions not related to corporate control and disclosure. Mullins M, 'David Grant & Co: One Step Closer to a Truly National Corporate Law' (1996) 6 Australian Journal of Corporate Law 139. See also Whitford K, 'The Year That Was: An Overview of Corporate Law 1995' (1996) 6 Australian Journal of Corporate Law 1, 11-12.

  [189] See Gay G, Schelluch P and Baines A, 'The Review Report and Its Application to Interim Financial Reports' (1994) 12 Company and Securities Law Journal 521. They examine the issues of the expectation gap beween the public's perception of the role of the audit and the auditors' perception of the role of the audit, Ibid 523-4. See also Buxbaum RM, 'Corporate Governance and Corporate Monitoring: The Whys and Hows' (1996) 6 Australian Journal of Corporate Law 309. Buxbaum deals with the expectation gap between audit committees and those depending on their results and a comparable gap in the courts when standards based on a non-rigorous oversight function are used. Ibid 322.

  [190] Harvey, above n 1, 46. Lyotard, above n 34, 3-4. Again this is a recurring theme in corporate governance discussions. Sinfonis and Goldberg emphasise the importance of communication, Ibid, 89-93 but not in this context that there are "numerous questions ... about the possible impact of technology, especially communication technology, on power structures." Sinfonis and Goldberg, above n 107, 92. They return a number of times to this point, at 98 quoting Peter Drucker: "where the traditional organization was held together by command and control, the 'skeleton' of the information-based organization will be the optimal information system." New Realities, (New York: Harper & Rowe, 1989) 261. At 137 they state: "technology management is, or at least is rapidly becoming, a far more strategic position."

  [191] Harvey, above n 1, 46.

  [192] It is predicted that within 20 years half the present global market in cash transactions will be replaced by debit and electronic cash transaction cards. Brenchley F, "On the Cards an Electronic $A" Australian Financial Review (3 February 1997) 29.

  [193] Modern management writers may be re-acting to Foucault's insight when they point out that changes in technology may lead to a change in governance and not the reverse. Sinfonis and Goldberg argue that leadership has to be built at every level of the organisation, Ibid 248-51, and ensuring connectivity between every level. Sinfonis and Goldberg, above n 107, 257.

  [194] Cooray argues that Mason CJ had confused fundamental values with comunity standards in the implied rights cases. He adds: 'The above words of Sir Anthony Mason demonstrate unbounded intellectual arrogance, coupled with a knowledge and understanding of democracy, constitutional law and legal processes which is myopic. This comment is equally applicable to other judges who share Sir Anthony's philosophy.' Cooray LMJ, 'The High Court - The Centralist Tendency' Samuel Griffith Society Second Conference. 'Constitutional Reform: The Tortoise or the Hare?' Greg Craven (1992). An example outside the court is Knox's analysis of the language used by the Civic Expert's Group Report to empower minorities. Knox, above n 36.

  [195] Cooray, above n 194.

  [196] Pearson P, 'Soft Totalitarianism and Centralism' Samuel Griffith Society Seventh Conference. He is citing Friels. Pearson C, 'Address Launching Upholding The Australian Constitution, Volume 6' Samuel Griffith Society.

  [197] Morgan sees a need to 'reform' the court. Morgan HM, 'The Australian Constitution: A Living Document' Samuel Griffith Society Inaugral Conference 1992. See also Hulme on how judges are appointed. Hulme SEK, 'Hit and Myth in the Law Courts' Samuel Griffith Society Fourth Conference 1994.

  [198] As English and Guthrie observe: "Information and control systems are crucial to any organisation to help facilitate the assessment and management of risk, the achievement of strategic plans, regulatory compliance, and the discharge of accountability." Shapira G, "Misuse of Corporate Information: The New Zealand Provision" (1996) 6 Australian Journal of Corporate Law 442. He reviews two lines of cases on misuse of corporate property at common law which treat directors as trustees with "the no conflict rule", Ibid 445, and the 'no adverse profit rule". Ibid 450. He concludes that the new New Zealand provisions, Companies Act 1993 (NZ) s 145, have a sound matrix but then notes that the save haven provision is full of holes, it does not deal with corporate opportunity and the board is not be impartial and it is not clear to what extent it overides the common law. Ibid 460. English L and Guthrie J ,"An Overview of Director's Obligations and Accountability Standards for Government Business Enterprises in the 1990s' (1996) 7 Australian Journal of Corporate Law 120. Gilchrist raises the issues in the context of government control of intellectual property. Gilchrist J, "The Role of Government as Proprietor and Disseminator of Information" (1996) 7 Australian Journal of Corporate Law 62.

  [199] Australian Parliament, Explanatory Memorandum to the Corporations Legislation Amendment Bill 1991 (Cth) para 29-30.

  [200] Little P, "Proposals for Takeover Law Reform: Simplication and Beyond" (1996) 6 Australian Journal of Corporate Law 115. He concludes that it is aimed at improving the efficiency of the processes and "enhancing the prospect of takeovers". Ibid. He notes the proposal to remove the requirements for particular matters to be disclosed in favour of a standard that 'target shareholders and their professional advisors would reasonably expect to find in the statement, for the purpose of making an informed assessment of whether or not to accept the offer. Ibid 120. He observes of this: "It cannot necessarily be assumed that the proposed reform of the disclosure rules will produce a reduction in the volume of information-related litigation, much of which is motivated by tactical considerations." Ibid 121.

  [201] Baxt, R "Can Directors Delegate Out of Their Responsibilities When a Conflict Situation Arises? Restrictions on the Right to Delegate by the Supreme Court of Western Australia" (1995) 13 Company and Securities Law Journal 69. Baxt deals with the case of Permanent Building Society (in Liq) v Wheller (1994) 14 ACSR 109. He refers to Justice Ipps' finding that a director could not avoid a conflict of interest by not speaking or voting on a matter when he knew things which were detrimental to the company unkown to the other directors to whom the matter was 'delegated.' Ibid 71. Baxt R, "When Can a Naive Director Escape Liability for Being Naive and Foolish? When the Director Relies on Others!" (1995) 13 Company and Securities Law Journal 150. Baxt considers Dempster and Anor v Mallina Holdings Pty Ltd (1994) 15 ACSR 1. It leads him to conclude "the whole issue of directors duties of care and diligence, delegation and other related matters remain a complex and difficult area of the law". Ibid 151.

  [202] Eisenberg M, The Structure of the Corporation (1976) 140. Whincop MJ, "A Theoretical and Policy Critique of the Modern Formulation of the Directors' Duties of Care" (1996) 6 Australian Journal of Corporate Law 72. Whincop notes the assumption into this area of insolvent trading which emerged in the mid-1980s, requiring directors to take reasonable steps to put themselves in a position to monitor management. Ibid 78. It was adopted by Rogers CJ AWA v Daniels (1992) 7 ACSR 759, 864-5 and on appeal in Daniels v Anderson (1995) 16 ACSR 607. This has been applied by Ipp J in Biala Pty Ltd v Mallina Holdings Ltd (1993) 11 ACSR 785 and Permanent Building Society (in liq) v Wheeler (1994) 14 ACSR 109. He observes that "A fundamental problem in economics is that information is costly." He argues, using an economic analysis and contractarian view of the corporation, Ibid 83, that courts should also let directors evaluate this, Ibid 85: "At the outset of this section, I proclaimed the adoption of a contractarian perspective. This perspective compels the view that the duty of care is something that the parties can agree to vary." He argues that this is shown by the more restrictive standards for executive directors in AWA and considers whether or not the standard should be reduced. Ibid 89-91. "Perhaps the most significant revision to duties of care' he continues, 'is the duty to be informed, a matter that seems to have met with very little disapprobation from other commentators. I have attempted to show in this article that the duty to be informed, as we observe it in the majority judgment in Daniels v Anderson, makes little sense. It ignores the nature of information acquisition as being costly, and therefore a business judgment. A kindred development in that case is the limitation placed on relying on managerial advice and performance of duties, which flouts the very specialisation of labour that is integral to the corporation." Ibid 92.

  [203] Fridman S, "Ratification of Directors' breaches" " (1992) 10 Company and Securities Law Journal 252. Fridman points out that it raises fundamental but unanswered questions: "How, for example, can one reconcile the long accepted doctrine of corporate personality with the notion that shareholders are capable of ratifying anything on behalf of the corporation? Furthermore, if we consider the the position of minority shareholders, the ability of a majority of shareholders to speak in this context for the corporation creates great difficutlies." Ibid 252. He argues that the Lavarch committee and the CASAC's Report on the Reform of the Law Governing Corporate Financial Transactions (1989) 'perpetuates the uncertainty surrounding the question of whether the board of direcrtors has the power to ratify breaches by directors." Ibid 273.

  [204] Langton R, "Material and Immaterial Omissions from a Prospectus: Reflections of a Puzzled Observer on the Decision(s) in Fraser v NRMA Holdings Ltd" (1996) 6 Australian Journal of Corporate Law 410. He sees the law creating uncertainty: "The future significance of the NRMA decision probably lies in the ease in which an individual director or shareholder can block proposals that require shareholder approval. All that needs to be shown is that some long term implication of the proposal has not been fully explained. Since all the consequences that could flow from amending an article can be quite technical and complicated, this should not be difficult to do in practice." Ibid 422. Langton takes exception to the full court's use of the concept of corporate control, Ibid 420, with echoes of Foucault's idea that power is everywhere and that there are no restrictions on source of knowledge and metaphors.

  [205] Buxbaum RM, "Corporate Governance and Corporate Monitoring: The Whys and Hows" (1996) 6 Australian Journal of Corporate Law 309. Factor L, "Corporate Governance Practices of Listed Companies in WA: LR 3C(3)(J)" (1996) 6 Australian Journal of Corporate Law 380. The LR is now 4.10.3. Factor discusses how it is a voluntary regime and how it became so. Ibid 380-1. It particularly relates to directors' remuneration and appointments and monitoring processes, ethical processes and audit committees. Medium companies (ones with two of the following market capitalisation $250-$500 million with turnover of the same amount and 1 000 to 5 000 employees) and small companies - those listed companies remaining - are less likely to comply. Ibid 382. He concludes that: "The ASX may be disappointed at the number of medium, and particularly small, companies that will conform ... This self regulatory disclosure approach is dependent upon the directors feeling pressured to act. It is not considered likely that this pressure will flow from the market discounting the value of a small company's shares due to inadequate corporate governance disclosure." Ibid 408-9. He believes that this will only come about if the practices as incorporated over time into the directors care and diligence standard. Ibid 409.

  [206] Hill J, "'What Reward Have Ye' Disclosure of Director and Executive Remuneration in Australia" (9196) 14 Company and Securities Law Journal 232. Hill considers the process for the remuneration of directors which she concludes is flawed. Ibid 234-5. She notes the presence of share options, international best practices, the Greenbury Committee and NACD and the internationalisation of investment markets arguing that the adoption of more stringent measures in the USA will lead to similiar requirements in Australia or there will be a decline in foreign investment. Ibid 235-8.

  [207] Fridman S, "Super-Voting Shares: What's All the Fuss About?" (1995) 13 Company and Securities Law Journal 31. Fridman deals with the proposal by The News Corporation Ltd to create shares which had enhanced voting rights. Ibid Each shareholder was to receive a super voting share carrying 25 votes for every 10 shares held. In the event of the share being transferred the super voting rights would be lost. It was widely regarded as an attempt by the Murdoch family, which held 33 pre cent of News shares to consolidate control of the company. Ibid 32. He deals with the arguments against the proposal for diverging from the existing LR requirement of one share one value. It was objected to by institutional investors amongst others as it would detract from: the need to enhance corporate accountability and control, the need to protect shareholders' proprietorial rights, and the need to ensure proper sharing in premium for control. Ibid 33 note 5. He recognises that corporate democracy is a metaphor with limitations. Ibid 34-8. On the one share one vote principle he cites Ratner DL, "The Government of Business Corporations: Critical Reflections on the Rule of 'One Share, One Vote'" (1970) 56 Cornell Law Review 1, at 36: "The number of cases in which large shareholders are alleged to have breached their fiduciary duty to the other shareholders indicates that this safeguard may be similar to putting the lions in the same cage with the rabbits at the zoo ... ." Ibid 39.

  [208] Digby Q, "Proposed Continous Disclosure legislation" " (1992) 10 Company and Securities Law Journal 342. Digby discussess the legislation based on the CASAC report An Enhanced Statuory Disclosure Regime (September 1991). Ibid 342. He is concerned that it is unique, does not fit with other regulatory regimes and is overregulation compared withother jurisdictions. Ibid 346. Ramsay IM, "Incorporation by Reference into Prospectuses: What Are the Rationales?" (1994) 12 Company and Securities Law Journal 310. Ramsay deals with the ability to incorporate prospectus information by reference in s 1024F of the Corporations Law and the ASC's Policy Statement. Ibid 310-11. He notes the rationale that prospectuses are of little use to investors: institutional investors have other sources and small investors probably do not understand them. Ibid 315.

  [209] Fox M and Walker G, "Further Evidence on the Ownership of New Zealand Stock Exchange Top 40 Companies" (1996) 14 Company and Securities Law Journal 256. Lawton, above n 165, 348. Lawton examines the separation of ownership and control in the context of Chinese owned Hong Kong companies. Ibid 365-8.

  [210] Fox MA, Roy MR and Walker GR "Interlocking Directorships in New Zealand Publicly Listed Companies" (1994) 12 C& SLJ 331. Interest in these issues are long standing. It remains a matter of interest as it may evidence power relationships. Fox MA and Walker GA, "Insitutional Investment in New Zealand Publicly Listed Companies" (1994) 12 Company and Securities Law Journal 470. Ramsay I and Blair M, "Ownership Concentration, Institutional Investment and Corporate Governance: An Empirical Investigation of 100 Australian Companies" (1993) [1993] MelbULawRw 6; 19 Melbourne University Law Review 153. Hill J and Ramsay I, "Institutional Investors In Australia: Theory and Evidence" in Fisse B and Walker GA (ed) Securities Regulation in Australia and New Zealand (Auckland: Oxford University Press, 1994). Alexander M and Murray G, "Interlocking Directorships in the Top 250 Australian Companies: Comment on Caroll, Stening and Stening" (1992) 10 Company and Securities Law Journal 385. They conclude that interlocking directorships are not high in Australia compared with other countries: "not high enough to warrant concern". Ibid 393.

  [211] Nicoll G, "Recognition of Proprietorial Interests in Management and Corporate Governance" (1996) 7 Australian Journal of Corporate Law 80. Nicholl deals with "the complex merger of shareholders's constitutional rights in the Corporations Law s 180" Ibid 84-9. "Corporate governance is a term of uncertain application in practice." Ibid103.

  [212] See, for example, Bednall T, 'Settlement of ASC Proceedings Against Bidders for Composite Buyers Ltd' 14 (1996) Company and Securities Law Journal 115. Bedall deals with the takeover of Compsoite Buyers Ltd by QIW Ltd. The ASC took action against QIW Ltd and two other buyers for breaches of Chapter 6. Bedall argues that the stated policy objectives of the ASC were not achieved in the settlement. Ibid 115. The settlement permitted the QIW to keep the shares providing it held them for six months. So instead of being punished by being deprived of shares it was alleged by the ASC to have acquired illegally QIW was rewarded by the ASC sanctioning its retention of them. Ibid 117. He argues that the best interests of other parties and shareholders apart from QIW would have been an orderly divesting under the ASC's supervision. Ibid 119. He claims such a settlement would encourage rather than discouraging breaches of Ch 6. Ibid 120.

  [213] Sutherland E, Whitecollar Crime ( 1949)

  [214] See the final chapters of Croall H, White Collar Crime (Buckingham: Open University Press, 1992) which deals sparingly with the financial services sector.

  [215] Robb G, White-Collar Crime in Modern England - Financial Fraud and Business Morality, 1845-1929 (Cambridge: Cambridge University Press, 1992). Robb, in chapter seven, discusses company law showing that there was a low level of prosecutions compared with the acknowledged incidents of fraud.

  [216] Longo JP, "The Powers of Investigation of the Australian Securites Commission: Balancing the Interests of Persons and Companies under the Investigation with the Interests of the State" (1992) 10 Company and Securities Law Journal 237. He notes concern with the 'moral deterioration in the methods of obtaining evidence' referring to Gibbs CJ in Sorby v Commonwealth [1983] HCA 10; (1982) 46 ALR 237, 246. Ibid 251.

  [217] Bird H, "The Problematical Nature of Civil Penalties in the Corporations Law" 14 (6) Company and Securities Law Journal 405. Bird examines the operation of the civil penalties regime for breach of duty by corporate officers inserted in the CL in 1993. These represent, she argues, an application of 'game theory' which holds that regulatory compliance is a game of negotiation and interaction between the regulators and the people regulated in which costs and benefits are assessed. It is better for the regulator to intervene in a timely way than wait for deterrents based on criminal sanctions. The penalties represent part of a strategy of a pyramid of enforcement in which non-compliance leads to the regulator being able to invoke a more stringent penalty. 410. She cites Ayres I and Braithwaite J, Responsive Regulation (Oxford: Oxford University Press, 1992) and Dellit C and Fisse B, Corporations, Crime and Accountability (Christchurch: Canterbury University Press, 1993). She criticises these models on the basis of their presumptions that the people being regulated are rational decision makers. Ibid412-3. At the time she wrote in 1996 no proceedings of this kind had been taken. Ibid 421. She identified a number of reasons for this: the fact that there are competing regimes, confusion surrounding the mental element in s 232(2) and (6), a similar confusion over the criminal intention element required in 1317FA, evidentiary complexities and the inflexibility and severity of the penalties contained in Pt 9.4B. Ibid 423. See also: Baxt R, "Proposals for Reforming Company Law - The Duties of Directors" " (1992) 10 Company and Securities Law Journal 139. Baxt discusses the report in 1989 of the Senate Standing Commitee on Legal and Constitutional Affairs Report on the Social and Fiduciary Duties and Obligations of Company Directors (the Cooney Committee). Ibid 139-42. "Reforming the Law on Directors' Duties" " (1992) 10 Company and Securities Law Journal 205-7. Baxt comments on the Bill to implement the Cooney committee's penalty regime. He notes that it "comes at a time when the courts are becoming more inclined to evaluate the duties of directors by reference to expectations from the community that higher standards will be set." Ibid 207. Baxt R, "Securities Industry and Stock Exchange" " (1992) 10 Company and Securities Law Journal 146. Baxt deals with the report of the House of Representatives Standing Committeee on Legal and Constitutional Affairs (Canberra: AGPS November, 1991) (The Lavarch Committee). It recommended wider powers for the ASX, which looked more at corporate law issues than the securities industry, deals with its Listing Rules and their drafting and enforcement. Ibid 146-48.

  [218] Magarey D, "Enforcement of the Listing Rules of the ASX" (1995) 13 Company and Securities Law Journal 6. Magarey examines how the uncertainty about the precise legal status of the LR of the ASX has created uncertainty about whether they create obligations which the courts will enforce. The problem for the courts that the ASX can waive the obligation to comply with the rules is deciding what this does to obligations where the ASX has not moved to enforce the rules. Ibid 15-7. Spender P, "The Legal Relationship Between the Australian Stock Exchange and Listed Companies" 240. She argues that the law rests on indeterminacy created by assigning the relationship to the private law and contract. She states that the idea of the contract is illusionary and the discretion, Ibid 254-8, which the ASX has over the enforcement of the LR means that it cannot be accommodated within the traditional concept of contract. Ibid 240-241, 274. She identifies a wide and narrow view of the contractual liability which has followed and argues that legislative reform has not dealt with the indterminacy on which it is erected. Ibid 241. Mayanja J, "Rethinking the Role of the Australian Stock Exchange in the Regulation of Takeover Transactions" (1996) 6 Australian Journal of Corporate Law 34. Mayanja finds the ASX LR, which had been introduced, as ineffective and that the ASC and not the ASX is the appropriate regulator. Ibid 44-6.

  [219] Hanks P and Newman S, "Standing in the Australian Securities Commission's Shoes: The Adminsitrative Appeals Tribunal and the Corporations Law" " (1992) 10 Company and Securities Law Journal 318. Two practitoners argue that "The AAT itself must continue to develop an expertise in the complex and commercially sensitive areas which make up this new jurisdiction - an expertise which, to be fair, it has taken the court's some time to develop." Ibid 329.

  [220] Mandelbaum A, "Conceptual and Empirical Review of Takeovers Regulation - New Zealand" (1994) 12 Company and Securities Law Journal 124. Mandelbaum writes from a foundationalist economic perspective.

  [221] Rogers R, "When Can Target Directors Legitimately Frustrate a Takeover Bid?" (1994) 12 Company and Securities Law Journal 207. Rogers reviews the problems brought about by the imprecision of the fiduciary duty of the directors of public companies when faced by a takeover because of fundamental issues being left unresolved. Ibid 207-8. To whom do they owe the duties? Ibid 226-30. For what purpose may they act in managing the company? Ibid 217-25. To what extent may they manage it contrary to the wishes of the shareholders or majority shareholders? Ibid 214-5.

  [222] Potts G, "Disclosure of Financial Arrangements in Takeover Documents: An Overview of Clause 11 of Part A and Clause 8 of Part C of the Corporations Law" (1995) 13 Company and Securities Law Journal 126. Potts concludes that it is a fertile ground on which to frustrate the person making the takeover offer by seeking details that go beyond the need of shareholders to be paid for their shares which adds unnecessary expense to the takeover process. Ibid144.

  [223] Grave D, 'Compulsory Share Acquisitions: Practical and Policy Considerations' (1994) 12 Company and Securities Law Journal 240. Grave notes that there are a number of different technques being used to compulsorily acquire shares including reduction of capital and alteration of the articles of association, Ibid 258-61.

  [224] Digby Q, "Eliminating Minority Shareholders" (1992) 10 Company and Securities Law Journal 105. Digby claims that the statutory procedures for eliminating minority shareholders are typically categorised under the title 'Compulsory Acquisitions, s 701 and 414 of the CL. This has led to emotional language which enables the transaction to be categorised as the alienation of private property which he notes had affected the NCSC's approach but not the courts'. Ibid. Wishart D, Company Law in Context (Auckland, OUP, 1994). Wishart argues that business is about controlling things and that the law is about property and that the two concepts are not similes. A person may manipulate control in a way which advantages her or him but not interfere with property rights. Ibid 13-17.

  [225] Hill J, "Protecting Minority Shareholders and Reasonable Expectations" (1992) 10 Company and Securities Law Journal 86. She examines the limits on the protection of minority shareholders imposed by legal rules including the sancity of the majority, supremacy of the board, non-interference by the court in internal matters and restrictions on shareholders actions. Ibid 86-8. After discussing the oppression remedy in s 260, Ibid 95-103, she notes the tension between the older norms and the new remedy which produces uncertainty 103. She notes that "Company law represents a kind of eco-system, its different parts inextricably linked and interdependent." Ibid 103.

  [226] Sirianos S, "Problems of Share Valuation Under Section 260 of the Corporations Law (1995) 13 Company and Securities Law Journal 88. Sirianos examines the remedy, if oppression is found under s 260, of purchase of the shares and the issue of whether, if the holder is a minority shareholder, the value of the shares should be discounted from their proportion of the total worth of the company to represent the absence of control which would lead to them being discounted in the market or where they will deliver control if a premium should be added. The CL gives no guidance on these issues. Ibid 113-25.

  [227] McLeish S, "Obligations of Disclosure in Sales of Shares in Proprietary Companies" (1992) 10 Company and Securities Law Journal 373. McLeish discusses masking and unveiling in the context of the ordinary company share. He reveals that "the ordinary company share is far from being just another example of personal property. The law treats the share as a formidable possession capable of concealing its true nature and accordingly imposes significant obligations on those who enjoy its ownership." Ibid 384.

  [228] Davies M, Delimiting the Law: "Postmodernism" and the Politics of Law, (Pluto: London, 1996) 44.

  [229] Harvey, above n 1, 49. Jameson, above n 63, 95-6. This is also an issue now of concern to the advisers to corporate managers. Sinfonis and Goldberg write that "while technology was making it easier to know what has happening on the surface, it was making it much harder to get one's head around why those things were happening ... [While] accessing information became easier, research became paradoxically more difficult. An abundance of information and instant analysis on every subject ... threatened to overwhelm the time available to learn and to obviate the need for abstract thinking and analysis." Sinfonis and Goldberg, above n 107, viii.

  [230] Harvey, above n 1, 49-50.

  [231] Davies M, Asking the Law Question (Sydney: Law Book Co) 255.

  [232] Ibid, 256-7.

  [233] Derrida J, Positions (Chicago: University of Chicago Press, 1981) 26 cited in Davies, above n 231, 255-6.

  [234] Harvey, above n 1, 51. He also notes that this can be seen in modernist thinkers, such as Marx, whose terms like value, labour and capital are "continually breaking apart and re-attaching in new combinations in an open-ended struggle to come to terms with the totalizing processes of capitalism." Ibid.

  [235] Ibid 51. Roland Barthes wrote: "Linguistically, the author is never more than the instance writing, just as I is nothing other than the instance saying I: language knows a 'subject', not a 'person' and this subject, empty outside of the very enunciation which defines it, suffices to make language 'hold together', suffices, that is to say, to exhaust it. The removal of the Author ... is not merely a historic fact or an act of writing; it utterly transforms the modern text ... The temporality is different." Barthes R, Image Music Text (Fontana: London, 1977) 145.

  [236] Edward Levi writes: 'In an important sense legal rules are never clear ... The rules change as the rules are applied.' Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949) 1.

  [237] Davies, above n 231, 247.

  [238] Balkin JM, 'Deconstructive practice and legal theory' (1987) 96 Yale Law Journal 743-786. The article shows how deconstructive techniques can be used by lawyers concentrating on the inversion of hierarchies and the liberation of the text from the author. It provides an illustration of the deconstructive technique from the argument of Atiyah, who is not generally regarded as a deconstructionist, that individual will or intention should not be a basis for obligation in contract.

  [239] Ibid 743.

  [240] DeMott DA, 'Puzzles and parables: defining good faith in the MBO context' (1990) 25 Wake Forest Law Review 15, 29

  [241] For a deconstruction of the judgments in Mabo (No 2) see Hulme, above n 24. For a deconsruction of Sir Ninian Stephen's views on consitutional reform see Hulme, above n 151. Howard C, 'When External Means Internal' Samuel Griffith Society Second Conference 1992. Mabo (No 2) is shown to be based on racism. Hassell B, 'Mabo and Federalism: The Prospect of an Indigenous Peoples' Treaty' Samuel Griffith Society Third Conference 1993. Campbell W, also deconstructs Mabo in 'Addresses Launching Upholding The Australian Constitution, Volume 2' Samuel Griffith Society.

  [242] SEK Hulme endorses the way the founding fathers dealt with responsible government in drafting the Constitution as being 'surely right'. It is clear from the records of the constitutional conventions that the founding fathers did not have a single intent. Hulme, above n 24. Hugh Morgan's founding fathers could also be equally at home as the CEO of Western Mining in the 1990s. Morgan, above n 197.

  [243] See, for example, Blanchard J, "Honesty in Corporations" (1996) 14 Company and Securities Law Journal 4. Blanchard argues that a fundamental concept of honesty is required in the CL and notes how it presently involves honesty, proper purposes and bona fides in interchangeble ways. Ibid 5. At 14 he touches on the significance of names and identities and the concept of the company which is defined and redfined in terms of shareholders. Carroll R, "The Test of Honesty in Civil Proceedings Under Section 232(2) of the Corporations Law" (1995) 5 Australian Journal of Corporations Law 221-8. Carroll notes that in considering the issue of honesty the case law points in two directions of whether what the director considers is the best interests of the corporation, as in RE Smith and Fawcett Ltd [1942] Ch 304, or not, as in Advance Bank of Australia v FAI (1987) 12 ACLR 118. Whincorp MJ, "Developments in Director's Statutory Duties of Honesty and Propriety" (1996) 14 Company and Securities Law Journal 157. Whincop argues that the formulation, which is esentially based on the common law, in s 232 (5) and (6) of the CL is excessivley broad as they do not exclude transactions which are beneficial to shareholders or neutral to them. He calls for the scrapping of fiduciary duties in listed companies as shareholders can enter and exit quickly, corporations are just a set of risk-return subsistitutes and disciplinary and the market has informational functions, which he concedes is imperfect. Ibid 172. Mitchell, V "The Concept of 'Honesty' Under s 232(2) of the Corporations Law" (1994) 12 Company and Securities Law Journal 231. Mitchell argues that concept of honesty " is confused and often applied inconsistently" and "far from helping to elucidate this concept, the changes in relation to sanctions and penalties merely muddy the waters further by creating more problems.' Ibid 231. She acknowledges that "it appears to be impossible to come up with a clear definition of either "honesty" or 'dishonesty' in any context, let alone the context of the Corporations Law." 239 She also concludes that it is a question of fact to be decided by the court on 'the level of moral disapprobation felt.' She accepts the need for 'fuzzy law'. Ibid 239.

  [244] See, for example, Langton R, "Material and Immaterial Omissions from a Prospectus: Reflections of a Puzzled Observer on the Decision(s) in Fraser v NRMA Holdings Ltd" (1996) 6 Australian Journal of Corporate Law 410. He notes the diverse number of phrases describing what must be revealed in prospectuses and looks at 'misleading statements' and 'material omissions'. Ibid 410. "It matters little whether one focuses attention on what is included and asks whether it is misleading or focuses attention on what is excluded and asks whether this is material." He derives this from R v Kylsant [1932] 1 KB 442 noting that "more modern terminology, based on a distinction between express and implied representations, the case illustrates the circumstances in which an express representation ... that is true may nevertheless be categorised as misleading. These are where the express representation conveys by implication a further representation ... and this second representation is false." He argues that this line of reasoning underpins many of the finding in this case. Ibid 411. He objects to the Full Court prefacing much of their discussion about s 52 of the Trade Practices Act by considering the requirements of directors to make full and fair disclosure to the general meeting. This was in spite of cases on s 52 that decided "to inquire whether an independent 'duty to disclose' has arisen is to digress from the application of the terms of s 52." Ibid 421 and note 25.

  [245] McEwin RI, "Public Versus Shareholder Control of Directors" " (1992) 10 Company and Securities Law Journal 182. McEwin writes that 'there is a widespread belief that director misbehaviour is not sufficiently penalised. One explanation is a perception that non-majority shareholders have little control over setting and enforcing directors' standards of behaviour. Ibid182. "Courts face the same problems setting director standards. They do not have the information to set standards." Ibid 201. He argues that regulatory agencies also do not have enough information to set standards for directors which may need to vary from industry to industry. Ibid 202. He states: "However, the development of the corporation as a separate legal identity has clouded the true agency relationship between shareholders and directors and effectively prevented shareholders from ensuring that directors act in the best interests of shareholders when market forces are ineffective (due to lack of comeptition in product and capital markets)" Ibid 202. He claims that we know little about either the public or private enforcement of these rights. "Certainly, the law regulating company directors is so uncertain that considerable resources are used to fight important cases in the courts." Ibid 203. He argues that, therefore, directors duties can only be subject to private negotiation and enforcement. Ibid 203-4.

  [246] Baxt R, "What is the Real Fuss About Foss v Harbottle" (1994) 12 Company and Securities Law Journal 178. He argues that the right balance is present in Australian law referring to Biala Pty Ltd v Mallina Holdings (1993) 11 ACLC 1082. Baxt R, "The Rule in Foss v Harbottle Rears its Ugly Head - The Case for A Statutory Derivative Action" (1996) 14 Company and Securities Law Journal 174. He notes that in a number of recent cases the operation of the rule had been narrowed by interpretation by the courts, such as Biala Pty Ltd v Mallina Holdings (1993) 11 ACLC 1082, but that it has been enlarged again by the decision by the full Federal Court in Christianos v Aloridge Pty Ltd (1995) 13 ACLC 1,851 but that this last case could be restricted to its facts. Ibid 175.

  [247] Simmonds R, "Dismembering the Corporations Law and Other Law Reform: Should Something More be Added to the Law Reform Agenda." (1995) 13 Company and Securities Law Journal 58. He argues that Australia should consider the New Zealand approach of separating the Corporations Law into separate parts of a core Companies Act, a Personal Property Security Act to deal with company charges, and separate Securities Industry Act to provide for the regulation of the securities industry. Ibid 59-60. His basic argument is that 'categories guide thought' and that company law is too wide a category. Consequently the securities provisions of the Corporations Law pick up prescribed interests which are not associated with corporations. Ibid 61. He argues that the present format of the legislation privileges corporate law over the interests of other legal areas. Ibid 59. He ends with the observation: "my dismemberment may be misguided, like all attempts at categorisation. This is because categories are ultimately constructs - they are what we consider useful ways for organising our thoughts, not 'out there'". He cites Schauer F, "Free Speech and the Cultural Contingency of Constitutional Categories" (1993) 14 Cardozo Law Review 865.

  [248] This is also a major theme for the advisers to corporate managers. Sinfonis and Goldberg, above n 107, reiterate it over 270 pages of their book. Chapter 4, "Creating a Pattern of Trust", Ibid 57-76, is written on the basis that ethics is now a mainstream activity. They quote, at 49, with approval Sissela Bok, that we "will have to take moral principles into account ... Trust is, if anything, absolutely important as the one way to our survival." "Grappling with Principle" in Kidder RM, Agenda for the 21st Century (Cambridge, Mass: MIT Press, 1989) 12. They suggest, at 87-9, that a Public Policy Committee monitor the company in order 'to prohibit deliberate and knowing exploitation of any kind of the non-shareholder constituencies." At 239-43 and 263-5 they urge that ethical principles be established and not departed from and repeat the value of ethics, integrity and trust. Gray J, 'Contractarian Method, Private Property, and the Market Economy' in Chapman JW and Pennock R, Markets and Justice (New York: New York University Press, 1989) 13. He uses Rawls theory of justice to justify markets.

  [249] Derrida J, 'Force of Law: The "Mystical Foundation of Authority" (1990) 11 Cardozo Law Review 919. Derrida J, Of Grammatology, 158.

  [250] Harvey, above n 1, 52 quoting Lyotard, above n 34, 66. Goodrich's examination of the reception of Roman law leads him to see the role of the judge 'to create a law that is ethical, which is to say, a law which is appropriate to its circumstances.' Goodrich, above n 158, 182.

  [251] Smart, above n 47, 396, 402.

  [252] Dewey J, "Logical Method and Law" (1924) Cornell Law Quarterly 17. Murphy JW, "John Dewey - A Philosophy of Law for Democracy" (1960) 14 Vanderbilt Law Review 291. As Dewey's contemporary explained: 'Pragmatism represents a perfectly familiar attitude in philosophy, the empiricist attitude, but it represents it, as it seems to me, both in a more radical and in a less objectionable form than it has even yet assumed. A pragmatist turns his back resolutely and once and for all upon a lot of inveterate habits dear to professional philosophers. He turns away from abstraction and insufficiency, from verbal solutions, from bad a priori reasons, from fixed principles, closed systems, and pretended absolutes and origins. He turns towards concreteness and adequacy, towards facts, towards actions, towards action and towards power. That means the empiricist temper regnant and the rationalist temper sincerely give up. It means the open air and the possibilities of nature, as against dogma, artificiality, and the pretence of finality in truth. James W, Pragmatism (Cambridge, Mass: Harvard University Press, 1975) 51.

  [253] Grey TC, 'Holmes and Legal Pragmatism', (1989) 41 Standford Law Review 787, 788.

  [254] Harvey, above n 1, 52.

  [255] Rorty R, Philosophy and the Mirror of Nature, (Princeton NJ: Princeton University Press) 1979.

  [256] Harvey, above n 1, 56. Casson has emphasised the importance of trust in reducing transaction costs. He argues that the concept of 'ethical man' is more succesful base than 'economic man' from which economics can launch its 'imperialistic' social science. Transaction costs are increased when there is a low degree of trust and that, consequently, impairs the usefulness of markets. These costs are reduced when parties to transactions do not need to take expensive steps to protect themselves. Robertson PL, 'Review: Mark Casson, Entrepreneurship and Business Culture: Studies in the Economics of Trust Vol 1 (Aldershot: Edgar Elgar, 1995)' (1996) 38 Business Law 121-2.

  [257] Rorty R, 'Pragmatism Without Method', in Objectivity, Relativism, and Truth: Philosophical Papers (Cambridge, Cambridge University Press) 63, 65.

  [258] Rorty R, Contigency, Irony and Solidarity (London: Cambridege University Press, 1989) 73. Pragmatism has been pointed to by Mary Becker as a new goal for feminists: 'rather than looking to one approach to solve all problems in all circumstances, we should regard the variety of approaches available today as a set of tools to be used when appropriate.' Becker M, 'Strength in Diversity: Feminist Theories Approach Child Custody and Same-Sex Relationships' (1994) 23 Stetson Law Review.

  [259] Posner, above n 38, 454-469. See also Posner R, 'Pragmatism, Economics, Liberalism' in Overcoming Law (Cambridge, Mass, Havard University Press, 1995) and 'What Has Pragmatism to Offer Law?' (1990) 63 Southern California Law Review 1653. Rorty R, 'The Banality of Pragmatism and the Poetry of Justice' 63 Southern California Law Review 1811.

  [260] Nicoll G, "Recognition of Proprietorial Interests in Management and Corporate Governance" (1996) 7 Australian Journal of Corporate Law 80. Nicoll notes in respect of the inadequate corporate "constitutional recogntion of the legitimate interest of shareholders generally" and "the inadequate regulation of the broad managerial power generally accorded to the board" that "the inadequacy of corporate law theory in these areas may have led to an increasing reliance upon rather loose notions of ethics and codes of conduct." He refers in note 1 to the Company Code of Ethics recommended in the Corporate Practices and Conduct Paper, Melbourne, Information Australia, 1991 and the Code of Conduct recommended by the Committee on the Financial Aspects of Corporate Governance in Britain (the Cadbury Committee).

  [261] John R, "Relieving Directors From The Liabilities of Office: The Case for the Reform of Section 241, Corporations Law" (1992) 10 Company and Securities Law Journal 6. This article examines the effect of directors being exposed to unlimited liability for wrongdoing. Ibid 6. Moral considerations are discussed in an economic context, and, at 22-3, a contractual theory of the corporation. Ibid 17-23 uncertainty in the law creates uncertainty for commercial practice need to consider reform. Ibid 30.

  [262] Defina A, Harris TC and Ramsay I, "What is Reasonable Remuneration for Corporate Officers? An Empirical Investigation Into the Relationship Between Pay and Performance in the Largest Australian Companies" (1994) 12 Company and Securities Law Journal 341. They look at the concept of 'reasonable remuneration' introduced into the CL in s 243K and its relationship to oppression in s 260 as a number of cases have alleged unreasonable remuneration is represssive. Their study concluded that there was no discernible link between salary and company performance in the 1989 to 1990 years but there was a relationship between the company's size and remuneration. Ibid 351.

  [263] Walker G and Fox M, "Insitutional Investors and the Brierly Investments Ltd Executive Share Options Scheme" (1995) 13 Company and Securities Law Journal 344 brings together the power of institutional investors and questions of excessive remuneration of directors whose opposition led executives to withdraw their plan to grant themselves excessive options. Ibid 345.

  [264] Baxt R "Can Company Directors Compete with Their Own Companies" (1994) 12 Company and Securities Law Journal 380. Baxt examines the decision in Rosetex Co Pty Ltd v Licata (1994) 12 ACSR 779 in which Young J suggested that not too many "shackles" should be placed on the director. Baxt considers whether this is surprising in the present climate which calls for 'higher standards'. Aitken MJ and Latimer P, "Principal Trading by Stockbrokers" (1995) 5 Australian Journal of Corporate Law 1

  [265] Goldwasser VR, "Recent Developments in the Regulation of Chinese Walls and Business Ethics - In Search of a Remedy for a Problem That Persists" (1993) 11 Company and Securities Law Journal 227. Goldwasser notes that the Chinese Wall - enacted in the context of defences to the charge of insider trading which was revamped as a result of the 'corporate excesses' of the 1980s - depends on self regulation and the honesty and integrity of the people involved. Ibid 245. They were enacted in spite of considerable opposition, Ibid 246-8, and represent a legislative facade of the insider trading provision designed to create an image. Ibid 249. Goldwasser concludes that "the function of legal prohibitions in this area will continue to be cosmetic: purely facilitative and essentially uneforceable." Ibid 251.

  [266] Langton R, "Material and Immaterial Omissions from a Prospectus: Reflections of a Puzzled Observer on the Decision(s) in Fraser v NRMA Holdings Ltd" (1996) 6 Australian Journal of Corporate Law 410. Langton states: "No doubt one's reaction to the NRMA case, are shaped by one's perspective on the proposal." Ibid 421. He notes that it could be seen as a corporate raid which was seeking to secure assets of $5billion by having all the other members resign, and, Ibid 421-22, from the perspective of the "apparent idol of Parliament" the "hypothetical reasonable investor" the holding company was offering shares that had commercial value in return for rights that had no commercial or practical value. Ibid 422.

  [267] English L and Guthrie J, "An Overview of Director's Obligations and Accountability Standards for Government Business Enterprises in the 1990s (1996) 7 Australian Journal of Corporate Law 120. This is written in the context of the problems of accountability in the 1980s in corporate Australia and the use by government of the corporate form to conduct government activities, including service deliveries, as well as conflicts between the Commonwealth Authorities and Companies Bill 1994 (Cth) and the CL. Ibid 121.

  [268] Lawton P, 'Berle and Means, Corporate Governance and the Chinese Firm' (1996) 6 Australian Journal of Corporate Law 348. Lawton makes the point that the separation of power and control has not taken place in Hong Kong firms as they grow.

  [269] Kamarul B, "Reforming Economic Law in the Asia Pacific Region" (1996) 6 Australian Journal of Corporate Law 93.

  [270] Harvey, above n 1, 54. Williams, above n 134, demonstrates the complex nuances of 'alienation' but gives its Freudian sense of a person estranged from the source of primary energy as a significant meaning, 29-32. This does not seem to be so clear in corporate management literature in which alienation and paranoia seem to be more common. For example, Sinfonis and Goldberg, above n 107, state as an issue to be addressed in corporate management: "The breaches in social contracts between citizens and their governments, employees and their employers, and individuals and the family have created uncertainty, resentment, and even fear." Oesterle DA and Palmiter AR, 'Judicial Schizophrenia in Shareholder Voting Cases' (1994) 79 Iowa Law Review 485.

  [271] Bullock A, Stallybass O and Trombley S, The Fontana Dictionary of Modern Thought (Fontana: London, rev ed, 1988) 759. They attribute it to Eugene Bleuler who introduced it in 1910, when modernism was undergoing rapid transformation. Ibid.

  [272] Williams, above n 134, demonstrates the complex nuances of 'alienation' noting that it "is now one of the most difficult words in the language."

  [273] Bullock, Stallybass and Trombley, above n 271, 759, 627.

  [274] Harvey, above n 1, 53.

  [275] Ibid 58.

  [276] Ibid 53. Lacan has been applied to law in Caudill D, "Lacan and Legal Language: Meanings in the Gaps/Gaps in the Meanings" (1992) 3 Law and Critique 169.

  [277] Harvey, above n 1, 54.

  [278] Ibid 56.

  [279] 'Over the past eighty years, Canberra has claimed more and more power to solve problems - which it has consistently been unable to solve. This has bred much cynicism and alienation from our ageing democracy. Kasper W, ' Making Federalism Flourish' Samuel Griffith Society Second Conference 1993. Sharman also comments on the centralisation of power: 'As well as being a recipe for inefficiency and unresponsiveness in government, such a system leads to the alienation of those communities who know they are not at the centre of things. Such communities resent the easy assumption that, because it suits a distant majority, it must apply to them: with justification, they feel that they are losing their ability to shape their own destinies in matters that are of predominant concern to them alone. Sharman C, 'Secession and Federalism' Samuel Griffith Society Third Conference 1994. See also Gibbs H, 'Concluding Remarks' Samuel Griffith Society Fifth Conference 1995 and Stone J, 'Introductory Remarks' Samuel Griffith Society Fifth Conference 1996.

  [280] Minogue K, 'Constitutional Mania : A Preliminary Diagnosis' Samuel Griffith Society Sixth Conference.

  [281] Dabner J, "Directors Duties - The Schizoid Company" (1988) 6 Company and Securities Law Journal 105. Daubner notes what he describes as the 'schizoid' nature of the common law's approach to internal conflict in the company by changing the persons to whom the directors owe their duty when a company becomes insolvent to the creditors. This "schizoid" metaphor is taken up by Mannolini J, "The Reform of Takeovers Law - Beyond Simplification" (1996) 14 Company and Securities Law Journal 478. He applies it to the problem of adopting the common law concept to include employees. Ibid 478-9.

  [282] Webber S, "Weight Loss Without Dieting: Selective Capital Reduction to Gain Control of a Company Without Launching a Takeover" (1996) 6 Australian Journal of Corporate Law 125. Webber, at 135-7, deals with selective reduction as a takeover alternative. "It is well recognised that the purpose of capital reductions is to circumvent the takeover laws, and the advantages of eliminating minority shareholders in this way have been noted above." Ibid135. Traves S, "A Scheme of Arrangement Can Be an Effective Method of Takeover" (1994) 12 Company and Securities Law Journal 32. Traves notes that a scheme of arrangement under Chapter 5 can achieve the same aims as a take over under Chapter 5. It is based on a foundational economics view, Ibid 33-4, and generally favours the offerers, Ibid 41, and generally does not require the same disclosure of information. Ibid 41-2. She argues that chapter 6 was not intended to deal with all forms of acquisition of control but at 46-48 looks at cases where proposed arrangements have been challenged in which Ch 6 is not conceded to be superior to Ch 5. In Nicron Resources v Catto (1992) 10 ACLC 1186 Bryson J refused to require a Chapter 6 takeover merely to protect small minority shareholers could only be bought out under its provisions. Ibid 47.

  [283] Baxt R, "Where Dotting the I's and Crossing the T's Is Still Important - Simplification Changes Unlikely to Relax the Viglilance of the Courts in Ensuring There is Compliance with the Corporations Law Rules" (1996) 14 Company and Securities Law Journal 440. He argues that the striking down of an allocation of shares by directors, subject to a pre-emption clause and in breach of it, was inconsistent with other decisions. The case, Reid v Public Trustee [1996] NSWSC 534; (1996) 14 ACLC 1,106, shows that the 'courts will be vigilant in ensuring compliance with the procedures, whether in the articles or in the Law.' Ibid 440-1. Langton R, "Material and Immaterial Omissions from a Prospectus: Reflections of a Puzzled Observer on the Decision(s) in Fraser v NRMA Holdings Ltd" (1996) 6 Australian Journal of Corporate Law 410. Langton notes that the application by the shareholder was made under s 52 of the Trade Practices Act 1974 (Cth) rather than s 995(2) of the CL although the court asserted that the results would have been the same in obiter. Ibid 412. The information paradox is also noted: that the proposal was complex and that a document which provided exhaustive information on it was likely to be more confusing than enlightening. Ibid 414. He notes that there was no evidence of how the recipients would have understood the offer of "free shares" - used 117 times in over 100 pages - Ibid 415, suggesting that a poll be used to do this. Ibid 415-20. He suggests that a shareholder should not care about the identity of other shareholders whether institutional or otherwise. Ibid 420-1. Whincorp MJ, "A Theoretical and Policy Critique of the Modern Formulation of the Directors' Duties of Care" (1996) 6 Australian Journal of Corporate Law 72. Whincorp states: "One of the greatest problems confronting any critic, such as the author, of the revision of standards of duty of care is the depressing spectre of cases, seventy years or older, where the directors could have been cryogenically frozen (if technology had allowed) and still could have discharged their duties of care." However, he does not reconcile this with his earlier statement that Rogers CJ in the AWA accepted that the duty of care could be reduced to a formula. Ibid 78.

  [284] Miley F and Read A "Cultural Differences in the Attitudes to Securities Market Regulation: The Case of the Barings Collapse" (1996) 7 Australian Journal of Corporate Law 105. They consider the response to the collapse in Asia for greater regulation and the response in western states of reflecting a healthy market system. Ibid 106. They use literature from cross cultural psychology to explain this, Ibid 106-11, including what Hofstede defines as "uncertainty avoidance", the extent to which people feel threatened by uncertain or the unknown . Ibid 108, 118. Lawton, above n 165, 348. Lawton also deals with these themes. He notes that cross cultural surveys on 'uncertainty avoidance' produce lower scores for both Britain and Hong Kong than Taiwan suggesting that the "ability to accept and deal with ambiguity in both cultures may provide some answers for the successful adoption of the UK corporate form in Hong Kong." Ibid 371-2.

  [285] Jameson cited in Harvey, above n 1, 54. At 88-90 he describes a number of specific 'spectacles'. Corporate management literature with its increasing emphasis on non-linear theory and chaos theory in particular could also be seen as the latest spectacle. Parker D and Stacey A, Chaos, Management and Economics: The Implications of Non-Linear Thinking (Sydney: Centre for Independent Studies, 1995); Merry U, Coping with Uncertainty: Insights from the New Sciences of Chaos, Self-Organization and Complexity (Westport, Conn: Praeger, 1995); Sinfonis and Goldberg, above n 107, describe, at viii, the new companies as "multiparty alliances, partnerships, linked in financial services, and flattened, empowered, ... virtual organizations" in place of "massive, vertically integrated, tightly knit organizations which no longer seem viable." They are marked by layers of complexity, concurrence and convergence in governance, leadership and technology which it requires chaos theory to describe, Ibid 38-47. They are run by "connectivity" a "new system, created by technology", Ibid 51-2. They must deal with continuous change which feeds in on itself so that there have to be changed to deal with changing change, the "facilitation of change", Ibid 97, 157, 251-4.

  [286] Cited in Harvey, above n 1, 58, 85. Political life can also reflect these qualities as, Harvey argues, Reagan's presidency showed. He was re-elected although all opinion polls showed that a majority of people were strongly opposed to his policies. He left office standing high in the same polls after more than a dozen senior figures in his administration had been accused of, or found guilty of, "serious infringement of legal procedures and blatant disregard for ethical principles." Ibid 329.

  [287] Harvey, above n 1, 61.

  [288] Smart, above n 47, 396, 417.

  [289] Harvey, above n 1, 61-2.

  [290] Ibid 63.

  [291] Ibid 58. At 85-7 he describes it in the context of heritage and architecture.

  [292] Ibid 61.

  [293] Lyotard quoted in Smart, above n 47, 396, 408.

  [294] Cited in Harvey, above n 1, 87.

  [295] Smart, above n 47, 396, 411.

  [296] Samuel Griffith Society, above n 26.

  [297] Cooray, above n 194.

  [298] Paul Hasluck, 'Addresses Launching Upholding the Australian Constitution, Volume 1' Samuel Griffith Society 1994.

  [299] For historical pastiches see Knox BA, 'Fantasies and Furphies: The Australian Republican Agenda' Samuel Griffith Society Inaugral Conference 1992 and Barwick 'Parliamentary Democracy in Australia', above n 21.

  [300] See Hulme, above n 24.

  [301] Forbes states that: 'This type of negotiation is often accompanied by references to nebulous "international opinion". It is now commonplace to exaggerate the size and unity of special interest groups by alluding to some keenly supportive "community" in the background. Here we are asked to assume that there is an "international community", all-wise, all-knowing, with nothing better to do than to barrack for lobbies in Australia, and to be implicitly obeyed by Australians whenever the lobbies allege that "international opinion" demands our obedience.' Forbes, above n 27.

  [302] See Evans R, 'Reflections on the Aboriginal Crisis' Samuel Griffith Society Seventh Conference.

  [303] See the attack by SEK Hulme on Anthony Mason. Hulme, above n 197.

  [304] See Koeck WJ, "Continuous Disclosure" (1995) 13 Company and Securities Law Journal 485. This outlines the continous disclosure provisions of the CL. It brings again into issue the LR of the ASX as the provisions rely on them for their operation in respect of listed companies. As the LR are now subject to the criminal law they should no longer be interpreted liberally. Ibid 493. The problems with the requirement to disclose only if not 'generally available' in s 1000 is considered in the context of what is generally available? Ibid 494-5, and what is information? Ibid 495, and what is materiality? Ibid 496-9.

  [305] Australian writers do not seem to be as rueful as LCB Gower. Gower's Principals of Modern Company Law (5th ed, 1992) 70 states: "[O]ur system of Company Law was, until recently, the model widely followed in the Common Law countries. That leading role has now been taken over by the United States (influencing Canada, Australia and New Zealand) and we cannot hope to recover it." See Fitzsimons P, 'Australia and New Zealnd on Different Corporate Paths" (1994) 8 Otago Law Review 267.

  [306] Spender P, "Compulsory Acquisitions of Minority Shareholdings" (1993) 11 Company and Securities Law Journal 83. She argues that the common law favoured the majority, Ibid 85, and that this has been augmented by policy developments which favoured the majority, Ibid 87-94. She notes, at 93-4, that the characterisation of the dissenting shareholders as greedy and apathetic, Ibid 87, 93-4. Ramsay I, "Corporate Governance, Shareholder Litigation and Prospects for a Statutory Derivative Action" (1992) 15 University of New South Wales Law Journal 149 and "Enforcement of Corporate Rights and Duties by Shareholders and the Australian Securities Commission: Evidence and Analysis" (1995) 23 Australian Business Law Review 174. Kluver J, "Derivative Actions and the Rule in Foss v Harbottle: Do We Need a Statutory Remedy" (1993) 11 Company and Securities Law Journal 7.

  [307] See Mitchell V, "The US Approach Towards the Acquisition of Minority Shares: Have We Anything to Learn?" 14 (1996) Company and Securities Law Journal 283. She notes that the US which had neither the fraud on the minority doctrine nor a remedy like s 260 of the CL has a remedy for minority shareholders of statutory appraisal so they can leave with a fair price. Ibid 285. It was adopted in Canada in the Canada Business Corporations Law Act and in the Ontario Business Corporations Act s 189(7) for 'going private transactions'. Ibid 297. It was adopted in New Zealand in the Comapnies Act 1993 (NZ) s 165. Ibid 298. Fitzsimons, P "Statutory Derivative Actions in New Zealand" (1996) 14 Company and Securities Law Journal 184 Fitzsimons briefly reviews the action in overseas jurisdictions before considering the first successful use of the New Zealand provisions in Vrij v Boyle (1995) 7 NZBLC 260,846, 185-190. Ibid 184-5.

  [308] See (1996) 6 Australian Journal of Corporate Law 142-307 which includes a number of papers from the Second Conference of the Asia Pacific Economic Law Forum held in Canberra in February 1996. They deal with economic development and business law reform in the Asia Pacific region. See, for example, O'Hare J, "Regulation of the Securities Industry in Hong Kong: The Securities and Futures Commission" (1996) 6 Australian Journal of Corporate Law 178 and Gao XQ, "Developments in Securities and Investment Law in China" (1996) 6 Australian Journal of Corporate Law 228.

  [309] Albrechtsen J, "Extraterritorial Application of the Corporations Law - A Case for Reform" (1994) 12 Company and Securities Law Journal 476. She argues that the extraterritorial provision of the CL, s 110D is unclear in its operation to Chapters 7 (Securities) and 8 (Futures) and s 1313A which applies to offences partly in and partly out of a jurisdiction. Ibid 476.Section110A purports to apply Chapters 1-6 and 9 extraterritorially but because the CL she considers whether a state parliament enact such a law. Ibid 477. She concludes: "When taken together, the uncertainty surrounding the application of s 110D of the Corporations Law renders any determination of the extraterritorial operation of the many provisions of the Corporations Law very difficult." McLaughlin B, "Cross-Border Regulation at Cross Purposes: The Regulation of Rights Issues by Australian Corporations with American Shareholders" (1993) 11 Company and Securities Law Journal 524. McLaughlin discusses the problems of having to comply both with US and Australian law and multiple regulatory agencies.

  [310] Walker, G, Mellor, S and Fox M and Francis S "The Concept of Globalisation" (1996) 14 Company and Securities Law Journal 59. The article distinguishes the confused concepts of globalisation and internationalisation: one removes national distinctions, the other consists of national actors acting together. The article crosses into other areas of postmodern concern by touching on the forces driving globalisation in financial markets including 'advances in and fusion of information technology and telecommunications technology'. This they argue as the key factor, 'the major aspect of globalisation is the globalisation of capital facilitated by the new global communications technology. They describe the stretching and intensifying aspects of this, that 'economic activities are stretched across the world' but are 'intensified at the level of increased interconnectedness.' It is confined to the developed nations. Ibid 60. This raises issues of who regulates these new markets and the geographical or spatial question, of where is it? Ibid 61 They examine the business concept of globalisation as a 'mandate' and cite Bradley S, Hausman J and Nolan R "Global Competition and Technology" in Bradley S, Hausman J and Nolan R, Globalization, Technology and Competition: The Fusion of Computers and Telecommunications in the 1990s (1993) 4-5: 'Globalisation is an important emerging business mandate relevant to virtually all businesses. It is an Information Economy, as opposed to an Industrial Economy, business concept. Modern communications enable businesses to operate in multiple countries in diverse shapes and forms of organisation and control. They make it possible to send information to any part of an organisation instantly, enabling every other part - and the organisation as a whole - is doing all the time. Moreover, global businesses can link directly to their customers, suppliers and partners around the world ... Globalisation of business has continued to the point that a new, more sophisticated set of management principles is emerging. ... [T]ransnational corporations attempt to maximise global economies of scale and scope while being locally responsive to customers in countries in which they operate. As companies become more global, and especially when a transnational strategy is attempted, there develops a great demand for improved communication both in capacity and sophistication. There is no end in sight for this trend.'

  [311] Romano R, "A Cautionary Note on Drawing Lessons from Comparative Corporate Law" (1993) 102 Yale Law Journal 2021. Romano points out the difficulties of making comparative judgments about forms of corporate governance and that without them it is impossible to use foreign forms to reform existing law and practices.

  [312] Lyotard notes them as: "phonology and theories of linguistics, problems of communication and cybernetics, modern theories of algebra and informatics, computers and their languages, problems of translation and the search for areas of compatability among computer languages, problems of information and storage and data banks, telematics and the perfection of intelligent terminals, paradoxology ... this list is not exhaustive." Lyotard, above n 34, 4. Arguably this preoccupation goes back to the first part of the nineteenth century, Harvey, above n 1, 20-21.

  [313] Lyotard, above n 34, 3.

  [314] 'The issue was the acquisition of land by occupancy; by "peopling" the land; by "settlement". Fundamental to that was the cultivation of land, for cultivation ties those who sow to being still there to reap, and it is cultivation above all else which leads to land becoming "settled"'. Hulme, above n 24.

  [315] See Hulme, above n 24.

  [316] Knopfelmacher F, 'The Crown in a Culturally Diverse Australia' Samuel Griffith Society Second Conference 1993. Jull D, 'Constitutionally Entrenching our Flag' Samuel Griffith Society Seventh Conference.

  [317] Gough, above n 35.

  [318] Tomasic R, 'Phoenix Companies and Corporate Regulatory Challenges' (1996) 6 Australian Journal of Corporate Law 461, 461-3.

  [319] See Markovic M, "The Law of Shadow Directorships" (1996) 6 Australian Journal of Corporate Law 323. At 323 note 3 he cites P Loose, J Yelland and D Impey, The Company Director: Power and Duties (Bristol: Jordans, 7th ed, 1993) 222: 'it cannot be pretended that the judges have thrown much light on the outer limits of "shadow status"'.

  [320] Magarey D, "Enforcement of the Listing Rules of the ASX" (1995) 13 Company and Securities Law Journal 6, 6-15.

  [321] McQueen R, 'Limited Liability Company Legislation - The Australian Experience' (1991) 1 ACLJ 22. At 27 he discusses dummying of share ownership in mining companies which was common to avoid liabilities.

  [322] McGregor Lowndes M, 'Corporate Disclosure, the Internet and the Australian Securities Commission' (1996) 14 Company and Securities Law Journal 219. He argues that disclosure of information required to the ASC, to the ASX and to shareholders and the public should be on the Internet, bypassing the ASC, as it will improve the flow of information. Ibid 219. He notes that in the nineteenth century disclosure of directors and members was required to facilitate litigation and that non-disclosure avoided this. 220. Lowndes notes that the SEC already has information filed by companies available on the Internet through the EDGAR with three quarters of all public companies filing through it in 1995. Ibid 225. He argues that it would be accurate and complete, accessible and timely, cost efficient and adding value to the community. Ibid 226. It would be accessible and timely. Ibid 227.

  [323] See Mannolini J, "Insider Trading - The Need for Conceptual Clarity" (1996) 14 Company and Securities Law Journal 151. Mannolini considers the decision in Exicom Pty Ltd v Futuris Corp Ltd (24 October 1995). It is also an example of the signifier and the signified and schizophrenia and indeterminacy as language, legislative policy and interpretation conflict. Ibid 152. Mulholland CA, "Insider Trading in New Zealand: The Procedural Debacle" (1994) 12 Company and Securities Law Journal 118. He discusses s 118 of the of the Securities Amendment Act 1988 (NZ) and the difficulty of enforcement brought about by requiring the issuer of the placement to take action as this will involve action fellow directors or officers and would be bad publicity. Mulholland CA, "Insider Trading in New Zealand: Wilson Neill in the Court of Appeal" (1994) 12 Company and Securities Law Journal 118. He concludes that the requirements of 'insider trading and 'good reason' are too onerous for any applicant to prove. Ibid 119. Bostock TE, "Australia's Insider Trading Laws" " (1992) 10 Company and Securities Law Journal 165. Bostock concludes that its enlarged meaning of insider and inside information will tend to diminish, rather than increase, confidence in the Australian securites market. This partly because of the uncertainty of the language. Ibid 166.

  [324] Hall, above n 164, 1.

  [325] Ibid 3.

  [326] Ibid. It is difficult to accept her statement that it is "'recent developments' in legal theory [which] have also challenged the traditional isolation of law from other disciplines. Theoretical schools which she notes, such as the Realists, have members who published such views over a century ago. Montesquieu observed: "As the civil society depends on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have the same institutions and the same political law." Montesquieu, The Spirit of the Laws, Book XXIX, ch 3, 1748.

  [327] Hall, above n 164, 5.

  [328] Wishart, above n 161, 424.

  [329] There may be two non-dysfunctional reasons for this. Politeness encourages us to keep off other people's grass. Thinly spread over large areas of law we have lots of open space from which to choose our own territory.

  [330] McQueen R, 'Corporate Law and Historical Methodology: A Critical Perspective' (1996) 3 Canberra Law Review 7 quoting Michel de Certeau, The Practice of Everyday Life (Berkeley: University of Californai Press, 1984) 148-9.