Nicholas Aroney

The University of Queensland, Australia, TC Beirne School of Law, Faculty Member

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Nicholas Aroney is Professor of Constitutional Law at The University of Queensland and an External Fellow of the Centre for Law and Religion at Emory University. In 2010 he received a four-year Future Fellowship from the Australian Research Council to study comparative federalism and in 2021 he secured an Australian Research Council Discovery Grant to investigate the nature and function of constituent power in federal systems. He has held visiting positions at Oxford, Cambridge, Paris II, Edinburgh, Durham, Sydney, Emory and Tilburg universities.

Professor Aroney has published over 150 journal articles, book chapters and books in the fields of constitutional law, comparative constitutional law and legal theory. He has led several international research projects in comparative federalism, bicameralism, legal pluralism, and law & religion, and he speaks frequently at international conferences on these topics. His most notable publications in these fields include: The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009), Shari'a in the West (Oxford University Press, 2010) (edited with Rex Ahdar), The Future of Australian Federalism (Cambridge University Press, 2012) (edited with Gabrielle Appleby and Thomas John), The Constitution of the Commonwealth of Australia: History, Principle and Interpretation (Cambridge University Press, 2015) (with Peter Gerangelos, James Stellios and Sarah Murray), Courts in Federal Countries (Toronto University Press, 2017) (edited with John Kincaid) and The Routledge Handbook of Subnational Constitutions and Constitutionalism (Routledge 2021) (edited with Patricia Popelier and Giacomo Delledone).

Professor Aroney is a former editor of The University of Queensland Law Journal (2003-2005) and International Trade and Business Law Annual (1996-1998), and a past secretary of the Australian Society of Legal Philosophy. He is a past member of the Governing Council and the current Co-Convenor of the Queensland Chapter of the Australian Association of Constitutional Law. He is also a member of the editorial advisory board of the American Journal of Jurisprudence, Public Law Review, Australian Journal of Law and Religion and International Trade and Business Law Review. He has made numerous influential submissions to government and parliamentary inquiries and in 2013 undertook a review of the Crime and Misconduct Act for the Queensland Government with the Hon Ian Callinan AC QC, a former Justice of the High Court of Australia. In 2017 he was appointed by the Australian Prime Minister to an Expert Panel to advise on whether Australian law adequately protects the human right to freedom of religion.

Professor Aroney joined the Law School in 1995 after working with a major national law firm and acting as a legal consultant in the field of building and construction law.

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Papers by Nicholas Aroney

The Rise and Fall of Human Dignity

SSRN Electronic Journal, 2020

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Courts in Federal Countries : Federalists or Unitarists?

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Federalism

Christianity and Constitutionalism

Federal forms of government have a lineage reaching deep into the Middle Ages and classical antiq... more Federal forms of government have a lineage reaching deep into the Middle Ages and classical antiquity. Federalism also has an important historical relationship with Christianity, especially Reformed Christianity. The story of the development of federalism runs in three intermingling streams. The first of these streams is legal and is particularly concerned with the institution of the international treaty. The second stream is political and particularly concerns the institution of the confederation. The third stream is religious and particularly concerns the institution of the covenant. This chapter offers an archaeology of federalism based on an investigation of each of these three streams. As will be seen, the three streams intermingle so much that they often become virtually indistinguishable, for federalism is simultaneously a profoundly legal, political, and religious phenomenon.

The New Hope Case: Equality and Freedom: A Delicate Balance: The Case of Australia

Federalism: A Legal, Political and Religious Archeology

SSRN Electronic Journal, 2020

The story of the development of federalism runs in three intermingling streams. The first of thes... more The story of the development of federalism runs in three intermingling streams. The first of these streams is legal and is particularly concerned with the institution of the international treaty. The second stream is political and particularly concerns the institution of the confederation. The third stream is religious and particularly concerns the institution of the covenant. This paper offers an archaeology of federalism based on an investigation of each of these three streams. As will be seen, however, the three streams intermingle so much that they often become difficult to distinguish. For federalism is simultaneously a legal, political and religious phenomenon.

Territorial politics and the federal frame in Australia

Australian politics is organised in profoundly territorial terms. The fundamental reason for this... more Australian politics is organised in profoundly territorial terms. The fundamental reason for this is the essential role played by the constituent states within the Australian federal system. Historically, the states predated the federation and were the presupposition of its very existence. At the time of federation they offered the essential and unavoidable political infrastructure upon which entire federal edifice depended, and continues to depend. The constitution entrenched their role and, despite important tendencies towards centralisation, the Australian states cannot be easily abolished or sidelined. Australia’s party system reflects and reinforces the existence of a politics which is both national and regional in its dimensions. Moreover, and underlying diversity between Australia’s states, regions, cities and towns, underscores the need for the kind of policy diversity and policy responsiveness that the Australian federal system makes possible.

Natural law and federalism

Research Handbook on Natural Law Theory, 2019

15. Comparative Observations and Conclusions

The Griffith doctrine: Reservation and Immunity

Australia’s Federal Framework

The Oxford Handbook of Australian Politics, 2020

Australia’s federal framework is fundamental and pervasive. This chapter explains the federal log... more Australia’s federal framework is fundamental and pervasive. This chapter explains the federal logic of the Australian Constitution, discusses the evolution of the federal system in light of the constitutional framework, and critically evaluates attempts to reform the system. It is argued that, while the Constitution was designed to allow a degree of flexibility in the operation of the federal system, the constitutional, legislative, and administrative changes that have been introduced, frequently supported by the High Court’s centralizing interpretations, have sometimes contributed to problems in the practical functioning of the system rather than ameliorating them. The result has been a path dependency that makes it difficult to institute reforms that would improve the operation and effectiveness of Australian federalism.

Christianity, Sovereignty and Global Law

SSRN Electronic Journal, 2020

This paper, written as a chapter for a forthcoming book on Christianity and Global Law edited by ... more This paper, written as a chapter for a forthcoming book on Christianity and Global Law edited by Rafael Domingo and John Witte Jnr, scrutinises the idea of global law from the perspective of Christian political theology by focusing on the concept of sovereignty. For the purposes of the paper, “global law” is defined as the law of a universal and compulsory world community which consists essentially of individuals. The paper is organized around three questions: (1) What is sovereignty? (2) What is wrong about sovereignty? (3) What is right about sovereignty? In answering the first of these questions, I focus on the nature and extent of state sovereignty as understood in contemporary international law. In response to the second question, I turn to the highly influential theories of sovereignty advanced in the late sixteenth and mid-seventeenth centuries by Jean Bodin and Thomas Hobbes as examples of the logic of sovereignty when developed in its most absolute form. I argue that underlying the modern idea of sovereignty is a theological concept of absolute power (potentia absoluta), first attributed to God, and later to popes, kings, and states. This gives rise to a theological critique of state absolutism and an alternative account of sovereignty that I develop in response to the third question. Here I focus on the political theory of Johannes Althusius, an early seventeenth-century jurist who developed a pluralized conception of sovereignty deliberately in contradiction to Bodin’s absolutism. Building on Althusius, I argue that political authority, understood as legitimate jurisdiction, is a status rightly possessed in different degrees and in different respects by the ruling institutions of many different forms of human community, from the smallest and most local, to the largest and most global. Sovereignty is a term that can be used to designate this kind of rightful but limited authority, and understood in this sense, it represents something very important standing in the way of a concept of global law premised on a compulsory universal community consisting essentially and simply of individuals. To conceive global community in this way is to posit a kind of “simple space” in which there is one center of rule exercised over the multitude of individuals, instead of a “complex space” in which there are multiple locations of authority operating simultaneously in different places and in different respects. It is this kind of complex and multifaceted space that is a more appropriate model underlying any law having a global reach or universal scope.

The Social Ontology Of Human Dignity

SSRN Electronic Journal, 2019

The Universal Declaration on Human Rights (1948) begins with the striking claim that the ‘recogni... more The Universal Declaration on Human Rights (1948) begins with the striking claim that the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Rather than use words that individualise and universalise in abstract terms, the Declaration describes humanity as an extended family, knit together by ties that are personal, natural and communal. Despite this, the rights enshrined within the Declaration and other international human rights instruments have generally been understood in a way that prioritises the rights of individuals, and the concept of human dignity is often cited in a way that connects it with individual autonomy. However, a close examination of these instruments shows them to presuppose a social ontology in which human beings are not merely isolated individuals, but constituted as members of communities at familial, local, regional, national and global scales. An exploration of this communal embedding of the dignity of all members of the human family has implications for how international human rights are understood, particularly in controversial cases where the rights of human beings conceived as individuals have to be harmonised with the rights of human beings living in community with others. A better understanding of the social ontology presupposed by international human rights law is therefore a prerequisite for addressing problems of harmonisation of this kind. Noting that the individualistic aspects of human rights law are often said to reflect Western influence, this paper traces the historical development of the idea of human dignity in classical, medieval, reformed and modern Western thought. It is argued that while the older classical conception of dignity understood it to be an attribute that set some classes or groups of human beings apart from others, the idea was transformed under the influence of Stoic philosophy and especially Christian theology into an attribute possessed by all human beings by virtue of their created nature. In the early and later medieval and reformed perspectives, human dignity was understood to be an attribute of all human persons, conceived not as autonomous and atomised individuals, but as embedded in a great variety of associations and communities. Moreover, in the classical, medieval and reformed conceptions alike, dignity was considered to be something that can never be separated from one’s moral responsibilities as a human being called upon to perform the duties associated with one’s particular callings and stations in life. It is only in certain modern conceptions that human dignity has become disassociated from the qualities of one’s character and from the associations and communities in which human beings are naturally embedded. It follows that international human rights law, insofar as it recognises a social ontology which is simultaneously individualistic, associational and communal, is not entirely oriented to modern Western atomising conceptions of human dignity, but embraces older Western and possibly wider non-Western conceptions as well.

A federal commonwealth

The Constitution of a Federal Commonwealth

The Structure of Constitutional Revolutions: Are the Lange, Levy and Kruger Cases a Return to Normal Science?"(1998)

UNSWLJ

Legal commentators have of late been inclined to see legal revolutions and paradigm shifts in Aus... more

Types of Federalism

Max Planck Encyclopedia of Comparative Constitutional Law, 2016

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2. The High Court of Australia: Textual Unitarism vs Structural Federalism

Courts in Federal Countries, 2017

Federalism and courts: research avenues

A Research Agenda for Federalism Studies, 2019

Federalism and courts intersect in two important ways. The first concerns court adjudication of c... more Federalism and courts intersect in two important ways. The first concerns court adjudication of constitutional disputes about the structure and composition of federal and state institutions of government and the distributions of power between them. The second concerns the design of court systems within federations, with particular emphasis on their organizational features and allocated jurisdictions at federal and state levels. This chapter reviews the ways in which courts understand the constitutional presuppositions of particular federations, and how those presuppositions shape court interpretations of the governing institutions and distributions of power within federations. The chapter shows how such interpretations bear on the degree of centralization and decentralization within federations and how they can either safeguard or undermine the integrity of each federal system of government. Methodological issues associated with the comparative study of courts in federations are also discussed, and key questions for further inquiry are identified

Upper Houses: Relics or Champions of Democracy?

1 Australian federalism : past , present and future tense

At its inception, the Australian federation was informed by a rich set of ideas about the nature ... more At its inception, the Australian federation was informed by a rich set of ideas about the nature of federalism, and a strong acceptance of both its necessity and its benefits. Today, over one hundred years later, this necessity and those benefits are under question – by Australian politicians, business leaders, professionals, academics and, most importantly, the Australian people. The title of this book suggests that federalism does have a future in Australia, but its chapters explain that it will only have an effective future if it is reformed and the reform is both well-informed and coherently designed.

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The High Court of Australie : A Federal Supreme Court in a Common Law Federation

La Haute Cour joue plusieurs roles fondamentaux au sein du systeme federal australien. En plus de... more La Haute Cour joue plusieurs roles fondamentaux au sein du systeme federal australien. En plus de constituer la juridiction d’entree dans une serie de matieres – dont celles relatives a l’interpretation et l’application de la constitution, elle est la juridiction d’appel pour toutes les cours supremes des etats federes et les tribunaux federaux inferieurs. Ceci signifie que la Cour est l’arbitre final s’agissant des differends portant sur la constitutionnalite des lois issues tant de la federation que de ses etats. La Haute Cour est constituee de sept juges nommes par le gouvernement federal qui exercent leur mandat jusqu’a l’âge de 70 ans. Ce faisant, les juges exercent un pouvoir important et institutionnellement independant des composantes politiques du systeme. Dans ce contexte, la plupart des modifications constitutionnelles en Australie ont ete adoptees en reaction a la tendance qu’ont eu les gouvernements federes a outrepasser leurs pouvoirs constitutionnellement etablis. T...