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The latest issue of the Australian Law Journal (Volume 99 Part 9) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

Editors for this special issue: Dr Harry Hobbs and Associate Professor Stephen Young

Articles

Pseudolaw beyond the Bar – Stephen Young and Harry Hobbs

For this special edition, we invited a diverse range of legal and non-legal scholars to examine key and emerging issues relating to pseudolaw of relevance to the legal profession. The collection investigates lawyers who engage in pseudolaw, the management and regulation of litigants who engage in such argument, and the impact of pseudolaw on family law proceedings, and the administration of justice. It also presents analyses of pseudolaw from the fields of applied linguistics, anthropology, and psychology, as well as the reflections from a journalist with significant experience covering pseudolegal adherents. In this introduction to the special issue, we situate each article and then reflect on three themes that emerge from the collection. As a special edition, this collection presents new research that should bring additional attention to this phenomenon.

Pseudolaw behind the Judgements: The Hidden Impact on the Administration of Justice – Joe McIntyre, Stephen Young, Madeleine Perrett and Harry Hobbs

Media attention, scholarship and case law on pseudolaw has grown significantly over the last five years. However, the scale of the issue remains unclear, relying largely on anecdote and imperfect proxies. This article argues that to understand the scale and impact of the phenomenon, it is necessary to go beyond publicly available documents, like published judgments, and to hear from the judicial officers and administrators dealing with it on a daily basis. The article presents recent empirical data on interviews with judicial officers and staff in South Australia to understand the impact and prevalence of pseudolaw. It highlights the widespread ways that pseudolaw impacts the good administration of justice.

Mirror Image Enemies: Pseudolaw and Legal Representation in Canada – Donald J Netolitzky

Pseudolaw is a false vigilante legal system that has spread internationally, but remains highly conserved in content and general form. While most persons who advance pseudolaw – pseudolaw adherents – operate in court as self-represented litigants, sometimes lay persons or even lawyers will appear and argue these not-law concepts. This article reviews how pseudolaw representation has emerged in Canada, and explores court and regulatory steps that respond to this issue. Canada’s experiences provide useful “lessons learned” in managing pseudolaw representation and regulation of “rogue lawyers” who adopt these not-law concepts in Australia and elsewhere.

Pseudolaw and Family Law – Henry Kha and Harry Hobbs

This article explores the impact of pseudolaw in family law matters in Australia. While pseudolegal arguments have long appeared in Australian courts, their use in family law –particularly in custody disputes – has recently surged. Drawing on an illustrative survey, the article identifies a marked rise in sovereign citizen rhetoric in the years following theCOVID-19 pandemic, especially in parenting matters involving self-represented litigants. These arguments often emerge in emotionally charged disputes, where individuals in crisis may turn to pseudolaw. Alarmingly, some groups have sought to establish alternative court systems to exert control in custody conflicts, raising concerns about child safety. The article concludes by considering the implications of pseudolaw for the family law system and proposes initial strategies for legal professionals and courts to address this challenge.

Winning by Losing? Critical Moments and Communicative Expertise in Pseudolaw – An Applied Linguistic Analysis – Jonathan Crichton, Fiona O’Neill and Joe McIntyre

This article reports on an interdisciplinary investigation into the rise and courtroom implications of pseudolaw in South Australia, combining legal and applied linguistic perspectives. Pseudolaw, rooted in anti-authoritarian beliefs, government distrust, and conspiratorial thinking (eg, sovereign citizens), originated in the United States before spreading internationally, including to Australia. Though typically dismissed as nonsensical in legal scholarship, pseudolaw rhetoric specifically targets the legitimacy of the legal system, increasingly burdening Australian courts and complicating courtroom interactions. The study comprised a theme-oriented discourse analysis of an archetypal pseudolaw courtcase. By reframing pseudolaw as an interactional phenomenon, the research (1) highlights adherents’ deliberate use of communicative strategies aimed at subverting, manipulating, escalating, or intimidating courtroom proceedings, and (2) identifies developing strategies on the part of judicial officers and court personnel to safeguard procedural justice, fairness, and mitigate broader societal risks associated with pseudolaw’s rise.

Differentiating Indigenous Sovereign Citizen Claims From Discourse on Indigenous Sovereignty in Australia: An Anthropological Insight – Pascale Taplin, Tahnee Innes and Nicolas Peterson

We examine the basis on which Indigenous sovereign citizen claims can be distinguished from comments on Indigenous sovereignty, where both arguments challenge the legitimacy of institutions of state and the courts. We track the divergent cultural assumptions and preoccupations of two strains of influence in these discourses – American individualism and Australian Indigenous laws and customs. Sovereign citizens are preoccupied with a contest over constraints to their personal freedom by external authority. Conversely, contestations of the legitimacy of the Australian state and legal institutions based on Indigenous law are preoccupied with morality and justice, and made on behalf of a wider community. This latter embeddedness in community necessarily constrains individual freedoms, and is reflected in the exercise of agency and the articulation of grievance. It is in this sense thatAmerican-informed sovereign citizen claims are in tension with the arguments upon which claims to Indigenous sovereignty are mounted.

Irrationality and Mental Illness: A Psychiatric Perspective on Sovereign Citizens, the Querulous and the Fixated – Dr Justin Barry-Walsh

The obstinate denial of social convention and apparent consensual reality manifest in the Sovereign Citizens who come into contact with the courts can appear irrational, and raises questions about whether they may be mentally ill. Similarly, the overlapping group of the querulous, who persist in pursuing complaints through the law, often appear irrationally obdurate and mistrustful. In this article, I consider both what is known about the psychiatry of people who present in such a way and the role of forensic psychiatry in this space. In doing so, I will attempt to explain psychiatry’s thinking around delusions and draw upon notions emerging from the threat assessment field, including fixation and grievance.

Media Experiences Covering Pseudolaw – Ariel Bogle

Judges and legal professionals encounter pseudolaw in adversarial proceedings, which typically do not examine the reasons why adherents have adopted pseudolaw. However, journalists investigate these issues. In this piece, Ariel Bogle reflects on what she has learned in reporting on pseudolaw, the challenges that arise from potentially amplifying their messages and the responsibilities owed to those reported on. She also interviews four journalists in the United States, Germany and Australia, demonstrating that her experiences and concerns are shared globally.

Court and Institutional Responses to Pseudolaw and Pseudolaw Users – Donald J Netolitzky and John D Rooke

Pseudolaw is an internationally distributed dissident legal system embedded in a conspiratorial conceptual matrix and ahistorical narrative. While entirely unsuccessful in court, pseudolaw and its users represent both a social threat and a stressor on judicial, law enforcement, institutional and government resources. Fortuitously, pseudolaw is curiously static and has not evolved in decades. That, and the generally parallel social orientation and objectives of pseudolaw host populations, provides a powerful opportunity for “mainstream” actors in different jurisdictions to exchange “lessons learned” that manage pseudolaw and pseudolaw’s users. This article collects anti-pseudolaw strategies and techniques employed by Canadian institutions, but especially courts, that respond to pseudolaw by: (1) establishing authoritative law-based counter-narratives to pseudolaw,(2) disrupting pseudolaw scripts with unexpected events, and (3) early intervention and response to deployed pseudolaw. Court judgments are the primary response to pseudolaw. The preferred form and content for these social rebuttals are also discussed and reviewed.

For the PDF version of the table of contents, click here: New Westlaw Australia – ALJ Vol 99 No 9 Contents

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