The Prose and the Passion

On Crime and the Law, Vol. 66, No. 3, 2007

Villanova Law/Public Policy Research Paper No. 2007-20

16 Pages Posted: 7 Nov 2007

See all articles by Penelope J. Pether

Penelope J. Pether

Villanova University School of Law (Deceased)


This essay takes the late Robert Cover's insight that "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning," and thus that "For every constitution there is an epic" as the starting point for a reading of Australian legal and literary texts about the relationship of the nation and "outsiders," as between constitutional subjects and texts. Ranging from "legal faction" texts Evil Angels (about the "Dingo Baby" case) and "Dark Victory" (about the Tampa incident) and "The Castle", Rob Sitch's filmic satire on the Australian takings clause and the landmark Native Title Decision, Mabo v. Queensland, No 2, to the recent High Court cases Al Kateb, Behrooz, Re Woolley, and Ruhan, it offers a critical account of recent Australian constitutional jurisprudence regarding asylum seekers and "sexually violent predators." The essay argues that this recent High Court jurisprudence offers a radically circumscribed reading of Chapter III judicial power (analogous to Article III judicial power in the U.S. Constitutional context), and offers comparative constitutional law perspectives on problems in U.S. Constitutional hermeneutics.

Keywords: constitutional epic, law and literature, common law constitutionalism, comparative constitutional law

Suggested Citation

Pether, Penelope, The Prose and the Passion. On Crime and the Law, Vol. 66, No. 3, 2007, Villanova Law/Public Policy Research Paper No. 2007-20, Available at SSRN:

Penelope Pether (Contact Author)

Villanova University School of Law (Deceased)

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