John C. Halez has a thought provoking article on Gary's site where he writes: "no legal system is autonomously self-subsistent and self-regulating, but rather all legal systems will contain areas of indeterminacy, unpredictable and depending on historical circumstances and conditions, which must be 'supplemented' by political decisions."
One of the hard things about discussing Schmitt and Agamben is the definition of the 'political'. Both arguments hinge around that. Schmitt described the political as the singular and absolute authority, while Agamben describes it as where the nexus between violence and law is broken.
The Killfile has an interesting article on the issues surrounding Senior Sergeant Chris Hurley and the death of Mulrunji Doomadgee. Killfile writes that he suspected there was not enough evidence in the case to overcome reasonable doubt and this may have been why the Queensland DPP did not move to prosecute. So from a legally administrative point of view, and the use of public funding in what was pre-determined to be a case that was unwinnable, the decision was a rational one. However:
There is another factor to take into account in this case, which is that the deceased was an Aboriginal man who died in police custody. Given the history of Aboriginal deaths in custody in Australia, particularly in the North, it is important that justice not only be done in this case, if possible, but be seen to be done.The seen to be done matches John's description of the legal system's indeterminacy. A political decision was made which gazumped the administrative probabilities of a legal outcome.
