In the context of prolonged occupation, it has long been argued that the Israeli Supreme Court (ISC), in High Court of Justice (HCJ) formation, is facilitating the entrenchment of a permanent regime of legalized control by moving away from a model of exception to ordinary civilian jurisdiction over the West Bank. This was recently demonstrated in the Khan-al-Ahmar case, in which a group of settlers petitioned the ISC/HCJ demanding the execution of a pending Israeli demolition order over a school in a Bedouin village in Palestine. The court sided with the army, deferring to a political solution for the transfer of the entire Bedouin community elsewhere. Drawing on existing scholarship and the author’s first-hand impressions of the final hearing, this article interprets the Khan-al-Ahmar case as an illustration of how the exceptional military nature of the occupation has shifted to a permanent regime of legalized control overseen by an ordinary civilian court.
In 2005, the Australian State of Victoria abolished the controversial partial defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. This article analyses post-provocation sentencing judgments, reviewing cases over the 10-year period since the reforms in order to determine whether these concerns have been borne out. The analysis suggests that at the level of sentencing outcomes they have not been borne out, although at the level of discourse the picture is more mixed. While sentencing narratives continue to reproduce the language of provocation, at the same time, post-provocation sentencing appears to provide opportunities for feminist judging – picking up on the spirit of the reforms – which have been taken up by some judges more than others.
This article questions the extent to which calculable numbers are indispensable to the government of conduct. By focusing on the role played by disgust in the government of sexual minorities in Uganda, it provides an account of government by emotion, or affective governmentality. This article draws on the literature on disgust, appropriating elements from the various disciplines and perspectives and bringing them under a Foucauldian umbrella. It explores two techniques through which attempts were made to arouse disgust: the sermon and the tabloid exposé. Although such techniques were performed by agents who operated beyond the state, this article contends that the emergence of the Anti-Homosexuality Act 2014 cannot be accounted for without considering the role played by disgust.
Traditional debates on legal theory have devoted a great deal of attention to the question of the determinacy of legal rules. With the aid of social sciences and linguistics, this article suggests a way out of the ‘determinate–indeterminate’ dichotomy that has dominated the academic debate on the topic so far. Instead, a dynamic approach is proposed, in which rules are deemed to undergo processes of political ‘de-determination’ and ‘redetermination’. To illustrate this, the article uses the example of Article 125 of the Treaty on the Functioning of the European Union, the ‘no bailout’ provision, which played a major role in the management of the Euro-crisis. As will be shown, with the start of the crisis, this provision, whose meaning was once scarcely controversial, became the object of intense interpretative disagreement. As it became politically relevant, the rule also became the site of interpretative competitions, until the intervention of the European Court of Justice disambiguated and redefined its meaning.
This article takes as its subject matter the juridico-political space of the prisoner of war (POW) camp. It sets out to determine the nature of this space by looking at the experience of war captivity by Jewish members of the Western forces in World War II, focusing on the experience of Emmanuel Levinas, who spent 5 years in German war captivity. On the basis of a historical analysis of the conditions in which Levinas spent his time in captivity, it argues that the POW camp was a space of indifference that was determined by the legal exclusion of prisoners from both war and persecution. Held behind the stage of world events, prisoners were neither able to exercise their legal agency nor released from law into a realm of extra-legal violence. Through a close reading of Levinas’s early concept of the ‘there is’ [il y a], the article seeks to establish the impact on prisoners of prolonged confinement in such a space. It sets out how prisoners’ subjectivity dissolved in the absence of meaningful relations with others and identifies the POW camp as a space in which existence was reduced to indeterminate, impersonal being.
This article critically engages with a particular reading of Jacques Derrida’s deconstructive legal theory which argues that his methodology marginalizes engagements with the ‘socio-historical’ of law at best or is incapable of such engagements at worst. After explaining this meta-ethical reading, the piece offers a retort via a broader and more in-depth reading of Derrida’s legal theory. Here the article problematizes the distinction at the core of the meta-ethical reading; this being that Derrida’s work established a mutually exclusive separation between a ‘sociolegal’ critique of law and one considered of ‘critical legal theory’. This separation will be shown to be misleading by firstly referring to Derrida’s essay ‘Force of Law’ and arguing that therein the sociolegal and ‘critical legal’ theories are in fact mutually dependant and that Derrida’s concept of surenchère illustrates this. Secondly, a wider reading of Derrida’s work will then illustrate that such a conceptual binary is incompatible with his deconstructive metaphysical critique. This will be evidenced with reference to what is argued to be the central point of the meta-ethical reading, something which is itself born from Derrida’s work; this being the distinction between la and le politique, ‘politics’ and ‘the political’. With due regard for the history of this important and complicated deconstructive distinction, it will be argued that the reductive reading in the meta-ethical critique does not do justice to the inherent paradox in maintaining a separation between sociolegal theory, la politique, and critical legal theory, le politique.
Determining exactly what ‘British values’ are is a problem with which successive governments have grappled. This article considers in detail the most recent attempt to explicate the meaning of the term through the 2014 fundamental British values (FBV) curriculum guidance for English schools. It suggests that the articulation of FBV included in the guidance conflicts with the United Kingdom’s existing international obligations concerning the teaching of human rights values in schools, arguing that the guidance is a threat to such teaching on two levels: (i) it counters the ethical aims of educating about human rights by facilitating potentially subversive or discriminatory interpretation of the values it promotes and (ii) it is likely to perpetuate anti-human rights sentiment by entrenching, or at least doing nothing to challenge, existing misconceptions and misunderstandings of human rights. Human rights values, by contrast, are rooted in universality and the idea of a common humanity. Couching British values in the broader framework of human rights would therefore not only address much of the current anti-human rights sentiment, but would also be likely to contribute to societal cohesion and harmony to a far greater extent than the vague and potentially discriminatory FBV guidance.
On 15 April 2002, Marwan Barghouti, a high profile Member of the Palestinian Parliament and a close aide of the late Palestinian leader, Yasir Arafat, was arrested and transferred to Israel for trial. On 14 August 2002, he was charged with multiple counts of crimes including acts of terrorism, murder and conspiracy to murder. In the Courtroom in Tel-Aviv, Barghouti was being tried for acts of terrorism, but in the court of public opinion, Israel was using the trial to slander and discredit the Palestinian leadership as a bunch of ‘murderous gangs,’ and ‘enemies of all mankind.’ On his part, Barghouti uses the judicial space to go beyond the surface problem of law and legality to the deeper question of occupation – a problem that is at the depth but also all across the normative structure of Israel’s legal order. Through re-signification, the accused becomes the accuser, putting the state of Israel and the occupation on trial. In this article, I consider the ways in which the accused and the accuser repurpose the legal material to produce and disseminate ideas, concepts, and images productive to their respective politics. Attending to the ways in which discourses of occupation, resistance, and terrorism were synchronized with the legal form, the article reflects on how the narratives move from the legal to the political, from the personal to the social, from the local to the global, and from the theological to the political, creating the conditions of possibility for meaning and understanding.
Witnesses rarely testify at trial in China and the courts routinely rely on investigative dossiers to determine the guilt or innocence of the defendant. Shielded from external scrutiny, relatively little is known about how these investigative dossiers are constructed and whether they are truly reliable. To understand the construction process for police cases, ethnography, semi-structured interviews and content analysis of the dossiers have been conducted to explore the formation of evidence during the police investigation. This article reveals that the constructed evidence is subject to manipulation and distortion designed to enhance the incrimination of the accused. With a lack of the functional equivalence in defence construction required to challenge the facts presented in these dossiers, the current criminal justice system in China is structurally weak and fails to function as a truth-finding process.
Since the financial crash of 2008, the strategy of occupation has been widely deployed as a means of expressing and mobilizing political dissent. Within legal studies, responses to this mode of protest have remained wedded to a statist perspective that fails to assess the normative commitments immanent to occupations themselves. Rather than examining the strategy of occupation through a legalistic lens, this article approaches a recent occupation through the theoretical apparatus of the ‘nomosphere’. This term – originally coined by David Delaney but substantially expanded here – allows for an assessment of the spatial, narrative and atmospheric orderings of the Umbrella Movement, a pro-democracy campaign that sustained a 79-day occupation in Hong Kong’s city centre in late 2014. This ‘nomospheric inquiry’ assesses the forms of ordering that animated the movement from within and seeks to foreground the lived and felt reality of the occupation rather than focus on its legalistic or constitutional significance alone.
A legal definition of rape that exonerates an accused who ‘reasonably believes in consent’ is currently in force in a number of jurisdictions in the United Kingdom, Australia and New Zealand. Limited empirical research has investigated community and professional perceptions of the adequacy and scope of this definition of rape. The present study contributes to qualitative research on ‘reasonable belief in consent’ by analysing key themes from 11 focus group discussions with professionals working in the sexual assault sector (counsellors, health professionals, victim/survivor advocates and police officers), legally trained professionals and community members interested in rape law reform. Across these backgrounds, participants expressed dissatisfaction with this definition of rape because the scope for reasonable belief in consent was seen as overly broad. In particular, participants expected that jurors would draw on a presumption of ‘implied’ or ‘continuing’ consent between former sexual partners to find that belief in consent was ‘reasonable’ when the victim did not protest or resist the assault. As a result, many of our participants were critical that the rape definition effectively maintains the onus on a rape victim/survivor to unequivocally demonstrate non-consent. Participants advocated further law reform to give effect to a more ‘affirmative’ or communicative concept of consent.
While critical histories of international law on the interwar period have focused primarily on nationalism, early conceptions of the right to self-determination, and the dynamic of cultural difference, this article brings to bear another dimension that shaped interwar governmentality of legal institutions, namely class subjectivity. How did international institutions manage ‘class’ in a colonial context and at the height of the ‘self-determination talk’ of the interwar period? Through this inquiry, I study the details of the concrete practices of the International Labor Organization (ILO) in one of its earlier missions sent to Egypt in the 1930s. The claimed success of the ILO’s intervention hinged upon shaping a new politics of expertise through law that divided a fluid and hybrid sphere of social activity into rigid and separate domains: the technical and the political.
In contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to cohabitation have amended the boundaries of marriage and fundamental legal categories. A conservative approach to marriage and cohabitation has failed to conserve marriage. We identify a gap, not between law and social life but between law and its prevailing justification, that cohabitants are free to choose to marry or to conclude contracts. Legislative and judicial developments show that this justification fails to persuade. Finally, we read France and Quebec’s approach to cohabitation as symptomatic of an impoverished misreading of the civil law tradition.
This article examines internally displaced women’s narratives of rebuilding their life after displacement, focusing on questions of moral agency and community governance. The data come from a 3-year research project (2010–2013) with internally displaced women in Colombia, during the emergence of a new transitional justice regime. The article finds in internally displaced women’s narratives of the injuries of war, of their own resistance and overcoming, and of their aspirations for the future, concerns that go beyond poverty alleviation and redistribution in peace-building efforts. Internally displaced women’s narratives also engage with questions of ordinary ethics and community governance, describing the loss of moral agency in civil war and its painstaking recovery. This article questions the limitations of transitional justice regimes and peace-building efforts that ignore concerns with the loss of moral agency and community during civil war as well as the role of ordinary ethics in peace building at the grassroots.
In 2013, the Parliamentary Assembly of the Council of Europe passed a resolution on ‘children’s right to bodily integrity’. In the resolution, concerns were expressed for about practices carried out on children without their formal consent. Among these practices, female genital cutting (FGC), non-medical circumcision and ‘normalizing’ surgeries for intersex children were listed among these practices. As a result of the adoption of the resolution elicited, strong reactions, ensued especially from Jewish and Muslim communities, which widely practices male circumcision. Simultaneously, however, intersex activists welcomed the resolution, as it gave legitimacy to their long-standing call to establish a common framework for the evaluation of all invasive medical and surgical practices on children carried out without their informed consent (
The essay explores some recent controversies in British music copyright through the evolving technologies used to perform or play music in the courtroom. Whilst the conceptual tension between cases has caused doctrinal anxiety about the effect of popular music in copyright, the essay contends that the recent stream of music copyright cases can be considered from a historical perspective, taking into account the tools, materials and experts as they featured in court. In doing so, the essay connects a history of legal expertise to the emergence of new technologies whilst arguing that legal knowledge about music copyright was, in fact, stabilized in the courtroom.
This article explores legal knowledges and surveillance in residential condominiums, a form of property ownership and collective governing arrangement that is proliferating globally. Drawing from extensive empirical qualitative study of this realm in Toronto, Canada and New York, USA, including interviews with condo board members, owners and industry representatives, we map various legal knowledges and forms of surveillance and how these relate to condo governance and condo life. We demonstrate how surveillance is enabled by various legal knowledges flowing into the condo world, including those stemming from an evolving condo statute in the form of ‘counter-law’, but also from civil law, municipal law and criminal law. We show these legal knowledges have spawned video surveillance, key fobs, human surveillance, reserve fund studies, financial audits and safety inspections that together form a governing assemblage of private actors. This surveillance is largely focused on board and owners’ practices in relation to financial viability and property value, which has accompanied the condo becoming foremost an investment rather than a residential community. Much relevant legal knowledge and surveillance is increasingly commodified rather than developed or provided by the community, thus underscoring that the condo is an ever expanding conduit for the flow of such commodities. The article concludes with a discussion of several implications of this analysis, including the notion that the condo world may be experiencing a spiral of more and more law and surveillance.
Considerable scholarly attention has been paid to a range of criminal behaviours that are perpetrated with the aid of digital technologies. Much of this focus, however, has been on high-tech computer crimes, such as hacking, online fraud and identity theft, or child exploitation material and cyberbullying. Less attention has been paid to ‘technology-facilitated sexual violence’, where new technologies are used as tools to perpetrate or extend the harm of a sexual assault, extend control and abuse in a domestic violence situation, or distribute sexual or intimate images of another without their consent. In this article, we focus on the scope and limitations of criminal legislation for responding to these varied but interconnected gendered harms. We argue that although there have been some developments in a range of international jurisdictions, particularly relating to the phenomenon of ‘revenge pornography’, much more needs to be done both within and beyond the law. Whilst we support the intervention of the criminal law, we argue that equal attention must be given to policies and practices of educators, law enforcement agencies, service providers, online communities and social media networks to fulfil the promise of equal and ethical digital citizenship.
The commercial seal hunt has faced significant opposition through campaigns and public opinion. Based on this opposition, the European Union (EU) adopted a regime in 2009, effectively shutting down the EU market for commercial seal products. This ban appears to be based on a European moral standard relating to the welfare of animals, and the EU has successfully defended this claim under the Dispute Settlement Process of the World Trade Organization (WTO). This article critically examines whether such a moral standard exists or whether it is merely an opinion without deeper moral contexts. It further discusses the problems relating to drawing moral conclusions based on ‘public opinion’ and responses to a possible accompanying ‘moral standard’. The article delves into the legal dimension of a ‘European morality’ and discusses in how far moral concerns have been dealt with under the WTO and before EU Courts. It becomes evident that whilst arguing for a European moral standard under the WTO, the EU has shown in European case law that the determination of moral standards rests with the nation states.
This article explores the availability of discourses of victimhood to political actors who aim to justify violence and mass atrocity in the name of those victims. Arguing that the label of the ‘victim’ is equally available for distortion and political capitalization as the label of the ‘criminal’ or the ‘terrorist’, this article reflects on the role of the victim in violence and processes of criminalization. Examining the rhetorical tendencies and strategies of both the state and the Liberation Tigers of Tamil Eelam in the Sri Lankan civil war, this article describes how the victim was categorized by both sides. This article argues that these categorizations, which simultaneously draw on respective collective memories of victimization are crucial to the manner in which the state’s purported process of post-war ‘reconciliation’ is created and politicized and how victims are included in such a process. Interrogating the post-war landscape of militarization and repression in the country’s Tamil-dominated Northeast, this article also examines new configurations of Tamil victim discourses and their potential as a tool of political agency.
This article attempts to uncover the discursive practices that have framed recent debates on prostitution in the Republic of Ireland. As Ireland prepares to introduce Swedish-style laws, which criminalize the purchase of sexual services, we are particularly interested in interrogating the dominant construction of prostitution in recent policy debates and consultations. Taking these spaces as sites for the reproduction of discursive and material practices, we employ methods of critical discourse analysis through Carole Bacchi’s (1999) ‘What’s the problem represented to be’ approach to question: How is prostitution problematized in Irish law and policy? We argue the representation of prostitution in neo-abolitionist discourse in Ireland operates through gendered and racialized assumptions about sex workers and migrant women. The material consequences of this have implications not only for current prostitution law and policy proposals but also for wider feminist spaces in Ireland.
This article offers a comprehensive analysis of the historical development of the penal fine as a sanction from the point of view that the changing meaning of money influences the perceived appropriateness of fines as a punishment for every type of offence, or only certain offences. As it is shown here, a series of associations based on the idea of money, its essence and its capabilities had a profound impact on modern European legal culture. The different perception of the significance of money in contrast to freedom explains the rise of imprisonment in the 19th century. The present use of fines to punish less serious crimes and misdemeanours within the criminal law is mainly a direct consequence of the development of money and its characteristics of impersonality and interchangeability since the 19th century.
Residents of pollution hotspots often take on projects in ‘citizen science’, or popularepidemiology, in an effort to marshal the data that can prove their experience of the pollution to the relevant authorities. Sometimes these tactics, such as pollution logs or bucket brigades, take advantage of residents’ spatially ordered and finely honed experiential and sensory knowledge of the places they inhabit. But putting that knowledge into conversation with law requires them to mobilize a new, ‘foreign’ set of tools, primarily oriented to the observation, measurement and sampling of pollution according to conventional scientific standards. Here, I employ qualitative empirical methods in two case studies of communities ‘downwind’ of Canada’s contested tar sands region to demonstrate that the knowledge that is crucial to these citizen science strategies is not only local, situated and experiential in origin but also collectively generated and held. I draw on the notion of transcorporeality, emanating from feminist theory of the body, to demonstrate that the knowledge offered to law through these efforts often represents a fluid merger of experiential and conventional ways of knowing, posing a productive challenge to the strictly positive notions of science and evidence dominant in legal proceedings.
Global imaginations on human trafficking have been captured by a robust mythology that constructs the consenting Third World sex worker as simply a victim of trafficking for sexual exploitation. This anti-trafficking discourse has influenced Cambodia’s legal reform, which has resulted in an increase of abuse against sex workers and has denied Cambodian women their right to marry foreign men. Despite evidence indicating the diversity of the sex industry and its correlation to different levels of sex workers’ autonomy, decision-makers have failed to revise the anti-trafficking framework to reflect the reality of the divergent lives of women who engage in sex as a livelihood.
Marriage law links the private and the political, connecting the aspirations of individuals to the regulatory ambitions of the state. Marriage has significant social and cultural importance, but the assumptions of stability and care it entails are also useful to government. As a result, marriage law has, both historically and in the present, been offered as the solution to a range of social problems. Using Ireland as a case study example, this essay focuses on the problems that marriage law reform has attempted to address and the political frameworks within which reform took place. It suggests that marriage law is a technique of government that aims to encourage marriage performance in the interests of economic and social stability.
This article interrogates the premise that the Civil Service (Special Advisers) Act (Northern Ireland) 2013 (SPAD Act) serves victim interests in Northern Ireland. It draws on theoretical literature from the fields of transitional justice and victimology as well as empirical data relevant to the act, to critically evaluate the practical outworkings of the SPAD Act as distinct from the politically charged rhetoric that accompanied its initiation and passage. In doing so, the article contends that the SPAD Act moves political disagreement over the issues of victimhood and wrongdoing in Northern Ireland onto a formal legislative footing. The article critiques the terms ‘innocent victim’ and ‘justice’ within the confines of the SPAD Act debate and argues that the narrow and divisive approach to these concepts has created both a post-conflict hierarchy of victimhood and a hierarchy of perpetrators that sustains and fuels disagreement over the past in the North of Ireland.
This article provides a theoretically grounded critical analysis of how the Belgian and the Dutch legal systems are addressing new kinship formations through the production of new legal terminology. As Belgium and the Netherlands are at the forefront of legal recognition of minority sexualities and emerging forms of relatedness, statutory Belgian ‘co-motherhood’ and Dutch ‘duo-motherhood’ for ‘lesbian parents’ (both enacted in 2014) cast some light on how European state family laws and policy frameworks are likely to evolve vis-à-vis the multiplication of new family formations. After tracing the developmental trajectory of these new family law categories and their connection to ordinary language categories, the article claims that legal labels are hardly merely descriptive, for they exert contradictory effects of recognition, regulation, normalization and exclusion. By foregrounding the potential frictions between ‘kinship-in-action’ and ‘kinship-in-the-books’ and the possible drawbacks of top-down statutory interventions, the article contends that, when based on conventional family categories, legal kinship terminology runs the risk of foisting pre-given narratives upon emerging kinship formations, which would eventuate in the normalization of alternative realities. The article concludes by drawing a parallelism between partnership labels and parenthood labels and by advocating the need for deeper ethnographic research before new legal kinship labels are crafted.
In this article, we draw on our experiences of law reform in Ireland to explore how to create a definition of consent to sex that is inclusive of people with cognitive disabilities. Using critical disability studies and feminist theory, we set out the context in which capacity to consent to sex law is currently operating. We critique the law on the basis that it holds people with cognitive disabilities to a different standard of sexual decision-making than others. We tell the story of the movement in Ireland to reform such law and our experiences working collaboratively with artists, disabled people’s organizations and parliamentarians to achieve change.
Since the declaration by the United Nations that awareness raising should be a key part of efforts to combat human trafficking, government and non-government organizations have produced numerous public awareness campaigns designed to capture the public’s attention and sympathy. These campaigns represent the ‘problem’ of trafficking in specific ways, creating heroes and villains by placing the blame for trafficking on some, whilst obscuring the responsibility of others. This article adopts Bacchi’s ‘what is the problem represented to be?’ framework for examining the politicization of problem representation in 18 anti-trafficking awareness campaigns. It is argued that these campaigns construct a narrow understanding of the problem through the depiction of ‘ideal offenders’. In particular, a strong focus on the demand for commercial sex as causative of human trafficking serves to obscure the problematic role of consumerism in a wide range of industries, and perpetuates an understanding of trafficking that fails to draw a necessary distinction between the demand for labour, and the demand for ‘exploitable’ labour. This problem representation also obscures the role governments in destination countries may play in causing trafficking through imposing restrictive migration regimes that render migrants vulnerable to traffickers.
This article highlights and interrogates the significance of dominant representations of international crime and international criminal justice. It positions international criminal justice as a discursive, as well as practical, global project and is concerned, in particular, with the relational and ethical implications of the way in which international crime and justice are thought about, spoken about and portrayed. I argue that dominant representations of international crime and international criminal justice serve to map the international as a site of crime, justice and community. A key contribution of this article is to explicate the uniquely ‘crimino-legal’ nature of this site or sphere, by illustrating its criminological, legal and spatial characteristics. I then reflect on the ethical and relational limits of this arena of sociolegal engagement, as well as emphasising the importance of continued academic attention to the representation and imagination, as well as practice, of international criminal justice.
This article traces different aspects of the present-day juridification and judicialization of indigenous lives using the example of the Tupinambá Indians of north-eastern Brazil. The Tupinambá’s identity is being increasingly bureaucratized by public administration and is constantly being questioned by public and private agents to deny the Tupinambá’s constitutional land rights. In the course of the still ongoing process of the demarcation of the Indigenous Territory Tupinambá de Olivenca, indigenous inhabitants are facing a plethora of civil actions, and Tupinambá leaders are being persecuted and criminalized by the Police and the judiciary. This article exposes the legal intricacies of possessory actions against indigenous people in Brazil and discusses the different acts and attitudes of the actors of the Brazilian ‘juridical field’ as regards the indigenous rights. It suggests a view of law, law enforcement and law suits as means of social sense making, that is, a public staging, interpretation, imagining and ‘mapping’ of Brazil’s ‘indigenous question’, which has, ultimately, to be legitimized by society at large.
The United Nations Trafficking Protocol establishes the ‘abuse of a position of vulnerability’ as one of the means used to traffic persons. This term, however, was not properly defined, leaving it open for multiple interpretations, many of which do not focus on the well-being of the supposedly vulnerable victims. Through a case study of how (potential) Brazilian victims of trafficking are dealt with in Brazil and (to a lesser extent) outside the country, this article focuses on how ‘vulnerability’ is often interpreted as a synonym of strain that leads to deviant behaviour. In this way, the concept is co-opted to enable the punishment or restraint of certain people (particularly women from developing countries) who are considered to be unsuitable to migrate.
Erratum to ‘A changing role for the administrative law of taxation’ by Dominic de Cogan, Social & Legal Studies, 24(2): 251-270, DOI: 10.1177/0964663915572672
On page 267, under the Funding acknowledgments, there should have been the additional acknowledgement:
The author gratefully acknowledges financial support from the Leverhulme Trust.
UK climate change policy is based on the advice of the Committee on Climate Change established under the Climate Change Act 2008. This Committee is an independent, expert agency established as part of the reconceiving of the regulatory state as a response to the neo-liberal critique of older forms of regulation. But the quality of the advice given in the Committee’s recent Fourth Carbon Budget Review is so tendentious as to barely be able to be described as advice at all. This grave shortcoming poses the most serious questions for contemporary constitutional and regulatory processes.
This article traces the unique dynamic of cause lawyering in the context of a settler-colonial situation in which justice is framed ethnically but operates within the framework of liberal democratic institutions, such as the case of the State of Israel presents. It does so through the examination of the work of one of the most prominent Palestinian Non Governmental Organisations (NGOs) engaged in legal activism: ‘Adalah – The Legal Centre for Arab Minority Rights in Israel’. Using interviews with legal activists and scholars in Adalah and beyond, combined with the analysis of legal documents and publications, this article offers an evaluation of the efficacy of legal resistance, addressing its advantages and limits within the Israeli scenario. This article argues that the law has an important role in this struggle; whilst its capacity to affect political change is indeed limited, it should not be dismissed outright. Sometimes the law is one of the few meaningful sources of influence, and much of the time it serves to expose the contradictions in the hegemonic system, thereby uncovering its weaknesses and forcing it to reveal its oppressive nature. Yet, since the utilization of the legal sphere for resistance is a practice found in between submission and subversion, this article analyses the ways in which this tension can be overcome.
This article takes issue with those accounts of the right to freedom of expression that find a zero-sum game between power and freedom. It argues that by marking expression as a legal problematic, the right to freedom of expression regulates the force of an expression, and by doing so governs the (expressing qua juridical) subjects. When the question thus turns onto the subject, the subjects are required to be ‘free in specific ways’ in order to exercise their freedoms in an apt manner. In order to argue out these points, this article analyzes the case law of the right to freedom of expression from the theoretical lens of governmentality. The discussion begins by a reading of a set of cases brought before European Court of Human Rights: Sürek v. Turkey. Later, the dynamics of power and subjectivity are commented upon, by discussing the ways through which expressions merit a legally protected status. Finally, the article focuses on the complex interdependencies the right to freedom of expression form between an expressing subject and its juridical capacities on one hand, and between expressivity and the guarantor of this right on the other.
Socio-economic rights are ethico-political claims to employment, social security, health, education and adequate living standards, the understanding and contestation of which have changed over time. In this article, I examine the first wave of attempts to constitutionalize socio-economic rights in Mexico (1917), Weimar Germany (1919) and, in particular, the Irish Free State (1922). The real politics of constitutionalizing socio-economic rights, I argue, centred on a clash between popular, anti-systemic movements and governments’ attempts to contain the ideals and practices of these movements. In all three cases, escalating popular militancy spurred state constitution makers into proposing socio-economic rights as an alternative to revolution. In the Irish Free State, however, the ruling class’ successful containment – militarily, politically and ideologically – of social movements’ ideals and practices ensured more conservative constitutional forms predominated, emphasizing national identity and private property rights. The critical discourse analysis of the Irish constitution-making process demonstrates the salience of both ‘national’ (core–peripheral) and ‘social’ (capital–labour) relations in determining final constitutional forms of socio-economic rights. For socio-economic rights advocates and scholars today, these findings invite fresh reflection on the limits of claiming rights from the state in a capitalist society.
Women have been at the forefront of protest movements in Arab revolts, and whilst their activism has been the subject of a growing body of scholarly work, there is a paucity of literature on their exposure to sexual assault during demonstrations. This article is an empirical study of the increasing politicization of sexual assault in Egypt’s transition between March 2011 and June 2013, which seeks to contribute to the broader literature on sexual violence in contexts that are politically tumultuous and polarized but are not technically ‘at war’. It draws on the literature on rape as a weapon of war without isolating sexual aggression in protest spaces from the continuum of gender-based violence that is socially, politically and legally embedded in the context of Egypt. The article argues that a number of factors if analysed individually suggest there is no difference in the dynamics of sexual violence in protest and non-protest spaces, however, when taken as a constellation of factors, they suggest a pattern that is politically driven, in particular, when their commissioning and targeting are commensurate with the political deployment of sexual violence identified in the rape as a weapon of war literature.
France’s official republican doctrines preclude public recognition of legal pluralism, whether in the guise of legislative plurality or customary and religious legal orders. This unusually emphatic rejection of legal pluralism stems from an ideology of abstract universalism that translates primarily as a formalistic understanding of equality before the law and thus as a rejection of all identity-based classifications. Equality, in this sense, requires citizens to be subject to identical laws under a single legislative jurisdiction. Yet notwithstanding the republican orthodoxy, French constitutional doctrine has been adapted in recent decades to accommodate various forms of legislative and even jurisdictional pluralism in peripheral regions, particularly in the outre-mer (overseas territories) but also in some parts of the metropolitan territory. In turn, I will argue that the abandonment of strict legislative uniformity can be traced to a wider crisis of French universalism and its conception of rights.
Social authorship ventures involving masses of volunteers like Wikipedia are thought to be a phenomenon enabled by digital technology, presenting new challenges for copyright law. By contrast, the case study explored in this article uncovers copyright issues considered in relation to a 19th-century social authorship precedent: the 70-year process of compiling the first edition of the Oxford English Dictionary (NED) instigated by the not-for-profit Philological Society in 1858, which involved thousands of casually organized volunteer readers and subeditors. Drawing on extensive original archival research, the article uses the case study as a means of critically reflecting on the claims of existing interdisciplinary literature concerning copyright and ‘authorship’; unlike the claims of the so-called Romanticism thesis, the article argues that copyright law supported an understanding of NED authorship as collaborative and democratic. Further, in uncovering the practical solutions, which lawyers considered in debating issues relating to title and rights clearance, the article uses the 19th-century experience as a vantage point for considering how these issues are approached today; despite the very different context, the copyright problems and solutions debated in the 19th century demonstrate remarkable continuity with those considered in relation to social authorship projects today.
How do legal norms travel, spread, and change along the way? This article investigates the travels of one model of criminal responsibility for state violence as part of the global project of transitional justice. Claus Roxin’s model was first published in West Germany 1963 in order to address impunity for Nazi crimes, was not applied in its intended context, made its judicial debut in Argentina in 1985, had a comeback in Germany in 1994, traveled throughout Latin America, and was taken up at the International Criminal Court. This case study leads to three conclusions about the travel of legal concepts. First, the appeal of theoretical concepts has much to do with the context in which they are used. Second, traveling keeps concepts alive and changes them. Third, transitional justice and responsibility practices have become global and transnationalized in ways that highlight broader global inequalities and transnational hierarchies.
This article considers the mutually constitutive relationship between law and geography and relates this back to the issue of minority protection and cultural recognition. Introducing a new method of inquiry, spatio-historical analysis, this article argues that a historical study of a legal and political geography can fundamentally enhance a sociolegal analysis of contemporary structures and processes of governance vested with the aim of protecting and promoting cultural diversity. Using the tribal areas of Pakistan as a case study, this article examines how the colonial history of the tribal areas brings into question its contemporary status in Pakistani constitutional law. It further problematizes the idea that the tribal areas’ unique legal position can be attributed to the state’s recognition and promotion of the Pakhtun community’s right of normative autonomy. This article demonstrates how a spatio-historical model of analysis can reveal previously less visible sites of power and forms of domination that bring into question the historical linking of race and space and the significance of this relationship to questions about appropriate forms and expressions of normative autonomy within liberal societies.
Despite the undercurrents of rights protection in Hong Kong’s juvenile justice procedure, the ultimate goal remains punishment based on welfare needs. Drawing on in-depth interviews with 40 youth defendants and defence lawyers, this article will examine the ways in which youth defendants and defence lawyers negotiate the welfare and justice imperatives of the Hong Kong juvenile justice system and end up accepting the disciplinary welfare model. Publicly funded lawyers have become primarily plea mitigators, assisting the state in seeing to the welfare and ‘the best interests of the child’. A study of Hong Kong will lead to a broader understanding of how a welfare-oriented system can work in a time when juvenile justice systems around the world emphasize human rights, due process and children’s rights.
The Big Society was one of the UK Prime Minister’s flagship policy ideas prior to his election in 2010 and has since become part of the UK coalition government’s legislative programme. A key aspect of the Big Society is to mend ‘societally Broken Britain’ by supporting families, as ‘strong families are the foundation of a bigger, stronger society’. However, in the aftermath of the riots of August 2011 in London and other parts of England, the UK Prime Minister, David Cameron, has suggested that parents of children who regularly truant need to be confronted and challenged and has proposed penalizing parents of truanting children by cutting their benefits. This article considers whether withholding benefits from families is an effective means of tackling antisocial behaviour or does this plan represent an ideological view of welfare recipients as being irresponsible and a commitment to the penalization of the socially excluded? This article will consider whether the Big Society truly offers the prospect of a new approach to young people and families deemed to be ‘in trouble’ or whether the August 2011 riots created the environment for justifying cuts in public spending by shifting responsibility for crime and crime control from the criminal justice system onto vulnerable young people and low-income families.
The nexus between property and subjectivity is at stake in various pressing contemporary debates, two of the most pertinent being on the separation of human body material into the status of property, and on the rapidly changing ways we think of virtual entities and places in proprietary terms. This intersection of questions of ownership and of personhood has naturally provoked a necessary discussion on the biopolitics of property. This article seeks to examine Roberto Esposito's reflections on property in order to develop a claim that there is a biopolitical mechanism not merely intrinsic to contemporary legal property relations but also rooted in the very structure of orthodox property theory that may be identified in the likes of Locke, Hegel and Kant. His work in this area allows us to understand the contradictions embedded within the liberal model of property rights as well as the scale of the intellectual challenge present in reimagining a more radical relationship between property and the subject.
This article examines three judicial decisions in three different jurisdictions involving niqab-wearing women in courtrooms. Particular emphasis is paid to the Canadian Supreme Court case of R v. NS in which a sexual assault complainant wanted to wear her niqab while testifying. The uniquely challenging context of sexual assault, which has garnered much feminist attention and reform internationally, is considered. It is argued that serious consideration must be given to the multiple rights of Muslim women by reassessing the traditional use of demeanor evidence. Some judges in these cases attempt to be inclusive of niqab-wearing women in accordance with policies of multiculturalism, yet they do not go far enough in protecting Muslim women’s rights. Other judges refuse to accommodate the niqab entirely. This troubling analysis parallels attempts made to exclude niqab-wearing women from public spaces in Canada and permits dubious objections that certain requests for accommodation have gone too far.
This article investigates how land users perceive laws restricting deforestation and forest degradation, notably Brazil’s National Forest Code, and how legal meaning emerges as place specific to influence their legal compliance. Interviews were held with land users in Acre state, a municipality with high rates of deforestation located in the forest frontier of the Brazilian Amazon. Critical legal geography was applied as a theoretical framework to investigate the ways in which legal meaning emerges in and through that social context. This research finds that non-compliance is associated with pervasive conditions of social stress combined with lived experiences of contradictory legal processes, including shifting legal discourses and inconsistent local law enforcement. In such social contexts, local legal meaning associates forest conservation laws with socio-economic and legal inequality and the reinforcement of structures of social exclusion.
Neo-liberal thought has for some time been shaping policy outcomes in many parts of the world. According to the neo-liberal frame, the economy functions as an internal limit on government. Scholars of comparative constitutional law mostly are disinterested in seeking out evidence, both inside and outside of states, of neo-liberal values being channelled by constitutionally relevant actors and institutions. Recent work in comparative property rights, purporting to be attentive to culture and context, is taken up by way of example. Turning subsequently to Foucault’s lectures on biopolitics, neo-liberal thought is understood as productive of new forms of legality, like international investment law, and of new subjectivities, such as one that conjoins liberal rights with economic interests. Comparative property theorists, by contrast, rely on forms of juridical right disassociated from the global economic context, oddly failing to account for a critical part of contemporary debates over global property rights.
Long-standing debates about the ethical significance of sadomasochism have been raised by two recent legal cases, Pay v. United Kingdom and Mosley v. News Group Newspapers Limited. The judgements in these cases rely on the unexplained assumption that a person’s participation in sadomasochistic activities can call into question their suitability for certain social or public roles. The article evaluates this assumption by referring to developments within feminist and general academic thinking about the normative nature of sadomasochism, focusing in particular on key issues such as whether sadomasochism is sexist or racist and whether participating in sadomasochistic activities reflects negatively on a person’s character. After working through the various theoretical models of sadomasochism as replication, simulation, game playing and context dependent, the article contends that this assumption lacks both a compelling theoretical basis and a practical rationale. Instead, this article argues that law should more fully recognize the critical distinctions that exist between the ethical significance of sadomasochistic activities and the ethical significance of the frameworks of power inequality and narratives of oppression that sadomasochistic activities explicitly invoke or implicitly negotiate.
This article examines the appeal to law as the basis for civic identity and political belonging under conditions of religious diversity. Beginning by assessing the descriptive utility of the concept of ‘secularism’, the article argues that secularism is best approached as a repertoire of moves available in negotiating the relationship between religion and political authority, focusing then on one such move evident in the contemporary project of liberal secularism: the assertion, in the face of the challenges posed by religious diversity, that to belong to the political community means, above all else, to belong to law. This shift of ‘obedience to the law’ to the diagnostic center of civic belonging is explored by turning to two case studies drawn from the legal encounter with Islam in Canada: the debate over official recognition of Sharia law and controversies surrounding the niqab. Having assessed the implications that this move has for the understanding and management of religious difference, the article explains the attractiveness of this symbolic appeal to law – whereby law begins to stand as a kind of synecdoche for the secular state – and assesses the effect of this alignment of law and belonging on the politics of religious diversity.
The article aims to contribute to feminist critiques of the treatment of gendered harm in international law, specifically in relation to socio-economic forms of violence. It focuses on deprivations of subsistence needs, in the form of forced displacement and attacks on homes, livelihoods and basic resources, as one particular type of gendered harm that has remained marginalized in international law. Whilst existing feminist research provides some significant insights into the gendered nature of socio-economic forms of violence, there has yet to be systematic analysis and conceptualizations of such harm. The article argues that the concept of subsistence harms, in foregrounding the interrelated physical, mental and social harms of deprivations of subsistence needs, provides a way both of contesting current concepts and framings of violence and of exploring gendered experiences of forced displacement and attacks on homes, livelihoods and basic resources. Whilst the concept only focuses on one particular type of harm, it could contribute to feminist discourse on gendered harm in providing a framework and language with which to analyse gendered experiences of these harms and therefore providing one way of taking the current debate forward.
This article discusses Hauke Brunkhorst’s account of cosmopolitan statehood. In order to demonstrate its novelty in comparison with other diagnoses of world statehood, the article first sketches out some core ideas on the concept of a world state. This sketch then serves as the basis in order to more closely recall and assess Brunkhorst’s account of the evolution of ‘cosmopolitan statehood’. The article then proceeds to argue that although there is nothing substantially wrong with Brunkhorst’s diagnosis, the hopes he invests in cosmopolitan statehood are probably too optimistic. This optimism results from the fact that he buys too deeply into Luhmann’s rather undercomplex account of functional differentiation in world society. A more nuanced differentiation theoretical account of contemporary world politics reveals a greater variety of forms than suggested by the simple juxtaposition between particularist and cosmopolitan forms of statehood. This also leads to caution against overblown optimism when it comes to the integrative performance of the latter.
In the past 20 years, Canada has seen an increasing tendency to use the criminal law as a means of enforcing norms of safe sex and disclosure among the HIV-positive population – particularly the law of sexual assault. Although the structure of individual rights that underlies the law of sexual assault is conceptually distinct from norms produced through governmental power, this article shows that it is often difficult to draw clear distinctions between the two. An analysis that focuses strictly on individual rights is unsatisfactory because it fails to account for the social nature of our expectations of responsibility and trust. At the same time, when the individual right derives its content by absorbing a norm produced through governmental power, it fails to provide a principled discourse for future decision – making.
Hate crime laws have emerged within a climate of penal expansion and identity politics. They contain ideological claims designed to reconfigure social norms and regimes of difference. This article employs the concept of the hate threshold to examine the principles and practices that turn an ordinary crime into a hate crime and the normative messages that flow from this. The hate threshold takes three major elements – emotion, causation and difference – as a framework for analysing how the legal rules are operationalised. Analysis of Australian sentencing aggravation law reveals that courts have set a relatively rigorous standard for offender sentiment and causation. However, the development of a more fluid threshold around the element of difference raises questions about the constitutive implications when law ‘misfires’. This analysis of the law in action provides a material foundation for reflecting on the capacity of hate crime law to engage in larger processes of remoralisation.
Russian nongovernmental organizations (NGOs) increasingly pursue domestic change by litigating before the European Court of Human Rights (ECtHR). The Russian government aims to decrease the amount of these applications and curtail the activities of these NGOs. In Russia, where legalism is often performed but sparsely delivered, NGOs engage into advocacy to supplement their international litigation. Advocating for domestic policy changes has, however, become potentially dangerous for NGOs under new curtailing legislation. Through interviews with Russian human rights practitioners, this article analyzes how two NGOs – the Anti-Discrimination Centre Memorial and the Committee against Torture – work in between their belief that law can effect into change and the necessity to supplement their litigation with other strategies. In particular, it analyzes the interactions between the state and the NGOs by examining, first, how NGOs mobilize claims before the Court as leverage in disputes, and second, how a restrictive environment affects the NGOs’ litigation.
Globalisation has significantly changed the context of governance and regulation at both a national and international level. Such change has driven extensive debate on how to achieve more efficient regulation and better governance within new circumstances. A key concern at the level of the workplace, however, is how compliance with the standards required by regulations – whatever their form – is achieved in practice, and it is this that we are mainly concerned with here. In this article, we make use of a case study undertaken in the shipping industry in the course of which we carefully discussed the drivers of compliance with seafarers and with ship managers, charterers and related personnel. We suggest that a consideration of the perspective of workers and managers is vital in understanding drivers of compliance and therefore to informing debates on effective regulation.
Indigenous rights are being increasingly recognised globally. This article argues that this recognition does not reflect radically changed positions on the part of states and other actors but rather a development indicating the cost-effective operation of neoliberal governance. The biopolitical aspect of that governance regulates the life of indigenous populations as collectivities, with rights used tactically in this process. The material for this article consists of reports of the United Nations special rapporteur on the rights of indigenous peoples. The approach of governmentality is used to study how the rapporteur’s expert interpretations make indigenous peoples governable in particular ways, that is, through specific practices of power. The research identifies three such practices bearing on indigenous rights: indigenous peoples as exceptional – the necessity to intervene; indigenous rights – uncertain and calculated and indigenous peoples as claimants – the right to remedies. Expertise and legality function to depoliticise the language of indigenous rights, with states and other actors seemingly governing indigenous peoples less, yet, in recognising their rights, governing them more cost-effectively. These power effects go beyond the stated aims of safeguarding indigenous peoples and should be considered when indigenous rights are negotiated.
Colonial law need not exclude the colonized in order to subordinate them, and ‘activist’ courts can advance the effect of subordination no less than ‘passive’ courts. As a case study, this article examines the jurisprudential legacy of the Israeli Supreme Court in the context of the prolonged Israeli occupation of Palestine. Applying insights from legal realist, law and society, and critical legal studies scholarship, the article questions the utility of using the activist and passive labels. It illustrates how the Israeli activist court, through multiple legal and discursive moves, has advanced and legitimated the colonization of Palestine; that the court is aware of its role; and that arguments that focus on the court’s informal role do not mitigate this legitimating effect. Unlike other scholars, the article shows that the Israeli court’s role—by extending the power of judicial review to the military’s actions in the occupied areas—is neither novel nor unique or benevolent, as the British colonization of India and the US colonization of Puerto Rico show.
The Council of Europe (CoE) and its judicial body, the European Court of Human Rights, are at the forefront of the debate for the redefinition of the notion of ‘family’ in relation to the inclusion of same-sex couples. The recent jurisprudence has demonstrated a change in the Court’s approach to the question of what counts as a family, by terms of Article 12 of the European Convention on Human Rights. This much-anticipated development, nonetheless, begs the question of how the ‘right to marry and found a family’ might prove to be a privilege rather than a right. This article tries to shed light on the contradictions underpinning the expansion of the concept of family in the context of the CoE, suggesting the existence of a conflation of both heteronormative and homonormative narratives of kinship in the construction of a notion of the ‘family’ that encompasses same-sex couples.
To refine wholesale accounts of transnationalism, scholars have cited the amplification of border enforcement and immigration control. Whilst received analysis emphasizes multiple processes whether border militarization, mass deportation or the cross-deputization of local authorities, other trends remain unexplored. Employing the insights of scholarship on the diffusion and decentralization of policing and crime control, this work interrogates the enlistment of private individuals in official gatekeeping efforts. Drawing on relevant empirical examples – anonymous tip lines, voluntary immigration posses, border vigilantes, local anti-immigrant ordinances and other practices that compel, encourage and include societal participation – it assesses three modalities of citizen involvement: deputization, responsibilization and autonomization. Each displays distinct state–society relations and techniques for mobilizing societal actors and energies. In addition to illuminating the complexities, consequences and contradictions of contemporary immigration control, this article enriches understandings of social exclusion and the redistribution and transposition of government amidst neoliberal restructuring.
Residential home (that is, housing) inspection has been a growth industry in Canada and the United States since its emergence in the 1970s. Within a legal context where the purchase of used housing is governed by the doctrine of caveat emptor, and a political and economic context characterized by prudentialism, home inspection appears to offer a means by which consumers can discharge their legal and political duty to be prudent. However, in Canada, because home inspection is largely unregulated and market driven, consumers of pre-owned housing are placed at a structural disadvantage relative to home inspectors. This article argues that we should be cautious of embracing private residential home inspection as an adequate consumer protection mechanism or form of risk consulting because there are fundamental and irreconcilable differences between a public service that strives to meet the objective of the public good and home inspection as a private service offered for public consumption that strives to meet the objectives of private interests.
This article examines how street-level bureaucrats within migration control use their scope for discretionary powers. On the basis of two ethnographic studies of French consulates in Yaoundé and Tunis, we argue that state agents’ practices are significantly shaped by organizational constraints such as how decision-making processes are organized and the bureaucratic habitus, including the fear of fraud. Like other street-level bureaucrats, consular agents are able to draw on legal frameworks in a flexible and instrumental manner. Yet, in the field of migration policy, their scope for discretionary decision making is wider and influenced by their belief that they are acting to defend the national interest. This gives a more political dimension to the way such agents deal with law.
This article draws attention to how citizenship, informed by heteronormativity, is represented in politics, judiciary and public social practices in Russia. I argue that the observed discursive reality affects construction of heteronormative citizenship that restricts full inclusion of lesbians and gay men via silencing. The ideas of the article are taken from literature on citizenship and two empirical research studies that I conducted in 2010 and 2011–2012. The first is dedicated to the uncovering of discursive effects of political argumentation in Russia. The second study centres on the accounts of lesbians and gay men themselves regarding their citizenship rights. Both studies give rise to concerns about Soviet legacy in contemporary Russian debates on homosexuality. This idea is supported by an analysis of that historical context that may be grasped from empirical studies of the Soviet.
This article discusses the findings of a study in which 160 volunteer members of the public observed one of four mini rape trial reconstructions and were asked to deliberate as a group towards a verdict. In a context in which research into the substantive content of the deliberations of real jurors is prohibited by the Contempt of Court Act 1981, these discussions were analysed to assess whether, and in what ways, perceptions of adult rape testimony are influenced by different modes of presentation. While lawyers and other observers have speculated about the possible undue effects of alternative trial arrangements on juror perceptions and the evaluation of evidence in rape trials, the issue has received scant empirical attention. In an effort to bridge this knowledge gap, this study investigated the influence upon mock jurors of three special measures currently made available in England and Wales to adult sexual offence complainants by the Youth Justice and Criminal Evidence Act 1999, namely (1) live-links; (2) video-recorded evidence-in-chief followed by live-link cross-examination and (3) protective screens. Following a careful and contextual exploration of the content of the mock juries’ deliberations, the researchers conclude that there was no clear or consistent impact as a result of these divergent presentation modes, suggesting that concerns over the use of special measures by adult rape complainants (at least in terms of juror influence) may be overstated.
This article describes the practices of the United Nations High Commissioner for Refugees (UNHCR) relating to the protection of refugees’ rights to physical security and access to justice as observed by the author in the Buduburam refugee camp in Ghana (2005–2007). It argues that UNHCR worked to ‘privatize’ these rights. The article suggests that the failure of UNHCR to administer criminal law in the camp is a breach of its obligations under the International Covenant on Civil and Political Rights. Furthermore, since no political authority assumes the duty to protect refugees’ rights to physical security and access to justice, according to standard conceptions of ‘human right’, refugees have no human rights to physical security and access to justice. The article concludes that ‘human rights’ are not universal and that those who are excluded from the human rights framework are the same persons who were excluded from the citizenship rights framework.
Expansive criminal justice arenas have for centuries been marked by tenaciously unequal representations of the race, class, ethnicity and gender of the subjects they capture and punish. Although the phenomenon has been analysed in several ways, this article focuses on the influence of criminal justice in an eclipsed dimension of colonial settings, namely, the political logic deployed to enunciate legal persons that simultaneously defined criminal law’s jurisdiction and objects of regulation. This politics is nicely illustrated by law directed at crimes at the Cape of Good Hope during extraordinarily unsettled times circa 1795, where unequal categories of legal personhood were assigned to those involved with crime. These categories were subsequently targeted for different intensities of legal force. Versions of this basic logic have resounded over the centuries; using the Cape’s rich archive as an illustrative example, one glimpses how differentiated conceptions of the legal person help to sustain inequalities that fuel the disproportions of many criminal justice institutions nowadays.
Finlayson’s emergent rhetorical political analysis is used in this article to examine arguments made in support of the criminalisation of both consensual and non-consensual adult familial sexual activity, as part of a key governmental review and report on sexual offences (Setting the Boundaries (the Report)). The argument presented in this article is that a ‘synthetic necessary truth’ was created in the justification of the criminalisation of an activity that would otherwise be permissible within the framework proposed for the review. This article examines the creation and formation of arguments in support of the criminalisation of incest made during the pre-legislative political process. It does this by employing a rhetorical political analysis, which does not dismiss the rhetorical properties of political speech but rather demands these become central to the review. By drawing attention to the Reports’ rhetorical properties, the investigation moved away from ideas about the correctness of criminalisation of incest and instead placed the focus firmly on the structure and quality of the arguments used.
This article explores the construction of victimhood in transitional societies. Drawn from fieldwork in a dozen jurisdictions as well as elements of criminological, feminist, sociological, philosophical and postcolonial literature, the article focuses in particular on how victimhood is interpreted and acted upon in transitional contexts. It explores the ways in which victims’ voice and agency are realised, impeded or in some cases co-opted in transitional justice. It also examines the role of blame in the construction of victimhood. In particular, it focuses upon the ways in which the importance of blame may render victimhood contingent upon ‘blamelessness’, encourage hierarchies between deserving and undeserving victims and require the reification of blameworthy perpetrators. The article concludes by suggesting that the increased voice and agency associated with the deployment of rights discourses by victims comes at a price – a willingness to acknowledge the rights and humanity of the ‘other’ and to be subject to the same respectful critical inquiry as other social and political actors in a post-conflict society.
Since the early 1990s, wartime rape has been successfully prosecuted as a war crime, a crime against humanity and a crime of genocide. Feminist scholars, however, warn that the unprecedented attention to wartime sexual violence within international criminal law has had wide-ranging and unintended consequences. The aim of this article is to examine the heightened consciousness around wartime sexual violence and its ascendancy as a crime against ‘humanity’. The article draws attention to two discourses. The first is the feminist political project, which sought to delineate wartime rape as a crime of grave magnitude that warranted explicit treatment under international criminal law; the second is the postmodernist feminist discourse, which questions the desirability of fixating on sexual violence against women in conflict. The point of this article is not to situate myself in either camp but rather to examine the power of international criminal law to pronounce meaning, demarcate the gravity of crimes and silence alternative stories. I will argue that due to the impassioned political controversy over rape within populist, scholarly and legal realms, not only are the substantive problems associated with rape prosecutions often left obscured but problematic rape hierarchies are reified and victim experiences further marginalised.
The evidence base relating to illicit drug markets, drug supply activities and drug seller characteristics increasingly presents a picture of diversity, whereby differing motivations for supplying suggest different levels of culpability and divergence from a homogenised image of the drug dealer. This paper seeks to explore one specific aspect of this divergence, that of social supply and how the Criminal Justice System currently deals with this in practice and principle. It is argued that social supply is qualitatively distinct from drug dealing ‘proper’ and although this distinction is increasingly acknowledged within the Criminal Justice System, current approaches neither conform to principles of proportionality nor sufficiently understand the nature of social supply to deal with it effectively under existing legislation. Following consideration of these issues, it is argued that social supply should become a distinct offence in law, analogous to how manslaughter is distinguished from the more serious offence of murder.
This article focuses on individual perceptions of the legal protection afforded to living apart together (LAT) partners in Belgium. Drawing on semi-structured interviews with 54 individuals engaged in an LAT partnership, this study explores the meaning LAT individuals attach to their union and investigates the relationship between their understanding of their relationship, their legal expectations and views on legal reform. Our findings indicate that, in Belgium, LAT individuals do not expect marriage-like family law legal provisions within their union. On the other hand – given the nature of their relationship – LAT individuals believe they should be granted the same family-based benefits as those enjoyed by their cohabiting or married counterparts. A differential between LAT-individuals’ legal expectations and views exists according to their socioeconomic status. Relationship expectations play a role as well, albeit indirectly, with transitional and undecided LAT individuals being somewhat more concerned about legal issues than individuals in permanent LAT arrangements.
This article addresses the complex legal endeavour to shape the frontiers between two of the most fundamental liberal rights in multicultural nation states: the right to cultural difference and the right to religious freedom in Colombia. I follow one dispute, between members of the indigenous Arhuaco group who are Evangelical Christians and their indigenous local authorities. This example illuminates longstanding debates surrounding the relationship between religion and politics within legally plural states. I put together different scales of analysis for understanding: (i) the legal definition of the right to religious freedom and the right to ethnic cultural difference as private or public and individual or collective; (ii) the debate about the political meaning of religious practice by studying, for example, how it relates to claims over inequality and land access; and (iii) the importance of understanding the meaning of conversion for addressing the legal difficulty of creating a sustainable boundary between these two rights.
This article considers how international criminal courts produce knowledge about women’s experiences of large-scale violence. In 2001, the International Criminal Tribunal for Yugoslavia concluded that the crime of genocide had been committed in Srebrenica in 1995 and that the patriarchal nature of the Bosnian Muslim community was key to the genocide. This paper examines the processes by which the trial and appeal chambers came to know, and author an account of this community as patriarchal. I examine the transcripts of three witnesses who testified about the surviving community of Bosnian Muslim women, tracing how evidence was shaped and reshaped in the courtroom and then in the trial and appeal judgments. I argue here for the importance of exploring the mediating practices and actors that produce legal knowledge, to better understand how complex recognition of gendered harm unfolds, and is sometimes curtailed, through international criminal adjudication.
This article draws from interview material with sex worker rights activists in London, and sex work scholarship, to explore the demand for labour rights for sex workers and erotic dancers. I argue that there are two positions visible in activism and scholarship, which I term ‘liberal’ and ‘materialist’. Whilst the former posits that the problem with sex work is insufficient mainstreaming of commercial sex within the labour market, the latter stresses the need for protections and freedoms from the labour market and repressive criminal and immigration laws. I suggest that these two perspectives need to be thought together. To this end, for the first time in the UK context I ask what labour rights can do for erotic dancers and indoor-based sex workers. I argue that, whilst labour law may offer some level of protection, both forms of commercial sexual service are ultimately unmanageable and that the strategy of securing individual labour rights suffers from several limitations. In the final part, I map the materialist frames onto broader feminist citizenship debates. I ask whether these models can deliver the protections sought and tentatively propose that a feminist-oriented demand for a basic income may be of use to the sex worker rights movement today.
This paper applies Loïc Wacquant’s work on penal statecraft to analyze the growing punitiveness of urban politics in contemporary Mexico City. It demonstrates that the intersection of the urbanization of neoliberalism and the democratization of local politics contributed to the emergence of a punitive regime of governing urban marginality in the city. This indicates the consolidation of a punitive urban democracy in which despite the formal legal empowerment of the city’s residents during the last two decades, those at the urban margins face a reverse process of punitive exclusion that takes the form of a criminalization of poverty. In taking a closer look at the situation within the local penal apparatus, the paper furthermore shows that these exclusionary tendencies are reinforced by informal institutional practices inside the local law enforcement bureaucracies.
This paper examines legal proceedings in the court of first instance for civil cases in Ukraine. Using ethnographic methodology, it demonstrates that a large part of a court judgement is predetermined by the institutional infrastructure and by practices established more widely in Ukrainian society. By observing case hearings and interviewing litigants and judges, the paper reveals that an unbridgeable gap separates a legal case, as constructed through documentary files, from the reality of life. This affects the very meaning of ‘evidence’ and the way that judicial decisions are made. The paper also illustrates the benefits of viewing a lower-level civil courtroom as a microcosm of a society, demonstrating that it provides rich insights into different layers of that society.
In this article, we examine the social repercussions of criminally prosecuting individuals that cross into the United States without official documentation. The "criminalization of immigration law" (Coleman, 2007), federal- and state-level anti-immigrant initiatives, and an incarceration-oriented approach to dealing with unauthorized migration have redefined what it means to be undocumented in the United States, a definition with more sociological implications than ever before. Using strain theory (Agnew, 1992; Merton, 1938) and Cloward and Ohlin’s (1960) concept of illegitimate means structures, we discuss the social ramifications for migrants who are exposed to a potentially unfamiliar criminal element while incarcerated for unauthorized entry. First-hand accounts of migrants’ experiences were gathered from face-to-face semi-structured interviews of 210 randomly selected individuals at a migrant shelter in northern Mexico.
In this article, I explore what kind of individual is presupposed and promoted as the subject of the right to freedom of religion in Article 9 of the European Convention on Human Rights. I question the distinction made between freedom of religion and the right to manifest religion in the context of the so-called headscarf cases. I argue that making such a distinction is only possible if it is based on a particular understanding of an individual who, on the one hand, is capable of perceiving religion as something that can be protected as a lifestyle or as a background that can be entered or exited and who is required to submit to certain putatively secular rules, on the other. In order to do this, I outline the application of the distinction by the European Court of Human Rights and discuss whether it is an appropriate tool to approach the religious subjectivities of women wearing the headscarf for religious reasons. I then try to unearth the relationship between the doctrine of secularism and the conception of religion that is embedded in Article 9.
This article calls for a re-examination, from a Relational Contract Theory perspective, of the ‘copyleft’ agreement, which mandates the source code of publicly released software to be perpetually shared with the public. It deals with standard-form copyleft licences such as the GNU General Public Licence, whose legal enforceability has often been a subject of debate. From the viewpoint of classical contract law, these licences would lack affirmatively expressed consent from the licensees and would thus be unlikely to be legally binding. There are two alternatives to this classical contractual view. The first is the neoclassical contract approach as represented in Easterbrook’s ruling in ProCD v Zeidenberg, which attempts to re-engineer the legitimisation of standard-form information product licensing schemes with the goal of maximising individual utility gains. The second alternative is a (Ian) Macneilian relational approach, which is endorsed by this article but has remained conspicuously absent from the existing legal literature.
The ‘resolutions movement’ – a popular political mobilisation guided by lawyers, and expressed in exclusively legal terms and orientated towards legal objectives – has been an important expression of popular resistance to contemporary US counterterrorism policy. This article uses the resolutions movement as a vehicle for critically evaluating the cause lawyer literature and for reconceptualising ‘cause lawyers’. The article discusses two different approaches to the political implications of lawyering. The first approach draws on the ‘cause-lawyering’ literature that appears initially as a perfect context for analysing the movement. However, detailed examination shows this approach to be premised on a strong dichotomy between law and politics, something that impedes analysis. To overcome the resulting aporia, a ‘strategic-relational’ approach, which sees both law and politics as social relations and practices, is proposed as an alternative. This allows a more nuanced discussion of the law–politics relation that facilitates analysis of the movement and leads to a set of proposals capable of enabling cause-lawyering studies to transcend its conceptual rigidity.
This article considers a recent decision by the Supreme Court of Israel dealing with the right to family unification of Palestinian citizens of Israel (PCI). By situating the decision in the broader debate on Israel’s constitutional definition as a Jewish and democratic state, the article examines patterns where the definition plays an important role in defining the nature of the citizenship held by PCI and the limits of their rights. This examination focuses on three main issues that arose in the case: the scope of the protection of the right to family life, the comparative method used by some of the Justices to limit that right, and statements about the legitimacy of demographic considerations in devising immigration policies. This analysis demonstrates how the arguments and justifications used by the Court may provide building blocks for a legal framework that is proceeding in the direction of institutionalizing separate hierarchical categories of citizenship.
Historically, in Mexico City, people who conduct trade on the streets have been engaged with a highly regulated world of spatial restrictions, fines and detentions, still they remain on the streets. This article explores how the regulation of street-vending activities has contributed to the constitution of an ideal hierarchy of would-be social agents in public spaces by consecrating the distinction between authorized and unauthorized street users. The central aim of this article is to understand and explain how people who have been defined as out of place in the urban realm have become constituted as ‘mobile’ actors in order to ‘stay’ in the spaces from which they were originally displaced. Street vendors find that, in exchange for a license, which provides them some security and stability, they must confront challenging legal and bureaucratic demands; whereas, vendors who choose to be unlicensed must employ other strategies, such as being mobile. These regulatory strategies seem to condemn them to work at the margins of the central city. However, neither their daily mobility nor their spatial location is restricted to ‘what the law states’; everyday needs to earn a living determine the need to (re)create a particular way of being on the streets influenced, but not constricted, by state delimitation of the specific spaces and times where the population should perform routine footwork.