Showing papers in "Social & Legal Studies in 1994"
112 citations
TL;DR: The fragmentation of social theoretical approaches is apparent even in interdisciplinary fields such as legal studies as mentioned in this paper, where legal anthropologists, shifting their attention away from a consideration of the role of law in the production of social order, have still continued to rely on assumptions about legal structure that belong to an older theoretical tradition.
Abstract: RENDS IN social theory have moved steadily over the last several ) decades away from what might broadly be described as structural analysis -Aand towards more historical or processual approaches. As part of this trend, some scholars have shifted the emphasis of theoretical discussions to the ways in which social actors construct meaning. Others have worked towards modifying structural approaches, focusing on intermediate-level theories that permit a closer juxtaposition of individual and immediate experience with broad, structural conditions. Still others, though rejecting the dichotomy of the structural and the conceptual, have nevertheless been characterized as members of one or the other of these schools and have found themselves separated from the discussion of broader theoretical issues. The fragmentation of social theoretical approaches is apparent even in interdisciplinary fields such as legal studies. Legal anthropologists, shifting their attention away from a consideration of the role of law in the production of social order, have nevertheless continued to rely on assumptions about legal structure that belong to an older theoretical tradition and are contradicted both by their
82 citations
57 citations
TL;DR: The issue of how colleges and Vl universities should govern the non-academic lives of their students and other denizens has once again risen to considerable prominence as discussed by the authors, and the issue is how far administrators should go in suppressing campus social life in the name of protecting health and safety.
Abstract: ORE THAN twenty years after the era of mass student ’unrest’ on American college campuses ended, the issue of how colleges and Vl universities should govern the non-academic lives of their students and other denizens has once again risen to considerable prominence. Then the issue was how far college administrators could go in using their governance powers to suppress a widespread protest movement based in large part on opposition to the Vietnam war. Today, the issue is how far administrators should go in suppressing campus social life in the name of protecting health and safety.
43 citations
TL;DR: Racism is defined as a process of representation which provides a frame of reference and guide for conduct for dominant racialized, ethnic, national and cultural groups as mentioned in this paper, which contributes to rationalization, naturalization and legitimation of concrete oppressive practices.
Abstract: exclusionary, discriminatory, exploitative and violent effects. Ideologically, racism constructs reality such that it becomes part of what is taken for granted about the world, providing for those who escape its aim more than those who are its target, ’a description of and explanation for the way in which the world is experienced to work’ (Miles, 1989: 80). Racism is thus, in part, a process of representation (see later) which provides a frame of reference and guide for conduct for dominant racialized, ethnic, national and cultural groups (Cotterell, 1984; Hall, 1988). In this way it contributes to the rationalization, naturalization and legitimation of concrete oppressive practices. However, racism also forms part of the experience of its target groups, who not only confront its material effects, but often internalize as well as resist and negotiate many of its oppressive messages (Anthias and Yuval-Davis, 1992; Stanley, 1991). Racism is multidimensional, taking particular forms in relation to various racialized, ethnic, cultural and national groups, and in relation to the historico-geographic conditions and
37 citations
TL;DR: In an early version of this article as mentioned in this paper, the authors were concerned that the article was patronizing, often obscure, nearly always abstract, too frequently defensive, even rigid, and the paragraphs were way too long.
Abstract: EGINNINGS ARE always difficult. Ideally, an academic article should begin with a reasonably clear proposition, amplify some pertinent problems, traverse a certain territory, gain some ground, and end with a sound conclusion. To comply with norms of scholarship and knowledge the article must look like a complete object. So let me begin by saying that, even if that qualifies as a beginning, I do not have a conclusion. I have some problems, and lots of questions. And let me also say that in an early draft of this article I shaped these problems and questions into what I thought was a very respectable scholarly object, only to be told that I was at times patronizing, often obscure, nearly always abstract, too frequently defensive, even rigid, and that my paragraphs were way too long. Having got over the shock sufficiently to set down some more words, I realized that I had fallen without even thinking about it straight into the ancient trap of re-enacting precisely the position I had set out to criticize. At least I can safely say that I am not the first person ever to get enmeshed in her own critique (though nor is this
24 citations
TL;DR: In this article, the author of the letter finds it hard to claim authorship for what he has written, so he puts his name under erasure, and couples the traces of his name to the word falsch, "wrong" but with a strong emphasis towards deceit and treachery.
Abstract: HE SIGNING of a name is, among other things, an effort to appropriate t a foregoing text, a contract, a written message. The signature attempts to -JL claim authorship and control for what has been written. With his name, a lover attempts to seal a letter to his beloved but encounters only darkness: ’Franz wrong, F wrong, Your wrong; nothing more, silence, deep forest’ (Kafka, 1952:131 ). The author of the letter finds it hard to claim authorship for what he has written, so he puts his name under erasure. He couples the traces of his name to the word falsch, ’wrong’, but with a strong emphasis towards deceit and treachery. The signature and the corresponding name are wrong and deceitful in that they make promises that can never be kept. And yet, under the bar, the name is clearly visible as if it may be assuming authorship: ’I, Franz, mean what I write
23 citations
19 citations
TL;DR: The project of modernity is coming to completion; not in the sense of the achievement of the full rationalization of life prophesied by Habermas, but in the final accomplishment of MacIntyre's'moral catastrophe' as discussed by the authors.
Abstract: S THE millenium draws to a close, the old signs of epistemological certainty and the trusted grounds and resources of moral and political .jL act on lie weakened. The relentless critique of cognitive or practical discourses of foundation has accelerated the process of dissolution of foundations. The project of modernity is coming to completion; not in the sense of the achievement of the full rationalization of life prophesied by Habermas, but in the final accomplishment of MacIntyre’s ’moral catastrophe’. The melancholy of the end, the mourning for the weakening of the social bond have been paradoxically or predictably accompanied by a great call for a return to ethical values and moral principles throughout public life. ’Back to Basics&dquo; is the rallying cry of the 1990s. No area is experiencing this anxiety of morality stronger than law. The ’crisis of law’ has finally taken on a moral dimension, a demand for an ethics. The signs of this ethical concern are everywhere. There is widespread anxiety about access
19 citations
TL;DR: In this article, the authors analyse the consequences of organized crime for the economy and politics of the Italian Mezzogiorno, focusing on the Sicilian Mafia, the most notorious criminal group in Italy.
Abstract: t illegal activities. Inspection of the figures for reported offences subject to -~. criminal proceedings reveals a rise in homicides especially in the three or four Italian regions with the highest rates of organized crime (Sicily, Calabria, Campania and, in recent years, Puglia) and also an increase in larceny, embezzlement and crimes against the state. The addresses delivered by the district heads of the Italian magistracy to mark the opening of the judicial year paint an increasingly gloomy picture. In 1992, moreover, the assassinations in Palermo of leading politicians (notably the European parliamentary deputy, Lima) and magistrates like Falcone and Borsellino, leaders of the fight against the Mafia, increased preoccupation over the damage that the presence of criminal groups could wreak in Italy and Europe. In this article, I shall analyse the consequences of organized crime for the economy and politics of the Italian Mezzogiorno. To do so, I shall have to clarify the nature and the concrete patterns assumed by the form of organized crime with the longest tradition and the deepest geographical roots: the Sicilian Mafia.
15 citations
TL;DR: This article argued that police power is exercised affirmatively to control behavior during interrogation and used subtle and sophisticated psychological methods of influence (conditioning, persuasion, deception, neutralization, and normalization) to elicit inculpatory admissions.
Abstract: This article analyzes contemporary interrogation practices as one example of the changing character of formal control in policing. The article examines how police employ techniques of influence to generate compliance with their requests. The author argues that police power is exercised affirmatively to control behavior during interrogation. Rather than relying on force or the threat of punishment, police commonly use subtle and sophisticated psychological methods of influence (conditioning, persuasion, deception, neutralization, and normalization) to elicit inculpatory admissions.
TL;DR: Balkin this paper argued that deconstructive analysis can be of no use to the pursuit of justice unless deconstructative arguments assume the existence of an alternative which is more just than the one being deconstructed, even if this alternative is subject to further deconstruction.
Abstract: OR SEVERAL years now I have been concerned with the problem of how one should apply the insights of deconstructive practice to questions of JL law and justice. This question is far from easy, although many people (in American legal theory, in particular) have simply assumed that deconstruction could readily be adapted to political questions and, in particular, to the political agenda of the left. The problem, however, is that deconstructive techniques do not seem to support any particular vision of justice; indeed they appear to preclude the possibility of any stable conception of the just or the good that could provide the basis for political belief or the authority for political action. Jacques Derrida’s own statements on the relationship between justice and deconstruction have proven somewhat unhelpful. In his most extended discussion of the subject, Derrida insisted simultaneously that (1) justice is impossible (1990:947-9); (2) justice is not deconstructible (1990: 945); (3) law is deconstructible (1990:945); (4) the undeconstructibility of justice and the deconstructibility of law ensure the possibility of deconstruction (1990:945); and (5) deconstruction is justice (1990:945). Taken together, these statements yield a contradiction.’ In this essay, I argue for positions developed at greater length elsewhere (see Balkin, 1990a, 1994). First, I claim that deconstructive analyses can be of no use to the pursuit of justice unless deconstructive arguments assume the existence of an alternative which is more just than the one being deconstructed, even if this alternative is subject to further deconstruction. Second, although all conceptions
TL;DR: This article argued that children's sexuality is being used to regulate both the uses and the structure of electronic information technologies, from broadcasting to computers, from the nineteenth-century campaign against child masturbation in reorganizing relations between the body of the child and parents and medical professionals.
Abstract: OUCAULT HAS ARGUED that ’sexuality is not feared by power, and instead, is far more a means through which power is exercised’ (1980:117). Sexuality is ’useful for the greatest number of maneuvers and capable of serving as a point of support, as a linchpin for the most varied strategies’ (Foucault, 1980:103). This paper adapts Foucault’s analysis of one particular construct of sexualitychildren’s sexuality and argues that it is being used to regulate both the uses and the structure of electronic information technologies, from broadcasting to computers. While Foucault’s original analysis centered on the utility of the nineteenth-century campaign against child masturbation in reorganizing relations between the body of the child and parents, educators and medical professionals, my analysis focuses on a different set of power-effects which are produced by the intersection of child sexuality and these new technologies. The new information technologies provide a new public space for the articulation of concerns about children’s sexuality, as well as new possibilities for regulation and social control.
TL;DR: There are no heart or pancreas transplants in Japan because of the lack of agreement in Japan about recognizing brain death as death of the person.
Abstract: Their inactivity is due to the lack of agreement in Japan about recognizing brain death as death of the person.’ A heart, liver or pancreas taken from a body declared dead in the traditional sense termination of pulse, breath and reflexes is ’stale’ and untransplantable. The same organs from a donor declared brain dead but maintained by a respirator are ’fresh’ and reusable. Without brain-dead donors, therefore, otherwise transplantable organs are unavailable. As a result, there are no heart or pancreas transplants in Japan. Partial liver
TL;DR: The idea of the community of nations was first proposed by de Tocqueville in the early 20th century as mentioned in this paper, who argued that the community is a structure of institutions to represent and mediate particular wills and the general will, to generate the commonwealth out of the clash of competing interests.
Abstract: E HAVE given up communism only to fall more deeply in love with B m the idea of ’the community’. W If ’communism’ stood for an ideal community, what does the current idea of ’the community’ stand for? Quite contrary things. Consider, we say, ’the European community’, and we tried not to say, ’the community charge’; ’the American nation and community’, says President Bill Clinton, but he also says, ’the politics of the community’. We say ’the community of nations’, and we say, ’the ethnic community’, and ’the religious community’. On the one hand, ’the community’ retains its universal connotations of the commonwealth, the collective interest, the general will; on the other hand, ’the community’ resounds with the particular connotations of the locality, the exclusive interests of specific people, the particular will. This exclusive ’community’ implies traditional authority; that inclusive ’community’ implies legal-rational authority. Of course, in classic, liberal political theory, the constitution provides a structure of institutions to represent and mediate particular wills and the general will, to generate the commonwealth out of the clash of competing interests: from the premise of the sovereignty of the people emerges the theory of the representative modern state. In de Tocqueville’s Democracy in America, the local community is held to be the source of tyranny; we have forgotten, too, that
TL;DR: The essays collected in this issue show the fruits of this critical energy as mentioned in this paper, and represent the work of a group of contributors and editors, whose varied nationalities perhaps represent some groupings and regroupings within the new global society.
Abstract: RITICAL PERSPECTIVES, in particular feminist, postmodernist and ~ interpretivist perspectives, have invigorated and energized scholarship about law. They have done so by exposing the underlying assumptions and operations of law to rigorous examination and by calling law, in its various cultural expressions and contents, to account. They have insisted on displaying the contingency, variability and historicity of the legal as a way of opening a conversation about law that crosses boundaries. The essays collected in this issue show the fruits of this critical energy. They represent the work of a group of contributors and editors, whose varied nationalities perhaps represent some groupings and regroupings within the new global society. Australian, American, Finnish, Greek, English, Scottish: in this bland list of origins can be read the traces of history. The Anglo-American ’special relationship’ of 1980s’ politics persists in academic writings. The new ’European Union’ can be seen in the alliance of Greek, Finnish, English and Scots. And the post-colonial relation of England and Australia requires the questioning of a ’new’ world’s relation to the old. The essays collected here are the work of individuals writing in different
TL;DR: In this paper, the authors consider the nature of legal and accounting work and the way in which their respective fields interact, and draw upon this picture of law and accountancy to examine the manner in which intangible property is recognized and made real within legal practices.
Abstract: HAT DOES it mean when our judges look beyond their legal B ~ heritage, beyond the cases that they so jealously revere and through which their authority is reproduced? What are we to make of it when these same judges reject legal definitions of such a fundamental and frequently used term as ’goodwill’, implying that its meaning should be determined not in the field of law but in the commercial world of accountancy? Do lawyers and accountants mean such different things when they appeal to concepts of intangible property? In this essay we approach these questions on three levels. First, we consider the nature of legal and accounting work and the way in which their respective fields interact. Secondly, we draw upon this picture of law and accountancy to examine the manner in which intangible property is recognized and made real within legal and accounting practices. In particular we compare developments in UK trademark law in the 1930s with recent changes in brand accounting. We argue that the emergence of new conceptions of intangible property within legal and quasi-legal frameworks reflects processes which are both constitutive of their reality, and also shape a volatile jurisdiction of expert definitions and strategies within a multi-disciplinary field. Thirdly, although we highlight the different ways in which the intangible is constituted in law and
TL;DR: In this paper, the assumption that legal thought actually had causal importance for the development of American law operates but is not satisfactorily defended, and Horowitz ultimately fails to deliver on the claim to offer an explanation of the transformation of American Law.
Abstract: realist ideas? Further, we do not even get much of a sense of the broader impact of the realists’ academic and political writings on other legal intellectuals. Did they have much substantive impact outside of the handful of elite law schools where they had a marked presence, or was the impact of their ideas mostly limited to those circles? None of these issues are adequately addressed by Horowitz. In short, throughout the text the assumption that legal thought actually had causal importance for the development of American law operates but is not satisfactorily defended. Horowitz ultimately fails to deliver on the claim to offer an explanation of the transformation of American law. To raise such criticisms against a straightforward intellectual history would be somewhat unfair, criticizing Horowitz for the book he didn’t write rather than the one he did. But inasmuch as Horowitz’s ambitions go beyond
TL;DR: Kadish et al. as discussed by the authors examined the tension between the focus on culpability and the concern with the consequences of prohibited conduct in the felony murder rule and found that the degree of blameworthiness of offenders in felony killings may be correlated with the severity of the consequences.
Abstract: FUNDAMENTAL PRINCIPLE of our criminal jurisprudence, conventionally understood, is that the blameworthiness of the offender is ~L essential to criminal responsibility and punishment (Morissette v. United States, 1952:250-1; Kadish, 1987:265). This principle comes into conflict, however, with the law’s attention to the consequences of prohibited conduct. The tension between the focus on culpability and the concern with the consequences is widespread. It is found in the law of attempts and other inchoate crimes, it appears in the doctrine of impossibility, and it is manifested in the law of homicide, in the felony murder and misdemeanor-manslaughter rules (see Kadish, 1993). Examining the felony murder rule provides a close look at this tension, as the degree of blameworthiness of offenders in felony killings may
TL;DR: It is precisely because consent is constructed in terms of consent that procedural rules have developed for the protection of the accused which turn the trial into pornographic vignette as mentioned in this paper, which feminism identifies as problematic.
Abstract: consent which feminism identifies as problematic. It is precisely because rape is constructed in terms of consent that procedural rules have developed for the protection of the accused which turn the trial into pornographic vignette. It is because rape is constructed in terms of consent that the substantive and procedural norms of the courtroom are informed and underpinned by sexual typifications that reflect dichotomized images of women as good/bad, chaste/unchaste and virgin/whore. Not surprisingly, the acquittal rate is higher for rape than for any other offence.
TL;DR: Since the publication of John Rawls's A Theory of Justtce in 1971, political philosophy has been dominated by a debate between liberals and communitarians as mentioned in this paper, and it is commonly agreed that A theory of justice constitutes the canonical text of modern liberal theory.
Abstract: Since the publication of John Rawls’s A Theory of Justtce in 1971, political philosophy has been dominated by a debate between liberals and communitarians. Rawls himself is, of course, the single most important representative of liberalism, and it is commonly agreed that A Theory of Justice constitutes the canonical text of modern liberal theory. Communitarianism, by contrast, lacks a ’bible’ of this sort. There is no communitarian equivalent of A Theory of Justice, but only a range of works united in their contention that
TL;DR: In the last part of the book as mentioned in this paper, the question of what is value is returned to the textual, aporetic form of the question, and it is argued that without this questioning, the histories of regimes of replication remain one of the encodings of crisis management and questions of technology, legality and personality continue to be tied to a juridical subjectivity.
Abstract: group. It is tempting to conclude that the final chapter subverts many of the sociological and jurisprudential structures put forward in the first part of the book. What tends to be effaced in the historical presentation is the very possibility of the value-form at all in its sociality. By making (dis)simulation in mass cultural reproduction central to the production of cultural value, the question of value is returned not to a ’medium of preference’ (p. 1) that presupposes a full subjectivity but to the textual, aporetic, form of the question of what is value. This aporia, at least in the marxian traditions, can be expressed in terms of the errant position of use-value within political economy as ’both outside and inside the system of value determinations’ (Spivak, 1987:162; Lury: 215) If, as Celia Lury points out, reactivation, as use-value, can act as a ’deconstructive lever’, it will ’disturb’ the distinctions used to structure the differences that motivate the histories of cultural reproduction. Without this questioning, the histories of regimes of replication remain one of the encodings of crisis management, and questions of technology, legality and personality continue to be tied to a juridical subjectivity. By siting law and cultural rights on the threshold of value, the question of value is altered and returned as a question of obligation and responsibility toward value. Cultural rights would not then be fully juridical.
TL;DR: Van de Kerchove and Ost as mentioned in this paper proposed a post-modernist view of civil law, which they called the game paradigm, and they used to re-establish the French speaking world at the centre of European legal theory.
Abstract: favours the emergence of the game paradigm (pp. 18-19). Now this reference to the ’postmodern’ may appear to undermine any scientific credibility, at least in some quarters; yet in respect of van de Kerchove and Ost’s book the idea of a postmodern only reinforces the richness of its analysis since it helps emphasize the break with the ’modernist’ view of Civil Law. And it helps emphasize the break in a way that takes legal theory away from its obsession with legal sources and the definition of law towards epistemological ideas that seek to be more comprehensive in their explanation of what it is to have legal knowledge and legal expertise. The authors thus go far not only in re-establishing the French speaking world at the centre of European legal theory, but also in laying the foundation for a more credible ’postmodern’ jurisprudence. Their book is far superior in learning and in depth to much that has appeared under the ’postmodern’ label in Anglo-American jurisprudence and it is accordingly, to be hoped that, like their previous book, it will find a translator and
TL;DR: Frazer and Lacey as mentioned in this paper pointed out that too often feminist writers, impressed by the familiar criticisms of contemporary liberalism, take refuge in a cosy communitarianism which is not only politically reactionary but also potentially oppressive to those women who do not satisfy the blueprint.
Abstract: then we are back with the uncritical social submersion implicit in communitarianism. These, however, are harsh words about a book which tries harder than any other to expose the flaws of modern political theory while also acknowledging that there is no feminist utopia waiting to be discovered. Too often feminist writers, impressed by the familiar criticisms of contemporary liberalism, take refuge in a cosy communitarianism which is not only politically reactionary but also potentially oppressive to those women who do not satisfy the blueprint. Frazer and Lacey resolutely refuse to be drawn into this
TL;DR: Cavadino and Dignan as discussed by the authors reviewed orthodox and radical accounts of the penal crisis, then synthesized them in a ’radical pluralist' approach to penal sociology.
Abstract: Cavadino and Dignan cover a lot of ground in this relatively brief intoductory textbook. The first chapter reviews orthodox and radical accounts of the penal crisis, then synthesizes them in a ’radical pluralist’ approach to penal sociology. Chapter 2 discusses the standard philosophical justifications of punishment and outlines the authors’ own philosophical position based on the notion of ’positive freedom’. Chapter 3 presents a marvellously succinct account of the major traditions in sociological theory: in just 15 pages Marx, Rusche and Kirchheimer, Gramsci, Althusser, Foucault, E. P. Thompson, Durkheim and Weber are introduced, criticized and then brought together in the author’s
TL;DR: In the developed world female autonomy is to be sacrificed to medical, legal and state control as discussed by the authors, and the question of choice is then limited, and there is a risk that certain activities will fall out of public control where they will be unseen and unregulated.
Abstract: state regulation can lawfully intervene. The question of choice is then limited. There is, of course, a risk that certain activities will fall out of public control where they will be unseen and unregulated. Dickens warns against the risk of private practices: ’... the unskilled insertion of objects such as turkey basters into women’s bodies, even when the women freely agree, is not to be encouraged’ (p. 76). In the developed world female autonomy is to be sacrificed to medical, legal and state control. For the developing world fertility regulation programmes are an imposition by rich countries on poorer ones. The result of reading this book is the realization that a wider conceptualization of fertility problems is needed one which extends beyond existing frameworks. By defining fertility problems in relation to the nuclear family, a wider view of relationships is not permitted. The problem of childlessness is accentuated, as is the obsession with exclusive parenting. Law Reform and Human Reproductwn is an important book for those seeking a broader and more global understanding of these issues.