Showing papers in "Social & Legal Studies in 2000"

Plural Policing and Democratic Governance

Abstract: This article asks how we might best come to terms with - and seek to govern - the multiplicity of institutional forms that are now involved in the delivery of policing and security services and technologies. I begin by documenting briefly the network of providers that constitute the policing field locally, nationally and transnationally, before specifying how the fragmentation and pluralization of policing has called radically into doubt a number of received (liberal) suppositions about the relationship between police and government. I then attempt - drawing constructively yet critically on recent theorizations of governance and ‘governmentality’ - to make sense of some contemporary reconfigurations of policing within and beyond the state, and tease out their implications for questions of democratic legitimacy. Finally, I outline the contours of an institutional politics for the regulation of policing that is both normatively adequate to the task of connecting policing to processes of public will-formatio...

Contracting Worlds: The Many Autonomies of Private Law:

Abstract: I. Il buon Governo Revisited II. Private Law in a Fragmented SocietyIII.Reconstructing Relational Contract (1) Contract as non-individual obligation (2) Contract as discursive project (3) Contract as interdiscursive translationIV. Normative Perspectives: Freedom of TranslationV. Discourse Rights in the Private Sphere

‘Truth and Reconciliation’ as Risks

Abstract: This article aims to situate the fascinating and deeply controversial work of the Truth and Reconciliation Commission in South Africa within a theoretical context that may explain how its attempt to overcome the tensions between truth seeking and amnesty giving stumbled on its use of law to bring about reconciliation. It locates the root of the problem in the dual nature of the TRC as public confessional and legal tribunal, and underlying it the incongruent logic of law on the one hand and reconciliation on the other, the former requiring the reductions of risks, the latter requiring risk to be embraced.

Dissident Voices: Refugees, Human Rights and Asylum in Europe:

Abstract: This article examines the law and politics of asylum in Europe. The aim is to explore both the construction of ‘Fortress Europe’ and the resistance within Europe to the dominant policy response. Hu...

Abortion, Autonomy and Prenatal Diagnosis

Abstract: The principle of patient self-determination has assumed central importance in British medical law in recent years. This article considers whether this increasingly strong commitment to patient autonomy has any resonance for abortion law. In particular, this article explores the possibility that the priority currently accorded to autonomous decision making may be in tension with the Abortion Act’s requirement that a woman’s reasons for seeking to terminate her pregnancy be judged acceptable by two medical practitioners. Moreover, interest in the moral legitimacy of a woman’s reasons for wanting to terminate her pregnancy seems to be intensifying. Concerns arising from the increasing availability of precise prenatal tests have led to suggestions that access to abortion should be further restricted in order to prevent the cavalier use of abortion for reasons that might seem trivial or misguided. Using abortion following prenatal diagnosis as an example, this article considers whether it is anomalous for the common law’s vigorous protection of an individual’s freedom to make irrational or morally objectionable choices about his or her medical treatment to coexist with demands for further restriction of the acceptable grounds for abortion.

Hierarchies and Government Versus Networks and Governance: Competing Regulatory Paradigms in Global Economic Regulation

Abstract: This article examines issues regarding economic policy co-ordination and regulation, using proposals for the reform of the international financial architecture as a case study of different paradigms for global economic co-ordination and regulation. Developments in global financial markets exemplify how the search for a regulatory paradigm for global capitalism is linked to the transformation that capitalism has undergone since the early 1970s. The contrast between hierarchical and network forms of regulation is examined, as are different conceptions of networks using international financial regulation as an example. The problems of legitimacy, accountability, and implementation in the network paradigm of regulation suggest that it remains an open question whether regulatory networks are capable of resolving fundamental problems of global capitalism.

The Government of Youth: Disorder and Dependence?

Abstract: This article is concerned with the Crime and Disorder Act, introduced by the Labour government in England & Wales. The Act’s central aim is the reduction of crime and disorder within local communit...

The Enigma of Free Speech: Speakers’ Corner, The Geography of Governance and a Crisis of Rationality:

Abstract: Officially sanctioned in 1872 by the Royal Parks and Gardens Regulation Act, Speakers’ Corner in Hyde Park, London is often seen as a potent symbol for free speech in Britain. Yet this image is hig...

Queer Readings of Europe: Gender Identity, Sexual Orientation and the (Im)potency of Rights Politics at the European Court of Justice:

Abstract: The aim of this article is to argue in favour of queer theory’s potential for non-essentialist politics and legal strategies within the European context. The issues raised focus on the connection b...

From Critical to Socio-Legal Studies: Three Dialectics in Search of a Subject:

Abstract: This article addresses the ‘gap’ between socio-legal studies and critical legal theory. Examining Derrida’s ‘Force of Law’, it argues that the fault lies as much with the latter’s marginalisation o...

Othering Knowledge and Unknowing Law: Oppositional Narratives in the Struggle for American Indian Religious Freedom

Abstract: This article explores the underlying pedagogical process implicit in the transformative use of narrative in formal legal settings. It examines the efforts of a diverse coalition of American Indian peoples and their advocates to strengthen the 1978 American Indian Religious Freedom Act by using the legislative process to ‘educate’ lawmakers about their religious beliefs and the urgency of their situations. I argue that longstanding orientalism and the need to perpetuate a colonizer/colonized dichotomy engendered an inability among decision makers and others in positions of influence to ‘learn’ from American Indian peoples, as well as a seeming paranoia concerning their empowerment. Moreover, the ‘antidialogic’ nature of the legislative process prevented the type of interaction necessary to overcome this resistance and engender effective and appropriate responses to the coalition’s efforts to ensure the well-being of their communities and religious lives. This case study demonstrates the ways in which subve...

Autonomy, Regulation and the Police Beat

Abstract: In this article, the historical development of the police beat in the context of liberal governance is explored. As a mechanism of surveillance, the beat was a continuation of rules of the nightly watch, characterized by a tight control over watchmen by fixing person, post and time. As a site of police autonomy, the patrol beat facilitated the furtherance of the enterprise of the amateur constabulary and cultivated police officer dominion by matching police authority to territorial imperatives. In this way, discipline and autonomy have been carved into the mobilization of police in an economy or surveillance and discretion. The legacy of night and day patrol offered an initial temporal organization to this economy, with prohibitions and permissions by time and place. Rather than compromising liberal distinctions, this patrol bifurcation allowed their perseverance by structuring police capacity to intervene into the lives of citizens. But while the legacy of liberal autonomy in the police beat has served t...

Justice De Proximité - The Growth of ‘Houses of Justice’ and Victim/Offender Mediation in France: A Very Unfrench Legal Response?

Abstract: Initiatives in mediation and reparation have developed significantly across diverse European countries, none more so than in France over the last decade. This article seeks to situate and explain the recent growth in France of the ‘Maisons de Justice’ (Houses of Justice) and victim/offender mediation they offer. This explanation is connected to an understanding of the increasingly dominant discourse of ‘justice de proximite’, its dynamics and its place within French juridical politics. The article draws upon ESRC funded empirical - observational and interview-based - research conducted in the Lyon and Paris areas during 1997. The article goes on to interrogate the implications of these institutions and practices for the present state of French criminal justice. It is argued that through the analysis of these ‘very unFrench’ legal responses we can prise open fundamental ambiguities and debates at the heart of French legal and cultural life in a period of momentous socio-legal challenge and flux. It is sugg...

Contested Identities: The Adoption of American Indian Children and the Liberal State:

Abstract: The Indian Child Welfare Act gives the tribes the power to determine the placement of Indian children. American Indian tribes are semi-sovereign entities which retain the power to control their internal affairs and are not constrained by the Constitution. In making child welfare determinations tribes engage in practices which in other cases would be unconstitutional: they apply group rights to trump parental interests and they determine tribal membership on the basis of criteria which are arguably racial. The Act reveals the irresolvable conflict between tribal norms and concepts of identity and those found in American liberalism.

My Body and Other Stories: Anorexia Nervosa and the Legal Politics of Embodiment:

Abstract: In a series of cases in the 1990s, English law confirmed the legality of tube feeding, detention and restraint of anorexic women. In declaring such practices lawful, English law has provided a space in which anorexic identity is constituted by reference to dominant discursive regimes of medical positivism and dualistic conceptions of the mind and body. This article examines critically law’s engagement with the anorexic body. It also considers possible modes of resistance, in particular the potential of poststructuralism, to make space for the resignifying of anorexic bodies in law.

Regulating dangerous futures: the German Embryo Protection Act of 1990--legislation in risk society.

Abstract: This article summarises the outcome of a research project which analyses the legislative debates about the German Embryonenschutzgesetz (Embryo Protection Act) in 1990. From 1988 to 1990 the German Parliament discussed legislation for the practices of assisted conception and embryo research. The term ‘risk’ is central to the discourse. For Ulrich Beck (1986) this emphasis on risk is a sign of the reflexivity which contemporary western societies have reached.This article reads back into the risk discourse the values hidden in risk terminology: they are identified as fears about modernisation processes. The focus on risk in this article allows observation of late modernity’s unease about its own potential and a growing ambiguity about modern ideas of progress and control (Bauman, 1991). This ambiguity also becomes apparent in the strategies of policing which the German legislature offers as solutions to the perceived risks: different legislative strategies are developed to tackle the contradictory risk scen...

Dealing with Insolvency and Indebted Individuals in respect to Law and Morals

Abstract: This article is focused on the social and moral problems of insolvency and indebtedness, presenting and analysing the legal structure of the Swedish Act (1994) of Reconstruction of Insolvency. The analysis is related to a revitalisation of Durkheim’s sociology on the forms of social solidarity and, thereby, to the search for moral bonds in our modern and rationalised society. Thus, the analysis will focus on the importance of the sacred symbolism of making efforts and presenting good will. By connecting the insolvency law to a Durkheimian analysis of social solidarity, the article presents functionality and morality as different forces that emphasise the ‘sacred symbolism of punishment’, in order to both strengthen ‘work ethics’ and make legitimate the principle of social welfare and the ‘security net’. According to the analysis, an individual must trustworthily deserve, in a moral sense, the legal opportunity of clearing his or her debts. The clearing of the debt must be pointed out as fair and proved, t...

Justification (and Justifiability) of Private Law in a Polycontextural World

Abstract: THE COMBINED trends of globalization and privatization have intensified a long-standing debate over the role and the underlying normative orientations of private law. To what extent can a modern society, committed to providing a decent standard of citizenship even to disadvantaged social groups, rely on private law in order to promote democratic goals? In his article,1 Professor Teubner proposes what he calls a ‘strictly antieconomic’ view of private law. To the extent that, in a massive retreat of government and public law, ‘more and more social activities are taken over by private governance regimes’, private law ‘should transform itself into a constitutional law for global regimes of private governance’. The new constitutional role of private law is to make concerns with justice and equality re-emerge in the new private governance regimes (PGR) themselves – such as contracting, technical standardization, professional rule production, etc. Private law should show partisanship with those ‘discourses’ that are endangered when unchecked economic or technical discourses overstep their proper boundaries. Private law should map the limits of, and protect against, ‘totalitarian’ intrusions, the ‘constitutional rights’ of the ‘discourses’, which are respectively involved in the process of private self-regulation; it should prepare the ground for an ongoing process of ‘interdiscursive translation’ between discourses and enable this process to lead to a ‘fragile symmetry of chances of translation’. My aim in this comment is to explore three issues that I take to be crucial to both Teubner’s article as well as to the whole contemporary debate on

The limits of concept formation in legal science

Abstract: WHEN READING the work of Gunther Teubner, I, for one, am almost always plagued by the fear that I am not up to date with the latest intellectual trends in the two substantive subjects in which I am most interested, company law and, of relevance here, contract. Of course, reading Teubner also makes me fear that I am not up to date with the trends in general social theory, but I am resigned to, indeed sanguine about, this. In 1984–5, as I moved towards the completion of my PhD in sociolegal studies, I made a deliberate choice to in future specialize in law rather than sociology because I was of the opinion that general social theory after Parsons had become quite unproductive. In a move which to me seemed rather to give the game away, the prosaic but, one would have thought, useful goal of the ‘explanation’ of phenomena had given way to their ‘theorization’. As pursuit of objectivity was thought horribly gauche, one’s esteem as a sociologist had become strongly positively correlated to the theoretical complication of one’s work, with the apogee of achievement appearing to be outright incomprehensibility. I flatter myself that the utter worthlessness of a great deal of the vast, subsequent, sociological literature confirms my opinion, which I find is now widely shared in sociology itself. As the golden age of post-war capitalism drew to its end, sociology no longer seemed to think it could help in a crisis (Sorokin, 1950) but, somewhat solipsistically, was always preoccupied with being in a crisis itself (Boudon, 1980; Gouldner, 1971). Many of its best exponents now pronounce it ultimately doomed (van den Berghe, 1990: 173)1 or even now decomposing (Horowitz, 1993). Even were it to have the hubris that might allow it to do so, the law of contract can take little comfort from this, for its own best exponents have, of course, over the same period themselves been preoccupied with The Death of Contract (Gilmore, 1974). But there is, I suggest, a very different quality to the two deaths. It is what is new in general social theory that seems unable to equal the accomplishments of the classics (unless it just repeats them), whereas it is quite the reverse in contract. It is the classical law of contract

The Not-Mother Puzzle

Abstract: Feminist debate has moved away from an emphasis on how women differ from men and towards acknowledgement of differences among women. This article explores a division of growing importance for the new millennium: the division between women who choose to remain childless and those who choose to become mothers. The article demonstrates that more women are choosing to remain childless in the UK and the USA. It claims that the increase in childlessness is a demographic trend that is affecting the whole of the western, developed world. The main point of the article is to suggest that the way sex discrimination law is currently structured means that the demographic change identified will work to the disadvantage of both mothers and not-mothers.

Crowning Glory: Public Law, Power and the Monarchy:

Abstract: ‘New public law’ has a keen interest in the deployment of power and the shifting nature of the public and private. In this article, we argue that the historical legacy of the Crown has hindered the ability of public lawyers to respond to changes in modes of governance in the UK. The constitutional law textbook tradition has played a key role in limiting critiques of the Crown because of the obfuscation that surrounds the legal and political status of the Monarch. However, instead of discounting the significance of the monarchy, we use it as a resource for exploring governing power, the blurring of boundaries and constitutional renewal. Our starting point is the life, death and, most importantly, the funeral of Diana, Princess of Wales. The latter event exposed the political relevance of the ‘personal’ in a most dramatic way, generating claims about the ‘feminisation of the government’ and ‘emotions augmenting democracy’. We follow through on these claims in order to focus on the effects of adopting private, intimate-sphere norms in the public sphere, in particular public-sphere decision making. While aware of the risks associated with this ‘transformation’ of democracy, we conclude that the increasing centrality of the intimate merits onsideration in new public law’s search for progressive tools of modern governance.

Contesting the Rule of Emotions? The Press and Enforced Caesareans

Abstract: The mass media are becoming increasingly interested in legal trials. This has led to concerns that legal rationality could be threatened by an emotionally driven media spectacle. The dichotomy between emotions and law has recently come to the fore in the enforced caesarean case of St George’s Healthcare NHS Trust v S[1998]. Studying the press reports on this case, my argument is that maintaining this dichotomy can produce the undesirable effect of justifying coercive medical treatment of pregnant women as an authentic, natural and spontaneous response. Emotions in this respect have to be denaturalized. Coercive surgery for pregnant women is neither a universal nor a necessary response, but one that has to be situated in its appropriate ideological, cultural and philosophical context. This requires attention to be focused on the fluidity and possible interconnections of law and emotions, and not so much on their polarity and mutual exclusion.

Book Review: Governing Out of Order: Space, Law and the Politics of Belonging

Abstract: course, i.e. the level of everyday interactions, for example, in courts and mediation settings, and the level of macro-discourse, i.e. law as a broader site of power, can be established. This is my principal concern about the book: although language runs as a common thread through the rich collection of empirical research, the book juxtaposes, rather than integrates, different perspectives. An important reason for this is the lack of a theoretical framework which incorporates general findings from the field of ethnography, semiotics and socio-legal studies. For example, one of the questions that remain unanswered by the book is whether language merely reflects or reproduces power, or if there is scope for resistance as well. Are disempowered groups simply being crushed by the legal system because of their exclusion from specific linguistic practices? Are we not underestimating their resilience? Here, the limits of micro-linguistic analysis become clear. Language is not the only way of realising the power of law: non-linguistic elements also have to be taken into account to explain the might of the law in everyday settings. Goodrich (1990: 188), for example, argues that factors such as the architecture of court buildings and the spatial arrangement of court rooms are important in embodying the law’s power. Other research suggests that, despite the hegemonic force of legal discourse, people can resist, albeit in very subtle ways.1 This raises the question of whether linguistic analysis alone is sufficient as a method to capture the complex links between the microand macro-levels of legal discourse. After this book, it will be sufficiently clear that language fulfils a pivotal role in maintaining and reproducing the power of law. For future research, a main preoccupation is to determine more precisely how language interacts with other elements which contribute to the dynamics of power and resistance in law.

Book Review: Folk Understanding: In the Shadow of the Common Law

Abstract: IT WAS from Java in 1814 that Thomas Raffles announced the broad policy regarding the application of law in the colonies of the Malay Archipelago: ‘a judge shall be guided in his decisions by existing native laws and ancient customs, provided the same be not decidedly at variance with the universal and acknowledged principles of natural justice’ (van den Burgh, 1994). In one sense the dictate encapsulates one of the most commented on yet, in many senses underanalysed, features of the place of western law in the former colonies. Namely, that in spite of metropolitan sensibilities, colonial forms of legality had, for different reasons, to exist alongside the pre-existing rituals and traditions of customary law. Raffles’ pronouncement also stipulates an exclusion clause in the contract between the colonial and the colonized. Throughout the former British Empire the laws and customs of locals were recognized and deemed valid. Nevertheless, local custom could not supersede the principles of natural justice laid down by the British. Resident customs and rituals associated with the resolution of disputes were permissible in so far as they were not repugnant to ‘universal’ values of humanity – principles that were determined, of course, according to the occidental standards of the colonizers. While the principles of natural justice were, of course, vague, the idea that

Book Review: Negotiating Domestic Violence: Police, Criminal Justice and Victims:

Abstract: killer motivated by satisfaction of his own sadistic pleasure. Second, in looking at the reason for the action rather than the state of mind that accompanied it we can openly judge whether the motivation displays a failure to respect the worth of the victim, rather than labour to find (or fabricate) the required cognitive state. This renders the traditional cognitive state unnecessary. It does not matter that the frenzied killer at the time of the killing had no intention to kill if the motive for engaging in that frenzied attack indicated a failure to respect the worth of the victim. Pillsbury considers the value of clear legal doctrine to lie in providing an antidote to unrestrained emotionalism (chapter 5) and a safeguard against ‘the otherness temptation’ (pp. 69–70, 103) – vague law permits decision makers to engage in prejudicial assessments of offenders from different groups to themselves. Reforms of the principal homicide offences, including homicide under provocation, are proposed in section II with model jury directions helpfully provided in an Appendix. The results provide an interesting comparator to an approach dependent on finding a hierarchy of culpability within different cognitive states, such as found in Stanley Yeo’s proposals for reform over the same area of substantive law, which are strongly influenced by the Indian Penal Code (Yeo, 1997, 1998). Notably, Pillsbury would allow us to recognize a form of ‘extreme indifference’ murder, which might provide a more transparent approach to that favoured in the English courts where the category has been constructed on a purported form of intention. One ironic fallout from Pillsbury’s substantive proposals is doubt of his general model of criminal responsibility. The emphasis on the motive of the individual leads to a judgement of selfishness (pp. 112, 175, 178, 184) but selfishness is essentially an attribute of character not a description of conduct (notwithstanding the transferred epithet on p. 26), which means that Pillsbury’s crucial distinction between character and conduct is suspect. It is also possible to consider further how one can rely on reasons for action as the location of culpabilty. If such reasons are distinct from the internal mechanical processes of the mind, what is the aspect of human nature to which they relate? Although Pillsbury initially steps away from models of the mind, he subsequently resorts to insights of cognitive science to strengthen his case for finding indifference culpable (chapter 9). That we need more than this book provides to complete our understanding of criminal responsibility is not a remark the author would challenge (p. xi). The particular merits of this book allow it to refine our understanding of the issues involved, and offer some serious suggestions on improving the practice of the law.