Showing papers in "Social & Legal Studies in 2014"
TL;DR: The connection between constitutional law and private law was already anticipated by the very earliest sociotheoretical reflections on constitutional law as mentioned in this paper, for instance, in the writings of theorists as diverse as Savigny and Marx.
Abstract: Conventionally, normative and analytical philosophical approaches (i.e., those of Rawls, Dworkin, Alexy, etc) occupied an unshakably dominant position in constitutional theory. Theories of constitutional rule typically isolated the aspect of constitutionalism concerned with fundamental rights from other constitutional functions, and they usually revolved around the attempt to explain constitutions as documents expressing rationally defensible norms to govern the distinctively public exchanges of society. This dominance of analytical theory in constitutional inquiry was flanked and reinforced by the fact that ‘sociolegal’ analysis – with its own particular methodologies and emphases – had retreated from, or in fact had never really taken occupancy of, the sphere of constitutional debate, and it tended to concern itself with questions located in the sphere of private law, in regulation, or in criminology; the primary overlap of sociolegal analysis with a particular subdiscipline of law is clearly still now with criminology. In the rare cases in which more conventional sociological reflection placed a focus on constitutional law, for instance, in the works of Gunther Teubner and other theorists influenced by him, it usually located constitutional law on a continuum with private law. Indeed, the connection between constitutional law and private law was already anticipated by the very earliest sociotheoretical reflections on constitutional law – for instance, in the writings of theorists as diverse as Savigny and Marx. In contemporary debate, the indifference of legal sociology toward constitutional law (construed categorically as public law) is no doubt in part attributable to the fact that the field of sociolegal studies evolved in tandem with the development of research on legal pluralism and with the growth of attendant theoretical and explanatory models. In the spirit of Eugen Ehrlich, analysis of legal pluralism was historically associated with the sphere of private–legal relations, which meant that sociolegal inquiry into constitutional norms was also directed toward the domain of
116 citations
TL;DR: In this article, the authors examine how street-level bureaucrats within migration control use their scope for discretionary powers, on the basis of two ethnographic studies of French consulates in Yaounde and Tu...
Abstract: 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 Yaounde and Tu...
98 citations
TL;DR: To refine wholesale accounts of transnationalism, scholars have cited the amplification of border enforcement and immigration control Whilst received analysis emphasizes multiple processes whether transnationalisms are transnational or not as discussed by the authors.
Abstract: To refine wholesale accounts of transnationalism, scholars have cited the amplification of border enforcement and immigration control Whilst received analysis emphasizes multiple processes whether
63 citations
TL;DR: Since the early 1990s, wartime rape has been successfully prosecuted as a war crime, a crime against humanity and a crime of genocide as discussed by the authors, and women have been subjected to an unprecedented attent...
Abstract: 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 attent...
58 citations
TL;DR: In this article, the authors investigated the influence of different modes of presentation on jurors' perceptions of adult sexual offence complainants during a mini-rape trial, including live-links, video-recorded evidence-in-chief followed by live-link cross-examination and protective screens.
Abstract: 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
44 citations
TL;DR: In this article, the authors argue that the observed discursive reality affects construction of heteronormative citizenship that restricts full inclusion of lesbians and gay men via silencing, which is supported by an analysis of that historical context that may be grasped from empirical studies of the Soviet.
Abstract: 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.
34 citations
TL;DR: In this paper, the authors make use of a case study undertaken in the shipping industry in the course of which they carefully discussed the drivers of compliance with seafarers and with ship managers, charterers and related personnel.
Abstract: 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.
28 citations
TL;DR: The Council of Europe 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 as mentioned in this paper.
Abstract: 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.
26 citations
TL;DR: In this article, the authors consider how international criminal courts produce knowledge about women's experiences of large-scale violence and show that the International Criminal Tribunal for Yugoslavia concluded in 2001 that women were not involved in any of the crimes.
Abstract: 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 t...
21 citations
TL;DR: In this paper, the United Nations special rapporteur on the rights of indigenous peoples has argued 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.
Abstract: 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...
20 citations
TL;DR: In this article, the authors employ the concept of 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.
Abstract: 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.
TL;DR: The authors analyzes how two Russian human rights practitioners, 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.
Abstract: 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 restri...
TL;DR: In this article, 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, is examined.
Abstract: 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 inequali...
TL;DR: In this article, the authors examine the importance of Hauke Brunkhorst's work for the sociology of law, arguing that it provides new bearings for contemporary legal-sociological research.
Abstract: This article critically examines the importance of Hauke Brunkhorst’s work for the sociology of law, arguing that it provides new bearings for contemporary legal–sociological research. It pays particular attention to his methodological fusion of Systems Theory and Critical Theory and to the analysis of the correlation between national and cosmopolitan political structures in his theory of legal normativity. The article concludes by offering an alternative framework for observing the sociolegal processes at the center of Brunkhorst’s work.
TL;DR: In this paper, the authors describe 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).
Abstract: 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 humanrights 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.
TL;DR: 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.
Abstract: 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 criminalisatio...
TL;DR: The authors address 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 of cultural difference.
Abstract: 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...
TL;DR: In this article, 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.
Abstract: 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.
TL;DR: The authors examines the jurisprudential legacy of the Israeli Supreme Court in the context of the prolonged Israeli occupation of Palestine and questions the utility of using the activist and passive labels.
Abstract: 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.
TL;DR: The residential home inspection has been a growth industry in Canada and the United States since its emergence in the 1970s as mentioned in this paper, and it is a legal context where the purchase of used housing is legal.
Abstract: 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...
TL;DR: The call to recognize the significance of normative progress through evolutionary mechanisms of adaptation and revolutionary moments of irruption is a key aspect of Hauke Brunkhorst's oeuvre.
Abstract: The call to recognize the significance of normative progress through evolutionary mechanisms of adaptation and revolutionary moments of irruption is a key aspect of Hauke Brunkhorst’s oeuvre. His t...
TL;DR: Given the lack of a national state commitment to care, the reliance on individual market solutions, the dependency on faith-based agencies to meet additional care needs and, perhaps more importantly, to reinforce the care regime by defining normative family care obligations, there is little need to call upon lesbian and gay citizens to help fill a care gap as mentioned in this paper.
Abstract: Given the lack of a national-state commitment to care, the reliance on individual market solutions, the dependency on faith-based agencies to meet additional care needs and, perhaps more importantly, to reinforce the care regime by defining normative family care obligations, there is little need to call upon lesbian and gay citizens to help fill a care gap . . . In this context, and without federal non-discrimination protections, it is inevitable that lesbian and gay citizens will continue to be marginalized (p. 131–132).
TL;DR: In this article, a critical response to the recent work of Hauke Brunkhorst is presented, raising questions about the theory construction underlying this work, notably the elements of Brun...
Abstract: This article sets out a critical response to the recent work of Hauke Brunkhorst. In particular, it raises questions about the theory construction underlying this work, notably the elements of Brun...
TL;DR: In this article, the authors provide an overview and critical analysis of Brunkhorst's forthcoming book Critical Theory of Legal Revolutions (CTLRS) and briefly analyze the specific way in which Brunkholst's innova...
Abstract: This article provides an overview and critical analysis of Brunkhorst’s forthcoming book Critical Theory of Legal Revolutions. First, I briefly analyze the specific way in which Brunkhorst’s innova...
TL;DR: In this paper, the authors present a collection of animal law essays framed by continental philosophy, focusing on animal law critiques of the concepts of personhood, property, rights, jurisdiction and subjecthood.
Abstract: both in selection of topics and insights offered. The reader looking for unconventional, eclectic and stimulating interdisciplinary assessments of animals in the law, especially those framed by continental philosophy, should be pleased. Scholars interested in new and varied animal law critiques of the concepts of personhood, property, rights, jurisdiction and subjecthood will also be rewarded. The reader who prioritises clearly articulated theses, methodical argumentation or concrete recommendations, however, may be disappointed. Readers immersed in the field of critical animal studies that adopt non-liberal approaches themselves, but incorporate an anti-oppressive agenda as part of their scholarship, may also be dissatisfied with about half of the contributions. Dissatisfaction may result from the post-structuralist imprint to much of the book and the under-representation/absence of feminist, queer, postcolonial, socialist or disability perspectives. The text also has more than its fair share of typos. Nevertheless, the collection should be picked up by all scholars interested in animal law or critical theories in relation to non-human animals to formulate their own views about its innovative direction for animal law.
TL;DR: For instance, this article found that there is a higher rate of conviction in multiple perpetrator rapes than applies in relation to lone perpetrator allegations, but there is little evidence of this translating into an increased penalty for group assailants when it comes to judicial sentencing.
Abstract: ment of allegations of lone perpetrator rape in the courts. Its findings suggest a higher rate of conviction in multiple perpetrator rapes (or at least in those that make it to trial) than applies in relation to lone perpetrator allegations, but there is little evidence of this translating into an increased penalty for group assailants when it comes to judicial sentencing. There is much to commend in this book – its range of contributors, its efforts at multidisciplinary engagement, its call to attend to an area of social and sexual politics that as yet has attracted remarkably little scholarly attention, and in particular, its clear-sighted and honest appraisal of what is known, what can be hypothesized and what as yet can barely be contemplated. This is a book that poses questions – often difficult and uncomfortable ones – far more than it provides answers, but it is by no means less valuable for it. As a reader who has spent over a decade reflecting on the topic of rape, it subtly – and quite rightly – cautioned me for a tendency to focus on the lone perpetrator as the paradigm and provoked a keener interest in what we might learn about sexual violence, criminal justice policy, concepts of responsibility, patterns of socialization and normalization, and constructs of masculinity, gender and sexuality by focussing directly on multiple perpetrator rape.
TL;DR: In an acrimonious phone call a day before the House of Commons voted against British involvement in military intervention in Syria, Prime Minister David Cameron was reported to have accused Ed Miliband, the Labour Party leader, of "letting down America" and "siding with [Sergei] Lavrov" as discussed by the authors.
Abstract: In an acrimonious phone call a day before the House of Commons voted against British involvement in military intervention in Syria, Prime Minister David Cameron was reported to have accused Ed Miliband, the Labour Party leader, of ‘letting down America’ and ‘siding with [Sergei] Lavrov’, the Russian foreign minister (Mason, 2013). The Commons’ unprecedented vote against military intervention in Syria was striking in view of the fact that the United Kingdom has been involved in almost every single US military intervention since the end of the Cold War, most recently in Libya, where Russian interests were also affected. On this occasion, however, Russia put its foot down and used its veto in the Security Council (along with China) to prevent there being a legal basis for armed intervention on the territory of the Syrian Arab Republic. Russia and China’s repeated vetoes prompted Prime Minister Cameron to seek parliamentary support in order to circumvent the United Nations (UN) Security Council ‘to alleviate
TL;DR: The authors make a very clear case for the importance of the routinised, and the day-to-day, to the constitution of legality, and of the relevance of ethnographic methods to bring to light these aspects of the law that are so central to its mechanisms, and to the nature of social relationships to law.
Abstract: that inspired Jacob’s project has demonstrated. It would have been interesting to see her elaborate further on the relevance of these more general contributions of the book to the field of socio-legal studies – or interdisciplinary legal studies more generally, but much of this will have been apparent to the reader from the rest of the chapters, and overall, the book is exemplary of a type of scholarship that provokes much reflection not only on what legality is, and how it matters, but also of how we can go about studying it. Throughout, Jacob makes a very clear case for the importance of the routinised, and the day-to-day, to the constitution of legality, and of the relevance of ethnographic methods to bring to light these aspects of the law that are so central to its mechanisms, and to the constitution of social relationships to law. For this reason in particular, the book will be of real interest to interdisciplinary legal scholars concerned with such methodological reflections. The data and the stories told, meanwhile, are fascinating in their own right.