Showing papers in "Social & Legal Studies in 2017"
TL;DR: In the quarter-century that Social & Legal Studies has been published, regulation has emerged as a new, and for many exciting, interdisciplinary field as mentioned in this paper, and regulation itself requires a wider view of n...
Abstract: In the quarter-century that Social & Legal Studies has been published, regulation has emerged as a new, and for many exciting, interdisciplinary field. The concept itself requires a wider view of n...
186 citations
TL;DR: Brown et al. as mentioned in this paper used court observations to explore what is actually happening in adult rape and sexual assault trials and found that rape myths are still routinely used at trial, but that they are sometimes resisted using judicial directions or prosecution comments.
Abstract: Court responses to rape and sexual assault have been repeatedly criticized in England and Wales (Brown et al., 2010). In particular, research has identified prevalent stereotypes about rape in both the criminal justice system and wider society, with these rape myths often being used as the predominant explanation for inadequate victim/survivor treatment (see Temkin and Krahe, 2008). The existing literature, though, tends to rely on interviews or is outdated by policy, so the present research uses court observations to explore what is actually happening in adult rape and sexual assault trials. The findings show that rape myths are still routinely used at trial, but that they are sometimes resisted using judicial directions or prosecution comments. In addition, the research highlights how rape myths are kept ‘relevant’ to trial through a focus on inconsistencies, a dichotomy of wholly truthful/untruthful witnesses, and conceptualisations of ‘rational’ behaviour as being the ‘normal’ way to act. These findings provide a new understanding of rape myths and have implications for policy; in particular, that while training legal professionals is helpful, it cannot be expected to fully address the use of rape myths.
73 citations
TL;DR: Although the consent threshold remains fundamental to the demarcation of acceptable from unacceptable forms of behaviour within contemporary sexual offences law and policy, there has clearly been a shift in the acceptance of sexual conduct as discussed by the authors.
Abstract: Although the consent threshold remains fundamental to the demarcation of acceptable from unacceptable forms of behaviour within contemporary sexual offences law and policy, there has clearly been a...
33 citations
TL;DR: In this article, the authors explore contemporary contestations surrounding women's inheritance of land in Africa and compare the approach of Tanzania to that of its neighbours, Uganda, Kenya and Rwanda, and argue that a progressive approach to constitutional and law reform on women's land rights requires understanding of the realities of claims to family land based on kinship relations.
Abstract: This article explores contemporary contestations surrounding women’s inheritance of land in Africa. Legal activism has gained momentum, both in agendas for law reform and in test case litigation, which reached the United Nations Committee on the Elimination of Discrimination against Women in ES and SC v. United Republic of Tanzania. Comparing the approach of Tanzania to that of its neighbours, Uganda, Kenya and Rwanda, this article explores patterns of resistance and omission towards enshrining an equal right to inherit in land and succession laws. It identifies two main reasons: neoliberal drivers for land law reform of the 1990s and sociopolitical sensitivity surrounding inheritance of land. It argues that a progressive approach to constitutional and law reform on women’s land rights requires understanding of the realities of claims to family land based on kinship relations. It calls for a holistic approach to land, marriage and inheritance law reform underpinned with constitutional rights to equality a...
32 citations
TL;DR: This article argued that the articulation of British values included in the guidance conflicts with the UK'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.
Abstract: 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 UK’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.
30 citations
TL;DR: In 2005, the Australian State of Victoria abolished the controversial partial defence of provocation as mentioned in this paper, and part of the impetus for the reforms was to challenge provocation's victim-blaming narratives.
Abstract: 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 an...
21 citations
TL;DR: 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 pro...
Abstract: 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 pro...
21 citations
TL;DR: In this article, the authors reveal the ways in which concepts associated with the humanities inform determinations of "outstanding universal" aesthetic value of natural heritage under the World Heritage Conventi.
Abstract: This article reveals the ways in which concepts associated with the humanities inform determinations of ‘outstanding universal’ aesthetic value of natural heritage under the World Heritage Conventi
20 citations
TL;DR: The field of comparative law has been extensively studied in the literature from the vantage of sociolegal studies (see as discussed by the authors for a comprehensive survey of comparative legal literature, with a focus on sociolegal readers and comparatists).
Abstract: This article reviews the field of comparative law, which includes many varieties, from the vantage of sociolegal studies. Debates among comparatists appear sharp, even combative. In an effort to quell doubts and to establish their field’s distinctiveness, a number of comparatists essentially urge their fellows to abandon some varieties of comparative law and to unite around particular approaches. Such dogmatism is startling in a field purportedly founded on an interest in pluralism and difference. By contrast, this article’s animating view is that ambitions to impose a single approach or to ‘win’ methodological ‘debates’ are misguided. Comparative law’s eclecticism is unavoidable – perhaps happily so. As Fletcher (1998: 691) observes, however, not all writing about foreign law is ‘theoretical or interesting’. This article contends that within comparative law’s eclecticism, the richest insights and greatest potential for sociolegal scholars arise from the field’s kinship with other stripes of critical legal scholarship and with cognate disciplines. These insights emerge from discussions of method and from varieties that prioritize understanding law in relation to its surrounding society and understanding law generally. A caveat before proceeding. Comparative journals, handbooks, collections and Festschrifts abound and scholars have repeatedly mapped the field. It would be rash, then, to aim for exhaustiveness. To foreground a glaring incompleteness, this review focuses on literature published in English. The goal is not to translate for the reader data from exotic, faraway lands – or from nearer French-speaking jurisdictions. While space constraints imposed painful exclusions, a handful of authors appear more than once, giving a sense of scholarly conversations. The hope is that this survey, despite its limitations, will prove instructive and perhaps provocative, primarily to sociolegal readers and secondarily to comparatists.
19 citations
TL;DR: In this paper, a qualitative research project was conducted in three Indigenous communities in the West Kimberley region of Western Australia, intended to develop diversionary pathways for Indigenous young people with FASD at risk of enmeshment in the justice system.
Abstract: Foetal alcohol spectrum disorder (FASD) is a non-diagnostic umbrella term encompassing a spectrum of disorders caused by prenatal alcohol exposure This article reports on a qualitative research project undertaken in three Indigenous communities in the West Kimberley region of Western Australia, intended to develop diversionary pathways for Indigenous young people with FASD at risk of enmeshment in the justice system Rates of FASD in some parts of the West Kimberley are comparable to the highest identified internationally A diagnosis of FASD amplifies the chances of Indigenous youth being caught up in the justice system in Western Australia, including indefinite detention in prison if found unfit to stand trial A fresh diversionary paradigm is required Employing a postcolonial perspective, we explore issues surrounding law and justice intervention – and non-intervention – in the lives of Indigenous children and their families The FASD problem cannot be uncoupled from the history of colonial settlemen
19 citations
TL;DR: A review of shifts in feminist legal theory since the early 1990s can be found in this paper, with a brief overview of the history and fields of expertise of these shifts. But this review is limited to women's legal theory.
Abstract: This article offers a review of shifts in feminist legal theory since the early 1990s. We first use our respective histories and fields of expertise to provide a brief overview and highlight some k...
TL;DR: Wang et al. as discussed by the authors revealed that the constructed evidence is subject to manipulation and distortion designed to enhance the incrimination of the accused, and that the current criminal justice system in China is structurally weak and fails to function as a truth-finding process.
Abstract: 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.
TL;DR: In this article, the authors identify three different typified "whole-case narratives" within which defendants' performances of remorse assume differential levels of importance, arguing for a more holistic and narrative understanding of sentencing practices.
Abstract: The presence or absence of ‘signs of remorse’ is often understood to have consequences for judges’ sentencing decisions. However, these findings raise the questions, first, how ‘remorse’ is communicated and demonstrated by defendants within court settings, and second, whether remorse plays a uniform role across and between various offence and offender types. Drawing on ethnographic data gathered in a Dutch criminal court, we contextualize remorse to answer these questions. First, we demonstrate that the performance of remorse has to strike a fine balance between potentially competing legal and moral narrative demands. Second, we identify three different typified ‘whole-case narratives’, within which defendants’ performances of remorse assume differential levels of importance. In doing so, we seek to complicate binary portrayals of the role and consequences of remorse, arguing for a more holistic and narrative understanding of sentencing practices.
TL;DR: This article explored the political/esthetic theory of Jacques Ranciere in order to explore the dimensions of this project as an intervention in the field of sociolegal studies from the Journal's inception to contemporary concerns.
Abstract: The study of sexuality has been and remains a seminal project for Social & Legal Studies. This article utilizes the political/esthetic theory of Jacques Ranciere in order to explore the dimensions of this project as an intervention in the field of sociolegal studies from the Journal’s inception to contemporary concerns. Early studies of sexuality in the Journal developed three methodological themes: law as deconstructable process, as consequential for the performative aspects of nonessentialized identities, and as potentially destabilized by highly mobile rights claiming. This article seeks to understand whether this unique agenda for the study of gender, sexuality, and law remains viable. It concludes that the nonessentialist fluidity of gender and sexuality which framed early approaches to the study of the consequences of rights and the relationship of sexual and gender identity requires renewed attention to the structures of race, colonialism, and imperialism enabling and enabled by contemporary queer ...
TL;DR: The 25th anniversary of Social and Legal Studies (SLS) was marked by an assessment of the evolution of socio-legal scholarship on the Third World in this paper, and the journal's commitment to non-western perspectives on law and its engagement with the work of Third World scholars.
Abstract: n this review to mark the 25th anniversary of Social and Legal Studies (SLS), we offer an assessment of the evolution of socio-legal scholarship on the Third World. We seek to locate the journal in the broader history of socio-legal studies and legal education in the United Kingdom and to consider its engagement with the work of Third World scholars. In order to do this, we recall the founding commitment of the journal’s first editorial board to non-western perspectives on law and locate this commitment both historically and biographically. We explore a number of important interventions concerned with socio-legal studies in the Third World, but also point to significant gaps and omissions since 1992. To end, we argue for a reassertion of SLS’s founding commitments to anti-imperial scholarship and the challenges posed by critical, non-western perspectives.
TL;DR: In this article, the role played by disgust in the government of sexual minorities in Uganda was examined and an account of government by emotion, or affective governmentality was provided by drawing on the literature on disgust, appropriating elements from various disciplines and perspectives and bringing them under a Foucauldian umbrella.
Abstract: 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 expose. 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.
TL;DR: The authors argued that women's resistance to their gendered oppression in the form of forced marriage should be seen as a valid expression of their political opinion and agency, and that the political opinion ground can indeed be relevant to women's asylum claims involving forced marriage.
Abstract: Women continue to face challenges in having their asylum claims recognised under the Refugee Convention. This is to a significant extent due to the ways in which the Convention is applied to women’s claims, and is particularly the case in gender-based persecution claims. While there have been important advances in the field of gender and refugee law, contributing to an improved understanding of the relevance of gender within international refugee law, there remains a need for more gender-sensitive interpretations of the Convention. This article critiques the ways in which the political opinion ground of the Refugee Convention has been applied to some women’s forced marriage claims in the UK. Women’s gender-based persecution claims are often categorised under the membership of a particular social group ground and the political opinion ground remains an underused and narrowly interpreted category. Drawing on feminist critiques, it is argued that this demonstrates an underlying gendered politics, and that the political opinion ground can indeed be relevant to women’s asylum claims involving forced marriage. Women’s resistance to their gendered oppression in the form of forced marriage should be seen as a valid expression of their political opinion and agency.
TL;DR: In this article, the juridico-political space of the prisoner of war (POW) camp is investigated and the authors determine the nature of this space by looking at the experience of war captiv...
Abstract: 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 captiv...
TL;DR: In this paper, the authors uncover how, in attempting to ameliorate the vulnerability of children, the offence of "causing or allowing the death of the child" criminalizes abused mothers.
Abstract: This article aims to uncover how, in attempting to ameliorate the vulnerability of children, the offence of ‘causing or allowing the death of the child’ criminalizes abused mothers. It explores how...
TL;DR: The authors argued that older lesbians and gay men are multiply disadvantaged by an increased risk of feeling that life is not worth living due to affective inequalities (inadequate informal and formal social support) and by a denial of access to the right to die both under such circumstances and/or if they wish to resist the normativities associated with a passive, medicalized death.
Abstract: This article considers the ‘right to die’ debate from the perspectives of older lesbians and gay men, drawing upon data gathered for a PhD in law. My argument is that older lesbians and gay men are multiply disadvantaged (a) by an increased risk of feeling that life is not worth living due to affective inequalities (inadequate informal and formal social support) and (b) by a denial of access to the right to die both under such circumstances and/or if they wish to resist the normativities associated with a passive, medicalized death. I argue for the need to distinguish between a wish to die because of deficiencies in the care system and a wish to die in order to control how, when and where one’s life ends. My analysis highlights the contextual contingencies of ‘vulnerability’ in relation to the right to die and interrogates the heterosexist and disciplinary reproductive normativities underpinning the notions of ‘natural’ deaths.
TL;DR: In this article, the authors use case studies from their experiences as researchers in a UK Law School, alongside a small-scale survey of sociolegal researchers in other UK law schools, to illustrate the problems that can arise in securing ethical approval for sociolegal research, in particular with participatory research designs that mobilize ideas of mental distress and objectivity not premised on conventional medical understandings.
Abstract: This article illustrates how medicalized epistemologies and methodologies significantly influence the institutional ethical review processes applied to sociolegal research in law schools. It argues this development has elevated particular renderings of mental distress and objectivity to universal definitions, potentially placing a straitjacket on methodological innovation. The authors use two case studies from their experiences as researchers in a UK Law School, alongside a small-scale survey of sociolegal researchers in other UK law schools, to illustrate the problems that can arise in securing ethical approval for sociolegal research, in particular with participatory research designs that mobilize ideas of mental distress and objectivity not premised on conventional medical understandings. The article develops key proposals that the authors feel merit further inquiry. First, there should be a comprehensive evaluation of how the jurisdiction of ethical review for sociolegal research is established. Secon...
TL;DR: In recent years, Ireland has been rocked by revelations of historical child sexual abuse as discussed by the authors, which has led to a variety of state responses but one question remains particularly difficult to answer: why...
Abstract: In recent years, Ireland has been rocked by revelations of historical child sexual abuse. This has led to a variety of state responses but one question remains particularly difficult to answer: why...
TL;DR: In the context of prolonged occupation, it has long been argued as discussed by the authors that the Israeli Supreme Court (ISC), in High Court of Justice (HCJ) formation, is facilitating the entrenchment of a permanent regim...
Abstract: 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 regim...
TL;DR: 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 tri... as discussed by the authors.
Abstract: 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 tri...
TL;DR: In this paper, the authors examine the implications of eligibility requirements for legal aid as implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on the ways in which private family law governs families.
Abstract: This article seeks to critically examine the implications that the new eligibility requirements for legal aid as implemented by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are having on the ways in which private family law governs families. It makes use of a theoretical lens drawn from the work of Valverde (2009, 2014a, 2014b) on ‘jurisdiction’ to map the shift that has taken place within family law as a result of the political boundary that the act has drawn between ‘vulnerable’ litigants eligible for legal aid and the rest of families engaging with private family law, for whom self-sufficiency and responsibility is encouraged and expected. It argues that in reserving legal aid for a narrow group of vulnerable litigants, the formal scale of family law has shrunk, there being at the same time an increased reliance on more informal sources of law such as advice-based resources. This has led to a diversification of formal and informal scales of governance which operate according to different ‘logics’, which impact negatively on access to family justice for families from various backgrounds and circumstances. The article concludes with a call for family law researchers to be mindful of the need to look at both formal and more informal sources of family law in order to fully appreciate developments within the jurisdiction, particularly pernicious ones, and to be able to respond to them appropriately.
TL;DR: Based on participant observation and in-depth interviews with judges, the authors demonstrates the significant role of concern for social stability in China's divorce law practice in highly contesive environments.
Abstract: Based on participant observation and in-depth interviews with judges, this article demonstrates the significant role of concern for social stability in China’s divorce law practice in highly contes...
TL;DR: Halpern as mentioned in this paper wrote a book of pronounced self-congratulation about his and his colleagues' work, not normally something one expects (to use, as we shall see, an inaccurate term) a civil servant to do, not least because such a book would usually expect to be met with derision.
Abstract: This book in one sense runs against the contemporary atmosphere of politics by being an outright celebration of government. Its author is the principal founder and the continuing director and chief executive of the Behavioural Insights Team (BIT), popularly known as the ‘Nudge Unit’. BIT has been regarded as such a success as to make it seem sensible for Halpern to write a book of pronounced self-congratulation about his and his colleagues’ work, not normally something one expects (to use, as we shall see, an inaccurate term) a civil servant to do, not least because such a book would usually expect to be met with derision. Halpern concludes by unabashedly claiming that BIT’s:
TL;DR: In this paper, Alternative Dispute Resolution in European Administrative Law is an important book in that it highlights an unfashionable branch of the administrative justice system, but one which many citizens will very likely interact with at some point in their lives.
Abstract: system, for instance an EU-wide study on the impact of judicial review, or of internal appeal mechanisms. Or an EU-wide study into one particular area of public administration, such as housing or immigration. To conclude, Alternative Dispute Resolution in European Administrative Law is an important book in that it highlights an unfashionable branch of the administrative justice system, but one which many citizens will very likely interact with at some point in their lives. There is much written on EU law, human rights and judicial review and not enough on the delivery of administrative justice more generally (Adler, 2010). Further, amongst scholars in the field, there is not enough shared knowledge of the success or otherwise of various methods of delivering dispute resolution across Europe. I therefore recommend Alternative Dispute Resolution in European Administrative Law as a vital source of comparative insight and hope that it will be soon followed up by an empirical endeavour that interrogates the effectiveness of ADR in European Administrative Law.
TL;DR: In this article, the authors argue that Derrida's deconstructive legal theory marginalizes engagements with the socio-historical of law at best or is incapable of such engagements at worst.
Abstract: 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 surenchere illustrates this. Secondly, a wider reading of Derrida’s work will then illustrate that such a conceptual binary is incompatible with h...
TL;DR: In this paper, a critical examination of the long and rich history of criminal justice scholarship in the pages of Social and Legal Studies is presented, by identifying and exploring a diale...
Abstract: In this article, we offer a critical examination of the long and rich history of criminal justice scholarship in the pages of Social and Legal Studies. We do so by identifying and exploring a diale...