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 scenarios. These different strategies of policing are understood as the construction of ‘places of safety’ in the face of identified dangers: the ‘traditional family’, the ‘good doctor’, ‘professional’ judgement. Defining those boundaries allows the German legislature to juggle contradictory agendas. This explains the inconsistent and fragmented nature of the Embryo Protection Act 1990.
Feminist analyses of abortion law in Canada over the last two decades are characterized by criticism of the failure of legislation and case law to appreciate adequately the interests of women in the matter. As a result they advocate the pursuit of legislative reform and the demand for legal recognition of women's 'right to choose'. Despite the substantial fulfilment of these aims, many threats to the free exercise of abortion autonomy continue to be experienced by Canadian women. In my article, I adopt a new, more critical perspective, incorporating an ideological analysis of the judicial response to recent post-legalization abortion litigation, in an attempt to develop fresh insights into the possibilities for feminist strategizing in this area.
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.
After her intense battle for the decriminalization of assisted suicide in the Supreme Court of Canada, Sue Rodriguez committed suicide with medical assistance in 1994. Following her suicide, government and law representatives remained silent and no criminal charges were ever brought against the person(s) who presumably assisted Ms Rodriguez in her death. This apparent non-intervention of criminal law is examined in view of the useful role that the Rodriguez event may have played in a possible shift in the dominant morality. It is argued that the Rodriguez assisted suicide may have been a useful 'crime' (in the Durkheimian sense) in that it brought to the fore the possibility that social conditions--which made the 'crime' possible--may no longer be in harmony with conventional morality. Similarly to Socrates' crime, the Rodriguez case can be seen as an anticipation of a new morality. It can be analyzed as a prelude to alterations, as directly preparing the way for changes in the dominant morality. The role of criminal law as a preferred mode of moral regulation is also examined in relation to the moral demands and expectations that arose during as well as after the judicial saga.
In this article, through discussion of the more important cases involving the regulation of abortion which have been faced by the English courts, I show how in becoming constructed as a medical matter, abortion is removed from the public sphere into a private realm where it can be regulated by experts who can lay claim to specialist medical knowledge. I deal first with prosecutions for the unlawful procurement of miscarriage under 58 of the Offences against the Person Act, 1861; before going on to look at the case law involving applications for injunctions to restrain an intended abortion; the legality of abortions by medical induction; and another case which is poised to enter the English courts: that of nonconsensual abortion. Second, I look at the implications of medicalization for a feminist reproductive politics. This leads me to highlight, first, some of the practical benefits of the medicalization of abortion and, second, some of its limitations for those who share the goal of entrenching and extending women's access to abortion.
The wrongful conception action holds both a troubled past and future. As a response to rapid technological advancement in the area of reproduction, this action has introduced complex legal and ethical issues in the courts' efforts to respond to the question: 'Can parenthood ever constitute an injury?' At the heart of this dilemma lies the manner by which both law and society conceptualize 'harm'--is this 'part of the normal vicissitudes of life' or a harmful event? But this question is not decided within a legal vacuum and public policy factors have deeply influenced the nature and existence of case law in this field. In the context of the controversial cases of McFarlane v Tayside Health Board  and Rees v Darlington Memorial Hospital , this article critically examines how 'harm' is judicially characterized and explores the various tensions emerging from conflicting harm constructs. In arguing that the courts must seek to find a balanced approach between public policy concerns and reproductive autonomy, this article will present a fresh theoretical perspective to the conceptualization of harm based on autonomy as the central organizing principle.
This article examines recent developments in family law which are concerned with the child's right to know her genetic history. It specifically investigates three areas. First, the Child Support (Pensions and Social Security) Act 2000 (CPSSA). Second, an unusual case concerning IVF at a licensed clinic where a decision failed to be made about parental responsibility (Re D ; Re R ). Finally, the recent Department of Health (2002) consultation exercise on donor anonymity. Drawing upon Parker's (1992) theoretical discussion about the significance of rights and utility to family law, the article will show that although there is evidence of a child's right to know in private familial disputes, this right is not approached consistently across family law. In respect of the government's recent consultation paper on donor anonymity, it will be argued that the child's right to know is subordinated to a utility approach. The article will recommend that the government should take the radical step of reforming law on donor anonymity to allow donor children the right to know their genetic progenitor.
The judgment in the English Court of Appeal case of Re A (Conjoined Twins: Surgical Separation) highlights forcefully the highly individualistic and abstract assumptions that commonly shape the deployment of rights discourse in liberal legal adjudication. Forced by the all-or-nothing nature of this discourse into a dilemma between perceiving of the twins as separate right-bearers or perceiving of the stronger twin, Jodie, as the singular right-bearer and of Mary, her weaker sibling, as a non-legal entity, the court chose the former option. Perceiving of the twins as distinct and equal legal persons forced the court to employ a balancing of incommensurate interests, implicitly accepting a utilitarian analysis within the strongly deontological confines of law and medicine. The implications of this turn towards utilitarianism are significant. Within the confines of this article, it will be argued, however, that these implications are avoidable if the law concedes a more flexible approach to the dominant notion of the distinct and autonomous right-bearer.
This article draws on Pashukanis's concept of legal form and on O'Brien's concept of synthetic value to argue that legal form plays a role in reproductive relations by constructing legal subjects as the bearers of reproductive responsibilities. Pashukanis conceived of legal form as playing a particular role in capitalist exchange relations by interpellating subjects as the bearers of property rights. O'Brien argued that reproduction's specific value is synthetic value, which represents the value of integrating nature and reason in species continuity. Synthetic value is distinct from exchange value or emotional value which may also attach to reproductive process. By working through Pashukanis's method of extracting legal form from specific social relations and by adapting it to reproductive relations, an example is provided of how legal form analysis can be extended beyond the particular context of capitalist exchange relations. Just as legal form constitutes owners and non-owners as legal subjects, so it constitutes reproducers and non-reproducers. By tracing the way in which law attributes reproductive responsibility, legal form analysis shows us how law draws a line between wanting to attribute responsibility and not to attribute it, and this contradiction is a hook which social forces such as sexuality, gender, race, class and disability can latch on to in pushing legal form to shape reproductive responsibilities in a particular way. Each legal form is also externally contradicted by other legal forms. When law negotiates a balance between the reproductive norms of responsibilities and rights, it demonstrates how particular legal forms manage the interaction of different sets of social relations, such as reproduction and exchange.
Adopting a poststructural approach this article explores the intersection of sexuality and social policy, particularly the role of policies in constituting sexual norms and through these, deserving and undeserving gendered welfare subjects. It examines unmarried and lone motherhood discourses of two periods - the 1830s and the 1990s - and shows that not only do particular representations of lone motherhood persist across the centuries but also that welfare policies perform a normalizing and regulatory role in relation to sexuality. It illustrates also how policy makers dismiss the moral, economic and sexual rationalities of welfare subjects, preferring instead to impose their own set of moral values. In exploring the sexuality-social policy dynamic it demonstrates that not only is social policy 'shot through' with sexuality but also that the two are mutually constitutive. Further, the article demonstrates the shifting dynamics of the normalization process whereby that which was once abhorred is embraced, as well as the ways that sexuality is regulated through social policy without resorting to the power of law or legal method.
This article examines the structural contradictions underlying the difficulties of implementing the Chinese exclusion laws first enacted by the US Congress in 1882. I argue that these contradictions were grounded in the material and ideological conditions of the period, were reproduced in the unwieldy logic of the exclusion laws, and emerged as unresolvable enforcement dilemmas. Most important, the anti-Chinese racism on which the exclusion laws were based clashed with economic interests driven by the promise of lucrative trade with China. Using unpublished archival materials, the Congressional Record and Congressional reports, as well as annual reports of the enforcement bureaucracy, I show that exceptions to the exclusions for Chinese merchants were an attempt to reconcile this contradiction, and in turn generated formidable enforcement problems. Further, I argue that the impossibility of making sharp binary distinctions between merchants and 'coolies', and the humiliating procedures involved in the futile effort to do so, subjected the Immigration Bureau to criticism from exclusionists for their failure to detect fraud, and from the Chinese and their advocates in the business community for their harsh practices. The implications for sociolegal studies more generally are examined in the conclusion.
Britain's approach to refugee claims by lesbians and gay men has been notably hostile in comparison with other Western refugee receiving nations. For many years decision-makers in the UK refused to accept that those fleeing persecution on the basis of sexual orientation were even capable of being refugees under the terms of the Refugees Convention. Since accepting eligibility in 1999, UK decision-makers have repeatedly held that asylum seekers are under a duty to protect themselves by hiding their sexuality. They have also been extremely reluctant to hold that criminal sanctions for gay sex are themselves persecutory and have frequently failed to appreciate the relationship between violence against lesbians and gay men and the existence of criminal provisions. This article suggests that there is a discernible national response in the Courts and Tribunals of Britain to sexual orientation based refugee claims. That response carries echoes of the 1956 Wolfenden Report, most notably its 'solution' to the 'problem' of homosexuality: privacy.
This article examines notions of identity in central Europe during the ‘long’ 19th century and the role of law in defining and in reinforcing the boundaries of the nation. During the 19th century, nationalist thinking in Hungary tended to focus on characteristics such as language, culture and political allegiance rather than on race, ancestry or religion. Consequently, membership of the nation was not necessarily fixed at birth. This inclusive model of the nation contrasts markedly with the rigid, racially informed theories of identity that were to prove so seductive in Hungary, as in much of continental Europe, in the inter-war era and during the Second World War. The article goes on to consider the extent to which the apparently inclusive conception of the Hungarian nation was embedded in social and economic practice as well as in the statute books. Notwithstanding the passage of comprehensive emancipation laws, the evidence suggests that Jews were not readily admitted to public sector employment of various kinds. Thus, the liberal Hungarian laws of this period served, at least in part, to mask rather than to transform illiberal social and economic practices. The article concludes by briefly examining contemporary notions of nationhood in central Europe and the extent to which these have transcended 19th- or early 20-century ideas concerning national identity.
The foot and mouth disease (FMD) epidemic in the UK in 2001 had devastating consequences, including the slaughter of millions of animals and huge losses to the rural economy. The regulatory policies devised to deal with FMD so gravely misconceived the magnitude of the risk that an outbreak was destined to become an epidemic. This article seeks to draw lessons for regulatory policy by examining the nature of the disaster and the chosen methods of control both before and during the epidemic. It rejects the analysis of the epidemic offered by the government agency responsible and argues that the policies adopted provide a classic example of Coase’s notion of ‘black-board economics’. The public interventions, although appearing to work splendidly in the abstract, showed little sensitivity to the conditions actually prevailing in modern livestock rearing, and as a result their consequences were not merely imperfect but actually pernicious. We reach the sad conclusion that few lessons have been learned from the outbreak, as the very practices largely responsible for the epidemic are still prevalent, and as legislation and contingency planning show signs of a preparedness merely to repeat the same mistakes.
The Equality Act 2010, in keeping with the Disability Discrimination Act 1995, excludes those identified as drug and alcohol ‘addicted’ from the scope of provisions prohibiting discrimination against disabled people. This article addresses the significance of, and justification for, this exclusion. It begins with a legislative background to the relevant limitation and subsequently examines its rationale according to prevailing legal, medical and sociological discourses. The article then considers the relevance of the discussion for disability rights. Although ‘addiction’, or the preferred term, ‘substance dependence’, is classified as a disability for international systems of disease classification, the relevance of substance dependence for discussion on disability rights, and of disability for discussion on substance dependence, has largely escaped critical comment.
The medical profession’s formative role in the development of abortion law has been acknowledged. A number of the studies to have considered the development of law in the nineteenth century have traced how the emerging profession’s campaigns against abortion advanced its social and economic goals. Analysis of abortion law as a focus for medicine’s professionalisation has not, however, extended into the twentieth century. Consideration of this period generally characterises medicine’s influence as a product of its professional power. Rather than evidence of a static professional status, this article argues that consideration of the first half of the twentieth century reveals how abortion remained the terrain on which the profession actively pursued its occupational ambitions. Further, it highlights how medical responses to abortion changed as the imperatives of professionalisation changed. Employing work that has highlighted the importance of boundaries for enduring social entities, this article recognises abortion as a boundary issue for the profession; that is, a key site where professional jurisdiction is asserted. A dynamic model of the processes of professionalisation, and an identification of the role of abortion in medicine’s professionalisation project, is essential in order to understand the contemporary social and legal reality of abortion.
The article is prompted by an apparent paradox. In Germany, working relations between state criminal justice agencies and non-state institutions within a locality are often extremely close, relying upon networks of communication and a degree of mutual reliance, which in Britain would undoubtedly invoke reference to the idea of 'community'. In Germany, however, criminal justice professionals rarely describe this in terms of community. Though the emergence of locally based criminal justice ini tiatives has been later and less extensive in Germany than in Britain, there have been significant institutional developments in this direction over the last decade, particu larly in the fields of crime prevention and victim-offender mediation. Yet even those organizations working closely with local people or reliant upon the efforts of indi vidual volunteers or charitable bodies do not appear to perceive their work as com munity-orientated. This is the 'significant absence' of our title. By reflecting on why it is that in Germany the vocabularies in which local or informal criminal justice ini tiatives have been framed rarely make reference to the idea of 'community', we may hope to gain some insight also about the conditions under which the appeal to com munity becomes powerful in societies such as Britain.
The concept of ‘homonationalism’ refers to deployments of gay rights for racist and Islamophobic ends, resulting in the consolidation of more sexually inclusive, but racially exclusionary, ideas of citizenship. This article critiques some of the analyses that the concept has inspired in both activist and academic contexts. The critique concentrates on two texts, showing that they make inappropriate rhetorical moves and inaccurate or unsubstantiated claims, and that rather than unearthing structural undercurrents of racism from certain texts or events, they project such structures onto them. While the validity of ‘homonationalism’ as an analytical category is not disputed, some of its propounders assume its explanatory power to be greater than it appears to be. The implications of this critique for gay rights activism and reform are explored.
The paper examines two ideal types of legal thinking that Max Weber develops in relation to continental and 'Anglo-Saxon' law respectively. By focusing on the differences in the training of lawyers, two corresponding roles can be distinguished for the university jurist: the academic lawyer and the legal academic. The former is primarily a thematic variation of the practitioner and defines the university jurist's action in relation to the legal profession: her educational functions centre on vocational preparation, her research is mainly targeted at existing or future professionals, etc. By contrast, the primary affiliations of the legal academic are not legal practitioners but her university colleagues in the humanities and the social sciences with whom she shares a common calling: in an immediate way, to contribute to a better understanding of the social and political world including law through research and scholarship, and more indirectly, with her scholarship, to further the edification of future professionals. Moreover, the legal academic's political affiliations are not as directly tied in to either the judiciary or the practice but to the lawgiver; through the understanding that she communicates in her research, the legal academic provides a politico-logical framework for law that even the supposedly sovereign legislator is obliged to respect. The non-instrumental ethos that the role of the legal academic represents marks the possibility of a radically critical position that is available to the discipline of law if it is understood as a human science. In order to provisionally investigate this radical possibility, the paper filters Weber's sociology of law through the work of Maurice Merleau-Ponty and Raymond Aron who both provide an account of Weber's essentially 'tragic' and Nietzschean understanding of modernity.
The development of a rigorous basis for what it means to be public in rural space depends in large part on the distinctive language and ideas of access and commons. Understandings of rural space that inform policy-making are peculiarly dominated by the rhetorical and political power of private property. It is access and commons that give an opportunity to confront this. The article draws on an example of a challenge by a landowner to the heralded public access provisions of the Countryside and Rights of Way Act 2000 to demonstrate the inadequate versions of access and the public presence that the current deference to private property is producing. The ensuing Public Inquiry was premised on an inadequate conception of public rights to space and a concomitant privileging of private property. In several ways the Inquiry set out deliberately to exclude the voices and claims of publics. The article identifies four primary areas in which the possibilities for promoting a new public presence in rural space via access and commons coincide.
Access to courts constitutes a key test of the quality of a legal system. However, there is a dearth of empirical studies on access problems in developing countries. This article identifies the main problems of access to courts in Nigeria on the basis of a survey of 154 Nigerian legal practitioners, an analysis of Nigerian court cases and two field trips to Nigeria. It focuses on one specific type of litigation: litigation related to the Nigerian crude oil industry. The survey results suggest that the main constraints of access to courts in Nigeria are financial problems as well as the lack of education and information of potential litigants, which falls in line with the results of other empirical studies in developed countries.
The Gender Recognition Act 2004 purports to restrict transgendered persons’ opportunities to participate in sports if their involvement is not conducive to either ‘competitive fairness’ or ‘safety’. This article considers the difficulties in founding a prohibition on either ground, through reference to the medical literature and by considering relevant developments in other jurisdictions. It works towards a theoretical framework for consideration of the broader issues concerning sport and sexed/gendered bodies by suggesting that transgender sport may be regarded as a struggle over the legitimate use of the sporting body; and one that both reinforces and challenges the significance of sports as a gendering practice.
This article examines the development of affirmative action and equality policies targeted at the two main ethno-national communities in Northern Ireland, as an example of ‘contextualised equality’. The argument places particular weight on a politics of legal mobilisation. The article suggests that the ability to connect post-1998 reforms, in practical and symbolic ways, to overriding inter-communal narratives was often a determining factor in identifying those elements of the Good Friday Agreement which advanced, or were constructed as achievable. The argument has implications for understanding how equality debates will progress, and explaining why certain agendas appear to ‘succeed’ and others ‘fail’.
The ‘resolutions movement’ – a popular political mobilisation guided by lawyers, and expressed in exclusively legal terms and orientated towards legal objectives – has been an important expression of popular resistance to contemporary US counterterrorism policy. This article uses the resolutions movement as a vehicle for critically evaluating the cause lawyer literature and for reconceptualising ‘cause lawyers’. The article discusses two different approaches to the political implications of lawyering. The first approach draws on the ‘cause-lawyering’ literature that appears initially as a perfect context for analysing the movement. However, detailed examination shows this approach to be premised on a strong dichotomy between law and politics, something that impedes analysis. To overcome the resulting aporia, a ‘strategic-relational’ approach, which sees both law and politics as social relations and practices, is proposed as an alternative. This allows a more nuanced discussion of the law–politics relation that facilitates analysis of the movement and leads to a set of proposals capable of enabling cause-lawyering studies to transcend its conceptual rigidity.
This article investigates whether or not reconciliation for historical wrongs can be realized in the absence of a state apology. States have traditionally been notoriously reluctant to apologize for their past crimes, and this has often meant that victims are unable to attain closure while they are still alive. What, then, are the alternatives? This article examines the case of the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery, which was held in 2000. The Tribunal was organized primarily by non-governmental organizations: its judgements were neither legally binding, nor was the Tribunal capable of issuing a ‘sincere’ apology that was the equivalent of a state apology. Nevertheless, this article makes the case that faced with the fact that the Japanese state has not always been forthcoming in acknowledging and taking legal responsibility for its past wrongs, such private, non-state attempts may constitute the best chance for us to accord some victims of war crimes some sense of closure for their past suffering.
This article investigates the acts of protest that occurred in the city of Barcelona and other Spanish cities in 2001 in response to imminent toughening of the Foreigners’ law 8/2000. The sit-ins, demonstrations and hunger strikes led to negotiation with the government and the government’s acceptance of some of the undocumented migrants or ‘sinpapeles’ demands for regularization of their status. At the same time, the sinpapeles also expressed a critique of the entire anti-immigrant border regime. These events demonstrated that citizenship could not be viewed exclusively as a fixed regime. Rather, it was a site for legal and political contestation. With the emergence of new subjects as claimants of rights, a number of scholars have pointed to the need for an alternative vocabulary of citizenship studies, one that includes certain practices that were previously excluded. The concept ‘acts of citizenship’ offers an approach to investigating such actions that considers actors not currently recognized as legal and political subjects. Applying this concept to the struggles of the sinpapeles, this article demonstrates how a number of acts converted previously undocumented immigrants into subjects of legaity, and to a certain extent, into citizens.
This article explores citizens’ use of administrative hearings to appeal adverse government decisions about their welfare benefits. It draws on interviews with 79 welfare participants and observations of hearings and interviews with administrative law judges in a state in the United States to understand what hearings, and the act of appealing, mean to citizens. I find that beyond individual redress, participants view appealing as an opportunity to expose and repair social injuries and to renegotiate social relationships, social identities and their status as citizens. Their ability to rehabilitate strained social identities and establish their deservingness as citizens is contingent and variable, with hearings sometimes reproducing appellants’ powerlessness and other times allowing for a more positive enactment of citizenship and social status. Over time, participants experience an increase in legal consciousness, using the knowledge of the law and bureaucratic practices they glean from hearings to better navigate the welfare bureaucracy. While this transformation of legal consciousness emphasizes individual gains rather than collective or systemic change, it cultivates a culture of complaining, rather than acquiescing, within the welfare bureaucracy.
This article examines the limits of law to resolve or transform the contemporary dilemmas provoked by the provision of social care to adults in the UK. It juxtaposes the judgments in two cases, each of which interrogates the legal consequences of the mixed economy of care: the majority and minority opinions of the House of Lords in YL v Birmingham City Council (2007) and the Care Standards Tribunal decision in Alternative Futures v National Care Standards Commission (2002). We read the opinions/decisions as narratives that tell a variety of stories reconciling the different roles of law, the state, the family and the individual in the provision of care. Drawing upon David Scott’s concern with ‘the conceptual problem of political presents and with how reconstructed pasts and anticipated futures are thought out in relation to them’ (2004: 1), we seek to examine legal responses to the contractions and mutations of social welfare.
Making apologies is one of the ways that governments have attempted to deal with past injustices. However, political apologies are often criticised for being meaningless or morally suspect. I will argue that an apology signals the commitment of those who make it, sponsor it and support it to a national undertaking, and whether we can regard an apology as meaningful depends on our reasons for thinking that this undertaking has been initiated and will continue. To defend political apologies from moral criticisms it is necessary to address questions about responsibility: whether citizens can and should take responsibility for past injustices, including injustices of the historical past. The answer to these questions, I will argue, requires an account of the responsibilities entailed in being a citizen of an intergenerational polity.
Michel Foucault is not often read as a theorist of human rights. On the one hand, there is a tendency to read his works of the mid-1970s – his celebrated poststructrualist genealogies of subjectivity, of discipline, of bio-politics, and so forth – as proposing a critique of rights discourse which definitively rules out any political appeal to rights. On the other hand, somewhat curiously it has to be said, there is a tendency to read his works of the late-1970s and early-1980s – his perhaps less celebrated concern with ethics and with technologies of the self – as tacitly re-introducing a liberal humanist notion of subjectivity and, with that, an embrace of orthodox rights discourse. Beginning from this curious disjunction between the critical and the liberal Foucault, this paper attempts to articulate a Foucaultian politics of human rights along the lines of a critical affirmation of human rights. Neither a full embrace nor a total rejection of human rights, the Foucaultian politics of human rights developed here elaborates (and attempts to connect) several disparate figures in his thought: rights as ungrounded and illimitable, rights as the strategic instrument-effect of political struggle, and rights as a performative mechanism of community.
Harmful traditional practices are probably the most severe menace to women's rights and the optimum realization of their development potential in contemporary African history. Over time, and in recent years in particular, community activists, women's rights campaigners, church missionaries and the state have tended increasingly to confront the problem of harmful traditional practices from a doctrinalist paradigm, which mainly emphasizes the prohibition and/or obliteration of the practices. This article highlights some of the critical problems and challenges triggered by the doctrinalist approach using an ethnographic analysis of the tradition of sexual exploitation of cult women among the Bangu. It concludes by making a case for a multitrack sociological approach and solution to the problem.
This article argues that most feminist legal theory has been located within a dominant and phallocentric legal centralist paradigm and that this has hindered feminism's engagement with legal pluralism. I will argue that theoretical work which privileges state law can at best furnish us with only partial accounts of women's experiences of law. Articulating a feminine view of the (legal) world requires an engagement with legal pluralism. The article suggests that women's experiences of state law in the third world differ from those of men: the attitude of the state towards women has been at best ambivalent and at worst physically and symbolically coercive. Theoretical work on women and law must recognise the reality of women's experiences of law. Drawing on a range of historical and political science writing, the article attempts to render a more accurate picture of women's 'legal world'.
This article explores the gendered nature of gambling promotion as a modality of economic regeneration in the aftermath of the Gambling Act 2005. Using an exploratory case study of a district council licensing board, I examine how the gambling forms that reflect women’s gambling cultures are faring under the current legal environment, focusing on the apparent contrast between casino promotion and bingo neglect. I ask what this reveals about the intertwining of legal reform, gender, and perceptions of worthwhile risk-taking in attempts to promote local development. In particular I probe the discrepancy between the state’s legal regime (more restrictive of casinos than bingo halls) and local actors’ regeneration ambitions (centred on casinos). In this way I examine what local legal actors ‘see’ as being legally and economically necessary or possible as they encounter a new legislative landscape around gambling.
This article examines local multi-agency responses to local domestic violence, in particular considering how the introduction of local Crime and Disorder Reduction Partnerships (CDRP) in the UK in the late 1990s affected service provision. Using a longitudinal case study, the article considers how feminist ideologies have been supplanted by a combination of judicial processes and bureaucratic politics. These developments are represented by three dominant discourses: 'criminal justice', 'managerialism' and 'equalities'; discourses that have had a number of consequences in the implementation of domestic violence policy. The first is that a one-dimensional criminal justice discourse has displaced a feminist political, power and control, analysis. Second, the ascendancy of managerialismhas allowed prescriptive short-term performance measurement to prevail over long-term 'sufferer-orientated' responses, and finally an 'equalities' discourse prioritized perpetrator initiatives and discouraged dissent. The result has been the dominance of the statutory sector, a marginalization of voluntary agencies and a partial alienation of women's groups; a process which has proved detrimental both to the interests of female sufferers (who form approximately 90 per cent of victims of domestic violence) as well as voluntary agencies.
Government plans to criminalise forced marriage have intensified debate over how to address the practice without alienating communities. Feminist and Critical Race literature on forced marriage castigates the government for treating forced marriage as a cultural event fostered by a deviant and alien ‘other’ and for seeking to ‘liberate’ women from their culture, but itself views community with suspicion and denies subject agency. Re-examining policy developments through personal experience – setting up the Forced Marriage Unit – I excavate the now forgotten imperative of community engagement and how government became invested in its exclusion. Given the porosity of the forced–arranged marriage distinction I then examine why engaging community is important. Young British Asians’ experience of the marriage process puts high value on family and community involvement. This power-laden paradigm, where consensus is valued over the Western liberal concept of ‘free consent’, is the context into which government policy must fit.
Since independence, landholdings in Southern Africa have remained highly skewed between the rich and poor, reflecting the land and agricultural policies adopted in colonial times and after independence. More recently, agricultural policies have been prescribed by the World Bank as conditionalities of multilateral loans which have both facilitated and also driven the growing integration of such countries in the world economy. This article argues that such integration is being played out on an increasingly unequal global playing field, structured by global agricultural commodity chains and international trade, and strengthened by those very policy prescriptions of the World Bank. Instead of overcoming the dual economies and regulatory systems created in colonial times, people living in the region have only seen growing poverty and deepening inequality. This provides the context necessary for analysing the World Bank’s recently published policy position on land reform. It argues that the approach taken by the Bank does not address the structural reasons for the distortions of land-holdings in the region, and moreover that such inequality is likely to be reaffirmed and reproduced by the Bank’s proposals. It further argues that the model of market-based land redistribution favoured by the Bank will be insufficient to dissipate the pressures of this ever-growing inequality. With considerations of ‘efficiency’ given prominence over other concerns, it concludes that the Bank’s policies are unlikely to meet both of its overarching goals of poverty reduction and growth.
Research indicates that individuals often endorse beliefs that false allegations in rape cases are commonplace and are also reluctant to believe a woman who states she was raped whilst drinking alcohol. On this basis, it can be hypothesised that people are increasingly likely to believe that false allegations occur more often when the complainant has been drinking. In order to examine the ways in which alcohol intoxication and false allegations of rape intertwine, this article critically examines the findings of four focus groups which were based around a vignette in which sex takes place between intoxicated individuals and consent is disputed. The article examines participants’ personal beliefs around three major themes: ‘not quite rape’; false allegations of rape; and voluntary intoxication and intercourse. Although participants acknowledged that sexual intercourse when drunk to the point of incapacity may amount to an unpleasant experience, it was held to constitute something distinctly different to rape. Participants also argued that it would be unfair to hold a defendant criminally liable for intercourse when parties were equally drunk and that alcohol-involved consensual sex may be reclassified as rape the next morning in order to rationalise regretted drunken behaviour.
Risk havens in offshore financial centres play an increasingly important role in capitalist risk management. They gain strength from cycles in the insurance industry (during hard markets) and from the mystified notion of a 'litigation explosion' that is used to reduce the rights of injured plaintiffs, particularly in times when insurers experience low income from investments. The captive insurance company (which has become the most prominent in Bermuda) and the asset protection trust (pioneered in the Cook Islands) have become important instruments through which the wealthy increase their own security and reduce the compensation that they pay for misfortunes that befall the general population. While risk havens promote laissez-faire, the article concludes that democratic socialism provides the most equitable and efficient solution to the problems of risk and insurance. Yes Yes
Andrei Sawoniuk, a member of a Nazi-organized police outfit, led an operation in a small town in Belorus in 1942-3 to kill the Jews who had evaded the main Nazi massacre. He was found guilty, not of genocide or crimes against humanity, but of murder, according to the War Crimes Act (1991) in a trial in London in 1999. This article explores the ways in which the testimonies elicited were transformed from memoirs of the Holocaust by the rules and norms of the trial process into legally admissible evidence by the processes of cross-examination and of selecting what evidence was suitable to be considered by the jury and what was not. The extraordinariness of the events with which the trial was concerned accentuated the differences between memoir and evidence. The key witnesses in the trial found ways to circumvent the rules of the court and to speak directly to the jury.
Even as transitional justice struggles to deliver on its original promises of truth, justice and reconciliation, more demands are being placed on it. Over the past several years, the transitional justice ‘industry’ has embraced holistic approaches that have it doing ever more. This article critically examines transitional justice’s recent attention towards historically constructed socio-economic inequalities. It begins by looking at the shift in transitional justice discourse and practice with respect to economic and social rights. Next, it discusses the arguments made for transitional justice’s engagement with those rights and looks at efforts by truth commissions and administrative reparations programmes to address them. Finally, it argues that transitional justice should avoid directly addressing past socio-economic wrongs and explores some alternate paths.
This article focuses on individual perceptions of the legal protection afforded to living apart together (LAT) partners in Belgium. Drawing on semi-structured interviews with 54 individuals engaged in an LAT partnership, this study explores the meaning LAT individuals attach to their union and investigates the relationship between their understanding of their relationship, their legal expectations and views on legal reform. Our findings indicate that, in Belgium, LAT individuals do not expect marriage-like family law legal provisions within their union. On the other hand – given the nature of their relationship – LAT individuals believe they should be granted the same family-based benefits as those enjoyed by their cohabiting or married counterparts. A differential between LAT-individuals’ legal expectations and views exists according to their socioeconomic status. Relationship expectations play a role as well, albeit indirectly, with transitional and undecided LAT individuals being somewhat more concerned about legal issues than individuals in permanent LAT arrangements.
This article looks at the role of dress and appearance as a key signifier of gender and sexuality as mediated through the workplace. It explores the sex and sexuality of jobs and organisations, before considering ideas of gay and lesbian performances, noting the role of appearance/clothing in these strategies. Legal discourses which have historically targeted clothing as regulatory target are also problematised, questioning why clothing should be such a central theme. Modern legal discourses are also interrogated, questioning how legal systems can and should control employers' use of dress codes. Case studies from English and German law are used to examine how legal discourses also contribute to the heterosexual construction of the workplace. In conclusion it is argued that in addressing the conjunctions of clothing/work/sex/sexuality, without overplaying the role of law, there is nevertheless a need to explore its discursive function, and its role in erasing gay and lesbian experience.
This article examines the challenges posed to judgecraft by litigants in person. It draws on significant empirical evidence from a study conducted by the author in England and Wales demonstrating the challenges posed by litigants in person to judges and the courts. It argues that a central concept behind traditional notions of judging, that of judge as passive arbiter, inhibits fair and effective adjudication. From an analysis of this evidence, it critiques the theoretical foundations of the passive arbiter and suggests an alternative approach to judging be formulated based on principle-based communication, a simpler, more empathetic and cognitively open approach to managing hearings prior to the actual judicial decision.
This article looks at the interface between the design of courtrooms and the notion of participatory justice. In contrast to a vision of judicial space as neutral, this article argues that understanding the factors which determine the internal design of the courtroom is crucial to a broader and more nuanced understanding of judgecraft. The use of space in the courtroom has changed significantly since custom-built courthouses first appeared, and these changes often reflect struggles for territory. In this article I focus on the ways the role of the spectator has been marginalized within the court and led to the demise of the notion of `public' trial. This has been achieved through a series of design guides which ensure that participants in the trial are isolated and surveyed. The origins of these guides can be traced to the mid-Victorian era in which the public were often conceived of as threatening and `dirty'.
The International Criminal Tribunal for the former Yugoslavia (ICTY) has generated huge archival holdings. With the ICTY’s impending closure, the archive has become part of broader debates regarding its legacy for the former Yugoslavia. In particular, the memorial function of this archive has now become highly contentious. Ultimately, these concern the relationship between law and collective memory. This article uses the example of the ICTY archive to explore the relationship between law and memory in post-conflict transition. It argues that this ‘legal archive’ functions as a mnemonic system that produces ‘legal memory’ through its juridical, international, and transitional structure. It then considers the competing discourses of how the legal archive remembers or forgets the justice of law and the injustice of war. Ultimately, these discourses figure the archive as a ‘legal memorial’ that fails to produce collective memory. For this reason, I develop an alternative concept of ‘memorial law’ in order to suggest other memorial practices that can sustain legal memory as a living memory, rather than as a dead archive.
This article explores the Canadian experience of widened access to sexual assault complainants' private records. It dissects legal developments from the mid-1990s, when the Canadian Supreme Court established a liberalized disclosure regime in the landmark O'Connor decision. A legislative reform passed in 1997 that sought to establish a stricter regime was recently upheld and at the same time weakened by the Supreme Court in Mills. The article contends that access to complainants' records stands as a critical example of how a liberal legalistic discourse of sexual assault is extending its hegemony by colonizing and silencing, in particular, feminist and therapeutic discourses. At issue is the relative status of legal 'Truth' and dissonant and emergent feminist narratives, as well as our ability to understand and speak about sexual violation outside of the narrow confines of law.
In July 2008, the European Court of Justice (ECJ) ruled in Coleman v Attridge Law (Case C-303/06) that the European prohibition of discrimination based on disabilities (Directive 2000/78) applies when the direct victim of discrimination is a person associated with the disabled person, such as a parent who is the primary carer for a disabled child. This decision has major implications for the scope and application of European anti-discrimination law, and in particular for the new anti-discrimination directives. Coleman raises questions relating to the complex relationship between paid work and caring. While being a case relating to disability discrimination, it has been heralded as a victory for carers. This article seeks to explain why and explore the extent to which this ruling reconstructs the concept of the worker as a subject whose caring relationships are recognized and valued. It begins by setting the judgment within the wider debates relating to care and work before considering the significance of the ruling for ECJ anti-discrimination jurisprudence. The article concludes with a discussion of the implications of the ruling and its aftermath in the UK, particularly for contemporary feminist analysis of the relationship between caring and paid work.