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1.
Anu Pylkkänen 《Feminist Legal Studies》2007,15(3):289-306
This paper discusses the past and contemporary legal harmonisation exercises of family law in the Nordic countries and Europe.
The critique is that the harmonised ‹European family law’ only entrenches the status quo and reiterates traditional family
patterns, the male norm, heteronormativity, and a public/private divide represented in the neutral guise of a liberal rights
discourse. Furthermore, the critics point out that the political economy of legal harmonisation is, to a large extent, ignored.
In the Nordic countries, egalitarianism and broad political deliberation characterised much of the previous legal harmonisation,
whereas rights discourse in its liberal sense is a novelty, more or less triggered by the European integration. This paper
discusses the gendered implications of the emerging rights discourse in the Nordic countries and the linkages between family
law, the labour market and social welfare. The paper argues that the harmonisation exercise cannot be regarded as one consisting
only of legal norms and reasoning, but rather it should be discussed from the perspective of a political and epistemological
challenge to the prevailing ‹truths’ about marriage, family and sexuality. 相似文献
2.
Sue Chaplin 《Feminist Legal Studies》2001,9(3):199-220
This article examines the way in which the sublime comes to matter within various eighteenth century legal discourses, particularly
in the work of Thomas Hobbes, John Locke and Edmund Burke. The essay seeks also to relate the theoretical works of these philosophers
and lawyers to practical legislative developments of the period, in particular, the passage of the Black Act in1726 and the
Marriage Act in 1753. The sublime comes to matter to the law in this period in the sense that philosophical conceptualizations
of the sublime in terms of power and transcendence become increasingly significant to representations of the nature and function
of English law. Such theoretical accounts of the law as are found in the work of Hobbes, Locke, and Burke, moreover, translate
into juridical practices designed to affirm the status of the law as a transcendentally sublime source of political authority
in the eighteenth century. This article subjects that understanding of the law to a feminist critique that draws upon the
work of the French philosopher, Luce Irigaray. It will be shown that the sublime within Western thought is generally associated
with a sense of dread as to the possibility of the annihilation of consciousness. This ontological dread entails, in Jean
Francois Lyotard’s terms, a recognition of the possibility of “nothing further happening” to the subject. Within Western discourse,
this dread is projected onto, or made material in the form of, some ‘other’ that is, in Irigaray’s estimation, most usually
feminine. Thus, the sublime comes to matter in this second, ontological sense and it is within this context that the transcendental
sublime emerges as a response to a sense of dread that is projected on to some material, feminine, or feminised, ‘other’.
In eighteenth century legal discourse, this ‘other’ take the form of the ‘state of nature’, or the revolutionary mob, or the
revolutionary female who signifies more than anything a return to animality and chaos –an ontological and political fall from
grace. The Black Act and the Marriage Act, with their shared emphasis upon the preservation of political stability and patriarchal
property rights, may in this context be regarded as manifestations in the legal domain of the metaphysical principles of the
transcendental sublime – with its emphasis upon an escape from, and a control of, the dreadful, feminine ‘other’.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
3.
Ralph Sandland 《Feminist Legal Studies》2000,8(2):227-239
This note analyses the decision of the House of Lords in Fitzpatrick, which held that gay partners could fall within the legal definition of ‘family’ for some purposes. The note argues that
despite the real (if overstated) benefits that this case bestows on gay partners in the form of legal rights, under analysis,
the decision self-deconstructs to reveal that it is grounded on the principle of discrimination on the basis of sexuality.
However, it is also suggested that the encounter between discursive legal reasoning (underpinned by normative heterosexuality),
and aversion of the family which is ‘other’ to this discourse, is one which leaves its mark on law, as the potential undermining
or deconstruction of law’s normative assumptions. The note further argues that although this decision is properly seen as
a moment in the struggle for gay rights, it also serves as a reminder that the fortunes of critical theories and political
movements that seek to challenge the legal paradigm of the white, heterosexual male are inextricably linked. Fitzpatrick, whatever else it is, is also an object lesson in the debt that current campaigns for gay legal rights owe to feminist critiques
of, and campaigns that have successfully challenged, the role of this norm in legal discourse.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
4.
Sari Kouvo 《Feminist Legal Studies》2008,16(1):37-46
During the past decade, women’s and human rights ‘language’ has moved from the margins to the ‘mainstream’ of international
law and politics. In this paper, the author argues that while feminists and human rights activists criticise the ‘mainstream’s
interpretation of women’s and human rights, ‘we’ do not question what becoming part of the mainstream and the cosmopolitan
classes has meant for us. Drawing on examples of how women’s and human rights arguments have been used in the post-conflict
state-building process in Afghanistan, the author attempts to show how international women’s rights and human rights advocacy
campaigns planned by well-meaning humanitarians in Western capitals can backfire when implemented in politically complex environments.
Dr. Sari Kouvo is a post-doctoral scholar in the Department of Law, University of Gothenburg, Sweden. She is also affiliated
with the Center for Global Gender Studies at the University of Gothenburg. Dr. Kouvo has several years experience of working
with human rights and gender issues in Afghanistan. The opinions expressed in this article are her own and do not represent
opinions of the organisations she has worked for or is working with. 相似文献
5.
Rosie Harding 《Feminist Legal Studies》2007,15(2):223-234
In Wilkinson v. Kitzinger, the petitioner (Susan Wilkinson) sought a declaration of her marital status, following her marriage to Celia Kitzinger in
British Columbia, Canada in August 2003. The High Court refused the application, finding that their valid Canadian marriage
is, in United Kingdom law, a civil partnership. In this note, I focus on Sir Mark Potter’s adjudication of the human rights
issues under Articles 8, 12 and 14 of the European Convention on Human Rights (E.C.H.R.), highlighting his restatement of
the ideology of the ‹traditional’ family as natural, normative and desirable. I argue that this case shows that the exclusion
of same sex couples from marriage is a feminist issue, because denying same sex couples access to marriage works to sediment
patriarchal ideas and re-inscribe gender roles within the family.
Wilkinson v. Kitzinger [2006] E.W.H.C. (Fam.) 2022; [2006] H.R.L.R 36 相似文献
6.
Daniel Monk 《Feminist Legal Studies》2011,19(3):231-250
This article endeavours to open up a dialogue between succession law and the field of gender, sexuality and the law. It presents
a detailed analysis of five cases concerning inheritance disputes relating to lesbians or gay men. The sexuality of the parties
in the cases is ‘doctrinally irrelevant’ but the analysis demonstrates the significance of sexuality in the resolution of
the legal disputes. In doing so it identifies how legal discourse remains a critical site for the production of societal norms
and in particular how lesbian and gay perspectives reveal the gendered assumptions underlying a number of key succession law
doctrines. It emphasises the importance of taking difference seriously and the limits to formal legal equality. 相似文献
7.
Kirsty Keywood 《Feminist Legal Studies》2000,8(3):319-342
This article examines law’s representation of embodied female identity in the context of two medical law cases, R. v. Human Fertilisation and Embryology Authority, ex parte Blood andB v. Croydon Health Authority. Through an examination of contemporary critiques of female embodiment, in particular the work of Judith Butler, two discursive
strategies are suggested for their potential to reconfigure the sexed subject within legal discourse. Firstly, the act of
transgression – the flight from purportedly fixed subject positions – can be read in the case of Bloodand calls into question law’s ability to contain and sustain sexed identity as prediscursive and immutable. Secondly, the
exposure of the historical formation of the female subjects of legal discourse, demonstrated through a genealogical reading
of B v. Croydon Health Authority, contributes to the feminist theoretical project to destabilise traditional gender categories and enables us to think beyond
the category of ‘Woman’.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
8.
The recent Dutch homo-emancipation policy has identified religious communities, particularly within migrant populations, as
a core target group in which to make homosexuality more ‘speakable’. In this article we examine the paradoxical silencing
tendencies of this ‘speaking out’ policy on queer Muslim organisations in the Netherlands. We undertake this analysis as the
Dutch government is perhaps unique in developing an explicit ‘homo-emancipation’ policy and is often looked to as the model
for sexuality politics and legal redress in relation to inequalities on the basis of sexual orientation. We highlight how
the ‘speakability’ imperative in the Dutch homo-emancipation policy reproduces a paradigmatic, ‘homonormative’ model of an
‘out’ and ‘visible’ queer sexuality that has also come to be embedded in an anti-immigrant and specifically anti-Muslim discourse
in the Netherlands. Drawing on the concept of habitus, particularly in the work of Gloria Wekker, we suggest that rather than
relying on a ‘speakability’ policy model, queer Muslim sexualities need to be understood in a more nuanced and intersecting
way that attends to their lived realities. 相似文献
9.
In Re G, the Court of Appeal awarded a joint residence order to the appellant, who was the lesbian ex-partner of the child’s full
biological mother. The award also indirectly vested the appellant, a social parent, with parental responsibility and extended
a body of case law to same-sex couples, which had until now only been applied to heterosexual couples. The initial purpose
of this note is to outline the legal issues of the case in the context of the framework of parental responsibility set out
in the Children Act 1989, putting forward a test of ‘parental fitness’ (which focuses on active ‘care’ as its central consideration)
for social parents who must appeal to the court’s discretion to obtain parental responsibility. Secondly, the note offers
at once a positive reading of Re G while highlighting a number of reservations centring upon continued legal preference for the ‘sexual family’. It is argued
that while the legal recognition of ‘family diversity’ and parenthood remains modelled on this ‘sexual family’, the relaxation
of family ‘boundaries’ (despite legal victories such as Re G) will remain limited.
Re G (Children) [2005] E.W.C.A. (Civ.) 462 相似文献
10.
Jane Krishnadas 《Feminist Legal Studies》2007,15(2):137-165
This article examines the role of rights in both governing and shaping women’s relationship with the reconstruction process
and their position in the reconstructed society. Through four years of empirical research in the post-earthquake reconstruction
process in Maharashtra, India, this article focuses upon how women’s rights in social reconstruction are contingent upon processes
of recognition. From the United Nations to local women’s organising, the article considers how women’s rights to “determine
the pattern of their lives and the future of society” (United Nations Convention on the Elimination of All Forms of Discrimination
Against Women (C.E.D.A.W.). General Recommendation No. 23 (1997), Article 7, para. 9.) are dependent upon processes of recognition.
Through a critique of cultural, material and spatial acts and frameworks of recognition within the U.N., World Bank, State
Government, public interest litigation, personal and nonformal law, rights are seen to actively and hierarchically construct
either a modern, liberal subject or a religious, communitarian subject, which both either deny or prescribe agency. The experience
of women’s organising reveals the possibility of reconstructing a feminist rights strategy of reflection. 相似文献
11.
Jane krishnadas 《Feminist Legal Studies》2006,14(1):53-77
Ratna Kapur’s recent book entitled Erotic Justice proposes a new politics of postcolonialism whereby the sexual subaltern disrupts the normative principles of the universal, liberal, legal domain. Kapur traces legal strategies regarding censorship, sex-work, homosexuality, sexual harassment, trafficking and migration which travel a treacherous path, countering allegations of ‘unIndian’ and Western practice with cultural histories of ‘authentic’ sexual legitimacies, towards a new politics of desire. Kapur frames her analysis through postcolonial feminist theory as providing a tool for feminist struggle, yet distinct from and disruptive of a liberal project of global sisterhood. This review deeply values the role of the sexual subaltern which disrupts the tenets of a linear, progressive liberalism. Drawing upon Indian feminist and Western feminist perspectives, the review considers how the distinct position of the postcolonial sexual subaltern subject informs the generic role of law as a tool constructing relations of domination regarding gender, sexuality, caste, property and religion. Kapur observes that both the West and the Hindu Right have engaged with liberal legal principles. This engagement, I argue, exposes and informs law as a historical and contemporary tool of gendered legal colonialism, for sisters to disrupt across the Western and Eastern terrains.Review of Ratna Kapur’s Erotic Justice, Law and the New Politics of Postcolonialism, London: Glasshouse Press, 2005, 219 pp., £26, ISBN 1-90438-524-9 相似文献
12.
Wendy Larcombe 《Feminist Legal Studies》2002,10(2):131-148
This article proposes that feminist legal critics need to be able to explain how some rape cases succeed in securing convictions.
The means by which rape cases are routinely disqualified in the criminal justice system have received widespread attention.
It is well established in feminist legal critique that female complainants are discredited if they fail to conform to an archaic
stereotype of the genuine or ‘real’ rape victim. This victim is not only morally and sexually virtuous she is also cautious,
unprovocative, and consistent. Defence tactics for discrediting rape testimony involve exposing the complainant's alleged
failure to comply with the sexual and behavioural standards of the normative victim.
This understanding of how rape complain(an)ts are disqualified is not predictive, however, of the complainants whose cases
succeed in securing convictions. This article reviews some successful Australian rape cases and considers the ways in which
they disturb feminist understandings of how rape complaints are discredited in the criminal justice system. It proposes that
recent research analysing the discourse of rape trials provides a way of explaining the apparent discrepancies between the
‘ideal’ rape victim and successful complainants.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
13.
Maria Drakopoulou 《Feminist Legal Studies》2000,8(2):199-226
The object of this essay is to explore the central role played by the ‘ethic of care’ in debates within and beyond feminist
legal theory. The author claims that the ethic of care has attracted feminist legal scholars in particular, as a means of
resolving the theoretical, political and strategic difficulties to which the perceived ‘crisis of subjectivity’ in feminist
theory has given rise. She argues that feminist legal scholars are peculiarly placed in relation to this crisis because of
their reliance on the social ‘woman’ whose interests are the predominant concern of feminist legal engagement. With the problematisation
of subjectivity, the object of feminist legal attention disappears and it is in attempts to deflect the negative political
consequences of this that the ethic of care has been invoked, the author argues, unsuccessfully. The essay concludes with
suggestions as to how the feminist project in law might proceed in the wake of the crisis of subjectivity and the failure
of the ethic of care to resolve it.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
14.
Anne Bottomley 《Feminist Legal Studies》2006,14(2):181-211
Following the U.K. Labour government commitment to marriage in the 1998 Green Paper ‘Supporting Families’, Barlow and Duncan produced a robust critique calling for ‘realism’ in recognising that many couples are now choosing not to marry, that too many do not make informed decisions as to whether to marry or not and that, on the basis of their survey, over 40% of respondents believed that some form of family law protection would be available to them, despite their lack of marital status. When added to a concern that economically vulnerable cohabiting women do not receive adequate protection in property law, it seemed all too obvious that the government commitment to marriage should be challenged. In fact, government policy does seem to have shifted somewhat when, partly as a tactical manoeuvre to help the passage of the Civil Partnership Act 2004 and specifically recognising concerns with the needs of economically vulnerable parties, the issue was referred to the Law Commission for England and Wales. This places the ‘realism’ arguments firmly within the reform agenda. However, this article argues that there is a need to look more closely at the arguments used by the ‘realists’, in particular at the evocation of the figure of Mrs. Burns. The more contemporary case of Oxley v. Hiscock is used to both raise questions about the socio-economic profiles of cohabitants, as well to question the presentation of property law as failing women (and family law as offering the protection they need). I argue that feminists should take a cautious approach in relation to the seemingly compelling argument that cohabitants will benefit from the extension of aspects of marriage law to cover property issues at the end of a relationship. 相似文献
15.
Following the “Encountering Human Rights” conference in January 2007, Emily Grabham interviewed Tania Pouwhare, a women’s
rights activist working at the Women’s Resource Centre in London. Their discussion engaged with the professionalisation of
activism, funding constraints and New Labour policies and their impact on immigrant women. Against a background of financial
insecurity and huge demand for their services, many women’s organisations in the United Kingdom struggle to use human rights
law to advance women’s rights. Nevertheless, the rhetoric of human rights remains powerful within women’s activism, and law
remains relevant as a potential form of ‘direct action’ and “another way of making a really big fuss”. 相似文献
16.
This article engages with the vogue for predicting the effects of the Human Rights Act 1998 by focusing on the rape prosecution
and trial. The specific interest is feminist scrutiny of the right to a fair trial, particularly the concept of ‘fairness’,
in light of the increasing use of disclosure rules (in Canada and England) to gain access to medical and counseling records.
Transcending the two contemporary narratives of ‘victims’/women’s rights and defendants’ rights in the criminal justice system,
the authors argue for the infusion of the legal debate on disclosure with feminist understandings of wider cultural debates.
They suggest that an increased reflexivity about intimacy, publicity and power, leading perhaps to the development of a concept
of ‘democratic publicity’ (Fraser, 1997, p. 100), might help to revision the meaning of ‘relevant’ evidence in the rape trial.
They also suggest that the wide-ranging cultural debate about memory, truth and history, and the emerging commitment to experimentation
in responding to massive, institutionalised human rights violations (including apartheid, war crimes and child abuse) might
be of use in deepening current thinking about the rape trial and listening to the ‘voice’ of the complainant.
This revised version was published online in July 2006 with corrections to the Cover Date. 相似文献
17.
This article examines the issues of censorship, language and racism through a critical reflection on Peter Tatchell’s response
to the critique of gay imperialism offered by Jin Haritaworn, Tamsila Tauqir and Esra Erdem. In ‘Academics smear Peter Tatchell’,
we are invited to find evidence of ‘Islamophobia, racism or support for imperialist wars’ in the writings that can be downloaded
from Tatchell’s website. The article shows how islamophobia and racism operate in Tatchell’s writings not necessary in the
content of specific arguments but through the very form of proximities (for example in the proximity between the words ‘Islam’,
‘fundamentalism’ and ‘terror’). The article thus reflects on how racism operates in language through the repetition of associations
that get ‘stuck’. 相似文献
18.
19.
The discourse of multiculturalism provides a useful means of understanding the complexities, tensions, and dilemmas that Asian
and other minority women in the U.K. grapple with in their quest for human rights. However, the adoption of multiculturalist
approaches has also silenced women’s voices, obscuring, for example, the role of the family in gendered violence and abuse.
Focusing on the work of Southall Black Sisters, and locating this work within current debates on the intersection of government
policy, cultural diversity, and feminist activism, this article examines, and critiques, the Labour government’s current “multi-faith”
agenda for its impact on Black and minority ethnic women in the U.K. 相似文献
20.
José Miola 《Feminist Legal Studies》2004,12(1):67-77
Hard cases make bad law. In a matter of months, two such cases involving assisted reproduction have appeared before the U.K.
High Court and legislation has been enacted. The common threads between them are consent and fatherhood. The first case concerns
a ‘mistake’ resulting in sperm from the wrong man being used to create an embryo for a couple and the second the revocation
of consent by a man to his former partner being allowed to use an embryo they created together. Furthermore, Parliament has
intervened, passing legislation which sets out when sperm from a dead man may be used by his former partner to generate an
embryo. This note argues that the three developments cannot be reconciled with one another and that the cases in particular,
decided on a narrow legal basis, convey contradictory messages, leading in at least one instance to a gross injustice. 相似文献