Criminalisation,modernisation, and globalisation: the US and international perspectives on domestic violence

The growth of modernisation in a society is intimately connected to the growth of legal evolutions related to criminalisation. While modernisation expands the boundaries of tolerance in an open society, it also expands the boundaries of crime and criminalisation. As modernisation expands on a global scale, the process of redefining crime, criminalisation, and victimisation also occurs on a global scale. In the modern societies of the West, the advance of modern law and justice and the progress of the notions of human rights have expanded the boundaries of freedom. They have also expanded the boundaries of criminalisation in a number of social, cultural, political, and economic domains. One of the major areas of criminalisation that has rapidly expanded with modernisation and globalisation, particularly in the West, is domestic violence. During the last 30 years, a series of laws have evolved in these societies that criminalise a wide variety of behaviours related to domestic violence. A comparative study of legislative developments on domestic violence in the United States, Brazil, India, Japan, Bangladesh, and Ghana suggests that, in each, a relatively homogenous set of laws against domestic violence has evolved.     

The Pursuit of the Perak Regalia: Islam, Law, and the Politics of Authority in the Colonial State

Islamic law changed radically in the last century and a half. It was codified and limited to the domain of personal and family law in almost all majority and minority Muslim states. The argument of this article is that this remarkable change in Islamic law began in the colonial state. Islamic law, as it functions within postcolonial Muslim states, is a product of negotiations between colonial and local elites over law, religion, culture, ethnicity, and the identity of the Muslim subject. In the case of colonial Malaya, this resulted in a codified, institutionalized legal system within a colonial state, which was critical in constructing Malay ethnic and religious identities and interpretations of Islam that prevail today.     

Legal Change and Gender Inequality: Changes in Muslim Family Law in India

Group-specific family laws are said to provide women fewer rights and impede policy change. India's family law systems specific to religious groups underwent important gender-equalizing changes over the last generation. The changes in the laws of the religious minorities were unexpected, as conservative elites had considerable indirect influence over these laws. Policy elites changed minority law only if they found credible justification for change in group laws, group norms, and group initiatives, not only in constitutional rights and transnational human rights law. Muslim alimony and divorce laws were changed on this basis, giving women more rights without abandoning cultural accommodation. Legal mobilization and the outlook of policy makers—specifically their approach to regulating family life, their understanding of group norms, and their normative vision of family life—shaped the major changes in Indian Muslim law. More gender-equalizing legal changes are possible based on the same sources.     

The Hermeneutics of Jurisdiction in a Public Health Emergency in Canada

This paper investigates the state of the law in Canada in regards to a public health emergency, and in particular the jurisdictional logic that might come into effect were a public health emergency to occur. Although there has yet to be a national public health emergency in Canada, threats of such crises are likely to arise in the future. It is therefore recognised as necessary to address Canada’s legal preparedness for a public health emergency and evaluate proposed reforms to the legal structure that could facilitate response. This paper contributes to this goal by identifying multiple jurisdictional factors that could inform legal interpretations in a public health emergency. It considers how the legal system and the courts are dealing with public health as a national security issue (political and collective matter) while taking into account s. 7 of the Canadian Charter (individual rights). It also looks at the power of the government defined in the Emergencies Act [1985, c. 22] and a proposed legal reform that would make it easier for the government to act unilaterally in a public health emergency. The paper draws on the legal theory of Robert Cover to analyse the hermeneutics of jurisdiction that characterise legal interpretations of public health in Canada, as well as the relationship between jurisdiction and legal violence that these hermeneutics imply. It then develops a case study of the use of medical triage in a public health emergency to explore the possibility of holding the state liable under private law for harm caused to individuals by public health decisions. The paper concludes by suggesting that the state’s public health power can be conceptualised as a form of legal violence and that the courts in Canada should adopt a jurisgenerative approach to legal interpretation in the area of public health.     

Law,ideology and social change: An analysis of the role of law in the construction of corporate crime

This paper explores recent efforts to theorize the potential of law as an agency for progressive social change in the context of the debate over corporate crime. Drawing on feminist experience with criminal law reform in the area of domestic violence, the author argues that the strategy of criminalizing corporate violations needs to be problematized, and that attention should also be focussed on exploring other avenues for progressive legal and political struggles aimed at the control of corporate crime.     

Muslim Mandarins in Chinese Courts: Dispute Resolution,Islamic Law,and the Secular State in Northwest China

Many sociolegal studies have investigated the relationship between state law and informal law, examining alternative dispute resolution and popular justice as intersections between such types of law. However, such questions have received little attention in East Asian authoritarian states. I use the case of dispute resolution among Chinese Muslim minorities (the Hui) to reexamine the relationship between state law and Islamic law. Based on nineteen months of fieldwork in Northwest China, I argue that the Hui case shows codependence between the types of law. Law is deeply embedded in social relationships between the Hui and the party‐state. An analysis of personalistic relationships shows the ways in which religious and secular authorities access each other, transforming each other's law to augment their own legitimacy, but not without the potential for violence. The China case illuminates dynamics between Muslim communities and states that are prevalent elsewhere in the post‐9/11 period.     

“All the System is Simply a Soap Bubble”: Legal Help-Seeking for Domestic Violence Among Women in Kyrgyzstan

This paper examines limitations in how law enforcement and public health systems respond to domestic violence in Kyrgyzstan. Findings from interviews with domestic violence victims show that these women are subject to ineffectual practices and negative attitudes that tend to minimize domestic abuse and disempower victims. The findings reveal several problematic issues: inconsistencies in the implementation of the law, impunity for abusers because of both personal attitudes and social affinities between the police and abusers, ineffective enforcement of protective orders, and superficial processing of domestic violence cases by the legal system. Additional barriers to help-seeking include a lack of institutional support and guidelines for offering mental health services for victims as well as a scarcity of housing, childcare, and employment opportunities for women seeking to break the cycle of abuse. The findings underscore the need for society-wide changes in attitudes toward domestic violence, stricter mechanisms for enforcing the law, and mandatory training for service providers to facilitate the provision of more accessible and affirmative support to victims.     

The Right to be Free from Domestic Violence in Macau

Domestic violence is a problem which historically has not received adequate attention in Macau. At the outset, it explains why the right to be free from domestic violence matters in Macau. I contend that the treatment of domestic violence is a human rights issue under international human rights law, focusing on the shift in the conceptualization of domestic violence from a private matter into a human rights issue. I denounce domestic violence as human rights violation. The second part depicts the draft law on Combating of Domestic Violence Act and analyzes the possible effects of Combating of Domestic Violence Act that can occur. Then, I intend to highlight the absence of attention to the positive duties of states—not negative duties to restrain from acting (such as a duty not to infringe upon the right to be free from domestic violence), but positive, affirmative duties to protect women.     

Legal Protection Against Domestic Violence in India: Scope and Limitations

This paper deals with the scope and limits of legal measures to curb domestic violence against women in India. The Indian state has enacted several laws in the past to address the issue and recently a new comprehensive law is added to the list. The new law has become an alternative to many urban victims. Yet, a review of the performance of the old and new laws on domestic violence proves that legal measures to curb domestic violence have serious limitations. They could neither guarantee any reduction in the extent of such violence, nor could they expedite the justice delivery system in India. Much remains to be done to ensure gender justice in a patriarchal society. Discussion here is based on secondary data and supplemented by field data collected through qualitative research informed by feminist epistemology in the district of Burdwan, West Bengal.     

State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past

The policy of lustration is set in the context of responses to abuses of power by previous regimes. Using examples from three recent forms of social reconstruction (in Latin America, the former communist states, and South Africa), the author reviews the “justice in transition” debate. How do societies going through democratization confront the human rights violations committed by the previous regime? Five aspects of this debate are reviewed: (1) truth: establishing and confronting the knowledge of what happened in the past; (2) justice: making offenders accountable for their past violations through three possible methods: punishment through the criminal law, compensation and restitution, and mass disqualification such as lustration; (3) impunity: giving amnesty to previous offenders; (4) expiation; and (5) reconciliation and reconstruction. A concluding discussion raises the implications of the subject for the study of time and social control.     

Barriers in the Utilization of Domestic Violence Services Among Arab Immigrant Women: Perceptions of Professionals,Service Providers &; Community Leaders

Ten focus group discussions were conducted with Arab American community leaders who had experience with victims of violence in the Arab American population and issues related to domestic violence. Community leaders were selected from an array of backgrounds, ranging from health and human service providers, legal and law enforcement service providers, religious and grass roots community organizations. Focus group discussions explored the role of personal resources, family, religion, culture and social support system in the utilization of domestic violence services by Arab immigrants experiencing domestic violence. In addition, issues related to personal, socio-cultural and institutional barriers in domestic violence service utilization were addressed along with identifying culturally competent policy strategies in reducing barriers for service utilization by Arab immigrants experiencing domestic violence.     

可操作性家庭暴力概念入法之理由分析

家庭暴力在古代社会体现的是男性家长的特权和权威,通过家礼由家长在家庭内部自行解决。由于当代社会男女两性平等和人权理念的影响颇深,人们已经意识到家庭暴力并非家庭内部纠纷,而是侵犯人权的社会问题,仅靠道德是无法解决的。同时,家庭暴力是世界范围内普遍存在的问题,因此,从国际公约禁止针对妇女的暴力开始,到目前为止已有40余个国家颁布了反家庭暴力法。我国2001年修订的《婚姻法》虽然明确规定"禁止家庭暴力,"可并未给予定义;随后《最高人民法院关于适用〈婚姻法〉若干问题解释(一)》虽对"家庭暴力"给予定义,但与国际公约等法律文件相比其先天存在许多不足。这不仅削弱了反家庭暴力的力度,而且也不利于保护受害者的权利。可操作性概念入法尤为必要。     

Gendering Justice in Humanitarian Spaces: Opportunity and (Dis)empowerment Through Gender‐Based Legal Development Outreach in the Eastern Democratic Republic of Congo

Why have women in eastern DR Congo increasingly turned to domestic courts in the aftermath of sexual violence, despite the fact that the state has consistently failed to provide basic goods and services to its citizens? Moreover, how do victims of violence interpret their first encounters with state law in an environment characterized by institutional fragility and humanitarian governance? This article analyzes the experiences and reflections of 50 self‐reported victims of sexual violence in eastern DR Congo. We find that human rights NGOs have served as critical mediators in persuading victims of violence to pursue legal remedy for sexual crimes. However, rather than being socialized to prioritize formal accountability mechanisms in precisely the ways that the architects of legal outreach programs intended, we find that victims of violence have turned to the law for a combination of material and ideational factors. Some appear to have internalized emerging norms of punitive criminal justice, while others have adopted the language of law instrumentally, in order to access crucial socio‐material benefits. We identify a paradox of opportunity and disempowerment, therefore, that characterizes our interviewees' experiences with the law.     

Domestic violence during pregnancy in an eastern city of Turkey: a field study

Violence is an increasing and important community health problem that can be seen in any area of human life. Limited studies were found about domestic violence among pregnant women and its relation with social status of women. The aim of this study was to determine the prevalence and types of domestic violence during pregnancy, factors affecting it, women's thoughts about violence, and relation between social status of women and domestic violence. This cross-sectional study was conducted on 253 pregnant women, using cluster and simple random sampling methods. Chi-square test and logistic regression analysis methods were used to analyze the data. Women who indicated that they have been exposed to violence at some point of their lives were 24.1% and who indicated that violence continued while they were pregnant were 11.1%. Physical violence was the most common type of violence reported (18.2%). It was found that women who had primary school or lower level of education and who made unwanted marriage suffered from more violence during pregnancy. It can be said that violence against pregnant women is still a social problem. In societies where gender roles are dominant, decision makers have to take necessary steps such as supporting education of girls to improve social status of women, increasing awareness among women in regard to personal rights and legal regulations which will contribute to the solution of the issue.     

Another type of ‘Other’ in EU Law? AB (2) MVC v Home Office and Rahman v Secretary of State for the Home Office

EU citizenship law has to date paid little attention to the extended family members of Union citizens, a group mentioned just once in Citizenship Directive 2004/38. This note suggests that the current EU legal framework gives too much discretion to the member states, providing scope for the rights of EU migrant workers to be breached with impunity. It also questions whether the new mechanisms for addressing misapplication of EU law are robust enough to hold national authorities to account for their treatment of other family members.     

Headscarves, Human Rights, and Harmonious Multicultural Society: Implications of the French Ban for Interpretations of Equality

Through the lens of the French law prohibiting Muslim headscarves in schools, this article examines the way in which societal tensions that arise in the context of religious and cultural pluralism are translated into legal discourses relating to human rights and equality. It explores the way in which the law is rooted in France's broader sociopolitical structure and history and contrasts it to the United Kingdom and Turkey. It proposes that the law is based on an anachronistic, formal interpretation of equality that is inappropriate for addressing the inevitable cultural diversity of modern French society, and through its permeation into law and policymaking more widely, it is a primary cause of the heightened social tensions involving the Muslim minority. An assessment of the legitimacy of a law that restricts minority groups' cultural practices in this way in any society should be based on a substantive interpretation of equality and should necessarily involve an active endeavor to understand the meanings of those cultural practices for those groups within their distinct context. Upon this foundation, law and policy can be developed in a way that better reconciles the pluralism of modern society with the common objectives of social harmony, stability, and tolerance.     

A global and historical exploration: Legislative reform in Muslim family laws in Muslim-majority versus Muslim-minority countries

Thirty-five Muslim-majority and 18 Muslim-minority countries formally integrate Muslim Family Laws (MFLs) into their legal systems and enforce them through state courts. Both Muslim-majority and Muslim-minority governments have undertaken legislative reforms to alleviate the effects of religious laws on fundamental human rights, increase accountability and accessibility, and strengthen the rule of law within their MFL systems. Extant literature is silent on whether MFLs are more reformed or more human rights and the rule of law compliant in Muslim-majority or Muslim-minority countries. Utilizing a novel methodological tool, the MFL Index, this exploratory article surveys cross-national and historical trends in MFL reform (1946–2016). It shows that Muslim-majority and -minority governments have opted for different forms of legislative reform. Muslim-majority countries favored substantive reform, while Muslim-minority states prioritized exit reforms. The type and extent of reform were strongly associated with colonial heritage, secularism, women's activism, ethnoreligious diversity, and prevailing multicultural arrangements. These findings have implications for studying multicultural theory, human/women's rights, and democratization in the Muslim world and beyond.     

中国经济法的改革与创新——一种制度变迁的视角

经济法是我国改革开放的产物。中国经济法的改革与创新,是在改革开放、社会转轨的大背景下完成的。经济法的发展一直是＂摸着石头过河＂。一方面,＂渐进式改革＂注定了经济法在发展初期以国家本位为主导、以经济行政法规、法律＂双轨制＂立法为特征,在稳定的前提下,以较小的社会成本获得了中国经济的高速增长（政治的科斯定理）。早期我国经济法属于典型的＂由上而下＂的＂强制性制度变迁＂。随着经济改革的不断推进、意识形态的转变、以及国内外法制环境的变迁,特别是中国加入WTO,经济法完成了从国家干预法到国家协调法、从国家本位到社会本位、从国内法到国际转轨、从实体法到程序法、从硬法到软法、从公法到公私融合的六大转变。＂周虽旧邦,其命维新。＂新时代下,＂以人为本＂,以科学发展观为理念,经济法正迎接新的发展契机。     

An overview of the legal and cultural issues for migrant Muslim women of the European union: A focus on domestic violence and Italy

The migration of Muslims into European nations and the intolerance exhibited towards them has been a growing challenge for the members of the European Union. The differences between the religion and cultures from which the Muslim women migrate and the receiving countries of the European Union may hamper the provision of social services to them when they experience domestic violence from their intimate partners. This article examines the potential for cross-cultural misunderstanding by examining domestic abuse in Italy in the context of both the social mores and the legal framework of that country. A comparison is made to the traditional perception of the role of women in Islamic culture. The research available on domestic violence in this context is examined as it relates to Italy and its Muslim migrants. The article suggests that what is needed are multidisciplinary cross-cultural solutions to provide services and meet the needs of Muslim victims of domestic violence in Italy.     

Using Systems Theory to Study Legal Pluralism: What Could Be Gained?

This article examines the ability of modern systems theory to provide a foundation for understanding the problematic notion of legal pluralism, and to the ability of scholars to apply that understanding to engage in the study of pluralistic legal orders. In particular, it develops the observations of systems theory of the relationship between state law and violence by adopting one of its linked ideas, that of structural coupling. It also considers the role played by translation when law is identified by reference to the application of the legal code: legal/illegal. The whole analysis is underpinned by systems theory's account of the differences between studying premodern and modern societies.