Transgendering Mother's Day: blogging as citizens' media,reproductive rights and intimate citizenship

Citizenship is fast emerging as a central concern for transgender politics. This article approaches the topic of transgender citizenship by investigating empirically how the practice of blogging has served as a way of claiming, or practicing, intimate citizenship for transgendered people. Theorization of intimate citizenship helps us to further our understanding of the ways in which our most private decisions and practices are inextricably linked with public institutions, law and state policies. Significantly, this development is also tied up with other characteristically late modern technological advancements, ranging from new reproductive technologies to new Information and Communication Technologies. In the case of transgender politics, such interlacings become particularly perspicacious, not only due to modern discourses concerning diagnosis and treatment, but also because the presence of social media resources affords new possibilities for the sharing of personal and political narratives about ‘being transgendered’. In this article, I investigate an event in the Swedish blogosphere, namely the way in which the national celebration of Swedish Mother's Day became a site for the contestation of the current limitations of the reproductive legal rights for transgendered people, providing an opening for a more general debate on transgender reproductive rights.     

Participation of the elderly in sociocultural life: human rights and inclusive practices under residential care

Although there is a growing tendency in academic literature to explore the rights of the elderly, the sociocultural dimension of well‐being of the elderly under residential care has not as yet been extensively conceptualized. This is why from the perspective of international human rights law, this article deals with the issues of implementing sociocultural rights of the elderly under residential care. The author analyses legal grounds justifying the existence of state obligations to implement sociocultural rights of the elderly within the institutions. Possible limitations of these rights are scrutinized. Investigating the issue of state obligations to implement the rights of the elderly to participate in sociocultural life within the institutions, the author refers to legal experiences of Finland. Examining whether Finnish statutory law is sensitive to sociocultural rights of the elderly under residential care, the author analyses the legislation of Finland and reports the materials of Finland, submitted to the European Committee on Social Rights. Prior to this, the author attempts to establish whether such a right as the right of the elderly to participate in sociocultural life has emerged in international human rights law. Copyright © 2014 John Wiley & Sons, Ltd.     

Immigration,asylum and citizenship in Germany: The impact of unification and the Berlin republic

In recent years, there has been much debate over whether post‐unification Germany, often termed the ‘Berlin Republic’, represents a substantive change from the ‘Bonn Republic ‘, that is, West Germany. This article analyses Germany's immigration and citizenship policy against this background by examining various dimensions of immigration before and after unification. The article argues that both unification itself and Germany's changed international environment have resulted in far‐reaching changes in policy, which have forced a reappraisal of Germany's traditional self‐image as a ‘non‐immigration country’.     

Domestic legislatures and international human rights law: Legislating on religious symbols in Europe

This article examines the dynamics of domestic legislatures' application of international human rights law. Specifically, this article asks the following: What factors shape how domestic legislatures apply international human rights law while they enact national law and policy? Lawmakers have a variety of motives for invoking and deliberating international law. Given these motives, the article identifies two factors — civil society actors and legal experts and the flexibility of international law — that are likely to contribute to if and how national legislatures interpret and apply international human rights law while legislating. These factors are examined through case studies on religion in schools in the United Kingdom, Germany, and France. This article argues civil society actors and legal experts and the flexibility of international law inform lawmakers' estimation of political costs related to compliance and thus how they apply international human rights law to domestic legislation.     

The Nature of Legal Change on the U.S. Supreme Court: Jurisprudential Regimes Theory and Its Alternatives

Jurisprudential regimes theory (JRT) posits that legal change on the U.S. Supreme Court occurs in a drastic, structural‐break‐like manner. Methodological debates present conflicting evidence for JRT, which has implications for the important law versus ideology debate. We confront this debate by first elaborating two alternative theoretical perspectives to JRT—evolutionary change and legal stability. Our analytical framework focuses on two key substantive effects of jurisprudential categories on the Court's case outcomes—relative differences between categories over multiple time periods and longitudinal differences across time periods. Importantly, different pieces of empirical evidence can provide support for different dynamic processes. The extent to which “law matters” is not necessarily tied to one particular model of legal change. Empirical analysis of updated and backdated free expression data generates key findings consistent with JRT, legal stability, and evolutionary change. We discuss the implications of the results for understanding legal change and legal influence.     

An Afrocentric critique of China's security concerns in Africa: The cases of Mali and South Sudan

China's security concerns in Africa has recently become a subject of much academic debate. Most of the academic studies on this subject have wrongly assumed a continental standpoint, which does not take into contemplation the distinctive national captivates of China toward each distinctive African State. Such analytic discourse analysis were also heavily subjected to North [ern] angled perspectives as expressed in either liberal or realist contextual lens, views, and critics. Despite this, the Scholarly discourse on the security concerns of China towards Mali and South Sudan have not been proportionately apprehended. Based on the alternative Afrocentric perspective, this article seeks to employ Mali and South Sudan as test cases to critique the Security Concerns of China toward Mali and South Sudan. The central argument of this article is that, China's Security Concerns towards Mali and South Sudan can best be understood when located within the context of mineral resources complex. Methodologically, this article is based on document review and interdisciplinary discourse analysis in their comprehensive form.     

Costs of Cooperation Rather than Competition in the Provision of Justice?

The civil law reforms starting in the USA and exemplified by Lord Woolf's reform package(1995; 1996) in the U.K. are considered in the context of diminishing legal aid and pressure on judges to become case managers responsible for the economic performance of their courts. The reforms are being sold in a package that promises a fairer system for all, greater access, cheaper and quicker justice, less stress and greater party control. This move from the welfare state to a civil society is analysed using Habermas's critical theory in an effort to uncover and debate its assumptions. Specific recent changes in civil procedure in Queensland are referred to in this context.     

Procedural Justice, Conflict of Interest and the Stolen Generations' Case

The Cubillo and Gunner hearing in the Federal Court of Australia possessed enormous historical, political and moral significance. The applicants' suit against the Commonwealth argued that having been removed they were then wrongfully detained, that government breached its statutory and fiduciary duties and duty of care, and the Commonwealth was responsible for the injuries and damages they incurred as a result of their removal and detention. They sought monetary compensation and exemplary damages. In response the Commonwealth government sought to have the case for damages dismissed on a variety of grounds. From the perspective of the plaintiffs, the case had the potential to set an important precedent. From the Commonwealth's perspective a lot was at stake. Beyond the financial costs, the government's reputation was at risk. The Cubillo–Gunner action tested the Australian legal system's capacity to deal justly with a critical range of moral, historical and political issues raised by the ‘stolen generations’. In his judgment delivered on 11 August 2000, O'Loughlin J dismissed each of the claims for damages by Lorna Cubillo and Peter Gunner. In this article attention is given to aspects of the case that have not yet received due consideration. It is argued here the Commonwealth government had an overriding resolve to win the Cubillo–Gunner case, which sat incongruously with the principle and practice of the federal government as a ‘model litigant’. I consider whether the Commonwealth breached those standards in respect to three central elements of the model litigant standards — namely (1) the exercise of proportionate power, (2) the over‐reliance on technical defences, and (3) a proper regard for accepting a responsibility to administer justice and fair play. I ask whether the appointment of Meagher as the Commonwealth's leading counsel was in the public interest? The case is put that Meagher had a conflict of interest relating to his own biography which connected to the HREOC report on the ‘stolen generations’ in general and the Cubillo–Gunner case in particular. Meager is the son of a man deeply implicated in the politics of Aboriginal affairs during the period under question. (Meagher's father was Chairman of the Aborigines Welfare Board and Minister for Aboriginal Affairs in Victoria until 1972.) Meagher junior was by his own public admission concerned about the findings of the HREOC report and its implications for his father's reputation. He felt it dishonoured his father's name while also sullying the standing of his father's contemporaries. Meagher indicated he believed the case must not be allowed to set a precedent. The public evidence on display in these comments reflects a hostility towards child removal policies which raises questions about the suitability of Meagher's appointment as counsel. As Meagher himself pointed out, he wondered whether his involvement in the case was ‘inappropriate for counsel’ and ‘possibly contrary to the client's interest’, but later decided it was not. His appointment raises questions about the Commonwealth's conformity to the model litigant standards.     

Litigation and the Evolution of Legal Remedies: A Dynamic Model

In this paper we build uponexisting literature on the evolution of thecommon law. We consider a model of legalevolution in which judges have varyingideologies and propensities to extend thedomain of legal remedies and causes ofaction. Parties have symmetric stakes andare rational. Plaintiffs bring a case tocourt if the expected net return from thecase is positive. The net expected value ofthe case depends on the objective merits ofthe case, the state of the law, and theideological propensity of the judge.Plaintiffs have full control over whetherto bring a case to court. In our model, thecombined presence of differences in judges'ideology and plaintiff's case selectiongenerate a monotonic upward trend in theevolution of legal rules and remedies. This may explain the stylized fact underwhich certain areas of the law have beengranting increasing levels of remedialprotection and recognition of plaintiffs'actions.     

Multinationals as global institution: Power,authority and relative autonomy

This article aims to inform the long‐standing and unresolved debate between voluntary corporate social responsibility and initiatives to impose binding legal obligations on multinational enterprises. The two approaches share a common feature: neither can fully specify its own scope conditions, that is, how much of the people and planet agenda either can expect to deliver. The reason they share this feature is also the same: neither is based on a foundational political analysis of the multinational enterprise in the context of global governance. Such an analysis is essential for providing background to and perspective on what either approach can hope to achieve, and how. This article begins to bridge the gap by illustrating aspects of the political power, authority, and relative autonomy of the contemporary multinational enterprise. The conclusion spells out some implications for the debate itself, and for further research.     

The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

Corporations and the law: Historical lessons for contemporary practice

Abstract

This article examines the role of the courts, especially the Supreme Court, in facilitating the development of a capitalist economy and enhancing corporate power. Theoretically, I employ an approach which treats the law as a constitutive process. I first survey key legal developments in the nineteenth century through which the courts fostered and nurtured the development of a capitalist economy. Then I analyze the post‐New Deal era, examining the transformation of economic doctrines by the Supreme Court to legitimate a newly emergent corporate‐administrative state. In the last part of the article I use this historical analysis to address contemporary issues for the Left of how to bring about fundamental change in the United States. I discuss the degree to which the law can be used as a means of progressive reform and how strategic legal choices are related to the debate about social movement, discourse, class‐based, and political strategies for change.     

Autonomie des Rechts? Niklas Luhmanns soziologischer Rechtspositivismus — Eine kritische Rekonstruktion

Beside Hans Kelsen’s pure theory of law, Niklas Luhmanns autopoietic theory of law offers the most elaborated attempt to defend the conception of the autonomy of law. According to this approach, the functionally differentiated legal system obeys in its internal logic completely its own legal operations. Law represents a basically closed system in which law can be only (re-)produced through law. Firstly, this article reconstructs Luhmann’s sociological transformation of central problems in legal theory. Secondly, in focusing on the paradoxical constitution of the legal system, it mainly demonstrates how the notion of the autopoietic autonomy of law must fail in virtue of its inner-theoretical shortcomings. Luhmann cannot avoid to concede that law is ultimately founded on politics. Finally, this essay tries to develop an alternative political theory of law in which the concept, validity, relative autonomy, and function of law is, in the last instance, based on the historically varying relations of power and the struggle for their maintenance or change.     

Jurisgenerative role of auditors in transnational labor governance

This article builds on the model of regulatory intermediaries by incorporating insights from the field of legal hermeneutics about the process through which the meaning of a legal rule emerges. It describes how intermediaries can take on a jurisgenerative role in the development of legal rules through their interpretation of legal rules. This role is demonstrated through an analysis of social audits from Chinese and Vietnamese factories involved in the Fair Labor Association (FLA). The analysis illustrates how the integration of fundamental labor rights into the FLA's private Code of Conduct requires auditors to develop new interpretations of the Freedom of Association as a result of uncertainties and contradictions between legal requirements at various levels, as well as with the FLA's own rules. Through this empirical analysis, the article contributes to the literature by identifying regulatory intermediaries’ jurisgenerative capacities when they monitor fundamental labor rights referenced by private governance instruments. It further highlights why legal and regulatory governance scholars need to consider the transformative effects that transnational private labor governance may have on international labor law.     

Women's interpretations of the right to legal abortion in Mexico City: citizenship,experience and clientelism

In April 2007, after a period of intense social debate, the Mexico City Legal Assembly legalized abortion during the first 12 weeks of pregnancy, which was an unprecedented development in women's rights in Mexico. Within the context of a proliferation of public discourses about women's citizenship rights changes in women's social status in Mexico, this article explores the extent to which the newly legalized character of abortion is interpreted by women as a right. Drawing on 24 interviews with women who had a legal termination of pregnancy between 2008 and 2009, this research shows that legalization opens up new and complex relationships between women as subjects of rights and the state. Such relationships are expressed as three discursive figures: legal abortion (1) as a concession from the government, (2) as ‘excessive’ tolerance by the state, and (3) as a right to be protected and guaranteed. The analysis shows that women's interpretations of the right to legal abortion are mediated by profound transformations, which Mexican society is currently undergoing. These include changes related to a shift from a clientist political culture to one more framed in terms of citizenship, the subjective effects of family planning policies, and their ambivalent relationships with Catholic notions of women and motherhood, and the effects of feminist discourses of women's citizenship, abortion, and reproductive rights.     

Reconciling legal positivism and human rights: Hans Kelsen's argument from relativism

This article examines the conceptual relationship between legal positivism and human rights, challenging the common idea that the two are in tension or that there exists, at most, a contingent relationship between them, whereby legal positivists can only recognize the normative validity of human rights if they happen to be inscribed in positive law. To do this, I focus on the thought and writings of one of the “founding fathers” of modern legal positivism: the Austrian legal theorist and political philosopher Hans Kelsen. In the first part, I show that Kelsen's conception of legal positivism is inextricably tied to — and, indeed, logically stems from — his moral relativism. In the second, I show that this form of relativism is also the philosophical foundation for Kelsen's commitment to democracy and human rights. Finally, in the third part, I examine the specific conception of human rights that results from this relativistic foundation, contrasting it with the “natural law” version that legal positivism excludes.     

The mutuality of risk and community: the adjudication of community notification statutes

Although it has drawn significant attention in the legal literature, the adjudication of community notification statutes (often referred to as 'Megan's Law' in the United States) demonstrates a centrality of both risk and community that deserves attention from a governance perspective. In this paper, I focus on the ways in which concepts of risk and community are mutually constitutive, and how the adjudication of community notification statutes relies on particular visions of 'community' to engage particular ways of conceiving of 'risk', much of which relies on a rejection of expertise and a focus on 'common sense'. This focus on 'common sense', opens up new problematics of government: courts adjudicating community notification cases are working to define the particular mechanics of a state-civil society partnership, and thereby operationalize the preventive state without rendering the state redundant or obsolete, and without opening the state to new forms of legal and political accountability. While providing a case study in the move to advanced liberal governance in the area of criminal law, this adjudication also reveals the contingent nature of risk, and the ways in which judicial invocation of 'risk' and its management can constitute liberal subjects who continue to rely on the state, while no longer expecting the state to be accountable for crime or its control.     

China's domestic strategic debate and confusion over the South China Sea issue

The article looks at China's strategic debate and confusion over the South China Sea (SCS) issue and explores why it has occurred. This article recognizes that China has not yet decided whether the SCS issue should be included among China's core national interests. Additionally, China has not quite figured out whether the priorities should be placed on the SCS claims or the Sino-US relationship. In addition, China has not worked out exactly what the Nine-Dash Line (NDL) means. It contends that identity is a key factor in informing a state's strategic concerns and policy objectives regarding the SCS. This article argues that China's dual identities force China to strike a middle ground, which causes domestic strategic debate and confusion. In the final analysis, this article tries to determine what salient implications a prevailing identity of China as a rising power would yield for its SCS policies.     

The rule of law and citizenship in central India: post-colonial dilemmas

This article argues that the ‘rule of law’ has become a central goal in popular struggles the world over, and it is citizenship struggles which infuse the rule of law with substantive, as against a thin procedural, meaning. This is especially true in post-colonial societies like India, with a tradition of inherited colonial law designed for subject-hood rather than citizenship, growing inequality which affects both the enactment and interpretation of law, and the violation of law by those who are meant to protect it. Demanding implementation of existing laws, breaking laws that are patently unjust whether through armed struggle or non-violent social movements, or seeking to change laws in favour of new and more democratic laws, are all major avenues by means of which people express their aspirations as citizens. However, law's mutually constitutive relation with social practice means that people enter into political and legal negotiations already constituted as certain kinds of legal subjects, which constrains their imagination in certain ways.