Discourse theory of law in times of populism

Jürgen Habermas's discourse theory of law has shaped debates on what we consider to be legitimate law. This contribution will firstly identify the Zeitgeist in which discourse theory emerged. Secondly, it points out the emancipatory potential of law that discourse theory has helped us to understand, both on a domestic and a transnational level. Thirdly, the paper turns to discuss two recent challenges for the discourse theory of law, namely (a) the realities of social power that undermine and contradict its promises, and (b) the rise of populism, which places the core normative assumptions of discourse theory in doubt.     

Feminist judging and legal theory

The Feminist Judgments Project involved the writing of alternative feminist judgments in significant legal cases. This article describes how the project was used to introduce students in a legal philosophy module to the ideas sitting behind the project, i.e. that there could be a distinctively feminist approach to judgment writing and that such an approach could be legitimate. One of the aims of the module is to explore critical accounts of the law. Briefly outlining the content of the module, we then focus on two particular facets of this content: the role of judgments in the module, and the issue of where feminist judging sits within this. We then go on to consider a particular activity we have developed for use in the class, which involves students seeking to identify the gender of the judges involved, and the distinctions (if any) between judgments. Finally we reflect on how the students have used this activity within their own summatively assessed work for the module. As we proceed, we refer to our experience of bringing the Feminist Judgments Project into our work, and the extent to which we think it has been successful.     

Women's Defences

ABSTRACT

This paper examines theoretical and practical problems surrounding the use of women's defences such as Battered Woman's Syndrome, Premenstrual Syndrome and Postpartum Depression. A framework for deconstructing women's defences which exposes power relationships preserved by legal discourse is offered. The central argument presented is that a contextual examination which links practice to theory reveals that women's defences are not necessarily harmful to women, but that specific feminist strategies must be developed to ensure that such defences do not replicate existing power-knowledge dynamics within legal discourse.     

Feminism and the siren call of law

Feminists have so often declared and celebrated the fecundity of the relationship between feminism and legal reform that critique of legal doctrine and norms, together with proposals for their reconstruction, have become the hallmarks of the modern feminist engagement with law. Yet today the long-cherished ‘truth’ about law’s potentially beneficial impact on women’s lives has started to fade and the quest for legal change has become fraught with problems. In responding to the aporetic state in which feminist legal scholarship now finds itself, this paper offers a recounting of the relationship between feminism and the politics of legal reform. However, in so doing, it seeks neither to support nor to oppose these politics. Instead, it explores the historical contingencies that made this discourse possible. Utilizing Foucault’s concept of episteme, it demarcates the nineteenth century as the historical moment in which this discourse arose, and tracing the epistemic shifts underpinning the production of knowledge, locates its positivities at the interface of the time’s episteme and the discourse of transcendental subjectivity that it engendered.

Punishment and Welfare:

This paper will attempt to situate the current discourse on 'crack pregnancies' within the context of a broader regulatory discourse.' It will argue that defining and locating state intervention solely within the confines of formal legal discourse not only privileges the criminal law, but (1) occludes recognition of the ways in which regulation and control are effected by administrative law and welfare policy and (2) fails to specify the role of the welfare state in the construction and reproduction of dominant cultural norms of womanhood and mothering. The paper draws on feminist literature and fieldwork-in-progress to suggest that many of these women are already subject to substantial mechanisms of social control and cultural reproduction. In concluding, it is suggested that the construction of this debate to date has served to deflect attention away from the fissures of gender, race and class that render these women's lives as publicly problematic.     

Reassessing the Feminist Theoretical Project in Law

This article seeks to address the current state of theoretical debate within feminist legal studies in the United Kingdom and beyond. It is part map, part critique of dominant theoretical trends – an attempt to identify and explore a range of questions about feminist scholarly engagement in law, including the relationship between academic feminism and political activism, the distinction (if any) between 'feminist' analyses and broader engagements with law and gender, and the normative underpinnings of feminist legal scholarship. The author makes no pretence to neutrality on these issues, questioning the perceived 'drift' between political and academic feminism, and arguing strongly for the recognition and realization of feminism's normative and transformative aspirations. Similarly, she challenges the emergence of an 'anti-essentialist' norm in feminist discourse, and reaffirms the value of 'women-centred' feminist approaches. Finally, this article is also a personal venture, a 'stock-taking' exercise which seeks to interrogate the author's own understanding of what feminist legal work entails.     

“文化霸权”话语的本土实践与反思

“文化霸权”成为1990年代以来人们谈论东西方文学与文化关系时所使用的关键词之一，开创了在中国文论语境下的“理论旅行”。它从思维模式的“二元对立”、话语领域的西方霸权、民族情结的强烈诉求与传统文化的回归和高扬等四个方面展开其话语实践。在其话语实践中，重新陷入了“文革话语”的历史圈套，遮蔽了我国文论发展的历史与现实以及所面临的问题，对西方进行想象化的本质处理与传统文化的异化塑形，彰显出本土权力的运作机制。我国文论应该在世界文论体系的观照下实现自身的现代化，为世界文论的发展做出特有的贡献，促进文论知识科学有序增长。     

Feminist theory confronts US Supreme Court rhetoric: the case of abortion rights

The research presented below analyses the rhetoric of abortion jurisprudence from the perspective of fundamental principles of feminist theory. While focused primarily on the American experience, it addresses and raises questions that are on the political agenda in a significant number of contemporary societies. The feminist principles identified, and against which judicial rhetoric is assessed, include: the importance of actual life experience over abstract principles, the significance of the distinction between the public and private realms and the understanding of society as a web of relationships. Demonstrated by the relevant data is that the decisions of the judiciary restrictive of reproductive choice are characterized by a distinctly non-feminist rhetoric.     

女性视角下的大众传媒——西方女性主义媒介批判综述

女性主义作为一种学术思潮和重要的研究派别,以它独特的性别视角和文化哲学,对西方学界产生了不可忽视的影响。女性主义在传播领域对性别歧视的批判、对传媒手段和媒介内容表现出的女性价值的研究,业已形成了该学科的中心日程。女性主义指出,大众传媒在社会性别角色观念和女性发展中扮演着重要角色,媒介充当了一个重要的性别偏见传播器。西方女性主义各主要学派均认定,女性价值并非天生,而正是自人类有史以来通过权力话语在社会建构起来的。她们追究了性别歧视的文化根源,并指出媒介对“权力——支配”的传统价值观是通过“话语”来建构和阐释的。女性主义旨在通过打破传播领域内的偏见和歧视,减少大众媒介对传统性别歧视的建构与影响,以促进社会的性别平等。     

Imperial paradigms: First Amendment theory,legal interdisciplinarity and reductionism

Increasingly, legal scholars are bringing the theories and vocabularies of other disciplines to bear upon legal issues, including First Amendment theory. While legal interdisciplinarity has many advantages, it also raises questions when scholars attempt to “reduce” legal theory to the conceptual frameworks of other disciplines. This article examines two such attempts, one by a feminist legal scholar, the other by an advocate of the economic analysis of law. The article critiques these approaches and explores some possible limits of interdisciplinary First Amendment scholarship.     

“The Right to Self-determination”: Right and Laws Between Means of Oppression and Means of Liberation in the Discourse of the Indigenous Movement of Ecuador

The 1970s and 1980s meant an ethnic politicization of the indigenous movement in Ecuador, until this moment defined largely as a class-based movement of indigenous peasants. The indigenous organizations started to conceptualize indigenous peoples as nationalities with their own economic, social, cultural and legal structures and therefore with the right to autonomy and self-determination. Based on this conceptualization, the movement developed demands for a pluralist reform of state and society in order to install a plurinational state with wide degrees of autonomy and participation for indigenous nationalities. A part of those demands was the double strategy to fight for legal pluralism while already installing it at the local level. Even if some degrees of legal pluralism have been recognized in Ecuador since the mid-1990s, in practice, the local de facto practice prevails until today. Another central part of the demand for plurinationality is the representation of indigenous peoples in the legislative organs of the state, developing since their first appearance in the 1940s in a complex way. This article will analyze the development of right-based demands within the discourse of the indigenous movement in Ecuador, the visions of the implied state-reform and the organizational and political background and implication they have. Based on an analysis of the central texts of the indigenous organizations, conceptualizations of rights and laws and their appropriation within an autonomist discourse and a local practice will be highlighted.     

Kant's theory of punishment: Deterrence in its threat,retribution in its execution

Kant's theory of punishment is commonly regarded as purely retributive in nature, and indeed much of his discourse seems to support that interpretation. Still, it leaves one with certain misgivings regarding the internal consistency of his position. Perhaps the problem lies not in Kant's inconsistency nor in the senility sometimes claimed to be apparent in the Metaphysic of Morals, but rather in a superimposed, modern yet monistic view of punishment. Historical considerations tend to show that Kant was discussing not one, but rather two facets of punishment, each independent but nevertheless mutually restrictive. Punishment as a threat was intended to deter crime. It was a tool in the hands of civil society to counteract human drives toward violating another's rights. In its execution, however, the state was limited in its reaction by a retributive theory of justice demanding respect for the individual as an end and not as a means to some further social goal. This interpretation of Kant's theory of punishment maintains consistency from the earliest through the latest of his writings on moral, legal, and political philosophy. It provides a good reason for rejecting current economic analyses of crime and punishment. Most important of all, it credits Kant's theory in its clear recognition of the ideals intrinsic to libertarian government.     

Legal Feminism and Foucault – A Critique of the Expulsion of Law

Contemporary theorists have become increasingly receptive to the selective incorporation of Foucaultian theory within feminist frameworks. However, the reception of Foucault within feminist legal critique has been less enthusiastic. The most celebrated theorist to argue for the incorporation of Foucaultian insight within the feminist analysis of law is Carol Smart. While conceding the significant contribution of her work, this article will argue that her interpretation of the Foucaultian thesis on law is considerably more problematic. Illustrating the extent to which she adopts an unnecessarily pessimistic prognosis for the development of Foucault within legal analysis and reform, this article will examine an emerging counter-interpretation of Foucault that presents the possibility for a more promising application, seeking to provide a defence both of the utility of Foucault for feminist jurisprudence, and of the utility of legal reform strategies being exercised for feminist purposes.     

概率性证据研究中的认识悖论

在南昌大学原校长周文斌受贿案中，其机械使用概率论解释质疑控方证据的做法，存在严重错误，由此引发了关于概率证据理论的一些思考。虽然英美证据理论研究中，占统治地位的对证据和证明过程的描述是概率性的，但艾伦教授认为数学世界与人类事务世界之间可能并不相似。在进入大数据时代的今天，司法实践对于精确性和可操作性的需求，由量化带来的对证明责任和当事人主张的清晰表达，以及对证明过程提供的规范性指引，都刺激了大量的试图使用概率性理论解释审判过程的某个方面的论证尝试。然而，在概率性语言试图描述证据及证明活动时，检察官及辩护律师谬论、结合悖论、相关性悖论等认识错误的出现却带来了对事实认定活动与概率理论之间矛盾冲突的反思，或者说并非是对概率性理论的批判，而是对法学理论家们就概率性理论的特定使用的批判。     

从基础规范看现代立宪转型之道

效法西方国家立宪是后发现代国家的通例却往往效果不彰,如何诊断这一现代病就变得非常关键。凯尔森的基础规范概念为此提供了重要工具。文章由此出发,先是批判性重述这一理论,认为凯尔森内容中立的基础规范无法胜任从实然向应然转换的功能;进而探讨基础规范证立所经历的三阶段,这实际上构成了立宪转型的内在逻辑结构;之后考察49年《共同纲领》的立宪实践。最后再次回到立宪转型之功能,当代思想中有两个与之相对应的典型范式：契约合意与商讨合意。在检讨了康德所代表的契约合意论之后,文章最终指出,通过商讨合意来实现立宪转型是更为优选的理论范式。     

Civilising the police: reconceptualising the role of the state in theories of American policing

The three eras in American policing – political, reform, and community – has become the default theoretical framework within the study of criminal justice, explicitly and implicitly shaping the discourse of police studies. Despite historically informed criticisms of this three-era model, no alternative theory has been proffered as a way of critically thinking about the police. This paper draws on Norbert Elias’ civilising thesis and the role of the state as an alternative theoretical framework to explain the evolution of American policing. We argue that changes in policing are more cogently explained by assuming a long-term view of change and that the intrusion and the retreat of the state from society better captures the evolution of the police through time.     

The chilling effects of algorithmic profiling: Mapping the issues

In this article, we provide an overview of the literature on chilling effects and corporate profiling, while also connecting the two topics. We start by explaining how profiling, in an increasingly data-rich environment, creates substantial power asymmetries between users and platforms (and corporations more broadly). Inferences and the increasingly automated nature of decision-making, both based on user data, are essential aspects of profiling. We then connect chilling effects theory and the relevant empirical findings to corporate profiling. In this article, we first stress the relationship and similarities between profiling and surveillance. Second, we describe chilling effects as a result of state and peer surveillance, specifically. We then show the interrelatedness of corporate and state profiling, and finally spotlight the customization of behavior and behavioral manipulation as particularly significant issues in this discourse. This is complemented with an exploration of the legal foundations of profiling through an analysis of European and US data protection law. We find that while Europe has a clear regulatory framework in place for profiling, the US primarily relies on a patchwork of sector-specific or state laws. Further, there is an attempt to regulate differential impacts of profiling via anti-discrimination statutes, yet few policies focus on combating generalized harms of profiling, such as chilling effects. Finally, we devise four concise propositions to guide future research on the connection between corporate profiling and chilling effects.     

Punishing Bodies,Securing the Nation: How Rule of Law Can Legitimate the Urbane Authoritarian State

Although authoritarian rule of law may seem an oxymoron, strategic reconfigurations of the “rule of law” can produce acceptance of law that observes procedure while erasing rights. By bringing into conjunction critical discourse theory and scholarship on the legal professions and political liberalism, this article shows how rulers can deploy rhetoric and legislation to produce derogations from the liberal content of rule of law while sustaining a state legitimacy built on claims to state realizations of rule of law. A close analysis of Singapore's Vandalism Act shows that silencing the critique of lawyers and constraining the power of judges has been crucial to a legitimation of the surveillance and criminalization of dissenters. The consolidation of state power effected via law and discourse might be seen as making the nation a notional panopticon—corporal punishment, even if conducted behind prison walls, becomes instructive public spectacle conveying the state's seeming omniscience and monopolistic command of law.     

Social Exclusion and the Welfare of the Child

The 'best interests of the child' is a pervasive notion in law, and the welfare discourse within which it acquires meaning has become increasingly dominant in our culture's stock of 'common sense'. Because this discourse positions children as dependent and vulnerable, it underpins images of children that can perpetuate the social, legal, and political marginalization of children. This paper uses the area of children and divorce to explore the ways in which this exclusion of children persists alongside both an ostensible commitment to the welfare of children and an increasingly strong rights discourse. We argue that constructions of the child as victim have both political and psychological dimensions: they serve to legitimize state intervention into 'private' family life, and they help assuage social anxieties about the alleged demise of 'the family'. At an individual level, they facilitate a process whereby children can become the repository for feelings with which adults cannot cope. We then suggest that two fundamental changes are required in order to address children's exclusion: the development of a more psychodynamically informed view of personhood and a new image of the child to inform policies.     

Incurable Sex Offenders, Lousy Judges & The Media: Moral Panic Sustenance in the Age of New Media

There is consensus that since the 1990s, we have experienced a spike in public concern over sexual offenders. Analyzing this concern as a moral panic, this paper argues that national television coverage, as it picks up local news, adds heat to the fire by re-naming the villain as an inadequate judicial system. This process helps to sustain a moral panic, while narrowing the available discourse about the nature of appropriate punishment. Drawing upon a well-publicized example of a media event in Vermont, this paper extends the theory of moral panics to add another stage to the process—a stage presented by the advent of cable news programming, the relationship between local and national media, and the explosion of blogs. In order for a panic to sustain over an extended time period, the rhetoric about it must transform. In particular, the claimsmaking about the nature of the problem must evolve. In particular, the panic has evolved from sex offenders as folk devils to an attack on judicial discretion. The development of the outcry over judicial discretion was due, in part, to media distortion of the case. I will thus trace the trajectory of this one case to demonstrate the role of the media in shaping and sustaining the panic.