Judicial authority through the experiences of crisis

This article is concerned with law’s experiences and making sense of crisis. When we talk about law’s response to crisis, we refer to law not as an abstract set of rules but as an embodied and animated assemblage of relations and practices. This way, law needs to make sense of any crisis to respond to it. The article draws on cultural legal studies to explore the constitution of judicial authority in the context of a democracy in flux. The article relies on fieldwork data collected in the interviews conducted by the author with Lithuanian judges in 2019. Highest in more than two decades, public trust in the judiciary in 2018 indicated a remarkable achievement for Lithuania, a country whose judicial system had been in a state of flux since the end of the Soviet era. However, after an unprecedented and highly mediated judicial corruption scandal in 2019, the rates of public trust plummeted, uncovering complex dynamics between the image of courts, mass media, and the public. Against this backdrop, the article explores how judges make sense of crisis that develops on the intersections of provocative reality judging and formal judicial institutions. It shows how judicial authority is constituted in the conditions of crisis on the tension between law and culture. Emerging from a crisis of authority is the changing face of judging. A post-colonial vantage point and theatrical jurisprudence are used to respond to a development of a desire of power under a mask of rationality, objectivity, and universality. The article concludes by contemplating how this authority shapes our lifeworlds.

     

Bodily Integrity,Embodiment, and the Regulation of Parental Choice

In this article we develop a new model of bodily integrity that we designate ‘embodied integrity’. We deploy it to argue that non‐therapeutic interventions on children should be considered within a decision‐making framework that prioritizes embodied integrity. This would counter the excessive decision‐making power that law currently accords to parents, protecting the child's immediate and future interests. Focusing on legal responses to genital cutting, we suggest that current legal understandings of bodily integrity are impoverished and problematic. By contrast, adoption of an ‘embodied integrity’ model carves out a space for children's rights, while avoiding these negative consequences. We propose that embodied integrity should trump competing values in any best‐interests assessment where a non‐therapeutic intervention is requested. Drawing on Drucilla Cornell and Joel Feinberg's theories we argue that protecting a child's embodied integrity is essential to guarantee his/her right to make future embodied choices and become a fully individuated person.     

Social Rules: Some Problems for Hart’s Account,and an Alternative Proposal

What is a social rule? This paper first notes three important problems for H.L.A. Hart’s famous answer in the Concept of Law. An alternative account that avoids the problems is then sketched. It is less individualistic than Hart’s and related accounts. This alternative account can explain a phenomenon observed but downplayed by Hart: the parties to a social rule feel that they are in some sense ‘bound’ to conform to it.

     

Laws of Inclusion and Exclusion: Nomos,Nationalism and the Other

This article explores how and why contemporary nationalist ‘defence leagues’ in Australia and the UK invoke fantasies of law. I argue these fantasies articulate with Carl Schmitt’s theory of ‘nomos’, which holds that law functions as a spatial order of reason that both produces and is produced by land qua the territory of the nation. To elucidate the ideological function of law for defence leagues, I outline a theory of law as it relates to (political) subjectivity. Drawing on the work of Foucault, Agamben and Brown, I demonstrate how subjects form and are formed by historically contingent relationships to law in the contemporary neo-liberal moment. Turning to Lacan, I show how nationalistic invocations of law provide nationalists with a fantasy that the nation’s law represents them and holds them together (as the nation itself). Similarly, I argue that nationalists imagine that the other has their own law as well, which not only corresponds to the other, but functions as a legible index of the other’s otherness—a metonym for the threatening uncertainty and radical difference that the other represents. Drawing on Lacan’s concept of the big Other, I ultimately argue that nationalists aggressively (re)assert law not only to defend the nation, but to ensure their own symbolic and ontological security therein.

     

Negotiating a Victim Identity: Young Men as Victims of Violence

This article is based on an interview study of how 10 young male crime victims talk about violent events and actors involved. It focuses on how the young men present their identities as ‘young men’ who have been victims of violent crimes. In their narrations the men struggle with a cultural understanding that ‘masculinity’ is associated with strength and power, while ‘victim’ is associated with weakness and impotence. During the interviews the young men actualize several balancing acts in their presentation of themselves as men and victims in a delicate manner by use of specific word choice, manner of speaking, laughter, etc. The young men are negotiating a victim identity; they portray themselves by careful positioning as both victims and strong, active young men. By this discursive balancing of identities the young men present themselves as manly at the same time as they present themselves as victims. In collaboration with the interviewer the participants negotiate how they want to be known: as ‘victim-worthy’ young men, with associations to a ‘hegemonic manliness’.     

Desperately Seeking ‘Justice’ in Classical Chinese: On the Meanings of Yi

This essay sets out to search for an equivalent Chinese word to the English word ‘justice’ in classical Chinese language, through ancient Chinese philosophical texts, imperial codes and idioms. The study found that there does not seem to be a linguistic sign for ‘justice’ in classical Chinese, and further, yi resembles ‘justice’ in some ways and has been used sometimes to translate  ‘justice’, but yi is a complex concept in traditional Chinese philosophy with multiple meanings and it is dissimilar to ‘justice’ in their semantic and pragmatic meanings in Chinese and English legal culture. While ‘justice’ is a keyword and fundamental to Western law, yi is not a legal word or concept in classical Chinese in traditional China. Given its complexity, yi does not have a one-to-one equivalent in English. It sometimes carries a sense of ‘righteousness’ and occasionally ‘justice’, but yi and ‘justice’ are not equivalent. In view of these, it becomes understandable that the translations of yi in contemporary Chinese usage vary ranging from ‘friendship and justice’ to ‘greater good’, among others. The meaning of yi is still uncertain and context sensitive as it was two thousand years ago.

     

Interracial marriages in twentieth-century Cape Town: evidence from Anglican marriage records

ABSTRACT

One of the most controversial laws promulgated by the National Party as part of South Africa’s mid-twentieth century apartheid policies was the 1949 Prohibition of Mixed Marriages Act. This Act stipulated that ‘a marriage between a European and non-European may not be solemnized, and any such marriage solemnized in contravention of the provisions of this section shall be void and of null effect’. We use more than 23,000 newly-transcribed Anglican marriage records of Cape Town for the period 1911 to 1964 to show that the Act had mostly followed, and not led, changing interracial marriage practices. In the years before the Act’s promulgation, interracial marriages were rare and on the decline, despite the fact that apartheid-era policies had not yet been institutionalized. Our results suggests that marriage behaviour in Cape Town, and probably in South Africa more generally, was shaped by racial stratification early in the twentieth century. The Prohibition of Mixed Marriages Act of 1949, although devastating to those affected, was a correlate to rather than the cause of changing marriage behaviour.     

Designing a Legal and Regulatory Framework for Better Public Financial Management: Some Issues for Consideration from Trinidad and Tobago

Ill fitting legal shoes pinch citizen’s foot.

Chinese Proverb

Never ask of money spent where the spender thinks it went. Nobody was ever meant to remember or invent what he did with every cent.

Robert Frost

There is a sense in which discussions of public law and debates about budgeting have a good deal in common. Both budgets and law are essential to the task of public administration. Without legal authority and budgetary resources, agencies cannot function. Indeed, without legal authority they do not even exist, and without financial resources they exist in name only.

Cooper, Phillip J (1999) ‘Courts and Fiscal Decision Making’, in: Handbook of Government Budgeting (San Francisco: Jossey‐Bass) p 502.     

Switching on,switching off: reflections of a practitioner researcher examining the operational behaviour of police officers

ABSTRACT

Evidence-based policing is rapidly becoming adopted by policing agencies among policing jurisdictions. Many academic programmes have been established in higher education to train police managers in applied criminology. However, there is a lack of literature for police officer practitioner researchers (POPR) who might undertake qualitative research, especially research projects that examine police behaviour. This paper reflects on the changing role of the practitioner-researcher and suggests that police officers undertaking qualitative research need to learn to ‘switch off their police role’ and ‘switch on their researcher role’. The author’s insights are drawn from his own experience of qualitative fieldwork working with police officers from New Zealand Police and South Australian Police.     

Our Democracy,Our Identity,Our Anxiety

The Brexit referendum result has given focus to and amplified a series of anxieties: the successful campaign gave visibility to anxiety about immigration and loss of sovereignty, while also creating anxiety about illiberal populism. This anxiety about national identity, current and prospective (both from supporters of Brexit and its opponents), about Brexit, as caused by anxiety and cause of anxiety, has provoked a debate even about the merits of democracy, if ‘the voice and will of the people’ disrupts the traditional constitutional assumptions regarding checks and balances and becomes despotic. Reference to the tradition of anxiety about democracy, exemplified by Kierkegaard and Kant, establishes a context here for a discussion of the Brexit political debate in terms derived from Lyotard’s investigation of, on the one hand, an appeal to mythic narrative to stabilise a claim of identity, and, on the other hand, narratives of emancipation embodied in a future-oriented deliberative process, which can be analysed in terms of seven different types of language game at play. Particular reference to the image of ‘triggering’ used in the Supreme Court’s judgments in the (R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5) case in relation to Article 50 and the UK’s exit from the EU is made to illustrate the significance of figures of speech within discourse. The conclusion draws on Lyotard’s distinction between a litigation and a differend in order to better understand the politics of Brexit.     

Religion,masculinity and fertility decline

This paper provides the sketch of a new mechanism explaining the delay of Catholic fertility, namely the changing norms of masculinity and fatherhood, through a comparative study of the first fertility transition in Switzerland (1880–1930).

Comparative analysis of religious discourse attests to striking differences in norms of respectable masculinity. In the Protestant canton, men were especially targeted and strongly incited to change their sexual behaviour and limit their offspring in order to comply with a new model of the good husband and father. The religious teachings had an impact due to the social position of the persons enouncing the norms, to the efficient diffusion reaching the majority of men, and to the effective sanctioning, as the example of pastoral enquiries demonstrates. In the Catholic canton by contrast, men were not specifically addressed; the religious discourse supported the husband's rights to frequent sexual intercourse and encouraged him to trust Providence to bring up many children, thus sustaining high levels of fertility. The political repression of public discourse on sexuality defeated every attempt of contesting the husband's marital rights and the Catholic doctrine of procreation. Sexual taboos were particularly severe for women and their total ignorance of sexual matters weakened their bargaining power in fertility decisions.

In the last part of the paper, using quantitative methods, we tried to demonstrate that these norms and mechanisms did indeed influence men's behaviour in the Protestant sample. For this purpose, we measured comparatively the results of some indicators introduced to capture the impact of the norms of respectable masculinity, regarding men's responsibility in contraception and men's ability to maintain dependent children. We hope thus to strengthen the position of a growing number of scholars who state that historical demographers cannot avoid incorporating gender into their explanations of historical trends of fertility and who foster the bridging of qualitative and quantitative methods.     

City/Courthouse Building: A Mirror Game. Examining Connections Between Courthouse Buildings and Location in the Urban Environment

Courthouses are one of the founding pillars of the modern rule of law, being a sovereign body. But courthouses are not just buildings where justice is applied, administered, and written. From Max Weber on, courts have been associated with the urban dimension and the place they occupy in the geography of the cities. As in a mirror game, both city and court building look at each other, both shape each other, they belong to one another. And yet, how often do we think of their intimate interactions? Having this in mind, and by examining a number of geographically disparate cases, I intend to discuss correlated variations of the mirror game between city and courthouse building, where variables such as ‘the proxemics of the courthouse’, the (dis)alignment amid centre and periphery, ‘the sense of loss’ and the significance of control/discipline will be central to comprehend the ‘court/city’ narratives involved. Such semiotic analysis aims to foster reflection on the socio-political weight the location of the court—the connections of the building (comprising its architecture) and the city—may express. I conclude by arguing that courthouse buildings must rediscover their place and legitimacy, not only in the community’s collective imagination, but also in the urban space, promoting a closer dialogue with the cities in which they operate, as essential axes of city life. Particularly at a time when the likely way forward suggests a digital trajectory, possibly without the need for buildings.

     

Real Lives and Lost Lives: Making Sense of ‘Locked in’ Responses to Intimate Partner Homicide

The problem of intimate partner homicide is featuring increasingly on national and international policy agendas. Over the last 40 years, responses to this issue have been characterised by preventive strategies (including ‘positive’ policing; the proliferation of risk assessment tools, and multi-agency working) and post-event analyses (including police inquiries and domestic homicide reviews). In different ways, each of these responses has become ‘locked in’ to policies. Drawing on an analysis of police inquiries into domestic homicides in England and Wales over a 10-year period, this paper will explore the nature of these ‘locked in’ responses and will suggest that complexity theory offers a useful lens through which to make sense of them and the ongoing consistent patterning of intimate partner homicide more generally. The paper will suggest this lens in embracing what is known and unknown affords a different way of thinking about and responding to this problem.

     

The Origins of the ‘Nonmarket Economy’: Ideas,Pluralism & Power in EC Anti‐dumping Law about China

‘Market’ and ‘market economy’ exercise a powerful, even magnetic grip on our collective imagination. But what do we mean by ‘market economy’? Does it make sense to speak of a ‘nonmarket economy’, and if so, what does it mean? How are the ideas of ‘market economy’ and ‘nonmarket economy’ related? Focusing on EC anti‐dumping law, this article seeks to answer these questions. It argues that the legal concept of ‘nonmarket economy’ in EC anti‐dumping law has been socially constructed, by means of relations among a plurality of institutional and normative sites, as part of a changing configuration of legal ideas in specific historical circumstances, and in contexts of political, economic, social, and symbolic power. This argument is articulated in three parts. First, the concept of ‘nonmarket economy’ in EC anti‐dumping law, though drawing on earlier elements, had its main roots in the early Cold War. Second, starting in the 1960s, the GATT multilateral negotiating rounds began to define more specific international rules of the game, but a variety of more localised processes played essential roles as forces of change. Of special importance were, first, the tension between legislative rules and administrative discretion in the United States, and, second, the Europeanisation of foreign trade law in the course of European integration. Third, the EC law concept of ‘nonmarket economy’ was born in the late 1970s. The main reasons were changes in the international anti‐dumping law repertoire, specific ideas in Europe about comparative economic systems, and the perceived emergence of new economic threats, including exports from China.     

Mega/City/Crime: Notes on the Cultural Significance of Reggio’s Koyaanisqatsi (1982)

In his “non-narrative” film Koyaanisqatsi (Hopi for ‘life in imbalance’) Godfrey Reggio documents the ecologically disastrous ‘imbalanced’ life in modern, industrialised mega-cities. In the film, he seems to mourn the loss of what he suggests was a more ‘balanced’ form of life, when Man was one with nature. This contribution draws on elements in Hopi culture and reads Reggio’s iconic film as part of a cultural trend in which submission, in all its guises, is no longer accepted. In this cultural trend submission always is submission to code (that is: to a certain structured solidity or ordered coherence), and therefore, to wasteful destruction and to ‘life in imbalance’. This trend has, however, in the course of the decades, also spawned a void of “Luciferian” desires of absolute sovereignty, and has done this to such an extent as to undermine the conditions of possibility for anything like a non-submissive life ‘in balance’ to endure.

     

Hefa Quanyi: More than a Problem of Translation. Linguistic Evidence of Lawfully Limited Rights in China

This essay addresses the legal meanings of the phrase hefa quanyi (lawful or legitimate rights and interests), an important Chinese legal phrase that is frequently found in many Chinese laws and legal documents, and whose interpretation is claimed by various scholars to affect the alienability of people’s rights. It first challenges the existing translations of the phrase into Italian and English. It secondly delves into its history and etymology, studying the legal meanings that the phrase has had in the various texts of the Constitution of China. It is suggested that hefa quanyi is not the semantic and legal equivalent of Western ‘rights and interests’, but rather that the phrase retains its etymological meaning of ‘power and negatively-connoted profit’. It is further argued that the adjective hefa (lawful) in the phrase is used to impose constraints on the rights and interests that the Chinese people are entitled to.

     

Doing time after time: an Interpretative Phenomenological Analysis of reformed ex-prisoners' experiences of self-change,identity and career opportunities

Abstract

The study of desistance from crime has generated a wealth of research in the last few decades. Despite the many barriers ex-prisoners face when attempting to ‘go straight’ many successfully lead law-abiding lives. Two key features identified in criminal desistance are a shift to a pro-social identity and worthwhile employment or the development of a new career path. There is, however, little psychological knowledge available on reformed offenders' experiences of self-change. This study focuses on ex-prisoners' experiences of employment and career opportunities. Five male reformed offenders took part in semi-structured interviews. Data collected was subjected to an Interpretative Phenomenological Analysis. Participants demonstrated that desistance involves a shift to a pro-social identity and that self-change was a positive experience. An important aspect to emerge was the conflict experienced by the label ‘ex-offender’, which had a contradictory influence on the men's sense of self.     

Discursive ethnomethodology: Analysing power and resistance in talk

Abstract

In order to better understand relationships between forms of institutional discourse and social interaction we outline an approach to the study of power in talk which we call discursive ethnomethodology. Following commas on approaches to the study of language and power, we illustrate our framework through analysis of an interview between a police officer and suspect where the latter exhibits a ‘right to silence’. Essentially, our approach distinguishes between two aspects of talk as event the immediate participation context, end the discursive or ‘folk-model’ resources employed by participants in context. Corresponding to these aspects are implicit/explicit expressions of power and resistance and externally available discursive objects. Through example extracts we illustrate how this framework can be employed in forensic psychology, bringing together both discursive psychology and critical discourse analysis alongside the ethnomethodological orientation of conversation analysis.