THE SEXUAL SUBALTERN IN CONVERSATIONS “SOMEWHERE IN BETWEEN”: LAW AND THE OLD POLITICS OF COLONIALISM

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     

Patricia Williams: Inflecting Critical Race Theory

Critical Race Theory (C.R.T.) has developed out of a deep dissatisfaction that many black legal scholars in the U.S. felt with liberal civil rights discourse, a discourse premised upon the ideals of assimilation, ‘colour-blindness’ and integration. In addition, the emergence of the Critical Legal Studies movement provided Critical Race theorists with an innovative lexicon and practice which allowed them to develop a critique of traditional race analysis and U.S. law. Patricia Williams has played a key role in the formation of the C.R.T. movement and is concerned with many of the C.R.T. themes: the understanding that traditional civil rights law has benefited whites more than blacks, the ‘call to context’, and the critique of liberalism by the assertion that racism is routine and not aberrational. Following the C.R.T. belief that form and substance are connected, Williams has also extended the boundaries of another C.R.T. theme by (largely) eschewing the conventional genre of legal writing in much of her work, including her two books, The Alchemy of Race and Rights and The Rooster's Egg. This was one of the issues Williams discussed in an interview that commenced when she visited Britain in 1997 to deliver the Reith Lectures. This revised version was published online in August 2006 with corrections to the Cover Date.     

Body/Mine: A Chaos Narrative of Cyborg Subjectivities and Liminal Experiences

This is a story about how I came to construct my postoperatively scarred body as a mine site, my liminal experiences of reconstructively normalizing its appearance as a cyborg, and what that means to me, conceptually and physically, as a feminist poststructuralist researcher interested in how the body of a theorist performs and is (re)presented within theoretical spaces. My story takes the form of a mitigated “chaos narrative” that questions linear modernist medical discourses of rehabilitation and restitution by discussing the chaotic dynamics of my cancer experiences, and relates concepts of cyborg subjectivities and other feminist poststructuralist work to my corporeal body and the body of my research in environmental education.     

Women,Law and John Stuart Mill

John Stuart Mill's intellectual reputation is unarguable; his liberal credentials seemingly impeccable. Moreover there seems to be a Mill for everyone; liberal, radical, feminist. The precise nature of the feminist Mill has however remained a matter of considerable debate. The purpose of this article is less to engage this speculation, but rather to invite closer consideration of what Mill actually said and wrote about women and the law in nineteenth-century England. For Mill, the law was both an instrument of women's subjection and a prospective means of liberation.     

Vulnerability in Domestic Discourses on Trafficking: Lessons from the Indian Experience

In recent years, rather than addressing the needs of sex workers themselves or of trafficked persons, international anti-trafficking law has been mobilised towards an ideological end, namely the abolition of sex work. The vulnerability of ??third world?? female sex workers in particular has provided a potent image for justifying state intervention backed by the full force of the criminal law. Moral legitimacy has been afforded to this by a radical feminist discourse which views sex workers as nothing but hapless victims. Drawing on the work of Martha Fineman and legal realists like Robert Hale, this article redeploys vulnerability in trafficking debates to depart from its narrative of victimhood and to offer a renewed critique of liberal legalism, which has in the trafficking context been characterised by legal strategies of criminalisation and the attendant rescue and rehabilitation of trafficked persons. Specifically, it examines how three Indian social legislations regulating bonded labour, contract labour and inter-state migrant labour, and targeted at the domestic trafficking of men, conceptualise vulnerability in substantially different ways when compared to the 2000 Palermo Protocol on Trafficking (at least as it has been enforced to date). To the extent that these Indian laws construe the vulnerability of labour as systemic, trafficking is understood as a problem of labour migration to be addressed primarily by labour law. As such, this view of vulnerability, I argue, not only helps to de-exceptionalise trafficking as always equivalent to the trafficking of women for sex work, and therefore sex work, but also to substantively address the vulnerability of both male and female workers in other labour markets.     

Liberal family law in the making: Nordic and European harmonisation

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.     

职工住房公积金的司法可执行性探讨

住房公积金是属于职工个人所有的长期性住房储金,不具备基本社会保障功能,可以作为人民法院强制执行的标的物。住房公积金管理中心拒绝协助执行的理由和依据不但不合情理,而且违反了上位法。现行的住房公积金立法已不适应当前社会经济形势的发展与变化。     

The Elephant in the Room: Heterosexuality in Critical Gender/Sexuality Studies

Gender equality workers have to perform a balancing act between feminist ideals for change and neo-liberal management trends. So-called audit discourses have gradually been introduced into Swedish universities, in line with an enterprise model. In this new context, the aim of our article is to investigate how gender equality workers at universities articulate gender equality and possibilities for change. What are their visions and strategies for achieving gender equality? This article is based on interviews with gender equality workers at three Swedish universities and explores how the legitimate gender equality worker is constructed. We found that there is a lack of visionary thinking among gender equality workers, which manifests itself in a sense that the distinction between visions and strategies has collapsed and technologies like auditing have become the vision. It seems that, whilst navigating between liberal feminist discourses and an increasingly neo-liberal setting, two positions are available for gender equality workers. The first is the “administrator”, who asks for more tools and monitoring of gender equality, in order for the work to become more efficient and legitimate. The second position, the “critical cynic”, makes scepticism and resistance to the increasing bureaucratization of gender equality work possible, but lacks alternative visions and strategies. Gender equality initiatives have thus become increasingly embedded in auditing technologies, and the possibilities for articulating alternatives or visionary ideals, beyond liberal values of anti-discrimination, seem limited.     

V.A.T., Taxation and Prostitution: Feminist Perspectives on Polok

Debates concerning the taxation of prostitution have occurred in taxation law and in feminist literature. This article will integrate the case of Polok v. C.E.C. [2002] E.W.H.C, 156; [2002] S.T.C. 361, within the feminist legal canon. The case is discussed in the context of the argument of the European doctrine of fiscal neutrality, which dictates that, regardless of legality as amongst member states, if an activity is levied to V.A.T. in one member state, V.A.T. should be levied on it in all member states. The doctrine of sovereignty accepts the possibility that the integrity of the V.A.T. system may be compromised by the levying of tax on illegal activities, in terms of the cooperation between tax and other aspects of the U.K.’s legal system. European law, feminist law, commodification and the marketplace are all considered within the context of these principles. The article also considers the place of Polok within standard feminist texts on prostitution. Different paradigms of prostitution define different aspects of prostitution as ‘problems’, and the article considers the implications within a feminist reconstruction of Polok of this. The article suggests that the challenge for a feminist analysis of Polok is to remain within the realm of European tax and competition law, and to render the perspective of the employees of the Polok taxpayers part of the substance of the deliberations of the case.     

The Miser's Store: Property and Traditional Law in the Governance of the 'Native' Economy

Recent studies of 'liberal governmentality' have examined how state actions regulate the ideally self-regulating economic sphere [Burchell, 1991]; this article highlights the particular dilemmas of liberal governmentality in a colonial arena where not one, but two types of economy were posited. By analysing the system of traditional property law implemented by the Dutch in two locations in central Sulawesi, Netherlands East Indies (now Indonesia), I show that property is only an indifferent marker of class, and that the limits of surplus extraction are set by control of other means of production. By arguing that both 'traditional' and 'capitalist' economies are embedded in the same local legal culture, I hope to demonstrate that a shift from the one to the other cannot of itself offer the promised benefits of modernity.     

The Uniform Civil Code: The Politics of the Universal in Postcolonial India

This article speaks of a debate in contemporary India: that surrounding the validity of enacting a civil code that applies uniformly to all communities and religions in the state. In certain feminist arguments, such a code is seen as possibly providing a sphere of rights to Indian women that is alternative to the rights – or wrongs – given to them by the plural religious laws, which form the basis of the civil law in India. India, however, is a heterogeneous polity, encompassing a diversity of cultures and religions, some dominant and others forming minorities. Given these differences, some critics see the feminist call for a Uniform Civil Code as an essentialist move that prioritises gender over other agendas and politics. They argue that the site of the ‚universal’ in this feminist move is a liberal site that inherently excludes marginalised Others and benefits the dominant subjects in India. In my article, I contest this critique and question whether the site of the universal and its authorial subject in postcolonial India is, in fact, an exclusionary liberal ruse of power. I draw insights from the history of the formation of the postcolonial nation-state in India to posit an experience of the state and the universal within it, which is alternative to the Western liberal model. The aim of this article is, therefore, not so much to debate the in/validity of a Uniform Civil Code, as to address certain contemporary post-structuralist critiques of the site of the universal in postcolonial India and posit a departure from them, based on perspectives drawn from history.     

The Perils of Pregnancy Ferguson v. City of Charleston

The United States Supreme Court, in its decision Ferguson v. City of Charleston,ruled that to conduct drug tests on pregnant women in public hospitals and to share that information with the police without obtaining a search warrant amounted to a violation of the women's constitutional rights under the Fourth Amendment. Set within the political context of public policy designed to monitor the activities of pregnant women and the ongoing incidence of prosecutions for ‘foetal abuse’,this note shows how the Supreme Court’s decision, while on the one hand vindicating the rights of pregnant women to be free from unlawful searches upon their person, does not definitively determine the important question of the extent to which the state may regulate women’s behaviour during pregnancy. This revised version was published online in July 2006 with corrections to the Cover Date.     

Dancing on the head of a pin? Foetal life and the european convention

The case of Vo v. France represents the latest phase of the European Court of Human Rights’ thinking on the scope of Article 2 of the European Convention on Human Rights (the right to life) in relation to foetal life where a foetus had been lost owing to a medical accident. The Court by a majority decided that, “even assuming” Article 2 applied to the instant case (albeit to the life of the pregnant woman rather than that of the foetus), it had not been violated. While the facts in Vo were extreme and exceptional, the Court will shortly hear the case of D v. Ireland concerning access to abortion for foetal anomaly, an application made under Articles 3, 8, 10 and 14 of the European Convention. If the case of D were declared admissible, the Court would then have to consider whether a denial of access to abortion for foetal anomaly constitutes inhuman and degrading treatment contrary to Article 3, or an interference with a pregnant woman’s right to respect for private life under Article 8 (and if so, how the doctrine of the margin of appreciation applies). The Grand Chamber precedent of Vo displays ambivalence about whether Article 2 should apply to foetal life, and its resort to the “even assuming” formula spared Member States the difficulty of having to justify their various abortion regimes, by reference to this Article. It remains to be seen whether in a case like D that is directly concerned with abortion, the Court will take a more definite stance on the correct balance to be struck between the State’s interest in protecting foetal life and the Convention rights of pregnant women. Vo v. France [G.C.], judgment of 8th -July 2004, no. 53924/00; D v. Ireland [4th section], no. 26499/02, oral hearing on admissibility and merits, 6 September 2005     

Capitalism obscured: the limits of law and rights-based approaches to poverty reduction and development

The Commission on the Legal Empowerment of the Poor (CLEP) was established by the United Nations in 2005 and concluded in 2008. Although inspired by Hernando de Soto's analysis of the role of property rights in economic development, the scope of the Commission was defined as ‘legal empowerment’ in general. This commentary offers a critique of the CLEP report, and argues that its underlying assumptions rest on an idealised version of liberal democratic capitalism in which a dynamic market economy assures ‘win-win’ solutions for all. This implies that there are no tensions between the four ‘pillars’ of legal empowerment identified by CLEP (the rule of law, property rights, labour rights, and business rights). However, in the real world of capitalism, in both democratic and authoritarian versions, there are structural tensions between classes of capital and classes of labour, which result in the economy and its underlying institutional order becoming a key site of contestation. The case of farm labour in rural South Africa is used to illustrate this argument. A focus on legal rights can, however, be ‘empowering’ to a degree, when it helps defend poor people from exploitation and abuse, or is located within broader strategies to eradicate systemic poverty.     

Sexually active but not pregnant: A comparison of teens who risk and teens who plan

Previous studies have compared contraceptive users with nonusers, and pregnant teens with nonpregnant ones. This paper reports the findings of a study of a sample of 119 women aged 21 and under who visited the Young Adult Clinic at Columbia-Presbyterian Medical Center in New York City during 1981. All of these women had been sexually active for a year or longer, but had never been pregnant. The expectation that such a sample would include mainly consistent users of contraception was unwarranted; within this special population were found young women who had never used contraception or who had only been sporadic users, as well as the consistent users. Moreover, there are many more similarities than differences among these groups, and their stated motivations for not becoming pregnant are the same. The consistent contraceptors were more likely to live with their mothers, to have mothers who worked, to indicate that their parents would help them have an abortion, and to indicate they would have an abortion should they become pregnant. The similarities between these young women are very important for programs, which often rely heavily on stated motivation or even on a clinic visit as evidence that a young woman intends to use a birth control method. There is nothing here to support this simple view. Instead the notion is substantiated that many adolescents may lack cognitive consistency on this subject or may lack the future orientation to be effective contraceptive users.     

Which is it you want – equality or maternity leave?

In Alabaster v. Barclays Bank plc and Secretary of State for Social Security (No. 2: [2005] E.W.C.A Civ. 508, [2005] I.R.L.R. 576.) Michelle Alabaster won a grand total of ￡204.53 (plus ￡65.86 interest) after eight years of litigation, which included two visits to the Court of Appeal and one to the European Court of Justice. This marathon resulted from the sex discrimination which Alabaster had alleged in relation to the calculation of her Statutory Maternity Pay (S.M.P.) whilst she was pregnant 10 years earlier. The technicalities of the statutory schemes involved should not be allowed to disguise the important principle which finally emerges in the Court of Appeal and which underlines one of the longstanding criticisms of the equality legislation, namely the requirement that a woman must compare herself with a man in order to establish unlawful sex discrimination.     

The ‘Sharia Law Debate’ in Ontario: The Modernity/Premodernity Distinction in Legal Efforts to Protect Women from Culture

The normative figure in Western feminism remains the liberal autonomous individual of modernity. ‹Other’ women are those who have their freedom to choose restricted. Typically, ‹other’ women are those burdened by culture and hindered by their communities from entering modernity. If we remain in the terrain of thinking about women as vulnerable or imperilled, and some women as particularly imperilled, as we generally do of Muslim women, we remain squarely within the framework of patriarchy understood as abstracted from all other systems. A modernity/premodernity distinction will continue to invade any projects intending to help Muslim women. This paper shows the persistence of the modernity/premodernity distinction in contemporary debates around applying Sharia law to the settlement of family law disputes under the Arbitration Act in Ontario, Canada. I argue below that in their concern to curtail conservative and patriarchal forces within the Muslim community, Canadian feminists (both Muslim and Non-Muslim) utilized frameworks that installed a secular/religious divide that functions as a colour line, marking the difference between the modern, enlightened West, and tribal, religious Muslims. I suggest that feminist responses might have helped to sustain a new form of governmentality, one in which the productive power of the imperilled Muslim woman functions to keep in line Muslim communities at the same time that it defuses more radical feminist and anti-racist critique of conservative religious forces. I end by exploring how this effect could have been restricted.     

English Transgender Law Reform and the Spectre of Corbett

This article will provide a critique of tworecent English marriage law decisions, thefirst concerning a (female to male) transgenderman and the second a (male to female)intersexed woman. It will do so throughconsideration of the dialogue between each andthe landmark transgender case of Corbett v. Corbett. It will highlight howboth decisions, in seeking to minimise the factof `departure' from Corbett, serve toreproduce key elements of that decision whichserve to undermine the future prospects fortransgender law reform in the English context.In particular, both decisions, in differentways, or with different emphases, ensure that`legal sex' continues to be determined by(bio)logical and temporal factors. Crucially,however, as in Corbett, it is legalanxiety over the boundaries of the `natural',and the homophobia of law, that underscoresthis anxiety, that account for these particularconstructions of `legal sex'.     

Menarcheal status and parent-child relations in families of seventh-grade girls

The associations between menarcheal status and several child-rearing and outcome variables were examined for mother-daughter and father-daughter dyads. All variables were assessed with questionnaires as an extension of earlier observational studies. Analyses were conducted via multiple regression analyses wherein menarcheal status was treated as a continuous variable and was entered into the regression equation as a set of power polynomial terms. The results indicated that most of the significant relations occurred for the mother-daughter dyad, and most of these relations were curvilinear. When menarche occurs at or around the modal time, changes in parent-child relations may be best thought of as temporary perturbations, but when menarche occurs early the effects may persist.The research reported here was funded by Father Flanagan's Boys Home, Inc., and by a grant to the senior author from the John D. and Catherine T. MacArthur Foundation, Family Relations in Early Adolescence.Received his Ph.D. in clinical psychology from Harvard University.Received his M.S. from Virginia Commonwealth University.Received her M.S. in counseling psychology from Virginia Commonwealth University.Received his M.S. from the University of Nebraska.She received her Ph.D. in developmental psychology from the Department of Human Development and Family Studies, Cornell University.