Uses of Macro Social Theory: A Social Housing Case Study

This article reflects on the use of macro social theoretical perspectives to explain micro social issues, using social housing allocations as a case study. In contrast to a number of social theoretical examinations of social housing allocation schemes in recent years, spanning socio‐legal studies, we argue that ‘cookie‐cutter’ theories may overlook other positions and counter‐factual scenarios. We draw on a sample of local authority allocation schemes to reflect on the growing category of households (commonly termed ‘unhouseables’ by housing officers) which are excluded from appearing on such schemes because of their former housing deviance or some other disqualification. We offer a set of reflections grounded in our data, which focus on sustainability. Thus, rather than point to particular rationalities or the like, we offer particular housing issues as explanatory factors – including the declining stock and financial ‘competitiveness’ of social housing management – as well as a rise in punitiveness.     

Ignorance of the Criminal Law,and Duties to Avoid it

‘Ignorance of the law is no defence,’ so we are told from an early stage in our legal studies. Or, to be more accurate, ‘ignorance of the criminal law is no defence to a criminal charge.’ That appears to be the rule in this country, apart from a couple of well‐established exceptions and another possible one. I will argue that it is a preposterous doctrine, resting on insecure foundations within the criminal law and on questionable propositions about the political obligations of individuals and of the State. In developing these arguments, I will draw attention to the differing problems of ignorance of the criminal law in three broad areas – regulatory offences, serious crime, and offences of omission – with a view to suggesting that there is a great deal more that the State needs to do if the issue of ignorance of the criminal law is to be dealt with adequately and fairly. I begin by scrutinising the relevant rule of English criminal law and the justifications offered for it. I then go on to situate the ‘ignorance‐of‐law’ doctrine in the context of the principle of legality and the rule of law, those bastions of liberal criminal law theory. Part three then explores the three broad areas of the criminal law, and parts four and five carry the debate into the political obligations of individuals and of the State in these matters.     

Plays,Performances and Power Struggles – Examining Copyright's ‘Integrity’ in the Field of Theatre

This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity‐based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity‐based objections’ – is crucial to theatrical practice.     

Marginalized Mothers,Reproductive Autonomy,and ‘Repeat Losses To Care’

Over 70,000 children are ‘looked after’ by local authorities in England and Wales. Emerging research suggests that a significant proportion of their birth parents have either already lost a child to permanent adoption or will go on to lose others. These ‘repeat loss’ cases raise difficult questions about marginalized mothers and their reproductive autonomy. This article considers past and present tactics used by the state in its attempts to limit that autonomy, including institutionalization, sterilization, long‐acting contraception, and permanent adoption. It argues that the gradual democratization of intimate citizenship over the past century, defined as a person's ability to choose and direct their intimate relationships, has obliged the contemporary state to develop new tactics which aim to build personal capacity and to balance enhanced child protection with enhanced reproductive autonomy.     

The Anonymous Matrix: Human Rights Violations by 'Private' Transnational Actors

Do fundamental rights obligate not only States, but also private transnational actors? Since violations of fundamental rights stem from the totalising tendencies of partial rationalities, there is no longer any point in seeing the horizontal effect as if rights of private actors have to be weighed up against each other. On one side of the human rights relation is no longer a private actor as the fundamental‐rights violator, but the anonymous matrix of an autonomised communicative medium. On the other side, the fundamental rights are divided into three dimensions: first, institutional rights protecting the autonomy of social discourses – art, science, religion ‐ against their subjugation by the totalising tendencies of the communicative matrix; secondly, personal rights protecting the autonomy of communication, attributed not to institutions, but to the social artefacts called ‘persons’; and thirdly, human rights as negative bounds on societal communication, where the integrity of individuals' body and mind is endangered.     

Veiled Women and the Affect of Religion in Democracy

The veiled woman troubles feminism and secularism in much the same way. Both feminism and secularism face a problem of finding a position that respects individual autonomy, and simultaneously sustains a conception of politics freed from heteronomous determination. This article gives an account of what is being resisted and by whom in modes of politics which seek to produce an autonomous subject emancipated from 'other laws'(heteronomy). It also draws on Jean-Luc Nancy in order to consider what has been termed the problem of Islam in Europe as a wider juridical and political problem centred on the significance of affect as heteronomy. It thus explores the tension between piety and polity.     

Criminal Law beyond the State: The European Model

This article will analyse two models of criminal law beyond the State, which are here termed ‘eunomic’ and ‘dialogic’. It will then focus on one case study, European criminal law, which was inherently ‘dialogic’ until the last decade of the past century but has now quite unique features. In accordance with classic liberal views, criminal law has always been conceptualised as one of the most salient attributes of the sovereign State. The monopoly on the use of violence was to be legitimised by the State's concern for the sphere of autonomy of the individual. It is submitted in this article that it is precisely this condition that is lacking in the current European model, which promotes security‐oriented paradigms of self‐fulfilment and effectiveness. However, criminal law, if properly conceived, could in theory function as a powerful vehicle of integration.     

This Time,it's for Real: The Health and Social Care Act 2012

This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non‐statutory bodies which may influence NHS decision‐making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable – privatisation of the NHS.     

Proportionality, Territorial Occupation, and Enabled Terrorism

Some collateral harms affecting enemy civilians during a war are agentially mediated – for example, the US-led invasion of Iraq in 2003 sparked an insurgency which killed thousands of Iraqi civilians. I call these ‘collaterally enabled harms.’ Intuitively, we ought to discount the weight that these harms receive in the ‘costs’ column of our ad bellum proportionality calculation. But I argue that an occupying military force with de facto political authority has a special obligation to provide minimal protection to the civilian population. As a result, when an occupying military force collaterally enables a harm affecting the civilian population, the weight that the harm ought to receive in the ad bellum proportionality calculation is unaffected by the fact that the harm is agentially mediated – it ought to be weighed at least as heavily as those harms that the occupying force collaterally commits directly. As a result, satisfying the ad bellum proportionality constraint in wars of territorial occupation is more difficult than it has been thought.     

Ignorance is bliss: self-regulation and Ag-Gag laws in the American meat industry

Abstract

In America, we like to say that we live in a democracy. Yet, it is difficult to believe that the majority would allow current practices to continue if citizens knew how the food animals they eat are treated – both during their short lives and during slaughter. The problem is that the citizens don’t know, and it is not a case of willful blindness. Take a moment to recall what you know about our meat industry. Can’t think of much? That is the goal of the meat industry: out of sight, out of mind. In several states, so called ‘Ag-Gag’ laws are designed to keep the truth from the public. In those states, it is a felony to obtain a job with the intent of being a whistle blower. The meat industry knows that if it were to be exposed, the public would demand better treatment of animals, a demand that would decrease profits for the meat industry. This paper will explain these ‘Ag-Gag’ laws in detail, explore their effect on our society, shed light on the practices that the meat industry tries – very successfully – to hide from voters and consumers, and examine the scary results that can occur when an industry is allowed to regulate itself.     

The Child in European Human Rights Law

This article examines the category of ‘the child’ in European human rights law, based on an analysis of the child‐related jurisprudence of the European Court of Human Rights. It argues that a full account of legal selfhood is constructed through the notion of ‘the child’ in this jurisprudence. The two notions – of ‘the child’ and ‘the self’ – are, from the outset, mutually dependent. The conceptualisation of ‘the child’ in human rights law is underpinned by an account of the self as originating in another and childhood is cast as enabling self‐understanding by making possible the formation of a narrative about the self. The vision of ‘the self’ that emerges is one of ‘the narrative self’, and I assess the implications of this both for the idea of childhood in which this narrative originates and for the vision of the human condition that is expressed in European human rights law more broadly.     

The Land Registration Act 2002 – the Show on the Road

This article reviews the Land Registration Act 2002, taking advantage of the deeper perspective afforded by the intervening decade, and absorbing subsequent developments – and, in the case of the Act's electronic conveyancing project, non‐developments – that have also come to contribute to the picture. It suggests especially that while the Act's central idea of conclusive, indeed ‘constitutive’, registration can be beneficial, its deployment here has been problematic. In particular, the lapse of electronic conveyancing, and the possibility (resisted by the courts) that conclusive registration can be procured by fraudsters, have diminished the control that parties have over dispositions of their own title, to the detriment of their autonomy; and over‐preoccupation with the central idea has resulted in a failure to think carefully enough about problems to which it was never going to be the answer.     

Inventing Drugs: A Genealogy of a Regulatory Concept

The trade in, and consumption of, illicit drugs is perhaps the archetypal ‘wicked problem’ of our time – complex, globalized, and seemingly intractable – and presents us with one of the very hardest legal and policy challenges of the twenty‐first century. The central concept of a ‘drug’ remains under‐theorized and largely neglected by critical socio‐legal and criminological scholars. Drawing on a range of primary archival material and secondary sources, this article sets out a genealogy of the concept, assembled a little over a century ago out of diverse lines of development. It is argued that the drug label is an invented legal‐regulatory construct closely bound up with the global drug prohibition system. Many contemporary features of the ‘war on drugs’ bear traces of this genealogy, notably how drug law enforcement often contributes to racial and social injustice. To move beyond prohibition, radical law and policy reform may require us to abandon the drug concept entirely.     

The Exclusion of (Failed) Asylum Seekers from Housing and Home: Towards an Oppositional Discourse

‘Housing’– the practical provision of a roof over one's head – is experienced by users as ‘home’– broadly described as housing plus the experiential elements of dwelling. Conversely, being without housing, commonly described as ‘homelessness’, is experienced not only as an absence of shelter but in the philosophical sense of ‘ontological homelessness’ and alienation from the conditions for well‐being. For asylum seekers, these experiences are deliberately and explicitly excluded from official law and policy discourses. This article demonstrates how law and policy is propelled by an ‘official discourse’ based on the denial of housing and the avoidance of ‘home’ attachments, which effectively keeps the asylum seeker in a state of ontological homelessness and alienation. We reflect on this exclusion and consider how a new ‘oppositional discourse’ of housing and home – taking these considerations into account – might impact on the balancing exercise inherent to laws and policies concerning asylum seekers.     

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.     

Privacy regulation cannot be hardcoded. A critical comment on the ‘privacy by design’ provision in data-protection law

‘Privacy by design’ is an increasingly popular paradigm. It is the principle or concept that privacy should be promoted as a default setting of every new ICT system and should be built into systems from the design stage. The draft General Data Protection Regulation embraces ‘privacy by design’ without detailing how it can or should be applied. This paper discusses what the proposed legal obligation for ‘privacy by design’ implies in practice for online businesses. In particular, does it entail hard-coding privacy requirements in system design? First, the ‘privacy by design’ provision in the proposed Regulation is analysed and interpreted. Next, we discuss an extreme interpretation – embedding data protection requirements in system software – and identify five complicating issues. On the basis of these complications, we conclude that ‘privacy by design’ should not be interpreted as trying to achieve rule compliance by techno-regulation. Instead, fostering the right mindset of those responsible for developing and running data processing systems may prove to be more productive. Therefore, in terms of the regulatory tool-box, privacy by design should be approached less from a ‘code’ perspective, but rather from the perspective of ‘communication’ strategies.     

Privacy and Search Engines: Forgetting or Contextualizing?

This article considers the much‐criticized ‘right to be forgotten’ in the context of the European Court of Justice's judgment in the Google Spain case. It defends the ‘right to be forgotten’ as a metaphor that can provide us with a better understanding of the particular privacy concerns of the search‐engine age and their interaction with the freedom to access information, and draws on Goffman's idea of ‘information games’ and Nissenbaum's theory of ‘contextual integrity’. While supporting the principles that underpin the judgment, the article rejects the Court's binary approach of ‘forgetting’ versus ‘remembering’ personal information. Instead, it argues that the EU legislator should introduce more nuanced means of addressing modern privacy concerns. By establishing two remedies – ‘delisting’ or ‘reordering’, depending on the nature of the information – online information flows can be adjusted to preserve both the right to privacy and the freedom to access information in more contextually appropriate ways.     

Sacred Spaces,Sacred Words: Religion and Same‐sex Marriage in England and Wales

This article provides an analysis of the ways in which the spatial and illocutionary requirements of English marriage law – which regulate the spaces in which marriages may be solemnized and the words the parties being married must speak – have been used to maintain distinctions between same‐sex and opposite‐sex couples. It shows how religious opponents of same‐sex partnership recognition have relied upon historically entrenched differences between the spatial and illocutionary aspects of ‘civil marriage’ and ‘religious marriage’ to argue in favour of the enactment of law that enables organized religions to exclude same‐sex couples from religious premises and ceremonies that are open to opposite‐sex couples for the purpose of solemnizing marriage. It extends recent international debates about how faith‐based discrimination against same‐sex couples is accommodated by legislators and legitimized by law, and concludes with a consideration of how English law could be amended to end discrimination based on sexual orientation.     

Constructive “Consent”: A Problematic Fiction

The law and society occasionally impute consent to an agent despite a clear lack of actual consent. A common type of such ‘fictitious consent’ is constructive consent. In this practice, we treat an agent as if she consented to Φ because she did Ψ. By examining how constructive consent operates in law (monitoring inmate phone calls and blood alcohol concentration testing on unconscious drivers) and daily life (physical contact in public spaces), I show that our treatment of agents in these cases bears no normatively relevant resemblance to consent because it is grounded in values and concerns other than autonomy. Thus, the practice may diminish the very autonomy consent proper seeks to promote. Hiding this potential for conflict creates the risk moral concerns will not be appropriately balanced when deciding on the permissibility of an action. We thus ought to be explicit that such cases don’t involve consent and its common justification.     

THE ROLE OF NEIGHBORHOOD CONTEXT IN YOUTH CO‐OFFENDING

Despite co‐offending being a core criminological fact, locating suitable peers has many challenges. Chief among these, given the risky nature of co‐offending, is finding trustworthy accomplices. We propose that neighborhoods serve as youths’ most ready source of accomplices, and as such, their composition affects the likelihood of identifying suitable co‐offenders. In particular, youth are more likely to co‐offend in contexts with more peers of their race/ethnicity, less disadvantage, and greater residential stability—all of which promote trust among neighbors. We test our hypotheses using multilevel models applied to census data and official court records for 7,484 delinquent youth in a large metropolitan area. The results offer support for our hypotheses and provide greater insight into how individual and contextual factors combine to affect co‐offending behavior. An implication of these findings is that many of the same neighborhood characteristics that reduce crime lead to a greater proportion of co‐offending.