Post‐Secularism and the European Court of Human Rights: Or How God Never Really Went Away

This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils’ religious freedom nor the proselytising or coercive effect of the ‘passive’ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion‐state frameworks into a strict American‐style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.     

The Priority of Liberty: An Argument from Social Equality

John Rawls’s thesis that a certain package of basic liberties should be given lexical priority is of great interest for legal and political philosophy, but it has received relatively little defense from Rawls or his supporters. In this paper, I examine three arguments for the thesis: the first is based on the two ‘moral powers’; the second, on the social bases of self-respect; and the third, on a Kantian notion of autonomy. I argue none of these accounts successfully establishes 1) the distinct claim of lexical priority, 2) for the complete package of basic liberties (including the fair value of the political liberties), on the basis of reasons that are appropriately public. In turn, I propose an alternative argument, in support of those two claims, based on the social or ‘relational’ conception of equality.

     

Means and Capabilities in the Discussion of Distributive Justice*

Abstract. Dworkin's equality of resources can be interpreted as a proposal that integrates distributive criteria taken from both equality of means and equality of capabilities, and overcomes the risks of subjectivism, overrigidity and perfectionism inherent in theories of welfare, means and capabilities respectively. This can be achieved by concentrating on arrangements of justice working within the parameter of equality of resources that equalize capabilities at a level of minima, thus avoiding the perfectionist risk and, once the threshold that ensures autonomous subjects is passed, ruled by criteria taken from theories of means. In such a task, the concept of moral person will be used as the criterion for determining the threshold of autonomy, and not only will it allow for the discrimination between the different circumstances that make the application of distributive criteria possible, but it will also specify the circumstances in which it is possible to attribute responsibility to an agent.     

Agency,Authority, and the Logic of Mutual Recognition

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self‐supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.     

The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain

Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non‐discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.     

A Doctrine at Risk: Content Neutrality in a Post-Reed Landscape

Although the Supreme Court of the United States has deployed the content-neutrality doctrine at least twenty-three times in the last decade, two recent cases — McCullen v. Coakley and Reed v. Town of Gilbert — demonstrate that disagreement among the justices over the meaning of the doctrine is endangering its utility for First Amendment jurisprudence. This article describes the manifestations of this disagreement and suggests that without further clarification about the doctrine's nature, purpose and application, the venerable First Amendment canon may soon either lose practical tenability or disintegrate into constitutional oblivion. Such an outcome, the article suggests, is both ill advised and avoidable. By taking several practical steps, the Supreme Court can go a long way toward preserving the doctrine's usefulness for upholding legitimate government interests and protecting the freedom of expression.     

The Case of the Hypocritical

This paper analyzes the idea of critique as an idea, in relation to the problematic fiction of legal foundations. In doing so, it refers to the work of Giorgio Agamben and Jean-Luc Nancy. In particular, Jean-Luc Nancy’s concept of the lapsus of right (jus) is explored in relation to the fiction of a Law of law and the notion of the Right to have rights. The paper argues for the conception of an immanent critique of law that seeks to have done with foundational judgments as primary to critique. To have done with judgment as primary is crucial as judgment is the way in which philosophies of law have attempted to establish their own justification while claiming that such a ground or justification comes from an external source. Instead, what is to be reconceived and in a preliminary way is that critique and its concepts are intimate to their problems and vice versa. I wish to thank each of the participants to this issue for their effort and their kind collaboration and V. Kelley for her invaluable assistance in the final editing process. I thank C. Douzinas for introducing me to the work of Jean-Luc Nancy and P. Fitzpatrick and S. Motha for sharing their paths of reading. Especial thanks to A.␣Schütz, E. Loizidou, N. Moore, J.á. Bellido Anon and A. Bottomley for discussions on disagreement. Gratitude is owed to J.-L. Nancy for inspiring thoughts and writings and for the sweetness in response to my suggestion that there are no antidotes to the poisons we write. This is for the wonderful Elene.     

Legitimacy,Political Equality,and Majority Rule

Abstract. This paper claims that the intuitive and widespread legitimating power of majority rule (MR) arises from the link between majority rule and the principle of equality of political opportunity. The egalitarian character of MR is established by exploring “puzzles” in democratic theory, such as the insensitivity of democratic voting procedures to unequal intensity of citizens' preferences, and the relationship between the principle of unanimity (sometimes thought better to respect citizens' equality) and MR. Special attention is directed to the relationship between political equality and equality in the outcomes of political decisions: The claim is made that the language of equal political opportunity captures well the idea of equal political influence, in the circumstance of disagreement about what is required to achieve equal treatment through the outcomes of political decisions.     

Combating Violence against Women in India: Nari Adalats and Gender-Based Justice

Using qualitative methodology—field observations and in-depth interviews—the study examines the role of Mahila Samakhya (a group advocating women's equality) and Nari Adalats (informal women's courts) in India in combating violence against women. Interviews were conducted with members of a Mahila Samakhya in the southwest state of Karnataka and complainants who appeared before Nari Adalats. Nari Adalats in Karnataka are an innovation of Mahila Samakhya, a Government of India development program. The results indicate that Nari Adalats exercise broad authority to investigate and dispose of a wide range of domestic violence cases in India. The Mahila Samakhya serves as an advocacy group and provides shelter, legal assistance, and social help as well as education for victims of domestic violence.     

Resource Priority,Fairness, and Equality-Efficiency Compromises

A central issue in theories of social justice is the potential conflict between equality and efficiency in the distribution of resources. We suggest here that resource priority is a key factor that moderates the perceived fairness of equality/efficiency compromises in resource allocation. Participants were presented with scenarios involving a policy change that pitted equality against economic efficiency in the allocation of a variety of resources that differed in their importance levels (basic versus non-basic). We found that participants gave more weight to efficiency considerations at the expense of equality in distributing non-basic (higher-level) resources than in distributing basic resources. We discuss the priority hypothesis in connection with norms of justice, human motives, the need hierarchy (deficiency versus growth needs), the consumption of basic versus non-basic resources, and the legitimacy of allocation policies. The paper is based on portions of doctoral research conducted by Eviathar Matania under the supervision of Ilan Yaniv.     

From Nomos to Hegung: Sovereignty and the Laws of War in Schmitt's International Order

Carl Schmitt's notion of nomos is commonly regarded as the international equivalent to the national sovereign's decision on the exception. But can concrete spatial order alone turn a constellation of forces into an international order? This article looks at Schmitt's work The Nomos of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos, the ordering function of the presocratic concept moira is explored. It is argued that the process of Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of possibility for plural order.     

Equality and Marriage in Vico

The subject of this paper is the relationship between marriage and equality in Giambattista Vico. In his writings Vico gives the notion of marriage a unique importance, not framed on any oversized notion of nature or natural law but on the political fight for the right to marry (a quest for full citizenship status). The right to marry is linked with complex dynamics of human equality, and to a notion of human nature shaped by belief‐dependent institutions.     

Habermas,Feminism, and Law: Beyond Equality and Difference?*

In this paper, I argue that Habermas' proceduralist model of law can be put to feminist ends in at least two significant ways. First, in presenting an alternative to the liberal and welfare models of laws, the proceduralist model offers feminism a way out of the equality/difference dilemma. Both these attempts to secure women's equality by emphasising women's sameness to men or their difference from men have placed the onus on women to either find a way of integrating themselves into existing institutions or to confront the so‐called question of women's difference. The proceduralist model renders this dilemma irrelevant. Instead, it proceeds from the fact of sexual difference; a fact that produces competing and conflicting needs and interests that require interpretation by both men and women. This, I argue, marks a change in the very way we conceptualise the so‐called problem of women's difference, insofar as the question is no longer framed in these terms. Second, I argue that this deliberative process over the interpretation of conflicting interests affects a fundamental shift in the nature of legal institutions themselves, insofar as law is no longer a vehicle for promoting male interests.     

Public perceptions of internet,familial and localised sexual grooming: Predicting perceived prevalence and safety

Abstract

This paper examines public perceptions of three sexual grooming types: computer-mediated sexual grooming (CMSG), familial sexual grooming (FSG) and localised sexual grooming (LSG). Using data from a national survey of 557 respondents from the United Kingdom, we tested models that predicted perceptions of the prevalence of CMSG, FSG and LSG and the perceived safety of internet, familial and localised grooming spaces. Media-related factors were the most significant in predicting higher levels of perceived prevalence of CMSG and disagreement in relation to safety of internet and public spaces. Knowledge of a grooming victim was most significant in predicting higher levels of perceived prevalence of FSG and LSG and higher levels disagreement in relation to the safety of the home. The findings suggest that the public express too little concern over familial sexual grooming and that initiatives should be introduced to make citizens more aware of the distinctions between types of sexual grooming behaviours, settings and offenders.     

The A Simili Argument: An Inferentialist Setting

The A Simili Argument draws the conclusion that a target case has a normative property Q since it shares a relevant property P with a source case. It can be seen as a complex inference constituted by three inferential steps: An abduction of the relevant property P, an induction of the class having that property, and a deduction of the target's having property Q. A major problem of this argument is the characterization of the property relevance. The standard answer refers to the notion of ratio: It is the ratio that fixes what is relevant for what. But the determination of the ratio is often a difficult and controversial task. This issue is considered here from an inferentialist point of view, claiming that the ratio and relevance are determined by the normative statuses reciprocally attributed by the speakers in the context of legal argumentation.     

A More Efficient Method for Synthetic Textile Fiber Analysis Using Polarized Light Microscopy

The efficiency of conventional polarized light microscopy (PLM) methods for analyzing synthetic fiber evidence analyses is improved. Historically, using PLM for fiber identification relied on measuring refractive index. This prior PLM technology is reliable, but it is not efficient. Most fibers are optically anisotropic, having two principal refractive index values, N_(High) and N_(Low). When the fiber is mounted in intermediate refractive index medium, efficiency is improved by observing the change in contrast while the polarized light’s vector is rotated relative to the fiber’s axis. Minimum contrast occurs when the refractive indices of the mounting medium and fiber are equal. This angle of equality is determined by orienting the fiber’s highest refractive index parallel to the polarized light’s electric field vector, rotating the fiber or polarizing element, observing minimum contrast and measuring the angle of equality. This method is rapid, reduces remounting fibers in different mounting media and provides a quantitative measure for fiber comparisons.     

Beyond Retribution: Conceptualizing Restorative Justice and Exploring its Determinants

Previous research considering reactions to injustice has focused predominantly on retributive (i.e., punitive) responses. Restorative justice, a relatively understudied concept, suggests an alternative justice response which emphasizes bilateral discussion in an attempt to reach a consensus about the meaning of the offense and how to address the transgression. The current research explores the additional contribution of restorative justice processes, examining the extent to which bilateral consensus is viewed as a fairer response to transgressions than unilateral decisions. Results show that, independent of the punishment, restorative responses are generally regarded as fairer than nonrestorative responses. And compared to punishment, which tends to be moderated by offender intent and seriousness of the harm, restorative responses are regarded as particularly fair when the involved parties share an identity. Findings suggest the importance of distinguishing retributive justice from a “restorative notion of justice”—a notion that focuses on addressing concerns over the maintenance of existing social relationships and identity-defining values.

Positivism and Plural Legal Systems

This paper considers whether the positivist account of law is useful in guiding states in how they should deal with religious or customary legal orders followed by minority groups within their jurisdiction. It argues, first, that such orders can be said to exist despite the prevalence of disagreement about the grounds of law. It then argues, contrary to views advanced by Scott Shapiro and Joseph Raz, that there are good reasons for perceiving that the resolution of legal disputes by reference to moral principle involves the application of pre‐existing law. However, the paper concludes by arguing that the Social Thesis has an important role in supplying the basis upon which the application of law can be deemed to be legitimate, and that this has relevance to the way states might respond to minority legal orders.     

Substantive equality in South African health care: the limits of law

The article considers the scope and limits of law as an instrument for facilitating equitable access to health care in South Africa. The focus is on exploring the extent to which the notion of substantive equality in access to health care services that is implicitly guaranteed by the Constitution and supported by current health care reforms, is realisable for patients seeking treatment. The article highlights the gap between the idea of substantive equality in the Constitution and the resources at the disposal of the health care sector and the country as a whole. It is submitted that though formal equality in access to health care services has been realised, substantive equality is currently unattainable, if it is attainable at all, on account of entrenched structural inequality, general poverty and a high burden of disease.     

Parental Alienation Syndrome in Spain: opposed by the Government but accepted in the Courts

ABSTRACT

For over fifteen years, Spain has seen the promulgation of feminist-inspired legal frameworks to combat male violence against women and, as a result, Spanish law contains a variety of mechanisms that target male violence. However, the parallel dissemination of the pseudo-scientific concept of Parental Alienation Syndrome (PAS), especially since 2004, has become a tool to stall the enforcement of gender equality legislation. Specifically, PAS is causing severe harm in legal procedures related to marital breakdown. Both the government and the General Council of the Judiciary have taken a stand against the deployment of PAS in the legal system, but the notion of parental alienation is still widely used in family courts. This article analyses the contemporary significance of PAS in Spain. It grounds itself in an examination of key government reports and legal cases, and draws on qualitative survey data from interviews with 20 women who have been either formally accused, or threatened with accusations of parental alienation.