It’s a man’s world: barriers to gender transformation in the South African judiciary. Perspectives from women advocates and attorneys

The judiciary in South Africa has made great strides in creating a diverse bench. However challenges continue as regards the appointment of women, some of which are attributable to the nature of the legal profession. Currently, there are 86 women judges in the Superior Courts nationally out of a total of 243. Judges are drawn from the professions of advocates, attorneys, magistracy and academia. Women in these areas of law are confronted with issues that have a bearing on any aspirations of future accession to the judicial bench. The aim of this article is to analyse two specific challenges faced by women advocates and attorneys that were identified over the course of the last three years through legal sector meetings. These are the unequal distribution of work and discriminatory perceptions of women’s abilities. I argue that the two factors are directly related to the inadequate representation of women on the bench. My argument will be informed by, amongst others, dialogues from the legal sector meetings, observations of the judicial appointments process and desktop research. I conclude that failing to engage with the identified obstacles will negate any efforts to further increase the number of women judges.     

Who’s afraid of penal populism? Technocracy and ‘the people’ in the sociology of punishment

Contemporary sociologists of punishment have criticized the rising incidence of incarceration and punitiveness across the Western world in recent decades. The concepts of populist punitiveness and penal populism have played a central role in their critiques of the burgeoning penal state. These concepts are frequently sustained by a doctrine of penal elitism, which delegates a limited right to politicians and ‘the people’ to shape institutions of punishment, favoring in their place the dominance of bureaucratic and professional elites. I argue that the technocratic inclinations of penal elitism are misguided on empirical, theoretical, and normative grounds. A commitment to democratic politics should make us wary of sidelining the public and their elected representatives in the politics of punishment. A brief discussion of Norway’s legal proceedings against Nazi collaborators in the mid-1940s and the introduction sentencing guidelines commissions in Minnesota in the 1980s shows – pace penal elitism – that professional elites may variously raise the banner of rehabilitationism or retributivism. While penal elitism may yield a few victorious battles against punitiveness, it will not win the war.     

What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

Economic man and diffused sovereignty: a critique of Australia’s asylum regime

Governing asylum, especially in Western migration zones, is correctly understood as an expression of centralized state power, or sovereignty. Still, there is much to learn about asylum regimes by turning critical attention to how sovereignty is de-centralized. This critique focuses on Australia where sovereign power is diffused into privatized detention, outsourced decision-making, and offshore processing. The reliance on diffused sovereignty, the article contends, is a maneuver by the state as it attempts to evade legal obligations enshrined in refugee law and human rights. As discussed throughout, economic mentalities figure prominently in the Australian asylum system. In particular, the notion of economic man continues to shape the government’s perception of asylum seekers as being highly rational and responsible, thus manageable by way of deterrence and prolonged detention. Special attention is given to recent disputes between the High Court and the then Gillard government with respect to the processing of refugees.     

Lebanon’s Power-Sharing System and the Rise of Sectarianism

Power-sharing settlements intended to prevent recurring conflicts in divided societies have produced mixed outcomes. For decades, Lebanon’s power-sharing political system has been blamed for political instability, sectarian division, recurring conflicts, and foreign intervention. Lebanon today is an example of a confessional divided state where growing sectarian identity has triggered inter-community mistrust. The increasing sectarian division and conflicts since Lebanon gained its independence from France in 1943 has been attributed to the power-sharing political system.

This essay, however, demonstrates that the root of the conflicts is the manipulation of that system by the political elites, by virtue of their strategic positions in the government, and political sectarian organizations and movements are capable of influencing political processes considerably. Through manipulative schemes of the power-sharing system, political elites were successful in transferring the power from the state to the religious sects and their political representatives, and thus reinforced sectarian division, weakened the state, and delayed the transition to full democracy. This essay takes Lebanon as a case study to show that although a power-sharing agreement has the power to reduce the risk of recurring conflicts, it has the tendency to reinforce sectarian division leading to deterioration of national unity.     

Linkages between the Montreal and Kyoto Protocols – Enhancing Synergies between Protecting the Ozone Layer and the Global Climate

The international treaties for the protection of the ozone layer and the global climate are closely related. Not only has the Montreal Protocol for the protection of the ozone layer served as a useful example in developing the international climate regime, but policies pursued in both issue areas influence each other. This paper gives an overview of the many ways in which both treaty systems are linked functionally and politically. It investigates, in particular, the tension that has arisen with respect to the use of fluorinated greenhouse gases and the potential for drawing on the experience under the Montreal Protocol regarding data reporting and policy design on fluorinated greenhouse gases under the Kyoto Protocol to the United Nations Framework Convention on Climate Change. The potentials for enhancing synergy in these areas are explored, and related options discussed. Some initiatives for exploiting these potentials are already underway, aiming in particular at enhancing learning and exchanging of information. However, political choices concerning some of the issues willeventually need to be made, if action at the international level is to contribute to their solution.     

Does orchestration in the Global Climate Action Agenda effectively prioritize and mobilize transnational climate adaptation action?

International Environmental Agreements: Politics, Law and Economics - Climate change adaptation is increasingly seen as a question that involves globally connected vulnerabilities and impacts which...     

Charles Peirce’s Categories and the Growth of Reason

Charles Peirce’s semeiotic is inseparable from his account of the three categories of experience and his metaphysics. The discussion summarizes his account of the categories and considers the way they have ontological implications. These implications are then focused on Peirce’s Apapism, which is his way of referring to a theory of evolution. Finally, some suggestions are offered for a way the semeiotic with the metaphysical implications, especially their relevance for a theory of evolution, propose how Peirce might apply them for questions of jurisprudence.

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What’s Special about the Insult of Paternalism?

Law and Philosophy - A common assumption is that paternalism generates a special, and especially grievous, insult. Identifying this distinctive insult is then presented as the key to unlocking the...     

The negligence of prison authorities and the protection of prisoner’s rights

This article looks at the potential for legal action brought by prisoners (and their dependants) who have suffered from the alleged neglect of the prison authorities. The article will examine the case law in this area to assess the success of prisoners’ negligence claims and whether such claims are unduly fettered by judicial attitudes and other more practical issues such as the difficulty in establishing a breach of duty. In particular the article will consider whether the law and its application has been, or should be, modified in the light of new obligations imposed on public authorities, including the courts, by the Human Rights Act 1998 and by the developing case law of the European Court of Human Rights in respect of Convention rights such as the right to life and freedom from inhuman and degrading treatment.     

The Role of Denial in the ‘Theft of Nature’: Comparing Biopiracy and Climate Change

Since its inception, green criminology has highlighted, examined and analysed environmental degradation and destruction. The ‘theft of nature’ is both an example and a driver of illegal and ‘lawful but awful’ acts and omissions that degrade the environment. Even though this theft is widespread and sometimes well known, it persists because powerful actors put forward an influential narrative of denial that obstructs interventions. This paper explores the role of denial in two thefts of nature—biopiracy and climate change—and compares and contrasts the manifestations of denial that contribute to their continuation. We consider the ‘appeal to higher loyalties’ (economic interests over environmental concerns), and discuss the implications if such denial goes unchallenged and remains the central narrative.     

A Hero’s Welcome? Exploring the Prevalence and Problems of Military Veterans in the Arrestee Population

The potential for veterans to end up in the criminal justice system as a result of physical and psychological problems that may be combat‐related has generated much interest, illustrated most recently by the development of specialized veterans’ courts. However, little is known about how often veterans are arrested and incarcerated, the nature of their problems, or the extent to which their military service has contributed to their criminality. Using interview data from 2,102 arrestees booked in Maricopa County (AZ) during 2009, this paper examines the problems and prior experiences of arrested military veterans and compares veteran and non‐veteran arrestees along a range of measures. Results indicate that veterans comprise 6.3% of the arrestee population, and that more than 50% of veterans report suffering from at least one combat‐related problem including physical injury, post‐traumatic stress disorder (PTSD), other mental health problems, and substance abuse. Multivariate analysis indicates that veteran arrestees differ from non‐veterans on a number of key measures, most notably more frequent arrests for violent offenses and greater use of crack cocaine and opiates. The paper concludes with a discussion of implications for the potential link between military service and criminality as well as for criminal justice policy and practice.     

The Stock Market to the Rescue? Carbon Disclosure and the Future of Securities-Related Climate Change Litigation

This article considers the role that securities litigation can play in forcing public companies to disclose climate change risks to their investors and potential shareholders. Such disclosure can prove to be a strong incentive for companies to manage their greenhouse gas emissions and climate change exposure better. Securities regulators in North America have, for the most part, resisted efforts effectively to enforce obligations by companies to disclose climate change risks. This led to a recent action by the Office of the Attorney-General in New York, which exemplifies the role that litigation can play in this area. Investors themselves may soon bring their own actions against companies over their carbon disclosure, the basis for which is already provided in securities legislation.     

Responsibility and Control: Fischer’s and Ravizza’s Theory of Moral Responsibility

Law and Philosophy -     

‘A Fair Day’s Wage for a Fair Day’s Work’? Exploring the connection between the parliamentary work of MPs and their electoral support

Electoral systems across Europe increasingly invite candidates to build up a personal reputation to earn votes. In this article, we investigate whether parliamentary work can be considered as a personal vote-earning attribute for incumbent MPs based on data of the 2014 elections in Belgium. The results show that when parliamentary work is operationalised in a narrow way (i.e. as the number of bills and the number of oral and written questions of an MP), this has no influence on the amount of preferential votes. When parliamentary work is defined in a broader way (i.e. also including other aspects of the legislative and control function of MPs), parliamentary work has a significant positive effect for MPs from opposition parties. This supports the claim that the number of legislative and control activities is not sufficient to measure the impact of parliamentary work on preferential votes, but that also other aspects of the work should be taken into account.     

Agamben’s Grammar of the Secret Under the Sign of the Law

This paper suggests that a grammar of the secret forms a concept in Agamben’s work, a gap that grounds the enigma of sovereignty. Between the Indo-European *krei, *se, and *per themes, the secret is etymologically linked to the logics of separation and potentiality that together enable the pliant and emergent structure of sovereignty. Sovereignty’s logic of separation meets the logic of relation in the form of abandonment: the point at which division has exhausted itself and reaches an indivisible element, bare life, the exception separated from the form of life and captured in a separate sphere. The arcanum imperii of sovereignty and the cipher of bare life are held together in the relation of the ban as the twin secrets of biopower, maintained by the potentiality of law that works itself as a concealed, inscrutable force. But the ‘real’ secret of sovereignty, I suggest, is its dialectical reversibility, the point at which the concept of the secret is met by its own immanent unworking by the critic and scribe under the *krei theme, and subject to abandonment through the work of profanation; here, different species of the secret are thrown against one another, one order undoing the other. The secret founded upon the sacred is displaced by Agamben’s critical orientation toward the immanent: what is immanent is both potential and hiddenness.