Home: A Vehicle for Resistance? Exploring Emancipatory Entanglements of ‘Vehicle Dwelling’ in a Changing Policy Context

This article begins with a reflection on Phil Thomas’ work, as well as on the way in which the Journal of Law and Society has pioneered scholarship in this field. Drawing on my own experiences as a researcher and campaigner, and my ‘insider’ status as a van dweller, I articulate why many have sought alternative modes of living, reflecting on ideas about freedom and anarchism, the importance of ‘home’, cultural preference, and escaping the housing crisis. I note that Wales and other European states, such as Portugal, provide a much warmer welcome and space for diverse Travellers; some are already planning their escape routes before the consequences of Brexit and new trespass legislation unfold. In an already hostile and rapidly changing context, it appears that the ontological security of vehicle dwellers is increasingly under threat. As well as giving a voice to these communities, the article also represents a much-needed call to action.     

What is the Harm Principle For?

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other influential accounts. After examining the (considerable) role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence.     

Grasping Snakes and Touching Elephants: A Rejoinder to Garfield and Siderits

Some time ago I advanced on the pages of this journal a critique of the interpretation given by Jay L. Garfield and Mark Siderits (hereafter GS) of Nāgārjuna’s doctrine of the two truths (Ferraro, J Indian Philos 41(2):195–219, 2013.1); to my article the two authors responded with a ‘defense of the semantic interpretation’ of the Madhyamaka doctrine of emptiness (GS, J Indian Philos 41(6):655–664, 2013). Their reply, however, could not consider my personal understanding of Nāgārjuna’s notions of ?ūnyatā and dve satye. My interpretation of these notions was in fact absent in the paper GS responded, and was only related in a second paper of mine (Ferraro, J Indian Philos 41(5):563–590, 2013.2), still unpublished at the time of GS’s drafting of their ‘defense’. Therefore, in the present rejoinder, I found it appropriate, rather than responding point by point to the passages of GS’s reply, to advance a comparison between the semantic interpretation and my ‘realist antimetaphysical’ understanding of Nāgārjuna’s thought.     

Mass Violence and the Continuum of Destruction: A study of C. P. Taylor’s Good

There are important studies that have directly focused on how, in times of conflict, it is possible for previously law abiding people to commit the most atrocious acts of cruelty and violence. The work of Erich Fromm (Escape from Freedom), Hannah Arendt (Eichmann in Jerusalem), Zygmunt Bauman (Modernity and the Holocaust) and Ernest Becker (Escape from Evil) have all contemplated the driving force of aggression and mass violence to further our understanding of how people are capable of engaging in extreme forms of cruelty and violence. This paper specifically addresses these issues by focusing on C. P. Taylor’s play Good. This provocative play examines how a seemingly ‘good’ and intelligent university professor can gradually become caught up in the workings of the Third Reich. Taylor highlights the importance of appreciating how people can be steadily incorporated into an ideologically destructive system. I argue that the theatre is a powerful medium to explore these complex issues. The audience of Good find themselves confronted with the following question—‘What would you have done?’

     

Intoxication as a defence to murder in Seychelles

In Seychelles, the mens rea of murder can be established, as an alternative to an intention to cause death or grievous harm, on the basis of the defendant’s ‘knowledge’ that the act or omission causing death will probably cause death or grievous harm. However, a defendant is only allowed to plead intoxication as a defence where it had become impossible for him to form the necessary ‘intention’ due to intoxication. This article highlights the difficulties in the application of the defence of intoxication to cases where the mens rea for murder is based purely on a defendant’s ‘knowledge’. In analysing the defence of intoxication in Seychelles in cases of murder, the article examines the position under English and Australian law.     

Following Legal Rules: Visibility and Feasibility

This paper reflects on the idea of ‘visualization’ of legal rules as part of an account of rule following in action. Presenting an alternative to Van Schooten’s (Jurisprudence and communication. Deborah Charles, Liverpool, 2012) account of interpretation, I first distinguish between two modes of interpretation: rehearsing and discursive. I argue that the former is the more basic one, relating to our respecting sources, rather than noticing signs, in action. In other (Wittgensteinian) words, we have to understand how we take guidance from rules. This account can profit from an analysis of what ‘seeing’ amounts to. Taking my cue from Merleau-Ponty, I point to the intertwinement between agent and world in seeing, in rule-following, and eventually in legal rule-following. The proof of the pudding is an alternative account of the time-honoured paradigm of legal interpretation: Hart’s ‘no vehicles in the park’. I show how this example is predicated on detecting ‘depth-clues’ in a rule, which allow an agent to correlate his vantage point to a vanishing point of a rule. The example illustrates a key-feature of rule following: reflexivity. I cannot follow a rule unless I project myself into its picture.     

Regina v. Butler: The harms approach and freedom of expression

In Regina v. Butler the Supreme Court of Canada explicitly accepted the argument that obscenity law should be based on harm rather than morality. The court's opinion, and the view of certain feminists, depends heavily on social science research that shows exposure to some pornographic materials may have harmful effects. However, an analysis of these studies indicates that the findings encompass a wide range of stimuli and are not limited to pornography. Based on the research, the court's shift to a harms approach should logically include all presentations containing harmful messages, regardless of the degree of sexual explicitness. As such, this article argues that the court has not really abandoned its moral approach to obscenity. It has just disguised it by adopting the rhetoric of harmfulness.     

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.

     

The three dimensions of online child pornography offending

Abstract

The internet has opened up opportunities for non-contact sex offending, such as the viewing of child pornography. This paper proposes a model for the classification of child pornography offenders as an aid for their assessment and treatment, deducted from empirical studies and existing typologies for child pornography offenders. Different subgroups of child pornography offenders may be described according to three dimensions: (1) type of offending, (2) the motivation behind child pornography offending and (3) the situational and social engagement in the offending behaviour. Distinct pathways of child pornography offending can be identified, related to differing criminogenic needs, severity of offending, and appropriate assessment and treatment strategies for the offenders.     

The creative use of the ADHD diagnosis in probationers' self-narratives

Drawing upon a narrative criminological theoretical framework, this article explores how probationers use the ADHD diagnosis in self-narratives. Eleven in-depth interviews with probationers diagnosed with ADHD were carried out, while the interviewees were under the supervision of the Danish Probation Service. The analysis of the empirical material shows that the ADHD diagnosis provides a context for their life that helps make sense of and explain their past. Although their self-narratives are in a sense personal stories, they relate ADHD as a neurobiological disorder to their criminal past, using the available cultural narratives (Loseke, D. R. (2007). The study of identity as cultural, institutional, organizational, and personal narratives: Theoretical and empirical integrations. The Sociological Quarterly, 48, 661–688). Three types of co-existing self-narratives were identified: (1) ‘ADHD as my biological destiny’, (2) ‘It should have been discovered earlier in my life’ and (3) ‘I would not have been without ADHD’. As the probationers articulated all three narratives, the particular role of ADHD in the individual self-narratives was ambiguous. The probationers stated that they would not have missed the wild experiences of ‘living on the edge’, while at the same time describing ADHD as a determining factor for their life paths as criminals. Accordingly the probationers tended to explain not the individual offences, but their lives as criminals. Following this, the final section discusses whether their use of ADHD leads to crime-reducing ‘narratives of desistance’ or whether they instead represent crime-increasing ‘neutralization narratives’ (Maruna, S. (2001). Making good: How ex-convicts reform and reclaim their lives. Washington, DC: American Psychological Association; Maruna, S., & Copes, H. (2005). What have we learned from five decades of neutralization research? Crime and Justice, 32, 221–320).     

Interpreting Statutory Purpose – Lessons from Yemshaw v Hounslow London Borough Council

Yemshaw v Hounslow LBC is a significant case in the fields of housing and family law, as well as giving rise to important issues as to the judicial role and statutory interpretation more broadly. This note critically analyses the reasoning of the Supreme Court in Yemshaw, in which the principal issue was whether the definition of ‘violence’ for the purposes of the Housing Act 1996 extended to non‐physical as well as physical forms of harm. In rejecting the view of the Court of Appeal, the Supreme Court adopted a wider definition of violence to encompass emotional and psychological as well as financial abuse. This commentary adopts a fresh stance by examining closely the context surrounding the enactment of the Housing Act 1996 and how this informs the question of statutory interpretation. In so doing, the author suggests that the interpretation employed by the court is significantly undermined.     

Professor Stanley Cohen: an appreciation

Like so many others, I am saddened by the death of Stan Cohen, my PhD supervisor, mentor, and supportive friend at a particularly difficult time in my life. I first met Stan in summer 1976, when I was applying for a PhD place. In awe of the author of Folk Devils and Moral Panics, a book which did so much to open criminology up to the sociological imagination, I was soon at ease and enjoying a wide-ranging conversation, with the difficult questions posed gently and seemingly lightly, that was Stan's distinctive style. Stan was, of course, the perfect PhD supervisor: always encouraging; nudging me back in the right direction when I was veering off-track. I began my teaching at Essex, and the deviancy ‘dream-team’ – Stan and Ken Plummer – was the best possible start to an academic career.     

The experience of civil partnership dissolution: not ‘just like divorce’

Between 2012 and 2014 I interviewed some of the earliest civil partners to dissolve their partnerships about their experience of dissolution. When I presented my findings, most family lawyers responded that dissolution was ‘pretty much like divorce’. And so it was, in many respects; but I thought that such comments missed an important difference. This article focuses on the legal understandings of gays and lesbians who have undergone dissolution of their civil partnerships, and on their experiences of it. This seemed to me significant for three reasons. First, the experiences of lesbians and gay men have historically been marginalised, pathologised or absent from legal accounts and the dominant legal consciousness. In this research they would be put centre-stage. Second, the institution of civil partnership – transient though it may turn out to be – deserves study as the point of entry into legal recognition and regulation of same-sex couples’ relationships in the UK. And, third, it is this precise history that makes it different from marriage, and dissolution different from divorce, whatever the similarities in legal treatment.     

‘Authorizing the Peril’: Mythologies of (Settler) Law at the End of Time

The promised paradises of colonial capitalism and neoliberalism are set in a perpetually elusive future (Fitzpatrick 1992). This future is not a set destination, but an endless linear journey set to the thrum of ‘progress’ and ‘development’. This paper considers, in the context of recent cases relating to development in the Athabasca tar sands region, what the law of the Canadian settler state does when it is faced with interruptions and ruptures in its timescape. Drawing on Fitzpatrick’s seminal work, The Mythology of Modern Law, I argue that a conceptualisation of law’s behaviour in these contexts as functionally mythological highlights some of the elusive ways that settler law maintains a stranglehold over legal imaginaries of oil and gas developments: by distorting and flattening the pasts and presents of Indigenous societies that pre-dated (and continue to co-exist with) the settler state on ‘Canadian’ land, by mediating between the ‘origin’ of the settler state and the daily rhythms of colonial time through ‘Eternal Objects’ such as property and economic development, and by asserting a general ‘objectivity’ of law to evade any direct grappling with the stark possibilities of the ‘end of the world’ created by the climate crisis. I conclude, drawing on Indigenous scholarship and the work of de Goede and Randalls, that a meaningful response to the climate crisis requires re-enchanted attachments to life that necessitate a departure from the one-dimensional temporality of the mythologies of settler law.

     

Exposure to internet pornography and sexually aggressive behaviour: protective roles of social support among Korean adolescents

ABSTRACT

Adolescents’ exposure to internet pornography and its negative effects on healthy sexual development have been extensively investigated. However, little research has addressed the identification of protective factors that can buffer these negative effects. Based on the conceptualisation of a stress-buffering model of social support, this study empirically tested whether social support would provide a buffer against negative effects of internet pornography on sexually aggressive behaviours in adolescents. Results from an online survey of two-hundred-ten (210) Korean high school students revealed that social support from parents and friends performed buffering roles, and the buffering effect of friend support was the strongest. Based on these results, practical implications for healthy adolescent sexual development were discussed.     

Interpreting the Political Theory in the Practice of Human Rights

In this discussion of The Heart of Human Rights, I support Allen Buchanan’s pursuit of a theory-in-practice methodology for interpreting the foundations and meaning of international legal human rights from within the practice. Following my use of that methodology, I recharacterize the theory of rights revealed by this methodology as political not moral. I clarify the import of this interpretation of international legal human rights for two problems that trouble Buchanan: (1) whether the scope of ‘basic equal status’ is a global or an ‘intrasocial’ standard and (2) whether there is a ‘proliferation’ of rights that risks undermining the legitimacy of international legal human rights. I argue that the scope of basic equal status is global and that the practice of making what he calls ‘new’ rights claims is part of the practice of human rights.     

The Politics of Rule of Law Reform: From Delegation to Autonomy

How can we understand the delegation of power and authority – for example, from a polity to an administrator - in a world of fragmented governance? In this paper, I introduce the practices of contemporary ‘rule of law’ and ‘governance’ reform, which reframe this question in politically powerful ways. These practices are increasingly important in development contexts, and beyond. Practitioners begin with the assumption that some sort of administration occurs in the development contexts in which they work. They then focus on how to convene a political community in which to embed – and potentially legitimate - that administration. They thereby reconfigure the question of delegation into one of autonomy – or managing the extent to and ways in which the administrative legal system self-produces. In doing so, I argue that contemporary rule of law practitioners wield constitutional power under the rubric of workaday administrative reform. At the same time, they efface their political accountability.     

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.

     

The Duty to Protect the Victim – Or the Duty to Suffer Punishment?

This paper addresses The Ends of Harm by Victor Tadros. In it, I attempted to explore some of the implications of Tadros’s theory of punishment, particularly those following from the uneasy relationship between punishment of the offender (D) and D’s duty to protect the victim (V) from future harm. Among my concerns were: the apparent underinclusiveness of Tadros’s theory of punishment; the vague and unpredictable scope of D’s liabilities; the taking away by the state of V’s right to be protected; and the lack of inherent limitations on the appropriate forms and amounts of punishment. I also questioned the true meaning of the duty incurred by D as a result of D’s wrongdoing and suggested that protection of Vs from future harm may not be as essential to Tadros’s justification of punishment as he has argued.