Comparative Desert Vs. Fairness

In the recent book The Geometry of Desert, Shelly Kagan explores, with a rare degree of precision, how best to cash out two fundamental and widely shared intuitions. The first intuition says that virtuous people deserve to be doing well, and that less virtuous (or vicious) people deserve to be doing less well – and thus, that it’s good (other things equal) if virtuous people are doing well and if less virtuous (or vicious) people are doing less well (or even badly). The second intuition says that the distribution of the satisfaction of people’s desert claims across persons matters: that it’s good (other things equal) if people’s desert claims are satisfied in accordance with the demands of interpersonal fairness. The former intuition states the basis of what Kagan calls ‘absolute desert’. The latter articulates the basis of what he calls ‘comparative desert’. I advance an internal critique of Kagan’s conception of comparative desert; I argue that it contravenes the demands of interpersonal fairness in the domain of desert, and so fails on its own terms.     

City/Courthouse Building: A Mirror Game. Examining Connections Between Courthouse Buildings and Location in the Urban Environment

Courthouses are one of the founding pillars of the modern rule of law, being a sovereign body. But courthouses are not just buildings where justice is applied, administered, and written. From Max Weber on, courts have been associated with the urban dimension and the place they occupy in the geography of the cities. As in a mirror game, both city and court building look at each other, both shape each other, they belong to one another. And yet, how often do we think of their intimate interactions? Having this in mind, and by examining a number of geographically disparate cases, I intend to discuss correlated variations of the mirror game between city and courthouse building, where variables such as ‘the proxemics of the courthouse’, the (dis)alignment amid centre and periphery, ‘the sense of loss’ and the significance of control/discipline will be central to comprehend the ‘court/city’ narratives involved. Such semiotic analysis aims to foster reflection on the socio-political weight the location of the court—the connections of the building (comprising its architecture) and the city—may express. I conclude by arguing that courthouse buildings must rediscover their place and legitimacy, not only in the community’s collective imagination, but also in the urban space, promoting a closer dialogue with the cities in which they operate, as essential axes of city life. Particularly at a time when the likely way forward suggests a digital trajectory, possibly without the need for buildings.

     

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.

     

Judging guilt and accuracy: highly confident eyewitnesses are discounted when they provide featural justifications

Jurors are heavily swayed by confident eyewitnesses. Are they also influenced by how eyewitnesses justify their level of confidence? Here we document a counter-intuitive effect: when eyewitnesses identified a suspect from a lineup with absolute certainty (‘I am completely confident’) and justified their confidence by referring to a visible feature of the accused (‘I remember his nose’), participants judged the suspect as less likely to be guilty than when eyewitnesses identified a suspect with absolute certainty but offered an unobservable justification (‘I would never forget him’) or no justification at all. Moreover, people perceive an eyewitness’s identification as nearly 25% less accurate when the eyewitness has provided a featural justification than an unobservable justification or simply no justification. Even when an eyewitness’s level of confidence is clear because s/he has expressed it numerically (e.g. ‘I am 100% certain’) participants perceive eyewitnesses as not credible (i.e. inaccurate) when the eyewitness has provided a featural justification. However, the effect of featural justifications – relative to a confidence statement only – is maximal when there is an accompanying lineup of faces, moderate when there is a single face and minimal when there is no face at all. The results support our Perceived-Diagnosticity account.     

Beyond the Real and the Paper Deal: The Quest for Contextual Coherence in Contractual Interpretation

Contract lawyers are often divided between two schools of thought: formalism and contextualism. In the realm of contractual interpretation, this division illuminates various debates surrounding the modern contextual approach. Ultimately, however, the divide between the ‘real and the paper deal’ does not fully reflect the relevant fault lines. The real contest is between rival interpretations attempting to make the most coherent sense of the available text and context surrounding the document. In characterising the true nature of the exercise, I draw upon theories of coherence to articulate a framework of ‘contextual coherence’ that involves concepts of competing narratives, the rational motivations of the parties, and the need for a holistic assessment of the best hypothesis, in accordance with the English courts’ ‘iterative approach’ to interpretation. I demonstrate that this framework enables us to explain and evaluate recent cases such as the UK Supreme Court decision of Arnold v Britton.     

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 NHS Information Revolution: ‘Choice of Control’ to ‘Choice’ and ‘Control’

This paper provides a novel and critical analysis of the necessary and important balance between ‘individual privacy’ and ‘collective transparency’. We suggest that the onset of the Information Revolution has created a dilemma for the National Health Service (NHS) in terms of how it addresses its obligation to use information to improve best practice in healthcare for society (‘collective transparency’) whilst also keeping sensitive personal information confidential (‘individual privacy’). There is clearly a need to consider both whether the NHS is balancing this critically important informational relationship and whether its approach is fit for purpose. We argue that the NHS's ‘proxy-individual’ information guardian role could inadvertently mask individuals' intended roles, effectively circumventing autonomy-based laws by limiting the power of individuals to be autonomous. In this article we have identified three issues – first the prevailing ‘Mindset’ (the ‘M’) of ‘privacy’, which is viewed as individualistic, resulting in an overpowering concept of confidentiality; second, the quality and control of Information (the first ‘I’); and third, the concept of innovation (the second ‘i’), which is being used as a ‘solution’ rather than a vehicle for transparency. Indeed, transparency is our target of ‘best practice,’ and we suggest that individual privacy and collective transparency are best embedded within a complementary privacy framework that offers a better fit than the current split of control between the roles of the NHS and the roles of the individual. It is suggested that when facilitated by transparency, ‘control’ and ‘privacy’ form a continuum, aligning through the desire for choice. Therefore, the choice of control could facilitate control and choice. Together, they could replace the concept of privacy by empowering ‘informed patients’ to support the NHS's ‘No decision about me, without me’ pledge.     

‘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.

     

Experiencing violence in a cross-media environment: an interdisciplinary focus group study

Due to drastic changes in the contemporary media environment, criminology needs to examine how the experience of violence is shaped by the emerging cross-media context. We conducted a qualitative focus group study (N = 24) to explore conversations about mediated violence experiences and crime media literacy in Finland, which manifests as an advanced state of cross-media transformation. We found that the cross-media context affects how information on violence and crime is received, as people combine and contrast bits of information from traditional media, social media, alternative media, and direct personal and local knowledge. This constellation of information sources is a fertile ground for distrust, as people challenge the self-regulatory limits of ‘old media’ in reporting on crime and construe such limits as ‘downplaying’ violence. Consistent with the general ‘media-critical’ frame of mind, the interviewees saw crime news media as fear-inducing. Through a focus group of older participants (in addition to three groups of younger participants), we observed generational differences that reflect the dimension of change from the old monolithic media environment to the cross-media context. The new context blurs the distinction between media content and social network-based reception and is thus a game changer for media criminology.     

Equity before ‘Equity’

The notion of ‘equity’ is undergoing conceptual repositioning in international law today, embracing individuals as well as states and gaining an association with human rights and the politics of protest. In the context of these developments, the present paper enquires into the premodern roots of this ancient and rich term through three historical vignettes: first, the emergence of aequitas in Roman law – as a source of law anchored in analogy and empathy – and in particular its relevance to the ambiguous status of slaves; second, the importance of ‘natural equity’ to the consolidation of ‘natural rights’ during the Franciscan poverty debate in 14th century Europe, and finally, ‘common equity’ in the rights-based constitutional order proposed by the Levellers in 1640s England. In its root sense, I conclude, what we might call ‘radical equity’ has historically lent itself to trenchant critique of the law, centred on the individual as subject of right.     

A note on the misconduct of academics in UK HEIs1

The article compares the employment regime for academics in UK HEIs with that of faculty in US HEIs. It considers, inter alia, ‘progressive discipline’, ‘at will contracts’, ‘the Model Statute’, ‘academic freedom’, ‘faculty misconduct’ and ‘academic underperformance’.     

Pornography and the construction of misogyny

Summary

In this paper I return to my work in Pornography: Women, Violence and Civil Liberties, the edited volume published in 1992 by Oxford University Press, and subsequently my work on pornography, harm and human rights (Itzin, 1995, 1996a), and to pornography and child sexual abuse (Itzin, 1996b, 1997a,b, 2000a,b,c). I draw from and build on that work and from the contents of the pornography special issue of the Journal of Sexual Aggression (Itzin and Cox, 2000). This paper covers key issues such as legislation and regulation, censorship' and ‘freedom’, the literature on pornography effects, the role of pornography in the aetiology of sex offending and in the construction of desire. In particular, the paper is concerned with theorising aetiology, causality and the ‘epistemology of public policy’ on pornography. It draws from and builds on the scholarship and activism of radical feminism in conceptualising and campaigning against pornography-related harm.     

‘Left Pessimists’ in ‘Rose Coloured Glasses’? Reflections on the Political Economy of Socio-Legal Studies and (Legal) Academic Well-Being

This article reflects on the significance of the Journal of Law and Society and critical socio-legal work in the context of changes in the political economy of universities and socio-legal studies. It interweaves an analysis of this shifting political economy with consideration of another topic, namely, academic well-being and mental health, especially in this moment, to demonstrate the continuing pertinence and importance of the left critique of universities. Well-being has become part of a far broader set of counter-narratives to neoliberalism evident in attempts to reposition it as a ‘force of change’, to develop new ways of working that might challenge traditional work cultures and organizational structures, and to resist the marketized neoliberal university and re-envision what a ‘good university’ might be. Rejecting the criticism of ‘left pessimists’ in ‘rose coloured glasses’, I make the case for the continuing significance of engaging in public education and research as a public good.     

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).     

When a ‘Like’ Is Not a ‘Like’: A New Fragmented Approach to Data Controllership

In Fashion ID, the Court of Justice of the European Union (‘CJEU’) held that an operator of a website featuring a Facebook ‘Like’ button is a data controller under EU Directive 95/46 (‘Directive’) jointly with Facebook in respect of the collection and transmission of the personal data of website visitors to Facebook, but Facebook alone is a data controller for any subsequent data processing. While the CJEUs expansive interpretation of joint controllership aims to leave ‘no gaps’ in the protection of individuals, we question whether the proposed solution to ‘fragment’ controllership into different stages of processing helps to achieve that goal. We argue that CJEUs ‘fragmented’ approach is incompatible with the GDPR, as it does not reveal the intended purposes of data processing, and thus negates informed and specific consent. We suggest that such ‘fragmentation’ undermines the consistency, predictability and transparency of EU data protection law by obscuring the pervasiveness of data commodification in the digital economy.     

Reflective Judgement and Prudential Rationality: A Contribution to an Inclusive Practical Application of Law

Hannah Arendt has developed a theory of the importance of judgment of taste for political manners, founded on the Kantian aesthetic theory. Nowadays this theory is considered a current theoretical reference for establishing a political way to reconcile the demands of the radicalization of deliberative democracy with the need for political inclusion (Iris Marion Young, Seyla Benhabib). Albena Azmanova in her The Scandal of Reason: A Critical Theory of Political Judgment proposes an inclusive political rhetoric. The political theory founded on judgment is based on Kant’s philosophy; it was developed by Arendt and has greatly influenced the current debate, as an alternative theory in which the moral basis of law can be more sensitive to human contexts; a universalist theory more adequate for dealing with the tragic dimension of human life. The theory of political judgment uses the concepts of reflective judgment and ‘enlarged thought’ as its main concepts. As a starting point, a theory like this considers the singular judgments of justice that each person makes. The background, therefore, is not a rational foundation of principles, but the capacity of rational beings to make judgments. This post-metaphysical theory of law, based on a theory of judgment, is a critique of legal positivism, but presents itself as an alternative to the idealistic theory of law. But this theoretical project has received some criticism related to the adequacy of Arendt’s rereading of Kantian philosophy and her attempt to approximate Kant’s reflective judgment to the Aristotelian concept of phronêsis. Some critics, such as Bryan Garsten, believe that Kant’s rhetoric of public reason diminished and displaced the prudential faculty of judgment that Arendt is to be interested in reviving. Arendt’s attempt to find a theory of judgment in Kant’s aesthetic theory is not successful, in Garsten’s view. Our purpose is to show that a critical theory of judicial judgment is not only possible, but necessary; Arendt’s theory of judgment offers an important contribution to a critical theory of judicial judgment, particularly one devoted to the construction of a legal theory that prioritizes a politics of social inclusion. This theory proposes a critical approach to the project of the procedural conception of democracy, since it can mask social exclusion. An adequate understanding of judicial argumentation cannot forget that it happens in a rhetorical context: it is not only important what a discourse says, but how it says it. The radicalization of deliberative democracy supposes a revision of the ways judicial deliberation is thought: not by reference to universal or at least general principles, but taking into consideration what is ‘critically relevant’, with a view to remedying social injustice (following Azmanova).

     

Self-Awareness and Mental Perception

The purpose of this paper is to clarify Prajñākaragupta’s view of mental perception (mānasapratyak?a), with special emphasis on the relationship between mental perception and self-awareness. Dignāga, in his PS 1.6ab, says: “mental [perception] (mānasa) is [of two kinds:] a cognition of an [external] object and awareness of one’s own mental states such as passion.” According to his commentator Jinendrabuddhi, a cognition of an external object and awareness of an internal object such as passion are here equally called ‘mental perception’ in that neither depends on any of the five external sense organs. Dharmakīrti, on the other hand, considers mental perception to be a cognition which arises after sensory perception, and does not call self-awareness ‘mental perception’. According to Prajñākaragupta, mental perception is the cognition which determines an object as ‘this’ (idam iti jñānam). Unlike Dharmakīrti, he holds that the mental perception follows not only after the sensory perception of an external object, but also after the awareness of an internal object. The self-awareness which Dignāga calls ‘mental perception’ is for Prajñākaragupta the cognition which determines as ‘this’ an internal object, or an object which consists in a cognition; it is to be differentiated from the cognition which cognizes cognition itself, that is, self-awareness in its original sense.     

Desperately Seeking ‘Justice’ in Classical Chinese: On the Meanings of Yi

This essay sets out to search for an equivalent Chinese word to the English word ‘justice’ in classical Chinese language, through ancient Chinese philosophical texts, imperial codes and idioms. The study found that there does not seem to be a linguistic sign for ‘justice’ in classical Chinese, and further, yi resembles ‘justice’ in some ways and has been used sometimes to translate  ‘justice’, but yi is a complex concept in traditional Chinese philosophy with multiple meanings and it is dissimilar to ‘justice’ in their semantic and pragmatic meanings in Chinese and English legal culture. While ‘justice’ is a keyword and fundamental to Western law, yi is not a legal word or concept in classical Chinese in traditional China. Given its complexity, yi does not have a one-to-one equivalent in English. It sometimes carries a sense of ‘righteousness’ and occasionally ‘justice’, but yi and ‘justice’ are not equivalent. In view of these, it becomes understandable that the translations of yi in contemporary Chinese usage vary ranging from ‘friendship and justice’ to ‘greater good’, among others. The meaning of yi is still uncertain and context sensitive as it was two thousand years ago.