Reinforcing or Challenging Stigma? The Risks and Benefits of ‘Dignity Talk’ in Sex Work Discourse

The concept of ‘human dignity’ sits at the heart of international human rights law and a growing number of national constitutions and yet its meaning is heavily contested and contingent. I aim to supplement the theoretical literature on dignity by providing an empirical study of how the concept is used in the specific context of legal discourse on sex work. I will analyse jurisprudence in which commercial sex was declared as incompatible with human dignity, focussing on the South African Constitutional Court case of S v Jordan and the Indian Supreme Court case of Budhadev Karmaskar v State of West Bengal. I will consider how these courts conceptualise dignity and argue that their conclusions on the undignified nature of sex work are predicated on particular sexual norms that privilege emotional and relational intimacy. In light of the stigma faced by sex workers I will explore how a discourse, proclaiming sex work as beneath human dignity, may impact on the way that sex workers are perceived and represented culturally, arguing that it reinforces stigma. I will go on to examine how sex workers subvert the notion that commercial sex is undignified, and resist stigma, by campaigning for the right to sell sex with dignity. I will demonstrate that an alternative legal approach to dignity and sex work is possible, where the two are not considered as inherently incompatible, concluding with thoughts on the risks and benefits of using ‘dignity talk’ in activism and campaigns for sex work law reform.     

Human Rights in an Era of Neoliberal Globalization: The Alien Tort Claims Act and Grassroots Mobilization in Doe v. Unocal

This article examines a widely publicized corporate accountability and human rights case filed by Burmese plaintiffs and human rights litigators in 1996 under the Alien Tort Claims Act in U.S. courts, Doe v. Unocal , in conjunction with the three main theoretical approaches to analyzing how law may matter for broader social change efforts: (1) legal realism, (2) Critical Legal Studies (CLS), and (3) legal mobilization. The article discusses interactions between Doe v. Unocal and grassroots Burmese human rights activism in the San Francisco Bay Area, including intersections with corporate accountability activism. It argues that a transnationally attuned legal mobilization framework, rather than legal realist or CLS approaches, is most appropriate to analyze the political opportunities and indirect effects of Doe v. Unocal and similar litigation in the context of neoliberal globalization. Further, this article argues that human rights discourse may serve as a common vocabulary and counterhegemonic resource for activists and litigators in cases such as Doe v. Unocal , contrary to overarching critiques of such discourse that emphasize only its hegemonic potentials in global governance regimes.     

Indeterminacy,Disagreement and the Human Rights Act: An Empirical Study of Litigation in the UK House of Lords and Supreme Court 1997–2017

This article explores the impact of the Human Rights Act 1998 on the decision making of the House of Lords (UKHL) and the UK Supreme Court (UKSC). How does Convention rights content vary across areas of law in the UKHL/UKSC? Are some judges more likely than others to engage in Convention rights discourse? Is judicial disagreement more common in cases with higher levels of Convention rights discourse? A robust method of answering questions of this nature is developed and applied to decisions of the UKHL/UKSC, showing that the Convention rights content of decisions has varied over time and over substantive areas of law. Higher levels of human rights discourse are associated with greater levels of disagreement. A benchmarked measure of human rights content is developed to show the effect of the particular judge on the human rights content, illustrating the indeterminacy in human rights discourse and how its deployment can be contingent on judicial attitudes.     

Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics

Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.     

Convention Compliance, Public Safety, and the Social Inclusion of Mentally Disordered People

The first part of this paper considers the impact of the HRA 1998 in the courts, and the application of Articles 3, 5, and 8 in relation to psychiatric detention, treatment without consent, and seclusion. The second part looks at its effect on the discourse of law reform. Here a key theme is the way Convention compliance has been used by the government to justify measures that will lead to a broadening of the scope of compulsory powers and a reduction in psychiatric service users' rights.     

全球化下的普遍人权批判:基于欧洲的视角——评Global Law:A Triple Challenge

直面经济全球化,马蒂基于欧洲的视角,一方面反对美国式的独白式普遍主义的霸权性的解决方案,另一方面也反对四分五裂的消解普遍主义人权的努力,而给出了一种欧洲式的共同体下的世界法.这种世界法预设了一种普遍人权,这种普遍人权既有其自身难以克服的预设与论述之间的内在紧张,更为重要的是其预设本身就缺乏一种正当的对人之为人的生活样态的关注的理据.因之,在全球化下,对普遍人权的基础与正当性需要作出一种新的检讨.     

(When) Are Rights Wrong? Rights Discourses and Indeterminacy in Gay and Lesbian Parents’Custody Cases

This paper examines the paradoxical and problematic position of rights discourses in lesbian, gay, bisexual, and transgender (LGBT) parents'custody and adoption cases. In it, I analyze the ways in which different types of rights are framed by the litigants and, alternatively, by the judges, as well as how the same constitutional rights (e.g., the right to privacy) are often deployed both in defense of and in opposition to gay /lesbian parents. An in-depth analysis of judicial decisions over a 50-year period and interviews with key family law players reveal the indeterminacy and therefore complexity of rights as a strategy and a discourse in the family law context. Consistent throughout this analysis are the problematic intersection of the collective and the individual in rights-based claims, and evidence of the distinct nature of LGBT rights claims as revolutionary in both their bases and their implications. The analysis confirms in some ways, but also contradicts and complicates many assertions of the "rights critique" of the past two decades. It also suggests a more complex and less dichotomous relationship between rights, status, and contract.     

Habermas and Deleuze on Law and Adjudication

This article stages an encounter between Habermas and Deleuze on law, rights, and adjudication. Most of the article is spent developing Habermas’s concept of adjudication as the application of communicatively generated norms. This application, I argue, involves a complex temporality that is at once retrospective and non-creative. Deleuze is used to critique this concept of adjudication in favor of one based on concrete situations and the creation of new problems. In so doing, I will develop Deleuze’s notorious, and notoriously hostile, remarks on human rights and philosophies of communication by relating them to discourse ethics and to the positive conception of law and judgment that can be drawn from his work.

Confronting Government After Welfare Reform: Moralists, Reformers, and Narratives of (Ir)responsibility at Administrative Fair Hearings

Almost 40 years ago, the Supreme Court, in the landmark case Goldberg v. Kelly (1970) , provided welfare participants with a potentially potent tool for challenging the government welfare bureaucracy by requiring pre-termination hearings before welfare benefits were discontinued or reduced. In 1996, with the passage of the Personal Responsibility Work Opportunity Reconciliation Act (PRWORA) , the rights talk of Kelly was officially replaced with the discourse of individual responsibility. Using observational data of administrative hearings and interviews with administrative law judges and appellants, this study explores how fair hearings have been affected by this official reconceptualization of rights. I find that hearings are not a panacea for challenging the more punitive aspects of welfare reform, but nor are they devoid of the possibility of justice. While hearings can replicate in style and substance the inequities, rigid adherence to rules, and moral judgments that characterize welfare relationships under the PRWORA, they can also be used as a mechanism for creating counternarratives to the dominant discourse about welfare. This study identifies two types of judges—moralist judges and reformer judges—and examines how their differing approaches determine which narrative emerges in the hearing room.     

法理学的中国性、问题性与实践性

法理学不应被降格为琐碎的技术,而应坚守精神的高度,应为一种德性的法律生活提供精神的牵引与人文的支撑。法理学界在围绕法律全球化、法律理想图景、法制现代化、法治与和谐、法治与社会公平、人权保障、司法改革、法学方法论等问题展开的研究中,中国意识、问题意识、实践意识的日渐凸现,加速了法理学研究的分化与聚合、进深与提升。取道中国,立足当下,发乎问题,关注实践,将是未来中国法理学成长的支点。     

Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights

The Family and Medical Leave Act requires employers to provide job-protected leave, but little is known about how these leave rights operate in practice or how they interact with other normative systems to construct the meaning of leave. Drawing on interviews with workers who negotiated contested leaves, this study examines how social institutions influence workplace mobilization of these rights. I find that leave rights remain embedded within institutionalized conceptions of work, gender, and disability that shape workers' perceptions, preferences, and choices about mobilizing their rights. I also find, however, that workers can draw on law as a culture discourse to challenge these assumptions, to build coalitions, and to renegotiate the meaning of leave.     

Bestialitatis and the New Ethics on “Human” Animals

This article discusses how the legal systems in several Western countries, with a special focus on Italy, address our present day animal rights movement and how these legal systems can faithfully reflect the movement’s values as well as promote them in a manner that will ultimately change the rights themselves and their cultural context: this is an extremely interesting issue for the semiotic study of the “humanization of animals”. Therefore, I will summarize several semiotic arguments using the model of the four ontologies by Philippe Descola and the concept of prospectivism by Eduardo Viveiros De Castro. I expect several important changes will come about thanks to the ties between philosophical animal rights discourse and legal discourse and I also believe that the two most interesting issues will be animal labor and reproduction. I will concentrate on the debate over zoophilia laws in Denmark, Germany and Italy in order to propose a way to understand the threshold which separates humans and animals in our naturalistic ontology. Nowadays, “becoming animals” and “becoming humans” seem to be two central and open-ended semiotic processes: legal rights and animal rights philosophy help bring several issues into focus such as animal subjectivity and informed consent.     

法进化的历时透视——以社会变迁为视角

法归根结底是社会存在的反映,所以,以社会为背景作为对法考察的基准,是认识法的基本思路。从原始社会法作为人类智慧的一种自觉的产物,到原始社会后期以至阶级社会至今法成为人类理性的产物,法经历了一个从简单到复杂的进化历程,并且形成了人类对法治的追求。同时,基于一种自然法的观念,人类社会的发展史一直演绎着一部如何推动法实现社会正义、实现人权的历史。在人类推进社会全球化及和谐社会的未来发展中,法将会在复杂的发展态势中追求法的人本精神,争取全人类的共同利益。     

The Commons as a Legal Concept

Scientific debates about the political, economic and even legal aspects of commons have circulated wherever commons are perceived to pose a challenge to the increasing commodification of people’s lives. Indeed, a wide range of commons has emerged worldwide. Emerging commons pose a challenge to the law which is now requested to provide legal tools to resist the dispossession of the common wealth. Nevertheless, commons do not embody a reality which is external or unfamiliar to the law. This paper is an attempt to reframe the commons as a legal concept. In this article I argue that commons are not just a marginal element of contemporary legal systems. Rather, they embody the premises for important transformative practices and discourses and represent a subversive site in the legal order. I maintain, first, that the law of the commons is consistent with the law in force and the current legal regimes of private property and, second, that the current stage of globalization is most favourable to the establishment of a law of the commons both in the peripheries and at the core of the capitalist system. However, given the persistent dominance of the individual-based property paradigm, the legitimacy of the commons on legal grounds remains problematic. Certainly the recognition and protection of the commons challenge the legal regime of property in force and query about the possible limits that the law may impose upon property rights. It is evident that the true core of the commons discourse as a legal discourse rests upon its relation with property and depends on the notion of property that we assume as normative. The Hohfeldian idea of property as a bundle of rights offers a good starting point for articulating a legal theory of the commons under positive law.     

Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand

This study analyzes the transformation of legal consciousness associated with the process of globalization. It examines changing conceptions of injury and compensation in northern Thailand, where global economic and cultural flows have had a dramatic impact over the past twenty years. In their "injury narratives," ordinary Thai people describe the harm they have suffered, the causes they identify, the issues of responsibility with which they struggle, the obligations and remedy systems they consider relevant, and the role of law as they perceive it. These accounts, as well as litigation records from the Chiangmai Provincial Court, suggest that a transformation of Thai legal consciousness has indeed occurred, but not in the direction one might have expected. Rather than embracing liberal legalism or conceptualizing their grievances in terms of rights, injury victims in post-globalization Thailand are now less inclined to perceive their experiences in legal terms and more inclined to rely on a new form of religious discourse in which Buddhist precepts justify the injured person's decision to refrain from the pursuit of compensation. This article offers an explanation of why globalization appears to have pushed legal consciousness in the direction of religiosity rather than rights.     

Property versus political holdouts: the case of the TGV rail line Lyon–Budapest in Italy

The law and economics literature commonly justifies the state’s taking power on the grounds that it is necessary to overcome holdouts and, thus, allow efficient development projects to move forward (A development project is efficient when the benefit it generates exceeds its cost.). By permitting the government to take private property rights non-consensually, the taking power limits the ability of private property owners to engage in strategic bargaining with the government and puts a cap on their ability to extract payments from the government in exchange for agreeing to transfer their rights. In this paper, I will argue that the standard story is highly incomplete and, therefore, inaccurate. It conveniently ignores the ability of politically powerful groups to block development projects by exercising their de facto veto power over proposed projects. Such groups do not necessarily have rights in any properties directly affected by the project. Once these groups, whom I call “political holdouts”, are added to the analysis, it becomes clear that the payment of just compensation—or any other aspect of eminent domain law and regulatory takings jurissprudence—will not help to remove their opposition and, a fortiori, cannot guarantee efficient development. I will explore the phenomenon of “political holdouts” and analyze its causes. As I will show, political holdouts are ubiquitous. Political holdouts may arise with respect to most of what passes for public policy projects, under either the aegis of eminent domain or the government’s police power, and also with respect to non-NIMBY projects. This observation may seem counterintuitive at first. However, one should consider that efficient development projects create a surplus over which powerful interest groups compete. As should be clear, what is of interest to localities and political groups is not the overall utility of a particular development project, but rather their payoff from it. Municipalities may oppose projects that benefit them simply to increase their share of the overall surplus generated by the project. Hence, the problem I point out is significant and acute. In the remainder of this paper, I will discuss in depth how the problem of political holdouts affected the construction of a fast train line (the Lyon–Torino–Milano–Trieste–Khoper–Ljubljana–Budapest TGV line) in northern Italy.     

Traditional Local Justice,Women’s Rights,and the Rule of Law: A Pluralistic Framework

The paper focuses on the application of a particular conception of the rule of law to situations characterized by traditional local justice and legal pluralism. While in the twentieth century international rule‐of‐law programmes were directed almost exclusively at state legal system, they have recently begun to take into account traditional local justice, namely, those institutions which in many world regions represent the main form of effective justice. Starting with a review of the positive and negative aspects of traditional local justice from a rule‐of‐law perspective, the paper underlines the widespread lack of protection of human rights, particularly of women’s rights. Discussing vertical rule‐of‐law functions in contexts of legal pluralism the paper stresses the advantages of an approach to the promotion of the rule of law based on mutual recognition and influence between different legal authorities and sources. It is argued that this “interactive” approach appears best suited to the complex frameworks of relations that characterize present‐day systems of deep legal pluralism. Finally, the paper underlines the correspondence between this approach and a conception of the rule of law as an ideal framework of plural interactions characterized by the limits imposed on the law by the law itself, and it discusses its advantages from the perspective of human rights and women’s rights promotion.     

国际人权法上的迁徙自由和移徙工人的权利保护--以中国农民工为例

经济全球化促使人们充分享有迁徙自由这项不可剥夺的基本人权的同时,更促成了移徙工人的群体规模,从而使移徙工人权利保护成为国际人权法的一项重要内容。以中国农民工为例,移徙工人在其迁徙地的经济和社会发展中作出了巨大的贡献,但其所应当得到的与其所付出的存在着严重的不均衡态势。从长远来看,必须高度重视人类社会生态链中移徙工人权利保护这一环。     

MEDICALLY ASSISTED HUMAN REPRODUCTIVE TECHNOLOGIES (ART) AND HUMAN RIGHTS — THE EUROPEAN PERSPECTIVE

The present article examines how the progress of science, and in particular, medically assisted human reproductive technologies (ART) have provoked a revolution in the sphere of family relations, generating a series of ethical and legal conflicts. The article focuses on the European perspective, without ignoring the international sphere, given the globalization of the phenomenon. The emerging legal issues are analyzed through the filter of international human rights, not only an important aspect to take into consideration in the context of bioethics in general, but a “passage obligé” given that certain concepts find their explanation and coordinates in international human rights law. It is from this perspective that the relationship between ART and human rights is presented. The applicable international and European legal instruments and principles shall be mentioned, as well as a brief comparison of national legal frameworks in Europe. The emerging bioethical and legal issues are examined in correlation with the response of the European Court of Human Rights through its case law aimed at balancing conflicting rights when faced with issues pertaining to ART. Lastly, the article presents in more detail the particular legal issues under debate in France and Italy, two European countries with specific legislation in the field.