Complicating the “holy grail”, simplifying the search: a critique of the conventional problematisation of social immobility in elite legal education and the profession

This article challenges the conventional problematisation of and response to insufficient socio-economic diversity in elite legal education and the legal profession. I contend that the entrenched socio-economic stratification of admissions, the undergraduate experience, final degree classification, and career trajectories turns on elite institutions’ failure to recognise that education and educational proxies neither explain the core of socio-economic inequality nor are they the linchpin for improving social mobility. I draw on a case study of an elite UK university’s undergraduate Law programme. My argument proceeds in three parts. Firstly, I contend that justifiable commitment to “meritocracy” continues to be unjustifiably implemented via the indeterminate critical values of “potential” and “talent”, which undermines the meritocratic aim. Secondly, I explain how the inadequacy of the educational proxies employed for socio-economic disadvantage undermines the ability of targeted responses to achieve real improvements, and I call for the adoption of poverty-based proxies. Thirdly, I suggest that the search for mechanisms to increase diversity proceeds on the mistaken assumption that complex problems require complex solutions, which overlooks the transformative potential of “micro-adjustments” or “nudges”. I propose both universal and targeted micro-adjustments, which focus on fostering a universal diversity of excellence; bringing disadvantaged students within the “community of practice” to become expert in critical learning methods and assessment criteria; and enhancing disadvantaged students’ social and cultural capital.     

Equality as a Basis for Religious Toleration: A Response to Leiter

In this short essay, I respond to Brian Leiter’s Why Tolerate Religion. I focus on two criticisms. First, I argue that Leiter’s own theory depends on an unacknowledged ideal of equality, and that equality is central to the utilitarian and Rawlsian bases for religious toleration that he draws upon in his book. Second, I argue against Leiter’s allowing, in certain circumstances, the state to establish religion and to promote religious conceptions of the good.     

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.     

The jurisprudence of race and meritocracy

This article examines the jurisprudential interrelationships between the concept of merit, the tradition of legal individualism, and various doctrines of employment discrimination law. Specifically, we review evidence of continuing racial disparities in income and employment that have persisted despite decades of litigation to reduce or eliminate them. We argue that the unique jurisprudential role played by the concept of merit has undermined legal attempts to address the structural causes of racial discrimination in the workplace. We further suggest that the use of standardized employment tests and the nature of the legal doctrines that govern their use reflect certain outmoded meritocratic assumptions that, by individualizing the nature of racial disparity, contribute to continuing group disadvantage in the workplace.     

In the Aftermath of Critique We Are Not in Epistemic Free Fall: Human Rights,the Subaltern Subject,and Non-liberal Search for Freedom and Happiness

The article challenges the claim that human rights, which have constituted one of the central tools by which to establish the truth claims of modernity, can produce freedom and meaningful happiness through the acquisition of more rights and more equality. Third World, postcolonial and feminist legal scholars have challenged the accuracy of this claim, amongst others. The critiques expose the discursive operations of human rights as a governance project primarily concerned with ordering the lives of non-European peoples, rather than a liberating force; and that the pre-given rational subject of human rights is contingent and one of the prime effects of power. I examine the problems with the liberal humanism of human rights by examining not only how it is linked to a specific understanding of the `good life’, freedom and happiness, but also how it closes off other emancipatory possibilities. The acquisition of human rights as objects that an individual has by virtue of being human, represent the terminal limits of human rights, rather than the moment when the human subject becomes empowered and liberated. I draw on queer affect theory to make a critique of happiness, to which I argue human rights are linked, and how the failed or unhappy subaltern subject exposes its normative composition. I discuss the resulting depth of the despair produced from the realisation that this political project cannot realise its promise of freedom and meaningful happiness, compelling a `turn away’ from human rights as an emancipatory project and a `turn towards’ other non-liberal philosophical traditions, in the search for alternative understandings of and space for freedom and happiness. I explore these possibilities specifically within the philosophical tradition of non-dualism (Advaita).     

The Multiple Meanings of Familialism

The notion that families should care for their own seems straightforward in its meaning. I suggest that it may not be. Building on the argument advanced in Sandra Levitsky's Caring for Our Own, and especially its focus on the discursive shaping of rights consciousness, I draw attention to three discourses that may be responsible for how the caregivers quoted in the book understand family responsibility. One is an American discourse about the limits of government; one is a therapeutic discourse that is enacted in the support groups from which the book's respondents mainly come; and one is a nativist discourse that pits the American‐born against newcomers. I argue that these discourses inflect the meaning of family responsibility in distinctive ways.     

Revelation and Rhetoric: A Critical Model of Forensic Discourse

Over the past thirty years or so, theoretical work in such fields as legal semiotics and law and literature has argued that the legal process is profoundly rhetorical. At the same time, a number of communication-based disciplines such as semiotics, sociolinguistics and linguistic anthropology have provided, particularly in interdisciplinary combination with law, a wealth of empirical evidence on, and insight into, the micro-contexts of language and communication in the legal process. However, while these invaluable nitty-gritty analyses provide empirical support for a rhetorical thesis, work in these areas has tended to ignore rhetoric as an explanatory principle. This article introduces an overarching rhetorical framework for the discursive construction and management of cases in contemporary Anglo-American legal processes. Taking ‘forensic’ as relating to the conduct of cases and ‘discourse’ as semiosis-in-practice, I argue that the practices within which forensic discourse is embedded are not, as the received legal view would have it, aimed at revealing an impartial truth but are deeply rhetorical practices aimed at persuading decision-makers to provide a remedy for a claimed wrong. By looking across forensic texts and contexts, I identify common elements of forensic discourse that can be found both in classical forensic orations and throughout the modern legal process and consider how these intersect with critical forces of agency and structure and the particularities of semiosis in situated context. An awareness of commonalities across forensic discourse can help sharpen our focus on the critical causes and consequences of individual and structural difference and point to consequential suggestions for reform.     

Reluctant Radicals: How Moderates Shape Movements for Social Change

This essay reviews three books within the southern history literature on the white moderate's response to the civil rights movement; Kevin Kruse's White Flight: Atlanta and the Making of Modern Conservatism (2005), Matthew Lassiter's The Silent Majority: Suburban Politics in the Sunbelt South (2006), and Jason Sokol's There Goes My Everything: White Southerners in the Age of Civil Rights, 1945–1975 (2006). I examine how white moderates impacted the struggle for African American civil rights, and explore how this dynamic can help us understand the trajectory of the current debate over gay rights in the United States. I argue that while the US public ultimately came to support equal rights for African Americans, and has grown more tolerant of gay rights recently, they have been willing to do so only when these rights claims are framed as benefiting “deserving” segments of these populations. This shows that rights are, to some extent, contingent resources, available primarily to those citizens who fit certain ideal types, and suggests that those individuals who are unwilling (or unable) to live up to this ideal may ultimately fail to benefit from these movements.     

Means Discrimination: An Investigation into the Ideology of Constitutional Equality

Constitutional "equal protection" has a technical meaning that orients legal thinking. Its roots are in Plessy v. Ferguson (1896) and the relationship between separation of the races in schools, theaters, and other public places and the guarantee of material or physical equality. Brown v. The Board of Education (1954), in eliminating separation from constitutional protection also eliminated the constitutional promise of material equality.
The approach to this ideology turns away from outcomes in order to get to the meanings, standards and conceptual parameters that influence the application of constitutional discourse to discrimination against those with inadequate means.     

The Socio-Cultural Exclusion and the Regulation of Sexuality in Taiwan

My paper begins with an analysis of recent emergence in Taiwan of public discourse and administrative ordinances that aim to regulate the internet, TV programs, newspapers, romance novels, comics, video games, education, obscenity laws and teenage culture. My analysis points out that the discourse and regulations have signaled significant changes in the relationship between Taiwan’s civil society and its nation-state. An exclusive civil society, a concept which I have partly drawn from Jock Young’s The Exclusive Society, is emerging as an extension of state power rather than as the antithesis of the state. I argue that as a result of this development of the exclusive society and the new regulatory state, a “culture war” between socio-cultural exclusion and social freedom (especially in the area of sexuality) is now being waged in Taiwan’s civil society. The role of the mainstream NGOs, the tactics of regulation and the wider context of this culture war will be analyzed in this paper.     

Critical Legal Theory’s Turn to Schmitt: Not Waving but Drowning?

I examine the current enthusiasm among some academics, whom I shall broadly refer to as critical legal theorists (CLT), for the work of Carl Schmitt which has at times been accompanied by disenchantment with Emmanuel Levinas’s ethical insights. I examine the reasons for this turn to Schmitt which I attribute to the sensitivity of CL theorists to the complaint that an over-reliance on Levinas leads to a disengaged and irrelevant discourse. I contrast their antithetical approaches through their conceptions of the Other (which in Schmitt’s case is developed through his friend and enemy distinction) and explain how, together with state of exception theory; it has appeared to some CL theorists to offer a platform for exposing the liberal democratic attempt to export human rights as a violent imperialising mission. I argue that Schmitt’s thinking represents an intellectual cul-de-sac and that Levinas continues to offer a more rewarding model of critique.     

Measuring Meritocracy in the Public Sector in Europe: a New National and Sub-National Indicator

Since the late nineteenth century, the presence of an independent and meritocratic bureaucracy has been posited as an advantage for effective bureaucratic behaviour and a means of limiting patrimonial networks and corruption, among other benefits. There is little consensus on how the features of an independent and meritocratic bureaucracy should be measured across countries, however, and broad empirical studies are therefore rare. What is more, the few such studies that exist have advanced measures which are constructed exclusively on expert surveys. Although these have indeed contributed to the knowledge in the field, the data on which they are built come with problems. This paper proposes a set of novel measures that complement existing measures and thus fill important gaps in this burgeoning literature. The measures we present are not based on expert assessments but on perceptions of public sector employees’ and citizens’. We create two measures—that can be combined into one—from a recent survey (2013) of over 85,000 citizens in 24 European countries. One is purely based on the assessments from public sector employees’ and the other is based on perceptions of citizens working outside the public sector. The paper also discusses the survey and explores the external validity of the measures provided here, showing correlations with alternative measures based on expert opinions, as well as variables from the literature that we would expect to correlate highly with a meritocratic bureaucracy.     

Ideological stratification: American beliefs about economic justice

By integrating systematically the common themes in the stratification and justice literatures, researchers have sought to advance our understanding of the role of ideologies in legitimating inequality. This paper examines how beliefs about meritocracy and opportunity in American society relate to the way people think about reducing income differences between the rich and the poor. Using a national sample of U.S. adults (N=1473), we find that the majority of the respondents believe that America has an open system where achievement is tied to individual abilities and educational opportunities. On the other hand the respondents are split in their views on meritocracy, with 50% believing that an individual's high socioeconomic position is reflective of special abilities. The role of ideologies in influencing beliefs about economic justice is direct in that persons who believe in the tenets of equal opportunity and meritocracy are not in favor of reducing income differences between the rich and the poor. Additionally, stratal differences in beliefs about economic justice are seen, with disadvantaged individuals more likely to question the legitimacy of inequality.     

The right,the good and the jurisprude

Legal philosophy must be based on a set of substantive political values about such fundamental matters as the nature of the political community and the meaning of human freedom. This general thesis is illustrated by the analysis of moral discourse about the justification and limits of liberty-rights and equality-rights.The most effective way of arguing about the liberal conception of individual liberties (consistent with the Millian Harm Principle) is by recourse to the priority of the right over the good. But this conception is little more than a restatement of the Harm Principle itself hence, a more fundamental justification for it is required. This can be provided by a substantive conception of equality of individuals as moral agents who are capable of choosing, pursuing and changing their own conceptions of the good, within the parameters of avoiding harm to others.In turn, the basic moral problem about equality-rights concerns the test of the discriminatory character of legal classifications. The insistence that immutable personal characteristics, such as race and sex, are prima facie discriminatory, can only be explained by an appeal to a notion of positive freedom: individuals should not be adversely affected by those characteristics over which they have no control.There is a significant parallelism in the discourse about liberty-rights and equality-rights: one is a mirror image of the other. This indicates that jurisprudence is incomplete without those more fundamental conceptions, such as equality of moral agents and positive freedom, and that a proper discourse about human rights is derivative from the ideal of a just society.I am grateful to Martin Krygier, Grant Lamond and David Mason for their helpful comments.     

Gender Quotas in Politics: The Greek System in the Light of EU Law

Positive action is currently gaining momentum in the European anti-discrimination discourse and policy-making as a necessary and effective tool to achieve the goal of full and effective equality in employment. Gender quotas in politics, however, are thought to remain outside the normative scope of Community law, the dominant view being that candidature for elected public office does not constitute employment in the sense of the relevant provisions. This article seeks to examine the Greek quota system for women in politics in its dialectical relationship to the general equality discourse and with reference to the current normative framework in Europe. The aims are threefold: to assess the legality of positive action in favour of women in politics from the point of view of EU law, to evaluate the effectiveness of the Greek system in achieving its gender equality goals, and to identify the problems that quotas in politics may pose with regard to the principle of democratic representation. It will, thus, be argued that positive measures in politics, though generally compatible with the fundamental principles of justice and representative democracy, may nevertheless be inadequate—at least in their current form—to provide effective solutions to the unequal distribution of social and political power.     

Social Justice Beliefs Regarding Old-Age Provisions in Germany: A Latent Profile Analysis

Examining personal beliefs about social justice in the way a society provides financial security in old age may reveal potential conflicts about the distribution of wealth. Individuals differ with regard to how they believe old-age provisions should be distributed (e.g., based on principles of merit or self-reliance), and individuals often endorse more than one belief at the same time. Using latent profile analysis and data from the 2014 German Ageing Survey we identify five separate profiles of social justice beliefs among older adults (40–85 years) in Germany. Belief profiles were based on the extent to which people simultaneously endorse and/or reject meritocratic, redistributive, self-reliant, and fatalistic ideas regarding old-age provisions. Almost 20% of the sample demonstrated a belief system in line with the German meritocratic system. Roughly three-fifth did not show strong preferences for a specific social justice principle. However, we identified two belief profiles representing 22.4% of the sample which may reflect dissent from the current system. Sociodemographic characteristics, political identification, and indicators of social disadvantage (e.g., lower income, fears of decline in social status, and feelings of social exclusion) were differentially associated with the five belief profiles. Overall, the results showed that in particular people of lower socioeconomic status were critical with respect to the principles of the German pension system raising questions regarding the demand of political interventions.     

The Hurried Justification of Sanctions

In this paper I try to see how the Derridean aporias of the law of the urgency of legal decisions (the law interrupts the input of knowledge in the decision-making process) and the épokhè of the rule (justice can never be done in the present) are revealed in the context of the justification of sanctions. I argue that sanctions can only be justified in a purposive manner in the last instance. They can only be means to an end of punishment which has been opted for, and which can be justified on grounds of principles, or an authoritative calculation of incommensurable entities. I argue against theories, which advocate the internal connection of law and morality, because if such a connection could be established, the aporia of the hurried and unjustified action would obviously disappear. In particular my target is discourse theory as formulated mainly by Robert Alexy with his Sonderfallthese(Special Case Thesis). My objection is that, because of their instrumental nature, sanctions cannot be justified on moral grounds. I also consider some objections that could be raised from Klaus Günther's theory of appropriateness and Habermas' distinction between the moral, ethical and pragmatic employments of practical reason. I am argue that the former, which would become relevant at the stage of application, that is sentencing, does not resolve the justificatory problem of sanctions, and the latter confirms rather than falsifies my claim that punishment can never be said to be just.     

Law and the Periphery

The Euro crisis brought to the fore a larger and hitherto invisible structural problem as to the relationship between the European Union's centre and its periphery. I am arguing that the concerns of the peripheral EU countries, of their workers and companies are difficult to argue in the existing ideology and that this contributes to the reproduction of the existing hierarchies in the EU. The ideology of the EU legal profession is one of the centre of the EU, and this importantly determines how harm is understood in EU law and which doctrines are present in legal thinking. For example, there is a presence of social dumping, but an absence of goods dumping in the EU legal vernacular. I argue that the centre‐periphery relationship is structured by legal entitlements, that the overtly political discourse of left and right is analytically insufficient and explain the phenomenon of conceptualism of contemporary legal thought.     

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.