New families,new governance and old habits

In December 2011, the UK Government formally launched its ‘troubled families’ initiative. This is a focused programme of interventions, coordinated at local level and paid for by results. It has been described by the Prime Minister as a part of the ‘social recovery’ that has to be set alongside the economic recovery that is his government's priority. It is illustrative of a decisive shift in the nature of the welfare state as it reflects the neo-liberal political project. It also reflects a purposed shift in social attitudes towards troubled and troublesome families, driven to a considerable degree by a vicious popular press. It is indicative of a marked shift in the pendulum from ‘rehabilitation’ to ‘rescue’ as the focus of welfare practice with children and families. Recent developments in the promotion of adoption of children in the UK should be viewed in this light. This paper considers how those families with tense or divergent relationships with the state are to be governed in the context of a state and a set of social attitudes that represents a decisive break with the post-war welfare consensus.     

Socio‐legal Studies in France: Beyond the Law Faculty

This article is the third in an occasional series dealing with the development, current status, and future of socio‐legal studies in selected countries. It follows articles by Kim Economides (Aotearoa/New Zealand) and Harry Arthurs and Annie Bunting (Canada). In this article we argue that in France one can identify work that corresponds to the key strands of socio‐legal research in Anglo‐American societies but that ‘socio‐legal’ as a category of research and scholarship does not have the presence it has in the United Kingdom. French law faculties continue to be strongly shaped by a traditional disciplinary orthodoxy rooted in a highly and distinctively structured form of doctrinal analysis. In the first part, we explain the relatively limited presence of socio‐legal studies in French law faculties in terms of the historical and institutional mechanisms by which disciplinary closure has been created and maintained around traditional orthodoxies. But in the second part we will trace the presence – predominantly outside law faculties – of significant fragments of socio‐legal practice in the scholarship of law and allied disciplines.     

The Child in European Human Rights Law

This article examines the category of ‘the child’ in European human rights law, based on an analysis of the child‐related jurisprudence of the European Court of Human Rights. It argues that a full account of legal selfhood is constructed through the notion of ‘the child’ in this jurisprudence. The two notions – of ‘the child’ and ‘the self’ – are, from the outset, mutually dependent. The conceptualisation of ‘the child’ in human rights law is underpinned by an account of the self as originating in another and childhood is cast as enabling self‐understanding by making possible the formation of a narrative about the self. The vision of ‘the self’ that emerges is one of ‘the narrative self’, and I assess the implications of this both for the idea of childhood in which this narrative originates and for the vision of the human condition that is expressed in European human rights law more broadly.     

Winnowing the chaff out of the grains: the intermixture of customary law and spiritualism in Ghana

Belief in the supernatural runs so deep in the cultural lives of Ghanaians that customary law – ‘the rules of law, which by custom are applicable to particular communities in Ghana’ – has not been spared its influence. This article asserts that state sanctioned enforcement of superstition inspired customs violates the fundamental constitutional value of freedom of conscience relative to persons who do not subscribe to such beliefs in the supernatural. But in order to accommodate the twin state interests of preserving customary laws and respecting the freedom of conscience, this article proposes the development of a body of customary laws devoid of superstition. It sets out to discuss why this idea is imperative and how it can be achieved.     

Exploring the Myth of the Bobby and the Intrusion of the State into Social Space

This paper aims to increase the reader’s understanding of how the notion of the ‘bobby on the beat’ has been elevated to iconic, if not mythical, status within British policing. In doing so, the article utilises the semiotic idea of myth, as conceptualized by Roland Barthes, to explore how through representations of the ‘bobby on the beat’ police officers have been projected in a more avuncular re-assuring role to a public fearful of crime, which fails to do service to the signifying practices that accompany and embody the visible police patrol. Indeed, police patrol work secures social space for the State and although it does re-assure anxious members of society that their social world is safe and secure, for others, it further illustrates how their social space is fragile and troubled. On another level, the ‘bobby’ narrative has also been harnessed as part of a broader mythologizing of ‘Englishness’ and quintessential British characteristics.     

Troublesome Differences—Dealing with Gendered Violence,Ethnicity, and ‘Race’ in the Finnish Welfare State

Forced marriages, honour-related violence, and violence in transnational marriages have been the focus of public interest in the Nordic welfare states for over a decade. The article analyses how authorities and welfare practitioners discuss differences, ‘race’, ethnicity, and gendered violence in families in this sometimes controversial societal setting. Based on 35 interviews with representatives of the police, social work, shelter movement, and NGO-led projects, it is argued that the main ways to approach the issue are ‘culture speech’ and ‘universalist speech’. In culture speech, differences can be constructed as dichotomous and hierarchical (culturalization), but also in a variable and lateral way. The universalist discourse has paradoxical effects. It functions as a counter-force to culturalization, but it also discourages and prevents discussion about how to take into account the different starting-points of the diverse clientele. The welfare state plays an important role in both. While the universalist discourse is embedded in welfare state ideologies, the culturalist discourse (re)produces welfare state nationalism. Finnish authorities and practitioners distance themselves from cultural relativism but have developed forms of practical multiculturalism to reach migrant clients. The dominant discourses are questioned by approaches that emphasize individual and multiple differences.     

Of ‘Landmark’ or ‘Leading’ Cases: Salomon's Challenge

This article seeks to question the two dominant conceptions of ‘landmark’ or ‘leading’ cases in English legal scholarship, using the House of Lords decision in Salomon v. Salomon Co Ltd. – the most famous case in corporate law – as a case study. It argues that neither the first dominant conception of ‘leading’ or ‘landmark’ cases, characterized by the analysis of the intrinsic merits of a case, nor the second, which looks at the historical contexts in which cases were decided, appears sufficient by itself to determine whether a case is landmark or canonical. Rather, we have to look at how the canonicity of a case is constructed by subsequent courts. The article seeks to advance the debate concerning the formation of landmark cases and aims to challenge certain prevailing views on the canonicity of corporate law's arguably most significant case.     

Universal Credit, ‘Positive Citizenship’, and the Working Poor: Squaring the Eternal Circle?

This article examines the potential effects of the Welfare Reform Act 2012 on the United Kingdom social security system, and on claimants. This legislation illustrates new modes of thought and ideology underlying the British welfare state. The introduction of the ‘Universal Credit’ has the potential to solve the ‘poverty trap’, where claimants are better off in receipt of welfare benefits rather than engaging with employment, and may assist low‐paid individuals into ‘positive’ citizenship. However, the practicalities of implementing Universal Credit might undermine legislators’ ambitions. It may be that the Act attempts too much reform to the social security system, trying to impose legislative uniformity on a highly complex set of socio‐economic circumstances which may be impervious to such rationalisation. This could result in the scheme requiring further reform, or even abolition. The ideological and historical underpinnings of Universal Credit are also examined to understand more clearly its nature and structure.     

Criminology and animality: stupidity and the anthropological machine

Although a relatively small, yet growing group of scholars have been lamenting the exclusion of nonhuman animals from the scope of criminology for over thirty years now, animals have been historically present in criminological theorizing, legal practices, and research. However, this presence has not been of the form advocated for by scholars who variously identify themselves as non-speciesist criminologists, green criminologists, or ecological criminologists, who have been arguing largely for recognition of harms perpetrated against animals, or ‘zoological crime’. Instead, the longer history of animals in criminology is as offenders or as prototypes of criminality. In this article, we are concerned with the production – vis-à-vis the anthropological machine – of the ‘stupid’ animal and subhuman within criminology and criminal justice. Guided by the political philosophy of Giorgio Agamben, we trace the animal through criminological thought from the premodern period to Lombroso to contemporary criminological scholarship illustrating how the animal has been (ab)used to shore up the classifications between humans, between humans and animals, and the intelligent and the stupid. We also examine how historically through criminal trials of animals and the feebleminded, criminal justice has played an active role in buttressing these classifications and acting on these classifications to produce bare life, that is, life without form or value.     

Forms of fettering: application forms and the exercise of discretion in the welfare state

ABSTRACT

Application forms are often the compulsory interface between citizens and their social rights. Applicants for support must navigate the questions, checklists and blank spaces in often long, detailed documents to assert their social entitlements. Given their ubiquity and the central role they play in the administration of the welfare state, it is perhaps surprising that they have been neglected in favour of a focus on other documentation, principally policy and guidance. This paper argues that the non-fettering ground of review – a principle whose jurisprudence is tied to the design and use of policy – also engages application forms. Through an analysis of 271 application forms used to administer the localised Discretionary Housing Payment scheme in England, three examples of their fettering potential are provided: the imposition of exhaustive criteria; requiring the applicant to self-classify or disclose irrelevant considerations; and constraining responses through tied evidential requirements. By arguing that the non-fettering ground should not limit itself to one kind of document (policy) when administrators are so reliant on another (application forms), the paper’s broader agenda is to argue that principles of good administration should apply to all documentation used to administer social entitlement.     

Measuring public perceptions of sex offenders: reimagining the Community Attitudes Toward Sex Offenders (CATSO) scale

The Community Attitudes Toward Sex Offenders (CATSO) scale is an 18-item self-report questionnaire designed to measure respondents’ attitudes toward sex offenders. Its original factor structure has been questioned by a number of previous studies, and so this paper sought to reimagine the scale as an outcome measure, as opposed to a scale of attitudes. A face validity analysis produced a provisional three-factor structure underlying the CATSO: ‘punitiveness,’ ‘stereotype endorsement,’ and ‘risk perception.’ A sample of 400 British members of the public completed a modified version of the CATSO, the Attitudes Toward Sex Offenders scale, the General Punitiveness Scale, and the Rational-Experiential Inventory. A three-factor structure of a 22-item modified CATSO was supported using half of the sample, with factors being labeled ‘sentencing and management,’ ‘stereotype endorsement,’ and ‘risk perception.’ Confirmatory factor analysis on data from the other half of the sample endorsed the three-factor structure; however, two items were removed in order to improve ratings of model fit. This new 20-item ‘Perceptions of Sex Offenders scale’ has practical utility beyond the measurement of attitudes, and suggestions for its future use are provided.     

The treatment of Chinese customary law in British colonial Hong Kong

A struggle has been underway in Beijing, othering Hong Kong’s British common law legal system by rhetorically subordinating it as a foreign colonial relic. How did the British develop their Hong Kong governance policies for proper law, as they ruled Hong Kong? These policies developed without resort to all the available scholarship, so that they could other the Hong Kong people into a subaltern group. Hong Kong was already constituted as a township with its own continuing township liturgy, customary ritual and social structure. The colonial administration ignored this, creating a Hong Kong subaltern.     

The Exclusion of (Failed) Asylum Seekers from Housing and Home: Towards an Oppositional Discourse

‘Housing’– the practical provision of a roof over one's head – is experienced by users as ‘home’– broadly described as housing plus the experiential elements of dwelling. Conversely, being without housing, commonly described as ‘homelessness’, is experienced not only as an absence of shelter but in the philosophical sense of ‘ontological homelessness’ and alienation from the conditions for well‐being. For asylum seekers, these experiences are deliberately and explicitly excluded from official law and policy discourses. This article demonstrates how law and policy is propelled by an ‘official discourse’ based on the denial of housing and the avoidance of ‘home’ attachments, which effectively keeps the asylum seeker in a state of ontological homelessness and alienation. We reflect on this exclusion and consider how a new ‘oppositional discourse’ of housing and home – taking these considerations into account – might impact on the balancing exercise inherent to laws and policies concerning asylum seekers.     

‘The biggest gang in Oakland’: re-thinking police legitimacy

Literature defining ‘police legitimacy’ lacks qualitative research on those populations most often targeted by law enforcement agencies, including people of color in urban areas. This same literature defines police legitimacy as something unquestionable and automatic. Exploration of this concept is limited to strategies to increase public ‘trust’ in police, and public compliance to their authority. We address these limitations in the available scholarship through an analysis of interviews with a diverse sample of Oakland (CA) residents on their experiences with the Oakland Police Department (OPD). Their narratives are presented in the historical context of controversy, budget problems, federal investigations, and racialized violence that help to define the relationship between OPD and Oakland communities. Those interviewed, universally observed OPD’s failure to address the most common crime problems in the city, while others, particularly people of color, found them to be a personal or public threat to safety. Their narratives fly in the face of the manifest functions of municipal police forces, are fully supported by the contemporary empirical history of the OPD, and suggest the illegitimate authority – including the monopoly on the use of force – of organizations like OPD in a democratic society.     

Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.     

Democracy and emergency: finding the constitutional foundation of the knowledgeable state in social dynamics

This article aims to bring to light the law–society dynamic relationship in constitutional governance by engaging with the question of political constitutionalism from the perspective of institutional epistemology. It first reframes the debate surrounding legal and political constitutionalism as one concerning the state's ‘epistemic competence’ in governance shaped by the constitution, and then traces how constitutional ordering has given rise to the ‘knowledgeable state’ by setting a unique social dynamic in motion: the ‘epistemico-political constitution’. Using the example of the World Health Organization's initial response to the COVID-19 pandemic, a the article presents a two-part argument. First, constitutional ordering institutes a process of knowledge production embedded in the interaction between the state and society – a unique law–society dynamic – that responds to governance needs. Second, given the current law–society dynamic in the suprastate political landscape, the legitimacy challenge facing expertise-steered global governance is further intensified as more crisis responses are expected from outside the state.     

The case for a victimology of nonhuman animal harms

For the last twenty years ‘victimology’, the study of crime victims and victimisation has developed markedly. Like its ‘parent’ discipline of criminology, however, very little work has been done in this field around the notion of environmental victimisation. Like criminology itself, victimology has been almost exclusively anthropocentric in its outlook and indeed even more recent discussions of environmental victims – prompted by the development of green criminology – have failed to consider in any depth the victimisation of nonhuman animals. In this paper, we examine the shortfall in provision for and discussions of nonhuman animal victims with reference to Christie’s notion of the ‘ideal victim’ and Boutellier’s concept of the ‘victimalization of morality’. We argue that as victimology has increasingly embraced concepts of victimisation based on ‘social harms’ rather than strict legalistic categorises, its rejection of nonhuman victims from the ambit of study is no longer conceptually or philosophically justified.     

Relational legal consciousness in the punitive welfare state: How Dutch welfare officials shape clients' perceptions of law

With a growing number of strict obligations and harsh sanctions for welfare recipients, the Netherlands has increasingly become a punitive welfare state. This article looks at what this means for welfare clients and their commonsense understandings of the law. To analyze how welfare officials shape clients' legal consciousness, I draw on an online survey among Dutch welfare clients (N = 1305) and a correlation analysis. The findings show that there is a clear relationship between welfare clients' own legal consciousness and their assessment of welfare officials' beliefs about the law. However, not all elements of their legal consciousness are relationally influenced by the same factors. Also, clients' self-reported compliance behavior is less relationally influenced than other elements of their legal consciousness. This study adds to our understanding of the mechanisms that constitute the production of relational and second-order legal consciousness and it contributes to the development of new research methods to study people's perceptions of law.     

Reflections on the sociology of law: A rejection of law as ‘socially marginal’

Rejecting the concept of law as subservient to social pathology, the principle aim of this article is to locate law as a critical matter of social structure – and power – which requires to be considered as a central element in the construction of society and social institutions. As such, this article contends that wider jurisprudential notions such as legal procedure and procedural justice, and juridical power and discretion are cogent, robust normative social concerns (as much as they are legal concerns) that positively require consideration and representation in the empirical study of sociological phenomena. Reflecting upon scholarship and research evidence on legal procedure and decision-making, the article attempts to elucidate the inter-relationship between power, ‘the social’, and the operation of law. It concludes that law is not ‘socially marginal’ but socially, totally central.