Violence in Fascist Criminal Law Discourse: War, Repression and Anti-Democracy

This article constructs a critical historical, political and theoretical analysis of the essence of Fascist criminal law discourse in terms of the violence that shaped and characterised it. The article examines the significance of violence in key declarations about the role and purpose of criminal law by Alfredo Rocco, Fascist Minister of Justice and leading ideologue, in his principal speech on the final draft of the 1930 Italian Penal Code. It is grounded on the premise that criminal law is particularly significant for understanding the relationship between State power and individuals, and so what was distinctive about Fascist thinking in this regard. The article analyses Rocco’s declarations as a discourse in order to highlight their contextual foundations, construction and ideological connections. It argues that the core theme of that discourse is violence, which has three principal dimensions: a close historical and rhetorical connection with war, a focus on repressive and intimidatory force, and a paramount concern with subordinating individuals to State interests. The article then uses this analysis to develop a theoretical reading of the nexus between criminal law and violence in Fascism, in terms of its foundations and reversal of ends and means. The article thus provides an original perspective on Fascism and criminal law, which it argues is important for critical engagement with criminal law discourse in our democracies today.     

The Politics of Revolt: On Benjamin and Critique of Law

In his essay ‘Critique of Violence’, Walter Benjamin subjects violence (Gewalt) to a critique in order to establish the criterion for violence itself as a principle. His starting point is the distinction between law-positing and law-preserving violence. However, these are for him inseparable and subjected to the law of historical change: the history of the law is nothing but the dialectical rising and falling of legal orders. Benjamin’s analysis of legal violence and his criticism of parliamentary democracies, this article advances, should be related to the critical analysis of the possibilities for alternative politics in contemporary democratic rule of law states, as those advanced by Bernard Noël, Philippe Lacoue-Labarthe, Jean-Luc Nancy and Jacques Rancière. For Benjamin, it is only law-destroying divine violence, whose principle is justice (Gerechtigkeit), not power (Macht), that is able to break this circle and open up a new era. Divine violence is, however, not only a provocative but also an extremely problematic, even dangerous, concept, as Jacques Derrida, among others, has claimed. This article considers, therefore, whether the concept of divine violence has any real political relevance in the contemporary era.     

Covering Legal Mobilization: A Bottom‐Up Analysis of Wards Cove v. Atonio

We develop a political history of Wards Cove v. Atonio (1989) to show how Robert Cover's concepts of jurisgenesis and jurispathy can enrich the legal mobilization framework for understanding law and social change. We illustrate the value of the hybrid theory by recovering the Wards Cove workers’ own understanding of the role of litigation in their struggle for workplace rights. The cannery worker plaintiffs exemplified Cover's dual logic by articulating aspirational narratives of social justice and by critically rebuking the Supreme Court's ruling as the “death throe” for progressive minority workers’ rights advocacy. The cannery workers’ story also highlights the importance of integrating legal mobilization scholars’ focus on extrajudicial political engagement into Cover's judge‐centered analysis. Our aim is to forge a theoretical bridge between Cover's provocative arguments about law and the analytical tradition of social science scholarship on the politics of legal mobilization.     

Punishing Bodies,Securing the Nation: How Rule of Law Can Legitimate the Urbane Authoritarian State

Although authoritarian rule of law may seem an oxymoron, strategic reconfigurations of the “rule of law” can produce acceptance of law that observes procedure while erasing rights. By bringing into conjunction critical discourse theory and scholarship on the legal professions and political liberalism, this article shows how rulers can deploy rhetoric and legislation to produce derogations from the liberal content of rule of law while sustaining a state legitimacy built on claims to state realizations of rule of law. A close analysis of Singapore's Vandalism Act shows that silencing the critique of lawyers and constraining the power of judges has been crucial to a legitimation of the surveillance and criminalization of dissenters. The consolidation of state power effected via law and discourse might be seen as making the nation a notional panopticon—corporal punishment, even if conducted behind prison walls, becomes instructive public spectacle conveying the state's seeming omniscience and monopolistic command of law.     

The Arendtian Dread: Courts with Power

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that popular support could be harnessed by those responsible for limiting it. In other words, she was fearful of the American Supreme Court relying on popular support. This is the meaning of her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. I argue that Arendt's characterization of authority as requiring “neither coercion nor persuasion” means that the Court's source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court's authority. In Arendt's mind, such an understanding means that the Court has become the seat of power. The corruption of the Court's authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow.     

Bodily Integrity,Embodiment, and the Regulation of Parental Choice

In this article we develop a new model of bodily integrity that we designate ‘embodied integrity’. We deploy it to argue that non‐therapeutic interventions on children should be considered within a decision‐making framework that prioritizes embodied integrity. This would counter the excessive decision‐making power that law currently accords to parents, protecting the child's immediate and future interests. Focusing on legal responses to genital cutting, we suggest that current legal understandings of bodily integrity are impoverished and problematic. By contrast, adoption of an ‘embodied integrity’ model carves out a space for children's rights, while avoiding these negative consequences. We propose that embodied integrity should trump competing values in any best‐interests assessment where a non‐therapeutic intervention is requested. Drawing on Drucilla Cornell and Joel Feinberg's theories we argue that protecting a child's embodied integrity is essential to guarantee his/her right to make future embodied choices and become a fully individuated person.     

The Logics of Supranational Human Rights Litigation,Official Acknowledgment,and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996–2006

This article examines the domestic impact of supranational human rights litigation on acknowledgment of state violence in the context of macroprocesses of global governance. The article's argument is that the impact of supranational human rights litigation on the process of acknowledgment must be seen through counternarratives on state violence. The article undertakes a detailed textual analysis of the truth claims and denial strategies that emerged from the European Court of Human Rights proceedings on state violence during Turkey's struggle against the armed group the Kurdistan Workers Party (PKK). It assesses these in the context of the human rights reforms that were created following pressure from European-level governance processes. The article argues that attention must be paid to agency in acknowledgment and truth-telling processes, and points to the limits of technical-bureaucratic forms of human rights reform interventions in the context of state violence.     

Rights and the Sovereignty of the People in the Crisis of the Nation State

Following Hannah Arendt's work on totalitarianism, the first part of the paper gives an account of the historical advances of the republican nation state that was born during the constitutional revolutions in France and America at the end of the eighteenth century. This state has organised an efficient solidarity among strangers by means of democratic legislation. The European nation state was particular and universal at once. As Arendt could demonstrate on the Dreyfus affair, republicanism of a specific people was based on the Jacobean patriotism of universal human rights. In the second part an explanation is laid out for the destruction of the European nation state during the first fifty years of the nineteenth century. Beginning with Arendt's thesis on the imperialist society that blurred the borders of state, this thesis is revised with reference to the sociological theory of modern society (Luhmann, Habermas). The last part then turns to the rebirth of the nation state after World War Two and the postimperialist development of globalisation at the same time. Again progress in globalising human rights and civil society is threatened by the uncontrolled expansion of capital and power. The lasting problem is to find any regional or global functional equivalent for the democratic rule of law that for so long only worked on the level of the nation state.     

Punishment and Justice in Adam Smith*

Abstract. The modern interpretation of Smith as a retributive theorist of punishment is challenged in favour of a view of his work as containing a curious amalgam of retributive and utilitarian elements. This unsynthesised theoretical compound accounts for many of the contradictory positions assumed by him, examples of which are given in the article. At the level of “punishment” (i.e., punishment considered without a political dimension), the retributivehtilitarian dichotomy is observed in his discussions of merit and demerit (which are utilitarian in their logic) and propriety and impropriety (which are retributive). At the level of state punishment, the same dichotomy is seen in his juxtaposition of considerations of individual justice and the political ends of punishment. A final section locates Smith's “double cleft stick” theoretically in his position on the one hand in the Hobbesian materialist tradition and on the other in his historical stance half-way between the individualism of the contractarians and the full blown utilitarianism of Bentham.     

For Both Love and Money: Viviana Zelizer's The Purchase of Intimacy

Viviana Zelizer's recent book, The Purchase of Intimacy (2005), presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships—a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer's critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships and then explains her more three‐dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer's approach to transfers of genetic material and concluding that her approach could point toward a more equitable resolution of disputes in and about these markets.     

Scarcity,Discourses of Implementation,and Habermasian Law and Democracy

This paper contains a critique of Habermas' discourse theory of law and democracy from an economic perspective. An example drawn from Klaus Günther's work on discourses of application suggests the failure of discourse ethics to adequately account for the problem of scarcity. This blindpoint is reflected in Habermas' legal theory through the latter's inadequate recognition of the internal connection between markets and law. Discourses of implementation are introduced as a discourse‐relevant procedure to account for the problem of scarcity. Consensus, as defined by Habermas, cannot be the agreement mode applicable to discourses of implementation.     

Family Values in the Classroom? Reconciling Parental Wishes and Children's Rights in State Schools

This article examines the extent to which the law should permitdivergence in various aspects of state education by allowingschools to accede to a parent’s request for differenttreatment for his or her child. With a view to this the articleexplores some of the areas where contention is likely to occur;describes the current legal frameworks for responding to theserequests; and articulates the competing rights and interestsat stake when a parent makes a request for his or her childto be exempt from part of the education on offer at a publiclyfunded school. It emerges that the current legal responses arenot only inconsistent but are also in many instances incompatiblewith the United Kingdom’s international human rights obligations.The article concludes by suggesting a new model for the resolutionof these disputes which provides a mechanism for balancing parents’wishes with children’s rights and the broader public interestsat stake.     

Discipline, Assault, and Justice: Violent Parents and the Law

This article calls attention to an unacceptable double standard in American law: the lenient treatment of parental violence against children when compared to other forms of physical assault. Parts II and III critique the generous privilege of physical discipline extended to parents and the differential state response to violence when the victim is a child in the assailant's family. Appeals to family privacy and parental autonomy to justify the current double standard are examined and found wanting. Clearer and much stricter limits on corporal punishment are recommended and defended as constitutional. We further recommend that parental violence which falls outside these limits should be treated no differently than other misdemeanor and felony assaults. These two proposals give children the protection against domestic violence to which they are entitled as a matter of right and prudence.     

The Targeted Killing Judgment of the Israeli Supreme Court and the Critique of Legal Violence

The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921, ‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities of ‘legal violence’—lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that the Court exercises jurisdiction over these killings in the first place, the decision on the applicable law as well as the interpretation of that law, the article finds that the targeted killing judgment collapses this distinction in a different way from that foreseen by Benjamin. Hence, the article argues, the targeted killing judgment is best understood as a form of administrative foundational violence. In conclusion Judith Butler’s reading of Benjamin’s notion of ‘divine violence’ is considered, particularly his use of the commandment, ‘thou shalt not kill’, as a non-violent violence that must be waged against the kind of legal violence of which the targeted killing judgment is exemplary.     

Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis

This article focuses on the issue of domestic violence in Muslim societies in the Middle East, Africa, and Asia. The analytical framework is comparative, emphasizing four factors and the interplay among them: shari'a (Islamic law), state power, intrafamily violence, and struggles over women's rights. The comparative approach historicizes the problem of domestic violence and impunity to consider the impact of transnational legal discourses (Islamism and human rights) on "local" struggles over rights and law. The use of shari'a creates some commonalities in gender and family relations in Muslim societies, notably the sanctioning and maintenance of male authority over female relatives. However, the most important issue for understanding domestic violence and impunity is the relationship between religion and state power. This relationship takes three forms: communalization, in which religious law is separate from the national legal regime; nationalization, in which the state incorporates religious law into the national legal regime; and theocratization, in which the national legal regime is based on religious law.     

Contemporary Feminist Perspectives on Social Contract Theory

Abstract. This paper explores two feminist contributions to the analysis of the social contract tradition, comparing the political philosophy of Carole Pateman with the moral theory of Jean Hampton, to ask two questions. First, which points must feminists continue to argue in their critique of the social contract tradition today? The second question is: Can feminists actually draw anything from the social contract tradition today? It argues that Pateman's critique of contractarianism continues to be useful when read in the context of her analysis of “self‐ownership” and subordination rather than as a rewriting of the social contract. Hampton's deployment of a Kantian test for the failure of respect for personhood within domestic (and other) relationships does not undermine Pateman's position. Consideration of how such an ideal can be understood as potentially compatible with Pateman's perspective raises issues about the radical potential within claims for equal respect for personhood. In Hampton's work, widespread “test failure” can be used to indicate that political action rather than moral analysis is required. Hampton assumes that those employing the test are able to abstract themselves sufficiently from their current position to imagine what it would be to be treated as a person. It is argued that this “moral test” should be envisaged as being asked in concert with others, at which point it has the potential to become political action.     

家庭暴力致骨折损伤机制分析1例(英文)

本文报道了一名37岁女性遭受丈夫殴打,造成下肢受伤。医院诊断为右髌骨和左胫骨骨折,伤者遂接受了切开复位内固定术。由于丈夫否认对其实施家庭暴力,声称其下肢骨折系交通事故坠落伤。警方遂委托对该女性的损伤进行法医学鉴定。经过审阅X线和CT检查资料,结果为伤者右侧髌骨骨折、左胫骨骨折,以及左眶内侧壁骨折。鉴定意见为髌骨的横向骨折系由肌肉的牵拉暴力引起,左胫骨损伤符合直接和间接外力所致,左眶内侧壁骨折在施暴期间形成的可能性较大。本文阐述了运用影像学技术对家庭暴力案件与交通事故损伤进行鉴别,强调了影像学技术在法医临床鉴定中的应用价值。     

UK Abortion Law: Reform Proposals,Private Members’ Bills,Devolution and the Role of the Courts

UK abortion law remains unsettled, and subject to on‐going controversy and reform. This article offers a comprehensive critique of all reforms implemented or proposed since 2016. It examines reforms proposed in both Houses of Parliament and contextualises them within a public law analysis, showing both that the complex parliamentary processes relating to Private Members’ Bills have frustrated reform attempts, and that these attempts have been contradictory in their aims between the two Houses. Secondly, it examines the unique positions of Northern Ireland, Scotland and Wales to show the extent to which devolutionary settlements have influenced both reforms and executive involvement. Finally, it examines the potential impact of the courts on abortion law following Re Northern Ireland Human Rights Commission's Application for Judicial Review, showing that the Supreme Court's reframing of the debate in human rights terms is likely to affect abortion law, not only in Northern Ireland, but in the whole of the UK.     

Do We See Victims’ Agency? Criminal Justice and Gender Violence in Spain

The Spanish criminal justice system has a specific Law for Gender Violence (1/2004). This article addresses what happens when a law with a feminist perspective is implemented in a predominantly patriarchal institution. The main aim of this paper is to approach women’s experiences in the Spanish criminal justice system, analysed as a technology of power producing women’s subjectivities, and focusing on their agency. We used a qualitative methodology with participant observation (24 sessions) and in-depth interviews with professionals working with gender violence (17) and women who reported gender violence by their heterosexual partner (11 individual and 1 group). We analysed data with the qualitative analysis software Atlas.ti. The results focus on subjective processes and agency among reporting violence, the expedited trial, protection and restraining orders, and probation.     

Law of Denial

Law’s claim of mastery over past political violence is frequently undermined by reversals of that relationship of mastery, so that the violence of the law, and especially its symbolic violence, becomes easily incorporated into longues durées of political violence, rather than mastering them, settling them, or providing closure. Doing justice to the past, therefore, requires a political and theoretical attunement to the ways in which law, in purportedly attempting to address past political violence, inscribes itself into contemporary contexts of violence. While this may be limited to an analysis of how law is an effect of and affects the political, theoretically this attunement can be further refined by means of a critique of dynamics that are internal to law itself and that have to do with how law understands its own historicity, as well as its relationship to history and historiography. This article aims to pursue such a critique, taking as its immediate focus the ECHR case of Perinçek v Switzerland, with occasional forays into debates around the criminalisation of Armenian genocide denialism in France. The Perinçek case concerned Switzerland’s criminalisation of the denial of the Armenian genocide, and concluded in 2015 after producing two judgments, first by the Second Chamber, and then by the Grand Chamber of the ECHR. However, although they both found for the applicant, the two benches had very different lines of reasoning, and notably different conceptions regarding the relationship between law and history. I proceed by tracing the shifting status of ‘history’ and ‘historians’ in these two judgments, and paying attention to the deferrals, disclaimers and ellipses that structure law’s relation to history. This close reading offers the opportunity for a critical reappraisal of the relationship between law, denial and violence: I propose that the symbolic violence of the law operative in memory laws is a product of that which remains unresolved in law’s understanding of historicity (including its own), its self-understanding vis-à-vis the task of historiography, and its inability to respond to historical violence without inscribing itself into a history of violence, a process regarding which it remains in denial.