Between Justice and Law in Aotearoa New Zealand: Two Case Studies

Through two case studies, this essay examines the relationship between the operation and practice of law in Aotearoa New Zealand and the naming of the ‘unlawful’, ‘uncivil’ or ‘disorderly’ within a colonial context. Against the background of the apparent complicity between law and colonial interest and desire in Aotearoa, I argue that, in both the ‘Haka Party’ case (1979) and Mair v Wanganui City Council (1996), the acts of the defendants draw attention to the relationship between the authority of the law and the repression or exclusion of difference. According to the judges in both cases, the dictates of Maori law and custom were in conflict with the principles of ‘law and order’. Read in terms of colonial relations, the perceived relationship between Maori law and custom and the threat to ‘civilization’, law and order reveals the way in which ‘the law’ has operated in a culturally biased manner and has reflected the interests of Pakeha (New Zealanders of European descent). Thus, the perceived threat of the challenge made to the law in either case can be seen as the threat to reveal it for what it is, to expose the violence that maintains it, and thus to open a space for critique. Perhaps more powerfully than any physical attack on the system itself, these acts which expose the law challenge it in the name of justice, making it possible for the law to be seen both as a reflection of a particular cultural interest and hence as co-opt-able, takeable and able to be made to serve another end, that of the other in the name of justice. This revised version was published online in July 2006 with corrections to the Cover Date.     

Left Realism,community and state-building

Left Realism, as it emerged in the mid 1980s in the UK was a policy-oriented intervention focusing on the reality of crime for the working class victim and the need to elaborate a socialist alternative to conservative emphases on ‘law and order’. It saw the renewal of high crime, deprived communities as involving democratic police accountability to those communities. During the subsequent period developments have moved very much against the orientations of Left Realism. This paper compares two different contexts of renewal—the deprived urban community in the UK and the war-torn ‘failed state’ in Bosnia—and identifies certain common policy orientations which are then criticised from a Left Realist perspective.     

Transboundary water interaction II: the influence of ‘soft’ power

This paper seeks to broaden the analysis of transboundary water interaction, by examining and interpreting the influence of ‘soft’ power therein. The ‘soft’ power of persuasion is understood to be exercised through discursive and to a lesser extent ideational means, and is interpreted in terms of compliance related to distributive (conflictual) or integrative (consensual) ends (after Scott (1994)). The focus is on inter-state water conflicts in hegemonic political contexts, where, it is found, the ‘first among equals’ has a greater ability to exploit ‘soft’ power and to determine the outcome. ‘Soft’ power is also seen to influence the choices states make or avoid in their transboundary water interaction, which explains in part how treaties intending to manage conflict may in fact delay or perpetuate it. For example, ‘soft’ power can be used by the basin hegemon to frame inequitable forms of cooperation in a cooperative light, such that unfair and ultimately unsustainable transboundary arrangements are replicated by the international donor community. Non-hegemonic riparian states also employ their capacity of ‘soft’ power, though may find themselves with little choice other than to comply with the arrangement established by the basin hegemon. The findings stress the importance of analysts questioning claims of interaction promoted as ‘cooperative’, and of examining the ‘soft’ power plays that underlie all transboundary water arrangements. Exemplification is provided through transboundary river basins and aquifers around the globe.     

Human trafficking revisited: legal,enforcement and ethnographic narratives on sex trafficking to Western Europe

In this paper we focus on the ways ‘victims’ and ‘perpetrators’ are imagined in the narratives on women who have been trafficked to West Europe for sexual exploitation. Three specific domains: international/national law, local law enforcement and ethnographic academic perspective are particularly important as they strongly influence political reaction to trafficking and describe the phenomenon from the perspective of the individuals concerned. In our analysis, an explanation of the diversity of the perceptions in these three domains is provided.     

The Turn to Imagination in Legal Theory: The Re-Enchantment of the World?

Various contemporary legal theorists have turned to ‘imagination’ as a keyword in their accounts of law. This turn is fruitfully considered as a potential response to the modern condition diagnosed by Max Weber as ‘disenchantment’. While disenchantment is often seen as a symptom of a post-metaphysical age, it is best understood as the consummation of metaphysics and not its overcoming. Law’s participation in disenchantment is illustrated by way of Holmes’ parable of the dragon in ‘The Path of the Law’, which illustrates the rationalization and demystification of law. Four ideal–typical turns to ‘imagination’ are identified: the theoretical (turning to imagination as synthesis), the progressive (imagination as empathy), the transformative (imagination as invention) and the nostalgic (imagination as attunement). Most of these turns to imagination remain complicit with disenchantment. ‘Imagination’ often appears only to be harnessed in the service of more conventional keywords of legal thought: theoreticians turn to imagination as synthesis to serve as a form of super-reason; progressives turn to imagination as empathy to make law a more effective instrument; transformatives turn to imagination as invention to serve as a form of super-will. By turning to imagination as attunement, nostalgics come closest to accepting a world that is not masterable, i.e. they come closest to accepting an enchantment that is a gift and not the product of our imaginations. Indeed, modern imaginations are themselves symptoms of disenchantment. If Weber’s diagnostic calls for a human response, it cannot be one of overcoming disenchantment by imaginative re-enchantment: it belongs integrally to enchantment to exceed any and all human capacities.     

Evidence on women trafficked for sexual exploitation: A rights based analysis

The aim of this paper is to investigate which factors influence the pattern of enforcement (violation) of basic rights among women trafficked for sexual exploitation. A conceptual framework is adopted where the degree of agency and the possibility to influence the terms of sex-based transactions are seen as conditional on the enforcement of some basic rights. Using data collected by the International Organization for Migration (IOM) on women assisted by the organization after having been trafficked for sexual exploitation, we investigate the enforcement (violation) of five uncompromisable rights, namely the right to physical integrity, to move freely, to have access to medical care, to use condoms, and to exercise choice over sexual services. By combining classification tree analysis and ordered probit estimation we find that working location and country of work are the main determinants of rights enforcement, while individual and family characteristics play a marginal role. Specifically, we find that (1) in lower market segments working on the street is comparatively less ‘at risk’ of rights violation; (2) there is no consistently ‘good’ or ‘bad’ country of work, but public awareness on trafficking within the country is important; (3) the strength of organised crime in the country of work matters only in conjunction with other local factors, and (4) being trafficked within one’s country, as opposed to being trafficked internationally, is associated with higher risk of rights violation.     

His master’s voice: H.L.A. Hart and Lacanian discourse theory

H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact, Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law: subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content. Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory, he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore, be supplemented by other sources. Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience: obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.

Risk calculation and precautionary uncertainty: two configurations within crime assessment

This paper explores two configurations of thinking about crime amongst law enforcement agencies and private sector security managers: ‘risk calculation’ (concerned with everyday, calculable probabilities and impacts and their management) and ‘precautionary uncertainty’ (concerned with events that might be incapacitating, yet are not calculable by probability assessments). The paper explores their respective constituent concepts and fields of application in crime assessment, drawing upon qualitative research-in-progress in Belgium. Risk calculation, as applied to crime, starts with past data on routines that link perpetrators with targets that lack capable guardians. Precautionary uncertainty focuses on potential impacts that are highly disabling and potentially wide-spreading (contagion, knock-on effects), asking how such impacts can be contained and recovered from. Risk and uncertainty are shown to be related to ‘rational-instrumental’ and ‘deliberative-constitutive’ approaches as developed by Fisher’s work in the field of law, which offers a meta-narrative in relation to which they can be positioned. Finally, the paper asks if these two crime assessment methods should be seen as distinct or as merging. On the basis of criteria of conceptual sharpness, openness to public debate and justiciability, the authors champion the maintenance of a clear distinction between risk and uncertainty.     

A Criticism of the International Harm Principle

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability.     

What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

Becoming-Animal,Becoming-Detainee: Encountering Human Rights Discourse in Guantanamo

The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say, of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places; secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove particularly useful here.     

Affairs of the Heart: Hate Crime and the Politics of Crime Control

Various scholars have noted the priority given to law in the politics of hate violence; violence is the problem and law, more specifically the criminal law, the solution at the ‘heart’ of society. This article seeks to explore some of the gaps and silences in the existing literature and politics that mobilize these ideas and associations. It is the gap sand silences associated with demands for and expectations of criminal justice that will be the particular concern of this article. The demand for law is examined by way of David Garland's recent work on the culture of crime control. His work offers an analysis of the contemporary place of crime control in Anglo-American liberal democracies. A distinctive feature of his analysis is to be found in the way it maps an important paradox of contemporary crime control; its political centrality and an increasing recognition of its limitations. Garland's ‘criminology of the self’ and the ‘criminology of the other’ raise some important challenges for those who advocate resort to crime control. My particular concern is to consider the significance of Garland's work for a contemporary sexual politics that puts violence and criminal justice at the heart of that politics. Feminist, gay and lesbian scholarship first on criminal justice and second, on violence and law will be used to develop a critical dialogue with Garland's analysis and to reflect upon the challenges raised by his insights into contemporary crime control. This revised version was published online in July 2006 with corrections to the Cover Date.     

Strategies of Rupture

The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and its economy of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’, or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom (the focus here is on the tactics of rupture of the lawyer Vergès) and outside it, a return to a strategic understanding of law underlies its deployment as means of critique (‘simple’ or ‘immanent’) or object of confrontation rather than horizon of communicative exchange.     

Heteronormativity and the European Court of Human Rights

This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.     

‘I Would Prefer Not To’: Giorgio Agamben, Bartleby and the Potentiality of the Law

In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to fulfil the law, and what form of political task this would entail.     

The Sovereign Event in a Nation's Law

This article interrogates the relationship between the sovereign event and a legal decision that purports to place sovereignty beyond law. It argues that sovereignty cannot be regarded as unitary, and elaborates the process of iterability by which the sovereign event is split from the outset. This dynamic is examined through an interrogation of the non-justiciability of sovereignty in Mabo v. Queensland (No. 2)(1992). Along with the unitary conception of sovereignty, Mabo (No. 2) deployed an absolute measure for community in the form of the ‘skeletal principle’ of the doctrine of tenure. The paper argues that a conception of the political that affirms the One sovereign source of community and law instead of the original dis-position of law, nation and community repeats the original violence, and will, at best, run aground on the righteous (mis)recognition of the ‘appropriate savage’. It concludes with an indicative rethinking of community through the thought of Jean-Luc Nancy. This revised version was published online in July 2006 with corrections to the Cover Date.     

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.     

Mind The Gap

The governance phenomenon brings law back to its very ‘origin’, namely, law-making (‘Recht-Fertigung’), and reveals that law is not anchored to a specific ‘polis’ or to Hobbesian statehood, but is able to pursue different forms of ‘the common’ as long as its paradox function is fulfilled. Law recognises and develops normative standards for the creation of social structures while also leading a continuous battle against any restrictions to democracy, common wealth and justice connected to these structures. Law here acts ‘politically’ and in affinity to social movements that struggle against any form of social ‘immunisation’. This article analyses the conditions of this affinity and its consequences for the concept of ‘justice’.

Legal ethnography: Exploring the gendered nature of legal method

Beginning with the idea of law as discourse, this essay examines the ways in which legal method is gendered. Texts, such as affidavits and court forms, and local ‘mundane’ practices are part of the production and affirmation of the law as a producer of truth. A possible methodology for exploring legal method, ‘legal ethnography,’ is introduced as a means by which wemight explicate how legal method works to support and reify legal discourse, in the process silencing the voices of women. The essay also explores how legal method comes to be accepted as a ‘tool of the trade’ by lawyers, who then use it to translate the primary narrative of the client into a cause of action that is comprehensible to lawyers, judges, and other actors in the legal system. Finally, the limitations of the proposed methodology are considered.     

Madness and the Law: The Derrida/Foucault Debate Revisited

In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself.