Family as a commonsensical device and its place in law★

This paper is in five main parts. The first introduces membership categorisation analysis (MCA) as originally outlined by Harvey Sacks and, here, as a possible extension of semiotic analysis. MCA is broadly a contribution to discourse analysis in general and to conversation analysis in particular. The approach concerns membership categorisation devices such as family, the categories they can contain such as ‘mother’, ‘father’, ‘child’, etc. and the category-bound activities or predicates commonsensically attachable to such categories. The second section looks at the legal background to family law in Australia and shows that its basic assumption is, by and large and with some exceptions, to work from categories (what people are) rather than from predicates (what they in fact do). In the third section, we examine a particular Family Court case (Re Patrick) which highlights the contestation between these approaches. Following this, we examine some recent shifts in the Australian states and territories towards more predicationally-based legislation and argue for their coherence in contemporary society and its increasingly flexible conceptions of what may constitute a family. Finally, we return to the question of semiotics generally and make a case for our MCA-based distinctions as contributions to a possible semiotics of law. In the beginning was the deed – Goethe     

Sources of Mass Partisanship in Brazil

Scholars believe that mass partisanship in Brazil is comparatively weak. Using evidence from a 2002 national survey, however, this study finds that the aggregate level of party identification actually falls only slightly below the world average and exceeds levels found in many newer democracies. Yet this finding is misleading, because the distribution of partisanship is skewed toward only one party, the PT. This trend results from a combination of party organization and recruitment efforts and individual motivation to acquire knowledge and become involved in politicized social networks. Partisanship for other parties, however, derives substantially from personalistic attachments to party leaders. This finding has implications for current debates about the status of parties in Brazil. Also important is the impact of the 2005 corruption scandal implicating the PT and President Lula da Silva's administration.     

Wrongdoing Without Motives: Why Victor Tadros is Wrong About Wrongdoing and Motivation

A central principle in Victor Tadros’s book, The Ends of Harm, is the means principle (MP) which holds that it is, with limited exceptions, impermissible to use another as a means. Tadros defends a subjective, intention-focused interpretation of the MP, according to which to use another as a means is to form plans or intentions in which the other serves as a tool for advancing one’s ends. My thesis here is that Tadros’s defense of the subjective interpretation of the MP is unsuccessful. To make that case I argue for three claims. First, the subjective interpretation has implausibly harsh implications in certain cases, implying that certain people would be guilty of much more serious wrongs than they can plausibly be thought to have committed. Second, the cases that Tadros offers to argue that the subjective interpretation of the MP must be right are better interpreted as showing that it is impermissible to act on an illicit intention – one that would direct an agent under certain, foreseeable circumstances to perform impermissible acts – than that it is impermissible to act for an illicit reason. Third, while Tadros correctly rejects the objective, causal-role-focused interpretation of the MP – according to which to use another as a means is for the other to play the causal role of means to the good which might be offered to justify the act one performs – there is another way of defending the significance of causal roles, one that has implications that track those of the MP fairly closely. I argue elsewhere at length for this other principle, which I call the Restricting Claims Principle. Here I simply sketch the basic idea in a way sufficient to show that one can escape the dilemma that the MP faces without grabbing either the subjective or the objective horn, and without moving into a consequentialist world in which it is permissible to punish the innocent for the sake of the general welfare.     

Reviews

Anders Aslund & Richard Layard, eds, Changing the Economic System. London, Pinter Publishers: 1993, xviii + 237pp., £35.00.

János Mátyás Kova?s & Marton Tardos, eds, Reform and Transformation in Eastern Europe: Soviet‐type Economics on the Threshold of Change. London: Routledge, 1992, xix + 345 pp.

Peter J. Boettke, Why Perestroika Failed: The Politics and Economics of Socialist Transition. London: Routledge, 1993, viii + 199 pp., £35.00

John Flemming & J. M. C. Rollo, eds, Trade, Payments and Adjustment in Central and Eastern Europe. London: Royal Institute of International Affairs and EBRD, 1992, vii + 242 pp., £11.95 p/b.

Zoltan J. Acs & David B. Audretsch, eds, Small Firms and Entrepreneurship. An East‐West Perspective. Cambridge: CUP, 1993, 240 pp., £30.00, $49.95.

Alex Pravda, ed., The End of the Outer Empire: Soviet‐East European Relations in Transition, 1985–90. London: The Royal Institute of International Affairs, 1992, x + 238 pp., £35.00 h/b

Leonid Gozman & Alexander Etkind, The Psychology of Post‐Totalitarianism in Russia Trans. Roger Clarke. London: Centre for Research into Communist Economies, 1992, 121 pp., p/b £6.50.

F. J. M. Feldbrugge, ed., The Emancipation of Soviet Law. Dordrecht, Boston, London: Martinus Nijhoff Publishers, 1992, xvii + 272 pp., £76.00. $146.00

John Massey Stewart, ed. The Soviet Environment: Problems, Policies and Politics. Cambridge: CUP, 1992, xv + 246 pp., £40.00, $64.95.

I. Kon & J. Riordan, eds, Sex and Russian Society. Bloomington, IN: Indiana University Press, 1993, viii + 168 pp., £35.00 h/b, £12.95 p/b.

Kenneth C. Farmer, The Soviet Administrative Elite. New York: Praeger, 1992, xii + 296 pp., £39.95.

Robert Service, ed. Society and Politics in the Russian Revolution. New York: St Martin's Press, Basingstoke and London: Macmillan, 1992. Published in association with the School of Slavonic and East European Studies, University of London, in their series Studies in Russia and East Europe. 199 pp., + index. £40.00 h/b, £14.99 p/b.     

Feminizing Human Rights Adjudication: Feminist Method and the Proportionality Principle

Proportionality is one of the most important adjudicatory tools, in human rights decision-making, primarily employed to balance rights and interests. Despite this there is very little feminist analysis of its use by the courts. This article discusses the doctrine of proportionality and considers its amenability to feminist legal methods. It relies on theories of deliberative democracy to argue that the proportionality test can be applied in a manner that facilitates a more “interactive universalism”, allows for greater participation in decision-making and enables the courts to be more attentive to the disadvantaged. The commonalities between proportionality and feminist theory are examined, and its contribution to developing and reconstituting a more relational and contextual concept of rights is explored.