Political Liberalism and Political Embeddedness: Understanding Politics in the Work of Chinese Criminal Defense Lawyers

This article examines the meanings of politics in everyday legal practice using the case of Chinese criminal defense lawyers. Based on 194 in‐depth interviews with criminal defense lawyers and other informants in 22 cities across China, we argue that lawyers’ everyday politics have two faces: on the one hand, lawyers potentially can challenge state power, protect citizen rights, and pursue proceduralism in their daily work; on the other hand, they often have to rely on political connections with state agencies to protect themselves and to solve problems in their legal practice. The double meanings of politics—namely, political liberalism and political embeddedness—explain the complex motivations and coping tactics that are frequently found in Chinese lawyers’ everyday work. Our data show that the Chinese criminal defense bar is differentiated along these two meanings of politics into five clusters of lawyers: progressive elites, pragmatic brokers, notable activists, grassroots activists, and routine practitioners. They also suggest that a principal manifestation of political lawyering is not merely short‐term mobilization or revolutionary struggle against arbitrary state power, but also an incremental everyday process that often involves sophisticated tactics to manage interests that often conflict.     

What happened in Korea? Rethinking Korean history 1945–1953

Abstract

The Pueblo incident was a stunning reminder of the hysteria and racism associated with the word Korea in the U.S. In spite of Vietnam and the great changes that have taken place within American society, the U.S. government and the military had little trouble in resuscitating the spectre of “brainwashing” and torture. The most diabolical cunning was attributed to the Koreans, who had legally captured the Pueblo and its crew. But as though at the touch of a switch, the American media and much of the nation again began to call for blood as they had done in the years 1950 to 1953. It would be a mistake to underestimate the success of America's campaign of vilification against the Korean people and the Korean revolutionary movement. At times the phobia reaches absurd proportions.     

Protest: tradition and change

Analyses of political development in colonial Africa have largely concentrated on the role of the educated elite in the emergence of nationalist movements. In recent years some attempt has been made to fill out this one-dimensional view through the study of early and more broadly based protest movements in various colonial territories. This paper takes as its subject matter the records of riots which occurred on the Gold Coast between 1890 and 1920. These disturbances are taken as an index of non-elite protest while an analysis of case-studies indicates their significance for political developments leading to the emergence of nationalist parties.     

Recursivity in Legal Change: Lawyers and Reforms of China's Criminal Procedure Law

This article employs a new framework for legal change, the recursivity of law, to explain why China's criminal procedure law has cycled through numerous reforms between 1979 and 2008 without improving the conditions of lawyers' criminal defense work. The authors argue that Chinese lawyers' difficulties in criminal defense have deep roots in the recursive nature of the criminal procedure reforms. In particular, those difficulties were produced by interactions of the four mechanisms of recursivity (indeterminacy of law, contradictions, diagnostic struggles, and actor mismatch) in both lawmaking and implementation. The empirical analysis shows that these mechanisms are linked in pairs and in sequence. This logic of change offers an integrated interdisciplinary approach to the enactment and implementation of law in other times, places, and areas of law.     

Shadow Writing and Participant Observation: A Study of Criminal Justice Social Work Around Sentencing

The study of decision‐making by public officials in administrative settings has been a mainstay of law and society scholarship for decades. The methodological challenges posed by this research agenda are well understood: how can socio‐legal researchers get inside the heads of legal decision‐makers in order to understand the uses of official discretion? This article describes an ethnographic technique the authors developed to help them penetrate the decision‐making practices of criminal justice social workers in writing pre‐sentence reports for the courts. This technique, called ‘shadow writing’, involved a particular form of participant observation whereby the researcher mimicked the process of report writing in parallel with the social workers. By comparing these ‘shadow reports’ with the real reports in a training‐like setting, the social workers revealed in detail the subtleties of their communicative strategies embedded in particular reports and their sensibilities about report writing more generally.     

Between policy and reality: multiculturalism, the second generation, and the third space in Britain

Despite the significant level of cultural diversity that exists in contemporary Europe as a consequence of immigration and diaspora, state policies on multiculturalism in several countries have not kept pace with the complex and dynamic processes created by these pluralising social forces and realities. This has given rise to exclusionary contexts that have led to feelings of alienation by immigrant communities. In Britain, the violent street confrontations in Bradford in 2001 and the London bombings of 2005 both epitomised, as well as were outcomes of, the British nation state’s failure to foster dialogue and a sense of inclusion among these communities. Foregrounding the extent of the grievances and frustrations prevalent in British society, these social disturbances have also contributed to renewed debates on issues of national identity, belonging, and multiculturalism. More importantly, these clashes, involving mostly the second-generation British Asian Muslim community, have brought to the fore the dissonance between assumptions of belonging underlying “state multiculturalism”, which moves to fix and stabilise identities, and those that inform the complex processes of identification and constructions of the “third space” of belonging by racialised minority communities. Focusing on Britain, this paper’s central hypothesis is that official multiculturalism has failed to take into account the fluid and heterogeneous frames in and through which second-generation British Asians ground their cultural and political identities and demands. As many of the nation states in Europe are today, like Britain, multiethnic in composition with expanding Asian communities, how successfully or not Britain modifies its integration policies with respect to the presence of minorities of immigrant origin has enormous implications not only for Europe but also for Asia and Asia–Europe relations.     

Queensland general practitioners' applications of the "mature minor" principle: the role of patient age and gender

Most Australian jurisdictions do not have legislation that stipulates an age by which a minor can make their own medical treatment decisions. Instead, they rely on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, an English common law decision that recommends individual assessments of "maturity". This study explores how medical practitioners in the State of Queensland understand and apply this legal authority when faced with a young person wishing to make a contentious medical treatment decision. Almost 200 doctors made decisions about a hypothetical patient's competence and confidentiality, and detailed their reasoning in an open-ended format. The data indicate that the vagaries of existing legal criteria allow for a range of philosophical perspectives and idiosyncratic heuristics to play a role in assessment practices, and that particular combinations of patient age and gender made these cognitive shortcuts more likely to occur. A notable proportion of such processes are not consistent with legal guidelines, and this has implications for general practitioners' vulnerability to litigation as well as young patients' treatment trajectories.     

General practitioners' competence and confidentiality determinations with a minor who requests the oral contraceptive pill

The right of minors to make medical treatment decisions is an issue that is not explicitly addressed in the legislation of most Australian jurisdictions. While recent common law decisions allow competent minors to consent to treatment, current legislation in Victoria does not provide adequate guidelines on how competence is to be measured. It is also unclear whether the duty of confidentiality is extended to competent minors. The current study explored general practitioners' competence and confidentiality decisions with a hypothetical 14-year-old patient who requests the oral contraceptive pill (OCP). Questionnaires were sent to 1,000 Victorian general practitioners, 305 of whom responded. General practitioners were asked to determine whether "Liz" was competent to request the OCP, and whether they would maintain her confidentiality. A total of 81% of respondents found the patient competent, while 91% would have maintained her confidentiality. Results indicate that the majority of general practitioners used rationales that generally did not conform to current legal principles when making competence and confidentiality determinations regarding this patient.