Critical Legal Theory

Un caffè da Starbucks. Intersezionalità e disgregazione del soggetto nella sfida al diritto antidiscriminatorio

by Dolores Morondo Taramundi

Published in Ragion Pratica 37, 2011, pp. 365-84.

The article examines those developments in the field of feminist theory that have dealt with the (disappearance of... more The article examines those developments in the field of feminist theory that have dealt with the (disappearance of the) notion of the subject of feminism, both as collective agent and as subject matter. In particular, it aims at examining how these developments might influence or relate to critical reformulations of the concept of discrimination and, consequently, of main topics in antidiscrimination law. The article starts by assessing the issue of intersectionality, that might be considered a common concern of both contemporary feminist theory and the more technical feminist legal theory. The original concern about the exclusion produced by the interaction of more grounds of discrimination (typically sex and race, or sex and class) has, at some point, been crossed by post-modern and post-structuralist criticism of general and abstract categories, such as subject, gender, women. The article examines, then, the criticism to the fragmentation of the subject produced by these theories and the alternatives proposed in the name of the subject of feminism and its project of emancipation. In the last two paragraphs, the relations of these developments with critical feminist reformulations of antidiscrimination law are explored.

Keywords: intersectionality, feminist theory, subjectivity, feminist legal theory, antidiscrimination law.

C. MacKinnon's "Women’s lives – Men’s laws"

by Dolores Morondo Taramundi

Published in Diritto e Questioni Pubbliche - rivista online 7, 2007

http://www.dirittoequestionipubbliche.org/page/2007_n7/2007-DQ_c-rece-03_D_Morondo_x_MacKinnon.pdf

Diritti e giustizia sociale nella giurisprudenza europea 2010

by Dolores Morondo Taramundi

Published in A. Cantaro (a cura di) Giustizia e diritto nella scienza giuridica contemporanea, Giappicchelli, Torino 2011, pp. 236-47.

Sull'indeterminatezza del concetto di dignità nella Carta di Nizza 2006

by Dolores Morondo Taramundi

Natural Law Internalism

by Thom Brooks

Published in Thom Brooks (ed.), Hegel's Philosophy of Right. Oxford: Blackwell, 2012, pp. 167-79.

Keywords:

natural law internalism;theories of natural law externalism;Hegel's natural law... more Keywords:

natural law internalism;theories of natural law externalism;Hegel's natural law internalism;classical natural law;natural law of standard of justice, on reason;“true law” universally and eternally true;modern natural law theories;Hegel's understanding of natural law;Hegel's legal philosophy, natural law;novel reinvention of natural law

Summary
This chapter contains sections titled:

Introduction

Classical Natural Law

Modern Natural Law

Hegel's Natural Law Internalism

Natural Law Internalism or Externalism?

Conclusion

Notes

References

"L'incertitude comme menace"

by Claude-Olivier Doron

Draft to be published in Deprins, D. (ed.), Parier sur l'incertitude, Bruxelles, Bruylant, 2012

Through an analysis focusing on penal policies and how they deal with "uncertainty", this article wants to... more Through an analysis focusing on penal policies and how they deal with "uncertainty", this article wants to distinguish between different ways of perceiving and governing uncertainty, what we call different "rationalities" dealing with uncertainty.

Critique and Crisis Stream for CLC12

by Can Öztaş

Reasons to Ban? The Anti-Burqa Movement in Western Europe

by Prakash Shah

This MMG Working Paper 12-09 (Göttingen: Max Planck Institute for the Study of Religious and Ethnic Diversity) is Co-authored with Ralph Grillo, Emeritus Professor of Social Anthropology at the University of Sussex. Publications include: Pluralism and the Politics of Difference: State, Culture, and Ethnicity in Comparative Perspective, Clarendon Press (1998); editor of The Family in Question: Immigrant and Ethnic Minorities in Multicultural Europe, Amsterdam University Press (2008); co-editor of Legal Practice and Cultural Diversity, Ashgate (2009). Ralph Grillo is a member of the Advisory Group of the Department of Socio-Cultural Diversity of the Max Planck Institute for the Study of Religious and Ethnic Diversity at Göttingen.

During the 2000s, the dress of Muslim women in Muslim-minority countries in Europe and elsewhere became increasingly a... more During the 2000s, the dress of Muslim women in Muslim-minority countries in Europe and elsewhere became increasingly a matter for debate and, in several instances, the subject of legislation. In France, a ban on the wearing of the headscarf
in places of education (2004) was followed in 2010 by the law criminalizing the wearing of the face-veil (usually but inaccurately referred to as the ‘burqa’) in public space. Other countries have enacted similar legislation. Muslim women’s dress has historically been a controversial matter in Muslim-majority countries, too, most recently in North Africa following the Arab Spring, but the present paper concentrates on the movement against face-veiling in Western Europe, documenting what has been happening and analysing the arguments proposed to justify criminalizing this type of garment. In doing so, the paper explores the implications for our understanding of contemporary (ethnically and religiously) diverse societies and their governance.
Is anti-veiling legislation a protest against what is interpreted as an Islamic practice unacceptable in liberal democracies, a sign of a wider discomfort with non-European otherness, or an expression of an underlying racism articulated in cultural terms?
Whatever the reason, is criminalization an appropriate response? An Appendix notes some topics for further research.

Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia

by Simon Springer

Springer, S. Forthcoming. Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia. Journal of Agrarian Change.

The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of... more The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of landholding, which are entrenched in notions of community consensus and existing occupation. The discrepancy between such orally recognized antecedents and the written word of law have been at the heart of the recent wave of dispossessions that have swept across the country. Contra the standard critique that corruption has set the tone, this paper argues that evictions in Cambodia are often literally underwritten by the articles of law. Whereas ‘possession’ is a well-understood and accepted concept in Cambodia, a cultural basis rooted in what James C. Scott refers to as ‘orality’, coupled with a long history of subsistence agriculture, semi-nomadic lifestyles, barter economies, and–until recently–widespread land availability have all ensured that notions of ‘property’ are vague among the country’s majority rural poor. In drawing a firm distinction between possessions and property, where the former is premised upon actual use and the latter is embedded in exploitation, this article examines how proprietorship is inextricably bound to the violence of law.

extrajuridical killing and risk

by Oliver Kessler

Laying down the law: Teachers’ use of rules.

by Gregory Bornmann

On JALT 95: Curriculum and Evaluation. (Proceedings of the JALT International Conference), Nagoya, Japan, November 1995

This paper offers an analysis of the way rules function in the classroom by applying insights generated by recent... more This paper offers an analysis of the way rules function in the classroom by applying insights generated by recent debates in legal theory. Members of the Critical Legal Studies (CLS) movement have been particularly adept at identifying the logical contradictions which are pervasive in legal discourse. These contradictions—between formal rules and ad hoc standards; between subjective values and objective facts; between intentionalism and determinism—render all legal disputes problematic. CLS theorists have also devoted a great deal of effort to demonstrating that law and society are interpenetrating, and thus inseparable. For this reason, the classroom as a basic social institution offers especially fertile ground for legalistic analysis.

Agamben's Sovereign Legalization of Foucault

by Tom Frost

Oxford J Legal Studies (2010) 30 (3): 545-577

This article compares Michel Foucault’s way of thinking about sovereignty and law within biopower to the reading given... more This article compares Michel Foucault’s way of thinking about sovereignty and law within biopower to the reading given to Foucault’s work and its development by the Italian philosopher Giorgio Agamben. It is argued that Agamben supports the expulsion thesis in order to generate critical distance for his own re-imagining of biopower. The expulsion thesis is a controversial account of the position of law in Foucault’s work that does not reflect Foucault’s own nuanced views. A post-structuralist account of Foucault and law is then used to show that Agamben’s conception of law is actually much more similar to Foucault’s than Agamben at first claimed. The real thrust of Agamben’s work is found in his connecting political philosophy to ontology. Agamben’s claim that the questioning of law is a fundamental ontological issue calls into question the very concept of subjectivity. This leads Agamben to embark upon a radical reconceptualization of sovereignty in relation to the subject and the law. Despite opening new areas of inquiry in relation to Being and law, Agamben’s attempt to move beyond Foucault’s work is called into question, with particular emphasis upon whether Agamben’s work is truly ontological.

Violent accumulation: a postanarchist critique of property, dispossession, and the state of exception in neoliberalizing Cambodia

by Simon Springer

Springer, S. Forthcoming. Violent accumulation: a postanarchist critique of property, dispossession, and the state of exception in neoliberalizing Cambodia. Annals of the Association of American Geographers.

Employing a poststructuralist-meets-anarchist stance that advances conceptual insight into the nature of sovereign... more Employing a poststructuralist-meets-anarchist stance that advances conceptual insight into the nature of sovereign power, this article examines the dialectics of capitalism/primitive accumulation, civilization/savagery, and law/violence, which are argued to exist in a mutually reinforcing 'trilateral of logics'. In deciphering this triadic system, this article offers a radical (re)appraisal of capitalism, its legal process, and its civilizing effects, which together serve to mask the originary and ongoing violences of primitive accumulation and the property system. Such obfuscation suggests that wherever the trilateral of logics is enacted, so too is the state of exception called into being, exposing us all as potential homo sacer (life that does not count). Proceeding as a diagnostic assessment of sovereign power, where although signposted by Cambodia's contemporary experiences of violent land conflict, this article is not intended as a fine-grained empirical analysis. Instead, it forwards a theoretical dialogue where Cambodia's neoliberalizing processes offer a window on how sovereign power configures itself around the three discursive-institutional constellations (i.e., capitalism, civilization, and law) that form the trilateral of logics. Rather than formulating prescriptive solutions, the intention here is critique, where in particular it is argued that the preoccupation with strengthening Cambodia's legal system should not be read as a panacea for contemporary social ills, but as an imposition that serves to legitimize the violences of property.

A Critical Methodology of Globalization: Politics of the 21st Century?

by Vidya Kumar

A Proleptic Approach to Postcolonial Legal Studies? A Brief Look at the Relationship Between Legal Theory and Intellectual History'

by Vidya Kumar

The Other Side of COIN: The Combatant/civilian Distinction, Terrorism and the Structure of War Law

by Heidi Matthews

Spirited Away: Asylum Law and the Institutional Violence of Legal Discourse

by James Parker

This paper takes the case file of a Sri Lankan asylum seeker found in the archives at the Federal Court of Montreal in... more This paper takes the case file of a Sri Lankan asylum seeker found in the archives at the Federal Court of Montreal in March 2007 and submits it to a textual analysis. Starting with the "facts" as stated in the Judicial Review decision, the analysis works backwards through the rest of the file, uncovering the various discursive processes by which those "facts" were eventually arrived at. The violence done to this person's story by the legal institution is not only patent but, it is claimed, representative. Legal discourse, and not just in the context of asylum law, is more motivated, more political and more dehumanizing than we like to admit.

The Soundscape of Justice

by James Parker

GRIFFITH LAW REVIEW (2011) VOL 20 NO 4, 962-993

Sound is a fact of life. But it is not a fact which contemporary legal thought has made any particular efforts to... more Sound is a fact of life. But it is not a fact which contemporary legal thought has made any particular efforts to acknowledge, let alone to interrogate in any depth. As a community of jurists, we have become deaf to law and to the problem of the acoustic. We must begin to take responsibility, therefore, for a dimension of legal experience which is no less real or significant simply because we barely attend to it. We need to begin to imagine a specifically acoustic jurisprudence. This article is a first step in that direction. By means of a close study of the ‘soundscape of justice’ at the International Criminal Tribunal for Rwanda, and specifically in relation to the case of Simon Bikindi, who was accused by the Tribunal of inciting genocide with his songs, it aims to convince readers that the question of sound is worth attending to, that it bears an important relation to questions of justice and that it is very much capable of influencing institutional outcomes. Sound, after all, is a condition of the administration of justice, an inalienable part of our legal worlds.

OF ENCHANTMENT: THE PASSING OF THE ORDEALS AND THE RISE OF THE JURY TRIAL

by Trisha Olson

This link should work now, I goofed previously. Any comments or criticism is truly welcome for learning from others is a joy.

Review Essay - Homo Juridicus: On the Anthropological Function of the Law

by Robert Knox

Published in Historical Materialism Volume 17, Number 2, 2009 , pp. 286-299.

In Homo Juridicus, Alain Supiot argues that law has an 'anthropological' function - constituting people as rational... more In Homo Juridicus, Alain Supiot argues that law has an 'anthropological' function - constituting people as rational beings by linking together their biological and symbolic dimensions. The law also serves a 'dogmatic function', embodying Western values and serving as a bar to totalitarian scientism and tempering the excesses of technology in the workplace. However, the anthropological function of the law has been undermined by the advance of science and economics and widespread privatisation, contractualisation and deregulation. This article contests Supiot's claims, especially as regards Marxism, counterposing his position to that of Bolshevik legal theorist Evgeny Pashukanis. Pashukanis's insights into the relationship between law and capitalism are used to re-frame Supiot's argument and to undermine his contention that globalisation is inimical to law. Pashukanis is also invoked to contest the claims that the anthropological function of the law is the only alternative to totalitarianism and that law serves to 'humanise' technology.