Pub Date : 2023-10-31DOI: 10.1017/s1744552323000265
Zainab Batul Naqvi
Abstract In this article I argue that the judicial concept of non-marriage racialises and orientalises minoritised communities and their marriages. Applying a critical postcolonial lens, I show how the development of non-marriage has been influenced by colonial racialising attitudes towards marriage. This has led to its application in racist and orientalist ways to demean and other minoritised marriage practices. My analysis of the case law exposes three patterns in the judicial discourse in this area. First, that the courts emphasise “English (Christian) marriage” and its supposed hallmarks when deciding if a ceremony is non-existent; second that judgments foreground the technical, formal aspects of the law obscuring the use of personal judicial opinions which are orientalist. Finally, the application of this concept to playacting, sham and forced marriages at the same time as legitimate minoritised marriage practices is demeaning and insulting to the already marginalised communities that practise them.
{"title":"The racialising effects of non-marriage in English Law: A critical postcolonial analysis","authors":"Zainab Batul Naqvi","doi":"10.1017/s1744552323000265","DOIUrl":"https://doi.org/10.1017/s1744552323000265","url":null,"abstract":"Abstract In this article I argue that the judicial concept of non-marriage racialises and orientalises minoritised communities and their marriages. Applying a critical postcolonial lens, I show how the development of non-marriage has been influenced by colonial racialising attitudes towards marriage. This has led to its application in racist and orientalist ways to demean and other minoritised marriage practices. My analysis of the case law exposes three patterns in the judicial discourse in this area. First, that the courts emphasise “English (Christian) marriage” and its supposed hallmarks when deciding if a ceremony is non-existent; second that judgments foreground the technical, formal aspects of the law obscuring the use of personal judicial opinions which are orientalist. Finally, the application of this concept to playacting, sham and forced marriages at the same time as legitimate minoritised marriage practices is demeaning and insulting to the already marginalised communities that practise them.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"62 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135813734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-24DOI: 10.1017/s1744552323000253
Sule Tomkinson, Mireille Paquet, Laurence Robert
Abstract Administrative tribunal judges determine rights and entitlements regarding bureaucratic decisions. In immigration appeal cases, they review negative decisions of permanent residency acquisition and family reunification. Based on an analysis of all immigration appeal decisions in Canada’s Quebec province over a period of twenty-three years, we find that tribunal judges confirm the bureaucratic decision in the vast majority of cases, noting the migrants’ inability to meet the annual income requirements, and rarely reverse the decision in favour of migrants. Documenting the marginal contribution of tribunal judges to promoting administrative justice, this article contributes to the debate on whether and how courts can advance immigrants’ rights.
{"title":"The immigrant versus the state: The marginal contribution of tribunal judges to administrative justice","authors":"Sule Tomkinson, Mireille Paquet, Laurence Robert","doi":"10.1017/s1744552323000253","DOIUrl":"https://doi.org/10.1017/s1744552323000253","url":null,"abstract":"Abstract Administrative tribunal judges determine rights and entitlements regarding bureaucratic decisions. In immigration appeal cases, they review negative decisions of permanent residency acquisition and family reunification. Based on an analysis of all immigration appeal decisions in Canada’s Quebec province over a period of twenty-three years, we find that tribunal judges confirm the bureaucratic decision in the vast majority of cases, noting the migrants’ inability to meet the annual income requirements, and rarely reverse the decision in favour of migrants. Documenting the marginal contribution of tribunal judges to promoting administrative justice, this article contributes to the debate on whether and how courts can advance immigrants’ rights.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135220446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-18DOI: 10.1017/s1744552323000241
Theresa Reinold
Abstract The international community has experimented with a variety of tools for promoting the rule of law in weak states, yet with few successes. An innovative tool is hybrid commissions not supplanting the justice system of the target state but fighting impunity from within it. In this contribution I therefore seek to identify the factors that render this novel mechanism of rule of law promotion effective, arguing that a set of factors – support from the Attorney-General, civil society and powerful donors; as well as the commission’s institutional design, its strategy, and the personality of the commissioner – will determine if the changes initiated by the hybrid lead to a deeper transformation of the host state, or if there will be a rule of law rollback as soon as the commission leaves the country.
{"title":"How to ‘make law count’: Lessons from the <i>Comisión Internacional contra la Impunidad en Guatemala</i> (CICIG) for the Effectiveness of Hybrid Governance","authors":"Theresa Reinold","doi":"10.1017/s1744552323000241","DOIUrl":"https://doi.org/10.1017/s1744552323000241","url":null,"abstract":"Abstract The international community has experimented with a variety of tools for promoting the rule of law in weak states, yet with few successes. An innovative tool is hybrid commissions not supplanting the justice system of the target state but fighting impunity from within it. In this contribution I therefore seek to identify the factors that render this novel mechanism of rule of law promotion effective, arguing that a set of factors – support from the Attorney-General, civil society and powerful donors; as well as the commission’s institutional design, its strategy, and the personality of the commissioner – will determine if the changes initiated by the hybrid lead to a deeper transformation of the host state, or if there will be a rule of law rollback as soon as the commission leaves the country.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135823445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-02DOI: 10.1017/s174455232300023x
Sarah Singh
Abstract In this article I apply Fineman’s vulnerability thesis to explore the ways in which vulnerability is constructed and mobilised in a criminal law context. Using a ‘failure-to-protect’ offence as a case study reveals contemporary constructs of vulnerability as both a problem to be solved and gendered. Constructing women as pathologically vulnerable allows the state and its institutions to downplay the situational vulnerability of women, evading responsibility for tackling VAWG. Responsibilising women to manage risks to children posed by male violence requires that women undertake ‘safety work’, rendering them vulnerable to both moral and legal sanction if not performed adequately. Replacing the autonomous subject with the relationally vulnerable subject generates new understandings of the ways entwining femininity and vulnerability shores up the (male-coded) autonomous legal subject. Moreover, reconceiving vulnerability as universal reveals the potential of the vulnerable subject for a more inclusive criminal subject who is both embedded and embodied.
{"title":"The Vulnerable (M)other and the Autonomous Legal Subject: Rethinking Vulnerability in Criminal Law","authors":"Sarah Singh","doi":"10.1017/s174455232300023x","DOIUrl":"https://doi.org/10.1017/s174455232300023x","url":null,"abstract":"Abstract In this article I apply Fineman’s vulnerability thesis to explore the ways in which vulnerability is constructed and mobilised in a criminal law context. Using a ‘failure-to-protect’ offence as a case study reveals contemporary constructs of vulnerability as both a problem to be solved and gendered. Constructing women as pathologically vulnerable allows the state and its institutions to downplay the situational vulnerability of women, evading responsibility for tackling VAWG. Responsibilising women to manage risks to children posed by male violence requires that women undertake ‘safety work’, rendering them vulnerable to both moral and legal sanction if not performed adequately. Replacing the autonomous subject with the relationally vulnerable subject generates new understandings of the ways entwining femininity and vulnerability shores up the (male-coded) autonomous legal subject. Moreover, reconceiving vulnerability as universal reveals the potential of the vulnerable subject for a more inclusive criminal subject who is both embedded and embodied.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135831057","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-27DOI: 10.1017/s1744552323000228
Jeffrey Kennedy
Abstract As law graduates wield significant influence in public life, law schools’ responsibility for cultivating students’ civic capacities and dispositions remains an important but often neglected project. Taking up this project, this article traces a thread of deliberative democratic aspirations within legal education scholarship and explores the potential of participation within law schools’ own political processes for realising these ideals. To do so, it examines law students’ experiences of an experiment with deliberative democracy’s leading institutional innovation – the deliberative mini-public – and demonstrates the ways in which participation fostered deliberative capacities, a more collective orientation, and increased confidence. Ultimately, the article illustrates the mutually reinforcing nature of civic and legal education, affirms law schools’ broader role within society and offers both theoretical and practical insights into the place of democratic innovation within the law school.
{"title":"Deliberative Experience and the Civic Aspirations of Legal Education","authors":"Jeffrey Kennedy","doi":"10.1017/s1744552323000228","DOIUrl":"https://doi.org/10.1017/s1744552323000228","url":null,"abstract":"Abstract As law graduates wield significant influence in public life, law schools’ responsibility for cultivating students’ civic capacities and dispositions remains an important but often neglected project. Taking up this project, this article traces a thread of deliberative democratic aspirations within legal education scholarship and explores the potential of participation within law schools’ own political processes for realising these ideals. To do so, it examines law students’ experiences of an experiment with deliberative democracy’s leading institutional innovation – the deliberative mini-public – and demonstrates the ways in which participation fostered deliberative capacities, a more collective orientation, and increased confidence. Ultimately, the article illustrates the mutually reinforcing nature of civic and legal education, affirms law schools’ broader role within society and offers both theoretical and practical insights into the place of democratic innovation within the law school.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135537003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-21DOI: 10.1017/s1744552323000216
John Taggart
Abstract Intermediaries are communication experts who facilitate communication between individuals with communication needs and the criminal justice system. In executing the role, intermediaries interact with police, lawyers, judges and other criminal justice professionals. But is the intermediary a professional in its own right? This article argues that a more useful question to ask is whether intermediaries engage in what Andrew Abbott terms ‘professional work’. It reveals how the role tussles for legitimate control over its work tasks through the staking of ‘jurisdictional claims’. Intermediaries do so through the performance of ‘boundary work’ which involves the construction and negotiating of boundaries that mediate interaction. This article presents findings from thirty-one in-depth, semi-structured interviews with intermediaries and judges in England and Wales and Northern Ireland. It concludes that the future of the intermediary role and its work depends largely on the type of ‘jurisdictional settlement’ which its practitioners seek to carve out.
{"title":"Intermediaries in the criminal justice system: professional work, jurisdictions, and boundary work","authors":"John Taggart","doi":"10.1017/s1744552323000216","DOIUrl":"https://doi.org/10.1017/s1744552323000216","url":null,"abstract":"Abstract Intermediaries are communication experts who facilitate communication between individuals with communication needs and the criminal justice system. In executing the role, intermediaries interact with police, lawyers, judges and other criminal justice professionals. But is the intermediary a professional in its own right? This article argues that a more useful question to ask is whether intermediaries engage in what Andrew Abbott terms ‘professional work’. It reveals how the role tussles for legitimate control over its work tasks through the staking of ‘jurisdictional claims’. Intermediaries do so through the performance of ‘boundary work’ which involves the construction and negotiating of boundaries that mediate interaction. This article presents findings from thirty-one in-depth, semi-structured interviews with intermediaries and judges in England and Wales and Northern Ireland. It concludes that the future of the intermediary role and its work depends largely on the type of ‘jurisdictional settlement’ which its practitioners seek to carve out.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136236063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-25DOI: 10.1017/s1744552323000204
J. Kennedy
{"title":"Liberal Democratic Education: A Paradigm in Crisis Edited by Julian Culp, Johannes Drerup, Isolde de Groot, Anders Schinkel and Douglas Yacek, Paderborn: Brill mentis, 2022. 182 pp. ISBN: 978-3-95743-254-4 (paperback)","authors":"J. Kennedy","doi":"10.1017/s1744552323000204","DOIUrl":"https://doi.org/10.1017/s1744552323000204","url":null,"abstract":"","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46204063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-04DOI: 10.1017/s1744552323000198
Kathryn McNeilly
{"title":"Alle Thyng Hath Tyme: Time and Medieval Life By Gillian Adler and Paul Strohm: London/Chicago: Reaktion Books/Chicago University Press, 2023, 248 pp. ISBN 9781789146790 (hardback) £16.95","authors":"Kathryn McNeilly","doi":"10.1017/s1744552323000198","DOIUrl":"https://doi.org/10.1017/s1744552323000198","url":null,"abstract":"","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43746557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-10DOI: 10.1017/s1744552323000186
Nienke Doornbos
Aiming to ensure a responsive and socially relevant approach to court cases, judiciaries have initiated innovative projects, such as problem-solving community courts, over the last three decades. In this socio-legal case study, I analyse the legal transplantation of a community court from the US to the Netherlands. Drawing on eighteen months of ethnographic field work (interviews, observations and file research), the study shows that, during the transplantation process, the goal of serving the neighbourhood receded into the background, while the goal of solving the problems of defendants gained even more prominence than it already had at the inception of the court. The conditions that have played a role in the path that the court has carved out to legitimise its activities differ from its American counterparts. The adjustments signify important internal legal cultural differences and illustrates how the implementation process is formed by opinions about the proper role of judges.
{"title":"Community courts as legal transplants: a socio-legal case study from the Netherlands","authors":"Nienke Doornbos","doi":"10.1017/s1744552323000186","DOIUrl":"https://doi.org/10.1017/s1744552323000186","url":null,"abstract":"\u0000 Aiming to ensure a responsive and socially relevant approach to court cases, judiciaries have initiated innovative projects, such as problem-solving community courts, over the last three decades. In this socio-legal case study, I analyse the legal transplantation of a community court from the US to the Netherlands. Drawing on eighteen months of ethnographic field work (interviews, observations and file research), the study shows that, during the transplantation process, the goal of serving the neighbourhood receded into the background, while the goal of solving the problems of defendants gained even more prominence than it already had at the inception of the court. The conditions that have played a role in the path that the court has carved out to legitimise its activities differ from its American counterparts. The adjustments signify important internal legal cultural differences and illustrates how the implementation process is formed by opinions about the proper role of judges.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42247899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-20DOI: 10.1017/s1744552323000174
Magdalena Furgalska
The Independent Review of the Mental Health Act 1983 found that people’s experiences and self-knowledge were mislabelled as a ‘lack of insight’. Insight, a psychiatric concept, is defined as an ability to recognise one’s mental illness, awareness of one’s symptoms and compliance with treatment. Across different jurisdictions, legal scholars have raised concerns about the influence of insight on legal provisions for psychiatric care and mental capacity assessments, given its prevalent use in psychiatry and its absence from statutory criteria. However, outside of these findings, little is known about people’s lived experiences of ‘insight’ and the law. This article draws on narrative and photo-elicitation interviews with psychiatric survivors to argue that insight is an extra-legislative proxy for regulating involuntary detention and other coercion masked as consent. Finally, this article draws on the capabilities approach to deliver a justice argument for creating real opportunities to provide informed consent in mental health settings.
{"title":"‘Informed consent is a bit of a joke to me’: lived experiences of insight, coercion, and capabilities in mental health care settings","authors":"Magdalena Furgalska","doi":"10.1017/s1744552323000174","DOIUrl":"https://doi.org/10.1017/s1744552323000174","url":null,"abstract":"\u0000 The Independent Review of the Mental Health Act 1983 found that people’s experiences and self-knowledge were mislabelled as a ‘lack of insight’. Insight, a psychiatric concept, is defined as an ability to recognise one’s mental illness, awareness of one’s symptoms and compliance with treatment. Across different jurisdictions, legal scholars have raised concerns about the influence of insight on legal provisions for psychiatric care and mental capacity assessments, given its prevalent use in psychiatry and its absence from statutory criteria. However, outside of these findings, little is known about people’s lived experiences of ‘insight’ and the law. This article draws on narrative and photo-elicitation interviews with psychiatric survivors to argue that insight is an extra-legislative proxy for regulating involuntary detention and other coercion masked as consent. Finally, this article draws on the capabilities approach to deliver a justice argument for creating real opportunities to provide informed consent in mental health settings.","PeriodicalId":45455,"journal":{"name":"International Journal of Law in Context","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48864619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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