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Silverio - Affirmative Action and the Debabe on Legal Classification of Racial Identification in Brazil
Starting from two manifestos, one contrary and the other favorable, to the implementation of affirmative actions, and some other arguments present in the debate, this article briefly analyzes the ideology of miscigenation, the legal/official classifications and the racial identification through the contemporary resignification of the category black, while a category that can give access to a new interpretation of the nation in the different forms of insertion of the ethnic-racial groups in contemporary Brazil. The argument is that the black movement, from the 1980’s onwards, innovated social struggle in the country through a descentralized, not univocal, collective action. Such action, characteristic of complex contemporary societies, began to incorporate a new agenda marked by transnational problems and themes, especially those related to ethnic-racial differences, like gender, identity, and democracy.
Pierre Guibentif: Evolution Of Theory: The Production Of Luhmann’s Work In A Comparative Approach (2135)
This paper presents some results of a comparative analysis of the theoretical work of Foucault, Luhmann, Habermas, and Bourdieu, and puts forward an interpretation and an assessment of Luhmann’s work based on this comparison. It focuses on theoretical evolution. First, the comparative approach is justified and its methodology briefly explained. Secondly, a pattern of evolution is outlined, that applies to the four authors analysed. Thirdly, Luhmann’s evolution is revisited on the basis of this pattern and the specificity of that evolution is tentatively explained by the peculiar way Luhmann has to produce his papers, on the basis of notes stored in his Zettelkästen. The last section discusses some practical conclusions – concerning the designing of training programmes, and in the organisation of research bodies – that may be drawn from this comparison of social theories’ evolution.
Rosemary Hunter: What (or Who) is a Feminist Judge? (1407)
Many of the expectations and aspirations about the ‘difference’ that women judges would make have proved unrealistic, given the inevitable diversity and often conservatism of women appointed as judges. But we might reasonably expect feminist judges to ‘make a difference’. This paper focuses on feminist judges, and seeks to tease out in some detail both (descriptively) who counts as a feminist judge and what it is that feminist judges do, and (normatively) what it is that we might reasonably expect of feminist judges, in light of the institutional norms and constraints within which they must operate.
Pamela Corley, Amy Steigerwalt & Artemus Ward: The Chief Justice of the United States - Uniter or Divider? (1132)
Chief Justice John Roberts made unanimity and collegiality a priority when he assumed office at the start of the 2005 Term of the United States Supreme Court. Conventional wisdom says that the more unanimous a decision is, the more legitimacy it will have with future justices, lower courts, elites, and the public at large. During Chief Justice Roberts’ first Term, the Court issued more unanimous opinions than at any other time in recent history (53.3%). How did Chief Justice Roberts achieve this new-found consensus? Did the Supreme Court take on cases during the 2005 term that were more likely to lend themselves to unanimous decisions? Or did Chief Justice Roberts successfully use his role as Chief to encourage and obtain consensus? We address these two questions herein by examining all of the cases decided by the Supreme Court during Chief Justices Warren, Burger, Rehnquist and Roberts’ first terms in order to assess both what types of cases are more likely to result in unanimous opinions and whether Chief Justice Roberts indeed was able to utilize his personal management skills to achieve more consensus than recent past Chief Justices. We find overall that “easy” cases are more likely to be decided unanimously, and that Chief Justice Roberts has indeed used his leadership skills to gain a new level of consensus in the modern era.
Jacqueline Gehring: Resistance or Responsiveness? Explaining State Responses to the European Union’s Racial Equality Directive (4416)
This paper argues that variation in the institution of citizenship best explains the variation among states in their implementation of the European Union's racial equality directive.
Cindy L. Baldassi: Embryo Donation & the Concept of Adoption: Women’s Perspectives? (4112)
A review of embryo donation, the concept of adoption and gendered ideas about genes
Fiona Raitt: Children, Participation and the Judicial Imagination (3110)
In this paper I outline the main advantages of judges speaking directly to children in certain family cases. I draw on the findings of an empirical study I conducted recently with judges and sheriffs in Scotland, where such conversations between judges and children are quite common. I argue, perhaps controversially, that the greater involvement of judges may hold the key to enhancing children’s rights of participation in family proceedings.
Luciana Gross Cunha: Judicial Administration in Brazil: Dissemination of Information and Transparency (1304)
The reform of the justice system has been integrated into the Brazilian state’s institutional reform agenda since the beginning of the 1990’. In fact, the administration of the judicial system’s institutions is one of the focal points of such agenda. Therefore, questions pertaining to the types of demands received by the judicial system’s institutions, the services they provide, the form in which they provide such services, the time and costs involved become essential questions in order to understand the way the judicial institutions are administered. However, the access to such data, which will make possible an evaluation of these institutions’ performance as public service providers, will depend on the existence of an information production policy and a commitment to transparency. The paper tries to verify the degree of transparency in the Brazilian judicial system’s institutions by identifying the existing information production policies and by observing the handling of the information produced and the use of such information in the judicial administration and in the planning for the future.
David Nelken:using the concept of legal culture ( 2314)
Discusses the utility of the concept of legal culture using as a case study the problem of court delays in Italy
Suzuka Yoshioka:Seeking Legal Advice in Rural Areas of Japan(3107)
This paper is based on my research about how disputes are handled in a so-called “closer-knit community.” Offices of lawyers are generally located only in towns and are, thus, not always accessible to members of the rural populace who may need legal services. The need for legal services exists not only in big cities but in rural areas as well, however. People in rural areas are at a disadvantage because of the lack of a number of public services such as public transport and medical care, and, in particular, legal advice. How do they resolve such problems? How do they seek legal advice? I discuss these matters based on my ethnographic study, conducted in an island community of Okinawa since 2003, based on data pertaining to the remarkable patterns of seeking legal advice.
Andrea Birdsall: Judicial Intervention Coming of Age? The Creation of the International Criminal Court (2420)
This paper analyses the creation of the International Criminal Court (ICC) as the latest attempt to institutionalise the enforcement of international human rights laws. It also explores the US opposition to the Court. The analysis is primarily based on the English School of IR and its central focus on the conflict between order and justice. The creation of the ICC revealed this conflict in a concrete way: states’ sovereign right to exercise national jurisdiction was challenged in favour of creating an international judicial mechanism. The ICC aims to combine order and justice with the goal of permanently incorporating enforcement of justice norms into the international order. A number of innovations and compromises were incorporated into the Statute to arrive at an agreement acceptable to a large number of states. However, the Court is not accepted by all states: the US actively opposes the ICC and has launched a number of counter-attacks aimed at undermining the effective functioning of the Court. This paper starts with an outline of the background to the ICC’s creation and a discussion of the main issues arising from the negotiations, which were mainly based on concerns for state sovereignty. The paper briefly analyses US opposition to the Court which is based on concerns for maintaining the existing international order in which the US has a unique and predominant position. This paper also examines whether long-term US opposition has the potential to seriously hamper the ICC’s contribution towards the creation of a more just order.
Isabella Quadrelli: Fathers' Identity after Divorce (1113)
Drawing from the results of a recently concluded research project on men and women’s post divorce experience, I will focus my attention on the construction of fatherhood identity after divorce and consider how the law is used to sustain such construction. Data are based on qualitative interviews with divorced men and women, lawyers and judges. The interviewed fathers contructed their post-divorce fatherhood identity in a complementary way with respect to a model of motherhood which imply the centrality of the mother in the bringing up of children and the pre-eminence of motherhood identity for women. As a consequence, it is based on a fatherhood role defined as residual and on a separation of functions and activities based on gender. This identity construction is typical of fathers who were involved in their children’s lives and visited them weekly. A recent legal reform in Italy, which introduced joint custody, broadened out the opportunities for direct negotiation between ex-spouses on matters concerning children’s living arrangement, visitation and maintenance. Divorced fathers’ negotiation strategies tend to reproduce the traditional gender structure and, in many cases, to nourish the conflict with the former wife in order to sustain their identity construction, thus impeding any possibility of change in gender relationships.
Stefan Larsson and Karsten Åström: Spatial Planning and Sociology of Law - Sustainable development issues in constructing infrastructure for the third generation mobile telephone system in Sweden (2320)
The infrastructure for the third generation of mobile telephony, UMTS, is under construction in Sweden. Within three years four operators were to build competing systems to cover 99,98 % of the population. The case of the 3G infrastructure illustrates how sustainability issues are handled in planning and environmental management, with conflicting goals between institutional levels and contradictory legislation. At the national level economic and technological optimism and regional policy is in conflict with environmental and sustainability goals. No comprehensive assessment was made of the entire system; the infrastructure is assessed through one permit for each mast, at the local level, giving the administrative system an extreme challenge, and giving unexpected environmental and social outcomes as a result from the lack of comprehensive assessment. Based on surveys of all local planning authorities, a regional sample of permit processes and examination of legal cases the paper examines the outcomes of the fragmented assessment of the local permit process level, from a sustainability perspective. What are the emerging effects and conflicts? The role of law in central planning with local outcomes in the case of regulating and controlling spatial planning in the case of 3G, will be analysed in this paper.
David Restrepo: Human Rights and ethnic identity in a sociological perspective: The case of the urban indigenous population in Colombia (1313)
This article is a short progress of my Master´s tesina at the Onati International Institute for the Sociology of Law. It presents a short description of two main indigenous communities in the department of Antioquia- northwest Colombia- and its Capital Medellin. The current trends of these groups concerning, identity, community, terriotory etc. are presented in order to propose an analysis of the evolution of the indigenous movements but also the conflicts between them. The Urban Indigenous Cabildo in Medellin represents almost a postmodern indigenous movement since it doesnt follow the paradygm Land-selfgovernment-autodetermination, and therefore presents new challenges to the traditional indigenous movements that have somehow led the struggle.
Åsa Gunnarsson: Gender Equality and the Diversity of Rights and Obligations in Swedish Social Citizenship (4538)
The gender perspective adopted in the paper concerns both the politics of sex equality between men and women, and the legal constructions of gender relations. Formally, social participation in the welfare state, implemented in terms of equal, individual eligibility for social entitlements and individual tax obligations, seems to go hand in hand with equal opportunities. Welfare regime provisions governing the distribution of social rights and tax obligations are mainly linked to individuals and there is also a strong state involvement in the care of children. Nevertheless, in times of budget cuts in expenditure the distributive principles in what can be defined as a normative Swedish model of social citizenship have been put to the test. One important outcome, and a point of departure for this essay, is that a large number of women have suffered disproportionately from cutbacks in public welfare provision. This is probably a symptom of a gendered dimension to social power within the legal structures that regulate the right to receive social welfare and the obligations to participate in generating public welfare. One frame of reference for scholarly analysis is that a normative model of individual rights and obligations creates an imaginary concept that all citizens are equal under a neutral law. Such a uniform approach to social citizenship is incapable of identifying those legal structures in which the patterns of social power reside, and which reproduce sex inequalities between men and women together with stereotyped gender constructions. In contrast, taking a gender perspective on welfare-state regulations highlights the diversity of possible legal strategies for achieving sex equality drawn from social, economic and political contexts. The aim of this paper is to explore, from a Swedish perspective, why a transformed conception of social citizenship is needed in order to achieve a more inclusive social welfare regime from a gender perspective.
Brun-Otto Bryde: Constitutional Law In "Old" and "New" Law and Development
Paper given at the Plenary Session of the International Conference "Law and Society in the 21st Century", Humboldt-Universität zu Berlin, 25-28 July 2007. Brun-Otto Bryde is Justice at the Federal German Constitutional Court (Karlsruhe)
Cinnamon Carlarne: Notes From A Climate Change Pressure-Cooker: Local, State And Civil Society Attempts At Transformation Meet National Resistance In The USA (4422)
Global climate change poses one of the most pressing environmental, economic, and social problems of the 21st Century. The USA bears a disproportionate burden for contributing to global climate change and has the capacity – if not the will – to be a world leader in combating climate change. Local, state and civil society efforts to transform climate change policy-making in the USA, however, have met with persistent resistance at the federal level, spurring a new era in American environmental policy. While the federal government was once the leader in environmental policy-making, it is now – at times – the laggard. Meanwhile, sub-federal actors find increasingly inspired ways to push for more progressive climate change policies. Much has been written about sub-federal efforts to adopt climate change policies, but this is just the tip of the iceberg. From adopting local policies, to employing common law and tort-based litigation, to using existing federal environmental laws, to invoking the jurisdiction of international institutions, civil society is utilizing every possible mechanism to overcome stagnation and resistance at the national level and thereby drive a progressive climate change policy agenda from the bottom up. This paper examines new and creative uses of local, national and international law to overcome federal resistance and to force legal transformations in climate change policy-making in the USA.
Benjamin van Rooij: Bringing Justice to the Poor, Bottom-up Approaches to Legal Development Cooperation (2104)
In the last decade a bundle of ideas has been developed, best summarized as bottom-up approaches to legal development cooperation. The approaches share a common concern that legal interventions should benefit the poor, and that their needs and preferences should form the basis for interventions. To some extent the approaches are presented as new and alternative, and better than existing practices and the existing legal development paradigm in what has been labeled as “the rule of law orthodoxy”. This paper seeks to study the content of bottom-up approaches, looking at how they are defined, how they analyze problems they seek to solve and at the measures they propagate to reach such solutions. Second, the paper addresses why these approaches have emerged over the last decade analyzing changes in development approaches, studying the critiques about preceding legal interventions and looking at criticisms of the existing the Rule of Law paradigm. Third, the paper analyzes the merits of bottom-up approaches. Recognizing the many merits of these approaches, this paper concludes that they are not complete substitutes for the current rule of law paradigm or free of some of the same problems that have plagued existing legal development cooperation practices, so often criticized. As such they offer much to existing practices and the existing rule of law paradigm, but should be seen as additions and be incorporated into existing practices instead of fully replacing them.