ARTICLE: Choudhury on Law, Gender, and the Burden of Culture

Cyra Akila Choudhury has posted 'Law, Gender, and the Burden of Culture' on SSRN:


This essay makes three points about the use of culture as an argument against law reform and as an explanation for why reform does not happen. First, culture (and its religious analog) is often used as a justification for avoiding gender law reform. However, what is often hidden behind such usage is a highly particular and discreet set of political choice about how to arrange the rights and obligations within society. These choices are not determined a priori by a cultural script. Second, both those who tend to use it to justify doing nothing or doing very limited reforms as well as those who seek sweeping reforms view culture similarly. This mirroring of relativists and universalists is an old construction that has roots in the colonial period and this history is important in understand the present dilemmas of feminism. Finally, that mirroring dynamic also reflects a seemingly intractable oppositional tension between multi-culturalist/relativists who seek to preserve culture and the universalists who seek to overcome it. This tension is very present in legal feminist thought and activism making transnational coalitions and support more complicated. While it is impossible to fully explore that tension as it manifests in the literature or its damaging effects on feminist activism and agenda-setting, I do want to examine two contexts in which it can be clearly observed: the veil context in France and the recent activism by Femen to “free” Muslim women from Islam. By grounding the theoretical observations in these two practical phenomena, I hope to show that unless the impasse is overcome, the full potential of emancipatory feminist thought and activism will never be realized. 

BOOK: Banakar and Tavers on Law and Social Theory

Law and Social Theory (2nd Edition)

Edited by Reza Banakar and Max Travers

There is a growing interest within law schools in the intersections between law and different areas of social theory. The second edition of this popular text introduces a wide range of traditions in sociology and the humanities that offer provocative, contextual views on law and legal institutions.

The book is organised into six sections, each with an introduction by the editors, on classical sociology of law, systems theory, critical approaches, law in action, postmodernism, and law in global society. Each chapter is written by a specialist who reviews the literature, and discusses how the approach can be used in researching different topics. New chapters include authoritative reviews of actor network theory, new legal realism, critical race theory, post-colonial theories of law, and the sociology of the legal profession. Over half the chapters are new, and the rest are revised in order to include discussion of recent literature. 

OPINION: Fictions and Fecklessness (On the Proposed Abolition of the Upper House of Parliament in the Republic of Ireland)

NOTE: The following paper relates to the current debate in the Republic of Ireland about whether or not to abolish its upper house of parliament (the Seanad). I include it here both because I believe that it might be of interest to many of you and because the referendum occurs this Friday and I wanted to make the text available. This version is the latest of those I've delivered at public debates on the subject. My more extended treatment of the subject is available here and here. For more information on the referendum, see here. - SPD

FICTIONS AND FECKLESSNESS

Dr Seán Patrick Donlan

I’m not a party political man, but I’m a democrat to the bone. The Seanad is an irredeemable institution and an insult to the principles of our republic. Its failings include:

• Its thinly-disguised partisanship, under the fiction of vocationalism
• Its explicit elitism, including special representation for specific classes
• Its political cronyism, the power it provides for political patronage
• Its distant, attenuated democracy; this referendum is more genuinely democratic than any Seanad election

The fact that the Seanad is also unnecessary and unfit for purpose is only more damning.

For a more egalitarian republic and a more direct democracy, the Seanad should be abolished so that we can turn to more important matters, not least real reform of the Dáil, our democratic chamber. But abolition is no mere sideshow and serious parliamentary reform is dependent on sorting out its place in our constitutional order.

In short, the Seanad’s flaws are too fundamental to be fixed. We might tinker with its vocationalism, elitism, or patronage, though few on the NO side are committed to even these modest changes. But the Seanad is also redundant and even anti-democratic.  To meaningfully widen its electorate would duplicate the Dáil’s popular mandate. The result could be gridlock and conflict between the houses over which chamber actually represents the people. And broadening the Seanad’s brief can only occur at the expense of our democratic chamber. They’d hardly agree to this. Nor should they.

Along with a majority of the people, both Government and opposition parties support abolition: Fine Gael, Labour, Sinn Féin, and the Socialist Party. Not surprisingly, Fianna Fáil, the coalition’s perennial opponent, opposes them. In fact, except for Senators desperate to save their cushy seats, only other ghosts of Governments past are allies (ie, the Green Party and the PDs). Indeed, it’s no coincidence that those most sceptical of a more direct democracy, and of the Dáil itself, are those most recently denied parliamentary power by the people. No wonder they don’t trust them.

And, to my deep disappointment, there are also well-meaning fellow progressives who want to hold onto the Seanad to advance their politics without the hard and messy work of real democracy. This odd alliance is at once patronising towards the people and cynical in their campaign and condescending towards the people and defeatist about our ability to govern without the minders of the Seanad. In short, they don’t trust us or our democratic representatives.

In the NO crowd’s campaign of misinformation, they’ve spared no effort in whipping up paranoia about abolition, madly dashing everywhere to shout that ‘the sky is falling, the sky is falling’.

I’m not suggesting that the YES side is snowy white. It isn’t. The cost and number of our parliamentarians, the public focus of the Government campaign, is irrelevant. Our citizens would pay for good government. The coalition ought to have done better and acted more honourably.

But even today, the NO side has made vulgar comparisons between our Government and communism and fascism, between our Taoiseach and Kim Jong-un or Mussolini. And ‘Democracy Matters’, the leading group on the NO side, whose name is worthy of the doublethink of George Orwell’s 1984, suggests that a people’s free vote on the content of their Constitution is the equivalent of trampling on that document. This isn’t to be taken seriously. The amendment won’t bring constitutional crisis or autocracy or asteroids or plague or the end of days. It’ll hardly be noticed.

For example, the Seanad has never been a check on anyone. It was never meant to be and it should not be. The President, the courts, and general elections are our constitutional checks against legislative power. Most constitutional changes related to the referendum are mere editing. The NO side’s scaremongering about Articles 27 and 29 is spurious.

Similarly, the belief that our whip system is too strong, and it is, has nothing to do with the Seanad. The whip is a political, not a constitutional, matter. Insofar as it can be changed, only Dáil reform is relevant. If anything, abolition will remove a Taoiseach’s power to reward cronies with cushy jobs in Senate seats. And there will be higher thresholds for impeachments of judges and the President. Those are real, practical checks on the Government.

And the Seanad is unnecessary. One house of parliament works well throughout the world for states like ours. With minor alterations, unicameralism provides the heightened scrutiny and deliberation in law-making that we desire. And it would do so with a single mandate from the people through our genuinely democratic general elections. There’d be no tug-of-war between chambers.

We have bicameralism because the British did and because the Seanad once provided a safe haven for southern unionists. Bicameralism is largely a holdover from a feudal past. It isn’t made for democracy and in a modern state like ours, it muddies the popular will, it doesn’t protect it. We have bicameralism only because we’ve always had it. Its roots are

• pre-modern aristocracies and elitism,
• colonial copying around the world,
• inertia and fear of change, and, as here,
• ‘jobs for the boys’

Bicameralism can make sense where it’s used to represent distinct territorial units or cultural groups. But as a small, unitary republic, there’s no reason for it here.

But the biggest lie of the NO side is as much their self-deception as their con. Not only is reform not on the ballot, but there has never been, and there is not now, any consensus on reform. At least four different polls have confirmed this in the last month, including one today. Those supporting reform make up 29% of the population, only two points above the number of undecided in this referendum; a mere 36% of those intending to vote. And those numbers have to be divided between at least six reform schemes, the largest two of which are fundamentally contradictory.

And we should be very grateful because the NO side want to solve the real problems of our republic with gimmicks and fantasy, even though that’s how we bungled the creation of the Seanad back in the 1930s. This is exciting perhaps, but the stuff of daydream and, with respect, the thought questions of undergraduate exams. In addition, the best-known schemes of current Senators and their patrician allies, still perpetuate the fiction of vocationalism, the elitism of university set-asides, and political patronage. They’re barely reforms at all. There most novel in their attempt to give special representation for special interests, but this neo-vocationalism has succeeded nowhere.

Ironically, the most radical scheme is that of Fianna Fáil itself, though no one is talking about it. This is true because it’s unworkable and because it conflicts fundamentally with the pet schemes of their own allies. But it hardly matters. There’s no reform consensus and not a word of it will become law. And I say this with optimism, the realism of a democrat who wants a more egalitarian republic and a more direct democracy than any of the so-called reforms provide for.

In conclusion, the Seanad must be abolished. It’s elitist, undemocratic, and wholly unnecessary. It shouldn’t be tolerated in a republic.

But it’s important to remember that abolition takes effect after the next general election. Government reforms already proposed, on Dáil committees and gender quotas, have real practical, potential. But like others, I believe that more can and should be done. It’ll be in the interest of the coalition, in the aftermath of a YES result, to show itself to be serious about Dáil reform.

And there’s so much potential for this, rooted not in speculative schemes, but in established political science. I hope, in future, to work alongside those who are now my opponents in this debate, to ensure meaningful Dáil reform. To hold the coalition’s feet to the fire. And if this coalition, or future Governments of any political persuasion, fails to deliver, we can always dump them, as we did, belatedly perhaps, with the last Government. That’s as it should be. That’s the ‘terrible beauty’ of democracy.

Our republic doesn’t need Seanad minders, but a more active and engaged citizenry. We need a more direct, unicameral democracy—not buck-passing bicameralism—to pressure our public representatives to do our bidding. Oversight of our politicians is our responsibility as citizens. And, unlike the NO side, I have faith that the Irish people can do this.

Don’t be conned. A NO result is a vote for the status quo. Vote YES for real change, and then make it happen.

VACANCY: Postdoctoral researcher in International and European Sports Law

The T.M.C.Asser Institute is looking to appoint a full-time (38 hours per week) postdoctoral researcher in international and European Sports Law to join its dynamic and multinational research team.

The successful candidate will :

• conduct fundamental and applied, comparative research in the area of international and European sports law at an advanced level, leading to high-level academic publications and high quality advice/opinions for a multitude of clients;

• acquire and carry out externally financed research and academic service projects and participate in coordinating tasks in the management of projects;

• be expected, where possible and appropriate, to give presentations on your specific subject field;

• help organize dissemination activities such as trainings, workshops and conferences;

• maintain and further develop an international network of experts and stakeholders.

Requirements: 

• you have recently completed your Ph.D. in an area of law relevant to sport; 

• you have a good knowledge of EU law;

• you have a broad general knowledge of European and international sports law. Prior professional expertise in this specialist area, as can be demonstrated by publications and/or experience in legal practice, is desirable. It is more important, however, that you can demonstrate great potential and commitment to pursue a research career in the area of International and European sports law;

• you have an established record of research, publications, and acquisition of external funding for research and dissemination projects;

• you have experience in participating in collaborative research projects and are open to carry out inter-disciplinary research;

• you are an ambitious and motivated scholar with an international profile and an extensive professional network;

• you have excellent writing and presentation skills for promoting and reporting on research;

• you have an excellent command of English, both written and spoken.  Knowledge of Dutch and other languages is an asset;

• you are flexible, proactive, and able to work both independently and as a strong team-player;

• you are capable of performing well under the stress of strict deadlines.

Asser Institute offers employment as full-time senior researcher initially for 1 year, but renewable for a period of up to 6 years. The Institute is affiliated with the University of Amsterdam, whose conditions of employment are applicable. The salary will be in accordance with the CAO of the Dutch Universities and depending on the candidate’s qualifications and experience.

Applications should comprise a letter of motivation, curriculum vitae in EUROPAS format, a list of publications and the contact details of two referees. Applications must be sent in English, in MS-Word format to HRM@asser.nl before 16 October 2013.

CALL FOR PAPERS: Asian Journal of Law and Society

Cambridge University Press and KoGuan Law School, Shanghai Jiao Tong University will be publishing the Asian Journal of Law and Society (AsianJLS).

This independent, peer-reviewed publication encourages empirical and multi-disciplinary research and welcomes articles on law and its relationship with society in Asia. AsianJLS will publish articles bringing an Asian perspective to socio-legal issues of global concern, and articles using Asia as a starting point for a comparative exploration of law and society topics.

Find out how to submit your paper to AsianJLS here.

This opportunity is forum for Asian and Western scholars to exchange ideas of interest to Asian scholars and professionals, those working in or on Asia, as well as all working on law and society issues globally.

Registration for free content alerts here.

ARTICLES: ISLAMIC LAW & LAW OF THE MUSLIM WORLD eJOURNAL

Articles: Islamic Law & Law of the Muslim World eJournal

The following articles from Islamic Law & Law of the Muslim World eJournal(2013),  have been published on SSRN:


Islam and the Politics of Secularism in Europe
By Peter O'Brien
Modern secularism, as theorized by prominent liberal philosophers such as John Rawls and Jürgen Habermas, prescribes that the state should treat all religions equally on condition that they and their adherents relinquish their theocratic aspirations and recognize the political sovereignty and superiority of man-made law. Convinced that the secular bargain undermines the moral virtue of society and its members, a small, fragmented, but nevertheless conspicuous number of Islamists in Europe prefers to observe Islamic law in all walks of life, private and public. Alarmed by Islamists and informed by Orientalist readings of Islam, an increasingly vehement and vociferous contingent of Islamophobes avers that Islam is inherently incompatible with democracy and urges European governments to treat neither Islam nor Muslims equally, but rather suspiciously as real or potential threats to the wellbeing of European societies. In contrast, advocates of Euro-Islam insist that Islam can be reformed, like Christianity, to meet the requirements of modern secularism. This paper contends that elements of all three of these vying positions have found their way into policymaking targeting Muslims in several European lands. The resulting inconsistency and contradiction – what I call policy “messiness” – corroborate the process of “mutual fragilization” theorized by Charles Taylor in which actors facing radical value pluralism develop solicitude regarding their own principles as well as greater tolerance for ambivalence. The latter, in particular, creates what Homi Bhabha terms a “third space” from which actors confronting cultural pluralism can freely and constructively explore cross-fertilizations and hybrid combinations with the potential to yield yet unimagined approaches and solutions to the problems of “super-diversity.” Just such creative hybridity does the paper identify among a younger generation of European Muslims whom many observers dub “post-Islamists.”

 
Governance Feminism's Imperial Misadventure: Progress, International Law, and the Security of Afghan Women
By: Cyra Akila Choudhury
After the September 11, 2001 attacks and the subsequent U.S. engagements in Afghanistan and Iraq, the question of how to 'help' Muslim women progress towards greater liberty and rights has become a near obsession. A multitude of voices joined the throng of 'experts' on Islam, including conservative Islam-o-phobes, liberal feminists, and elite, western-trained Muslim women themselves relying on their identities to provide credibility to their claims. The plight of Muslim women as victims of their religion and their hyper-patriarchal menfolk has become such common knowledge that it can barely be refuted. There are many obvious reasons as to why Americans have become so intimately familiar with the orientalist stereotypes, the burka and Islamic punishments. They are the most compelling marks of barbarity that have been used to advance a number of different agendas from women’s rights to armed intervention. Liberal feminists in legal academia and practice, particularly governance feminists, have not been silent in this discussion nor have they necessarily drawn a nuanced picture about the situation of women in the War on Terror. In Afghanistan, the construction of women as abject victims has yielded positive results in both garnering international funding and foreign policy response. It seems entirely obvious that 'women’s rights' have to be improved in Afghanistan and that Afghan women have to be helped. However, some of the approaches that have been taken in 'solving' the Afghan women’s problem are troubling for many reasons.

In this chapter, I examine two of these: First, from a theoretical perspective many liberal feminists consider religion and culture as obstacles to achieving women’s equality and rights. They fail to account for the alternative views of flourishing forwarded by many Muslim women who stray from the Liberal script and for whom rights and 'equality' may not be a priority. I explore the linkages between Liberalism’s troubled history with universalism, rights, and progress with Governance Feminism that also shares this history and a desire to use state power to effectuate change. Second, I examine the problems that result from this theoretical position: the reliance on victim subjects that have resulted in fractured transnational alliances and Governance Feminism’s support for international intervention that ignores the victimization of men and its effects on women’s security.

 

EXPERT NEEDED: ABA-CENTER FOR HUMAN RIGHTS

EXPERT NEEDED: ABA-Center for Human Rights

The ABA-UNDP International Legal Resource Center (ILRC) has received a request from the ABA Center for Human Rights. 

 

The Center is convening a group of Indian attorneys working on cases concerning atrocities committed against members of the Scheduled Caste and Scheduled Tribe (“SC/ST communities”).  The purpose of the meeting is to discuss litigation strategies and share best practices concerning the investigation and prosecution of atrocities. 

The Center is seeking international experts in the investigation and prosecution of atrocities to participate in the meeting.  The Center hopes the selected attorneys will be a resource for the Indian attorneys, who might have other questions that come up during a case, and could help advise or provide their expertise and to as mentors to Indian attorneys working on related cases.  The meeting will be held over two days in early November or December in New Delhi, India.  The Center will pay all expenses related to attending the meeting, but will not provide remuneration.

Training/Workshop:

-          Present at workshop in New Delhi, India on issues of prosecuting hate crimes, effective investigations, or role of victim’s rights attorneys (depending on expertise)

-          Workshop is likely to be at the end of October (2-day workshop)

-          Experts are expected to participate on a pro bono basis

-          The Center will cover all costs associated  to travel

Interested experts should have the following background:

 

-          Former prosecutor of hate crimes/atrocities (OR) victim’s rights attorney

-          Background in prosecuting hate crimes in communities that are very hostile or  discriminatory (i.e. witness intimidation, victim forced to recant incident, etc.), with little political will, and lack of strong investigations by police

-          Previous related experience is an asset

-          Previous experience India and knowledge of the context of the human rights and political landscape

-          Strong interpersonal skills in a multi-cultural environment with sensitivity and respect for diversity

-          Excellent presentation, communication, analytical, and writing skills

-          Ability to speak and present in English

The application deadline is Friday, September 27^th, 2013 at 5pm (EDT).  Application materials must include a CV and a detailed cover letter. Please note that this is NOT a paid opportunity.

 

Completed applications must be sent to Jacqueline.Gichinga@americanbar.org.

MEETING AND CALL FOR PROPOSALS: Annual Law and Society Association Meeting and Call for Proposals

MEETING AND CALL FOR PROPOSALS: Annual Law and Society Association Meeting and Call for Proposals

The Law and Society Association has announced an annual meeting and a call for proposals.

Law and Inequalities: Global and Local

Recent decades have seen the persistence and growth of powerful inequalities within and between groups and within and among nations. The 2014 program theme returns to a question central to the Association’s founding: the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities. The 2014 Program invites participants to explore and consider three questions:

·     How can Law and Society scholarship contribute to unearthing and understanding inequalities?
·     How can Law and Society scholarship contribute to the critical interrogation of discourses of equality and inequality and help to reveal what is at stake in these concepts?
·     What impact can we expect these scholarly contributions to have on the persistence of these inequalities and on public discourse about them?

Call for Proposals

The Program Committee invites proposals that engage with the program theme and other topics in law and society research. Proposals for individual papers or fully formed panels will be considered. As with every Annual Meeting, panels need not be centered on the conference theme. Submissions on any law and society topic are welcome.

For more information about the Annual Meeting and Proposal Submission Instructions, please visit http ://www . lawandsociety . org/minneapolis2014/Minneapolis2014 . html

JOURNAL: Maastricht Journal of European and Comparative Law, volume 20, no.2 - 2013

The Maastricht Journal of European and Comparative Law is a peer reviewed quarterly that focuses on

the ius commune Europaeum. It carries in-depth analyses of EU and international law, reports on recent legal

developments of interest in European countries, case note comparing Union and .national decisions, and book reviews.

ARTICLES:

After the EU Charter of Fundamental Rights: Th e Court of Justice

as a Human Rights Adjudicator?

Gráinne de Búrca 

The EU Constitution of Social Governance in an Economic Crisis:

In Defence of a Transnational Dimension to Social Europe

Dagmar Schiek  

Withdrawal from the European Union: A Typology of Effects

Phedon Nicolaides

Reconciling Different Legal Spheres in Theory and Practice: Pluralism

and Constitutionalism in the Cases of Al-Jedda, Ahmed and Nada

Christina Eckes and Stephan Hollenberg

Translation in the EU: Language and Law in the EU’s Judicial Labyrinth

Martina Künnecke

The Contribution of the European Courts to the Common European Asylum

System and Its Ongoing Recast Process

Francesca Ippolito

European Union Fundamental Rights and Member States Action in

EU Criminal Law

Tony Margueryi

CASE NOTES

(Further) Signs of a Turn of the Tide in the CJEU’s Citizenship Jurisprudence,

Case C-40/11 Iida, Judgment of 8 November 2012, not yet reported

Alina Tryfonidou

LEGAL DEVELOPMENT

The New EU Directive on Energy Efficiency: A Critical View

Gianni Lo Schiavo

BOOK REVIEW

J.M. Smits, Th e Mind and Method of the Legal Academic

Tomi Tuominen

ABOUT THE MAASTRICHT JOURNAL 

Editorial Committee

Michael Faure, Professor of Comparative and International Environmental Law (Co-Chair

Jan M. Smits, Professor of European Private Law (Co-Chair)

Phedon Nicolaides, Professor at College of Europe

Raymond Luja, Professor of Comparative Tax Law

Monica Claes, Professor of European and Comparative Constitutional Law

Andrea Ott, Associate Professor of European Law

Caroline Cauffman, Assistant Professor in Private Law and Lawyer specialised in Commercial Law

Anne-Pieter van der Mei, Associate Professor of International and European Law

Elise Muir, Assistant Professor of European Law

All members of the Editorial Committee are members of the Faculty of Law at the University of Maastricht, unless otherwise stated.

Executive Editor

Thomas Biermeyer

Associate Editor

Laura Tilindyte

Language Editors

 Michael Forder (external) and Anjum Shabbir (internal)

Student Assistant

Stephanie Kohl

Advisory Board

Mark Dawson (Berlin), René de Groot (Maastricht), Bruno de Witte (Maastricht), Monica den Boer (Amsterdam), Albin Eser (MPI, Freiburg),

Cees Flinterman (Maastricht), Caroline Forder (Amsterdam), Vassilis Hatzopoulos (Komotini/Bruges), Aalt Willem Heringa (Maastricht), Jaakko Husa (Lapland), Anselm Kamperman Sanders (Maastricht), Ralf Michaels (Duke, North Carolina), Olivier Moréteau (LSU, Louisiana), Luke Nottage (Sydney)

Frans Pennings (Utrecht), Stephan Rammeloo (Maastricht), Dagmar Schiek (Leeds), Hildegard Schneider (Maastricht), Walter van Gerven, (Leuven/ Maastricht), Antoni Vaquer Aloy (Lleida), Luc Verhey (Leiden), Stefan Vogenauer (Oxford), Ellen Vos (Maastricht), Lisa Waddington (Maastricht)

Joseph Weiler (NYU), Jan Wouters (Leuven), Jacques Ziller (Pavia) and

Reinhard Zimmermann (Regensburg/Hamburg).

CALL FOR PAPER: LSA Conference Panel: Of Texts, Tweets, Social Media and the Law of Evidence (deadline: October 1, 2013)

LSA Conference Panel: Of Texts, Tweets, Social Media and the Law of Evidence, LSA Annual Meetings 2014

This panel considers the role of communication technology in judicial culture. As texts, status updates, voicemail, email and screenshots migrate into the world of adjudication, what questions and practices attend their use? How do courts receive such evidence as it relates to character, credibility, and corroboration? Drawing on work that spans different legal settings, this panel explores the ways in which evidence drawn from contemporary communication technologies is presented as authentic or shrouded with doubt.

Please send paper abstracts of no more than 250 words to sameena.mulla@marquette.edu by October 1st.