Feminist Judging: From Margin to Centre

Sharon Cowan (University of Edinburgh), Chloë Kennedy (University of Edinburgh), Jill Kennedy-McNeill (creative), Ambreena Manji (Cardiff Law School), Vanessa Munro (University of Warwick), Sibongile Ndashe (Institute for Strategic Litigation in Africa), Sharifah Sekalala (Warwick Law School), Jhuma Sen (Jindal Global Law School)

Introduction

In recent years, and sparked by the wonderful Canadian initiative ‘The Women’s Court of Canada’ (Majury, 2006), a number of jurisdictionally-specific ‘feminist judgment’ projects (FJPs) have been produced, in which the reasoning (and, in some instances, the outcome) of key cases have been re-imagined through a feminist lens. This includes taking into account intersecting inequalities such as class, disability, sexual orientation, gender identity, ethnicity and national identity.

The collective achievements of FJPs have been momentous. Amongst other things, they have: ignited the imaginations and ambitions of feminist lawyers; spawned pedagogical methods and interventions; created dialogue between academics, activists and legal professionals; and inspired artistic work. Importantly, they have fundamentally questioned the idea that making and applying the law is a neutral, objective pursuit, and demonstrated how cases could have been reasoned or decided differently, even given the law as it stood at the time of the decision (Hunter 2012, p.5).

FJPs have been completed in countries such as England and Wales, Northern/Ireland, Australia, New Zealand, and the U.S. In this blog, we present the aspirations of and challenges raised in three FJPs that are currently in progress – the Indian, Scottish, and African Feminist Judgments projects. We consider common themes such as methodology, inclusivity, representation, and identity, as well as issues explored within specific jurisdictions, such as legal pluralism, colonialism, nationalism, the interface between art, law and activism, and interdisciplinary critiques of the legal ‘canon’.

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Transitional Justice in Social and Legal Studies Revisited – An Introduction to the Virtual Special Issue’s Articles

Kieran McEvoy
Professor, School of Law, Queen’s University Belfast

Anna Bryson
Senior Lecturer, School of Law, Queen’s University Belfast

Transitional justice has in the course of the last two to three decades acquired all of the accoutrements of a ‘respectable’ field of inquiry. Originally viewed by many as an ‘add-on’ to the political science literature on transitions from authoritarianism or conflict to democracy, it now attracts serious scholarly attention right across the social sciences, arts and humanities. That ‘respectabilisation’ has coincided with Social and Legal Studies becoming one of the ‘go to’ places for socio-legal facing research in this area.

The rationale for putting this special issue together is to showcase the strength and diversity of transitional justice-related scholarship published in the journal, to underscore the relevance of the field to a more generalist audience of socio-legal scholars, and to offer tentative pointers for future research. All of the articles chosen engage with the role of law in the theory and practice of transitional justice. Moreover they do so from an avowedly interdisciplinary perspective.

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After the Crisis? Reflections on Migration Governance

Cetta Mainwaring
Leverhulme ECR Fellow
School of Social and Political Sciences, University of Glasgow

Margaret Walton-Roberts
Professor in Geography
Balsillie School of International Affairs, Wilfrid Laurier University

Migration crises are never far from newspaper headlines and the public imagination. And yet, these crises are constructed around long-standing, predictable patterns of mobility and exacerbated by government policies, especially in the Global North. For instance, the predictable “regime change refugee” flows after Western military interventions in Iraq, Afghanistan, and Libya were all constructed as unexpected and uncontrollable. More recently, Donald Trump has defended separating thousands of children, including many infants and toddlers, from their families on the US-Mexico border in the name of a migration crisis. Here, long standing US foreign policy has contributed to the destabilization of South and Central America. For decades, people from these regions have sought to escape the resultant violence and poverty. We addressed a number of these issues in a workshop we held in 2015: ‘Governing Migration from the Margins’. Some of the papers that emerged from the workshop are included in a special issue recently published in Social and Legal Studies.

Migration has become central to contemporary politics, an easy scapegoat for our 21st century ills and an issue on which even more progressive politicians feel pressure to appear ‘tough’. More draconian migration controls are imagined as a panacea to the rising far-right. As our neoliberal economic system frays, migrants have become the patsy. Indeed, frenzied ‘migration crisis’ rhetoric intensified following the financial crisis, which created austerity in Europe and financial insecurity in North America: incomes have polarized, working and middle class wages have stagnated, financial risk was socialized and profits privatized. In the United States, self-dealing plutocrats hold office and are moving to cut the social safety net while further enriching the 1%. Migrants become an important distraction that can unite those unsatisfied with their lot, looking for someone to blame, and happy to support politicians with simple ‘solutions’.

The resultant migration ‘crises’ are politically useful, used as a diversion from the systemic failures in democratic and economic governance. They distract from government policies that increase inequality and marginalize large swathes of the population, often in the name of austerity. They simultaneously provide a useful, if superficial, explanation for the inequalities and violence caused by these very measures, including the lack of economic opportunities and upward mobility. In this way, the rhetoric that declares a crisis – whether in response to people travelling by boat across the Mediterranean, to a caravan of Central Americans arriving at the US border, or to people camping in Calais waiting for an opportunity to cross to the UK – fuels xenophobia and neo-nationalism, while also giving cover to violent, exclusionary policies.

In the US, UK, and elsewhere, migration ‘crises’ distract from the government’s policy of creating a ‘hostile environment’ for those at the edge of society – migrants and citizens alike. The violence inherent in policies that detain indefinitely, divide families, and deport people to dangerous places, usually goes unremarked and unnoticed by the general public. Occasionally these come to the fore, as happened with Trump’s family separation policy or the UK’s Windrush scandal in 2018. In this latter case, Commonwealth citizens were invited to work in the UK in the 1950s. Fast forward to the age of Brexit and Theresa May’s government was marking their racialized bodies as ‘other’, deporting them despite their legal right to stay after more than sixty years in the UK. The state pointed to their lack of documentation to explain their deportation, until it was revealed that the Home Office had destroyed their landing cards under Theresa May’s leadership as Home Secretary. As such violence and arbitrariness is revealed, so is the shallow celebration of countries as diverse and multicultural.

Nevertheless, migration ‘crises’ can be profound moments that mobilize the public and engender new, creative forms of activism. The arrival of Syrian refugees in Europe has prompted many people to open their doors and their hearts to these newcomers, to volunteer their time and energy. Others have taken risks in the face of Europe’s criminalization of acts of solidarity, continuing to provide shelter and transportation. In the Mediterranean, people have taken to the seas to engage in much needed search and rescue activity that states are failing to provide.

Yet, even then, the spectacle of crisis narrows the possible response. Immigration policies that depend on suffering as deterrence do sometimes invite the ire of the electorate, and give rise to calls for the need to respect fundamental human rights alongside secure borders and law enforcement. The spectacular violence of Trump’s policy of separating families elicited widespread and impassioned condemnation. It did not lead, however, to a broader discussion of the inherent violence of borders and the ways in which they have always separated families in the US and elsewhere. Central American mothers have long left their children behind while they migrated to the US, in part due to the country’s border regime. In the UK, Home Office policies routinely separate families through deportation and family visa policies, yet these more routine, less spectacular forms of violence remain largely hidden. Moreover, although the domestic and international condemnation eventually led Trump to reverse his policy, this ‘reversal’ involved the expansion of family detention, and attempts to indefinitely detain children (with their families).

Even in these cases when the dragnet of hostile policies reveal the unabashed aggression of the state to marginalize and target racialized others, the battle lines between the deserving and undeserving migrants are redrawn and simultaneously reinforced. Migration ‘crises’ can thus serve to further re-inscribe inequalities by elevating particular groups over others. Syrian refugees have recently been seen as deserving, while Afghan refugees are now deported as Afghanistan is deemed a ‘safe country’ despite the continuing violence there. Windrush became a scandal because of revelations of how citizens were made ‘illegal’. Yet, the ways in which other people are illegalized by arbitrary migration controls remained largely absent in the ensuing debates. Rather than opening up a debate about how immigration controls always carve through families and communities, the rightful condemnation of the injustice dealt to the Windrush generation resulted in the re-inscription of the line between deserving and undeserving.

The West is not facing a migration crisis. It faces a political crisis in the form of growing inequality, the rise of far-right, and the associated splintering of the European Union. Migration crises, constructed regardless of the number of people arriving, are a convenient distraction from these challenges. However, the drivers of migration, the glaring economic, environmental, political and social inequality and insecurity that exist around the world, and the ineffectiveness of the global capitalist system to meaningfully address them, are not being examined. Rather, we are witnessing growing global economic inequality, the threat of trade wars, and governments refusing to invest in real social protection, instead brandishing border walls and draconian migration controls as false protection for their citizens.

This is a historical moment that calls for progressive, visionary leadership. Though there are glimmers of hope in the creative protests against anti-migrant policies and the election of young, progressive candidates such as Ocasio-Cortez in New York City, too often political elites run campaigns of fear, fear of migrants as well as fear of the rise of the far right. This moment calls for a creative re-imaging of borders and migration policies. After decades of militarizing our borders and pushing migration controls to countries of origin and transit, it is clear that these policies fail: they fail to deter migrants, they cause more people to die, and they cost enormous sums of money. Yet, at the moment when it seems obvious that this system is not working, we find ourselves returning to neo-nationalism and xenophobia in the form of Brexit, Trumpism, Israel’s new Nationality Bill, and Hungary’s ‘Stop Soros’ laws. These actions mark the impoverishment of democracy and imagination. We must continue to protest the inhumanity and ineffectiveness of these political acts.

As Hannah Arendt remarked in The Origins of Totalitarianism, ‘the last century has produced an abundance of ideologies that pretend to be keys to history but are actually nothing but desperate efforts to escape responsibility.’ Responsibility is the issue that is foregrounded in our special issue of Social and Legal Studies. How international law is responsible for ignoring Palestinian statelessness; how Australia, the US, and EU member states are responsible for diminishing spaces for asylum, and thereby precipitating the ‘migration crisis’; the responsibility of emerging Asian governments to seek necessary and appropriate laws that protect human rights; the responsibility of Brazil to accept that their desire for regional leadership also demands they develop necessary laws for asylum; the responsibility to acknowledge the enduring influence of colonialism in how state’s manage human migration and mobility; and the responsibility we all have to fight for a more just world where freedom of movement is not reserved for the global elite.

Cetta Mainwaring is a Leverhulme Early Career Research Fellow in the School of Social and Political Sciences at the University of Glasgow. Her recent publications can be found here.

Margaret Walton-Roberts is a professor in Geography and the Balsillie School of International Affairs at Wilfrid Laurier University, Canada. Her recent publications can be found here.

Together they are the co-editors of a special issue of Social & Legal Studies entitled ‘Governing Migration from the Margins’ and the co-authors an article in that issue of the same title (2018) 27(2) Social & Legal Studies 131-141.  The article is available for free for a limited time only (correct at 15.10.2018)

Absent voices: Researching the role of P in the Court of Protection

Jaime Lindsey
Lecturer in Law, School of Law, University of Essex

In this blog post, Jaime Lindsey of the University of Essex School of Law explains her recent research on the Court of Protection, carried out in light of increased transparency and openness in this jurisdiction.

This article was originally published on the UKAJI – UK Administrative Justice Institute blog here, and is reproduced with permission.

Researching Participation in the Court of Protection

Participation by those at the centre of legal proceedings is a matter of justice. Whether it be court proceedings, mediation, ombudsman schemes or tribunals, participation of those at the centre of the case should be a priority. In many areas, participation is a well-established right. For example, in criminal law proceedings defendants are facilitated to participate and give evidence through special measures, and in the family context there have been strides towards improving participation for children. However, meaningful participation of those affected by proceedings has not taken hold across all jurisdictions. My research suggests that those subject to Court of Protection (CoP) litigation are routinely absent from proceedings and rarely give witness evidence. This finding also echoes much of the theoretical and anecdotal research on this issue.

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Access to Justice for Youth in the Public Sphere

Naomi Nichols
Assistant Professor, Faculty of Education
McGill University, Canada

In 2017, I published an article in Social & Legal Studies called: “The Social Organization of Access to Justice for Youth in ‘Unsafe’ Urban Neighbourhoods.” The article was produced as part of a larger project[1], spanning Canada’s two largest urban centres (Toronto, Ontario and Montreal, Quebec) and examining young people’s experiences of relational and procedural fairness across a range of public sector contexts: schooling, neighbourhood policing, child protection, social housing, social assistance and so forth. The project itself was comprised of two distinctive studies. The studies differed in terms of the specific research methods we used and the areas of research focus, which young people articulated. They were linked by the use of participatory institutional ethnographic research strategies and a shared focus on young people’s experiences of procedural and relational fairness on the frontlines of the public sector.

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Virtual Special Issue Published: Transitional Justice in Social and Legal Studies Revisited

Kieran McEvoy
Professor, School of Law, Queen’s University Belfast

Anna Bryson
Senior Lecturer, School of Law, Queen’s University Belfast

The ‘respectabilisation’ of transitional justice as a recognised field of inquiry over the last quarter century has coincided with this journal becoming one of the ‘go to’ places for critical socio-legal studies over the same period. Whether Sol Piciotto, Carol Smart, Paddy Hillyard and the others who set Social and Legal Studies up envisaged the emergence of a specialist field on justice in the aftermath of conflict or authoritarianism, we don’t know. However, the inaugural issue did refer to a commitment to ‘…critical scholarship, non-Western perspectives on law, regulation and criminology, the integration of feminist analyses into every level of scholarship and the advancement of accessible theoretical approaches which enhance analysis and explanation rather than providing description…with all work being presented in such a way that it will be of international relevance rather than parochial interest’ (Picciotto et al 1992: 5). All of the above speak directly to the best of what is now known as transitional justice.

 

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Let’s face it, ASEAN is going nowhere

Pranoto Iskandar
Institute for Migrant Rights

This post responds to Social & Legal Studies’ (S&LS) kind offer to further discuss my recently published work in S&LS. Since this is more of an extension of the paper, I will not repeat what I have stated in my S&LS paper. The paper is built on disparate levels of both theoretical and practical engagements of the Asian ideation. To be specific, the paper uses the Association of the Southeast Asian Nations (ASEAN) as the latest and most ambitious manifestation of what it means to be the “exceptional” Asia as opposed to the “regular” West. This post is aimed at providing an account of the general insights which propelled the articulation of the argument that I advance. First, I present some of the “deleted scenes” that did not appear in the paper. The last-half of the discussion is dedicated to some post hoc developments that are tightly connected to the spirit of the paper. I am hoping to show that there is still something out there that can be done.

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