Critical Legal Scholarship Research Articles

Criministrative Law

Textual analyses of child welfare laws, joined by extensive textual and legal analyses of case law, reveal how the “dance” between the administrative and the criminal in child protective services (CPS) is rooted in the individualized perception of poverty. This individualization, which forms the bedrock of the capitalist American welfare state, promotes the fragmentation of the family unit. Building on individualized perception and reifying it, child welfare laws and practices are neither purely administrative nor criminal, but “criministrative.” As such, they serve as a legal shield for the State in its attemptsto ensure child welfare; the State refuses to provide protections available in traditional criminal contexts to families involved in CPS investigations, while simultaneously enjoying administrative courts’ less restrictive evidentiary rules. This Article follows the thread of individualized surveillance embedded in the law, starting with the conflation of “abuse” and “neglect.” This Article proposes three solution pathways, building from practicalto theoretical: divorcing neglect from abuse, adopting a Poverty Aware Paradigm, and developing a theoretical framework for an institutionalized “benevolent gaze.” This Article joins growing discussions in critical legal scholarship concerning the carceral nature of the welfare state and the relationship between care and punishment inthe United States. This Article adds a further dimension to these discussions by asserting that child welfare law is more aptly described as criministrative law, and by exposing the rootedness of the individualized perception of poverty in the organizing concepts of the child welfare system. Finally, this Article calls for a reconstruction of the legal treatment of children who are at risk of harms caused by poverty. If left unchecked, criministrative law will continue to inflict harm upon parents, thus harming the very children that CPS is meant to protect.

A critical examination of the entanglement: How political dynamics shape legal Decision-making and reform processes in Pakistan

In this scholarly exploration, we delve into the intricate interplay between political dynamics and legal decision-making within the context of Pakistan. Our analysis draws inspiration from Chantal Mouffe’s agonistic theory of democracy, which posits that inherent conflicts (antagonisms) are an essential dimension of the political landscape. These conflicts, while requiring tempering for the functioning of a pluralist democracy, remain unalienable and ever-present. Within the juridical domain, judges occupy a unique position. Cloaked in legal form, their pronouncements extend beyond mere legal interpretations. Instead, they adjudicate individual instances of ongoing collective conflicts—pitting workers against employers, consumers against traders, tenants against landlords, and moral progressives against traditionalists. These decisions, seemingly juridical, are inherently political. Judges wield a “relative sovereignty,” navigating institutional imperatives while being influenced by ideological currents. However, legal determinacy remains relative. Judges, through rigorous interpretive work, can diverge from prima facie interpretations. The collective conflicts, once juridified, crystallize into temporary hegemonic fixations. Our critical legal scholarship endeavors to destabilize these hegemonies in pursuit of justice. This task necessitates not only external critique but also internal scrutiny. We propose evaluating judicial decisions by considering all plausible alternatives, weighing conflicting interests and ideologies. In summary, our examination underscores the dual nature of judicial decisions—simultaneously juridical and political. By embracing this complexity, we contribute to a nuanced understanding of legal reform processes in Pakistan, advocating for justice beyond mere legal formalism.

Endroits of Planetary Ordering: Violence, Law, Space, & Capital in the Diplomatic History of 19th Century Europe

AbstractIf Derrida once praised English for the richness of the expression “to enforce the law,” in this article I return the favor and embrace the ambiguity of the French word endroit. While it means nothing more than place, I suggest one could draw from Benjamin’s work on dwelling to ponder on the meaning of being within the spaces of 19th century (counter) revolutionary internationalism. In this vein, I read Benjamin’s unfinished Arcades Project—and, in particular, its analysis of the rise of iron & glass architecture that accompanied the conquering bourgeois and the persistent aristocracy—to analyze the new built environments of the fin de siècle North Atlantic diplomacy. Despite the growing interest in the history of global governance, for historians and critical legal scholars alike, the spatial dimension of “the international” have been a largely unexplored affair. Conversely, I suggest Benjamin’s insistence on the materiality of architecture reminds us that international law’s castles were not built solely in the air. In this vein, I suggest one can trace a material history of the spaces in which revolutionary and counterrevolutionary internationalisms struggled to fashion a shell for themselves during Europe’s turbulent 19th century.

Progressive and critical legal geography scholarship

Progressive and critical legal geography scholarship

“We’re not there yet” but it’s not “pie-in-the-sky”: Legal Consciousness, Decertification and the Equality Sector in England and Wales

Drawing on 38 in-depth, qualitative interviews, this article explores how people working in the equality sector in England and Wales view and use the current law around sex and gender, and how they imagine law’s future, particularly potential decertification, where the state would withdraw from certifying and regulating a person’s sex/gender. Whilst situated in the bureaucratic strand of the literature, the paper also contributes to wider legal consciousness studies. This literature has generally focused on people’s relationships to law in terms of domination, alienation and game-playing. Drawing on idioms and the language of touch, the paper unpacks the way in which equality actors talked about law not as remote or alienating, but as close and familiar; not as oppressive, but as “precious” and hard-won. Some also regarded law as a place of safety in unsafe times. These proposed ‘attached to law’ and ‘protective of law’ strands of consciousness enrich and extend Ewick and Silbey’s classic ‘before the law’ narrative. The findings are also useful for critical legal and feminist scholarship. Combined with the equality sector’s pragmatic and tactical use of law to problem-solve, this close and protective orientation towards law reproduces its hegemony. The paper concludes by exploring a recurrent refrain that, in relation to decertification, “we’re not there yet” and that gender equality would need to be achieved before decertification would “fly”.

The interface between EU climate and energy law

This article critically discusses the interface between EU climate and energy law. It argues that legal scholarship should explore and expose the interrelationships between these legal disciplines through shared understanding and evaluation of both the disparities and synergies found. It maps the origins of EU climate and energy law to demonstrate how they have evolved side by side, guided by separate legal rationales and distinct legislative developments yet sharing partially overlapping objectives and instruments. By comparing EU climate and energy law as legal disciplines, the article identifies dynamic and static attributes that characterize the interface between EU climate and energy law. These attributes, combined with the evolution of EU climate and energy law, are key elements in facilitating disciplinary convergence. As an outcome of the analysis, the article calls for critical legal scholarship that acknowledges the climate and energy law interface, allowing disciplinary convergence to develop between them.

Making Law Possible

Making Law Possible

Deconstructing Doctrinal Struggles through Legal Discourse Analysis: The Example of ‹Discretion› Reasoning in Refugee Law

In the field of refugee law, ‹discretion› reasoning – that is, the assumption that asylum seekers can be returned to their countries of origin on the basis that they can avoid persecution by behaving ‹discreetly› and thus escaping the attention of the persecutors – is a legal problem where legal analysis seems to get stuck. Once there appears to be a doctrinal solution to settle the problem, it reappears in a different form. This Forumsbeitrag introduces ‹legal discourse analysis› as an approach to tackle such perennial legal problems. Inspired by critical legal and queer scholars, and drawing on elements of deconstruction and discourse analysis, legal discourse analysis does not try to find the solution to the puzzle. Instead, it has the distinct aim of tracing how doctrine is constructed, or how ‹right› answers are created. On that basis, it draws out the underlying tensions that enable these answers. The Forumsbeitrag first retraces the steps developed to address ‹discretion› reasoning in refugee law, and then extrapolates and generalises ‹legal discourse analysis› as an approach to explore its usability for other perennial doctrinal problems, both within refugee and migration law, and beyond.

The Womb Monologues: Toward A Mizrahi Feminist Theory of Israeli Law

Abstract Israeli legal feminists have largely overlooked the constitutive theoretical developments that introduced the “third wave” to global feminism. Drawing on the critical insights of black and postcolonial feminist discourse, this Article introduces Mizrahi feminism to Israeli jurisprudence. It aims to lay the groundwork for a new theoretical school of critical legal scholarship in Israel and expose the multidimensional oppression endured by Mizrahi women in Israeli law and history. To this end, the Article focuses on a particular slice of the legal history of the Israeli abortion law reform of the 1970s. Analyzing extensive parliamentary protocols and institutional archival records, the Article pioneers the deconstructive toolbox of Mizrahi feminism in order to extract the subversive ethno-class narrative that has been left invisible in the feminist story of Israeli abortion law—a sorely neglected history of a separatist, quality-control regulatory mechanism that restrains the Mizrahi womb and Orientalizes its female carrier as “unqualified” vis-à-vis the “dignified” Ashkenazi womb. This intellectual exercise in legal historical study does more than unveil the complex dynamics behind the regulation of the female body in Israel. It also gives a voice to an intra-Jewish ethnic female minority that otherwise remains a transparent and denied gender category in the sociolegal literature.

International Law for a Time of Monsters: ‘White Genocide’, The Limits of Liberal Legalism, and the Reclamation of Utopia

For critical legal scholars, the ongoing far-right assault upon the liberal status quo poses a distinct dilemma. On the one hand, the desire to condemn the far-right is overwhelming. On the other hand, such condemnations are susceptible to being appropriated as a validation of the very liberalism that critical theorists have long questioned. In seeking to transcend this dilemma, my focus is on the discourse of ‘white genocide’ — a commonplace belief amongst the far-right/white nationalists that ‘whites’, as a discrete group, are facing demographic destruction as a result of deliberate policy choices. Such a belief has motivated acts of extreme violence. While libel to dismissal by experts on mainstream understandings of genocide, namely international criminal lawyers, I argue that this ‘white genocide’ discourse deserves careful scrutiny as a jurisprudential and socio-legal phenomenon that reveals key weaknesses in present modalities of liberal justification. Drawing upon an array of recent critical theories, I show how a liberalism unable to face its own decline enables the very far-right assertions it purports to oppose. Thus, given liberalism’s failure to act as a neutral arbiter, an alternative approach for those opposing the far-right is to develop a vision of politics and society that confront believers in ‘white genocide’ on a more substantive level. This, I argue, forces the far-right’s opponents to disavow liberal scepticism towards utopian transformation as well as the juridical understandings and institutions that allow this scepticism to durably persist.

A Renewed Critical Perspective on Social Law: Disentangling Its Ambivalent Relationship With Productivism

The ecological movement questions the productivist model our societies inherited from the Industrial Revolution. Productivism is based on the belief that the continuous increase in production is possible and desirable. Political ecology and scientists denounce the adverse effects of productivism, in that it produces waste, exhausts natural resources and results in global warming. In this context, this article explores the relationship between social law and productivism. Critical legal scholars classically highlight the function of social law in redistributing the value generated by labour under capitalism. Our aim is to shift the focus and examine the function of social law prior to that, in the definition of what value is, more specifically what kind of labour is considered as creating value and is therefore to be supported. Through the characterization of the forms of work promoted in social law, the article demonstrates the ambivalence of this branch of law towards productivism. It is strongly rooted in the productivist model since it has been constructed around the concept of labour exchanged in the market, considered as the best way to ensure continual growth. However, at the same time, it relativizes productivism by promoting, in some places, economically non-productive but nonetheless (eco) socially useful activities. Productivism, Foundations of Social Law, Ecosocial Welfare, Sustainable Welfare, Right to Work, Decommodification, Post-productivism, Value of Work, Critical Labour Law, Critical Legal Studies

AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric

AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric

Private Law and the New Social Question

AbstractThis review of Grundmann, Micklitz and Renner’s New Private Law Theory begins by noting its historical perspective, and the fruitfulness of setting alongside each other seminal writings of European jurists from the early twentieth century with the contributions of American law and economics and critical legal scholars from the late twentieth and early twenty-first. A century ago, legal scholarship was addressing the “social question:” How to accommodate private law to the demands of a rising working class? Today, steepening inequality and polarization have brought the social question, and with it class politics, back into view. Using as a case study the mass sackings engineered by the shipping company P&O in March 2022, we can see that today’s private law is deeply implicated in the generation of structural disadvantage. A private law more concerned with extracting and hiding wealth than creating it might be thought to have a limited future.

Contracts and access to Mexico’s natural gas resources: The text is not legible on the ground

We examine how contracts mediate private industry access to state-owned subterranean resources. Using a case study from one of Mexico’s most productive onshore natural gas fields, the Burgos Basin, we link contract literatures in geography and critical legal scholarship to answer the following two questions: Does the contract text correspond to how private companies access state-owned subsurface resources, and what purposes do the contracts serve for the contract signatories beyond resource production? The data suggest that contract winners have, so far, limited their drilling activities on the Burgos Basin. This situation draws attention to a puzzle wherein natural gas reserves are not being produced, but the contracts remain active and important to both the contractors and the government. Putting semi-structured interview data into direct conversation with contract text to answer our research questions, we encourage a deeper engagement with how extractive contracts are used to access state-owned resources. First, we uncover how the contract text is not instructive of how or why a private firm will access the resource or why the state enters the contract. Second, we highlight the ways that the contract fails to actualize resource production using a mechanisms of access approach to guide our analysis. Third, we show that resource contracts facilitate relationships and advance the interests of the contract parties regardless of what the actual text purports to do. We finally describe how state-firm resource contracts offer a fruitful area of exploration for geographers interested in resource production.

Standardisation instead of litigation: what can human rights advocates learn from consumer protection at the ISO?

ABSTRACT Since the late twentieth century, at both the national and international levels, human rights discourse has been a protagonist in condemnations of injustice or in the articulation of alternative visions of a just world. Critical legal scholarship, however, has argued that human rights might offer too little, too late, especially when it comes to issues of economic (re)distribution. In this vein, I explore the possibilities that consumer rights activism offers to both defenders and critics of the international human rights movement. While consumer rights organisations have always felt part and parcel of the human rights movement, perhaps the opposite has not always been the case. Thus, by highlighting the work of Consumers International (CI) at the International Organization for Standardization (ISO), I invite human rights advocates to think of technical standardisation as an alternative strategy to push for social justice, which might be more productive than other current approaches—such as socio-economic rights litigation. Albeit depoliticising, the tools offered by consumer rights are not much more apolitical than those offered by contemporary human rights advocates, and perhaps offer new ways to challenge the distribution of resources from within the belly of the beast.

Laugh All You Medusas! Hélène Cixous’ Écriture Feminine as Feminist Legal Translation, Transformation, Transgression, and Translactation in the Era of AI and the Anthropocene

ABSTRACT This text considers Hélène Cixous’ écriture feminine (‘writing feminine’) as one way to do feminist legal translation. It discusses the importance of ‘writing one self’ as legal scholars in our own time as a reflection both on what law as well as what the self is or can be. To write one self through écriture feminine is a feminist act in contestation to the ‘phallocentric’ search for the law’s (phallo-)‘originary first term or logos’. Drawing on Yoriko Otomo’s feminist legal scholarship, I show that écriture feminine writes the world differently through the writing of the self; something which is urgently needed in a time of, as Anna Grear puts it, ‘necrotic, predatory imperative of Euro-centric petro-capitalism and rampant industrial consumerism’. Legal scholarship has often considered Cixous’ work in the context of ‘the linguistic turn’ – a turn that has been out of vogue for some time now. Hence, Cixous’ écriture feminine is rarely explicitly part of contemporary critical legal scholars’ efforts. In this text, however, I argue that Cixous’ scholarship, and her écriture feminine, is necessary to contemporary legal scholarship in its turn to new materialism, tech and AI: The feminist translation, transformation, transgression and translactation in écriture feminine interrupt the phallocentric predatory imperative embedded in the world such legal scholarship tries to make sense of and rework.

Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.

A “Binary Choice” for Families in ICE Detention: Examining the Legitimation Costs of Litigating the Flores Settlement Agreement

In the spring of 2020, as the world came to terms with the dangers of the COVID-19 pandemic, immigrant advocates in the United States turned to the courts and the 23-year-old Flores Settlement Agreement (“FSA”) to argue for the release of migrant children detained by Immigration and Customs Enforcement. But 23 years of litigating the FSA and consistent non-compliance with its terms had whittled away the FSA’s protection for accompanied children. Rights under the FSA became a “binary choice”: parents could choose to allow ICE to release their children and separate their family or they could waive their children’s right to freedom under the FSA and maintain family unity. Drawing on critical legal and socio-legal scholarship, this article refutes parental “choice” and highlights how relying on formal legal tools has truncated advocates’ aspirations for social change and legitimated the broader system of immigration detention. Instead of ending family detention, litigating the FSA has insulated it from critique. With President Biden signaling a willingness to end family detention, advocates must shift away from litigation towards advocating for durable legislation and formal regulation.

The swarm that we already are: artificially intelligent (AI) swarming ‘insect drones’, targeting and international humanitarian law in a posthuman ecology

Over the last fifty-odd years the US Defense Advanced Research Project Agency (DARPA) has launched programs aiming at emulating and incorporating insect technologies in military technology. The US Army Unmanned Aircrafts Systems Roadmap 2010–2035 has specified insect swarming as a field of development for Unmanned Aviation Systems. While legal scholarship has paid substantial attention to drones, autonomous weapons systems and artificial intelligence (AI), developments based on insect swarming technologies have been largely ignored. This article takes emerging AI swarming technologies in military warfare systems as its starting point and asks about the significance of the swarming insect in and through contemporary International Humanitarian Law (IHL) and warfare. Taking up Gilles Deleuze and Félix Guattari's notions of ‘the swarm’ and the ‘war machine’, and drawing on critical environmental legal scholarship, the article argues that rather than dispersing the human from its central position in the ‘targeting loop’, the increased interest in insects for commercial and warfare purposes is an intensification of transhumanist desires and an acceleration of late capitalism. As a counter-move, and as a contribution to a posthumanist turn in IHL, the article calls for becoming-insect, swarm and minoritarian as an epistemological practice and ontological shift in IHL and its critical scholarship, resulting in a posthumanitarian legal ordering of becoming.

Tech power: a critical approach to digital corporations

This article explores different bodies of literature looking at the rising power of digital corporations. With this work I aim to provide a critical up-to-date approach to the topic. The first part of the paper introduces the phenomenon of digital capitalism, navigating different sociological approaches. Then, it proceeds by addressing the difficulties of naming the phenomenon and the attention that is gathering among politicians, academics and the general public. The second part of the work explores three different but complementary bodies of literature looking at tech power In the first place the paper explores critical management studies’ contributions describing the characteristics of digital corporations. Secondly, the text reflects critical legal scholars’ works analysing what has been identified as one of the essential features of digital capitalism: the infrastructural power enjoyed by corporations such as Facebook or Amazon. Finally the paper exposes two different Marxist perspectives looking at digital capitalism and its latest developments. The labour-focused Marxist contribution mainly represented by Christian Fuchs and Trebor Scholz and the postfordist approach of Maurizio Lazzarato or Matteo Pasquinelli, among others.