Critical Legal Research Articles

Sandstone mining and silicosis deaths in Rajasthan: a critical legal and policy analysis

Sandstone mining and silicosis deaths in Rajasthan: a critical legal and policy analysis

How can ISO 13482:2014 account for the ethical and social considerations of robotic exoskeletons?

This paper analyzes and classifies regulatory gaps and inconsistencies in ISO 13482:2014 (‘Safety Requirements for Personal Care Robots'), specifically regarding robotic lower-limb exoskeletons, being personal care robots, for everyday activities. Following a systematic literature review, our findings support the conclusion that, even though ISO 13482:2014 has proven to be a substantial step towards regulating that type of wearable robot, it fails to address safety sufficiently and comprehensively. That failure results in a general overlook of critical legal, ethical, and social considerations when designing robots, with the consequence that seemingly safe systems might nonetheless harm end-users. Notwithstanding those limitations and impediments to the development of safe technologies, to date, there has been no thorough assessment of how the standard regulates the development of exoskeletons and whether it requires any improvement in light of ethical, legal, and societal considerations. To bridge this gap, we compile relevant areas for improvement concerning ISO 13482:2014 fueled by these considerations. We do so in an accessible manner and provide concrete recommendations to help decision-makers overcome the standard's drawbacks.

Critical Legal Research, Artificial Intelligence, and Systemic Racism: Teaching with Jim Crow Text-Mining

On the Books: Jim Crow and Algorithms of Existence is a text-mining project undertaken by University of North Carolina–Chapel Hill libraries to identify racially based laws passed in the state between 1865 and 1967. In the fall 2022, I used the On the Books project to teach a module in my Advanced Legal Research class on critical legal research and artificial intelligence and legal analytics. This article examines the benefits of those modules for teaching critical thinking about legal research structures and legacies of racism in the American legal system.

Critical analysis of River Basin Management Regulation in Bengawan Solo for Water Tourism: Local Legislation in 7 Regency

Indonesia is a legal state in Southeast Asia. Therefore every policy that is born must be following applicable regulations, unfortunately, not all objects in Indonesia have regulations that govern and one of them is the Bengawan Solo watershed. This situation makes the Bengawan Solo watershed vulnerable to damage and difficult to develop. Even though the Bengawan Solo watershed has great potential, one of which is the development of water tourism. With natural conditions that support the development of water tourism, it is suitable to be developed in the Bengawan Solo watershed area, but before it is developed into water tourism, it should have special regulations for the sustainability of the Bengawan Solo watershed. This research is research that uses qualitative data and a critical legal approach, then coupled with field observations. The results of the research in this study are: (1) there are no specific rules regarding the Bengawan Solo watershed, but there are rules that are still general regarding Bengawan Solo management policies. (2) the potential for the development of water tourism in the Bengawan Solo watershed is quite potent and has an impact on the preservation of the Bengawn Solo watershed and provides additional income for the community. (3) the opportunity to make special regulations regarding the Bengawan Solo watershed still exists, because it can take as an example the presidential regulation regarding the Citarum watershed.

Beyond the North–South divide: Litigation's role in resolving climate change loss and damage claims

AbstractWithin the international climate regime, legal aspects surrounding loss and damage (L&D) are contentious topics, implicating liability, compensation and notions of vulnerability. The attribution of responsibility and the pursuit of redress for L&D present intricate legal and governance challenges. The ongoing debates under the United Nations Framework Convention on Climate Change are characterized by a pronounced North–South divide and have done little to provide tangible support to those most affected by L&D. This apparent neglect has prompted exploration of alternative avenues for climate harm redress. The burgeoning field of litigation for liability and compensation of climate harm holds potential significance for L&D discourse, but its efficacy, especially in compensation claims relating to the adverse effects of climate change, is uncertain. There is, as yet, no precedent of plaintiffs succeeding in an L&D case, with numerous legal, evidentiary and practical barriers persisting, particularly for Global South plaintiffs aiming to hold Northern governments and actors accountable. This article scrutinizes recent advances in climate litigation and their potential to facilitate or obstruct L&D litigation. Focusing on seminal L&D cases, namely, Lliuya v RWE and Asmania et al v Holcim, we present a novel legal critique of climate litigation's capacity to assist climate‐vulnerable States, populations and communities in pursuing redress for L&D, based on pertinent case law and an examination of overarching issues of attribution and extraterritorial jurisdiction.

A Legal Critique of the Offence of Murder Arising from the Doctrine of Last Seen

Man is a social animal that interacts and associates with other people in his environment. But there are situations where his human relationship may be negatively impacted. One of such instances is a situation where the person who was last seen with the accused dies and the accused is presumed to be liable for the death of the person. The doctrine of last seen is often relied upon by the prosecution in such circumstance. The doctrine of last seen is a principle in the offence of homicide particularly murder. It is one of the concept or principles that points to the accused person as the culprit responsible for the death of the deceased/victim. For an accused person to be held liable and convicted for the death of the deceased, the evidence of the prosecution must be compelling, irresistible and point to the accused person. This study examined and carried out a critique of the doctrine of last seen as one of the principles of murder with particular reference to an examination of the concept of murder, the doctrine of last seen, the exceptions thereto and the consideration of the doctrine of last seen in India. This study adopted doctrinal research methodology and also placed reliance on both primary and secondary sources. This study concluded that this doctrine should be painstakingly applied to avoid a hasty and erroneous or fatal conclusion as to the cause of death of a person who was last seen with the accused person.

Legal Regulation on Nuclear-Powered Ships Activity in Indonesian Waters Territory

On 17 September 2021, Australia, the United Kingdom and the United States signed the AUKUS agreement legitimizing the ownership and development of Australian nuclear-powered submarines. This has direct implications for Indonesia, which has a strategic position as a trade route. In response to this, Indonesia has taken several political steps at the regional level as well as in multilateral forums. This research is intended to analyze legal steps that can be taken by Indonesia to regulate the navigation and safety of nuclear-powered submarines considering that international maritime law instruments do not accommodate these concerns. Through a normative legal approach, using the theory of Critical Legal Studies and the Concept of Legal Politics, this research finds that Indonesia needs to regulate provisions for the navigation and safety of nuclear-powered submarines at the national level.

Marine spatial planning and offshore wind: preliminary principles for Australia

Australia is endowed with some of the richest and most diverse renewable energy resources. Its offshore wind resources alone equate to an estimated 5,000 Gigawatts (GW) of electricity potential. Given these substantial estimates, offshore wind energy will likely represent a key pillar of Australia’s future renewable energy mix. Australia’s palpable offshore energy potential is increasingly understood and acknowledged. Yet, the critical legal and policy question remains of how its new regulatory framework to enable offshore wind development, the Offshore Electricity Infrastructure Act 2021 Act (Cth) (OEI Act), will interact with existing marine sectors and the marine environment. Marine Spatial Planning (MSP) may provide the missing process puzzle piece to enable more strategic coordination of the Australian offshore wind sector within the marine environment. This article adopts a socio-legal approach, examining and drawing upon international experiences to explore the potential adoption of MSP in the Australian offshore wind context. In so doing, the article argues for a coordinated approach to develop a federal MSP process to support and promote strategic offshore wind operations with existing sea users while preserving the Australian marine environment.

ANALYSIS ON CONSTITUTIONAL COURT DECISION NO. 96/PUU-XVIII/2020 FROM THE PERSPECTIVE OF CRITICAL LEGAL STUDIES THEORY

The establishment of the Constitutional Court is driven by a serious effort to protect the constitutional rights of citizens and uphold the constitution as the highest norm. Constitutional Court Decision No. 96/PUU-XVIII/2022 on the material review of Article 87 letters A and B of Law No. 7/2020 on the Constitutional Court, from the perspective of legal positivism, indicates that the Constitutional Court has exercised its authority in accordance with the governing law. Critical Legal Studies theory, as a branch of legal philosophy, offers a different perspective in evaluating legal products. This research aims to: first, understand the reasoning of the Constitutional Court judges in deciding the case; and second, assess the Constitutional Court's decision from the perspective of Critical Legal Studies theory. The research method employed is doctrinal research with a philosophical approach. The findings of this study reveal that the Constitutional Court ruled that the petitioner's argument concerning Article 87 letter A of Law 7/2020 is legally justified and no longer has binding legal force since the pronouncement of this Decision. However, the petitioner's request regarding Article 87 letter B of Law 7/2020 is deemed legally unjustified. According to the analysis of Critical Legal Studies theory on Constitutional Court Decision No. 96/PUU-XVII/2020, it is evident that there is a dominant ideology influencing the judges' considerations in the decision. The Constitutional Court merely relies on subjective values in deciding the case, disregarding procedural legal principles and pretending to maintain neutrality. The judges' reliance on political institution testimony demonstrates the inseparability of politics and law. The statement in the verdict regarding the selection of the Chairperson and Deputy Chairperson, who can only be reelected nine months after this decision, serves as evidence that the Constitutional Court aims to avoid any disadvantages and indirectly ensures the current Chairperson and Deputy Chairperson will continue to hold their positions.

KRITIK TERHADAP FORMALISME HUKUM

This journal examines the resistance to the Legal Formalism School which alludes to it from the point of view of basic reports. This legal critique incorporates liberal, radical, and postmodernist ideas as well as Marxist ideas. The background is legal certainty, both those that guarantee the fulfillment of laws that do not require overlapping rules or justice for the formation of laws. This journal aims to briefly familiarize readers with concepts in critical legal studies from various legal perspectives. In addition, for good journal results, the author must convey the goals and context of the development of Indonesian law. This writing uses content analysis research, which is a comprehensive discussion of critical legal studies. The results of the discussion show that the goal of the critical legal study movement to unite various legal perspectives is the main principle of Critical Legal Studies which continues to develop in Indonesia. Because of this legal aspect, recent legal developments in Indonesia are still relatively new. Some formal legal activists use the history of the Critical Legal Studies Movement to understand oppressive legal structures and policies. Therefore, criticism of legal formalism is supported by the fact that several applications are needed, both in terms of themes and movement strategies, as support for the fulfillment of legal formalism from various prevailing legal ideologies.

The Construction of Bisexual Act as A Ground for Divorce on Critical Legal Studies Perspective

Bisexuality as an orientation deviation that places a person to be able to have sexual relations both against the opposite sex and the same sex, today has become a social problem as well as a legal issue that seems to be still not expressly regulated in the legislation. Especially if bisexual acts are committed in a legal marriage institution by a husband or wife, while in it there are no constant quarrels. This article discusses bisexual acts committed in marriage with two focuses of discussion, namely bisexual acts in legislation from the perspective of critical legal studies (CLS) and legal reformulation of future laws and regulations. Through the type of normative research with legal, philosophical, and conceptual approaches, this article argues that the normativity of bisexual acts in marriage from the CLS perspective is still a requirement for an individualist-liberal legal style. The article argues that a reformulation of some regulations in Indonesia is necessary. This article offers a reformulation with two things. First, adding the offense of same-sex adultery to Article 411 to Article 411A of the Criminal Code. Second, amend and add authentic interpretations to the Explanation of Article 39 paragraph (2) of Law Number 1 of 1974 concerning Marriage, Article 19 letter a of Government Regulation Number 9 of 1975 concerning the Implementation of Law Number 1 of 1974 concerning Marriage, and Article 116 letter a of the Compilation of Islamic Law.

A Next-Generation Framework: Using Critical Legal Research Pedagogy to Prepare Law Students for the NextGen Bar Exam

A Next-Generation Framework: Using Critical Legal Research Pedagogy to Prepare Law Students for the NextGen Bar Exam

법학에서 비판의 역할 재고 - 미국의 비판법학운동을 소재로 하여 - ― 미국의 비판법학운동을 소재로 하여 ― 국제법의 사회학적 접근에 대한 비판적 고찰 ― 실행이론에 주목하며 ―

법학에서 비판의 역할 재고 - 미국의 비판법학운동을 소재로 하여 - ― 미국의 비판법학운동을 소재로 하여 ― 국제법의 사회학적 접근에 대한 비판적 고찰 ― 실행이론에 주목하며 ―

“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”.

An analysis of political homophobia, elitism and social exclusion in the colonial origins of anti-gay laws in Nigeria

Critical Legal Studies suggests that any serious legal advocacy must critically engage with the social and political subtext of the law in order to yield positive outcomes. This suggestion is equally applicable to advocacy for sexual and gender minorities in contexts such as Nigeria. Based on this premise, this article employs theories of political homophobia, elite power and social exclusion to analyse the social and political context surrounding the evolution of criminalising laws during the colonial phase of Nigeria's history. The article proceeds to show that political homophobia, through laws that criminalised same-sex relationships, was a strategic tool utilised under the colonial administration to protect colonial interests and maintain the legitimacy of colonisation. This strategy was a colonial imperative regardless of whether or not the local population may have agreed to or participated in the process. The outcome of, and incentive for, this process of political homophobia included the social exclusion of a large majority of the population for the benefit of an elite class. It is argued that an understanding of the rationale behind the colonial evolution of anti-gay laws can provide an insight into the entrenchment of political homophobia in Nigeria and similar legal systems in Africa and challenge the rhetoric that these laws reflect African values.

Legally Affective: Mapping the Emotional Grammar of LGBT Rights in Law School

The teaching of critical race, feminist, and queer theory generally, and of LGBT rights specifically, has developed into a discrete, contested, and politicised area of teaching in English law schools and beyond. While there is some academic discussion on the personal and political significance of ‘promoting LGBT rights’ within law schools, less considered is how ‘LGBT rights’ are shaped by the emotions of legal academics and how these emotions circumscribe what we imagine LGBT rights can and/or should mean in law and critical legal study. To illustrate this dynamic, this paper uses critical race, feminist, and queer scholarship alongside work in the emerging field of Law and Emotion to articulate the ‘emotional grammar’ of teaching a Gender, Sexuality and Law unit at an English law school. Turning to autoethnography, I use my emotional experiences as a methodological tool to explore how emotions co-constitute the pedagogical, political, scholarly, and personal registers of LGBT rights as a descriptive, critical, and normative pursuit. In doing so, I use ‘emotional grammar’ as a novel way to map how emotions structure legal pedagogies invested in pursuing LGBT rights. Emotional grammar illustrates how emotions structure: (1) the articulation of LGBT rights as an object of study in law; (2) the pursuit of law to secure the rights of LGBT people; and (3) the shape of legal critique relating to LGBT rights.

Legal Regulation of Medical Checkup of Orphaned Children and Children Left Without Parental Care: New Order — Old Problems

The article provides a scientific and practical analysis of some problems of legal regulation of medical checkup of orphaned children and children left without parental care. The discrepancies in legal terminology existing in numerous normative legal acts are revealed, which makes it difficult to understand and apply certain legal norms, as a result of which the conclusion is formulated that the existing shortcomings of normative legal acts contribute to the violation of children's rights to health protection. The absence of established forms of medical documentation does not allow proper assessment of the health status of children. Therefore, it is necessary to amend the procedure for conducting medical examinations, supplement with the necessary standards in terms of ensuring medical secrecy, giving informed voluntary consent. Possible options for eliminating the identified shortcomings and gaps are proposed, taking into account the current legislation. The purpose of the article is to identify gaps, shortcomings and contradictions in the regulatory legal acts that regulate the procedure for medical checkup of a special category of children. Objectives of the study: analysis of the legal norms governing the conduct of medical checkup of orphaned children and children left without parental care, detection of gaps in the legal regulation of relations for the implementation of medical examinations, including in medical documentation, formulation of possible options for eliminating the identified shortcomings of the legislation. Research methods: comparative legal, formal legal, formal logical, critical legal. Conclusions: the analysis of the legislation allows us to assert the need for approval by the executive authorities of the Russian Federation in the field of healthcare of unified forms of a number of medical documents for minors. A number of proposals have been made on the use of unified terminology in the field of health and medical care to minors in various regulatory legal acts, inclusion in medical documentation as mandatory information about persons who are provided with information about health of the child based on the results of medical checkup. Due to the absence in the legislation of the definition and composition of the medical documentation of a minor, it is proposed to legally consolidate these concepts. Taking into account the fact that various medical organizations, including insurance ones, are involved in the process of medical checkup, it is necessary to differentiate their duties in order to ensure the right of children to health protection.

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.

Finance, Fiction, and Loss

Finance, Fiction, and Loss

Is benefit sharing with research participants lawful in South Africa? An unexplored question in the governance of genomics research.

Despite advocacy in favour of benefit sharing with research participants in genomics research that is conducted in South Africa, there has been little critical legal engagement with this concept. That is what this article provides by posing the hitherto unexplored-but foundational-question: Is benefit sharing with research participants lawful in South Africa? The answer is clearly 'no'. South African law provides that it is unlawful to provide any financial or other reward to research participants for donating biospecimens-except for reimbursement of reasonable costs incurred. Accordingly, benefit sharing would be unlawful. The ramifications of this conclusion are far-reaching. Most pertinently, should any benefit-sharing agreements with research be put into practice, such agreements would be unenforceable and would expose all parties involved-including foreign collaborators-to criminal prosecution. The solution for proponents of benefit sharing in South Africa would be to lobby the South African government to revise the relevant law. However, as long as the law remains as it currently is, institutions and individuals all over the world who are involved in genomics research in South Africa would be well advised to comply with the law by not engaging in benefit sharing with research participants.