Production Of Legal Knowledge Research Articles

Conceptualising the tortuous harms of sexist and racist hate speech

AbstractOnline sexist and racist hate speech has been condemned by many and condoned by most. In this paper we explicate in private legal terms the harms caused by sexist and racist hate speech. By centring the experiences of women of colour through coded testimonies we seek to rethink harm in tort in order to make visible private harms, which have remained largely invisible in European private law discourse. We highlight two aspects of harm that private law structurally fails to make visible: health harms and relational harms in the context of persistent and structural gender and racial injustice. In this paper, we argue that these systemic injustices must inform how we think of tortuous harms that arise from sexist and racist hate speech in bilateral relationships. In this article we centre the knowledge of women of colour targeted by SR hate speech within legal knowledge production and to the ways that the legal community thinks about tort law and its purpose. Conceptualising the tortuous harms of sexist and racist hate speech is crucial for access to private law pathways for redress and damages.

‘Targeted killing’ and the lack of acquiescence

AbstractOver the last decade, the concept targeted killing has received much attention in debates on the customary interpretation of the right to self-defence, particularly in the context of practices such as US armed drone attacks. In these debates, government silence has often been invoked as acquiescence to thejus ad bellumaspects of targeted killing. Focusing on the question of state silence on targeted killing practices by the Israeli and US governments in recent years, this article investigates over 900 UN Security Council and Human Rights Council debates and argues that there has been no tacit consent to targeted killing. The analysis firstly shows that the majority of states have condemned Israeli targeted killing practices and have raised concerns about armed drone attacks, while falling short of directly protesting against US practices. The article, secondly, applies the customary international law requirements for acquiescence and challenges the idea that silence on US armed drone attacks can be understood as a legal stance towards targeted killing. The article, finally, investigates the political context and engages with alternative interpretations of silence. Contextualizing acts of protest and lack of protest within an asymmetrical political context, the article posits that the invocation of silence as acquiescence in the case of targeted killing is problematic and risks complicity of legal knowledge production with the violence of hegemonic actors.

Non-State Islamic Legal Knowledge Production in a Secularist Political System

Public expressions of Islamic law, non-Turkish ethnic identity or non-Muslim religious identity had either been banned or stigmatized by the Kemalist state. But counter-hegemonic and anti-hegemonic knowledge sources and identities have continued to co-exist as unofficial, subaltern and periphery phenomena, producing their own anti or counter-systemic knowledge, including unofficial Muslim. In this chapter, I am only able to focus on practicing Muslims and among them, the Gulen Movement that has mainly focused on science and secular education. The movement has reproduced several Islamic concepts to transnationally mobilize Turks. Eventually the Movement’s operations have reached to 170 countries until the global crackdown against it by the Erdoganist regime in Turkey.

Judicial Reasoning: The Production of Legal Knowledge

The author of this paper argues that judicial ratios can be classified into two different categories: 1) logical ratios, and 2) non-logical ratios. As an example, the author presents four different judicial ratios from four different UK case law. The paper also discusses the criteria which one must be looking at when classifying judicial ratios. The paper borrows ideas from the field of Set Theory and Analytic Philosophy, especially from the work of Bertrand Russell and Ludwig Wittgenstein.

Orientalism in the European Court of Human Rights

Abstract This article provides an anti-Orientalist critique of jurisprudence within the European Court of Human Rights. Discussion is located in the context of the longstanding debate over what it is to be “European” and an awareness of how these wider discourses shape rights adjudication at national and intra-national levels in Europe. Argument draws on literature from post-colonial theorists, cultural studies, and feminist legal theory which identify and discuss “Orientalist” discourses to analyse the production of legal knowledge and jurisprudence from the European Court of Human Rights. The article argues that Orientalist discourses affect the ways that the Court constructs and positions both the claimant and the respondent state in human rights claims. These constructions influence cases involving Muslim claimants and have a particularly negative impact on the outcome of claims by visibly-Muslim women. The final part of the article suggests ways that these negative discourses and constructions can be countered.

Listen closely: what silence can tell us about legal knowledge production

Listen closely: what silence can tell us about legal knowledge production

Legal Expertise and Biographical Experience

Abstract The Universal Declaration of Human Rights included – in Article 15 – the right to a nationality. Asserting this right paved the way to agreements such as the UN Convention Relating to the Status of Stateless Persons of 1954. Major protagonists in the development of this and other such human rights instruments were Jewish lawyers and their NGOs. As Jews they had experienced statelessness and the loss of a homeland through migration themselves. As lawyers they had been experts in interwar minority rights discussions and thus brought with them this legal expertise to their new homelands. This article focuses on their production of legal knowledge based on their expertise and experience.

ACADEMIC COLLABORATIONS IN THE AMERICAS: SOME REFLECTIONS ON THE POLITICAL ECONOMY OF LEGAL KNOWLEDGE

The article proceeds in three parts. The first, the articles’ analytical heart, considers the political economy of legal knowledge. It describes briefly the free market of legal ideas and the colonial model for the production of legal knowledge. It illustrates how these two models work using examples from our “South-North Partnerships” (SNP), that is, our collaborative practices in the creation of legal thought as they play out in the legal academies of the global North and South. The second part is both descriptive and reflective, focusing on four different SNP examples that illustrate challenges in the creation of truly collaborative legal knowledge production processes. It identifies common challenges in these endeavors, from surmounting basic organizational issues such as language barriers to jostling with fundamentals like conflicting academic calendars. Most importantly, the second part indicates how the dynamics of the political economy of legal knowledge played out in the SNPs described. It also highlights possible ways to equalize these relationships and activities, with an end to creating SNPs focused on truly collaborative legal knowledge production. The third part offers conclusions and recommendations.

La economía política del conocimiento jurídico

La producción, intercambio y uso del conocimiento jurídico están sometidos a una economía política. Estos procesos están regidos por una serie de reglas y principios que determinan las condiciones de posibilidad para la creación, comercio y consumo de teoría, dogmática y prácticas jurídicas. Esta economía política, consecuentemente, no es neutral. Construye un sujeto de conocimiento específico que actúa dentro de un espacio y un tiempo particulares. Este escrito, por tanto, tiene un doble objetivo. Por un lado, busca describir y analizar el modelo de economía política que domina la imaginación jurídica contemporánea. En esta medida, busca examinar la estructura conceptual de lo que quisiera llamar el modelo del libre mercado de las ideas jurídicas. Por el otro lado, busca describir y analizar un modelo de economía política alternativo y periférico que explicaría de mejor manera las dinámicas reales que regulan la generación, tráfico y uso del conocimiento jurídico. Para conseguir este objetivo, el escrito hace explícitas las estructuras conceptuales que conforman el que quisiera llamar el modelo colonial de producción de conocimiento jurídico. El artículo, por ende, tiene como fin hacer explícitos los tipos de sujeto de producción de conocimiento jurídico al que los modelos dan lugar, así como la manera como imaginan el tiempo y el espacio en el que estos sujeto se sitúan. De igual forma, busca hacer explícitas las reglas y principios más precisos que determinan la manera como estos modelos imaginan la producción, intercambio y uso del saber legal.

Dificuldades e descobertas de uma pesquisa empírica em direito: estudo de casos a partir de documentos de arquivos judiciários

Este texto relata o percurso de uma pesquisa empírica em direito realizada durante o curso de doutorado da autora. Narrado em primeira pessoa, descreve as dificuldades práticas e as descobertas teóricas construídas ao longo do desenvolvimento de uma pesquisa que culminou com a opção pela estratégia metodológica do estudo de caso. Paralelamente, insere considerações teóricas sobre as escolhas metodológicas que se apresentaram durante o processo, especialmente Robert Yin e Carlo Ginzburg. Explica de que forma tal bibliografia possibilitou a combinação de várias estratégias na pesquisa, paralelas ao estudo de caso. De forma minuciosa, relata a fase de exploração, o contato com outros espaços de pesquisa e com profissionais de outras áreas. O texto não apresenta os resultados da pesquisa relatada, pois ela ainda não está concluída. Pretende contribuir para a solidificação do debate sobre a forma de produção do conhecimento jurídico.

Law and Societies in Global Contexts: Contemporary Approaches. By Eve Darian-Smith. Cambridge: Cambridge University Press, 2013. 428 pp. $36.99 paperback.

Law and Societies in Global Contexts: Contemporary Approaches.By Eve Darian-Smith. Cambridge: Cambridge University Press, 2013. 428 pp. $36.99 paperback.Eve Darian-Smith's core message is straightforward and urgent: the issues that matter unfold on scale that is global, yet we live life on scale that is local, and continue to think and teach sociolegal studies on scale that is national. If law is to find meaningful ways to address pressing concerns such as food security, people smug- gling, climate change, and terrorism, then sociolegal scholarship must adopt global perspective: perspective that destabilizes our modern and linear understanding of what law is, where law appears, and how law works . . . recognizing that domestic law as it plays out within states is, and always has been, constitutively linked to issues of global economic, political, and cultural power (378). The complexities, dynamism, and pluralism of global sociolegal perspective becomes the axis around which this book simultane- ously builds on the sociolegal tradition of interrogating the hegemonic while repairing the analytic inadequacy of state-centric law.Importantly, the book maps way forward by first reviewing and assessing sociolegal studies in terms of its histories, politics, contexts, and content. This is no mean feat given the breadth of the field, and the abundance of the literature embraced by its interdisciplinarity. As part of this review, Darian-Smith highlights the provincialism of conventional introductory sociolegal texts in the United States: They typically present U.S. law as if it is the only legal system operating in the world, and, moreover, one that does so in geopolitical silo (5). Dismantling sociolegal pro- vincialism is one of the many significant contributions of this book.Just as Laws and Societies in Global Contexts moves away from state-centric law to illuminate sites of legalities below and above the level of the state, the book abandons predictable topics such as social control, lawmaking, legal administration, courts and juries, dispute resolution, capital punishment, crime, the legal profession (5) in favor of and topics that enable fresh ways of seeing. These are: the production of legal knowledge (Chapter Three), reimagining legal geographies (Chapter Four), securing peoples (Chapter Five), and re-racializing the world (Chapter Six). The topics of these chapters are framed by an early insistence that analysis with global sociolegal perspective should be foregrounded by attention to persistent and interlocking themes (39) that together provide the ultimate challenge for long-term peace and human security in the twenty-first century (39). These are, first, law as a dynamic artifact of cultural engagement (39), and second, assemblages . . . of overlapping legal systems that embody diverse range of cultural values, norms, and meanings (39). Among the ways in which Darian- Smith engages the tensions and complexities of these two is consideration of legal pluralism, illustrated with examples of popular, political, and legal institutional responses to Shari'a law, and the laws of indigenous peoples, in the industrialized West. …

The Dominance of Teams in the Production of Legal Knowledge

Using a database that contains over 19,000 law review articles published in top 100 law reviews between 1990 and 2010, we demonstrate that team authors dominate solo authors in the production of legal knowledge. Team research is on average more frequently cited than individual research, and teams are more likely than individuals to produce exceptionally high impact research. These results suggest that a legal research culture that encourages cooperation and collaboration could foster an intellectual connectedness helpful to improving the quality of knowledge production by legal academics.

Facts and Fabrications: Experiences of Law and Legality Among Return Migrants in Ukraine

How do return migrants reintegrate back into the society? This question has been explored by much academic scholarship interested in the migration and development nexus. This paper contributes to these debates, but focuses on the experiences of re-adaptation of return migrants in the legal sphere. It systematically addresses three interrelated questions. First, how do return migrants re-establish their relationship with the legal system upon arrival? Second, how do their experiences of return and re-adaptation, upon being exposed to different ways of understanding and relating to the law, contribute to their interpretations of legality, and influence their values and attitudes to law? Finally, how do return migrants’ responses to the law in the commonplace contribute to the production of legal knowledge? (cf. Yngvesson and Coutin 2006: 178; Riles 2006). The analysis is based on 99 in-depth interviews conducted in Ukraine with return migrants, family members of migrants and representatives of organizations that help return migrants reintegrate back into the society. The data has been gathered under the auspices of THEMIS project. Discussing migrants’ legal adaptations I pay particular attention to the logic of difference (Moore 1986) between how law and legality are being perceived ‘at home’ and abroad, and what this can tell us about 1) the safety and personal security of return migrants; 2) their relationships with the police, bureaucracy and local officials; and 3) their choice of career paths and business ventures in Ukraine. I employ the comparative lens on the role of law to grapple with the fabrications of some of socially constructed ‘myths’ about legality in Ukraine.

Critical Race Black Feminism: A “Jurisprudence of Resistance” and the Transformation of the Academy

This article commemorates the twenty‐fifth anniversary of the black feminist classic All the Women Are White, All the Blacks Are Men, But Some of Us Are Brave by examining the contributions of black feminists to the production of legal knowledge and black feminist criticism. For lawyers, and especially law professors, legal reasoning presents itself as the ultimate standard in intellectual achievement, a white masculinist posture that holds special challenges for black female lawyers and law professors, who are taken as the law’s embodied antithesis. I argue that black feminist legal theorists have produced what Cheryl I. Harris terms a “jurisprudence of resistance,” a jurisprudence that has fundamentally challenged the epistemological and methodological assumptions of the law and forced scholars and practitioners to take account of the unique social locations of black women qua black women in a wide range of legal and political contexts. More specifically, the article focuses attention on three distinct areas in which black feminist legal theorists have transformed the legal academy in particular and the academy more generally: critiquing the racial limitations of critical legal studies and exposing subjectivity through the production of narrative, advancing intersectionality as a legal and research paradigm, and expanding our understanding of harassment and discrimination law to account for the experiences of black women.

Disjuncture in the Legal Profession: Public Regulation and Firm Policies

This paper examines the disjuncture that has developed in the Australian legal sector between the expectations of the large firm employers and new law graduates. This disjuncture is causing hardship to graduates and undermining versatile skill development in the sector. Under current conditions of entry to the profession, corporate law firm policy largely determines the experience of private practice. Yet the promotion to partner tournament is losing its motivating power as the firms grow to their maximum market size and the new generation of graduates want more flexibility in their jobs and employability across the sector. This disjuncture is being expressed in several ways: indirectly through the pressure on the curriculum and orientation of the public university degree programs, more closely in the arrangements for graduates to obtain the practical legal training for admission to the profession, in the regulation of the private practice traineeships and continuing professional development, finally in the reshaping of the firms themselves with provision for MDPs and corporate legal services. It raises the question whether local regulatory institutions can continue to play a role coordinating a social system of production of legal knowledge and skills training. Will the large firms break free of the local state and professional institutions and enter an independent world of international services? What does the small Australian experience indicate about changes in the profession globally?

Backed by papers: Undoing persons, histories, and return

Deportations of long-term U.S. residents to El Salvador and roots trips that Swedish transnational adoptees make to their countries of birth attempt to reconnect individuals to their origins. As they (re)connect, however, such journeys dismantle, reconfiguring the original departure—emigration or adoption—in ways that can destabilize current, future, and past selves and the national and familial belongings in which these selves are embedded. By examining the paths and disjunctures that journeys “back” entail, we consider the significance of “return” for the production of legal knowledge.

Authorizing the Production of Urban Moral Order: Appellate Courts and Their Knowledge Games

Using some appellate courts' reviews of projects to maintain moral order in the city as the main source of data, this article shows that an analysis of legal knowledge production that (1) is dynamic and (2) refuses to treat people and texts as totally different entities, one studied by social scientists and the other studied by lawyers, can tell us much about such familiar but seldom theorized legal maneuvers as judicial review and constitutional challenges. Choosing to analyze the dynamics of knowledge processes is inspired by Actor Network Theory (ANT), Bruno Latour's work in particular. This methodological choice is particularly appropriate because judicial review tends to avoid making judgments about the content of impugned laws or ordinances, focusing instead, as Latour does, on form and process. But insofar as legal processes in general privilege form and process to a greater or lesser degree, a more general argument is made about the appropriateness of using tools from ANT to study legal and quasi-legal knowledge networks.