Normative Critique Research Articles

Dominant Search Engines: An Essential Cultural & Political Facility

When American lawyers talk about facilities, they are usually referring to antitrust doctrine that has required certain platforms to provide access on fair and nondiscriminatory terms to all comers. Some have recently characterized Google as an essential facility. Antitrust law may shape the search engine industry in positive ways. However, scholars and activists must move beyond the crabbed vocabulary of competition policy to develop a richer normative critique of search engine dominance.In this chapter, I sketch a new concept of cultural and political facility, which can help policymakers recognize and address situations where a bottleneck has become important enough that special scrutiny is warranted. This scrutiny may not always culminate in regulation. However, it clearly suggests a need for publicly funded alternatives to the concentrated conduits and content providers colonizing the web.

Symbolic Violence and Collective Identity: Pierre Bourdieu and the Ethics of Resistance

Social movement researchers have only recently begun to make use of the rich explanatory leverage offered by Pierre Bourdieu's theory of practice. The normative implications of his framework remain almost entirely undeveloped. This paper seeks to redress these shortcomings by applying central concepts from Bourdieu's work—symbolic violence and his realist philosophy of science—to social movement analysis. Using North American lesbian, gay, bisexual, transgender and queer collective identities to illustrate this application, the paper advocates shifting analysis of collective identities from models based on negotiation to one based on domination and advocates treatment of social movement organizations as sites of justice amenable to normative evaluation and critique.

The Learning Needs of the Patent System: Implications from Institutionalism for Emerging Technologies Like Synthetic Biology

This paper transposes dominant normative critiques with an institutionalist view of patent law by analysing how the multi-institutional setup of the patent system may determine the quality and coherence of change and decision-making. The institutional environment of the patent system makes it opaque, sticky and complex. These significant features are examined for the first time in this paper. Critical opportunities for statutorily determined decision-making are best described as learning needs, expressed through heuristics such as the person skilled in the art, inventive step determinations and prior art. These learning needs, set against the broader institutional environment, severely constrain current goals and limit future decision-making possibilities. In the case of an emerging technology such as synthetic biology, the management of learning needs is likely to lead to decisional outcomes marked by a desire for short-term gains in certainty and homogeneity, rather than substantive goals.

Social entrepreneurship: critique and the radical enactment of the social

Purpose – This paper seeks to pinpoint the importance of critical research that gets to problematise social entrepreneurship's self‐evidences, myths, and political truth‐effects, thus creating space for novel and more radical enactments.Design/methodology/approach – A typology mapping four types of critical research gets developed. Each critique's merits and limitations are illustrated through existing research. Also, the contours of a fifth form of critique get delineated which aims at radicalising social entrepreneurship through interventionist research.Findings – The typology presented entails myth‐busting (problematisation through empirical facts), critique of power‐effects (problematisation through denormalising discourses, ideologies, symbols), normative critique (problematisation through moral reflection), and critique of transgression (problematisation through practitioners' counter‐conducts).Research limitations/implications – The paper makes it clear that the critique of social entrepreneurship ...

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Reflections: On the Lost Specification of ‘Change’

The notion of ‘change’ has become pervasive in contemporary organizational discourse. On the one hand, change is represented as an organizational imperative that increasingly appears to trump all other concerns. On the other hand, change is addressed as an abstract, generic entity that can be theorized, categorized, evaluated and acted upon without further specification. In this article, we argue that this combination of absolutism and abstraction has some unfortunate consequences for the precise assessment and practical management of particular organizational changes. Based on re-readings of two classic, but partially forgotten contributions within organization theory – the work of Wilfred R. Bion on group assumptions and the work of Elliott Jaques on ‘requisite organisation’ – we suggest that contemporary discussion of organizational change could benefit considerably from regaining a lost specificity; an empirical grounding in the detailed description of content, purpose and elements of change as a prerequisite for any normative appraisal or critique.

Against the Big Society: A Durkheimian socialist critique

This paper is an attempt to take a critical sociological look at the UK government’s flagship ‘Big Society’ policy. To do this I utilize the political sociology of Émile Durkheim, specifically what I call his ‘socialist theory’. This overlooked aspect of Durkheim’s sociology contains a strong normative critique and alternative project concerning the role of the State, private property, economic regulation and inequality. By applying this to the Big Society it is argued that the latter will result in: increased moral fragmentation, the furthering of economic inequality and the development of a ‘postcode lottery’. Instead, Durkheim’s advocacy of functional representation in the form of the ‘corporations’ seems to hold some contemporary relevance.

From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws

Child pornography circulating in cyberspace has ballooned into the millions. To punish this flood, the law must accurately delineate culpable conduct. Technology such as peer-to-peer networks has erased the divisions among traders of child pornography, and, therefore, the differentials in punishment have lost their underpinnings. The current sentencing controversy surrounding child pornographers is merely the tip of the iceberg of the larger need to revamp the offenses themselves. This paper provides a framework for a normative critique of the offenses and their sentences. It suggests the law could better reflect technology by comporting with a refined harm rationale that rests on the fundamental injury to the victim’s dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention’s ban on photographs of prisoners of war, this paper states all traders in child pornography violate the rights of the children depicted and therefore inflict harm, albeit at different levels. Accordingly, the paper proposes three categories: producers, traders, and seekers of child pornography with base sentences varying accordingly. Starting at the same base level, the Sentencing Commission could then propose enhancements or departures to distinguish among the traders and their individual culpability.

Common Cause in the Culture Wars?

A significant body of legal academic writing produced in recent years has argued that one of the primary purposes of the First Amendment's Religion Clauses was to protect freedom of conscience. But in the two decades since the Supreme Court's decision in Employment Division v. Smith, a number of commentators have suggested that freedom of conscience has lost its place as the focus of Free Exercise and Establishment Clause jurisprudence. Indeed, some have gone so far as to argue that protection for freedom of conscience has disappeared from the Free Exercise Clause almost entirely, leaving conduct that is motivated by a religious conscience without special constitutional protection. To be sure, some protection for freedom of conscience remains—but its constitutional source is often to be found outside of the Religion Clauses and its concern is often with non-religious activity.This evolution of doctrine has been extensively criticized by scholars of the Religion Clauses, many of whom view these developments as departures from original intent and from long-settled constitutional practice. Michael McConnell, Martha Nussbaum, and others have also advanced normative critiques, arguing that religious conscience is in many ways distinctive and merits distinctive constitutional solicitude under the Free Exercise Clause. At the same time, the Supreme Court's rejection of special privileges for religious claims of conscience has been welcomed by other scholars, some of whom have argued that preferential protection for religiously-motivated conduct is a form of unconstitutional discrimination. Two of the most prominent proponents of this position are Christopher Eisgruber and Lawrence Sager, who maintain that the Religion Clauses should be read to promote equal liberty rather than to provide special exemptions.

Assessing Law's Claim to Authority

The idea that law claims authority (LCA) has recently been forcefully criticized by a number of authors. These authors present a new and intriguing objection, arguing that law cannot be said to claim authority if such a claim is not justified. That is, these authors argue that the view that law does not have authority viciously conflicts with the view that law claims authority. I will call this the normative critique of LCA. In this article, I assess the normative critique of LCA, focusing predominantly on the arguments presented by its most incisive proponent Philip Soper. I defend a twofold conclusion. First, LCA, understood roughly along the lines put forward by Joseph Raz, is part of the most attractive analysis of law. Second, proponents of the normative critique, and in particular Soper, are committed to accepting LCA.

Recognition, Cooperation and the Moral Presuppositions of Capitalist Organization of Work

Abstract Starting from the current debate on work and recognition, the article describes how shifts within the cultural frames of work, the transformation of hierarchies into internal markets and the development of a service economy lead to problems which can take the form of a 'paradox of recognition'. This paradox cannot be dissolved simply by a conceptual distinction between equal respect for persons and qualifying esteem of performance and efficiency, at least as long as we are interested in a matching of empirical analysis and normative critique. The normative claims for visibility and transparency of work are described as a paradigmatic case for the entanglement of questions of respect and esteem. With respect to recent developments within critical theory, the article argues that the idea of immanent critique needs further elaboration in order to accentuate the relation between normative critique and functional analysis.

Re-thinking American intervention in the 1948 Italian election: beyond a success–failure dichotomy

American intervention in the 1948 Italian national election campaign has long been a source of contention. Most scholarship has assessed the Truman administration's activities in binary terms that revolve on simplistic notions of ‘success’; the idea that American efforts did or did not affect the outcome. The subsequent tendency has been to celebrate or critique US intervention. This article traces the difficulties experienced by the American government in post-war Italy, which laid the platform for an improvised effort in support of non-communist forces. The mobilisation was neither unified nor coherent and, moreover, was influenced by Italians. The final result nevertheless masked problems with the campaign. Rather than a normative critique of American efforts, this article argues that the outcome fostered a ‘perception of success’ that reframed US conceptualisation of the post-war Italian case and considers the wider ramifications of this mind-frame for future US–Italian relations and broader American approaches in the Cold War.

Rethinking Citizenship through Alienage and Birthright Privilege: Bosniak and Shachar's Critiques of Liberal Citizenship

The assumption that the boundaries of justice and democracy coincide with the territorial boundaries of states is subject to increasing normative critique. Linda Bosniak and Ayelet Shachar’s recent books are part of this charge; their common starting point is the tension between a commitment to bounded citizenship that privileges citizens over noncitizens and the moral cosmopolitan claim that all human beings, regardless of their citizenship status, are entitled to equal concern and respect. Bosniak’s focus is on the territorial interior and the difference that citizenship status does and doesn’t make to the legal rights a territorially present person is entitled do. Shachar critiques birthright citizenship laws, which are a central mechanism by which global inequality is sustained. This review essay argues that while these authors identify important new challenges and offer innovative proposals, they only take us part of the way toward meeting the challenge of articulating citizenship’s ethical significance and the relationship between our national and global obligations.

The Ferocity of Hope: Accountability and the People's Tribunate in &lt;i&gt;Machiavellian Democracy&lt;/i&gt;

In Machiavellian Democracy, John McCormick elegantly highlights the “ferocious populism” inherent in Machiavelli’s writings. McCormick distinguishes his reading from that of the Cambridge School, emphasizing that interpreting Machiavelli within the republican tradition fails to do justice to Machiavelli’s anti-elitism. Whereas republicanism both in its historical and contemporary forms is in many respects compatible with aristocratic rule and hostile to popular agency, McCormick’s reading of Machiavelli affirms the importance of institutions designed to give the people—the economic lower classes in particular—a means of keeping elites accountable and an active role in political life. The book is divided into three sections. The first is largely interpretive, focusing on arguments for popular participation in the Prince and the Discourses; the second discusses Machiavelli’s analysis of the way in which institutions structure the motivational logic of citizens and elites in Rome and Florence in particular; and the third provides a normative critique of the aristocratic impulses of even contemporary republicanism, accompanied by institutional prescriptions for challenging elite domination along Machiavellian lines. Throughout the book, McCormick’s reading of Machiavelli is both careful and bracing, a rare combination. For instance, within the first third, the discussion of Machiavelli’s relationship with the two dedicatees of the Discourses, Cosimo Rucellai and Zanobi Buondelmonti, is especially interesting. There McCormick demonstrates persuasively that Machiavelli encourages the grandi to believe that the stability of the

Assisted dying and the context of debate: 'medical law' versus 'end-of-life law'.

This paper provides a reflective analysis of the nature of normative critiques of law generally, and within medical law specifically. It first seeks to establish the context within which critical analysis of law and legal measures takes place, and develops an argument that critiques should focus on political norms. Entailed in this claim is the contention that positions that seek to address controversial social problems can not resort simply to moral philosophy. It then provides a brief account of political liberalism that can contain and expose normative constraints on questions of moral and social contention. The focus then moves to a more direct reflection on medico-legal analysis. Considering both medical law as a discipline, and the study of end-of-life issues, the argument highlights the range of relevant issues that must be accounted for, and addresses the question of whether these are well conceived as ones of medical law. It is argued that a political framing offers a good general analytic context, but that when working in legal sub-disciplines analysts risk allowing 'locally' pertinent norms to dominate or unduly constrain wider debate. Thus it is questioned whether 'medical law' provides a coherent frame for social questions related to assisted-dying.

Apparatuses of Animality: Foucault Goes to a Slaughterhouse

The work of Michel Foucault is not often considered in animal ethics discussions, but I believe that many of his insights can be fruitfully extended into this area of philosophical inquiry. In this paper, I present the slaughterhouse as a technology of power that is complicit in the domination and objectification of both human and nonhuman animal subjects. I begin by arguing that Foucault’s notion of an “apparatus” is a useful methodological tool for thinking about the constellation of spaces and discourses in which various bodies (both human and nonhuman) find themselves enmeshed. Next, I outline Foucault’s multifaceted conceptualization of “power,” and I consider whether it makes sense to think of other animals as implicated in “power relations” in the various Foucauldian senses. Finally, I analyze a journalistic account of a contemporary slaughterhouse. Here, I argue that a variety of hierarchies (spatial, racial, species, etc.) dovetail to create an environment in which care and concern are virtually impossible. By coupling a Foucauldian analysis with certain insights developed in the bioethical work of Ralph Acampora, I offer a normative critique of an institution that has pernicious effects on both human and nonhuman animals.

Institutional Normativity and the Evolution of Morals: A Behavioural Approach to Ethics

This article explores the normative nature of institutions. The starting point of my investigation is Kahneman, Knetsch and Thaler’s notion of the reference transaction from which I derive a recursive relationship between normative judgements and social practices (i.e. regular, routinised actions in a social group), an implication of which I call the “self-justification of practices”. Drawing on John Dewey, I demonstrate how prevailing practices influence normative standards and thus how institutions become normative entities. I then show how, despite the conservative bias of normative standards, institutional change comes about. Finally, I enquire into the possibility of normative critique of prevailing practices and institutions.

The conscientious HR manager and the Rubik's Cube

PurposeBy examining the literature on the ethical dilemmas of H/RM practitioners, the paper aims to put an “H” in H/RM.Design/methodology/approachAnalysing the significant contribution which H/RM scholars have made in studying the ethical dilemmas of H/RM practitioners, the paper builds a view of an H/RM practitioner as a “conscientious HR manager” loosely connected to an ethical dilemma, a “Rubik's Cube”. Using these linguistic devices to simplify others scholarly work, the paper introduces a complex autopoietic system to provide a more “connected knowing” of ethical dilemmas and the “H” in H/RM.FindingsGeneralising from this analysis, the paper connects a social sub‐system (H/RM) with a living human system.Research limitations/implicationsNaturalistic “grounds” for launching a normative critique of H/RM that celebrates humans as social and biological animals are provisionally outlined.Originality/valueThe paper adapts Capra's complex autopoietic system to present a normative critique of H/RM from the Darwinian left.

Piracy, Creativity and Infrastructure: Rethinking Access to Culture

This paper raises a series of questions on the relationship between piracy, infrastructure and access to culture. Piracy has always posed a representational problem within contemporary discourses on law, public good and creativity. Piracy seems to allegorize an impure transgression, tainted by commerce and an inability to produce a discourse on itself. Pirate production of commodities and media objects fits neither a narrative of resistance nor normative critique, nor does piracy seem to fit received models of creativity or innovation. Piracy produces a series of anxieties: from states, transnational capital, and media industries and even within some liberal proponents of the public domain. The paper reframes the problem of the pirate through an examination of the content/ infrastructure binary, and questions existing assumptions about creativity, subjectivity and transformation, commodification and social life.

Allocating Ecological Space

Liberals have long been committed to two axiomatic claims about freedom: that the exercise of control within one’s private space epitomizes individual liberty, and that each person must be free to define and pursue the good life for themselves. Together, these claims form a conception of freedom as autonomy (from the Greek Auto-Nomos, giving law to oneself), conceptualized as a personal space in which each can act according to one’s own view of the good, free from external constraint. Liberal theories of justice have embraced such claims about autonomy, defining justice in terms that recognize sovereignty within one’s personal space and protect individuality. John Rawls’s primary goods, 1 Ronald Dworkin’s resources, 2 and Amartya Sen’s capabilities approach 3 all focus on instrumental goods within a metric of egalitarian justice, allowing individuals full control over their personal spaces of autonomy while maintaining the bases for interpersonal comparison that distributive justice requires. This spatial conception of liberty has dominated liberal thought at least since J. S. Mill’s observation that “the only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to attain it.” 4 Here, Mill not only defines individual liberty in terms of autonomy, but he also specifies its limits: each of us should be free to pursue our own ideas about the good within our own space, bounded only by the space of others, where our acts infringe upon their autonomy. 5 If this autonomous space is to play the role that Mill and other liberals have long assumed, it must be sufficiently large to allow for a wide range of actions and choices, allowing each to express their individuality without encountering the limits that Mill mentions and the constraints on action that they entail. If almost everything that I do impedes others from pursuing the good in their way—harming them directly, limiting their opportunities, or otherwise infringing upon their space—then my personal space becomes vanishingly small, and my liberty but a trivial abstraction. This spatial conception of freedom is challenged by analyses emerging from the ecological crisis, which offer competing accounts of personal space with quite different implications for the exercise of individual autonomy. 6 Given ecological limits, aggregate ecological space 7 (i.e., life-supporting natural resource-based goods and services, conceived in spatial terms) is finite and threatened by current patterns of over-appropriation, yielding imperatives to fairly allocate that space among various claimants, present and future. Uninhibited autonomy, as construed above, is not sustainable, justifying significant limits on both personal space and